Fidal

Review

Jean-Louis Fourgoux Transposition : The French Government adopts the ordinance transposing Directive (EU) 2019/633 of 17 April 2019 on unfair commercial practices in business-to-business relations within the agricultural and food supply chain, so that it is applicable to relations between suppliers and purchasers in this chain, without a turnover requirement

30 June 2021 88

The ordinance amends the Commercial Code on the form of agency contracts known as NIPs (Art. L. 441-4, VII and L. 443-2, I. para. 2 C. com.), on payment periods for perishable agricultural and food products which may not exceed 30 days after the date of delivery or, in the case of periodic (...)

Jean-Louis Fourgoux General terms and conditions of sale by category: The Paris Court of Appeal considers that a pharmaceutical laboratory is entitled to have differentiated general terms and conditions of sale for orders from purchasing grouping companies (Bristol-Myers Squibb, UPSA / Pyxis Services, Sagitta Pharma)

2 June 2021 44

The Paris Court of Appeal considers that a pharmaceutical laboratory is entitled to have different general terms and conditions of sale for orders from purchasing pooling companies ["SRA"] and pharmaceutical purchasing groups ["CAP"] and that the practice of retail pharmacists consisting of (...)

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 / Select Wine Merchants)

20 May 2021 60

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 (...)

Daniel Fasquelle, Olivier Guersent, Christiane Féral-Schuhl, Marie Even, Laure de La Raudière, Jean-Luc Sauron, Linda Arcelin, Jean-Louis Fourgoux, Leyla Djavadi, Colette Bouckaert, Geoffroy Didier, Valéria Faure-Muntian, Emmanuelle Inacio DMA/DSA: Has Europe really given itself the means to achieve its ambitions?

May 2021 2602

In order to upgrade the rules governing digital players operating in the internal market and to improve the regulatory framework for digital services, on December 15th, 2020, the European Commission published two legislative initiatives: the Digital Services Act (DSA) and the Digital Markets (...)

Philippe Vanni Commercial agency: The French Supreme Court clearly confirms the extensive assessment of the commercial agent’s negotiating power (N. international)

12 May 2021 50

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 (...)

Jean-Louis Fourgoux Lack of notice: The Paris Court of Appeal considers that practices that may amount to corruption justify immediate termination without notice (I2C / Carrefour)

5 May 2021 27

Carrefour had broken off commercial relations after learning through an internal investigation that its buyer had agreed to reference a supplier, I2C, following various advantages including a pleasure trip. The Paris Court of Appeal confirmed the decision of the first judges, stressing that it (...)

Jean-Louis Fourgoux Change of Co-contractor: The French Supreme Court considers that the reorganisation of the purchasing structures of the various companies of the same distribution group does not necessarily entail a substantial modification characterising a brutal rupture of relations (Comptoir d’achat agricole / Verallia)

31 March 2021 31

Saint Gobain emballage, which has become Verallia France ["Verallia"], specialises in the manufacture of glass bottles intended in particular for the wine sector, and since 1990 has entrusted the distribution of its products to the agricultural cooperatives Alsace Appro and Appro du Piémont. (...)

Jean-Louis Fourgoux Evidence of services rendered: The Paris Court of Appeal considers that unjustified commercial cooperation invoices cannot prove a claim (Conforama France / Industria Conciaria Volturno, High Point Real Estate)

30 March 2021 29

The Paris Court of Appeal ruled that failure to comply with the transparency rules imposed by Articles L. 441-3 et seq. 441-3 et seq. of the Commercial Code in the version applicable to the facts of the dispute, constitutes not only a criminal offence, but also a violation of the provisions of (...)

Jean-Louis Fourgoux Resale at a loss: The Unfair Trade Practices Review Commission considers that the increase in the resale at a loss threshold provided for by Order No. 2018-1128 of December 12, 2018 (increase of 10 in the SRP) only concerns resales to consumers

18 March 2021 75

A law firm asked the CEPC for its opinion on the scope of application of the increase of the resale at loss threshold resulting from the ordinance n° 2018-1128 of 12 December 2018 taken in application of the EGALIM law. The CEPC considers that the increase of the resale at a loss threshold (...)

Jean-Louis Fourgoux Significant imbalance: The French Competition Authority decides that judges must verify whether the commercial conditions are the result of a genuine negotiation (MJA Financière d’Aguesseau / AMC DCF)

3 March 2021 105

This very rich judgment, which rules on both significant imbalance and the reality of services rendered, should be read with care, as it seems to open the door to a stricter approach to the notion of negotiation allowing the failure of significant imbalance. In this case, a supplier of the (...)

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

3 March 2021 22

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 (...)

Laurence Idot, Guillaume Daieff, Isabelle de Silva, Linda Arcelin, Mathilde Boudou, Jean-Louis Fourgoux, Yann Utzschneider, Anouk Clamens, Christophe Lemaire DDADUE bill: Simple adaptation or reform of French competition law?

February 2021 2284

This set of articles is dedicated to the changes made to the French competition law by the DDADUE bill of December 3, 2020. Both the law on restrictive competition practices and the law on anti-competitive practices are affected by the necessary transposition of EU directives (directives (...)

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 57

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 67

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 (...)

Alexandre Lacresse Admissibility: The General Court of the European Union confirms the decision of the European Commission to reject a complaint for lack of interest of the European Union (Fakro)

16 December 2020 138

In this case, the applicant, a Polish company manufacturing windows and roofing accessories, had initially lodged a complaint with the Polish competition authority. However, that authority declared that it had no jurisdiction. Considering that the practices complained of had a European (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal finds that end of year rebates based on pre-sales are unbalanced after rejecting a claim based on an alleged abuse of economic dependence (Isocalor / Dalkia)

25 November 2020 311

Since 2006, Dalkia has had a commercial relationship with Isocalor Energie, a company specialising in HVAC engineering and thermal insulation. In 2017, revenue was reduced and Isocalor brought an action against Dalkia for abusively exploiting a situation of economic dependence, partially (...)

Jean-Louis Fourgoux Economic dependance: The French Supreme Court confirms that a business relationship that is interrupted and then resumed at a later date cannot, for the calculation of seniority, be traced back to its origin and that the termination without notice must not take into account the economic dependence that results from the partner’s liability (Apodiss)

18 November 2020 124

The Apodiss company was a service provider for the Cardinal Group in the real estate sector. This collaboration resulted in the creation of Cardinal Consulting, in which Apodiss took a 33% stake. In October 2005, a service agreement was concluded between the Cardinal Group and Apodiss, under (...)

Jean-Louis Fourgoux Disproportionate benefit: The Paris Court of Appeal, after having declared that the prohibition of restrictive competition practices was applicable to subcontracts, refuses to control the price negotiated between the parties pursuant to article L.442-6 I 1° C. com. (O.C. Residences / Le ministre de l’Économie et des finances)

4 November 2020 89

The Paris Court of Appeal has made a surprising decision in a dispute between the company OC Résidences, a builder of individual houses, and the Minister of the Economy. One of its subcontractors, 3 J Charpentes, had complained to the Competition Directorate about the practices of its principal, (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court decides that a wrongful termination of a commercial relationship for failure to comply with the notice period must be compensated by the granting of the gross margin lost, regardless of the actual change in the victim’s sales after the end of the relationship (Eurolia Europe liquide agro)

14 October 2020 105

The Court of Cassation decides that a wrongful termination of a commercial relationship for failure to comply with the notice period must be compensated by the granting of the gross margin lost, regardless of the actual change in the victim’s turnover after the end of the relationship. As of (...)

