Fidal

Review

Guillaume Dezobry, Marjolaine Germain Letaleur Electricity: The Commission for Energy Regulation changes the methodology for calculating the regulated electricity sales tariffs

22 September 2022 91

On July 27, the French Energy Regulatory Commission (CRE) [] consulted market players on the inclusion, in the calculation of the regulated tariffs for the sale of electricity [] , of the costs of supplying the volumes of ARENH capped as a result of the ceiling being reached (Public (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Electricity: The Dispute Settlement and Sanctions Committee of the Commission for Energy Regulation sanctions an operator for breach of the ban on insider trading and disclosure of inside information (Engie)

19 May 2022 133

A few weeks after the publication of the first sanction decision regarding privileged information on the French market (Decisions of the CRE’s CoRDiS dated April 25, 2022 imposing sanctions on EDF and EDF Trading Limited - CRE (see Concurrences 3-2022 : Chronique Régulation), the Dispute (...)

Philippe Vanni Vertical agreements: The European Commission adopts a new block exemption regulation on vertical restraints

10 May 2022 386

The new block exemption regulation applicable to vertical agreements was adopted on May 10, 2022. Succeeding EU Regulation No. 330/2010, which expired on May 31, 2022, it constitutes, since June 1, 2022 and for a new period expiring on May 31, 2034, the new framework for the self-assessment of (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Energy: The French Administrative Supreme Court rejects the application for interim measures by the unions of the incumbent operator against the increase in the ARENH ceiling (Fédération Chimie Energie)

5 May 2022 63

In order to cope with the sharp increase in electricity prices on the wholesale markets, and to limit the impact on end consumers in France, the Government has decided to increase by 20 TWh the volume of electricity available to alternative suppliers under the regulated access to historical (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Energy : The European Union Agency for the Cooperation of Energy Regulators does not call for a fundamental reform of the market design of wholesale electricity markets

29 April 2022 72

Following the surge in energy prices in the late summer of 2021, the Commission has published a Communication on energy prices in which it describes the measures that can be put in place by Member States in the short to medium term to protect consumers from these significant increases. The (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Energy: The Energy Regulatory Commission’s Dispute Settlement and Sanctions Committee issues its first decision on privileged information on wholesale markets (EDF)

25 April 2022 142

Starting in September 2016, the wholesale electricity markets experienced a sharp increase in prices on the forward market. At the same time, a high level of unavailability of the nuclear fleet was observed over the winter of 2016-1017. Background As part of its mission to monitor the (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Energy: The General Court of the European Union annuls the decision of the Board of Appeals of the European Union Agency for the Cooperation of Energy Regulators regarding the project to increase additional gas capacity at the interconnection point between Hungary and Austria (MEKH / ACER)

16 March 2022 94

As early as 2015, the Hungarian gas transmission system operator [hereinafter "FGSZ"] and the Austrian system operator [hereinafter "GCA"] investigated a project to increase the additional capacities at the interconnection point between Hungary and Austria [hereinafter "HUAT Project"]. The (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Reform: The French Competition Authority issues its opinion on the increase in the ARENH ceiling provided for in the draft regulatory texts (ARENH)

25 February 2022 68

The French Competition Authority was consulted on the basis of Article L. 462-2 of the French Code of Commerce for its opinion on the draft decrees and orders increasing the volumes of ARENH that can be sold and providing a framework for this additional allocation of regulated access volumes to (...)

Guillaume Dezobry, Marjolaine Germain Letaleur Market Surveillance: The French Administrative Supreme Court completes its jurisprudence on the sanctioning of market manipulation in the energy sector (BP Gas Marketing)

2 February 2022 76

On December 19, 2019, the Dispute Settlement and Sanctions Committee of the Energy Regulatory Commission [hereinafter "CoRDiS"] issued a financial penalty of one million euros against BP Gas Marketing Limited for market manipulation at PEG South (placing orders without the intention to execute (...)

Philippe Vanni Franchising: The Paris Court of Appeal revisits the franchisor’s pre-contractual obligation to provide information and, in particular, the provision by the franchisor of a projected operating account (All Frames / Multivision Franchise)

12 January 2022 101

On April 11, 2011, All Frames, after having read the pre-contractual information document provided by its franchisor, Multivision Franchise, entered into a franchise agreement with the latter for the operation of an optical store located in Tours. The franchised company was placed in (...)

Benoit Blottin, Frédéric Marty, Guillaume Dezobry, Alexandre Eberhardt-Le Prévost, Christine Le Bihan-Graf, Raphaël Vuitton, Francesco Martucci, Laure Rosenblieh, Marie Lamoureux Competitive issues in the energy sector

November 2021 2063

This On-topic proposes to bring together the views of academics and practitioners on competition issues in the energy sector. Among the many questions raised by this vast subject, the authors have chosen to focus on themes that invite the reader to understand the extent to which the fourth (...)

Philippe Vanni Liability: The Paris Court of Appeals revisits the necessity of demonstrating the existence of a selective distribution network as a condition for a liability action on the basis of article L. 442-2 C. com. (Modz / Davimar)

3 November 2021 225

Guillaume Dezobry Energy : The European Commission proposes measures to limit the effects of soaring energy prices on wholesale markets

13 October 2021 87

On October 13, 2021, the European Commission made public its proposals to respond to soaring energy prices and limit the effects on the most vulnerable residential customers and the most exposed businesses. In its Communication "Tackling the challenge of rising energy prices: A policy and (...)

Philippe Vanni Competition policy: The European Commission publishes the draft for revised regulations and guidelines

9 July 2021 181

The block exemption regulation 330/2010 expires on 31 May 2022. For the record, this regulation and the accompanying guidelines facilitate the competitive assessment of agreements relating to the supply and distribution of goods and services by making it possible, under certain conditions, to (...)

Philippe Vanni Commercial agency: The French Supreme Court clearly confirms the extensive assessment of the commercial agent’s power (ATL Location / SWAL / Avis)

23 June 2021 155

Once again this quarter, we note the consolidation of the case law on the broad assessment of the commercial agent’s negotiating power. We had previously noted a decision of 12 May 2021 in which the French Civil Supreme Court considered that the commercial agent’s negotiating power did not (...)

Philippe Vanni Qualification: The Paris Court of Appeal considers that the power to conclude the contracts he is responsible for negotiating himself is not a necessary condition for the qualification of commercial agent (CLS Remy Cointreau / SWM)

20 May 2021 115

In the wake of the decision handed down by the Court of Cassation on 12 May 2021 (cf. supra Cass. Com., 12 May 2021, No. 19-17.042), a decision of the Paris Court of Appeal of 20 May 2021 should also be noted, dealing not only with the question of the existence of the commercial agent’s (...)

Philippe Vanni Commercial agency: The French Supreme Court clearly confirms the extensive assessment of the commercial agent’s negotiating power (Nicolas / Verdier)

12 May 2021 144

The qualification of a commercial agent contract remains at the heart of current case law, as evidenced by a decision of the Court of Cassation handed down on May 12, 2021. One will recall, of course, the decision handed down on June 4, 2020 by the Court of Justice of the European Union, which (...)

Guillaume Dezobry Energy: The French Government adopts three ordinances to complete the transposition of the Clean Energy Package directives

3 March 2021 92

On 3 March 2021, the Government adopted three ordinances to complete the transposition of the directives adopted under the Clean Energy Package and, more specifically, Directives 2018/2001 of 11 December 2018 on the promotion of the use of energy from renewable sources and 2019/944 of 5 June (...)

Guillaume Dezobry Energy: The Commission for Energy Regulation and the UK National Regulator (OFGEM) decide to close the public consultation on the Aquind project exemption (Aquind)

27 January 2021 120

In a press release dated 27 January 2021, the French and UK regulators announced that they were closing the public consultation launched in the context of the exemption request for the Aquind interconnector project. The press release states that, following the UK’s exit from the European Union, (...)

Philippe Vanni Commercial agency: The Paris Court of Appeal, noting the absence of demonstration by the agent of a specific and autonomous distribution activity, dismisses the latter’s claims based on the former article L. 442-6, I. 5° C. com (Energy Lab / Brooks Sports)

19 January 2021 96

On 29 May 2003, Brooks Sports GmbH concluded a sales agency agreement with Energy Lab giving it exclusive rights to represent and promote Brooks products in France. As part of the promotional activity, the abovementioned contract allows the sales agent to take part in trade fairs and sports (...)

Philippe Vanni Distribution agreement: The French Civil Supreme Court approves of judges on the merits for having condemned the promoter of a distribution network for failure to fulfill its obligation to execute the contract in good faith and loyally during the notice of termination (Tourisme automobile)

14 October 2020 160

Following a decision by General Motors to cease marketing new vehicles in Western Europe for one of the group’s brands, the French importer of the brand in question notified its affiliated distributors of the termination of their distribution and authorised repairer contracts on 11 December (...)

Christophe Lemaire, Alexandre Marescaux Jurisdiction: The French Court of Jurisdictional Conflict rules that the Paris Court of Appeal has jurisdiction to rule on a decision of the French Competition Authority to publish a decision disclosing business secrets in spite of a classification decision of the General Rapporteur (Google)

5 October 2020 243

The period under review brings its new episode relating to the issue of the treatment of business secrecy before the Competition Authority (for a reminder of previous episodes, v. not. Christophe Lemaire, Adèle Azzi, Le Conseil d’État décline sa compétence pour traiter d’un recours contre une (...)

Christophe Lemaire, Alexandre Marescaux Admissibility : The first president of the Paris Court of Appeal admits that a rapporteur of the French Competition Authority may face disqualification for lack of impartiality, but declares the application inadmissible in the present case on the ground of late application (FILMM)

24 July 2020 261

On June 4, 2020, in a very noteworthy ruling, the Second Civil Chamber of the Court of Cassation had affirmed that the Polynesian Competition Authority ["the PCA"] should be qualified as a jurisdiction when it is called upon to pronounce a sanction. Consequently, any person brought before this (...)

Guillaume Dezobry Electricity: The French Energy Regulatory Commission emphasizes the negative effects of exceeding the cap on regulated access to historical nuclear electricity and recommends that this cap be raised or removed without delay

22 July 2020 234

In accordance with the provisions of Article R. 336-39 of the Energy Code, when the overall level of requests sent by alternative suppliers to the regulator under the system of regulated access to historical nuclear electricity (ARENH) exceeds the ceiling, the Energy Regulation Commission (CRE) (...)

Philippe Vanni Exclusive distribution: The Paris Court of Appeal holds that the continuation of a commercial relationship, after the non-renewal of an exclusive distribution contract, is not governed by the terms of the non-renewed contract, which include the distributor’s exclusive supply obligation (CMS Dental / Septodont)

24 June 2020 281

In the area of exclusive distribution, this quarter saw an interesting decision handed down by the Paris Court of Appeals, reminding us of the importance of carefully anticipating the end of the contract and the end of the resulting exclusivity commitment. Since 1 June 1995, one supplier had (...)

Christophe Lemaire, Alexandre Marescaux Settlement: The French Supreme Court rejects any infringement of the rights of defence in the context of hybrid transaction proceedings before the French Competition Authority (Caisse des dépôts et consignations)

24 June 2020 277

By a decision dated 26 February 2015, the Competition Authority had taken up ex officio matters relating to practices implemented on the land assistance market of the public land institution of the Western Rhône-Alpes region (hereinafter ’EPORA’). The Authority was alerted by an investigation (...)

Guillaume Dezobry Energy: The Paris Commercial Court adopts orders on the activation of the force majeure clause of the framework agreement (Total Direct Énergie...)

20 May 2020 224

The dispute between EDF and the alternative suppliers who wished to activate the force majeure clause provided for in the contract governing the terms and conditions for the transfer of volumes obtained under the ARENH (the "framework agreement") is continuing before the Paris Commercial Court. (...)

Guillaume Dezobry Energy: The General Court of the European Union annuls the decision of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators rejecting the request for exemption of a company which wants to develop an electrical interconnector connecting the electricity transmission systems in the United Kingdom and France (Aquind / ACER)

18 May 2020 194

While the development of cross-border interconnections is a key element in the completion of the internal energy market, the legal and regulatory framework applicable to this type of infrastructure remains complex and hampers their completion. The judgment of the Court of First Instance of the (...)

Philippe Vanni Commercial agency: The Versailles Court of Appeal rules on the link between failure to achieve objectives and failure to prospect and on the delimitation in space of a post-contractual non-competition clause (Egetra)

7 May 2020 182

The commercial agency contract is definitely at the heart of this quarter’s case law. The terms and stakes of the qualification (Cf. CJEU 4 June 2020 V. supra. note N.F.) should not overshadow the importance of the issues that otherwise arise in relation to its execution. A decision of the Court (...)

Guillaume Dezobry Energy: The Advocate General Hogan delivers its opinion and suggests to the Court of Justice of the European Union to dismiss the appeal (Austria / Commission)

7 May 2020 116

“La présente affaire peut être décrite comme la partie juridique d’un litige entre les États membres favorables à l’énergie nucléaire et ceux qui y sont opposés.” Cette première phrase des conclusions présentées le 7 mai 2020 par l’avocat général Hogan résume parfaitement la tension qui se cristallise autour (...)

Philippe Vanni Commercial agency: The Orleans Court of Appeal considers the clause instituting a trial period to be lawful even though the parties had already collaborated together and evaluates the amount of the termination indemnity by taking into account the duration of this previous collaboration (Villa / Fadin)

30 April 2020 120

It is now known that the commercial agency contract may include a clause under the terms of which the agent must serve a trial period and that he is entitled to payment of the termination indemnity provided for in Article L. 134-12 of the Commercial Code, including when the termination of the (...)

Guillaume Dezobry Electricity: The French Energy Regulatory Commission adopts measures for suppliers (Sanitary crisis effects on electricity and natural gas markets)

26 March 2020 94

Like many sectors of the economy, the electricity sector is particularly affected by the health crisis. The emergency measures taken by the Government to deal with the epidemic are leading to a significant decline in industrial and tertiary activities, resulting in significant reductions in (...)

Guillaume Dezobry Electricity: The Court of Justice of the European Union specifies the legal nature of interconnector and applicable rules to congestion rents (Baltic Cable / Energimarknadsinspektionen)

11 March 2020 225

A subsidiary of the Norwegian energy company Statkraft, the Swedish company Baltic Cable has operated since 1994 a cross-border interconnector linking the German and Swedish electricity transmission networks. The operation of this 600 MW DC submarine facility is the sole activity of Baltic (...)

Guillaume Dezobry Energy: The French Government consults on future nuclear regulation and proposes the creation of a service of general economic interest (New economic regulation of nuclear)

16 January 2020 172

Opened by the President of the Republic on 27 November 2018, during his statement on The Strategy and Method for Ecological Transition, the debate on the future regulation of nuclear power is entering a new phase with the consultation launched by the Government on 16 January. Stakeholders had (...)

Philippe Vanni Franchise: The French Supreme Court censures the trial judges for not having investigated whether the granting of illegal payment delays by the franchisor, within the franchise network, had not had the effect of unfairly advantaging its franchisees to the detriment of those of a competing network (Speed Rabbit pizza / Domino’s pizza France)

15 January 2020 226

The control of the "fairness of commercial practices" is first of all ensured, between professionals, by specific provisions of the Commercial Code (Chapter II, Title IV of Book IV C. com. resulting from Order No. 2019-359 of 24 April 2019).) which penalise practices restricting competition and (...)

Philippe Vanni Selective distribution: The Paris Court of Appeal refuses to sanction a refusal of approval on the grounds that it constitutes neither an agreement nor a breach of the general duty of good faith, which is assessed without distinction according to the type of network (Garage de Bretagne / Mercedez-Benz France)

27 November 2019 199

The articulation of case law solutions rendered on the basis of general liability law and competition law regarding the refusal of approval of network candidates meeting the selection criteria set by the promoter of a selective distribution network is still at the heart of this quarter’s case (...)

Philippe Vanni Franchise: The Paris Court of Appeal confirms the serious and non-wilful wrong of the franchised company and the personal liability of its director for having created, during the franchise contract, a competing company using the distinctive signs of the franchisor’s concept (Buffalo Grill / Val Trappeur)

13 November 2019 162

While it may be possible for a former franchisee to continue in business after the termination of the franchise agreement in defiance of a post-contractual non-competition clause, much rarer is the situation in which he creates a competing business, using the distinctive elements of the concept (...)

Guillaume Dezobry Energy: The French Parliament adopts the law on climate and energy

8 November 2019 226

Adopted on 8 November 2019 and published in the Official Gazette on 9 November, the Energy-Climate law is an important text for the implementation of the national energy policy. Comprising 69 articles, divided into eight chapters, Article 1 of the law introduces in a rather symbolic way the (...)

Philippe Vanni Selective distribution: The Paris Court of Appeal confirms the absence of acquired rights to the continuation of contractual relationships (Hyundai)

31 July 2019 171

The facts of this Decision are set in the classic context of a breach of a selective distribution contract by a headend, subject to a period of notice, the reasonableness of the duration of which was not disputed. In this case, a head of a motor vehicle distribution network had notified one of (...)

Philippe Vanni Commercial agency: The Besançon Court of Appeal rules that intermediary cannot be qualified as a commercial agent in the absence of a power of representation conferred by a mandate (France Épargne)

18 June 2019 150

In the present case, an intermediary had concluded a partnership agreement under which he had to seek buyers wishing to invest in residential property in return for remuneration payable after signing the authentic deeds of sale and receiving the funds. A clause in the contract provided for the (...)

Dominique Ferré Commercial agency: The Lyon Court of Appeal rules on the effects of the "transformation" from a fixed-term agency contract to a contract of indefinite duration (Sepia / Corico)

6 June 2019 193

In spite of a relatively classic jurisprudential current events in the field of commercial agency, a decision handed down by the Lyon Court of Appeal on June 6, 2019 is worth noting. It deals with the question of how to calculate the amount of compensation in lieu of notice (article L. 134-11 (...)

Dominique Ferré Franchise: The Paris Court of Appeal refers to the possibility of contractually adjusting the effects of an unlawful clause under competition law (Process Patrimoine et Finances / CrediPro France)

22 May 2019 181

It is worth noting one decision, part of the solution of which is worthy of note, as it once again raises the question of the relationship between the law of anti-competitive practices and ordinary contract law. In this case a franchisee had challenged the validity of his franchise agreement (...)

Dominique Ferré Franchise: The Paris Court of Appeal considers that the stipulation of a penalty clause providing, in the event of termination of the contract as a result of the wrongful conduct of the franchisee, the payment by the latter of the amount of the annual fee multiplied by the number of years to run until the end of the contract does not create a significant imbalance (Pierre Dulac / Distribution Casino France)

15 May 2019 266

Consideration of the balance between the rights and obligations of the parties to a distribution contract is again, this quarter, at the heart of the news. After the introduction, in ordinary contract law, of the sanction of significant imbalance in contracts of adhesion (art. 1171 C. civ.), (...)

Dominique Ferré Commercial agency: The Dijon Court of Appeal rules that the commercial agent who has committed himself to principals with competing activities commits unfair competition acts (M. C / Benoit Chapelle)

21 February 2019 174

What goes without saying often goes better when you say it. The decision handed down by the Court of Appeal of Dijon recalls that while a commercial agent may represent several principals, he may not accept the representation of an undertaking competing with that of one of his principals (...)

Dominique Ferré Franchise: The Limoges Court of Appeal considers that the intuitu personae clause stipulated to the sole benefit of the franchisor in the insolvency proceedings does not preclude the transfer of the franchise agreement to a new party (Pata Manosque / La Pataterie développement)

28 January 2019 155

The delicate question of the transfer of a franchise agreement to a transferee in the context of collective proceedings concerning a franchisor is the subject of a decision handed down by the Limoges Court of Appeal on 28 January 2019. Such a question is acutely relevant in the context of (...)

Dominique Ferré Commercial agency: The French Supreme Court confirms that the principal must compensate the damage suffered by its commercial agent as a result of the termination of his contract, including during the trial period (Conseils et mise en relations / Demeures terre et tradition)

23 January 2019 165

Following the recent decision of the Court of Justice of the European Union (CJEU, 19 April 2018, case C-645/16), the Court of Cassation ruled in a decision handed down on 23 January 2019 on the commercial agent’s right to compensation - on the basis of article L. 134-12 C. com. - in the event (...)

Dominique Ferré Franchise: The Paris Court of Appeal does not accept the franchisee’s state of dependence in the presence of minimum supply and non-competition clauses (Mac’alimenta / Distribution Casino France)

23 January 2019 320

On 23 January 2019, the Paris Court of Appeal heard a now classic dispute between a food retail franchisor and one of its franchisees, alleging a state of economic dependence on the franchisor. We had already recently identified a solution in this area (CA Paris, 3 Oct. 2018, Concurrences, n° (...)

Dominique Ferré Abuse of economic dependence: The Paris Court of Appeal confirms the validity of a franchise agreement in the absence of abuse of economic dependence towards the franchisee but annuls the post-contractual non-competition clause (Casino / Carrefour)

3 October 2018 436

In a decision handed down on October 3, 2018, the Paris Court of Appeal heard a dispute between a franchisor and its franchisee, an operator of a convenience store, who had terminated its franchise agreement to join a competing food retailer. Nothing could be more banal in reality. However, (...)

Dominique Ferré Agency agreement: The Douai Court of Appeal stresses the importance of the qualification of the contract for the determination of the law applicable to the contract (X / Y)

13 September 2018 150

A French company had concluded a so-called "representation contract" with a company incorporated under Polish law whose business was the manufacture of furniture. Under the terms of the contract, it was agreed that the French company would receive a 6% commission on all orders taken or (...)

Dominique Ferré Unlawful practice: The Paris Court of Appeal condemns a franchisor and its franchisee to pay damages to a competitor for illegally practicing medical acts (Centre Laser Médical Lyon / Mme. C., All Sens, Depil Tech)

7 September 2018 165

A franchisee had entered into a franchise agreement with a company that had developed a concept of pulsed light hair removal treatments. He was being sued by a competitor of the franchisor for acts of unfair competition due to the illegal practice of medicine. The Paris Court of Appeal, (...)

Dominique Ferré Agency agreement: The Paris Court of Appeal recalls the stakes and consequences of the breach of the commercial agency contract (Cafpi)

18 July 2018 281

In a decision handed down on July 18, 2018, the Paris Court of Appeal recalls the stakes and consequences of the breach of the commercial agency contract. Its solution deserves to be reported because it provides an overview of the fundamental issues in this area. After recalling the (...)

Dominique Ferré Jurisdiction clause: The Riom Court of Appeal recalls that a commercial agent, in its capacity of civil trustee, cannot be subject to a jurisdiction clause derogating to territorial rules of jurisdiction (M. G. / Moet Hennessy Diaego)

25 April 2018 207

Following the termination of relations with his principal, a commercial agent had summoned the latter, to whom he claimed payment of compensation for the loss suffered as a result of the termination, on the basis of Article L. 134-12 of the Civil Code. In defence, the principal had opposed the (...)

Dominique Ferré Right to indemnity: The Court of justice of the European Union holds that the termination of the commercial agency contract during the trial period does not deprive the agent from its right to compensation (Demeures terre et tradition)

19 April 2018 181

The commercial agency system, laid down in Articles L. 134-1 et seq. of the EC Treaty, transposes the provisions of Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. Article 17(3) of the Directive, (...)

Dominique Ferré Collective proceedings against the principal: The French Supreme Court rules on conditions of admission of the commercial agent’s debt (commercial agent’s commission) as a liability of the insolvent principal against which a collective proceedings has been opened (B / Cid)

7 March 2018 131

This quarter again, a decision published in the bulletin of the Court of Cassation concerning the admission of claims for commissions by commercial agents to the collective procedure. In substance, the Court of Cassation first of all states that, pursuant to article L. 134-6 of the Commercial (...)

Dominique Ferré Jurisdiction: The Paris Court of Appeal approves lower court that declined its jurisdiction since services were actually supplied by the commercial agent in Italy, even if he simultaneously operated his activity in Italy, in France and in Switzerland (North & South / B. Design AB)

6 March 2018 147

A company incorporated under Swedish law wished to develop its sales in Italy and had offered a company domiciled in France to be its commercial agent, without the relationship being formalised in a written contract. Following disputes between the parties, the principal had terminated the (...)

Dominique Ferré Independency: The French Supreme Court and the courts of Appeal of Toulouse and Bordeaux remind the conditions governing the application of the status of commercial agent (Assistance sécurité conseil ; Ceram Concept France / Medacta France ; Domaines Lapalu / Wine Partners ; Editions Atlas)

14 February 2018 163

The commercial agent benefits from a protective regime enabling him to claim, depending on the circumstances of the termination of his contract, compensation for the loss he suffers on that occasion (article L. 134-12 C. com.). The benefit of this protection is often claimed by professionals (...)

Dominique Ferré Serious misconduct: The French Supreme Court recalls that a commercial agent whose serious misconduct is discovered after the termination of its contract may be deprived of indemnity (Cémoi / Robert)

14 February 2018 154

In this case, a court of appeal had ordered a principal who had terminated the contract between him and his commercial agent to pay compensation in lieu of notice (article L. 134-11 of the Code of Civil Procedure) and termination of contract (article L. 134-12 of the Code of Civil Procedure). (...)