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 135

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 (...)

Alexandre Lacresse, Barbara Monti Inspections: The General Court of the European Union partially annuls the inspection decisions of the European Commission due to insufficiently strong evidence leading to the suspicion of the existence of a cartel (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)

5 October 2020 99

After three particularly developed judgments, the Court of First Instance returned to the Commission’s powers of inspection, the degree of formalism expected in relation to the evidence on which an inspection decision is based, and the protection of the material seized and the data copied under (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court decides that the compensation for damages resulting from sudden breach must not be made taking into account the gross margin but the margin on variable costs (Alteo Gardanne)

30 September 2020 189

As of June 1, 1998, Aluminium Pechiney concluded several industrial cleaning contracts with Daniel. Alteo continued this relationship in place of Pechiney until 2 September 2013, when it informed Daniel of the launch of a bidding procedure for a start date in January 2014. Daniel considered (...)

Alexandre Lacresse Confidential information: The European Commission publishes a Notice to national courts to deal with the disclosure of confidential information in private enforcement of competition law

22 July 2020 129

As a follow-up to Directive 2014/104 on damages actions for anti-competitive practices, the European Commission adopted a Notice on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law. Preceded by a public consultation, (...)

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 155

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) (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court confirms the nullity of the parity clauses and the last available room in the participation contracts for a property offered by the platform to hoteliers, as contravening the prohibition of clauses providing for automatic alignment with the conditions offered to competitors, but refuses to regard this as a significant imbalance (Expedia)

8 July 2020 281

In a much-awaited decision, the Court of Cassation ruled in the Expédia online hotel reservation platform case, and in particular on the various points raised by the Paris Court of Appeal’s decision, which had annulled the parity clauses and the last available room in a didactic decision that was (...)

Jean-Louis Fourgoux Reform: The French Parliament examines a bill that significantly reforms the law of restrictive competition practices in the distribution sector

30 June 2020 311

Following the publication of the report of the committee of inquiry and using the economic crisis and the price war announced by some retailers as a pretext, a group of majority MEPs aims to "put more ethics in the definition of the fair price between the agricultural and non-agricultural (...)

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 210

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 (...)

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 163

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 105

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 (...)

Alexandre Lacresse Statement of objections: The Court of Justice of the European Union rules there is no right to access to the replies given to the statement of objections by the addressees of that statement (Verwaltungs)

14 May 2020 125

In the so-called ’electrical cables’ case, the Commission had, inter alia, penalised the applicants (Eur.Comm., Dec. C(2014) 2139 final, 2 April 2014, Case AT.39610 - Electrical cables - Commission Decision C(2014) 2139 final, 2 April 2014).), which were subsequently dismissed by the Court of (...)

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 152

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 (...)

Alexandre Lacresse Commitments: The General Advocate Pitruzzella suggests to the Court of Justice of the European Union to rules that the European Commission shall take into account third parties’ rights when commitments rendered legally binding implies the termination of contracts involving third parties (Canal +)

7 May 2020 127

In this case, the applicant contests the Commission’s decision making binding commitments offered to it by a multinational producer of audiovisual content in order to meet competition concerns arising from contractual clauses guaranteeing it and a television broadcaster a licence of absolute (...)

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 93

“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 103

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 74

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 (...)

Alexandre Lacresse, Barbara Monti Inadmissibility: The General Court of the European Union upholds the decision of the European Commission rejecting a complaint when certain practices of which have already been dealt with by a National Competition Authority (LL-Carpenter)

12 March 2020 141

Ten years of proceedings is how long it took to foresee the closure of this case, which allows the Commission to reconsider its powers to reject complaints where, under Article 13(2) of Regulation 1/2003, a complaint is ’already being dealt with by another competition authority’. It all began 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 145

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 (...)

Jean-Louis Fourgoux Selling at lost: The French Government commits to maintain the mechanism supervising promotions and the increase of the threshold for selling at a loss applicable to food products (Bill for the acceleration and simplification of the public action)

6 March 2020 109

Article 3 of the Ordinance of 12 December 2018, taken in application of the so-called Egalim law (2018-938 of 30 October 2018 for balanced trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all), provides since 1 January 2019 that the (...)

Jean-Louis Fourgoux Limitation period: The French Supreme Court rules that the statute of limitations for an action for payment runs from the moment when the service ordered has been performed, and not from the date of the invoice (Hydroc)

26 February 2020 120

A small reminder on the relationship between prescription and billing rules is given by the Court of Cassation in a ruling that will be published in the Bulletin. The facts were simple, a Hydroc company carried out three studies in March 2008 and October 2009 following quotes sent to its (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that the judges cannot substitute the basis for wrongful breach of contract with the basis for sudden termination of established commercial relationship, which is the jurisdiction of specialized courts (Rector Lesage / De Rijke Alsace)

29 January 2020 128

A non-specialized court shall hear a claim for damages arising from the termination of a transport contract for a fixed period of two years, renewable by tacit agreement, before the end of the contract with immediate effect. The Court of Appeal had held that the commercial relationship had (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that the recruitment by a client of an employee of its service provider does not dispense with giving notice proportionate to the duration of the business relationship (Sum / Essilor)

29 January 2020 102

This judgment confirms the Court of Cassation’s practical approach to the conditions under which a party may be exempted from giving notice proportionate to the duration of the commercial relations. In the present case, the company The machining and metallization department (Sum) had been doing (...)

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 114

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 (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court decides that pursuant to Article L 442-6 I 2° of the French Commercial Code, a commercial partner is a party with whom the other party commits, or is about to commit, to a commercial relationship without any other condition, either in terms of duration or stability of the commercial relationship (Cometik-Locam)

15 January 2020 356

The significant imbalance in its initial wording and in the wording applicable since the Order of 24 April 2019 presupposes a precondition: the submission of one partner by the other contracting party to this imbalance. Indeed, while the Order has removed the reference to the "trading partner", (...)

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 140

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 (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal considers that if the economic crisis can constitute a case of force majeure, it must still be proven to dispense a written notice (Carrefour France / Ministre Économie and Coopérative Légumière Crimart)

8 January 2020 137

The Paris Court of Appeal upheld the conviction of Carrefour, which had severed commercial relations with one of its suppliers without warning. A cooperative had been supplying ED and then Dia within the Carrefour group since 1996 after various legal restructurings. In 2014, the cooperative was (...)

Jean-Louis Fourgoux Commercial transparency: The French Government publishes the decree enumerating the list of large consumption products that must be the subject of detailed negotiation and contract, pursuant to Article L. 441-4 of the French Commercial Code (Décret no 2019-1413)

19 December 2019 114

After having put the project out to consultation, the Minister for the Economy published, in the JORF of 21 December 2019, Decree No 2019-1413 of 19 December 2019 relating to the list of consumer products mentioned in Article L. 441-4 C. com. This decree comes into force on 22 December 2019 in (...)

Jean-Louis Fourgoux Sudden break: The French Supreme Court decides that the actualisation of the damage caused by the termination of commercial relations can only be the legal interest rate and not the rate applicable in the event of late payment of invoices provided for by the former Article L. 441-6 of the Commercial Code (Externis / Dinadis)

18 December 2019 163

In a judgment on the abrupt termination of commercial relations between a logistics service provider (Dinadis) and its principal (Externis), the Paris Court of Appeal upheld the application for judgment on the ground that the notice period was insufficient and awarded Dinadis compensation with (...)

Jean-Louis Fourgoux Sudden break: The French Supreme Court approves the judges declaring inadmissible an action for compensation for the termination of a commercial relationship brought by several plaintiffs and based indiscriminately on contractual and tortious liability (Expertises-Rarecars / Artcurial)

4 December 2019 127

An expert in car valuations worked with the auction company Artcurial. After founding a Rarecars company, he continued the relationship with this auctioneer’s company through him. After seven years of collaboration, Artcurial decided to terminate the contract. The expert first tries to have the (...)

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 166

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 (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court considers that in order for a contract clause to be considered as unbalanced, the proof of both the submission and the constraint imposed must first be provided (ITM Alimentaire International)

20 November 2019 207

Jean-Louis Fourgoux Sanctions: The French Administration is increasingly condemning companies’ overdue payments (Colis privé, GEFCO, EDF, SFR)

18 November 2019 232

A fine of 1 500 000 euros has been imposed by the Provence-Alpes-Côte d’Azur regional directorate of companies, competition, consumption, labour and employment (DIRECCTE) on the company SAS Colis Privé for late payment of its suppliers’ invoices. A fine of 1 600 000 euros has been imposed by the (...)

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 144

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 205

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 (...)

Alexandre Lacresse Whistleblowing procedures: The European Parliament and the Council adopt a directive aimed at ensuring a minimum level of protection for those who report infringements of European Union law

23 October 2019 135

Directive 2019/1937 , which entered into force on 16 December 2019, establishes common minimum standards for the protection of persons who report breaches of EU law (Article 2). To date, only ten Member States have comprehensive legislation on the protection of whistleblowers. A wide range of (...)

Alexandre Lacresse, Barbara Monti Interim measures: The European Commission for the first time imposes interim measures in TV and modem chipset markets since the entry into force of Regulation 1/2003 (Broadcom)

16 October 2019 158

It took 18 years for the European Commission to issue provisional measures on the basis of Article 8 of Regulation No 1/2003. Indeed, the last time the Commission imposed interim measures was in 2001 in the IMS Health case (EC Commission, press release IP/01/941 of 3 July 2001, The Commission (...)

Alexandre Lacresse, Barbara Monti Inadmissibility: The General Court of the European Union considers inadmissible an action based on general information which does not make it possible to establish that the State aid decision placed the applicant at a competitive disadvantage (Opere Pie d’Onigo)

24 September 2019 150

On 24 September 2019, the Court of First Instance of the European Union made an order dismissing as inadmissible the action brought by a non-profit-making public body, by reference to the Montessori case-law (CJEU, 6 Nov. 2018, Scuola Elementare Maria Montessori, cases C-622/16 P to C-624/16 P, (...)

Jean-Louis Fourgoux Sanction: The Paris Commercial Court partially grants the requests of the Minister of Economy and sentences two companies of the same group operating an international platform to 4 million euros for unbalanced contractual clauses binding one of them to third party sellers (Amazon)

2 September 2019 202

After an investigation initiated in 2015, the French Minister of the Economy brought a quasi-tort liability action against three companies of the Amazon Service Europe group, Amazon Payments Europe and Amazon France Services (APE, ASE AND AFS) for practices observed during commercial relations (...)

Jean-Louis Fourgoux French Polynesia: The Polynesian Competition Authority imposes a €2 Million fine (FCP 235 Million) to a distributor for imposing a discriminatory and excessive pricing on his beverage suppliers for the provision of refrigerated exposure (Wane)

22 August 2019 142

Beverage suppliers complained about the new financial conditions adopted by the Wane group from 2015 to be remunerated for the installation of beverages in its refrigerated cabinets. The monthly billing per door was significantly higher than in the past. The Wane group, which had several (...)

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 150

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 (...)

Alexandre Lacresse, Barbara Monti Private enforcement: The Court of Justice of the European Union recognises that the indirect victim of a cartel may bring an action before the courts from his domicile even if there is no contractual relationship with the defendant company (Tibor-Trans)

29 July 2019 495

Each request for reparation has its own specificity. Here, the absence of a direct contractual link between the victim undertaking and the defendant undertaking allows the Court of Justice of the European Union once again to consider the concept of the ’place where the harmful event occurred or (...)

Alexandre Lacresse, Barbara Monti Annulment: The Court of Justice of the European Union confirms, for lack of reasons, the annulment of the fine imposed on an undertaking for its role as facilitator of a cartel (Icap)

10 July 2019 174

Judgments recalling the European Commission’s obligation to state reasons in competition matters are legion. One recalls in particular the recent UPS judgment, in which the Court confirmed the annulment of the Commission’s decision prohibiting a merger on the grounds that the parties had not been (...)

Jean-Louis Fourgoux Buying agent: The Paris Court of Appeal requires a laboratory to communicate its general terms and conditions of sales corresponding to the category of pharmacists to a purchasing group company (SRA) set up by pharmacists (Pyxis Pharma / Cooper)

4 July 2019 274

It is a long battle that seems to be turning to the advantage of dispensing pharmacists who had opted for the SRA pursuant to Article D. 5125-24-1 of the CSP. The SRA is unique in that it is made up of dispensing pharmacists and acts on behalf of member pharmacies. In the present case Pixis (...)

Jean-Louis Fourgoux Sudden break: The French Supreme Court rules that in the event of a persistent disagreement on the purchase price of a wine vintage, the termination may not be attributed to either party (Château Baret)

3 July 2019 157

The species was quite original and deserves a little explanation. A castle in the Bordeaux region (Chateau Baret) had been in a commercial relationship with a merchant for about thirty years without any reason to change it. The 2009 vintage will be a casus belli between the parties. The (...)

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 132

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 (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal rules that the general terms and conditions of purchase, which systematically take precedence over the general terms and conditions of sale and impose discount conditions without consideration, can be qualified as a significant imbalance within the meaning of the French Commercial Code (GEEPF)

12 June 2019 151

This judgment is very significant because it was handed down in a relationship between a manufacturer and its suppliers and not between a distributor and its supplier. In the present case, GE Energy Product France (GE EPF) is a major manufacturer of medium and large gas turbines which was 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 179

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 (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court refuses to consider that the contractual failure to submit accounts in the performance of an affiliation contract constitutes a circumstance allowing the contract to be terminated without notice (Transgourmet / Slad)

5 June 2019 153

The transparency of negotiations in distribution networks is a source of major disputes sometimes linked to the notion of mandate between the network head and the members. The Court of Cassation in a dispute between a Bricorama franchisor and its franchisee approved the Paris Court of Appeals (...)