Dominique Ferré Condition of application: The French Supreme Court reminds the conditions to apply the status of commercial agent and rules on the qualification of "advertising broking" contracts and UCITS product contracts (Undertakings for Collective Investment in Transferable Securities)

13 September 2017 214

In two recent cases, the Court of Cassation has had occasion to reiterate the conditions of application of the status of commercial agent. In a first case, the Court had before it an application for reclassification of a so-called "advertising brokerage" contract as a commercial agency (...)

Dominique Ferré Payment date: The French Supreme Court overrules a judgment of the Nîmes Court of Appeal for not having verified whether a principal and its agent had intended to depart from provisions of Article L. 134-9 of the French Commercial Code pertaining to the payment date of commissions, according to customs established by the parties in favor of the agent (AGL / DBT)

2 September 2017 118

Decisions on the terms and conditions of payment of the commercial agent’s commissions by the principal, and more specifically on the date of payment of these commissions, are rather rare and are worth noting in this respect. It should be recalled that Article L. 134-9 paragraph 2 C. com. (...)

Dominique Ferré Legal obligation of information: The French Supreme Court considers that a commercial agent that does not respect both its obligation of information as stipulated in the contract and its commitment to provide complementary rebates despite warnings from its principal commits a serious misconduct (Brugg tubes)

5 July 2017 142

In the event of termination of his contract, the commercial agent shall benefit from a protective regime enabling him to claim, depending on the circumstances, several allowances. The indemnity provided for in Article L. 134-12 C. com. is in principle payable by the principal at the origin of (...)

Dominique Ferré Non-renewal: The French Supreme Court considers that the le rejection of the contract renewal proposed by the mandate does not exclude the commercial agent’s right to compensation for termination of the contract (La Diffusion Sofradif / Elsevier Masson)

21 June 2017 241

The termination of relations between a commercial agent and his principal entitles the agent to compensation from his principal, the purpose of which is to make good the prejudice which the termination of relations causes him for the future (art. L. 134-12 C. com.). However, such a right to (...)

Dominique Ferré Abusive resistance of the principal: The Pau Court of Appeal sanctions a principal’s “wrongful obstruction“ which, without disputing the commercial agent’s right to compensation for termination of contract, refused it due to alleged financial difficulties which have proved to be unfounded (GAEC ANDANA BERRI / M. L.)

22 May 2017 173

A commercial agent sought payment of the termination indemnity after his principal had terminated the agency agreement between them. The latter had never invoked any serious misconduct on the part of the agent but had opposed the signing of a memorandum of understanding on financial grounds, (...)

Dominique Ferré Extinction of the right to commission: The Court of Justice of the European Union specifies conditions to apply Article 11 of the directive 86/653/CEE on self-employed commercial agents regarding the extinction of its right to commission (ERGO Poist’ovna a.s. c/ Alzbeta Barlikova)

17 May 2017 262

Dominique Ferré Non-compete clause: The French Supreme Court refuses the application of non-compete clauses inserted in commercial agency contracts since the parties did not respect rules established by the French Commercial Code and the caselaw. (La Vie au bord de la mer / Le Comptoir Saint Louis e.a. et Cafpi)

11 May 2017 556

In a first case, a non-competition clause in a commercial agency contract prohibited the manager of the commercial agency company from accepting the representation of a competing undertaking "in the cities to which he travelled for assignments during the course of the (...) contract". After the (...)

Dominique Ferré Compensation for termination of contract: The French Supreme Court specifies how the commercial agent can notify to the principal its willingness to claim its right to compensation for termination of contract (Terres réfractaires du Boulonnais et Cafpi)

1 March 2017 158

On pain of losing it, the commercial agent must notify his principal of his wish to assert his right to compensation for termination of contract within one year of the termination of the contract (Article L. 134-12 C. com.). In a first case, the Court of Cassation points out that the (...)

Dominique Ferré Commercial agency : The European Court of Justice considers that a commercial agent who carries out its activities outside of the European Union does not present a sufficiently close link with the European Union for the purposes of the application of the provisions of Directive 86/653, regardless of the fact that the principal is established in a Member State (Agro Foreign Trade & Agency / Petersime)

16 February 2017 407

The commercial agency system, established in Articles L. 134-1 et seq. of the EC Treaty, transposes the provisions of Directive 86/653 of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. It might therefore be expected that, at (...)

Dominique Ferré Commercial agency : The Rennes Court of Appeal holds that providing a prior notice of termination of the contract does not necessarily exclude gross misconduct (M. Ingenierie ; Alliatech)

17 January 2017 124

Both the conditions and the effects of the termination of the commercial agency contract are strictly regulated by the law (which explains in particular why the commercial agency contract escapes the litigation of the abrupt termination of established commercial relations referred to in Article (...)

Dominique Ferré Trial period : The French Supreme Court refers to the European Court of Justice regarding the grant of financial compensation in case of contract termination during the trial period (DMR / DTT)

6 December 2016 113

Article L. 134-12 C. com. provides that the commercial agent is entitled to a compensatory indemnity to compensate for the loss suffered in the event of termination of his relations with the principal. This right to indemnity has its origin in Directive 86/653/EEC of 18 December 1986 on the (...)

Dominique Ferré Commercial agency : The French Supreme Court restates the duty for the judge to specify the content of the foreign law on which its ruling is based (Déesse)

19 October 2016 197

At the beginning of last year, the Court of Cassation had taken a position on the absence of the character of a mandatory law in the international order of the law of 25 June 1991 relating to relations between commercial agents and their principals (cf. Cass. com., 5 January 2016, M. S. c/ (...)

Dominique Ferré Commercial agency : The French Supreme Court reminds conditions for recharacterization of a commercial agency contract in a sales representative contract (Accord immobilier)

26 September 2016 219

The status of commercial agent and of sales representative are in many respects similar; apart from the fact that they both benefit representatives carrying on a commercial activity on behalf of a third party - agent for the commercial agent and employer for the sales representative - the (...)

Dominique Ferré Commercial agency : The French Supreme Court points out that a breach of the duty of loyalty necessarily harms the purpose of the mutual-interest mandate (GF / PMO ; Haumesser / Husson et Fischer)

20 September 2016 187

Serious misconduct on the part of the commercial agent shall deprive him of his right to receive the termination indemnity provided for in Article L. 134-12 of the French Commercial Code. In a consideration that is rather favourable to the commercial agent, case law strictly defines the serious (...)

Dominique Ferré Commercial agency : The French Supreme Court reminds that the commercial agent’s request for judicial termination of its contract does not give right to contractual compensation for termination from the principal (Wattohm)

6 September 2016 121

The right of the commercial agent to receive compensation at the end of the contract ceases when he initiates the termination of the agency contract (Art. L. 134-13, 2° C. com.). In the present case, claiming various breaches by their principal, commercial agents had summoned him to terminate (...)

Alexandre Lacresse, Marie Koehler de Montblanc, Rafaele Raymond Third party’s rights before the French Competition Authority

September 2016 630

By definition, to be a third party is "not to be", or more precisely, to not be a party. However, in proceedings before the French Competition Authority, a third party is not an "invisible man" and has his own special role or part to play. The aim of this article is to review the rights of (...)

Dominique Ferré Mandatory rules: The Bordeaux Court of Appeals confirms that the 1991 French Act balancing commercial relationships between agents and their principals is a national mandatory rule but not a mandatory rule within the international order (P. / F.-KG)

27 July 2016 173

Also of note this quarter is a decision of the Lyon Court of Appeal, which reminds us that the public policy nature of the law of 25 June 1991 is limited in its effects in an international context. Indeed, in the context of a dispute relating to a commercial agency contract subject to foreign (...)

Dominique Ferré Status of commercial agency: The French Supreme Court reminds the conditions to apply the status of commercial agent and refuses to grant the agent’s claim for indemnities that is, in this case, ill-founded (Europvin / Bodegas)

21 June 2016 215

The Court of Cassation will return again this quarter to the conditions of application of the specific protective regime applicable to commercial agents. In the present case, following the termination of its commercial relations, a company had summoned its former partners to obtain the (...)

Dominique Ferré Commercial agency: The French Supreme Court holds that the principal who does not allow his agent to exercise his activity and does not respond to a formal notice from his agent to continue the contractual relationship, is responsible for the termination of the contract (Celinho / DGPP)

21 June 2016 137

While the specific protective regime applicable to commercial agents provides in principle for the right to a so-called "termination indemnity" in the event of termination of their relations with their principal (Article L. 134-12 C. com.), there are nevertheless circumstances in which the (...)

Dominique Ferré Pre-contractual obligation of information: The French Supreme Court rules on a request for nullity of a franchising contract for wrongful information and error based on breach of pre-contractual obligation of information and specifies effects (Casapizza)

21 June 2016 141

In a first case (Appeal No. 15-10029), the Court of Cassation agreed with the trial judges for having rejected the franchisee’s request for the nullity of the franchise agreement on the grounds of fraud and error invoked in the context of the transmission of pre-contractual information. It (...)

Dominique Ferré Exclusivity or quasi-exclusivity: The Paris Court of Appeals specifies the scope of the pre-contractual obligation of information bearing on the manufacturer (B&O)

8 June 2016 296

Litigation at the initiative of the defeated distributor hoping to challenge the validity of the distribution contract is not weakening... In a recent case, a distributor placed in receivership sought the annulment of its selective distribution contract. He invoked, on the one hand, error as to (...)

Dominique Ferré Commercial agency: The Lyon Court of Appeal recalls that the principal engages its contractual liability for an open ended contract termination (BIP / B. MC C. et Victorinox Travel Gear)

7 April 2016 119

In the event of termination of a commercial agency contract, Article L. 134-11 C. com. provides for the payment of compensation in lieu of notice as a penalty for failure by one of the parties to comply with a notice period set at one month for the first year of performance of the contract, two (...)

Dominique Ferré Commercial agency: The Courts of Appeal of Toulouse, Orleans and Colmar clarify the concept of serious misconduct of an exclusive agent for its right to compensation (Damy Agence commerciale / Roldan et Nateco e.a.)

16 March 2016 160

For the record, the specific protective regime applicable to commercial agents laid down in Articles L. 134-1 et seq. of the Commercial Code provides for the payment of compensation in lieu of notice (Article L. 134-11 of the Commercial Code) and for termination of contract (Article L. 134-12 (...)

Dominique Ferré Commercial agency: The Courts of Appeal of Colmar, Nancy, Lyon, Toulouse and Paris clarify methods for calculating the indemnity for termination of contract (Mme Farge / Cubo Design e.a.)

11 March 2016 226

Article L. 134-12 C. com., which provides for the payment to a staff member, in the event of termination of a commercial agency contract, of an indemnity known as a termination indemnity, provides that the purpose of the indemnity is to compensate for the damage suffered by the staff member. (...)

Francois Chénedé, Nicolas Ferrier, Sarah Bros, Simon Hotte From the contractual abuse sanction to the sanction of restrictive practices of competition (Towards a new competition law?, Lyon, May 28th, 2015)

February 2016 737

The conference that took place in Lyon on May 28th 2015 dealt with the future of competition law. The speakers of this panel got back to the strong link between unfair competition behaviors against professionals and those against consumers. Particularly, Sarah Bros and François Chénedé got back (...)

Alain Gauvin, Christophe Grison, Frédéric Buy, Jean-Christophe Roda, Jean-Louis Fourgoux, Julie Zoughi, Leyla Djavadi French distribution law following adoption of Macron law

February 2016 1237

With this new Trends issue related to the last evolutions of the French distribution law, the review Concurrences carries on its work on the most important competition issues raised by the Macron law adopted on August 6th, 2015. From small adjustments in transparency law to genuine developments (...)

Dominique Ferré Commercial agency: The French Supreme Court considers that the Law of June, 25th 1991, codified into articles L. 134-1 s. of the Commercial Code, is not a public policy provision (M. S. / ArcelorMittal Revigny)

5 January 2016 256

A company governed by French law had concluded a commercial agency contract with an agent (whose nationality is at no time - strangely enough - specified by the Court of Cassation) for the exclusive representation of its products on German territory. As the principal company had terminated the (...)

Dominique Ferré Commercial agency: The Paris Court of Appeal decides that the refusal of commercial agency contract renewal by the agent proposed faithfully by the principal does not give rise to damages for termination of contract (La Diffusion Sofradif / Elsevier Masson)

17 December 2015 140

For the distribution of its works, a publishing company had successively concluded two commercial agency contracts with the same agent. Shortly before the expiry of these two contracts, it had initiated negotiations with its agent with a view to concluding a new contract to replace the first (...)

Dominique Ferré Commercial agency: The French High court approves the court of appeal for considering that is constitutive of a gross misconduct, the fact for a sales representative to deliberately hide his financial situation and then his placement under administration by a court order (Allegro Manon Troppo Box / Fashion Box France)

24 November 2015 165

Serious misconduct on the part of the agent, which deprives him of a termination indemnity, is defined by case law as that "which undermines the common purpose of the mandate of common interest and makes it impossible to maintain the contractual link" (Cass. com., 15 Oct. 2002). While such (...)

Dominique Ferré Commercial agency: The Court of Appeal of Lyon recognizes the principal responsible for an agency contract termination for lack of assistance of its agent for the product storage (M. X. / Pyragric Industrie)

8 October 2015 136

However, a commercial agent, who had terminated his contract, claimed payment of the statutory indemnity for termination of contract (article L. 134-12 C. com.), on the ground that the principal had prevented him from carrying out his mission by failing to provide an answer to his "problems of (...)

Dominique Ferré Sales representative: The French Supreme Court refuses to apply the sales representative statute due to the evolutive characteristic of the canvassing sector (M. X. / Maugin)

6 October 2015 156

An employee had brought an action before the industrial tribunal in order to have his "sales representative" contract reclassified as a sales representative contract. The Court of Cassation approved the judges of the merits who had refused the status of sales representative because of "the (...)

Dominique Ferré Independent distributors: The Courts of Appeal of Rouan and Dijon apply labor law to independent distributors when notifying commercial constraints imposed to them (Mme X / Yves Rocher ; E. Capria et F. Capria / GAD ; C. Barbecot / DIA France)

17 September 2015 164

This quarter, five decisions again illustrate the ever-increasing litigation concerning the application of employment law to distributors. The first concerned a tenant manager (cf. CA Rouen 29 Sept. 2015, RG n°15/00040). After the network promoter terminated his contract, a lessee-manager of a (...)

Dominique Ferré Commercial agency : The Paris Court of Appeals recalls the strict assessment of the relation of subordination that is necessary when requalifying a contract into work contract (Selling Media Services)

26 May 2015 132

A commercial agent, who sought the reclassification of his agency contract as an employment contract, claimed that he carried out his activity on a ’continuous and substantial’ basis at the premises of the principal company, which was his sole client, and that he had an e-mail address in the (...)

Blanche de La Mure, Dominique Ferré Sales representative : The French Judiciary Supreme Court reminds that the costs incurred by a sales representative in the framework of his activity are payable by the employer (Rhône chimie services)

13 May 2015 199

In two decisions concerning sales representatives, the Court of Cassation reaffirms the principle that professional expenses incurred by the employee must be borne by the employer: In the first decision, the employer had deducted from the salesperson’s commissions amounts corresponding to the (...)

Blanche de La Mure, Dominique Ferré Sales representative : The French Judiciary Supreme Court states that in the real estate sector, the minimal compensation of a sales representative requires that the latter operate primarily for the employer (Bram immobilier)

12 May 2015 229

In three decisions concerning the real estate sector, multi-card sales representatives requested the requalification of their part-time employment contract into a full-time employment contract, in order to benefit from the remuneration at least equal to the minimum gross salary (corresponding (...)

Blanche de La Mure, Dominique Ferré Trade intermediary : The French Judiciary Supreme Court holds that some conditions of a distributor’s activity may reveal the existence of a legal subordination and thus an employment contract (M. X./Languedoc géothermie)

6 May 2015 231

The reclassification of distribution contracts as employment contracts is a major source of litigation, particularly because of the permeability of the boundaries between distribution law and employment law. Various reasons can be invoked: in general: the difficulties encountered by (...)

Blanche de La Mure, Dominique Ferré Commercial agency : The Douai Court of Appeals imputes the breach of a commercial agency contract to the principal who substantially modified the terms (Saretco/M. O.)

16 April 2015 227

The Douai Court of Appeal ruled that the principal takes the initiative to terminate the contract by imposing on the commercial agent substantial modifications of the contract with a reduction of his geographical area, an increase in his objectives "under penalty of termination of the contract" (...)

Blanche de La Mure, Dominique Ferré Commercial agency : The Colmar Court of Appeals refuses to characterize as commercial agent an employee who has no authority to enter into contracts in the name and on behalf of the superior (Novacid/PPC)

1 April 2015 210

The Colmar Court of Appeal, considering not only the "contractual terms" but also the conditions under which "the activity[ was] actually carried out", denied the status of commercial agent to a "provider of services in commercial matters" who merely transmitted orders "without ever being able (...)

Blanche de La Mure, Dominique Ferré Commercial agency : The French Judiciary Supreme Court recalls that the principal has to prove the extinction of the agent’s right to commissions (Libentia/Free)

31 March 2015 256

The commercial agency contract is not only a source of litigation at the time of its termination (on this very extensive litigation, see our obs. in previous columns), but its execution is more rarely denounced. The case judged by the Court of Cassation in a decision - published in the Bulletin (...)

Blanche de La Mure, Dominique Ferré Commercial agency : The Paris Court of Appeals qualifies as serious misconduct the sale of competing products without the principal’s former agreement (MPF Diffusion/BLD France)

26 February 2015 205

A principal, having discovered that his commercial agent was selling, without his consent, trademarks competing with his own, had terminated the contract for serious misconduct, claiming a violation of Art. L. 134-3 of the Code of Civil Procedure, which requires the agent to obtain the prior (...)

Blanche de La Mure, Dominique Ferré Sales representative : The French Judiciary Supreme Court reminds that a contract cannot stipulate a trial period if the employee’s professional capacities were already assessed (Le Pilori)

21 January 2015 225

The Court of Cassation ruled that "a probationary period could not be validly stipulated" in the sales representative’s contract concluded as an extension of a commercial agency contract when the employee’s duties had remained unchanged and he had performed them for several years so that the (...)

Blanche de La Mure, Dominique Ferré Commercial agents : The French Supreme Court sets aside the Paris Court of Appeals for having qualified an intermediary authorized to grant "gifts" to clients representing a financial advantage as commercial agent (Covidien)

20 January 2015 272

Cass. com, 20 Jan. 2015, Covidien, No. 13-24.231 Could it not be considered that the person who - prior to any discussion of the terms of the contract - discusses with the prospect the very principle of the conclusion of the contract and has "levers" such as the offer of benefits in kind at (...)

Blanche de La Mure, Dominique Ferré Commercial agency : The French Judiciary Supreme Court approves the Agen Court of Appeals’s decision considering that a company that benefited from a partial transfer of assets operated by a former commercial agency cannot act against the principal for compensation of a damage incurred by the agency due to the breach (Roland Château/Voa Verrerie d’Albi)

20 January 2015 196

A principal, having breached a commercial agency contract, had been sued for damages by the agent company before the latter transferred its trading activity to another company as part of a partial asset contribution. The company receiving the contribution had then wanted to pursue the action (...)

Blanche de La Mure, Dominique Ferré Sales representative : The French Supreme Court recalls that the sales representative status can be agreed upon contractually although the textual conditions are not fulfilled and that it is up to trial courts to appreciate whether the dismissal cause is real and serious (Mme X., EDI 40)

14 January 2015 211

Cass. soc. 14 Jan. 2015, Ms X. c/ EDI 40, No. 13-14.752 The Court of Cassation criticised the Pau Court of Appeal for having excluded the qualification of VRP on the basis of a clause in the employment contract authorising the employer to change the geographical sector, "whereas [the] (...)

Blanche de La Mure, Dominique Ferré Sales representative : The French Supreme Court repeats that work-related costs incurred by a sales representative must be covered by the employer (Mme X., NCH France)

14 January 2015 224

Cass. soc., 14 Jan. 2015, Mrs X. v. NCH France, No. 13-16.229 The Paris Court of Appeal had dismissed a sales representative’s request for termination of the contract against the employer, pointing out that it was up to "the sales representative to justify the expenses incurred in the course of (...)

Blanche de La Mure, Dominique Ferré Commercial agents : The Amiens Court of Appeals considers that the principal is to inform the agent of all commands taken from clients for whom he was previously commissioned (Alain F., Thierry B.)

18 December 2014 208

CA Amiens, 18 Dec. 2014, Alain F. c/ Thierry B., RG n° 11/00490 Recalling that "the relationship between the commercial agent and the principal shall, in accordance with the provisions of Article L. 134-4 of the Commercial Code, governed by a duty of loyalty and a reciprocal obligation to (...)

Laurent François-Martin Guide des pratiques commerciales et de la concurrence, Laurent FRANÇOIS-MARTIN

January 2015 129

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Blanche de La Mure, Dominique Ferré Commercial agents : The French Supreme Court approves of the Colmar Court of Appeals’ refusing to grant to the commercial agent, in addition of the termination compensation, an extra compensation due to the principal’s denial of agreement of the successor (HCF)

9 December 2014 263

Cass. com. Dec. 9, 2014, HCF, No. 13-23.309 The termination indemnity necessarily takes into account the loss of the right of presentation of a successor as a result of the non-transmission of the contract. The commercial agent only loses his right to compensation for termination of contract (...)

Blanche de La Mure, Dominique Ferré Commercial agents : The French Supreme Court considers as serious misconduct the lack of implication of the agent and condamns the latter to compensate the damage to image and notoriety caused to the principal (CCCP, SRC)

9 December 2014 231

Cass. com, Dec. 9, 2014, CCCP c/ SRC, No. 13-28.170 and 13-28.171 The Court of Cassation agrees with the Paris Court of Appeal that the fact of having qualified as serious misconduct making it impossible to maintain contractual relations and excluding any indemnity, the fact of : manifest "a (...)

Blanche de La Mure, Dominique Ferré Commercial agents : The Caen Court of Appeals considers as serious misconduct the commercial agent’s failure to inform the principal that the company’s manager works simultaneously for a competitor as a sales representative (Jean-Pierre V., Patrick B.)

4 December 2014 211

CA Caen, Dec. 4, 2014, Jean-Pierre V. c/ Patrick B., RG n° 13/02063 The Caen Court of Appeal ruled that the manager of a commercial agent company, who represents a competitor of the principal in his capacity as a sales representative without having informed the latter, commits "a serious breach (...)

Blanche de La Mure, Dominique Ferré Requalification: The French Supeme Court approves the Agen Court of Appeals for having requalified an employee in sales representative, due to client meetings scheduled by the employer (M. X. / K par K)

3 December 2014 209

The Court of Cassation approved the Court of Appeal of Agen for refusing to reclassify a sales representative contract as a contract of employment, since "the employee performed the function of representative on behalf of his employer in a specific sector of activity and the essential part of (...)

Blanche de La Mure, Dominique Ferré Commercial agents : The French Supreme Court defines the notion of common interest mandate and the conditions of its breach (M. X., La Montagne ; ACE, Duravit)

25 November 2014 273

Cass. com, Nov. 25, 2014, M. X. v. La Montagne, No. 13-25.266->doc27378]; Cass. com, Dec. 9, 2014, ACE v. Duravit, No. 13-22.476 In a first case, a press trustee sued by a broadcaster for damages for wrongful termination of a mandate of common interest challenged, first, the classification of (...)

Blanche de La Mure, Dominique Ferré Imputability of the termination : The French Supreme Court blames the Rennes Court of Appeals for having imputed the termination of the commercial agency contract to the principal, although no substantial change in the conditions of execution of the contract was established (Geoxia Ouest, SMC)

25 November 2014 203

The Court of Cassation censured the Rennes Court of Appeal for having imputed the breach of a commercial agency contract to the principal on the grounds that he had substantially modified the conditions of performance of the contract by preventing the agent from maintaining contact with (...)

Blanche de La Mure, Dominique Ferré Commercial agent: The Colmar Court of Appeals refuses to qualify as commercial agent an intermediaite who wasn’t entitled with the power to negotiate and conclude contracts (M. X / Hock)

7 November 2014 219

An intermediary, whose task was to present and promote a company’s products, without being able to conclude a contract on behalf of the company or to change the terms and conditions of sale set by the company, claimed the status of commercial agent. In order to assert that it had bargaining (...)

Blanche de La Mure, Dominique Ferré Customers database : The Angers Court of Appeals refuses to qualify as sales representative a distributor who only uses the customers database created by his employer and directly relays the orders of the clients (Royal Canin France)

23 October 2014 268

The qualification of sales representative is frequently sought by agent distributors, in particular commercial agents, seeking, upon termination of the relationship, the benefit of an even more protective status (see for example CA Bourges, 14 March 2014, RG n° 13/01121, M. S. c/ Immobilier des (...)

Blanche de La Mure, Dominique Ferré Requalification : The French Supreme Court approves of the Poitiers and Bourges Courts of Appeals for having requalified sales representatives’ contracts in employment contracts (SICO)

21 October 2014 241

Cass. soc., 21 October 2014, Mr X. v. Sico, Appeal No. 13-11.929 S.C.C., 21 October 2014, Ms Y. v. Sico, Appeal No. 13-11.150 The Court of Cassation approved the Courts of Appeal of Poitiers and Bourges for having requalified as employment contracts "sales representative contracts under the (...)