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 162

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 223

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.), (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court decides that the commercial relationship must be understood as the contractual links existing between the companies, without taking into account the notion of parent and subsidiary companies (Rotosiam Batfim / Carrefour)

7 May 2019 190

This case is quite revealing of the difficulty of including in the termination of commercial relations the notion of industrial relations within a group. In the first years of application of the text, the case law was fairly flexible with the victims and accepted that they could include in the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court decides that the continuation of discussions and negotiations for the renewal of an agent’s contract does not prevent the notification of the termination (Garage Jean Charles Nacci / Auto diffusion Saint Etienne)

7 May 2019 190

The case involved a former Renault agent and his counsel, who himself had succeeded a Renault subsidiary. Indeed, in 2009 Renault had sold a branch to an independent dealer who had retained the Renault agents, the Renault agent and Dacia in place since 1980 in the contract territory. The new (...)

Jean-Louis Fourgoux Reform: The French government publishes an order amending Title IV of Book IV of the French Commercial Code simplifying the law on unfair commercial practices in France while maintaining a close framework for contractual relationships between professionals, as well as the texts of compliance and consistency (Egalim law)

24 April 2019 253

For a complete and detailed study of the reform, read also the proceedings of the conference "The rewriting of Title IV of Book IV of the Commercial Code", organised on 4 April 2019 in Nanterre, under the direction of A.-S. Choné-Grimaldi, Revue ConcurrencesN° 3-2019, www.concurrences.com. (...)

Jean-Louis Fourgoux Black clauses: The European Parliament and the Council publish the directive establishing a list of black and grey clauses in the food chain

17 April 2019 448

The directive on unfair commercial practices in business-to-business relations within the food supply chain was adopted after much hesitation and multiple phases of negotiations (for the historical Emilie Prouzet at the conference "La réécriture du titre IV du livre IV du code de commerce", (...)

Alexandre Lacresse, Barbara Monti Rights of defence: The Court of Justice of the European Union rules that the ne bis in idem principle does not apply to a decision of a national competition authority imposing two fines through the parallel application of national and Union law (Powszechny Zakład Ubezpieczeń na Życie)

3 April 2019 295

At the beginning of this preliminary ruling case, a Polish company was sanctioned by the national competition authority for having abused its dominant position on the market for group life insurance, both under national law for the period 2001-2007 and under EU competition rules, but only for (...)

Alexandre Lacresse, Barbara Monti Period for appeal: The Court of Justice of the European Union confirms that an omission which does not affect the understanding of the reasons for a decision does not preclude the application of the two-month period for appeal (Eco-Bat Technologies)

21 March 2019 128

In the present case, the Court of First Instance was criticised for dismissing as inadmissible the action brought against a corrective decision, even though the Commission had omitted in its initial decision information concerning the determination of the basic amount of the fine to be imposed (...)

Alexandre Lacresse, Barbara Monti Digitisation: The European Commission launches a new online tool for cartel leniency and settlements and non-cartel cooperation (eLeniency)

19 March 2019 190

Digitisation does not only affect companies. On 19 March 2019, the Commission announced a new secure online tool called eLeniency, which is supposed to guarantee both confidentiality and legal protection, similar to the current oral procedure. Be careful not to mislead, the tool is used in (...)

Jean-Louis Fourgoux Proposal for a directive: The European Parliament and the Council are about to definitively adopt the European Commission’s proposal for a directive establishing a list of black and grey clauses in business-to-business relationships

12 March 2019 362

The proposal for a directive on unfair commercial practices in business-to-business relations in the food supply chain presented on 12 April 2018 included a number of prohibited clauses (Concurrences n° 3-2018, Art. n°87606, pp. 119-120 J.-L. F.) During the trialogue negotiations, an agreement (...)

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 165

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 137

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 156

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 271

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° (...)

Alexandre Lacresse, Barbara Monti Access to file: The Court of Justice of the European Union confirms the annulment of the European Commission’s decision prohibiting a merger because of the failure to communicate to the parties the econometric model on which that decision was based (UPS, TNT)

16 January 2019 241

In the field of mergers, there have been few judgments annulling Commission decisions based on violation of the rights of defence. The latest was in 2002, when the Court of First Instance ruled that the lack of clarity and precision of certain Commission objections infringed the rights of (...)

Alexandre Lacresse, Barbara Monti Reasonable time: The Court of Justice of the European Union annuls several judgments of the General Court of the European Union on the ground of lack of sufficiently direct causal link between the violation of reasonable time for adjudication and the loss suffered following payment of bank guarantee fees during the period beyond this period (Gascogne ; Kendrion ; ASPLA, Amando Álvarez)

13 December 2018 320

The judgments of the ECJ under chronicle bring to a close the judicial saga dating back to February 2006, when the companies of the Gascogne group, Kendrion, ASPLA and Armando Álvarez brought an action before the Court of First Instance to have the Commission’s decision annulled, penalising them (...)

Christophe Lemaire, Alexandre Lacresse, Julie Bousin Competition policy: The European Parliament and the Council adopt the ECN+ Directive which reinforces the institutional and procedural convergence within the European Competition Network (Directive 2019/1)

11 December 2018 426

One recalls that about two years ago, the Commission made public a proposal for a directive aimed at providing NCAs with the means to implement the competition rules more effectively (see Ch. Lemaire, ECN: The European Commission makes public a proposal for a directive aimed at providing NCAs (...)

Jean-Louis Fourgoux Charity: The Paris Court of Appeal rules that a non-profit-making association may exercise a paid activity of supply service and then be sued before specialised courts in case of sudden breach of commercial relationships (CNSUE / SEA TPI)

30 November 2018 107

The Comité national de sécurité des usagers (CNSUE) is an association under the law of 1901, approved by the public authorities, which issues electricians with certificates of conformity for electrical installations. After having outsourced its IT service to a service provider, the Committee (...)

Jean-Louis Fourgoux Civil fine: The French Constitutional Council decides that the significant imbalance prohibited by Article L. 442-6 of the French Commercial Code is in conformity with the constitution even if it allows the judicial control of the prices and the imposition of a civil fine (Interdis / Minister Economy)

30 November 2018 175

See also this issue, under "Practices", C. Grimaldi, Price Control in Distribution Contracts: Controlling the Evolution or the Level of Prices? Opponents of the significant imbalance introduced in the Commercial Code in 2008 had placed high hopes on the QPC transmitted by the Court of (...)

Jean-Louis Fourgoux Penalties for delay: The French Supreme Court rules that provisions regarding payment period are only applicable to firms in business (AJ construction)

28 November 2018 127

In a somewhat original case, the fund judges had ordered the beneficiary of the transferred contract to pay an indemnity but had not attached to this amount the penalty provided for by the C. com. The Court of Cassation refused to allow the intermediary’s appeal because "the provisions of (...)

Jean-Louis Fourgoux Reform: The French Government establishes a draft order amending Title IV of Book IV of the French Commercial Code aiming to simplify the law on unfair commercial practices in France while maintaining a close framework for business-to-business relationships, which will be analysed by the French Supreme Administrative Court (Law n°2018-938)

30 October 2018 292

The Order of 1 December 1986, by repealing the Orders of 30 June 1945, led to a profound overhaul of competition law, on the one hand, by establishing the principle of freedom of prices and competition and entrusting the Competition Council with the task of sanctioning anti-competitive (...)