Blanche de La Mure, Dominique Ferré Compensation of the agent: The French Supreme Court reminds that the article L. 134-6 of the French Code of Commerce, which is related to the compensation of the agent, is not part of public policy (Arcade)

21 October 2014 218

A principal refused to pay commissions to its commercial agent responsible for finding building sites and supervising their execution on the basis of the clause in the contract by which, in the event of termination of the contract during the agent’s intervention, the latter could ’in no case (...)

Blanche de La Mure, Dominique Ferré Severance pay : The French Supreme Court reminds that the provision related to the agent’s severance pay makes part of public policy provisions, and that the notification of the agent’s intent to assert his right to severance pay does not need to be formal (Shipping Agency Service / Seatrade)

21 October 2014 187

A principal had terminated his commercial agency contract with a company and entrusted the assignment to a former employee of the company who had set up his own structure. The company had then assigned him in payment of severance pay. In order to avoid this payment, the principal invoked the (...)

Blanche de La Mure, Dominique Ferré Sales representative : The Dijon Court of Appeals declares null and void a post-contractual non-competition clause with paltry financial counterpart and orders compensation for the damage suffered (Laboratoires ACI, Lionel G.)

16 October 2014 249

CA Dijon, Oct. 16, 2014, Laboratoires ACI c/ Lionel G., RG n° 13/00607 One sales representative contract stipulated a post-contractual non-competition clause, the financial compensation for which was set at ’one-sixth of the monthly remuneration’, and the breach was punished for each infringement (...)

Blanche de La Mure, Dominique Ferré Imputability of the termination : The Paris Court of Appeals considers that the termination of the contract cannot be imputed to the agent if the latter’s decision to end the contract is due to a substanial change in the terms of compensation (M. S. / Cafpi)

16 October 2014 209

The Paris Court of Appeal awarded an agent a termination indemnity after considering that the termination was not attributable to him, its decision to terminate the contract being "justified by the substantial changes in the terms of remuneration imposed by his principal" (abolition of certain (...)

Blanche de La Mure, Dominique Ferré Serious misconduct : The French Supreme Court rules that the loss of severance pay due to the agent’s serious misconduct does not exclude his condemnation for other damage caused to the principal (Mme Y., M. X.)

7 October 2014 193

The Court of Cassation points out that "regardless of the loss of his right to a termination indemnity when he has committed a serious fault, the commercial agent is liable for any fault he may have committed towards his principal".

Alain Ronzano, Alexandre Glatz, Anne-Sophie Bodin, Camille Paulhac, Marie Koehler de Montblanc, Michael Cousin, Odile Mathilde Boudou Comments on the Commission’s consultation related to the White Paper on the modernization of the EU merger law

December 2014 904

On 9 July 2014, the European Commission published its White Paper - Towards More Effective EU Merger control and invited third parties to submit comments. This White Paper mainly focuses on the control of non-controling minority shareholdgins which the Commission intends to control through a (...)

Blanche de La Mure, Dominique Ferré Non-competition clause : The French Supreme Court confirms the invalidity of a disproportional post-contractual non-competition clause (Blue Line & Bro)

23 September 2014 435

A commercial agent who had been hired by a company competing with that of his former principal was accused by the latter of breaching the post-contractual non-competition undertaking prohibiting him from "carrying on the same professional activity for two years from the date of termination". (...)

Blanche de La Mure, Dominique Ferré Franchise : The Paris Court of Appeals sentences for unfair competition a franchisee who stated in an online-directory that he delivered to customers located in the exclusive territory of an other franchisee (Epgi, Liberesto)

10 September 2014 246

The growth of online sales is not only accompanied by an increase in disputes between suppliers and distributors, in the field of competition law (anti-competitive practices and unfair competition) and contract law (for a recent case illustrating this second hypothesis, see in the field of (...)

Blanche de La Mure, Dominique Ferré Online sale : The Bordeaux Court of Appeals states that the principal who sales his products online does not prevent the exclusive commercial agent to fulfill his mandate (Editions Atlas)

9 July 2014 207

The growth of online sales is accompanied by a rise in disputes between suppliers and distributors. These are frequently dealt with from the point of view of competition law: that it protects the market (law on anti-competitive practices): competition authorities consider that limitations on (...)

Blanche de La Mure, Dominique Ferré Competing products : The French Supreme Court approves of the Besançon Court of Appeals having excluded the serious misconduct of a salesman who sold competitive products without being previously informed by his employer about his representation obligations (Kara)

9 July 2014 114

A company had dismissed a sales representative for serious misconduct on the grounds that he had unknowingly accepted the representation of competing products. The Court of Cassation approved the Besançon Court of Appeal for having ruled out any serious fault making it impossible for the (...)

Blanche de La Mure, Dominique Ferré Salesman - Dismissal: The French Supreme Court recalls that a dismissed salesman is entitled to a customer compensation at least equal to the legal dismissal indemity (Henitex)

2 July 2014 295

A terminated sales representative to whom the judges had awarded a client allowance complained that the judges had not taken into account the fact that, since the claim for termination pay was necessarily included in the client allowance claim, the higher of the two allowances should be (...)

Blanche de La Mure, Dominique Ferré Commercial agency : The Agen Court of Appeals refuses to grant a commercial agent a termination allowance different from the one contractually agreed (Méditerranéenne de courtage)

16 June 2014 142

The question of indemnification of the agent feeds into the dispute over the termination of the commercial agency contract, at least in the field of the agent’s right to compensation for damage arising from the loss of the right to prospect the principal’s clientele and to profit from it (art. L. (...)

Blanche de La Mure, Dominique Ferré Competing products : The Paris Court of Appeals considers that an agent who sold products competing with those of his mandate did not commit serious misconduct justifying a loss of right to the indemnity for the termination of the agreement (Toyoda)

5 June 2014 143

A principal who had terminated a commercial agency contract refused to compensate the agent for gross negligence in selling competing products in breach of the non-competition obligation in the contract. The agent had then summoned him to pay an indemnity for termination of contract. The Paris (...)

Dominique Ferré Sales representative: The Versailles Court of Appeals recalls the conditions of validity of a clause allocating the professional charges to the sales representative (M. X.)

9 April 2014 82

CA Versailles, April 9, 2014, RG n° 12/04397, Mr X. c/ Me X. After recalling the rule that "the professional expenses incurred by the employee must be borne by the employer", so that "the expenses which an employee proves to have incurred for the needs of his professional activity and in the (...)

Dominique Ferré Breach of contract : The Versailles Court of Appeals refuses to consider that a principal broke a commercial agency contract due to force majeure and takes into account the shortness of the relationship to assess the amount of the termination indemnity (Villeroy et Boch Wellness / Agrec)

20 March 2014 106

CA Versailles, 20 March 2014, RG n° 12/06455, Villeroy et Boch Wellness c/ Agrec The principal may avoid payment of compensation due to the agent on termination of the contract by invoking the circumstances in which the status of commercial agents deprives the agent of such compensation : (...)

Dominique Ferré Repayment clause: The Riom Court of Appeals validates a clause committing a commercial agent to repay a card previously purchased by the mandate (Frac Distribution c/ Une fleur en plus)

19 March 2014 94

CA Riom, March 19, 2014, RG n° 12/02777, Frac Distribution c/ Une fleur en plus A commercial agency contract stipulated that, since the principal had acquired the card from the previous agent responsible for the distribution of products in the sector, the agent receiving the card undertook to (...)

Dominique Ferré Sales representative: The French Supreme Court examines the exclusivity of a sales representative’s activity by taking into account the termes of contract (Sico)

19 March 2014 134

A sales representative was claiming payment of the minimum lump-sum indemnity provided for in the 1975 interprofessional agreement from his employer in the presence of an exclusivity clause. A court of appeal had granted his claim, considering that he was "de facto subject to an exclusivity (...)

Dominique Ferré Commercial agents: The Bourges Court of Appeals refuses to requalify a commercial agent as a travelling salesman due to the lack of subordination relationship with the principal and reminds that the power to contract is not mandatory for the application of commercial agent status (M. S. / Immobilier des Ducs)

14 March 2014 189

CA Bourges, March 14, 2014, RG n° 13/01121, M. S. c/ Immobilier des Ducs The question of the alternative application to the same natural person of the status of commercial agent and sales representative is less debated than that of their cumulative application. However, it is not easy to make a (...)

Dominique Ferré Exclusive sourcing: The French Supreme Court approves of a court of appeals refusing to declare null and void an exclusive sourcing contract for lack of cause, considering the paltry level should not be evaluated only on the grounds of quantitative considerations but also on qualitative ones (Schoen distribution)

11 March 2014 492

Does a distributor’s commitment to exclusivity of supply call in return for a benefit equivalent to the financial stake in the purchases? The issue is fuelling a developing dispute over "beer contracts", initiated by distributors who wish to change supplier and thus benefit from the advantages (...)

Dominique Ferré Breach of contract: The French Supreme Court refuses to grant compensation for lack of notice to a principal responsible for the breach of contract despite no serious misconduct (MNS & CO)

4 February 2014 152

CA Aix-en-Provence, January 16, 2014, RG n° 12/09468 Article L. 134-11 of the Commercial Code requires the parties to a commercial agency contract of indefinite duration to observe a period of notice on termination, of one month when the contract is in its first year of performance, two months (...)

Dominique Ferré Commercial agency: The Grenoble Court of Appeal lets the commercial agent choose the qualified judicial authority in order to deal with the termination of his contract (FProfil Direct / Association Œuvre des papillons blancs de Salon-de-Provence)

14 January 2014 167

CA Grenoble, 14 January 2014, RG n° 13/04075, FProfil Direct c/ Association Œuvre des papillons blancs de Salon-de-Provence A ’service provider’ who brought an action for judicial termination of the contract (which he described as a commercial agency) between him and his ’principal’ before the (...)

Dominique Ferré Franchising: The French Supreme Court confirms the appellate court’s ruling holding that the intuitu personae nature of the franchising contract requires the franchisee agreement for its transmission (CSF / Maxi Distribution)

7 January 2014 118

The Court of Cassation agreed with a Court of Appeal that "the intuitu personae nature of the franchise agreement concluded by [the franchisee] and the necessity of the agreement of the co-contractor for its transfer by way of partial contributions of assets" justify "that[in] the absence of (...)

Dominique Ferré Commercial agency: The French Supreme Court approves an appellate court for having considered that the violation of the loyalty duty by an agent does not necessarily imply unfair competition (Le Traiteur du Val-de-Cère c/ Passion gourmande)

7 January 2014 150

The Court of Cassation agrees with a court of appeal for having ruled that the fact that a commercial agent did not inform his principal of the exercise of a similar activity for the benefit of a competitor : – constituted a breach of his duty of loyalty, "justifying the termination of the (...)

Dominique Ferré Non-competition clause: The Nancy Court of Appeal declares null and void a non-competition clause which was too large in its geographical extent and did not contain any financial contribution for the benefit of the commercial agent (CP Conseil / M.V.)

7 January 2014 193

CA Nancy, January 7, 2014, RG no. 14/0003, CP Conseil c/ M. V. The obligation for commercial agents not to compete with their principals (art. L. 134-3 C. com.) ceases in principle at the termination of their relationship. The principal then runs the risk that the agent will continue to (...)

Dominique Ferré Franchising: The French Supreme Court approves of an appellate court having stated the originality of the know-how passed on to the franchisee and the existence of a competitive advantage (FL Conseil / Auvence et Coff)

10 December 2013 124

The Court of Cassation approved a Court of Appeal for having, in dismissing a franchisee’s application for annulment of the franchise agreement for lack of cause, held that "by communicating to the franchisee detailed information on all the products, the franchisee had acquired an exhaustive and (...)

Dominique Ferré Franchising: The Paris and Montpellier Courts of Appeal refuse to declare null and void franchising contracts for mistake regarding profitability and grant of a check for zone booking (Sam & Co, Casa Pizza)

4 December 2013 151

Paris, December 4, 2013, RG n° 13/08506, Sam & Co. CA Montpellier, 5 November 2013, RG n° 12/01381, Casa Pizza France c/ Cocci Casa Appeal courts reject applications by franchisees for the invalidity of franchise agreements for : error as to the profitability of the franchise, on the (...)

Dominique Ferré, Régis Pihéry Restrictive practices: Study of the 2013 CEPC Report

December 2013 647

Ever since the enactment of the Dutreil Act on August 2, 2005, France’s commercial practices oversight committee (the CEPC) has, each year, prepared a report on case law developments in the area of restrictive practices (Title IV of Book IV of the Commercial Code). The report is drawn up on the (...)

Dominique Ferré International commercial agency : The Court of Justice of the European Union rules that the applicable law in matters of international commercial agencies is that of the court seised, not the law chosen by the contracting parties (United Antwerp Maritime Agencies c/ Navigation Maritime Bulgare)

17 October 2013 129

A Belgian principal who had terminated a commercial agency contract subject to Bulgarian law had been summoned by his Bulgarian agent before a Belgian court to pay various indemnities provided for under Belgian law. Questioned whether Bulgarian law, chosen by the parties and in conformity with (...)

Philippe Vanni Restrictive practices: The Commercial Court of Paris refused to sanction a buying group on the basis of significant imbalance (Galec)

24 September 2013 236

Paris Commercial Court, 24 September 2013, Minister of the Economy v. Galec, RG n°2011/058615 The Paris Commercial Court rules in favour of the Groupement d’achat des Centres Leclerc (GALEC), a dispute that is included in the actions brought by the Minister for the Economy on the basis of (...)

Dominique Ferré Mutual interest mandat : The French Commercial Supreme Court confirms the promoter of individual housing cannot qualify for mutual-interest mandate (ESC c/ Maison Pierre)

10 September 2013 160

The Court of Cassation approved a court of appeal for having, in rejecting the qualification of agent of common interest, noted that the broadcaster of individual houses "did not have any negotiating or representation power towards [the builder of the houses], but only acted as an intermediary (...)

Philippe Vanni Restrictive practices of competition: The Cour de cassation states that the refund of the overpayment shall be only on the amount exceeding the actual value of the services actually rendered (Carrefour hypermarchés)

10 September 2013 117

Cass. com, September 10, 2013, Carrefour hypermarkets, No. 12-21.804 A major distributor had been summoned by the Minister of the Economy to annul the clause relating to the remuneration of "separate services" stipulated in agreements concluded in 2005 and 2006 with 15 suppliers, as well as to (...)

Dominique Ferré Commercial agency : The Agen Court of Appeal holds that the principal who sells their products to websites for resale does not prevent the commercial agent to fulfill their mandate (Diffusion commerciale Midi-Pyrénées c/ Figui international)

9 September 2013 213

Since the principal and the agent both have an "interest in the development of the business by creating and developing the clientele" (Cass. civ., 13 May 1885: DP 1885, I, p. 350; S. 1887, I, p. 220), their relations are governed by a reciprocal obligation of loyalty requiring the agent to (...)

Frédéric Puel Competition investigation: The General Court confirms the Commission’s powers of inspection (Deutsche Bahn)

6 September 2013 211

GCEU, 06.09.2013, Deutsche Bahn AG v. Commission, cases T-289/11, T-290/11 and T-521/11 Companies sought the annulment of inspection decisions of the European Commission and of all decisions taken on the basis of those decisions, as well as the return of all documents seized during those (...)

Dominique Ferré Commercial agency : The Paris Court of Appeal recalls the obligation of the agent to pay the sub-agent a termination indemnity, while the Rennes Court of Appeal prevents the principal to deduct from the base of the termination indemnity due to the agent commissions he paid directly to the sub-agents (Fashion Deal c/ MFG, Wine Note c/ Vignobles Mourat)

5 September 2013 139

CA Paris, 05.09.2013, Fashion Deal c/ MFG It is "as an independent profession" that a commercial agent acts in the name and on behalf of a principal (art. L. 134-1 C. com.). Unlike the sales representative (article L. 7313-4 of the Labour Code), he therefore enjoys a certain degree of autonomy (...)

Dominique Ferré Qualification: The Versailles Court of Appeal decides on the power to negotiate of a commercial agent (Mr. C./M. S.)

18 July 2013 147

A court of appeal qualifies as a commercial agent a] former employee of a company who, after his dismissal, "proposes[]and negotiates[offers, prices and tariffs, discounts, delivery times in the absence of any instructions given by the (...)

Dominique Ferré Gross misconduct: The Cour de cassation recalls that the non-realization of sales targets does not establish in itself a gross misconduct depriving the agent of its right for compensation of cessation of contract (Loire télé)

9 July 2013 127

The Court of Cassation criticised the Lyon Court of Appeal for having, in rejecting a commercial agent’s claim for compensation for termination of contract, upheld his serious fault because he had "only achieved a turnover of 100,000 euros [instead of the 340,000 euros agreed] upon, which was (...)

Dominique Ferré Compensation of closure of contract: The Court of Appeal of Bordeaux judges that the proposal of a transaction on termination compensation sufficiently shows the intention of the agent to assert his rights (Mr. M./STC)

5 July 2013 76

The Court of Appeal of Bordeaux found against a principal claiming that the agent had lost his right to compensation for failure to notify him within the legal period of one year that he intended to assert his rights to compensation (art. L. 134-12 C. com.), that "the search for a settlement on (...)

Dominique Ferré Accumulation: The Court of Appeal of Nancy fixes the compensation of closure of contract of an agent by taking into account the low duration of the relation and also indemnifies the agent of his damage arisen from the brutality of the breach (Kircher/Mr. R.)

3 July 2013 122

Ruling on the compensation claims of a former commercial agent, the Nancy Court of Appeal sets the amount of his severance pay at six months’ commission "in view of the short duration of the contractual relationship (2 years)", and considers, with regard to compensation in lieu of notice, that (...)

Dominique Ferré Fault commited during the period of notice: The Pau Court of Appeal recalls that the serious fault committed by the agent during the period of notice does not deprive him of his right to termination indemnity (Best Fires)

27 June 2013 184

Serious misconduct committed by the commercial agent, because it deprives him of his right to compensation at the end of the contract (art. L. 134-13, 1° C. com.), feeds the litigation of the termination of the agency contract. Most often, the question arises as to the characterisation of (...)

Dominique Ferré Qualification as commercial agent: The Paris Court of Appeal qualifies as commercial agent due to his negotiation power an intermediary prevented from changing pricing conditions of the principal but authorized to grant costumers “gifts” representing a real financial advantage (Covidien)

30 May 2013 239

The benefit of the status of commercial agents is only granted to intermediaries who - effectively - carry out their activity in accordance with the four conditions of Article L. 134-1 of the French Commercial Code. The third (relating to the type of contract negotiated and possibly concluded (...)

Philippe Vanni Excessive clauses: The Court of Justice specifies the role of the judge in the presence of an excessive penalty clause (Erika Jőrös/Aegon Magyarország Hitel Zrt. ; Dirk Frederik Asbeek Brusse, Katarina de Man Garabito/Jahani)

30 May 2013 234

CJEU, 30.05.2013, Erika Jőrös v. Aegon Magyarország Hitel Zrt; Dirk Frederik Asbeek Brusse, Katarina de Man Garabito v. Jahani BV, cases C-397/11 and C-488/11->doc19955 In two rulings handed down on the same day, the ECJ confirmed its case law on the office of the judge and clarified its role (...)

Dominique Ferré Requalification in employment contract: The Rennes and Paris Courts of Appeal requalify as employees commercial agents who actually exercised their activity in a position of legal subordination towards the principal (IG2P)

22 May 2013 179

Disputes over the classification of the commercial agency contract do not develop solely around the question of the agent’s power to negotiate. It extends to the case of commercial agents who are contractually qualified as such but whose actual conditions of activity place them in a situation of (...)

Valerie Marx Access to the file: The General Court considers that the Commission can not deny to the victim access to documents obtained under a leniency program (EnBW Energie Baden-Würtenberg/Commission)

22 May 2013 197

Trib. EU, 22 May 2012, EnBW Energie Baden-Würtenberg AG, Case T-344/08 Trib. EU, 22 May 2012, EnBW Energie Baden-Würtenberg AG, Case T-344/08 The EU General Court considers, in line with the Pfleiderer judgment (CJEU, 14 June 2011, aff. C-360/09), that the Commission may not refuse the victim (...)

Dominique Ferré Jurisdiction: The Cour de cassation determines the jurisdiction regarding international commercial agency matters according to the place of effective execution of supply of the services rather than the localization of clientele (BSM/LAP)

14 May 2013 155

An Italian principal who had entrusted the exclusive distribution of his goods in Europe to a Belgian commercial agent (later substituted by a Belgian and then Luxembourg company) was summoned to pay a termination indemnity in France because the majority of the agent’s clients were in France. (...)

Dominique Ferré Commercial agency: The Cour de cassation considers that the notice given by the principal excludes a serious misconduct of the agent and points out that the termination indemnity should not be calculated on an inclusive basis (Europ Cosmétics/M. A.)

May 2013 205

Cass. com, February 12, 2013, M. B. c/ Hydraulics, production systems, No. 12-12.371 The argument based on serious misconduct on the part of the agent feeds into the dispute over the termination of the commercial agent’s contract. Its outcome is often unfavourable to the principal, as evidenced (...)

Dominique Ferré Commercial lease: The Cour de cassation clarifies the scope of the maintenance obligation of the lessor (Agneaux/Go Direct)

May 2013 142

Cass. 3rd civ. 19 December 2012, Agneaux c/ Go Direct, n° 11-23.541 A company had leased a hair salon space in a shopping centre. Following the relocation of all the other stores in the centre to a new shopping centre, the lessee, who had become the sole merchant in the old shopping centre, had (...)

Dominique Ferré Quantitative selective distribution: The Cour de cassation considers that quantitative criteria should have a precise content that can be verified but that it is not necessary to objectively justify the quantitative criterion chosen (Seeb/Castes)

30 April 2013 440

Cass. com. 15 January 2013, No. 10-12.734 The Court of Cassation approved the Montpellier Court of Appeal for having sentenced a supplier for abrupt termination of its relationship with its exclusive distributor due to a change in the latter’s corporate officer following the sale of the entire (...)

Marie Koehler de Montblanc Seizures of messaging : The French Supreme Court decides that the power of the agents of the French NCA to seize documents and computing supports finds its limit in the principle of the free defense (Medtronic)

24 April 2013 248

Cass. com, 24.04.2013, Medtronic, No. 12-80.331 During a home visit in the course of a competition investigation, e-mails containing correspondence between the respondent company and its lawyer were seized in bulk. The First President of the Court of Appeal had refused to annul the (...)

Dominique Ferré Commercial agency: The Rennes Court of Appeal decides that when a fixed-term contract stipulates a renewal clause, the agent loses his right to termination indemnity if he refuses the renewal while new conditions proposed by the principal are not contrary to his interests (Kronimus/SCPE)

9 April 2013 149

As an agent of common interest, the agent is protected throughout and until the termination of its relationship with the principal. In this respect, the status of commercial agents is specifically regulated by the commercial agent statute : the cause of the termination of the relationship: if (...)

Dominique Ferré Commercial agency: The Cour de cassation decides that the year-end bonuses granted by the principal to clients regardless of sales made through the agent are not to be deducted from his commissions (Nouvelle Sanitrap’Technic/M. X.)

19 March 2013 247

As an agent of common interest, the agent is protected throughout his relationship with the principal and in particular at the stage of the execution of the contract, under the ordinary law of agency and the status of commercial agents under the Commercial Code. This protection involves various (...)

Dominique Ferré Commercial Agency: The Cour de cassation blames the Bourges Court of Appeal for having required from an agent that he demonstrates that his health made permanently impossible for him to resume work (Mediflux)

19 March 2013 100

The Court of Cassation criticised a court of appeal for having denied a commercial agent who did not justify the "definitive impossibility of resuming his activity" the right to severance pay, whereas it should have "investigated whether the agent]’s [state of health no longer reasonably allowed (...)

Frédéric Puel Anticompetitive agreements : The French Supreme Court confirms the consolidation of the legal security of the operations of visit and seized regarding anticompetitive practices (Dalkia, Rapides du Val-de-Loire, Cars Dunois)

27 February 2013 222

Cass. crim. 27 February 2013, Dalkia, appeal No. 11-82-446; Les Rapides du Val-de-Loire, appeal No. 11-88.471; Cars Dunois, appeal No. 11-88.470; Dalkia, appeal No. 11-82.447 Four rulings handed down by the Criminal Division of the Court of Cassation on 27 February 2013 confirm the legal (...)

Valerie Marx Restrictive practices : The French Supreme Court, the Paris Court of Appeal and the Paris Commercial Court clarify the scope of jurisdiction clauses (Giancarlo, Française d’organisation, Motorstyle)

27 February 2013 150

Cass. civ. 1, 27 February 2013, Giancarlo Zuncheddu du Pilia Pinella v Arci Rhôle-Alpes, appeal No. 11-23.520; CA Paris, 5 March 2013, Française d’organisation commerciale OC 22 v LHD, RG No. 12/19993; Tribunal de commerce de Paris, 21 February 2013, Motorstyle v Honda France, RG No. (...)

Valerie Marx Contracts: The French Supreme Court recalls the role of the judge and the principles of interpretation of dispute resolution clauses (Alstom transport and Caisse des dépôts et consignation/Groupe Investimo and Tarbes industries)

27 February 2013 105

Cass. civ. 1, 27 February 2013, Alstom transport and Caisse des dépôts et consignation c/ Groupe Investimo and Tarbes industries, appeal n° 12-16.328 Some companies had signed a memorandum of understanding prior to their plans to purchase a property complex with a view to selling it to a company (...)

Dominique Ferré Commercial agency: The Rennes and Paris Courts of Appeal pronounce on the qualification of sales agent by verifying that the proxies had the power to negotiate and possibly to conclude legal acts in the name and for the principals (Agirs/H. ; Midi-Pyrénées Communication/SFR ; Mecamidi/Etic)

26 February 2013 193

Rennes Board of Directors, February 26, 2013, Agirs v. H., RG 12/00480; Paris Board of Directors, February 28, 2013, Midi-Pyrénées Communication v. SFR, RG 11/07982; Paris Board of Directors, March 14, 2013, Mecamidi v. Etic, RG 10/13746 In a first case, the Rennes Court of Appeal stated that (...)

Dominique Ferré Commercial agency: The Court of cassation imputes a break of contract to a principal on the grounds that the fact that an agreed power of unilateral modification has been used does not preclude the calling into question of its performance, while Toulouse and Montpellier courts of Appeals rule on the seriousness of the faults of the agents (Éditions Atlas, Gerca, Éditions du Voyage)

February 2013 415

Cass. com, 6 November 2012, No. 11-25.481, Mrs. X. v. Atlas Publishing, No. 11-13.653. The Commercial Code refers to the circumstances in which the commercial agent is deprived of the benefit of the protective regime upon termination of his relationship with the principal, namely : serious (...)

Dominique Ferré Commercial agency: The Paris Court of Appeal declares null and void a provision imposing on the agent a trial period because it was not agreed at the true beginning of the relationship and grants to the agent whose contract has been broken during this period a termination indemnity corresponding to his actual prejudice (Bill Tornade)

February 2013 145

CA Paris, 06 September 2012, Mr B. v. Bill Tornade, RG no. 10/16975 The commercial agent benefits from a protective regime throughout his relationship with the principal until its termination: he is then entitled to a notice period and to compensation for the prejudice suffered as a result of (...)

Valerie Marx Consumer credit: The French Supreme Court considers that the written recognition of the delivery of a slip of detachable retractation joined to an offer suggests the effective discount of this one (Sofinco)

16 January 2013 83

An individual against whom a bank had invoked the forfeiture of the term and who had been summoned to pay the balance of the loan granted claimed that the bank did not provide proof of the submission of the withdrawal form and therefore had to forfeit his right to interest. The Court of (...)

Frédéric Puel Procedure: The Court of cassation specifies that the administration that conducts home visits is not required to prove the practices that it is trying to demonstrate (Sogest)

19 December 2012 92

The Court of Cassation censured the order of a first president of the Court of Appeal which had quashed the order of a JLD authorising operations of visits and seizures in a company on the grounds that the Administration, which justified its inspection by complaints from competitors denouncing (...)

Marie Koehler de Montblanc De minimis Communication: The Court of Justice recalls that the de minimis Communication is not intended to bind the competition authority nor the national jurisdictions (Expedia)

13 December 2012 423

CJEU, 13.12.2012, Expedia, case C-226/11 On the occasion of the appeal filed by Expédia against the Paris Court of Appeal’s decision of February 23, 2010 confirming the ADLC’s condemnation decision, the French Supreme Court (Cour de cassation) had suspended its decision and referred to the CJEU (...)

Valerie Marx Restrictive practices : The French Supreme Court specifies the conditions for the cross-appeal of the Minister of Economy (Ministre de l’Economie/Carrefour)

4 December 2012 87

The Minister of the Economy had intervened in the proceedings brought by the victim of a brutal termination of an established commercial relationship, with a view to the imposition of a civil fine on the perpetrator of the termination. His request having been rejected, he renewed it by (...)

Dominique Ferré Commercial agency: The Aix-en-Provence Court of Appeal refuses a commercial agent the right to indirect commissions for transactions made by the principal with a client belonging to the exclusive territory of the agent on the grounds that the agent was not involved in these transactions ; the Court also refuses him the right to termination indemnity due to his serious fault by becoming agent of the competitor to his principal without the consent of the latter (Roland Pinard/LED)

19 November 2012 547

CA Aix-en-Provence, 13 June 2012, Roland Pinard AGC c/ LED 3, RG n° 10/21564 The commercial agent is protected at the various stages of his relationship with the principal: during the performance of the contract, he is entitled to the payment of commissions (Art. L. 134-5 et seq. c. com.); on (...)

Frédéric Puel Anticompetitive practices: The Court of Justice judges that the claim filed by the European Commission for damages suffered by an European institution caused by anticompetitve practices is in accordance with the right to a fair trial (Europrese Gemeenschap/Otis)

6 November 2012 119

The European Commission had brought an action before a Belgian commercial court to obtain compensation, on behalf of the EU, for damage suffered by the European institutions as a result of anti-competitive practices in the lift sector. The court had then questioned the CJEU on a possible (...)

Valerie Marx Cartel: National and European jurisdictions provide procedural precisions related to anticompetitive practices (Inéo Réseaux Sud Ouest ; Prysmian ; E.ON Energie)

6 November 2012 127

Paris CA, 06.11.2012, Ineo Réseaux Sud Ouest, RG n° 11/20733; GCEU, 14.11.2012, Prysmian v. Commission, case T-140/09; CJEU, 22.11.2012, E.ON Energie v. Commission, case C-89/11P In a first case, an undertaking which had lodged an appeal against the visits and seizures carried out on its (...)

Dominique Ferré, Régis Pihéry Restrictive practices: The 2012 CEPC’s report

December 2012 598

Ever since the enactment of the Dutreil Act on August 2, 2005, France’s commercial practices oversight committee (the CEPC) has, each year, prepared a report for the French Government and Parliament on case law developments in the area of restrictive practices (Title IV of Book IV of the (...)

Dominique Ferré Commercial agency: The Paris Court of Appeal points out that the burden of the proof of the agent’s serious fault lies on the principal and considers that certain behaviours of the principal contradict the invocation of a serious fault of the agent (MKM/GPG, C&I/Bonnemaison Distribution, Eldis, Vergely, Robert Dorleans and M. P. Donot, C&I/Deficom)

November 2012 248

Paris Board of Directors, 07.06.12, MKM Limited v/ GPG, RG n° 11/12179; Paris Board of Directors, 05.07.12, C&I v/ Bonnemaison Distribution, Eldis, Vergely, Robert Dorleans and M. P. Donot, RG n° 10/24583; Paris Board of Directors, 05/07/12, C&I v/ Deficom, RG n° 10/20388 Litigation of (...)

Valerie Marx Refusal of approval: The French Supreme Court considers that the refusal of approval justified by unclear geographical criteria may be anticompetitive (Santéclair)

9 October 2012 99

Cass. com, 09.10.2012, Santéclair, Appeal No. 11-24.542 Following the reorganization of its network, an insurance company had refused to re-affiliate several members operating optical stores. The latter had sued it for anti-competitive practices and ordered it to provide a list of selection (...)

Valerie Marx Interim measures : The French Supreme Court approves a Court of Appeal that has dismissed the application of interim measures for lack of evidence requested by a company (Euro Power Technology)

9 October 2012 145

A company which considered itself to be a victim of cartel practices and abuse of dominant position had lodged a complaint with the ADLC, accompanied by a request for protective measures to put an end to the practices complained of. The ADLC rejected these requests because they were not (...)

Valerie Marx Sweepstakes: The Douai Court of Appeal considers that the rules of a contest indicating the existence of chance conditions do not constitutes a misleading commercial practice (Pantiflor)

8 October 2012 68

A customer who had received a letter from a distance selling company announcing that she was going to receive a cheque, had responded to the proposed game which consisted of "scratching" a number that could allow her to win one of the prizes presented, and then to participate in a draw. The (...)

Philippe Vanni Distribution: The Cour de cassation clarifies the prejudice caused by an abusive breakdown of negociations (Sagem/Boyé)

18 September 2012 130

Cass. com, 18 September 2012, Sagem v. Boyé, appeal No. 11-19.629 A manufacturer of combat clothing and a defence company were in discussions to contract out the production of such clothing. As the defence company had improperly broken off the talks, the manufacturer was claiming compensation (...)

Dominique Ferré Commercial agency: The Court of Cassation approves a Court of Appeal to have awarded a commercial agent a termination indemnity, without consideration of his serious fault since the principal took an active part in it and tolerated it (DEB/Jade)

September 2012 134

Cass. com, 3 May 2012, DEB v. Jade, No. 11-17312 The compensation to which the commercial agent may be entitled as a result of the termination of his relations with the principal (art. L. 134-12 of the Code of Commerce) is not due, in particular, when the termination is caused by the (...)

Dominique Ferré Commercial agency: The Court of Cassation approves a Court of appeal to have held that the post-contractual non-competition clause of a commercial agency contract was null and void because it was not correlated to the customers entrusted to the agent and necessary to protect the principal’s interests (Kriss Laure)

September 2012 191

Cass. com, 15 May 2012, Kriss Laure v. Mrs. X..., No. 11-18330 The commercial agent may be required not to compete with his principal after the termination of the contract (art. L. 134-14, para. 1, Com. C.). Judges check the validity of this type of undertaking in the light of the legal (...)

Dominique Ferré Commercial agency: The Paris Court of Appeal rejects once again telephone subscription distributors’ claim to benefit from commercial agents status (Waris Télécom / Orange)

September 2012 214

CA Paris, May 9, 2012, Waris Télécom and Mim Télécom v/ Orange France, RG 09/19381 The judges once again rule on the status of telephone subscription distributors; once again, they deny them the qualities of agents of common interest and, a fortiori, commercial agents (Cass. com., 15 January 2008, (...)

Frédéric Puel Electronic files seizures: The Paris Court of Appeal approves a house search in France that had permitted to seize electronic files on foreign server (Google/Directeur général des Finances publiques)

31 August 2012 162

CA Paris, August 31, 2012, Google v/ Director General of Public Finance, RG n° 11/13233 One company contested the home visits ordered by the JLD on the basis of Article 16B of the Book of Tax Proceedings on the grounds that "the documents seized [had] been taken from places outside the premises (...)

Marie Koehler de Montblanc Visits et seizures : The Paris Court of Appeal reaffirms the conformity of a JLD’s warrant authorising visits and seizures to Article L 450-4 of the French commercial code

31 August 2012 144

CA Paris, August 31, 2012, L’Équipe, Aujourd’hui Sport, Le Parisien Libéré, Éditions P. Amaury et Amaury médias, RG n° 12/01761 et 12/01773 The Paris Court of Appeal, ruling on a reference after cassation, confirms the conformity with article L. 450-4 of the French Commercial Code of orders for visits (...)

Valerie Marx ECHR : The ECHR considers that the overall referral was not compatible with the principle of "necessity" in a democratic society (Robathin/Austria)

3 July 2012 139

ECHR, 3 July 2012, Robathin v. Austria, Application No. 30457/06 An Austrian lawyer suspected of theft, embezzlement and fraud against two of his clients complained about the global seizure of his electronic data ordered by an investigating judge. While the ECHR considers that the overall (...)

Valerie Marx Mergers: The Court of Justice limits the disclosure to third parties of the documents of institutions related to a concentration (Editions Odile Jacob and Agrofert Holding)

28 June 2012 119

CJEU, 28.06.2012, Editions Odile Jacob and Agrofert Holding, cases C-404/10 and C-477/10 Two third party merger operators had been rejected by the Commission’s request for disclosure of all documents relating to these controls. The Tribunal had set aside both refusal decisions, finding that (...)

Philippe Vanni Mediation clause : The French Supreme Court holds that the mediation clause related to a contract concluded in 2006 shall not apply to a commercial relationship established in 2002 (Eurauchan/Moyrand Bally)

12 June 2012 123

One company had entered into a commercial relationship with an SEO centre as early as 2002, and then concluded several SEO contracts with it, the last one in 2006. In 2007, the company claimed that the central had abruptly terminated their business relationship and had sued the company for (...)

Valerie Marx Work on Sundays : The French Supreme Court holds that the company " made the workers work on Sundays, consequently the competitor had a legitimate interest in bringing the infringement to an end considering that he suffered damage as a consequence of a breach of equality" (Uneco/Chateaudis)

30 May 2012 109

Cass. soc., 30 May 2012, Uneco c/ Chateaudis, n°10-25.349 The Court of Cassation has censured a court of appeal for declaring inadmissible a company’s summary proceedings action against a competitor located nearby, who opened his store on Sundays, in breach of the regulations on Sunday rest. The (...)

Thierry Bontinck, Laurent François-Martin, Frédéric Puel, Stéphanie Woog Conformité aux règles de concurrence et comportements en cas de perquisition: UE, France, Belgique, Thierry BONTINCK, Laurent FRANÇOIS-MARTIN, Frédéric PUEL and Stéphanie WOOG

September 2012 91

Frédéric Puel Prescription : The French Supreme Court holds that new procedural laws can not render ineffective the acts regularly performed before their entry into force (Razel et Sefi)

15 May 2012 144

Cass. com, 15 May 2012, Razel and Sefi, Appeal No. 11-18.507 The Court of Cassation overturned a decision of the Paris Court of Appeal which had overturned a decision of the Competition Council pronounced more than ten years after the cessation of the practices on the grounds that "new (...)

Dominique Ferré Commercial broker agreement: The Paris Court of Appeal dismisses the legal qualifications of commercial agency agreement and joint interest agency agreement and rules that the contract is a commercial broker agreement when the intermediary is not habilitated to negotiate and conclude contracts (Maisons Pierre/Stéphane Collin)

15 May 2012 369

CA Paris, March 21, 2012, Maisons Pierre c/ Stéphane Collin e.a., RG 09/20217 Abundant litigation has developed over the reclassification of certain distribution contracts as commercial agency contracts or mandates of common interest, as evidenced by the decision of the Paris Court of Appeal of (...)

Valerie Marx Notification : The French Competition Authority punishes a company that failed to notify a merger before 2009 (Colruyt)

11 May 2012 168

Aut. conc., 11 May 2012, dec. no. 12-D-12 relating to the situation of the Colruyt Group with regard to I of Article L. 430-8 of the French Commercial Code. The Competition Authority sanctions a company for failing to notify a transaction carried out in 2009. According to it, this is a (...)

Dominique Ferré Commercial agency : The French Supreme Court approves a Court of Appeal to have validated and applied a clause of a commercial agency agreement providing the deduction from the agent’s compensation of the remuneration due to the principal under use by the agent of his customers file (Distrib/Tôlerie du Sud-Ouest)

30 April 2012 228

Cass. com, February 21, 2012, Distrib c/ Tôlerie du Sud-Ouest, n° 11-13395 and 11-14974 The decision of the Court of Appeal of Pau (CA Pau, 31 January 2011, RG no 08/05105, Sté Distrib v Sté Tôlerie du Sud-Ouest) and, following it, the decision of the Court of Cassation which confirms it in all (...)

Frédéric Puel Procedure: The European Court of Human Rights rejects the application filed by an operator against the proceedings leading to his conviction for participation in a cartel (Bouygues telecom/France)

5 April 2012 141

ECHR, 05.04.2012, Bouygues télécom v. France, n° 2324/08 The European Court of Human Rights has rejected as "manifestly ill-founded" the application by a telephone operator to have the proceedings that led to its conviction in 2005 for participation in a cartel in the mobile telephone market (...)

Philippe Vanni Abrupt termination of established commercial relationship: The Court of Cassation approves an appellate court decision granting a provision to the victim of an abrupt termination and orders a measure of expertise to estimate his prejudice provided the causal link between the damage and the behaviour of the commercial partner (Stim/Visio Sys)

20 March 2012 160

Cass. com, 20.03.2012, Stim v. Visio Sys, No. 08-14.062 A distributor felt that it was the victim of a partial termination of a commercial relationship by its supplier, who without notice increased prices and worsened payment terms. An appeal court had ordered the supplier to pay the (...)

Marie Koehler de Montblanc Civil actions and procedure : The French Supreme Court admits the appeal of the President of the French Competition Authority against a ruling ordering a stay of execution and upholds the French Competition Authority decision recalling the right of the victims of anticompetitive practices to claim compensation (Aximum et SES)

20 March 2012 121

Cass. com, March 20, 2012, Aximum and SES, Appeal No. 11-16.128 The Competition Authority had sanctioned several companies for implementing anti-competitive practices: in addition to the fines, the Authority had issued an injunction to publish a text summarizing the decision and recalling the (...)

Laurent François-Martin Civil action: The Paris Commercial Court repeats its injonction to communicate certain documents of the Competition Authority’s file, the victim being able to prove the importance of these documents to exercice his right to self Defense only once these documents have been officially transferred to the Court (Ma liste de courses/HighCo)

16 March 2012 186

On 24 August, the 15th Chamber of the Paris Commercial Court had enjoined the Competition Authority to produce the documents of a procedure that had resulted in a decision to accept commitments. The Competition Authority had requested the withdrawal of the communication injunction, pleading (...)

Valerie Marx Right of withdrawal : The French Supreme Court overturns an appellate court decision condemning the buyer of a real estate to pay the amount stipulated in the penalty clause of the sale agreement, given the fact that if the buyer has finally confirmed his will to buy the real estate, he had previously exerciced his right of retractation (Mme Y. c/ M. et Mme X.)

13 March 2012 88

Cass. civ. 3, 13 March 2012, Mrs Y. v. Mr and Mrs X., Appeal No. 11-12.232 After having sold an immovable by private deed, the sellers claimed from the buyer, who had not repeated the sale by deed, the payment of the penalty provided for by the penalty clause stipulated in the promise to sell. (...)

Marie Koehler de Montblanc Jurisdiction of the Court of Appeal : The French Supreme Court approves the Paris Court of Appeal which retains that the non-respect of its exclusive jurisdiction constitute a bar to the proceedings (Valence automobiles et Pasquinelli Holding/Toyota France)

21 February 2012 196

Cass. com, 21 February 2012, Valence automobiles and Pasquinelli Holding v. Toyota France, appeal No. 11-13.276 A car manufacturer had refused to approve two companies as distributors of its products. Excluded from this marketing, they had been awarded damages in the first instance for the (...)

Frédéric Puel Fair evidence: The Paris Court of Appeal cancels the extracts of a decision of the French Competition Authority referring to a phone conversation recorded without the knowledge of its author on the grounds that it constitues an unfair evidence (Philips France)

16 February 2012 162

CA Paris, 16.02.2012, Philips France, n° 2011/00951 In support of a referral to the Competition Authority, a company had submitted several audio recordings of conversations made without the knowledge of representatives of the various suppliers it suspected of a cartel. On two occasions, (...)

Dominique Ferré Commercial agency: The French Supreme Court recalls that the notice period lasts three months when the third year has already started, rules that the principal’s default can not exonerate the agent in case of serious default’s and confirms one of the condition precedent to the agent’s right to be indemnified in case of retirement (Befom, France élévateurs, UTP)

15 February 2012 267

Cass. com, 2 November 2011, Mr. X... c/ Befom, No. 10-22859 Cass. com, 29 November 2011, M. X... v/ France élévateurs, No. 10-25874 Cass. com, 29 November 2011, UTP c/ M. X..., No. 10-26759 The commercial agency regime (Articles L. 134-1 et seq. of the Commercial Code) is inspired by the (...)

Nicolas Hournon Title retention clause : The French Supreme Court holds that the acceptance of the title reservation clause is inferred from the existence of previous business relation(BTSG c/ Fashion)

31 January 2012 360

Cass. com, 31.01.2012, BTSG v. Fashion, No. 10-28.407 The judicial liquidator of a company that had purchased goods with retention of title disputed the seller’s claim because the invoices for the last deliveries, which mentioned the retention of title, had only been sent to the company after (...)

Guillaume Dezobry, Pauline de Lanzac Collusion and public procurements : The question of the separate bids filed by a parent company and its non-autonomous subsidiary

February 2012 1354

When a parent company and its non-autonomous subsidiary file two separate bids in a public procurement, is it appropriate to apply article 420-1 of the Commerce code and/or article 101 of the TFEU if collusion has occurred? According to the French jurisdictions and the French Competition (...)

Laurent François-Martin Qualification of the sanction : The Paris Court of Appeal overturns the Competition Authority’s decision for failing to individualize the sanctions imposed on several undertakings involved in an agreement (Parfums)

26 January 2012 166

CA Paris, January 26, 2012, "Parfums", RG n° 10/23945 Following two referrals after cassation, the Paris Court of Appeal rules again in the case of the price cartel between 13 perfume manufacturers and the 3 national distribution chains. The Competition Authority is criticised solely in (...)

Valerie Marx Commercial agency: The Bordeaux Administrative Court of Appeal recalls that the commercial agent’s termination indemnity is not subject to value added tax (Jodibois)

24 January 2012 80

Administrative Court of Appeal of Bordeaux, January 24, 2012, Jodibois, n° 10BX02695 A commercial agent who had taken the initiative to break his contract claimed to be entitled to the statutory severance pay. A court of appeal had upheld his claim, considering that the termination of the (...)

Frédéric Puel Search and seizure operations : The French Supreme Court and Metz Court of Appeal indicate the statute of the French Competition Auhtority before the courts and the conditions of the decree authorizing the search and seizure operations ("Ciseau tarifaire dans la téléphonie mobile" ; Coved ; Cemex Bétons)

17 January 2012 218

Cass. com, 17 January 2012, "Tariff margin squeeze in mobile telephony" case, Appeal No 11-13.067 CA Metz, order, 25 November 2011, Coved, RG n° 10/04248 Cass. com, 14 February 2012, Cemex Bétons, appeals no. 11-11.750 and 11-13.130, According to the Court of Cassation, "the obligation of (...)

Marie Koehler de Montblanc Investigation secrecy : The French Commercial Court of Paris admits the production of the exhibits gathered by the French Competition Authority (Outremer Télécom/Orange Caraïbe et France Télécom)

8 November 2011 599

Paris Commercial Court, 8 November 2011, Outremer Télécom v Orange Caraïbe and France Télécom, RG n° 2010073867 Facts The incumbent telephone operator and one of its subsidiaries had been convicted by the French Competition Authority for abuse of a dominant position; a conviction upheld by the (...)

Valerie Marx Franchise : The French Supreme Court holds that a breach of contract can not be condemned when its cancellation has been pronounced (Lina’s développement/K3)

18 October 2011 262

Cass. com, 18 October 2011, Lina’s development c/ K3, Appeal No. 10-23524 Comment A franchisor had entered into a franchise agreement with a company for the operation of a concept for the manufacture and distribution of high-end sandwiches. The franchisee had obtained from the trial judges (...)

Dominique Ferré Selective distribution network: The Court of Justice decides that the prohibition of on-line sales amounted to a restriction of competition by object which could not be exempted through the general terms of a block exemption (Pierre Fabre)

13 October 2011 634

CJUE, 13 October 2011, Pierre Fabre Dermo-cosmetics, Case C-439/09 The judgment of the Court of Justice in the Pierre Fabre case was eagerly awaited. Whereas, firstly, in the sense that it came as a result of various "assaults" against the prohibition on selected distributors to sell the (...)

Valerie Marx Significant imbalance: The Lille Commercial Court holds that two clauses in a large retailer’s general terms and conditions of purchase create a significant imbalance in favor of the retailer (Eurauchan)

7 September 2011 395

In October 2009, the Minister of the Economy referred the case to the Lille Commercial Court, along with eight other courts, by the Minister of the Economy to "build up case law on the notion of significant imbalance" between suppliers and distributors, sanctioned by the new provisions of (...)

Nicolas Gransard Limitation of the payment term: The national auditing body precises the terms and conditions of execution of the statutory auditor’s obligation to adress their report to the Minister of Economy in case of significant and repeated violation of the obligation to provide information on payment term

1 September 2011 236

CNCC Jan. 2011, Bull. CNCC No. 163, September 2011, EJ 2011-01, No. 131 p. 580 The Compagnie Nationale des Commissaires aux Comptes (CNCC) sets out the procedures for fulfilling the obligation imposed on statutory auditors to send their report to the Minister of the Economy in the event of (...)

Dominique Ferré Exclusive supplying agreement: The French Supreme Court decides the criteria for indivisibility between Franchise Agreement and Exclusive Supplying Distribution Agreement (Carrefour proximité France/Sodéma)

12 July 2011 516

Cass. com, July 12, 2011, Carrefour proximité France c/ Sodéma, n° 10-22930 The fact that a contract belongs to a contractual unit may have implications both at the stage of formation of the contract and at the stage of its performance or termination, provided that the contracts are linked by a (...)

Dominique Ferré Common interest mandate agreement: The French Supreme Court rejects the legal definition of Common interest mandate agreement since the distributor lacks the power of representation (SFR)

21 June 2011 1180

Cass. com. 21 June 2011, X c/ SFR, No. 10-18577 The question of the qualification of the contract for the distribution of radiotelephone subscriptions is not new [Cass. com. 20 May 2008, Appeal No. 07-13488; Cass. com. 15 January 2008, Appeal No. 06-14698]. The Court of Cassation has on (...)

Marie Koehler de Montblanc Anticompetitive practices : The French Supreme Court applies Article L. 410-1 of the Commercial Code to a professional Order (Santeclair)

7 June 2011 294

Cass. com, 7 June 2011, Santeclair, Appeal No. 10-12038 An insurance company had offered dental surgeons to enter into partnerships under which they would agree not to exceed a maximum rate for a certain number of benefits. The National Council of Dental Surgeons had found the terms of these (...)