Alexandre Lacresse Jurisdiction clause: The Court of Justice of the European Union admits the application of a jurisdiction clause to disputes arising from an infringement of Article 102 TFEU even if they are not specially covered by the clause (Apple Sales International...)

24 October 2018 210

In the present case, in 2002, a supplier had concluded an authorised reseller agreement whereby its partner undertook to distribute its products on a virtually exclusive basis. That agreement contained a clause conferring ’general’ jurisdiction on the Irish courts. In 2012, the Distributor sued (...)

Jean-Louis Fourgoux Charity: The French Supreme Court rules that relationships between a charity and one of its previous member are not subject to the prohibition of a significant imbalance (Association commerçant / Flunch)

11 October 2018 81

Shopping centre leases often require the lessee to join a merchants’ association, the purpose of which is to promote the centre. In order to challenge certain clauses of the statutes, lessees have had the idea of having certain statutory clauses invalidated on the grounds of freedom of (...)

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 375

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, (...)

Jean-Louis Fourgoux Increase: The French Parliament adopts in last reading the Law ’agriculture and food’ authorising the French Government to adopts by the way of ordonnance a 10% increase of the sale at loss threshold as well as to frame food products discounts (Legislative proposal n°627)

2 October 2018 111

Article 15 of the Act empowers the Government to take by ordinance, within four months of the publication of this Act, any measure falling within the scope of the Act and falling within the scope of the Com. com. necessary to provide for a period of two years : To apply a coefficient equal to (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court decides to transmit to the constitutional council a priority question of constitutionality relating to article L 442-6, 2 of the French Commercial Code prohibiting significant imbalance (Minister of Economy / Interdis & Carrefour)

27 September 2018 132

In a dispute between them and the Minister of the Economy, Interdis and Carrefour had convinced the Paris Commercial Court to ask two priority questions of constitutionality: one on the significant imbalance (Art. L 442-6 2° C com.) and the other on the annual agreements (Art. L 441-7) (see "The (...)

Jean-Louis Fourgoux Integral repayment: The French Supreme Court decides that commercial cooperation services for services that suppliers assume themselves or that fictitious services must be reimbursed pursuant to Article L. 442-6 1° of the French Commercial Code (Système U / Minister of Economy)

26 September 2018 138

The Commercial Chamber of the Paris Court of Appeal had issued a ruling on the punishment of false commercial cooperation and had sentenced a distributor (Système U) at the request of the Minister of the Economy to reimburse the full amount of the commercial cooperation it had received from (...)

Alexandre Lacresse Unlimited jurisdiction: The Court of Justice of the European Union upholds the judicial review of the General Court of the European Union on certain elements of the cartel and criticizes, for the same reason, the latter’s proportionality review on the amount of the fine (Infineon Technologies)

26 September 2018 256

That case raised mainly two procedural questions: the first, on the intensity of the review of legality which the Court of First Instance may exercise over Commission decisions on anti-competitive practices and, the second, on the assessment by the Court of First Instance of the amount of the (...)

Christophe Lemaire, Jocelyn Goubet Commitments: The French Supreme Court clarifies the method of assessment in the case of a breach of commitments submitted before the French Competition Authority (Les Indépendants)

26 September 2018 197

While sanction decisions for non-compliance with commitments in the area of anti-competitive practices are relatively rare (for a recent review, see Concurrences No. 4-2018, obs. Ch. Lemaire and H. Fricaudet, p. 173), the year 2018 continues to fuel the debate. Indeed, after the recent sanction (...)

Alexandre Lacresse Lack of Union interest: The Court of Justice of the European Union confirms the margin of discretion left to the European Commission in the assessment of complaints referred to it (Agria Polska...)

20 September 2018 105

In this case, several Polish companies complained to the Court of First Instance that it had upheld the decision rejecting their complaint, in the absence of any interest for the European Union in continuing the practices complained of. In the present case, they had previously accused thirteen (...)

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 137

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 (...)

Jean-Louis Fourgoux Arbitration clause: The Paris Court of Appeal decides that the possible significant imbalance of a commercial relationship has no effect on the validity of an arbitration clause because of the autonomy of the clause in relation to the contract that contains it (Subway)

11 September 2018 221

The Paris Court of Appeal has applied the established case law limiting the challenge to the validity of an arbitration clause in a case that is nevertheless original in the context of the review of the order for enforcement of an arbitral award. A Subway franchisee in Narbonne was opposed to (...)

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 140

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, (...)

Alexandre Lacresse Legitimate interest: The Court of Justice of the European Union considers that the European Commission does not have to prove a legitimate interest in finding a past infringement when it intends to impose a fine or order the cessation of the infringement (Orange Polska)

25 July 2018 186

In this case, the Commission found that the applicant held a dominant position on several markets and considered that it had abused its dominant position on certain wholesale markets, with the aim of protecting its position on the retail market by developing a strategy to limit competition at (...)

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 262

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 (...)

Alexandre Lacresse Damage: The Court of Justice of the European Union rules that losses suffered as a result of predatory pricing may constitute damage which establishes the jurisdiction of the courts of the place where it has materialised for the purpose of an action for compensation (flyLAL-Lithuanian Airlines)

5 July 2018 800

This case raises the very interesting question of the fate of an action for compensation for anti-competitive damage in an international context, in particular in that it asks about the ’place where the harmful event occurred’ within the meaning of the 1968 Brussels Convention on jurisdiction and (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Commercial Court grants a request for the transmission of a « QPC » relating to Articles L. 442-6 and L. 441-7 of the French Commercial Code (Carrefour)

2 July 2018 169

The Minister of the Economy has referred a request to the Paris Commercial Court, under Article L 442-6 I 2° prohibiting significant imbalance, for a ruling against the companies in the Carrefour group for attempting to impose an additional distribution discount as a precondition for (...)

Jean-Louis Fourgoux Large retail stores: The French Parliament examines a legislative proposal aiming to protect city-centre small shops against the excessive establishment of large retail stores (Legislative proposal n°1115)

27 June 2018 81

The parliament is examining a bill aimed at strengthening control over the establishment of large supermarkets. Article 1 reduces the threshold of sales area to 400 m² as opposed to the current 1 000 m², above which authorisation is required for any creation or commercial extension in the food (...)

Jean-Louis Fourgoux Billing: The French Supreme Court rules that, pursuant to Article L. 441-6 of the French Commercial Code, a lawyer in relation with a professional client must receive late penalties and a lump sum indemnity for recovery costs (Cabinet Patrick Desbordes ; Mesa Industries)

3 May 2018 130

These two judgments, handed down on the same day and promised for publication, deal with the relationship between a lawyer and his professional clients and confirm that the ordinary law on payment periods also applies to regulated professions. Both cases involved disputes between a lawyer and (...)

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 172

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 (...)

Daniel Fasquelle, Jean-Louis Fourgoux Daniel Fasquelle (French National Assembly): A professor’s take of lawmaking

May 2018 645

Interview conducted by Jean-Louis Fourgoux, Partner, Fidal, Paris. Daniel Fasquelle, you defended a doctoral thesis on the rule of reason in European competition law before becoming a professor of law and, since 2007, Member of Parliament for Pas-de-Calais. You are also a holder of the CAPA. (...)

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 166

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, (...)

Jean-Louis Fourgoux Proposal for a directive: The European Parliament and the Council adopt a proposal for a directive in business-to-business relationships in the food supply chain aiming to prohibit certain unfair practices and to create national public authorities to investigate complaints

12 April 2018 247

French law on practices restricting competition is being emulated. France is often singled out for its abundant regulations designed to preserve the precarious balance between suppliers and distributors. This trend is not about to be reversed, particularly in the agricultural sector. The French (...)

Jean-Louis Fourgoux Specialized jurisdictions: The French Supreme Court raises the lack of jurisdiction of the Basse Terre Court of Appeal and of the Basse Terre Commercial Court to rule on Article L. 442-6 of the French Commercial Code (Immobilière de Saint-Barthélemy)

21 March 2018 73

The Court of Cassation censors on a plea raised ex officio the courts of appeal and the non-specialized commercial courts which rule on claims falling within the limitation of jurisdiction. The Commercial Chamber points out in this case that the Basse-Terre Court, which was itself devoid of any (...)

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 122

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 125

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 136

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 124

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). (...)

Alexandre Lacresse Value of sales: The Court of Justice of the European Union rejects claims brought against judgements of the General Court of the European Union which confirmed the European Commission’s decisions in the international air freight forwarding services cartel (Kühne ; Nagel International ; Schenker ; Deutsche Bahn ; Panalpina World Transport)

1 February 2018 194

As these cases have already been the subject of a commentary in the Cartel Chronicle in this issue, we shall confine ourselves to indicating that the Court has been called upon to rule, without however having to go back over its established case-law, on the rules applicable to the calculation (...)

Jean-Louis Fourgoux Payment period: The DGCCRF sanctions more and more heavily the failure to respect payment deadlines

17 January 2018 260

Since the law on the modernisation of the economy, known as the LME of 4 August 2008, the payment periods agreed between the parties to a contract between professionals have been capped. These contracts may not provide for payment periods that exceed the legal ceilings: 60 days net from the (...)

Jean-Louis Fourgoux Submission: The Paris Court of Appeal refuses to condemn contractual clauses of a major distributor in the absence of submission even in the presence of a significant imbalance (ITM Alimentaire International)

20 December 2017 201

Article L. 442-6-I-2° C. com. which prohibits "subjecting or attempting to subject the trading partner to obligations a significant imbalance" could be presented as a safeguard against the purchasing power of mass distribution. The first decisions of the Paris Court of Appeal, a specialized (...)

Alexandre Lacresse Challengeable act: The Court of Justice of the European Union considers the formal notice by which the European Commission seeks payment of the fine imposed by the General Court of the European Union in the exercise of its full jurisdiction to be unchallengeable (Trioplast Industrier)

20 December 2017 218

This case is a further opportunity to consider the concept of a challengeable act in Union law. It should be noted from the outset that it is similar to the Total and Elf Aquitaine case (CJEU, 19 January 2017, Commission v Total and Elf Aquitaine, Case C-351/15 P; this Chronicle, Concurrences (...)

Alexandre Lacresse Commitments: The Court of Justice of the European Union confirms that national courts can rule on the legality of conduct covered by undertakings made mandatory by the European Commission (Gasorba)

23 November 2017 225

In this case, the question was whether national courts, or even national authorities, can examine the conformity with the competition rules of facts which have been previously submitted to the Commission for assessment and which have been the subject of a commitment decision by the Commission. (...)

Jean-Louis Fourgoux Compatibility: The French Supreme Court, through its commercial and criminal chambers, dismisses the incompatibility of the ban on resale at a loss with the Directive on unfair commercial practices against consumers (Alliance optique / Club opticlibre ; PM Dis et Central’Vet)

22 November 2017 285

The first case concerns Club Opticlibre, a central purchasing body in the optical sector, bringing together independent opticians, which acquires products in order to resell them to its members on the basis of the commercial terms negotiated with suppliers, and Alliance Optique, carrying on the (...)

Jean-Louis Fourgoux Penalty for delay: The French Supreme Court reminds that penalties for payment delays provided for by Article L. 441-6 of the French Commercial Code are due ipso jure even if general agreements or contracts are silent on this point (EEVML / Vert Limousin ; Face Languedoc Roussillon)

22 November 2017 207

The identical double disciplinary censure by the Court of Cassation of the Courts of Appeal of Versailles and Montpellier in less than a month is indicative of a certain ignorance by the judges of the merits of Article L. 441-6 C. com... The facts were quite similar in both cases. In the first (...)

Alexandre Lacresse Partial annulment : The Court of Justice of the European Union considers that the failure to state reasons raised of its own by the General Court of the European Union cannot lead to the annulment of an act beyond what is requested from it (British Airways)

14 November 2017 261

This case raised a question of pure procedure before the courts of the Union, which goes beyond the scope of competition matters alone. Since the Court of First Instance, of its own motion, found that the statement of reasons which vitiated the Commission’s decision of 2010 in the air cargo case (...)

Jean-Louis Fourgoux Absence of brutal termination: The French Supreme Court considers that the momentary decline in orders due to a crisis suffered by the client can not be described as a sudden termination and that the price increase claimed by the service provider to compensate for the decrease in volume may justify a break (Esquiss / Yves Dorsey)

8 November 2017 142

This case marks the confirmation of the Caterpillar-CMI jurisprudence (Cass. com., Feb. 12, 2013, J-L. F), which states that a sudden break in the market presupposes a decision by the author and not a simple passing on of a market downturn, but goes further by specifying that the provider who (...)

Jean-Louis Fourgoux Burden of proof: The French Supreme Court decides that the person claiming to be the victim of a significant imbalance due to the refusal to revalue the tariff by the distributor customer must prove this by providing information on the composition of its costs (Jonction 3B / Alinéa)

25 October 2017 106

This judgment underlines the complexity of business life and the delicate borderline between tariff negotiations and practices restricting competition. The company Jonction 3B was the supplier of textile articles to the company Alinéa France (the company Alinéa), since July 29, 1999. In May (...)

Alexandre Lacresse Hearing : The Court of Justice of the European Union considers that national competition authorities must be able to present their views on the substance of a case before the European Commission adopts its decision (Feralpi ; Ferriera ; Riva Fire)

21 September 2017 170

In that case, the Commission had issued a decision penalising the applicants for their participation in a cartel in the reinforcing bar production sector. That decision, based on Article 65 of the ECSC Treaty and taken in accordance with the procedural rules specific to that provision, was (...)

Jean-Louis Fourgoux Invoicing: The French Supreme Court decides pursuant to Article L 441-3 of the Commercial Code that the invoice of a commissionaire does not necessarily have to show the margin on its subcontractors (CAFOM Distribution / Somatrans)

20 September 2017 171

Several companies of the Cafom Group, which operates furniture distribution stores under various trade names, have entrusted the transport of goods for more than 20 years to a freight forwarder (the Somatrans company). When they discovered that Somatrans had invoiced its subcontractors for (...)

Alexandre Lacresse Statement of objections: The Court of Justice of the European Union upholds the European Commission’s procedural choice to address the statement of objections only to the parent companies and not to their joint venture (LG Electronics et Koninklijke Philips Electronics)

14 September 2017 243

In the present case, the applicants had in 2001 combined their cathode ray tube production activities in a joint subsidiary. However, in 2012, the Commission sanctioned a cartel on the market for cathode ray tubes for television sets and computer screens. Considering that the subsidiary was in (...)