Dominique Ferré Commercial agent : The French Supreme Court holds on conditions of the breach of contract and specifies the sense of ’principal’s indulgence and the burden of proof of the serious fault (Free/Libentia ; Seretel)

10 May 2011 501

Cass. com, 10 May 2011, Free v Libentia, No. 10-17952 Cass. com, 24 May 2011, Seretel v. M. X..., No. 10-16969 Under the terms of Article L. 134 12 of the French Commercial Code, the right to compensation enjoyed by a commercial agent at the end of a contract arises from the sole fact of the (...)

Frédéric Puel, Laurent François-Martin How to assess competitive risks arising from information exchange between competitors?

May 2011 1949

Even though the autonomy requirement excludes competitors’ information exchanges of which the purpose or the effect would be to distort the market forces of supply and demand, certain exchanges can nonetheless be deemed to favor competition. Generally speaking, the consequences of exchanges of (...)

Dominique Ferré Commercial agent : The French Supreme Court reminds that the commercial agent’s statute applies if the agent gets a permanent power to negociate (Exan/Cephalon)

27 April 2011 623

Cass. com, 27 April 2011, Exan v. Cephalon, n° 10-14.851 A pharmaceutical laboratory had entrusted a company, through various service contracts over a period of some 30 years, with the task of visiting healthcare professionals in certain territories to promote its products. Following the (...)

Philippe Vanni Commercial cooperation agreements: The Court of Cassation renders a court decision against a large retailer for having procured benefits that were manifestly disproportionate to the value of the services it had provided to its suppliers (Carrefour France)

27 April 2011 154

Cass. com, April 27, 2011, Carrefour France, appeal n° 10-13.690 Facts At the end of an investigation into all the commercial cooperation contracts concluded between a Carrefour retail outlet and its suppliers, the DDCCRF found that the retailer would have received, for 22 different contracts, (...)

Marie Koehler de Montblanc Right to retract : The French Supreme Court holds that even if the conditions for exercising the right to retract are not satisfied, a consumer may still obtain nullification of a contract on grounds of general law (UFC Que Choisir)

3 March 2011 838

Facts A private individual had ordered kitchen units at a trade fair. When a technician came to his home, he had signed a new purchase order, which was presented as a rider, under which the price was increased. Taking the view that that new order replaced the first one by novation, he then (...)

Marie Koehler de Montblanc Subsidiary : The ECJ holds that presumption of liability arising from a company’s ownership (even indirect) of all the capital of a subsidiary applies (General Química, Repsol Química, Repsol)

20 January 2011 1125

A company involved in a cartel case was a wholly owned subsidiary of a corporation, itself a wholly owned subsidiary of the parent company. The Commission had jointly and severally sanctioned these three companies, thereby holding the parent company liable for the illegal behaviour of a (...)

Dominique Ferré Commercial Agent: The Court of Cassation decides on commercial agent’s goodwill indemnity in the case of agent’s retirement and holds that the starting date of the period in which a commercial agent must notify his request for indemnification is the date of actual termination of the contract (Bedin/Joly ; Lamy/Sogelub)

18 January 2011 812

Cass. com, January 18, 2011, Bedin c/ Joly, nº 09-72510 Cass. com, February 8, 2011, Lamy v. Sogelub, No. 10-12876 Articles L. 134-12 and L. 134-13 of the French Commercial Code set out the conditions for opening the right to compensation for the commercial agent at the end of the contract and (...)

Simon Hotte Established commercial relationships: The Court of Cassation rules that implementation of a choice of jurisdiction clause is subject to evidence of “prior acceptance” of the party against whom it is being asserted (Safic-Alcan)

18 January 2011 1021

Cass. com, 18.01.2011, Safic-Alcan v. Coprima, No. 10-11.885 A Spanish supplier had been summoned by a French company that considered itself the victim of a breach of commercial relations before a French court designated by a jurisdiction clause. A Court of Appeal had upheld the Spanish (...)

Dominique Ferré Commmercial agent : The Court of Justice holds that Directive 86/653/ECC has to be interpreted as the serious fault committed by the commercial agent after notice of termination of the contract does not deprive him of his goodwill indemnity (Volvo Car Germany)

28 October 2010 1320

CJEU, 28 October 2010, Volvo Car Germany, case C-203/09 Article 18(a) of Directive 86/653/EEC of 18 December 1986 on the coordination of the Member States relating to commercial agents provides that the indemnity or compensation to which a commercial agent is entitled at the end of his (...)

Frédéric Puel Exchange of information and M&A under the aegis of competition authorities

December 2010 3228

The preparation and implementation of a merger or acquisition necessarily entails that the parties to that planned transaction share information with a view to defining the terms and assessing the interest of their agreement. By sharing a certain type of information that is considered as (...)

Marie Koehler de Montblanc Legal privilege : The ECJ refuses to extend the confidentiality conferred upon attorney/client communications to in-house lawyers (Akzo)

14 September 2010 913

Facts In the context of a competition investigation procedure, a Dutch company had invoked with the Commission the rule of confidentiality of lawyer-client correspondence in respect of communications it had exchanged with its in-house lawyer. The Commission and then the Court of First (...)

Philippe Vanni Sudden break-offs : The French Supreme Court recalls that the non-profit status of a services activity does not preclude application of Article L. 442-6, I, 5° of the French Commercial Code, sanctioning sudden break-offs of established commercial relationships (MACIF)

14 September 2010 856

Following the termination by mutual insurance companies of two approval agreements entered into with a car repairer, the latter had sued them for wrongful termination on the basis of Article L. 442-6, I, 5 of the French Commercial Code. In refusing to apply Article L. 442-6, I, 5 of the (...)

Anne Perrot, Benoît Tabaka, Dominique Ferré, Regula Walter Conference - Reform of vertical distribution - Roundtable II : The opening of the distribution on Internet : What are the consequences for the networks? (Paris, 27 May 2010)

September 2010 2351

This second roundtable of the conference “Reform of vertical distribution”, Paris, 27 may 2010, is dedicated to the impact on physical retail distribution of the liberalisation of Internet distribution. The first paper goes back over the foundations of the solution adopted by the French (...)

Jean-Luc Vitoux LMAP Act : The Legislator adopts a new law on the Modernization of Agriculture and Fishing aiming at the specific objective of bolstering producers’ negotiating power vis-à-vis distributors, and more particularly vis-à-vis large retailers

27 July 2010 1800

Alongside general objectives such as public food policy, the law on the modernisation of agriculture and fisheries has the specific objective of strengthening the bargaining power of producers vis-à-vis distributors, and more particularly the supermarkets. To this end, under a heading referring (...)

Philippe Vanni Commercial practices: The French buyers and salers discover a new phase in the application of the French law on the modernization of agriculture and fishing

27 July 2010 894

Law n°2010-874 of 27 July 2010 on the modernisation of agriculture and fisheries The Law on the Modernization of Agriculture and Fisheries (known as LMAP) is entering a new phase of application. This system applies to all suppliers (producers, cooperative companies, SICA, etc.), all buyers (...)

Simon Hotte Overriding mandatory provision: The French Supreme Court specifies the notion of overriding mandatory provision and the consequences of its implementation on the judge competence (HTC / Doga / Système U / Transbidoa)

8 July 2010 199

Two recent rulings of the Court of Cassation have clarified the concept of loi de police and the impact of the application of such a law to the merits of the case on the competence of the judge: In the first case, the Commercial Chamber of the Court of Cassation considered that Article L. 132-8 (...)

Dominique Ferré Sales agent status : The French Supreme Court censures the Paris Court of Appeal for applying the sales agent status to an “affiliated commissionaire” (Chattawak/Chantal Pieri)

29 June 2010 1455

Cass. com, June 29, 2010, Chattawak v. Chantal Pieri, No. 09-66773 A new step in a case that was thought to be over, the decision of the Commercial Chamber of the Court of Cassation of 29 June 2010 shows how difficult it can be for the courts to grasp the affiliation commission formula. These (...)

Boris Ruy Jurisdiction: The Lyon Court of Appeal rules on the temporal application of Decree no. 2009-1384 of November 11th, 2009, defining territorial jurisdiction for the application of Article L. 442-6 of the French Commercial Code (GRL)

8 June 2010 2207

On the occasion of various chronicles (JCP, G, n°3, 18 January 2010, Semaine du praticien 70, O. Leroy and B. Ruy; JCP, E, 2009, act. 591, B. Ruy), attention had been drawn to the difficulty in applying over time Decree No. 2009-1384 of November 11, 2009 (which came into force on December 1, (...)

Philippe Vanni Unfair terms: The CJEU holds that the EU Directive on unfair terms does not preclude Member States from maintaining more restrictive provisions in favor of consumers (Ausbanc)

3 June 2010 1034

A question had been referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling as to whether the provisions of Directive 93/13/EEC on unfair terms in consumer contracts precluded a Member State from providing in its legal system, for the benefit of consumers, for (...)

Dominique Ferré Commercial agent’s termination indemnity: The French Supreme Court and the Besançon Court of Appeal pronounce on a clause setting the amount of the commercial agent’s termination indemnity at one year of commissions (Bersem/Pequignet ; Pfennig/Nade and Générali Assurances Vie)

18 May 2010 1273

Cass. com, 18 May 2010, Pfennig v Nade and Générali Assurances Vie, No. 09-15023 and 09-66439 CA Besançon, 10 February 2010, Bersem c/ Pequignet, RG 08/03421, JurisData n° 2010-001019 The amount of the termination indemnity due by the principal to the commercial agent is not precisely determined (...)

Laurent François-Martin Regulation in the motor vehicle sector: The European Commission adopted regulation no. 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to vertical agreements and concerted practices in the motor vehicle sector

17 May 2010 1919

Regulation no. 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to vertical agreements and concerted practices in the motor vehicle sector On May 27, 2010, the European Commission adopted regulation no. 461/2010 on the application of Article (...)

Dominique Ferré Vertical restrictions : The European Commission adopts a new exemption regulation on “vertical agreements and concerted practices”

20 April 2010 1434

Regulation no. 330-2010 on April 20, 2010, OJEU of April 23, 2010 The new exemption regulation no. 330-2010 on “vertical agreements and concerted practices” was adopted by the European Commission on April 20, 2010 (OJEU of April 23), together with the related Guidelines. These new antitrust (...)

Dominique Ferré Non competition clause : The Paris Court of Appeal rules on a franchise covenant preventing a franchisee from later joining another franchise (Prodim)

25 February 2010 1167

CA Paris, February 25, 2010, Prodim c/ Diapar, Francap and Groupe G 20, RG n°07/06300 Facts A franchisor in the mass retail sector had inserted in the agreement of its franchisee a non-retermination clause prohibiting him, in the event of termination, from using a "nationally or regionally (...)

Philippe Vanni Abusive clause: The French Supreme Court holds that an arbitration appraisal agreement signed between an insurer and an insured further to a dispute does not constitute a clause in a B-to-C contract (AGPM Vie)

25 February 2010 1608

The victim of an accident had signed a protocol of arbitration expertise with his insurer in order to determine the date on which he could be considered totally and permanently disabled, the parties declaring that they would rely on the arbitrator’s decision and waive all subsequent disputes. (...)

Corinne Hovnanian Law of August 4, 2008: The French National Assembly’s Economic Affairs Commission issues a "status report" on the application of the Law of August 4th, 2008

18 February 2010 1719

The Economic Affairs Committee of the National Assembly issued a report on 18 February 2010 giving an "interim" assessment of the implementation of the Law of 4 August 2008 (LME). The general tone of the report is rather critical. Criticism is based first of all on certain observations, in (...)

Philippe Vanni Article L. 441-7 of the French Commercial Code: The French Supreme Court approves of the judgment of the Court of Appeal that considered that single agreement between a supplier and a distributor must contain all the items provided for in Article L. 441-7 of the French Commercial Code (Interdis)

9 February 2010 2116

Facts The Paris Court of Appeal had sentenced a distributor for having concluded between December 2005 and March 2006 commercial cooperation agreements and separate service contracts "not specifying the content of the services rendered" in accordance with Article L. 441-7 of the French (...)

Laurent François-Martin The control of distributors by the heads of distribution - Definition and issues

February 2010 3662

The relations between heads of distribution networks and their distributors are currently the subject of renewed antitrust focus. In light of both EU and domestic case law, certain criteria can be applied to determine whether the head of a network should be deemed to have taken control over its (...)

Dominique Ferré Commercial agent: The Paris and Pau Courts of Appeal recall that an agent who lacks negotiating authority cannot claim commercial agent status (Dieman ; Exan ; Benhamou)

28 January 2010 1123

CA Pau, 17 November 2009, Dieman v. Beyria, RG n°09/018185 ; Paris Board of Directors, 28 January 2010, Exan Limited v Cephalon France, RG n°07/04577 ; Versailles Board of Directors, February 11, 2010, Benhamou v. CS Régie and PM and Co, RG no. 09/00396. Several decisions recall that the (...)

Marie Koehler de Montblanc Antitrust proceedings : The Paris Court of Appeal decides on the possibility offered by Article R. 463-15 of the French Commercial Code to request a declassification of electronic mailboxes (Adecco / Randstad)

26 January 2010 1611

The Paris Court of Appeal has appealed against a decision handed down by the Competition Authority on February 2, 2009 (No. 09-D-05), under which various temporary employment agencies had been convicted for having concerted on their commercial policy towards some of their clients. The Paris (...)

Philippe Vanni Price-comparison websites: The French Supreme Court decides on the burden of proving the inaccuracy of prices indicated on price-comparison websites (Carrefour / Galec)

19 January 2010 1582

A cooperative society of purchasing groups had opened a website for the purpose of comparing the prices charged by the major retailers for the sale of numerous products. Seized by a competing distribution company, the judge ordered the suspension of the operation and publishing of this site in (...)

Annaïg Donadieu, Dominique Ferré Unfair competition : The French Supreme Court holds that the originality is not a condition to bring an unfair competition action against competitors who used catalogues and price lists (Tentation/Picoline et Laboratoire Labema)

15 December 2009 1863

Cass. com, 15 December 2009, Tentation v. Picoline and Laboratoire Labema, Appeal No. K 08-21.362 A distributor of cosmetic products had assigned in unfair competition competitors who used its catalogues and price lists to produce their own catalogues. The Lyon Court of Appeal had dismissed (...)

Corinne Hovnanian, Régis Pihéry Sales agent: The French Supreme Court holds that a sales agent is not entitled to an indirect commission unless he has been assigned a specific sector (Amg2r / Marini Silvano)

8 December 2009 2170

Facts A commercial agent whose contract had been terminated had summoned his principal in payment of commissions and compensation in lieu of notice and severance pay. The Court of Appeal had rejected the request for payment of a termination indemnity on the grounds that the termination was (...)

Dominique Ferré Non-employees distributors: The Court of Cassation narrowly applies social law provisions to non-employees distributors (Distribution Casino France ; Yves Rocher/Gaellic)

8 December 2009 1618

The organisation of network distribution means that the legal and economic independence of the distributor from the network promoter has to be reconciled with the need for consistency in terms of organisation and marketing imposed on the distributor by the network promoter. Social law, on the (...)

Annaïg Donadieu, Dominique Ferré Franchising : The French Supreme Court holds that a franchisor who brings multiple lawsuits to deter a competitor from contracting with its former franchisees may be found liable for abuse of law (Prodim/Francap Distribution)

24 November 2009 2278

Cass. com, 24 November 2009, Prodim and CSF v Francap Distribution et Établissement Ségurel, appeal no. 08-21.630 After obtaining the conviction of a former franchisee for wrongful breach of its supply agreement, a franchisor had sued the promoter of a competing network on the grounds that he (...)

Dominique Ferré Civil sanctions against anticompetitive practices : Some French law issues

May 2007 2689

An undertaking whose behaviour can be qualified as anti-competitive is liable to administrative, civil and criminal sanctions. While administrative and penal sanctions (fines, injunctions, publications) have a repressive purpose, tending to punish the company guilty of an illicit practice, (...)

Dominique Ferré Marketing products online : The Paris Court of Appeal refers to the ECJ a question on the prohibition from marketing products online (Pierre Fabre)

29 October 2009 2699

Board of Directors Paris, 29 October 2009, Pierre Fabre Dermo-Cosmétique, RG n°2008/23812 Facts A manufacturer of cosmetic products had concluded selective distribution contracts with its distributors, providing that the sale of its products had to be carried out exclusively within a physical (...)

Dominique Ferré Statut d’agent commercial : The French Supreme Court and the Reims Court of Appeal recall that the representative cannot claim to the implementation of the commercial agent status when he has not the power to negotiate (JFL Medical ; LDR Médical ; Les Cuirs Saint-Denis ; Avenir Telecom)

27 October 2009 2484

Cass. com, 27 October 2009, Les Cuirs Saint-Denis v. Avenir Telecom (ex Diafax), No. 08-16623 CA Reims, July 21, 2009, JFL Medical c/ LDR Médical Under the terms of article L. 134-1 C. Com. the commercial agent is "permanently responsible for negotiating and, where appropriate, concluding (...)

Marie Koehler de Montblanc Search and seizure procedure : The Paris Court of Appeal holds that an equity tie between two companies cannot by itself justify a judge’s authorization of a search and seizure procedure

22 October 2009 1821

Facts In order to establish competition violations committed by a parent company, a judge of freedoms and detention had authorized, pursuant to Article L. 450-4 of the Commercial Code, the Ministry of the Economy to carry out visits and seizures on the premises of a 24%-owned subsidiary. The (...)

Dominique Ferré Sales agent: The French Supreme Court holds that a claim based on incorrect legal grounds and brought before a court that lacks jurisdiction does not constitute notice of a sales agent’s intention to seek an end-of-contract indemnity (Système Log)

29 September 2009 1694

Cass. com, 29 September 2009, Système Log v. M. Grisez, Appeal No. G08-17.611. A commercial agent whose contract had been terminated had summoned his principal to pay compensation and damages before the industrial tribunal, which declared itself incompetent more than once afterwards. The Court (...)

Dominique Ferré Franchising : The French Supreme Court holds that the application of Article L.7321-2 of the French Labor Code is not subject to a franchisor’s approval of the franchisee’s working, health and safety conditions (AGS/Sté France Acheminement)

16 September 2009 1321

Cass. com, 16 September 2009, AGS v. France Achemement, appeal n°07-45.289 A franchisee had "resigned" and requested that his franchise agreement be re-characterised as an employment contract. The Court of Cassation agreed with the Court of Appeal that it had applied social law to the (...)

Dominique Ferré Sales agent: The French Supreme Court disapproves the Court of Appeal which did not look into whether the successive failures of the sales agent did not constitute, given their repetitiveness and number, serious misconduct such that he should be deprived of the end-of-contract indemnity (Info immobilier)

15 September 2009 2008

Cass. com, September 15, 2009, Info Immobilier v. M. Lartigue, Appeal No. 08-15.613. A court of appeal had considered that a commercial agent who, on the one hand, "has, during the last five months of the contract, only brought in one or two mandates per month instead of ten [and] has not (...)

Dominique Ferré Group of undertakings : The ECJ holds that where a parent company has a 100% shareholding in its subsidiary, there is a rebuttable presumption that the parent company is responsible of the infringement of competition rules by its subsidiary (Akzo Nobel)

10 September 2009 3148

ECJ, 10 September 2009, Akzo Nobel, Case C 97/08P. Facts Akzo nobel’s subsidiaries, which are directly or indirectly wholly owned by the parent company of the group, have participated in anti-competitive price-fixing and market-sharing agreements in the choline chloride sector. Having (...)

Didier Ferrier, Dominique Ferré Resale pricing policies under French and EC law : A synthesis

December 2007 2949

Article L 410-2 of the French Commercial Code states that "except in cases where the law provides otherwise, the prices of goods, products and services (...) are freely determined by competition". Consequently, competition law provides a framework for this freedom within distribution networks: (...)

Dominique Ferré Collective dominant position : The French Supreme Court holds that contractual ties alone do not suffice to create a collective dominant position (Ciments corses)

7 July 2009 1705

Cass. com, 7 July 2009, "Corsican Cement", appeal n°H08-15.609 Facts The companies Lafarge cements (Lafarge) and Vicat were granted exclusive rights, with the possibility of subdelegation, to operate the storage and bagging infrastructure of the port of Bastia by the Chamber of Commerce and (...)

Dominique Ferré Sales representative status : The French Supreme Court holds that the sales representative status is not applicable when the employment contract is limited to stating the « region » where the employee must perform his activities (Bedda)

1 July 2009 1541

[ Cass. soc., 1 July 2009, M. Bedda v. Établissements Florest, appeal No. 08-40.605 >http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000020827550&fastReqId=1560539808&fastPos=1] Facts Following his dismissal, a "salesman-delivery" employee, (...)

Marie Koehler de Montblanc Pharmaceutical sector in Europe : Conference DP-Concurrence, 29 April 2004 on sectoral regulation and competition

December 2004 2266

We will first make a point of regulation (reporting the remarks of Noël Renaudin, President of the Health Products Committee) (I) then an economic point of the drug distribution system (reporting the remarks of Patrick Rey, Professor of Economics at the University of Toulouse I) (II) and finally (...)

Dominique Ferré Autonomy : The French Competition Authority recalls that Article L. 420-1 of the Commercial Code is not applicable to distribution agreements in which the distributor does not bear “significant” financial risks (Secteur de la distribution de vêtement prêt-à-porter féminin et accessoires)

30 June 2009 1785

French Competition Authority, Decision No. 09-D-23 of 30 June 2009 on practices in the distribution of women’s ready-to-wear clothing and accessories. Article L. 420-1 of the French Commercial Code, which prohibits anti-competitive agreements, applies to the distribution contract provided that (...)

Dominique Ferré Non-compete clause : The French Supreme Court recalls that to be valid, a post-contractual non-compete clause must be limited in scope (Perrosdis)

9 June 2009 1943

Cass. com, 9 June 2009, Perrosdis v. Distribution Casino France, appeal n°08-14.301 A franchisor had sued its former franchisee for damages for breach of the non-competition covenant entered into for a period of one year after the breach of the franchise agreement and within a radius of 30 (...)

Dominique Ferré Anticompetitive object : The ECJ decides on the criterions to assess the anticompetitive object of an exchange of informations (T-Mobile Netherlands)

4 June 2009 3273

ECJ, 4 June 2009, T-Mobile Netherlands BV and Others, Case C-8/08 Facts The Dutch Competition Authority ("NMa") has imposed fines on the five mobile phone operators present on the market at the time for infringing Article 81 of the EC Treaty and Article 6(1) of the Dutch Competition Act. In (...)

Dominique Ferré Contract : The French Supreme Court holds that silence may constitute acceptance where the circumstances so warrant (Medica France)

4 June 2009 2344

Cass. civ. 1, 4 June 2009, Medica France, appeal n°08-14.481 A service provision contract, concluded for a fixed period, provided for the accommodation of disabled adults at a reduced rate. Since the contract had been tacitly renewed, the service provider demanded payment of additional (...)

Dominique Ferré Selective distribution : The ECJ holds that a trademark licensee who sells trademarked products outside the owner’s selective distribution network may be found liable for infringement (Copad)

23 April 2009 2249

ECJ, April 23, 2009, Copad v. Christian Dior couture, Case C-59/08 Facts The owner of a prestigious trademark had entered into a trademark licensing agreement for the manufacture and distribution of lingerie products. This contract stipulated that "in order to preserve the notoriety and (...)

Philippe Vanni Unfair commercial practices : The EU Court of Justice tightens its stance on national legislation on unfair business-to-consumer commercial practices (Total Belgium)

23 April 2009 6891

A Belgian law prohibiting, under certain exceptions, "joint offers" from a seller to a consumer in the context of which the latter could obtain, free of charge or not, products, services or advantages linked to the acquisition of a main product or the subscription to a main service, the (...)

Dominique Ferré Professional association : The French Competition Authority sanctions a professional association on the grounds of Article L. 420-1 of the Commercial code for having distributed an erroneous interpretation of the regulations applicable to its members (Ordre des pharmaciens de Basse-Normandie)

22 April 2009 2152

Competition Authority, Decision No 09-D-17 of 22 April 2009 on practices implemented by the Regional Council of the Order of Pharmacists of Lower Normandy Facts The Basse-Normandie Order of Pharmacists had sent a letter to a retirement home inviting it to obtain supplies from the pharmacies (...)

Dominique Ferré Interim measures : The French Competition Authority holds that the interim measures are not aimed at preventing a potential risk of anticompetitive practices (SFR)

2 April 2009 2184

French Competition Authority, Decision No. 09-D-15 of April 2, 2009 relating to a request for precautionary measures filed by SFR concerning various practices implemented by the France Telecom Group in the mobile telephony and broadband Internet markets. Facts In the mobile telephony market, (...)

Frédéric Puel, Stephanie Chantre Reach: A highly technical regulation that raises distribution and competition issues

May 2009 4711

Le règlement communautaire REACH a été adopté le 18 décembre 2006, et est entré dans sa phase active depuis le 1er janvier 2009. Il impose aux entreprises de coopérer en vue d’enregistrer toutes substances chimiques qu’elles produisent, importent ou utilisent sur le territoire de l’UE, sous peine de (...)

Dominique Ferré, Karine Biancone Minister’s inquiries: The Government sets up the provisions relating to the handling of ministerial inquiries by the Rapporteur general of the French Competition Council

20 March 2009 2062

Decree No. 2009-311 of 20 March 2009 Pursuant to Article L. 450-5 of the French Commercial Code, as amended by the order of November 13, 2008, the Decree relating to "the time limits available to the Competition Authority to take the lead in the investigations requested by the Minister of the (...)