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 181

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 (...)

Alexandre Lacresse Jurisdiction: The Court of Justice of the European Union strengthens the Commission’s jurisdiction to assess practices carried out outside the territory of the European Union and requires that interviews conducted as part of its investigations be recorded (Intel)

6 September 2017 248

In this case, the Commission sanctioned Intel for two types of behaviour towards its trading partners, namely conditional rebates and so-called undisguised restrictions, such as payments on the condition of delaying the launch of certain products. As for the conditional rebates, known as (...)

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 108

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. (...)

Alexandre Lacresse Confidentiality: The Court of Justice of the European Union upholds the limited scope of the confidentiality of the information produced by the leniency applicant (AGC Glass Europe)

26 July 2017 217

Sanctioned by the Commission for their participation in a cartel practice in the sector of glass production for the motor vehicle industry, the applicants criticised the disclosure by the Commission of certain information on the occasion of the publication of the non-confidential version of the (...)

Jean-Louis Fourgoux Action of the minister: The French Supreme Court refuses to transmit to the French Constitutional Council a question on Article L. 442-6, III of the French Commercial Code allowing the Minister of Economy to inform only in appeal the parties to a contract that it intends to pursue nullity on the ground of that Article (Système U centrale nationale)

11 July 2017 116

In the context of a dispute between the national central company Système U and the Minister for Economic Affairs and Finance, the latter raised the unconstitutionality of the interpretation of Article L 442-6III of the Civil Code, thereby, according to Système U, violating the principle of (...)

Alexandre Lacresse Confidentiality: The Paris Court of Appeal confirms the confidential nature of the documents of the settlement procedure and rejects the applicant’s requests for access (Direct Énergie / Engie)

6 July 2017 240

In this case, the applicant had initially obtained protective measures from the Competition Authority in respect of a former historical monopoly, which consisted in particular of making data from its customer file available to its competitors (Aut. conc., 9 Sept. 2014, Dec. No. 14-MC-02, p. (...)

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 128

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 (...)

Jean-Louis Fourgoux Call for tenders: The Paris Court of Appeal refuses to grant interim measures for the continuation of non-renewable commercial relations following a call for tenders in the absence of imminent damage (Terminaux de Normandie c/ NYK)

5 July 2017 145

In a contract dated 21 August 2012, the G6 alliance entrusted, after a call for tenders, the exclusive handling of the ships of the shipowner companies of its grouping at a terminal in the Port of Le Havre to the company TN. On 5 August 2016, the Grouping informed its service provider of its (...)

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 205

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 (...)

Jean-Louis Fourgoux Transparency: The French Supreme Court decides that transparency within a franchise network - including under the negotiating mandate - does not allow franchisees to access to commercial terms with all suppliers (Ploneour / Bricorama)

8 June 2017 180

In this case, a former franchisee of the Bricorama network left the network to join the Weldom network. In the context of the dispute which arose with Bricorama following his departure, that former franchisee demanded payment of end-of-year discounts from Bricorama and documents justifying the (...)

Jean-Louis Fourgoux Compelling behaviour: The French Supreme Court rules that a contract could be criticized under the prohibition of significant imbalance only if the perpetrator of the practice has constrained the other party (Netasq-ECONOCOM)

8 June 2017 181

The Court of Cassation ruled, in a case not involving mass distribution, on Article L 442-6 I 2°, which refers to the fact of "subjecting or attempting to subject a trading partner to obligations that create a significant imbalance in the rights and obligations of the parties", and sets out the (...)

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 158

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 218

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 496

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 (...)

Alexandre Lacresse Evidence submitted by national tax authorities: The Court of Justice of the European Union accepts that the European Commission may use evidence transmitted by a national authority other than a competition authority (FSL)

27 April 2017 131

In 2007, the Commission received documents from the Italian customs and financial police which, together with the evidence gathered during inspections carried out at the premises of various companies, enabled it to adopt a decision finding that several major importers of bananas in Northern (...)

Alexandre Lacresse Liability between parent company and subsidiary: The Court of Justice of the European Union excludes the benefit to a parent company of the limitation period expired vis-à-vis its subsidiaries (Akzo Nobel)

27 April 2017 378

In this case, the European Commission sanctioned several companies of the same group, two of which had directly participated in the cartel practices in the heat stabiliser sector (Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV). A third, their parent company (Akzo Nobel), was considered (...)

Jean-Louis Fourgoux Categorical sales conditions: The French Supreme Court points out, in very clear terms, the need for suppliers to establish their categorical conditions of sale on the basis of objective criteria and to justify them in the event of refusal to communicate pursuant to Article L 441-6 of the French Commercial Code (Pyxis / Cooper)

29 March 2017 391

The Court of Cassation, in the context of relations between a laboratory and pharmacies, recalls the need for suppliers to establish the categorical conditions of sale on the basis of objective criteria. In this case, a pharmaceutical company had brought before the Paris Tribunal de Grande (...)

Jean-Louis Fourgoux 2016 Report: The Observatory of payment period (2016 Report) shows a reduction in payment periods in France which is encouraged by the French Commission for examination of unfair commercial practices (Payment periods conditions of suppliers)

23 March 2017 154

Payment periods are subject to mandatory regulations for certain products or services such as the sale of live cattle and fresh meat for which payment must be made within twenty days following the day of delivery, the sale of perishable food products for which payment must be made within thirty (...)

Alexandre Lacresse Leniency: The Court of Justice of the European Union rules on the limits of the Hearing Officer’s mandate and the expectations which the leniency applicant may legitimately claim with regard to the disclosure of information (Evonik Degussa)

14 March 2017 200

In 2006, the European Commission sanctioned a cartel in the hydrogen peroxide sector. As the applicant was the first to contact the Commission and cooperated fully, it was granted full immunity from fines under the leniency programme. The Commission then intended to publish a non-confidential (...)

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 149

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 (...)

Jean-Louis Fourgoux Scope of the clause: The French Supreme Court considers that a non-compete clause only seeking the initial territory given to a commercial agent is not applicable if this territory was modified three times without contract amendment (Cafpi)

1 March 2017 127

The Court of Cassation considers that a non-competition clause which only covers the territory initially entrusted to a commercial agent is not applicable if this territory has been modified three times without amendment. Morality either it is a resurgence of the notion of cause in the contract (...)

Jean-Louis Fourgoux Annual report: The Directorate-general for competition consumption and repression of fraud (DGCCRF) publishes its 2016 report, which highlights the strengthening of the administration’s action on restrictive practices

23 February 2017 196

The DGCCRF is no longer solely in charge of investigations - even if the control of practices has been very sustained (in 2016, DGCCRF agents carried out 13,356 control actions concerning the balance of trade relations) - but now has the power to impose administrative sanctions, extended since (...)

Jean-Louis Fourgoux Breach of commercial relationships: The Paris Court of Appeal dismisses the supplier ‘s complaint two years after the rupture and while no claim had been made in writing (Nelly de France / GALEC)

22 February 2017 106

For the Court, it is important for the person claiming to be a victim to prove that the break-up is attributable to him or her. The judgment adds that the supplier cannot hide behind the unbalanced balance of power, nor the fact that most of the discussions were oral. This decision deserves to (...)