Philippe Vanni Abusive clauses : The French Government establishes a list of abusive clauses in relations between professionals and consumers or non-professionals

18 March 2009 1714

A decree of 18 March 2009, issued in application of Article 86 of the law of 4 August 2008 and following the opinion of the Unfair Terms Commission, draws up an inventory of unfair terms in relations between professionals and consumers or non-professionals. Unfair terms are those "likely to (...)

Dominique Ferré, Régis Pihéry REACH : The Government adapts national law to the requirements of the European REACH regulations

26 February 2009 2051

Order No. 2009-229 of 26 February 2009 adapts national law to the requirements of the European REACH regulation concerning the registration, evaluation and authorisation of chemical substances, as well as the restrictions applicable to these substances. It provides for criminal penalties for (...)

Dominique Ferré, Karine Biancone Exclusionary practices : The European Commission publishes its "guidance" on the application of the EC Treaty rules against abuses of dominant positions (Art. 82) to exclusionary practices by dominant undertakings

24 February 2009 4360

Commission Communication 2009/C 45/02 on guidance on the Commission’s priorities for the application of Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings Notice 2009/C 45/02 sets out the European Commission’s guidance on its priorities in applying EC Treaty (...)

Dominique Ferré, Régis Pihéry Mobile commercial and handicraft activities : The French Government specifies the regulation of mobile commercial and handicraft activities

18 February 2009 2036

Under the terms of Article L. 123-29 of the French Commercial Code, derived from Article 53 of the LME Act of 4 August 2008, any person who wishes to carry on a commercial or travelling craft activity outside the territory of the municipality where his or her home or main establishment is (...)

Dominique Ferré, Régis Pihéry Publication of decisions : The French Government publishes a decree relating to the public nature of anticompetitive practices

17 February 2009 1861

Published in the Official Journal on February 19, 2009, the Decree on the advertising of anti-competitive practices was issued pursuant to Article L. 470-7-1 of the French Commercial Code introduced by the Order of November 13, 2008 on the modernization of competition regulation. It lays down (...)

Dominique Ferré, Régis Pihéry Publication of decisions : The French Government publishes a decree relating to the public nature of decisions in the field of concentration

17 February 2009 1764

Pursuant to Article L. 430-10 of the French Commercial Code, as amended by the Law on the Modernization of the Economy of August 4, 2008, the Decree on merger decisions to be made public was published in the Journal Officiel of February 19, 2009. It distinguishes between decisions issued by (...)

Dominique Ferré, Karine Biancone Exclusivity provisions: The Paris Court of Appeal decides on the legality of exclusivity provisions on the mobil phone services market (Orange / Apple / France Télécom)

4 February 2009 2105

CA Paris, February 4, 2009, Apple Sales International, Apple Inc, France Telecom SA, Orange France SA v/ Bouygues Telecom SA Facts The Apple company, already at the origin of the IPod, a highly successful MP3 player, and the online music store Itunes Music Store, has launched a mobile (...)

Dominique Ferré, Régis Pihéry Resale at a loss : The Paris Court of Appeal decides on the retroactive application of the amendments provided to Articles L. 441-7 and L. 442-2 of the Commercial code (Carrefour)

28 January 2009 2500

CA Paris, January 28, 2009, Carrefour et Interdis c/ Ministère public and UFC Que Choisir, RG n° 09-000647 Facts 1st species: Following several DGCCRF inspections between 04 October 2004 and 25 August 2005, a distributor was prosecuted for reselling at a loss. Considering that the law of (...)

Dominique Ferré, Régis Pihéry Imperative provisions of the Consumer code : The French Supreme Court holds that judges may seize on their own motion of breach of imperative provisions of the Consumer code (Crédit mutuel de Saint-Marcelin)

22 January 2009 4222

Facts In a dispute with an individual over the repayment of a loan, a credit company was challenging the court’s decision to reject its claim for payment of contractual interest. It argued that the provisions of Articles L. 311-8 et seq. of the Consumer Code relating to the credit agreement (...)

Dominique Ferré, Karine Biancone Scope of the competition rules : The Court of Cassation holds that the competition rules do not apply to paid vacations funds (Vaissière)

21 January 2009 1893

Cass. soc., 21 January 2009, Vaissière et fils v/ Caisse des congés payés du bâtiment de la région Languedoc-Roussillon, appeal No. 07-12.411 Facts A regional paid holiday fund for the building industry, claiming that a company specialising in the manufacture and marketing of industrial (...)

Dominique Ferré, Régis Pihéry Sales representative : The French Supreme Court recalls that the existence of a legal dependance is not a criteria of the sales representative status (Gestrim)

13 January 2009 2156

Facts The signatory of a contract entitled "mandate", which expressly excluded the application of the provisions of the Labour Code relating to the sales representative in favour of the commercial agency system, claimed before the industrial tribunal the status of exclusive sales (...)

Dominique Ferré CEPC: The Commercial Practices Study Commission publishes its 2009 Report

2009 2579

CEPC Annual Activity Report 2008-2009 Since the Dutreil Act of 2 August 2005, the Commission d’examen des pratiques commerciales (CEPC) has been required to draw up an annual report on its activities, which is transmitted to the Government and Parliament. The first report, taking stock of civil (...)

Philippe Vanni Announcement of price reductions: The French Government specifies the system of the announcement of price reductions to consumers

31 December 2008 1671

On 13 January 2009, an order of 31 December 2008 was published in the Official Journal concerning announcements of price reductions for consumers. This enactment repeals the Order of 2 September 1977 on the advertising of prices to the consumer, which has governed the subject for 30 years. It (...)

Dominique Ferré Reorganization of a distribution network : The Court of Cassation recalls that a supplier is free to reorganise its distribution network without its distributors being entitled to claim a vested right to maintain their situation (Au Sol d’Or)

2 December 2008 1972

Cass.com, 2 December 2008, Au Sol d’Or v. Clause Tezier, appeal no. 07-18.775. Facts A supplier of agricultural products, which had decided to reorganise its distribution network, had sent its distributors a proposal for a new sales organisation. As no agreement was reached between the (...)

Dominique Ferré, Régis Pihéry Non re-affiliation clause : The French Supreme Court validates the non re-affiliation clause which prohibits for a time period limited to one year the use of a known trade name within a radius of five kilometres from the store (ITM Entreprises)

2 December 2008 1998

Facts The promoter of a large distribution network had inserted in the affiliation contract it had granted to a company a non-reaffiliation clause prohibiting the latter, in the event of termination, for one year and within a radius of five kilometres, from using a "sign of national or (...)

Philippe Vanni Retail distribution: The French Supreme Court confirms its case law on the notion of indivisible agreement for an "accord de panonceau" (Abihssira / ACDLEC)

13 November 2008 2892

Facts A merchant was the beneficiary, as a member of an association of distribution centres, of a "sign contract" allowing him to use the brand and logo of a mass retailer in the stores he operated. In return, he was a member of two purchasing groups, one at a national level, the other at a (...)

Marie Koehler de Montblanc Distribution of cosmetic products : The French Competition Council decides on the practice in the distribution of cosmetic products sold in pharmaceutical stores (Pierre Fabre)

29 October 2008 3005

Facts A manufacturer of cosmetic products prohibited its authorised distributors from selling certain brands of cosmetic and personal hygiene products on the Internet. He was prosecuted for infringement of Articles L. 420-1 of the French Commercial Code and 81 of the Treaty of the European (...)

Simon Hotte Jurisdiction provision : The French Supreme Court rules on the validity of a jurisdiction provision (Monster Cable Products / Audio Marketing Services)

22 October 2008 4780

Facts An American company had concluded an exclusive distribution agreement with a French company for its products on French territory. After the American company terminated the contract, the French company brought an action against it before the Bobigny Commercial Court on the basis of (...)

Marie du Gardin Invoices: The French Supreme Court recalls the provisions to be mentioned in the invoices for commercial cooperation (Beldis)

23 September 2008 2653

Facts A distributor that had sent its suppliers invoices containing statements such as "commercial dynamic - presence of the supplier’s products in store operations during the year, in department promotion within the store" or "advertising promotion - presence of the supplier’s products in (...)

Marie Koehler de Montblanc Refusal to supply a parallel distributor: The EU Court of Justice holds that refusals to satisfy “normal” orders, even when they come from a parallel distributor, may constitute an abuse of dominant position (Lélos Kai Sia)

16 September 2008 2155

Facts For several years, Greek wholesalers had been buying certain medicines from a pharmaceutical company with a dominant position on the Greek market with a view to redistributing them in Greece and in other Member States with higher selling prices. From November 2000 to February 2001, the (...)

Dominique Ferré, Nicolas Genty, Philippe Vanni Modernization of the Economy Act : The French legislator enacts the Modernization of the Economy Act on August 4, 2008

4 August 2008 2133

Law No. 2008-776 of 4 August 2008 Adopted on 4 August 2008, the law on modernisation of the economy is a new step in the reform of relations between suppliers and distributors. This new reform comes three years after the Dutreil law of 2 August 2005 (which overhauled the rules applicable to (...)

Marie Koehler de Montblanc Prescription : The French Supreme Court rules that the transmission of the DGCCRF case handler report to the Competition Council suspends the prescription (Guerlain)

10 July 2008 1800

Facts On 21 October 1998, the Competition Council took up the competition situation in the luxury perfume sector on its own initiative. In September 2000, an administrative investigation report by the DGCCRF was filed with the rapporteur and transmitted to the Council. In June 2003, the (...)

Marie du Gardin Article L. 442-6 III of the Commercial Code: The French Supreme Court considers that the French Minister of Economy may act against the advice of victims of abuse (Ministre de l’économie / Galec)

8 July 2008 2807

In the midst of the parliamentary debate on the economic modernization bill, the Court of Cassation has just legitimized the action of the Minister of the Economy based on Article L. 442-6 III C. com. by stating that "the action (...) is not a matter of a mere "law" but of a "law".) which seeks (...)

Dominique Ferré Commercial agent: The French Supreme Court rules on the extent of the indirect commission due to the commercial agent (Chevassus-Marche/Danone)

1 July 2008 2036

Facts One supplier had given a commercial agent an exclusive mandate to represent it with customers of importers, wholesalers or retailers in a specific overseas territory. In the context of a dispute relating to the termination of their commercial relations, the commercial agent demanded (...)

Marie Koehler de Montblanc Selective distribution : The Paris Commercial Court rules that a "web host" who distributes products outside a network is liable on the basis of unfair competition (Parfums Christian Dior, Kenzo Parfum, Parfums Givenchy, Guerlain / eBay)

30 June 2008 2495

Facts During 2006, the LVMH Group brought three lawsuits against eBay Inc. and eBay International AG (hereinafter eBay), concerning their activity as "host" of online auction offers. Claiming to be subject to acts of unfair competition, the perfumers, subsidiaries of the luxury group, have (...)

Simon Hotte Unfair practices : The Versailles Court of Appeal uses the “sufficient, substantial and significant nexus” criterion to determine the jurisdiction of French courts over suits involving unfair competition online

26 June 2008 2168

Facts A Danish pharmaceutical company had presented on the Internet in several documents written in English the first results of its work on the development of a new molecule. The company stated that this molecule would be more effective than the one developed by a French pharmaceutical group. (...)

Philippe Vanni Incorrect invoices : The French Supreme Court holds that companies that issued incorrect invoices are found guilty of forgery (Compagnie générale de conserves)

25 June 2008 2141

A check carried out by the Morbihan competition department revealed that a producer of canned vegetables (Société CGC) which sold products under private labels had been charged higher selling prices than those it had offered by SCA Légumes, a subsidiary of Intermarchandises France (ITM) and the (...)

Philippe Vanni Commercial cooperation : The Colmar Court of Appeal confirms the case law having considered admissible action of the Minister of the Economy in lieu of the retail distributor against fake commercial cooperation agreements

12 June 2008 2024

Facts An investigation conducted by the DGCCRF in a hard discount store revealed the existence of commercial cooperation contracts "without any real consideration", and the Minister of the Economy brought an action on the basis of Article L. 442-6 III of the Commercial Code. As these (...)

Didier Ferrier, Dominique Ferré Break of commercial relationship : The Versailles Court of Appeal holds that a commercial relationship can be “established” within the meaning of Article L. 442-6 of the Commercial Code even if there are no permanent and ongoing dealings between the parties (Partouche)

12 June 2008 2447

Facts A wine merchant had been present for several years at the Paris Fair and made almost 45% of his annual turnover there. He had been informed by the organiser of the event, about eight months before the next edition, that wine merchants could no longer participate in order to free up space (...)

Philippe Vanni Breach of commercial relationships: The Douai Court of Appeal rules that a sudden modification of tariffs and payment conditions may be sanctioned under Article L. 442-6, I, 5° of the Commercial code (GMBH / Agrotronix)

12 June 2008 1720

Facts A German supplier, which has had a business relationship with its French distributor since 1991, informed the French distributor in September 2002 that from 1 January 2003 it would supply its three largest customers directly. Three years later, it decides, without notice and (...)

Dominique Ferré, Karine Biancone Sanctions : The French Competition Council applies the settlement procedure to an anticompetitive cartel on a local industrial cleaning market (Entretien courant des locaux)

11 June 2008 1846

Competition Council, Decision No. 8-D-13, 11 June 2008, on practices in the routine maintenance of premises Facts An HLM office had organised a call for tenders for the cleaning of the common areas of the buildings. Two companies were accused of having agreed on the price and structure of (...)

Marie du Gardin Commercial cooperation contract : The DGCCRF publishes a letter on the application of Art. L. 441-7 of the Commercial Code

24 May 2008 2658

"In a letter dated April 13, 2007, you asked me about the nature of service contracts offered by a retailer to a manufacturer of products with which it does not have a direct commercial relationship since it works through a wholesaler. You consider that these services cannot be the subject of (...)

Frédéric Puel, Laurent François-Martin Competition inquiries: Legal status of the documents seized or copied

May 2008 6850

The increasing number of antitrust dawn raids and seizures raises the question of the scope of the National Competition Authority’s and the European Commission’s rights regarding seized or copied documents. In principle, the search warrant issued by the judge constitutes the strict scope of the (...)

Marie Koehler de Montblanc Misleading advertising: The Colmar Court of Appeal annuls the interim decision having suspended an advertising campaign in favour of distribution of medicines by the retail distribution (Univers Pharmacie / GALEC)

21 April 2008 2296

Facts A central purchasing agency had launched an advertising campaign to raise awareness of the benefits of opening up the self-medication market. The message emphasised that the possibility for parapharmacies linked to this purchasing group to sell medicines not reimbursed by the health (...)

Marie Koehler de Montblanc Seizure : The Nanterre Judge of Freedoms and Custody holds that the DNECCRF’s “selective sorting” obligation also applies to seizures of emails during onsite visits (Eco-emballages)

9 April 2008 1938

Facts A visit to the premises of a company was carried out by the National Directorate for Competition, Consumer Affairs and Fraud Control (DNECCRF) with the authorisation of the liberty and detention judge of the Nanterre Regional Court. At the time of this investigation, certain documents (...)

Marie Koehler de Montblanc Abuse of a dominant position : The Paris Court of Appeal calls for greater care and vigilance to be exercised when assessing “predation by reputation” claims (GlaxoSmithKline France)

8 April 2008 2226

The abuse of a dominant position through predatory pricing has been difficult to characterise since the Akzo ruling by the ECJ on 3 July 1991. The judgment defined predation as "the practice by which a dominant undertaking fixes its prices at a level [far below its costs] (...) with the object (...)

Marie Koehler de Montblanc Professional associations: The French Competition Council sanctions 7 union doctors for having agreed on the higher rate for consultations (Médecins spécialistes de secteur 1)

2 April 2008 2253

The Competition Council, seized by a consumer association, sanctioned seven doctors’ unions for having issued instructions to encourage their members - sector 1 specialist doctors - to increase their fees by a collective, extended and, at times, systematic use of "exceptional overruns". It (...)

Dominique Ferré Commercial agent : The French Supreme Court holds that the commercial agent may call for his right to damages even before the actual cease of the relationships (Spécialités d’Iroise)

11 March 2008 2292

Cass. com, 11 March 2008, Ms Dejaune v. Spécialités d’Iroise, Appeal No. 07-10.590 Facts A commercial agent had served formal notice on his principal to comply with his contractual obligations, failing which the contract would be terminated within two weeks, without prejudice to his rights to (...)

Simon Hotte Applicable law : The French Supreme Court applies the ECJ Tessili case law and the Rome Convention on the applicable law to contractual obligations and holds that the characteristic performance of distribution contracts is the one from the supplier (Wolman / Cecil)

5 March 2008 3348

Facts For five years, a German company had entrusted the exclusive distribution of its products to a French company. As the supplier had terminated that relationship, the distributor brought an action before the Commercial Court seeking compensation for the loss resulting from that (...)

Marie Koehler de Montblanc Exclusionary practices : The Paris Court of Appeal confirms the decision of the Competition Council regarding practices in the distribution of cycles (Distribution des cycles)

4 March 2008 2306

The Paris Court of Appeal upholds the decision of the Competition Council which found against 22 companies for a total of €580,000 for having implemented anti-competitive agreements and inserted anti-competitive clauses in their general terms and conditions of sale and other distribution (...)

Dominique Ferré Negotiability of terms and tarifs : The French Minister of Economy receives a report on the negotiability of rates and terms and conditions (Hagelsteen Report)

12 February 2008 1807

Report by Mrs Hagelsteen to the Minister of the Economy, 12 February 2008 The report recognises the possibility nowadays offered to economic actors to negotiate the general terms and conditions of sale, still "the basis of commercial negotiation", which the law requires suppliers to (...)

Marie Koehler de Montblanc Procedure: The EU Commission strongly condemns a company for obstructing its investigation powers (E.ON)

30 January 2008 2212

The Commission ordered E.ON to pay a fine of EUR 38 million for breaking seals affixed to its premises during an inspection. The Commission stressed that it "cannot tolerate attempts by companies to undermine its fight against cartels and other anti-competitive practices by threatening the (...)

Marie Koehler de Montblanc Good faith: The Bobigny Tribunal holds that contractual good faith justifies the adaptation of a distribution contract to create a website by the supplier (Nouvelles Frontières Distribution)

29 January 2008 2497

A tour operator that marketed its "products" through exclusive agents decided to also offer them on a website it had created. The agents, grouped together in an association for the defence of their interests, considered that they were deprived of the turnover achieved through the site and (...)

Philippe Vanni Commercial cooperation agreement: The Nîmes Court of Appeal confirms that the Ministry of Economy has no power to claim any civil sanction against a supplier in the place of the distributor (EMC Distribution)

17 January 2008 2344

Facts In the context of commercial relations between the central purchasing office of a supermarket chain and a supplier, agreements have been concluded in implementation of commercial cooperation agreements. Arguing the fictitious nature of certain contractually agreed services and therefore (...)

Dominique Ferré Agent: The French Supreme Court holds that an alleged managing agreement is a work contract (HCGMVP/Simoes)

16 January 2008 3293

Soc. case, 16 January 2008, HCGMVP v. Simoes, appeal No. 07-40.055 Facts A company which operated hotels under a franchise agreement had entrusted the co-managers of another company with the management of hotels in its name and on its behalf. The co-managers argued that they were in a (...)

Dominique Ferré, Nicolas Genty "Chatel" Law: The French Parliament reforms commercial negotiation and its influence on the relationships between suppliers dans distributors

3 January 2008 2608

The Chatel law, promulgated on 3 January 2008, is presented by its author as the first part of an umpteenth reform of the rules of trade negotiation. It includes two major provisions: the lowering of the threshold for resale at a loss to "three times net", allowing the deduction of the (...)

Dominique Ferré Trade negociations: The Legislator reforms business practices in the retail sector through the "Chatel" law

3 January 2008 2080

Law n°2008-3, 3 January 2008 1. The law n° 2008-3 of January 3, 2008 for the "development of competition at the service of consumers" is a continuation of the law of August 2, 2005 which was already pursuing a long sequence of reforms. 2. The law of 2 August 2005 had attempted to lower the (...)

Philippe Vanni Breach of relationships : The French Supreme Court confirms that recourse to tenders amounts to the decision of the partner to cease relationships and may serve as a starting point in order to calculate the duration of the notice (Sony/Dall’Agnol)

18 December 2007 2287

Facts A company had notified an industrial cleaning service company with which it had a commercial relationship of the decision to put the contract concerned out to tender, in which the company was invited to participate. Since this notification was made in May and the announcement of the (...)

Marie du Gardin Breach of commercial relationships : The Dijon Court of Appeal confirms that a sudden modification of the tarifs may be held as a breach of established commercial relationships (Vidrieria Rovira/Serge Cheveau)

4 December 2007 2071

Facts A supplier of glass bottles, which had entrusted the marketing of these bottles to a distributor for several years, informed the distributor that new, higher tariffs would be applicable from the following day. Taking the view that the higher tariffs were a roundabout way of terminating (...)

Dominique Ferré Selective distribution : The Paris Court of Appeal recalls that a supplier claiming damages from a retailer for alleged unlawful distribution of its goods must establish the lawfulness of its own network (L’Oréal/PPC)

28 November 2007 2358

CA Paris, November 28, 2007, SA L’Oréal c/ Paris parfums cosmetics PPC Facts A supplier of cosmetic products, who claimed to be the "head" of a selective distribution network, criticized an unauthorized distributor for marketing its brand of skin care products. He had therefore sued this (...)

Philippe Vanni Cessation of commercial relationship : The Paris Court of Appeal holds that the fact for a supplier to start relationships with other retailers may constitute a breach of established commercial relationships with regard to the fomer sole retailer (Laboratoire Adequat)

16 November 2007 1930

Facts A dental prosthesis supplier had had a three-year business relationship with two dental centres. As the orders had ceased, the supplier had solicited its contracting partners, who notified it of their willingness to continue the business relationship, but only dealing with one of the (...)

Philippe Vanni Commercial cooperation : The Reims Court of Appeal holds that the Minister of Economy can not act in lieu of the retailer in case of fake commercial cooperation contracts

5 November 2007 1853

Facts In the context of commercial relations between the central purchasing office of a supermarket chain and a supplier, four commercial cooperation contracts had been concluded. Arguing the fictitious nature of some of the services provided for in the contract and therefore the nullity of (...)

Marie Koehler de Montblanc Broadband Internet: The French Competition Council rules on practices in the area of access to broadband Internet (France Telecom)

15 October 2007 1889

Facts France Telecom was sanctioned for abusing its dominant position. The latter discriminated against Internet service providers competing with its subsidiary Wanadoo, firstly by making available to them information on the eligibility of ADSL lines that was less up-to-date and less precise (...)

Marie Koehler de Montblanc Transaction : The French Competition Council reminds that commitments must be substantial to allow a reduction of the fine (Câbles à haute tension)

26 July 2007 1735

Five suppliers were fined a total of EUR 19.5 million for agreeing, prior to two tenders, on the amounts of their respective bids and on the behaviour expected from each bidder. Having not contested the objections notified to them, and having given certain undertakings, the latter requested (...)

Marie Koehler de Montblanc Wholesalers : The French Competition Council decides that a supplier that reserves a clientele of retailers for each wholesaler is restricting competition (Léonidas)

24 July 2007 1705

Léonidas, a Belgian supplier of chocolates, markets its products in France through wholesalers which it required to resell only to certain retailers chosen by it. The Competition Council considers that this limitation constituted an infringement of competition for wholesalers, who cannot (...)

Marie du Gardin Sudden break of commercial relationships : The Commercial Court of Lyon rules that a five-month notice given before closing a privilege location in a department store is insufficient given the long-standing nature of the relationship and “the loss of the brand’s renown owing to the fashion nature of the products in question” (Galeries Lafayette)

24 July 2007 2046

Since the enactment of Article L. 442-6-I 5° C, the abrupt termination of established commercial relations constitutes a violation of the law. Com. an argument much sought after by companies at the end of a contract or, more broadly, at the end of a relationship and very well received by the (...)

Philippe Vanni Commercial agent : The French Supreme Court recalls that in order to benefit from a commercial agent status, a representative must have the power to negotiate in the name and on behalf of its principal (Bonnet/Bacchus)

10 July 2007 2146

Facts A contract entitled "distribution contract" was signed between F. Bonnet and Bacchus. This contract stipulated that the Bacchus company’s mission was to market F. Bonnet’s champagnes. Customers would be invoiced directly by Bonnet. The contract also stipulated that Bacchus would be (...)

Marie Koehler de Montblanc Exchanges of information : The French Supreme Court considers that exchanges of confidential information on an oligopolistic market do not in themselves constitute a cartel (Bouygues Télécom / SFR / Orange France)

29 June 2007 2426

Facts An investigation carried out following a self-referral by the French Competition Council and a referral by the UFC-Que Choisir revealed that the three French mobile operators (Orange France, SFR, and Bouygues Télécom) exchanged strategic information between 1997 and 2003 and reached an (...)

Dominique Ferré Misleading advertising : The Ivry First Instance Court fines 2 millions euros a leading distributor for non-compliance with the Dutreil Law and misleading advertising (Carrefour)

26 June 2007 1923

Tribunal de grande instance d’Evry, 26 June 2007, Ministère public c/ Carrefour Two SEO centres of a supermarket chain were prosecuted first for concluding commercial cooperation agreements which did not specify the content of the services rendered to their suppliers under the cooperation (...)

Dominique Ferré Discrimination : The CEPC holds that a supplier dealing directly with its distributor customers on terms more favorable than those accorded to its distributor must be able to justify this difference in treatment (Cosmetics distribution in pharmacists)

14 June 2007 2298

ECDC, Opinion No 07-04, 14 June 2007, concerning certain practices applied to a group of retail pharmacists by laboratories manufacturing cosmetic products and/or proprietary medicinal products. A group of dispensing pharmacists asked the ECDC for its opinion on pricing practices implemented (...)

Marie du Gardin Commercial cooperation: The DRCCRF of the Somme district specifies the conditions of a remuneration granted for commercial cooperation services

June 2007 1936

Response from the DRCCRF of the Somme (source: J.-P. Leaustic - FIDAL Amiens) Text of the response from the Somme DRCCRF : "One of your customers is asked to participate financially in return for the presence of their products in a distributor’s catalogues. These catalogues are published at (...)

Dominique Ferré Action of the Economy Minister : The Angers Court of Appeal rules that the Minister of Economy cannot require a distributor to refund any sums that suppliers unduly pay it without the latter’s approval (FINAMO)

29 May 2007 2038

CA d’Angers, 29 May 2007, S.A. FINAMO v/ Minister of the Economy, aff. n° 06/00563 Facts One distributor had entered into commercial cooperation agreements with its suppliers for "promotion [and volume and sales development services".] Taking the view that the remuneration paid by the (...)

Philippe Vanni De facto exclusivity: The French Competition Council grants interim measures against alleged de facto exclusivity clause having taken into account terms of termination (Emettel/TDF)

2 May 2007 1941

Facts In 2003, a dominant terrestrial broadcasting provider concluded exclusive seven-year contracts with several public channels. A competitor of this supplier, believing that the latter was abusing its dominant position on the grounds that it was foreclosing the market by reducing the (...)

Didier Ferrier, Dominique Ferré Leniency : The French Competition Council releases a communication on its new leniency program

17 April 2007 2615

Cons. conc., Procedural Notice of 17 April 2007 revising the French leniency programme The Competition Council published on 17 April 2007 a revised leniency programme to bring it into line with the European Model Programme of 29 September 2006. The contributions of the new Procedural Notice (...)

Simon Hotte Conflict of jurisdiction : The French Supreme Court recalls that in matters relating to contract, the court in the place where the essential obligation was performed has jurisdiction (Méridien hôtels)

27 March 2007 2778

Facts A company incorporated under English law has entered into a contract with a French company for advertising consultancy, creation and supply of advertising documents. Following the breach of contract by the English company, the French company sued the latter for wrongful termination of (...)

Dominique Ferré Motor vehicles distribution : The French Supreme Court rules that an automobile supplier in the process of reorganizing its entire distribution network may terminate its distribution agreements on an abbreviated one-year’s notice at any time during the process (Daimler Chrysler/Garage de Bretagne)

6 March 2007 2535

Cass. com, 6 March 2007, Garage de Bretagne v. Daimler Chrysler France, Appeal No. 05-13.991 Facts A car licensor, reorganising its entire network since 2000, had notified one of its exclusive dealers of the termination of its contract by giving one year’s short notice in 2002, due to the (...)

Dominique Ferré CEPC: The DGCCRF and University of Montpellier publishes reports

March 2007 2122

DGCCRF report Report from the Faculty of Montpellier 2005-2006 Review of Restrictive Practices Decisions: What lessons can be learned from the reports submitted to the ECDC? Pursuant to the Dutreil Act of 2 August 2005, the Commission d’examen des pratiques commerciales (CEPC) is now required (...)

Dominique Ferré Professional association : The French Competition Council rules that the members of a professional association that is found guilty of forming an anticompetitive cartel can be ordered to contribute to the payment of the fine (UFOP)

21 February 2007 1755

Competition Council, Decision No. 07-D-05, February 21, 2007, Union française des orthoprothésistes (UFOP) Facts A group of companies regularly communicated to its members "recommended" rates for their services (communication of a calculation method and the hourly price of labour). It had also (...)

Philippe Vanni Commercial cooperation: The French Supreme Court holds that the lack of precision or errors in the wording of commercial cooperation agreements cannot constitute proof that the services were not rendered (Vierzon Distribution)

20 February 2007 1910

Facts One distributor had concluded commercial cooperation agreements with some of its suppliers providing for "non-management services" and "range optimisation services". Taking the view that the services contained in these agreements did not correspond to a commercial cooperation service (...)

Marie Koehler de Montblanc Selective distribution : The Paris Commercial Tribunal holds that internet distribution of a brand product amounts to an act of unfair commercial practices and parasitism (Pacific Création/PMC Distribution)

15 February 2007 2304

Facts Pacific Création, a company specializing in the manufacture and distribution of fragrances, particularly the Lolita Lempicka brand, markets its products through a selective distribution network. In its agreements with resellers, it limits the use of Internet marketing by requiring that it (...)

Dominique Ferré Commercial agent : The Versailles Court of Appeal rules that a technical intermediary who does not negotiate agreements cannot claim to be a commercial agent (Eagle Picher Wolveruine)

8 February 2007 1647

CA Versailles, 8 February 2007, Eurotech v/ Eagle Picher Wolveruine GmBH, RG n°05/07851 Facts A company marketing components for the automotive industry had signed a contract with another company entitled "agency agreement". After fourteen years of collaboration, the principal company gave (...)

Marie du Gardin Break of established commercial relation : The Nanterre Commercial Court considers that a trade fair organizer that denies access to a company which regularly exhibited its products at the fair is considered to have committed a sudden break-off of an established business relationship (Comexpo Paris)

2 February 2007 2405

Facts A wine merchant had been present for more than twenty years at the Paris Fair and made 15% of his turnover there. In 2004, Comexpo, the company organising the fair, decided to reduce the surface area of the event and exclude wine merchants. It informed the wine merchant in September (...)

Dominique Ferré Commercial agent : The French Supreme Court holds that the commercial agent is entitled to indirect commission even if he is not exclusive (PMA)

23 January 2007 1756

Cass. com, 23 January 2007, X v. LDC France, Appeal No. 05-10.264 Facts A sales agent in charge of a geographical area in the north of France and whose contract was terminated summoned his former principal in order to obtain payment of various sums. In particular, he demanded the payment of (...)

Marie du Gardin Commercial cooperation : The Paris Court of Appeal reaches a decision on the validity of a clause providing for a partially performed commercial cooperation service

20 December 2006 2205

Facts The central purchasing office of a group of independent distributors had concluded a commercial cooperation agreement with the suppliers of this group providing for the "singularisation" of each sales outlet in the network. This concept of "singularization" consisted of "the (...)

Dominique Ferré Franchise : The Nîmes Commercial Court recalls that franchise agreements may, under certain conditions, be subject to labor law (Fesquet/Ripert)

13 December 2006 2182

CA Nîmes, 13 December 2006, Fesquet v Ripert and others, RG n°06/00280 Facts A former franchisee has brought his former franchisor before the industrial tribunal following the breach of his contract. He considered that the franchise agreement should be subject to labour law and claimed payment (...)

Simon Hotte Commercial agency : The French Supreme Court approves the Bourges Court of Appeal in that it acknowledged the validity of the choice of jurisdiction clause provided by a commercial agency agreement (Ceramiche Gardenia Orchidea)

12 December 2006 2315

Facts An Italian company terminated its contract with a French commercial agent. In breach of a contractual clause conferring jurisdiction on the courts of Modena (Italy), the latter brought an action against the company for payment of compensation for termination and notice before the (...)

Dominique Ferré Anticompetitive agreements: The French Competition Council decides on the practice in the distribution of cycles and cycling products (Distribution des cycles)

7 December 2006 1608

Competition Council, Decision No. 06-D-37, 7 December 2006, Cycle and cycle product distribution sector The Competition Council has condemned twenty-two companies for a total of EUR 580,000 for having implemented anti-competitive agreements and inserted anti-competitive clauses in their (...)

Dominique Ferré Commercial cooperation: The French Supreme Court considers that lack of precision in commercial cooperation agreements can be tantamount to the absence of contract (Société SCA Centre)

6 December 2006 1683

Criminal Case, 6 December 2006, SCA Centre, Appeal No. 06-82.834. Facts During 2001 and 2002, one distributor had concluded a commercial cooperation contract with its suppliers whereby it undertook "to ensure the presence of the supplier’s products in the regional assortment suitable for (...)

Marie Koehler de Montblanc Selective distribution : The French Competition Council informs several firms in the sector of cosmetics and personal hygiene products of its concerns as regards some of their practices (Distribution de produits cosmétiques et d’hygiène corporelle)

14 November 2006 2132

The Competition Council has expressed its competition concerns to several companies in the cosmetics and personal hygiene sector about some of their practices. The main issues at stake are the total prohibition imposed by certain distribution contracts on authorised resellers from reselling all (...)

Marie du Gardin Commercial cooperation services : The Creteil Commercial Court orders to a provider of "needless" commercial cooperation services to refund unduly paid sums (SAS Système)

24 October 2006 2510

A search engine optimisation centre which had negotiated commercial cooperation contracts with several suppliers has just had its contracts cancelled and been ordered to return more than 76 million euros received in this connection and to pay a civil fine of 100,000 euros. Concerning the plea (...)

Marie Koehler de Montblanc Commitments procedure: The French Competition Council states that the commitments procedure is not meant to satisfy claimants’ demands (Canal 9/GIE Les Indépendants)

6 October 2006 2080

Facts The economic purpose of the EIG "Les indépendants" is to aggregate the audiences of certain local radio operators in order to provide a grouped offer of advertising space enabling them to access the national advertising market. In 2003, a company operating a local radio station, having (...)

Marie Koehler de Montblanc Exchange of informations in the hotel sector: The French Competition Council decides on the draft about occupancy indicator of hotels in the region of Mulhouse (CCI Mulhouse)

5 October 2006 1810

The Chamber of Commerce and Industry (CCI) for Southern Alsace has asked the Competition Council for an opinion on the compatibility with the provisions of Article L. 420-1 of the French Commercial Code of a draft occupancy indicator for hotels in the Mulhouse region. The CCI’s project consists (...)

Simon Hotte Commercial agency : The French Supreme Court holds that the court having jurisdiction over the place of performance of a commercial agency agreement has jurisdiction to rule on a claim for a termination indemnity (Fabrica Textil Riopele)

3 October 2006 1954

Facts The commercial agent in France of a Portuguese company sued the latter for payment of customer compensation and damages for wrongful breach of contract before the Commercial Court of Paris. The Paris Court of Appeal has declared the French jurisdiction incompetent to rule on customer (...)

Simon Hotte Article L. 442-6 of the Commercial Code: The Paris Court of Appeal holds that the provisions of Article L. 442-6 of the Commercial Code constitute a mandatory law of international public policy (Monster Cable Products/Audio Marketing Services)

28 September 2006 3702

Facts On 18 September 1995, a Californian manufacturer of sound and audiovisual cables concluded an exclusive distribution contract for its products in France with a French distributor, following two previous contracts. The contract provided that "[its] validity, []interpretation and (...)

Marie Koehler de Montblanc Notion of agreement : The French Competition Council decides on the notion of autonomy of decision within a same economic group (Yamaha-MBK)

15 September 2006 2055

Facts Two distributors of two-wheelers have referred the matter to the Competition Council to have two of their competitors (Yamaha Motor France and MBK) belonging to the same group (Yamaha) sanctioned for an anti-competitive cartel. Decision "In view of the elements set out (...), which (...)

Dominique Ferré Automobile distribution: The ECJ holds that the entry into force of regulation No 1400/2002 may justify the termination, with a reduced notice, of automobile distribution agreements (VW-Audi)

7 September 2006 1943

ECJ, 7 September 2006, VW-Audi Forhandlerforeningen v/°Skandinavisk Motor Co. A/S, Case C-125/05 Facts A car manufacturer had terminated the distribution contract of one of its dealers, not with the normal two-year notice period, but with one year’s notice. It justified this reduced notice (...)

Flavio Laina, Frédéric Puel, Laurent François-Martin, Philip Lowe Leniency and cartels: A policy at war with itself? (European Competition Forum)

September 2006 10878

Cartels and leniency policy, Philip Lowe Abstract For already one decade, the fight against cartels has been constituting one of the priority policies of the Commission. The tools the European authority has at its disposal have been appreciably strengthened by the Regulation 1/2003 which has (...)

Dominique Ferré Notion of merger : The French Minister of Economy clears in phase I without remedies a concentration in the milk sector (Sodiaal/Orlait)

24 August 2006 1872

Facts Candia, a subsidiary of Sodiaal, wishes to acquire exclusive control of Société Orlait following a three-year start-up period, during which the gradual disposal of the first three branches of shares of Orlait will lead to the exercise of joint control. This transaction, which constitutes (...)

Marie Koehler de Montblanc Selective distribution: The French Competition Council decides on the validity of national exclusive purchasing clauses (NGK Spark Plugs)

21 July 2006 2545

Facts A supplier of spark plugs with a dominant position on this market has set up a selective distribution system for its products. He’s being blamed for this: To have agreed, with its distributors, on the resale price of its products; To have applied, in a discriminatory manner, the (...)

Dominique Ferré Motor vehicles distribution : The ECJ rules that a call by a motor vehicle manufacturer to its authorised dealers constitutes an agreement within the meaning of Article 81EC if it forms part of a set of "continuous business relations governed by a general agreement drawn up in advance" (Volkswagen)

13 July 2006 2361

ECJ, 13 July 2006, Commission v Volkswagen, Case C-74/04, Facts In 2001, the car manufacturer Volkswagen was fined by the European Commission for implementing an anti-competitive cartel with its dealers. It was accused of fixing the selling prices of one of its models by requiring its (...)

Dominique Ferré Report : The French DGCCRF releases its annual report for 2006

July 2006 1707

DGCCRF activity report for 2006 The DGCCRF’s activity report for 2006 provides very interesting information of a statistical and strategic nature for companies. It will first be noted that a major change has taken place in the organisation of this administration with the increased role of its (...)

Marie Koehler de Montblanc Regulation 1/2003: The European Commission publishes guidelines for setting fines concerning anticompetitive practices

28 June 2006 1833

The European Commission published on 28 June 2006 new Guidelines on the method of setting fines for companies that infringe Articles 81 and 82 of the EC Treaty on anti-competitive behaviour. The finding that the fines imposed hitherto had not had sufficient deterrent effect has led the (...)

Dominique Ferré Commercial cooperation: The DGCCRF insists on the control of commercial cooperation contracts in its activity report 2005

1 June 2006 1611

CFRB Annual Report for 2005 The DGCCRF made public its activity report for 2005. This report shows that the regional directorates are strongly mobilized to monitor commercial cooperation contracts. The report is available on the DGCCRF’s website at (...)

Marie Koehler de Montblanc Applications of fines: The ECJ considers that anticompetitive practices sanctioned in a third State may also be sanctioned under European Competition Law if they have effects in Europe (Archer Daniels)

18 May 2006 1593

Facts Three companies have been fined by the US authorities for implementing an anti-competitive cartel in the US. As these companies had European subsidiaries, the cartel had effects in Europe. Therefore, one of them denounced the cartel to the Commission in order to benefit from the (...)

Philippe Vanni Distribution of beer : The Paris Court of Appeal holds that the amount of the penalty clause provided by an exclusive purchasing contract may be amended only whether it is clearly excessive (Société Brasseries Kronenbourg)

18 May 2006 2685

Facts Brasseries Kronenbourg has concluded a ’brewery contract’ with a pub operator whereby the latter undertakes, on an exclusive basis and for a period of three years, to serve a certain volume of beer. The beer wholesaler designated by this contract shall avail himself of a penalty clause (...)

Marie Koehler de Montblanc Proof : The French Supreme Court decides on the level of proof required to identify practices as anticompetitive (France Telecom-SFR)

10 May 2006 1962

Facts The Competition Council had imposed financial penalties on France Telecom and SFR for abusing their dominant positions on the market for the collection, transmission and direct interconnection of calls to mobile networks. They had taken advantage of their position on this market and (...)

Dominique Ferré Transaction : The Government publishes the decree setting up the transaction’s procedure (Decree No. 2006-513 of 4 May 2006 )

4 May 2006 1675

Decree No. 2006-513 of 4 May 2006 In order to increase the effectiveness of criminal proceedings for breaches of the rules governing commercial relations, the Act of 2 August 2005 in favour of SMEs introduced a new Article L.°470-4-1 into the Commercial Code relating to criminal transactions. (...)

Marie du Gardin Central referral : The Paris Court of Appeal holds that a central referral which centralizes the suppliers’ invoices is not their mandator (Marabu)

4 May 2006 2586

Facts A supplier who had concluded a "platform partnership contract" with a search engine optimization center sent it the corresponding invoices for the goods ordered by the member retailers. The SEO center received payment for the orders that the retailers had placed directly with the (...)

Philippe Vanni Out of the distribution contract: The Paris Court of Appeal rules that the distributor has to bear the costs of the stocks’ destruction if he does not fulfil the terms of the clause resume stock (Laboratoires Décleor/Fox Kosmetik)

3 May 2006 3225

Facts A distributor of cosmetic products terminated its distribution contract in January 2000, with effect from the termination in December 2001. His contract providing for a "contractual] obligation [to buy back stock (...) at the end of the contract,] covering[all fresh produce less than (...)

Marie Koehler de Montblanc Analysis: The CFI recalls the reasoning used to analyze the purpose of anticompetitive effects within the framework of Article 81.1 CE (O2 GmbH)

2 May 2006 1759

Facts In 2001, two German mobile operators entered into an agreement to pool their telecommunications infrastructure and national roaming, allowing operators to use their competitors’ networks to provide services to their own customers without sharing network elements. As the agreement was (...)

Dominique Ferré, Hervé Delannoy, Isabelle Jamnet, Jean-Louis Gérard, Pierre Kirch New relations between Productors and Distributors after the Dutreil Law and Circular

February 2006 9969

The so-called "Dutreil" French Law dated 2 August 2005 and its notice/circular dated 8 December 2005 have substantially changed the relationships between producers and distributors. These 5 contributions, including counsels, in house lawyers points of view and an article from an official from (...)

Dominique Ferré Procedure for leniency : The French Competition Council implements for the first time the procedure for leniency (France Portes)

11 April 2006 1518

Competition Council, Decision No. 06-D-09, April 11, 2006, Door Manufacturing Sector The leniency procedure aims to improve the effectiveness of the prosecution of anti-competitive cartel infringements by encouraging the parties to such cartels to denounce their practices. Inspired by the US (...)

Marie Koehler de Montblanc Recommended prices : The Paris Court of Appeal upholds the flexibility of the Competition Council in the characterization of resale price maintenance (Royal Canin)

4 April 2006 2091

Facts On June 22, 2005, the Competition Council condemned Royal Canin and fifteen members of its distribution network for having participated in a cartel concerning either wholesale or retail offers. In addition, Royal Canin was convicted of imposing pricing practices, customer restrictions (...)

Marie du Gardin Exclusivity clauses: The French NCA decides on the validity of exclusivity clauses applied by a firm in a dominant position (Gîtes de France)

17 March 2006 2276

Facts The Fédération nationale des gîtes de France (FNGDF) imposed the following exclusivity commitments on its members: Exclusive membership of the Gîtes de France network; Exclusivity of the promotion of the accommodation of the owner-member by the guides published by Gîtes de France ; Exclusive (...)

Dominique Ferré Self-employed commercial agents: The ECJ specifies the definition of the "continuing authority" in the meaning of Directive 86/653 relating to self-employed commercial agents (Poseidon Chartering)

16 March 2006 2830

ECJ, 16 March 2006, Poseidon Chartering BV v Marianne Zeeschip VOF, Albert Mooij, Sjoerdtje Sijswerda, and Gerrit Schram, Case C-3/04. Facts A company acted as an intermediary in connection with a ship charter agreement, which was extended annually from 1994 to 2000, following annual (...)

Simon Hotte Termination indemnity : The French Supreme Court rules that the termination indemnity owed to commercial agent according to Article L. 134-12 of the Commercial code is a "compensation tort" (David Piller/Troy Lee Designs)

14 March 2006 2103

Facts A French sales agent distributes in France the products of his American principal. Following the termination of the contract by the principal, the commercial agent shall summon him before a French commercial court to pay the termination indemnity for the end of the contract. Failed at (...)

Dominique Ferré Distribution of motor vehicles : The European Commission obtains from motor vehicle suppliers the deletion of clauses limiting the right to multibranding in motor vehicles distribution agreements (BMW)

13 March 2006 1835

Press release n° IP/06/302 Press release n° IP/06/303 As the Block Exemption Regulation applicable to the motor vehicle sector has reinforced multi-branding, dealer associations have lodged complaints with the European Commission because of provisions in the General Motors (GM) and BMW (...)

Dominique Ferré Resale price maintenance: The French Competition Council fines thirteen suppliers and three distributors in the field of perfumery for "public incitative prices" (Sociétés Parfums)

13 March 2006 1888

Competition Council, Decision No. 06-D-04, March 13, 2006, Sociétés Parfums Facts Several companies operating luxury perfume and cosmetics brands, as well as national retail chains, were being sued for anti-competitive consumer price fixing. Suppliers were accused of imposing "indicative public (...)

Dominique Ferré Cartel - Proof : The French Competition Council clarifies the conditions required to prove the acceptance of a participation to a collusion (Appareils de chauffage)

9 March 2006 2077

Competition Council, Decision No. 06-D-03, March 9, 2006, Heating, Plumbing, Sanitary and Air-Conditioning Sector In a decision of 9 March 2006, the Competition Council imposed sanctions on sixty-nine companies specialising in the trade or manufacture of heating appliances, sanitary ceramics (...)

Dominique Ferré Distribution of motor vehicles : The Paris Court of Appeal recalls that the licensor has not to motivate the contract’s breach when the contractual notice is applied (Société Corroler automobile)

1 March 2006 1844

CA Paris, March 1, 2006, Corroler automobile, n° 03/16268 Facts Following a succession of fixed-term contracts, Corroler Automobile entered into an open-ended dealership contract with General Motors France in 1997. In 2001, General Motors terminates this commitment by giving the contractually (...)

Marie Koehler de Montblanc Accountibility anticompetitive practices : The French Supreme Court upholds that when the business which committed anticompetitive practices disappears, the firm which assumes the economic and functional continuity may be sanctioned (EFS)

28 February 2006 1756

Facts The Reims Bio company, whose business is the development, processing and sale of blood products, obtained its supplies from the Champagne-Ardennes Public Interest Group (GIPCA), a blood transfusion establishment under the supervision of the French Blood Agency (AFS). As the agreement (...)

Philippe Vanni Selective distribution : The French NCA decides on the merits and the request for provisional measures in the sector of selective distribution on the Internet (Bijourama/Festina France)

3 February 2006 1793

Facts Bijourama, a company specialising in the sale of watch and jewellery products on the Internet, wishes to join the Festina group’s selective distribution network. The latter having rejected its request for approval, Bijourama referred the matter to the Competition Council, considering (...)

Dominique Ferré Provisional measures: The Paris Court of Appeal mixes analysis of the merits and examination of the request for provisional measures (Nouvelles Messageries)

31 January 2006 1768

CA Paris, 31 January 2006, Nouvelles Messageries de la Presse Parisienne v/ Messageries Lyonnaises de Presse Facts Taking the view that the Nouvelles Messageries de la Presse Parisienne (NMPP) was abusing its dominant position on the market for the distribution of newspapers by the number, (...)

Philippe Vanni Penalties for delay : The French revenue modifies the tax treatment of penalties for delay (Instruction n° 13 of 25 january 2006)

25 January 2006 2189

Until January 2006, the tax department treated contractual penalties for late delivery paid by a supplier to its customer as a price reduction. These penalties had to be deducted from the supplier’s VAT tax base and resulted in correlatively, a regularization of deductions at the customer’s (...)

Dominique Ferré Parallel imports : The French Supreme Court validates the practice of the motor vehicle supplier consisting in the payment of commercial aids to its distributors affected by parallel imports (Peugeot)

17 January 2006 1797

Cass. com, January 17, 2006, Syndicat des professionnels européens de l’automobile v. Société Automobile Peugeot, Appeal No. 04-19.092 Facts The European Automobile Trades Union (SPEA) criticised the car manufacturer PSA for having implemented measures with the object or effect of limiting (...)

Dominique Ferré Duty to assist : The Paris Court of appeal rules that the motor vehicle supplier which applies the contractual notice peculiar to permit to the distributor to organize its reconversion has not a duty to assist (Ford France Automobiles)

11 January 2006 1604

CA Paris, January 11, 2006, Ford France Automobiles, n° 03/15259 Facts In 1985, Ford France Automobiles entrusted a dealer with the marketing of Ford vehicles in two exclusive sales territories. Following the entry into force of European Regulation No 1475/95 of 28 June 1995, Ford France (...)

Philippe Vanni Deadlines for payment : The Legislator provides for a new regime of terms of payment in the transport sector

5 January 2006 2066

The law of 5 January 2006 introduced a new paragraph to Article L. 441-6 of the Commercial Code relating to conditions of sale. Paragraph 8 provides that "unless otherwise provided for in the conditions of sale or agreed between the parties, the time limit for payment of the sums due shall be (...)

Philippe Vanni Payment deadlines : The Legislator publishes a new interpretation of the new paragraph of Arti. L. 441-6 C. com. on the deadlines for payment for transport (Law 2006-10)

5 January 2006 2118

The interpretation of the new paragraph of Article L. 441-6 of the French Commercial Code relating to payment periods for transport raises questions. A literal interpretation of the new paragraph may lead one to think that agreeing to a payment term of more than thirty days (fine of 15°000 (...)

Dominique Ferré Specialized antitrust courts: The Governement adopts a decree setting up the list of Courts specialised in competition and industrial property matters (Decree N° 2005-1756)

30 December 2005 1810

Decree No. 2005-1756 of 30 December 2005 laying down the list and the jurisdiction of special courts in competition matters, industrial property and the difficulties of enterprises, OJ 31 December 2005 Article L. 420-7 of the French Commercial Code, as amended by Order No. 2004-1173 of 4 (...)

Philippe Vanni Resale at a loss : The Douai Court of Appeal condemns the distributor who resold at a loss products manufactured by his wholly owned subsidiaries (Décathlon)

20 December 2005 2101

Facts A distributor specialising in sporting goods (DECATHLON) was selling products that it had had 100% manufactured by its subsidiary at a price lower than their actual purchase price. He was sued under Article L. 442-2 of the French Commercial Code for resale to loss. Convicted at first (...)

Marie Koehler de Montblanc Parallel exports of medicines : The French Competition Council issues a decision on the practices carried out by various laboratories in the area of parallel exports of medicines (Exportations parallèles de médicaments)

20 December 2005 1762

pdf/Cons._conc._dec._no_05-D-72_20_decembre_2005.pdf Facts Drug exporting companies have complained that they have been subjected to delivery restrictions, discrimination, and denial of sales by twenty-one pharmaceutical companies. They have referred the matter to the Competition Council for (...)

Marie Koehler de Montblanc Effects of abusive practices : The French NCA sanctions a supplier and his distributors who abused the legislation prohibiting "below-cost selling" (“Vidéocassettes préenregistrées”)

19 December 2005 1904

Facts Buena Vista Home Entertainment (BVHE), the exclusive distributor of Disney videocassettes for France, the distributors Casino and Carrefour, and the wholesaler SDO, agreed on consumer sales prices between 1995 and 1998. The French Competition Council was referred to by the Minister of (...)

Dominique Ferré Automobile distribution : The French Supreme Court rules on the validity of the end of the distribution contract (Garage Loustaunau / Lavillauroy)

13 December 2005 1968

Cass. com, 13 December 2005, Garage Loustaunau v. Lavillauroy, Appeal No. 03-16878 Facts A dealer-agent was bound to a Volkswagen dealer by a contract concluded intuitu personae, which also contained a clause prohibiting any assignment or transfer in whole or in part without the dealer’s (...)

Dominique Ferré Trade relations: The Government provides details on interpretation on the new law on trade relations ("Circulaire Dutreil")

8 December 2005 2112

Circular of 8 December 2005 The circular implementing Title VI of the Act in favour of small and medium-sized enterprises was eagerly awaited. The Act raises many questions about its application. In order to answer these questions, Renaud Dutreil, Minister for SMEs, submitted a draft circular (...)

Dominique Ferré Market : The French Supreme Court upholds the existence of a Roquefort cheese market and specifies the method to assess the damage caused by dominant supplier’s tied sales to the economy (Roquefort)

6 December 2005 2745

Cass. com, 6 December 2005, Société des caves et des producteurs réunis du Roquefort v. Minister of the Economy, appeal No. 04-19.541 Facts Between 1995 and 1997, the Société des caves et des producteurs réunis du Roquefort (Société group) entered into commercial agreements providing for the (...)

Marie du Gardin Recommended prices: The French NCA decides on the validity of recommended prices in the field of consumer electronic products (“Électronique grand public”)

5 December 2005 2081

Facts Avantage SARL criticised Philips, Sony and Panasonic for having introduced a system of price controls on the prices charged by their respective distributors in order to ensure that the latter complied with the "recommended prices". The Competition Council ordered the companies to pay (...)

Marie Koehler de Montblanc Exchange of information : The French Competition Council inflicts a 534 millions euros fine to the mobile telephony operators (Orange France, SFR, Bouygues Télécom)

30 November 2005 2114

Facts An investigation carried out following a self-referral by the French Competition Council on August 28, 2001, and a referral by the UFC-Que Choisir on February 22, 2002, revealed that the three French mobile telephone operators (Orange France, SFR, and Bouygues Télécom) have exchanged (...)

Dominique Ferré Back margin : The Strasbourg Tribunal condemns a distributor to refund the price of undue back margin (Ministre de l’Economie/Lidl)

25 November 2005 2260

Tribunal de grande instance de Strasbourg, 25 November 2005, Ministre de l’Economie c/ Lidl The DGCCRF found that when one of its warehouses was opened, the hard discount distributor Lidl had obtained payment of almost 480,000 euros from seventy-three suppliers under alleged commercial (...)

Marie du Gardin Transaction : The French Supreme Court rules out the possibility for a firm to condition the non contest of grievances and its commitments to the respect by the Competition Council of the rapporteur général’s suggestion of transaction (Texas Instruments)

22 November 2005 1769

Facts In Decision No. 03-D-45 of September 23, 2003, the French Competition Council established the facts of vertical agreements between, among others, Texas Instruments France and Carrefour Hypermarchés France, and horizontal agreements between Texas Instruments and Dexxon Data Media. Texas (...)

Marie du Gardin Commercial cooperation : The Nanterre Commercial Court condemns a large retail distributor to pay back amounts unduly paid by suppliers for so-called commercial cooperation (Galec-Leclerc)

15 November 2005 2608

In 2001, GALEC, the Leclerc stores grouping’s central referencing centre, found that it had received lower amounts of commercial cooperation for fresh produce than those granted to Carrefour. In order to compensate for the "damage" suffered, it requested payment from suppliers by means of (...)

Marie Koehler de Montblanc Imposed conditional measures: The French Supreme Court holds that the Competition Council may impose conditional measures if the facts seem likely to constitute practices contrary to Articles L. 420-1 or L. 420-2 of the commerce code (Société Neuf Télécom)

8 November 2005 1612

Facts In 2003, Free, Iliad, LDCom and Neuf Télécom referred to the French Competition Council (Conseil de la concurrence) the practices of TF1, M6 and France Télécom which they considered to be contrary to the rules prohibiting anti-competitive agreements and abuses of dominant position, and have (...)

Marie Koehler de Montblanc Non bis in idem: The Competition Council decides on the implementation of the non bis in idem principle to sanctions pronounced by Competition authorities (Neuf Télécom/France Telecom)

7 November 2005 2167

Facts Neuf Télécom accused France Télécom of abusing its dominant position on the market for broadband Internet access services. Before the Competition Council, France Telecom argued that "should the Council decide to impose a financial penalty, it could not, without violating the non bis in idem (...)

Philippe Vanni Break of commercial relationships : The Paris Court of Appeal specifies the elements to take into account to determine the duration of the notice required to break of commercial relationships (Interm’enzo)

20 October 2005 1903

Facts Following the leasing of an operation, the services entrusted for ten years to a service company for operating purposes are interrupted without notice. The Commercial Court of Paris condemns the holder of the holding to pay damages for abrupt termination of established commercial (...)

Marie Koehler de Montblanc Recommended prices : The French Competition Council decides on the validity of prices recommended by a professional organization (CIHEF)

12 October 2005 2425

Facts The Comité interprofessionnel des huiles essentielles françaises (CIHEF), a professional body bringing together producers and wholesalers, was prosecuted for having "initiated and implemented, for the 2000-2003 marketing years for essential oils of lavender and lavandin, a practice of (...)

Simon Hotte Break of an established commercial relationship : The French Supreme Court holds that the place of a damage does not always correspond to the corporate headquarters of the victim (Daguin)

6 October 2005 1884

Facts A company has sued a company in the court of its location for payment of damages on the basis of Article L. 442-6-I, 5°, of the French Commercial Code, for wrongful termination of established commercial relations. The defendant then raised a plea of lack of jurisdiction in favour of the (...)

Dominique Ferré Motor vehicle distribution : The European Commission puts an end to the exemption of "location clauses" in motor vehicle distribution agreements

30 September 2005 1698

The "location clauses" contained in motor vehicle distribution contracts are no longer automatically exempted from 1 October 2005 under Regulation 1400/2002. These clauses aim to prevent car dealers from setting up sales outlets outside the geographical areas defined by the manufacturers. The (...)

Philippe Vanni Delays of payment : The French NCA issues an opinion on collective bargaining in respect of payment periods between firms

22 September 2005 2256

On 21 March 2005, the Trade Practices Review Commission adopted a text in which it recommended "negotiations between trade organisations in each sector to determine payment periods that are manifestly abusive in view of the specific nature of the sectors of activity and the companies concerned, (...)

Dominique Ferré Agent : The CFI rules that the agent who does not determine selling conditions and does not bear the main risks resulting from the activity is not an independent economic operator in the meaning of Article 81 CE (DaimlerChrysler AG)

15 September 2005 1802

Facts Consumers have complained to the European Commission about certain practices of companies in the Daimler-Benz AG group. They were accused of to impede the export of new Mercedes-Benz motor vehicles to various Member States. The Commission found that there was an anti-competitive cartel (...)

Dominique Ferré "Gérance mandat": The French legislator modifies the status of the "gérant-mandataire" with the adoption of the Dutreil Act (Art. L. 146-1 et s. C. com.)

2 August 2005 2397

Law No. 2005-882 of 2 August 2005 Law No. 2005-882 of 2 August 2005 in favour of SMEs created in articles L. 146-1 et seq. C. com. a status of manager-agent applicable to natural or legal persons who manage a business or craft business in the name and on behalf of the owner, in return for a (...)

Marie du Gardin Essential infrastructure : The French Supreme Court holds that a dominant distributor that denies its competitor the use of its software may commit an abuse (Nouvelles Messageries/Messageries lyonnaises)

12 July 2005 1786

Facts Messageries Lyonnaises de Presse (MLP) accused Nouvelles Messageries de la Presse Parisienne (NMPP), which it considered to be in a dominant position on the market for the distribution of newspapers and magazines, of attempting to squeeze it out. MLP claimed in particular that NMPP (...)

Marie Koehler de Montblanc Calculation of fines: The ECJ decides on the principles asserted by the EC Commission guidelines for calculation of fines and on the legality of these guidelines (Dansk Rørindustri)

28 June 2005 1760

Facts By a decision of 21 October 1998, the European Commission had fined several manufacturers and suppliers of district heating pipes for sharing the European market in a cartel and for boycotting a competitor. The Court of First Instance confirmed this decision on 20 March 2002. The (...)

Dominique Ferré Automobile distribution : The French Supreme Court rules on the validity of the breach of the automobile distribution contract (Gremeau / Daimler Chrysler)

28 June 2005 2171

Cass. com, June 28, 2005, Garage Gremeau v. Daimler Chrysler France Facts Daimler Chrysler France has reorganised its distribution network, opting for a quantitative selective distribution system. Beforehand, it had terminated the contract between it and one of its dealers, Garage Gremeau. (...)

Philippe Vanni Common minimum sale price : The French Competition Council sanctions an organization of white tuna productors which set common minimum sale prices (Secteur du thon blanc)

15 June 2005 1759

Facts Several albacore tuna producer organisations were prosecuted for fixing common minimum selling prices. Decision "The fact that these producer organisations participate in meetings where common minimum prices are decided leaves no doubt as to their willingness to participate in a price (...)

Marie du Gardin Tying rebates : The French NCA decides on practices implemented in the pay-TV sector (TPS/Canal Plus)

18 March 2005 2476

Concordance No. 05-D-13, March 18, 2005, GST/Canal Plus Facts The Canal Plus and CanalSatellite companies offered a coupled commercial package comprising their two respective bouquets at a price lower than the sum of the prices of each product sold separately. TPS considered that, by (...)

Dominique Ferré Commitment proceedings: The French Competition Council implements for the first time the commitment proceedings and decides on the practices implemented in the market for audience measurement in the national daily press and on the related advertising market (EuroPQN)

17 March 2005 1816

Competition Council, Decision No. 05-D-12, 17 March 2005, EUROPQN Facts The companies 20 Minutes France and Publications Métro France, publishers of free daily general information newspapers financed exclusively by advertising, have lodged a complaint with the French Competition Council (...)

Dominique Ferré Commercial cooperation : The "Jacob" bill considers an important reform of the commercial cooperation

May 2005 1690

Speech by D. Ferré, Colloque Petites Affiches, 22 March 2005 The framework for commercial cooperation is one of the major objectives of the reform of the Galland Act undertaken by the Government. With the reform of the method for calculating the threshold for resale at a loss, the Government (...)

Dominique Ferré Motor vehicles distribution : The Versailles Court of Appeal rules that the licensor is free to define the modalities of his network’s reorganization, in particular the time to terminate the license contracts (Daimler Chrysler/Garage de Bretagne)

24 February 2005 1695

CA de Versailles, February 24, 2005, Daimler Chrysler France v/ Garage de Bretagne Facts SA Garage de Bretagne was linked to Daimler Chrysler France by an exclusive concession contract. That contract stipulated, in accordance with the Community Regulation, that No 1475/95 of 28 June 1995, (...)

Marie du Gardin Discriminatory practices: The French Supreme Court holds that infringements to Article L. 441-3 of the Commercial code do not presume discriminatory practices (Créapro international)

8 February 2005 2198

Facts In the course of their commercial relations, the Intermarché group issued four invoices to the Créapro group for advertising participation or on turnover. In the context of a dispute over unpaid orders, the Créapro Group is appealing to the French Supreme Court (Cour de Cassation) in which (...)

Dominique Ferré Prices differentials between Member States : The Paris Court of Appeal decides on the liability of automobile manufacturer who practices price differentials between Member States of the European Union (Volkswagen)

26 January 2005 1804

CA Paris, January 26, 2005, Bellevue Auto et Consorts Petit v/ Groupe Volkswagen France and Volkswagen AG Facts Volkswagen Group France, a motor vehicle importer and subsidiary of Volkswagen AG, had entered into exclusive dealership agreements with Bellevue Auto, a company based in the border (...)

Philippe Vanni Breaking off of commercial relationships : The Evry Commercial Court rules on a sudden rupture of commercial relations (Cogeprec / Bitelli)

13 January 2005 2596

Facts After 15 years of business relations, a supplier terminates a contract for the distribution of construction machinery with four months’ notice. The distributor shall sue the supplier for abrupt termination of the established business relationship, on the basis of Article L. 442-6, I, 5° (...)

Marie Koehler de Montblanc Non-compliance of injunction : The Paris Court of Appeal condemns severely an economic operator for non-compliance of an injunction pronounced by the Competition Council (France Telecom/9 Telecom)

11 January 2005 2218

Facts The Autorité de Régulation des Telecoms (ART) had defined three options containing the wholesale offers proposed by France Telecom’s alternative operators to Internet service providers wishing to market broadband Internet access (ADSL). Option three provided for the concession by France (...)

Dominique Ferré Discounts and rebates : The French Competition Council issues a study on discounts and rebates in its 2004 Report

2005 2698

Report of the Competition Council for 2004 One of the issues addressed in the Competition Council’s 2004 activity report relates to the effects of discounts, rebates and rebates on competition. As the Council has noted in the cases it has dealt with, the implementation of price reductions may (...)

Dominique Ferré Retail distribution : The Minister of Economy receives a report on relationships betwen trade and industry which takes side for a reform of the Galland Act ("Canivet Report")

18 October 2004 2285

Canivet Report of October 18, 2004 Following the commitment made on 17 June 2004, the Minister for the Economy, Mr Nicolas SARKOZY, appointed a Commission chaired by Mr Guy CANIVET to consider a new legislative and regulatory framework organising relations between suppliers and distributors. (...)

Dominique Ferré Motor vehicle distribution : The French Supreme Court holds that the licensor is free in the organization of his network and in the choice of his licensees (Rover France)

5 October 2004 1691

Facts A car dealer wanted to sell his business. The licensor’s approval was required. The latter induced a potential buyer to obtain a substantial reduction in the sale price from the dealer. He also invited him to take an interest in taking over another dealership. The dealer, however, (...)

Philippe Vanni Resale price maintenance: The Paris Court of Appeal confirms the French Competition Council’s decision having heavily fined a resale price maintenance case and applied the transaction proceeedings (Calculatrices scolaires)

21 September 2004 2283

Facts During the years 1993 to 1996, two suppliers, Noblet and Texas Instrument together holding 89% of the market share in the market for scientific and utility calculators. have set up a commercial policy of recommending their products to schools. mathematics teachers and a pricing policy (...)

Dominique Ferré Boycott : The Paris Court of Appeal rules that a boycott or the mere threat of a boycott are "per se" punishable anticompetitive behavior even if they have no effect on the market (CNPA / SPEA)

29 June 2004 1010

CA Paris, 29 juin 2004 statuant sur la décision n° 03-D-68 du Conseil de la concurrence, Conseil national des Profession de l’Automobile (CNPA) c/ Syndicat des Professionnels européens de l’Automobile (SPEA) Faits Le CNPA 57 souhaitant lutter contre des intermédiaires mandatés par des consommateurs (...)

Marie Koehler de Montblanc Selective distribution : The Paris Court of Appeal decides on the validity under National Competition Law of the qualitative criterions of a selective distribution network for a supplier whose the market share does not exceed 30 % (Marcout Soulhol/Cartier)

29 June 2004 1870

Facts As part of a strategy to reduce its selective distribution network, one supplier has drawn up a new distribution contract containing new criteria for the selection of its resellers. Faced with the refusal to renew its contract, a distributor referred the matter to the Competition (...)

Marie Koehler de Montblanc Liability of parent company: The French Competition Council rules on imputability of a practice of a subsidiary to the mother company and on the right of response (France Télécom, "Primaliste")

21 June 2004 1072

Faits Deux associations regroupant des opérateurs alternatifs de télécommunications ont saisi le Conseil de la Concurrence d’une pratique mise en oeuvre par France Télécom, l’opérateur historique, qui consistait à offrir à tout nouveau souscripteur de forfait de téléphone mobile six mois d’abonnement (...)

Marie Koehler de Montblanc Interim measures: The French NCA sanctions breach of injunction on the market of access to high speed Internet (9 Telecom Network/France Télécom)

13 May 2004 878

Faits L’Autorité de régulation des télécommunications (ART) avait défini trois options contenant les offres de gros proposées par les opérateurs alternatifs et France Télécom aux fournisseurs d’accès internet (FAI) souhaitant commercialiser des accès à internet haut débit (ADSL). L’option 3 prévoyait la (...)

Marie Koehler de Montblanc Refusal to grant a license : The CJEU rules that the exercise of an exclusive right of intellectual property may constitute an abuse of dominant position in "exceptional circumstances" (IMS Health)

29 April 2004 953

Faits L’entreprise IMS Health fournit aux laboratoires pharmaceutiques des études sur les ventes régionales de produits pharmaceutiques en Allemagne, formatées selon une structure particulière mise en place en partenariat avec les laboratoires. Cette structure est devenue un modèle type sur lequel (...)

Dominique Ferré Exemption: The European Commission adopts the exemption Regulation No 772/2004 on transfer of technology agreements

27 April 2004 330

Regulation No. 772/2004 of 27 April 2004 on the block exemption of technology transfer agreements entered into force on 1 May 2004, repealing in advance the previous regulation which was due to expire on 31 March 2006. This new text is in line with the modernization of the Community (...)

Dominique Ferré Resale price maintenance : The French Competition Council sanctions resale price maintenance in the distribution of sports and leisure (Décathlon / Go Sport)

7 April 2004 1003

Faits La société Go Sport, distributeur d’articles de sport, a saisi le Conseil de la concurrence de pratiques d’abus de position dominante et d’entente. En ce qui concerne l’abus de position dominante, la société Go Sport reproche à la société Décathlon, son principal concurrent, d’avoir abusé de sa (...)

Dominique Ferré Automobile distribution: The Dijon Court of Appeal considers that automobile manufacturer is free to chose its distributors, subject to apply strictly selected criterions (Garage Gremeau/Daimler Chrysler)

1 April 2004 1919

CA Dijon, 1 April 2004, Garage Gremeau v Daimler Chrysler France, No. 03/01547 Facts In all three cases, a car dealer, whose contract had been terminated under Regulation 1475/95, wanted to join the network set up by its former supplier under Regulation 1400/2002: First case: The manufacturer (...)

Dominique Ferré Refusal to supply : The French Competition Council rules on a specific case of refusal to supply (Codes Rousseau)

31 March 2004 947

Faits Le matériel nécessaire au déroulement et à la collecte des réponses de l’examen du permis de conduire ne donnant plus satisfaction, la direction de la sécurité et de la circulation routière du ministère des transports a lancé une procédure d’appel d’offre, à l’issue de laquelle la société Codes (...)

Marie Koehler de Montblanc Tying: The Paris Court of Appeal rules on the anticompetitive effect of tying discounts in the pharmaceutical sector (Novartis Pharma / Laboratoires Sandoz)

30 March 2004 1001

Faits Le laboratoire pharmaceutique SANDOZ, fabricant et fournisseur de ciclosporine (médicament indispensable à la prévention du rejet des greffes) pour des établissements hospitaliers, et détenant le monopole de fabrication de ce produit indispensable aux praticiens, a appliqué un système de (...)

Dominique Ferré, Karine Biancone Merger notification : The Ordinance N° 2004-274 dated 25 March 2004 modifies the French notification thresholds

25 March 2004 2264

Article 25 of Order 2004-274 of 25 March 2004(1) provides that "In the third paragraph of Article L. 420-2 of the French Commercial Code, the words "15 million euros" are replaced by the words "50 million euros". This order modifies the national threshold for the control of a concentration. (...)

Dominique Ferré, Karine Biancone De minimis : The Ordinance N°2004-274 dated 25 March 2004 introduces in French law de minimis thresholds

25 March 2004 2743

Article 24 of Order No 2004-274 (1 ) introduces into French law a mechanism establishing sensitivity thresholds for an anti-competitive cartel comparable to that instigated by the European Commission in the ’de minimis’ notice (2 ). This mechanism complements the dismissal mechanism referred to (...)

Dominique Ferré, Karine Biancone Resale price maintenance: The French Competition Council sanctions resale price maintenance and refers the case to the Prosecutor for criminal proceedings rules (Boulangerie de la Marne)

11 March 2004 1341

Faits La réduction du temps de travail aux trente-cinq heures ayant entraîné une augmentation des charges professionnelles supportées par les boulangers, le président de la Fédération départementale de la boulangerie de la Marne a alors incité, lors d’une assemblée générale le 23 avril 2001 les (...)

Marie du Gardin Sudden breaking off : The French Supreme Court rules on absence of any sudden breaking off of established commercial relationships (Becton-Dickinson / Périmédical)

4 February 2004 923

Faits La société Becton-Dickinson fabrique et distribue des produits à usage médical. La société Périmédical, aux droits de laquelle vient la société Gallien, a pour objet la distribution de matériel médical et a assuré la distribution exclusive des produits de la marque Becton dans certaines régions (...)

Philippe Vanni Opinion : The Commission for the study of commercial practices renders an opinion on the validity of some practices with regard to article L.°442-6 of the French Code de commerce

February 2004 2265

Commission d’examen des pratiques commerciales, notice n° 04-02 relating to the compliance of certain practices with article L.°442-6 of the Commercial Code Facts Pursuant to Article L. 440-1, paragraph 4, of the French Commercial Code, the President of the French Competition Council has (...)

Marie Koehler de Montblanc New regulation: The European Commission adopts the new regulation on merger control

20 January 2004 4516

The Council of Ministers definitively adopted the new Council Regulation (EC) No 139/2004 of 20 January 2004 (1 ) on the control of concentrations between undertakings which will enter into force on 1 May 2004 upon the enlargement of the European Union. This Regulation will replace Regulation (...)

Marie Koehler de Montblanc Standard of proof : The GCEU rules on the evidence necessary to establish the restrictions on competition (JCB Service)

13 January 2004 963

Faits JCB est une société de droit anglais qui produit et commercialise des engins de chantier, des équipements de déblaiement et de construction, des machines agricoles ainsi que des pièces détachées. JCB distribue ses produits par l’intermédiaire d’un réseau de distribution combinant les (...)

Marie Koehler de Montblanc Parallel imports: The CJEU confirms the CFI ruling having annuled the EC Commission’s decision (Bayer-Adalat)

6 January 2004 1293

Faits et procédure La société Bayer AG produit et commercialise, par l’intermédiaire de ses filiales, dans tous les Etats membres de la Communauté européenne, sous la marque Adalat, une gamme de médicaments destinée à soigner les maladies cardio-vasculaires. Les prix des médicaments « Adalat », fixés (...)

Events

4 Oct 2021 Paris Distribution & Retail - 2nd edition See documents

18 Nov 2020 Webinar Distribution, competition and unfair practices #2 : Trade negotiations, Significant imbalance & Closing discussion See documents

Books

Price €65.00 Grands arrêts du droit de la concurrence - Pratiques anticoncurrentielles - Volume II : Mise en oeuvre

Date 4 January 2023

Author(s): Laurence Idot (dir.)

Price €65.00

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