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 335

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 (...)

Alain Gauvin, Irène Luc, Jean-Louis Fourgoux, Maurice Nussenbaum, Muriel Chagny What attractiveness of competition law at the date of reforms? (Competition’s interviews: New competitive opportunities before ordinary courts, October 18, 2016)

February 2017 567

The third edition of “Entretiens de la concurrence”, focusing on the new economic and legal opportunities before ordinary courts, aimed to emphasise on the specific nature and assets of those jurisdictions in competition law. Having to implement competition law rules in a globalized economy, the (...)

Jean-Louis Fourgoux Commercial relationships: The Paris Court of Appeal holds that a succession of commercial leases does not constitute a commercial relationship (ATS / Pierre et Vacances)

27 January 2017 98

In that judgment, the Paris Court of Appeal was asked whether a succession since 1998 of seasonal commercial leases granted by Pierre et Vacances to ATS for the operation of several mini-markets within holiday resorts could be subject to the provisions of Article L. 442-6, I, 5°. In 2011, Pierre (...)

Jean-Louis Fourgoux Commercial relationships: The French Supreme Court clarifies the applicability to an association of the commercial relationship within the meaning of Article L. 442-6, I, 5 ° (Rubis / GMPA et Allianz Vie)

25 January 2017 189

The somewhat tangled facts of this case will lead the Court of Cassation to issue a ruling of principle that is promised to be published. The Rubis company had contracted with the insurance company Allianz vie, a credit institution and the association Groupement de prévoyance des armées (GMPA). (...)

Alexandre Lacresse Single economic entity: The Court of Justice of the European Union confirms that the liability of the parent company for payment of the fine cannot exceed that of its subsidiary (Total and Elf Aquitaine)

19 January 2017 159

In this case, the Court had the opportunity to rule on the extent of a parent company’s liability for the offending acts of its subsidiary. In its decision on methacrylates, the Commission fined not only the subsidiary which had initiated the practices, but also its parent companies. As they (...)

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 114

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 (...)

Alexandre Lacresse Hybrid settlement: The Court of Justice of the European Union confirms that the amount of the fine proposed as a settlement does not support the legitimate expectations of the parties to the cartel on the amount finally decided in the ordinary procedure following their withdrawal from the settlement procedure (Timab Industries and Cie financière et de participations Roullier)

12 January 2017 219

This is the first hybrid settlement case in which the compromise procedure and the ordinary procedure are successively combined, a case which has been commented on many times (inparticular, P. Cardonnel, Concurrences No. 3-2015, p. 150) knows its epilogue with the present judgment. Convicted (...)

Alexandre Lacresse Rights of defense: Advocate General Whal proposes to the Court of Justice of the European Union to set aside the judgment of the General Court of the European Union in the case of ‘concrete reinforcing bars’ on the ground that the European Commission did not follow the procedure laid down by the rules in force after the expiry of the ECSC Treaty (Feralpi Holding)

8 December 2016 141

In that case, the Commission had issued a decision penalising the applicants for their participation in a cartel in the reinforcing bar production sector. That decision, based on Article 65 of the ECSC Treaty and in accordance with the procedural rules specific to that provision, was (...)

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 104

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 (...)

Jean-Louis Fourgoux Duration of notice : The French Supreme Court considers that the lack of social labelling of a service provider in the field of meat contracting cannot justify a breach without proportionate notice to the duration of the commercial relations, limited to 1 year in the absence of justification for economic dependence (Bigard)

6 December 2016 160

The Bigard Group ended its commercial relations with a service provider, Nordesosse, after two months’ contractual notice, as it had not obtained social label certification following an audit by Veritas. The Court of Cassation agreed with the trial judges, who noted that the purpose of the audit (...)

Alexandre Lacresse Recevabilité : Advocate General Kokott proposes to the Court of Justice of the European Union to admit the admissibility of evidence fortuitously discovered in the course of a national tax procedure and their use by the European Commission (FSL Holdings)

17 November 2016 180

The central issue in this case is whether the Commission can use evidence and information provided by a national tax authority to sanction a cartel practice. In 2011, the applicants had been convicted of a cartel on the banana market in southern Europe between 2004 and 2005. The Commission (...)

Alexandre Lacresse Leniency: The Paris Court of Appeal upholds the French Competition Authority’s decision in the home and personal care products case (Beiersdorf)

27 October 2016 338

In the contested decision, the Competition Authority ordered thirteen undertakings to pay a penalty of EUR 951 million for two cartels, one on the cleaning products market and the other on the hygiene products market. At the procedural level, firstly, the Authority was criticised for failing (...)

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 173

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/ (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court considers that the First Instance Court of Paris may examine request introduced by a lessee against a lessor on the ground of significant imbalance and status of commercial lease (H&M)

18 October 2016 111

H&M contested the behaviour of its lessor on the grounds of a fault during negotiations for the renewal of a commercial lease, but also on the grounds of the significant imbalance to which the lessor had attempted to subject it during those negotiations. The Commercial Court of Paris had (...)

Jean-Louis Fourgoux Notice : The French Supreme Court approves the sovereign analysis of the Paris Court of Appeal holding that the economic dependence of pharmaceutical company vis-à-vis its supplier required a respected notice without substantial change, for thirty-six months (Saint Gobain)

4 October 2016 271

At a time when the extensive application of Article L. 442-6 I 5°) is being criticised for undermining the ability of businesses to adapt, this ruling confirms the essential protection of economic partners, including those outside the food distribution sector, so that greater fairness in (...)

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 188

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 163

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 (...)

Alexandre Lacresse Fines: The Court of Justice of the European Union validates the retroactive application of the Guidelines on fines (ORI Martin et Siderurgica Latina Martin, Trafilerie Meridionali)

14 September 2016 149

Of those appeals concerning the prestressing steel case, the Court of Justice validated the application by the Court of First Instance of the 2006 Guidelines on the method of setting fines instead of the 1998 Guidelines on fines, for cartel acts implemented up to 2002. That application had the (...)

Alexandre Lacresse Fines: The Court of Justice of the European Union finds that the value of sales should only reflect the economic importance of the infringement and the weight of the undertaking in it (Pilkington Group)

7 September 2016 161

In that case, the Court of Justice had appealed against the judgment of the Court of First Instance which had validated the Commission’s decision sanctioning a cartel in the motor-glass sector. The appellants essentially contested the methods of calculation of their fine applied by the (...)

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 108

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 (...)

Jean-Louis Fourgoux Contractual relationships: The French Supreme Court considers that the business relationship may cover contractual relationships and isolated orders in the business stream even if they are of low weight (Eclatec)

6 September 2016 123

This is an important practical issue that the Court of Cassation seems to rule in favour of greater protection for evicted partners. One carrier (Marchal) had a two-year contract with a lighting company (Eclatec) and terminated it after 5 years and then stopped all commercial relations with (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that the succession of two providers of quality companies may in some cases constitute a unique relationship (Excell communication / Média international masculin)

6 September 2016 121

The Court of Cassation seems to be shifting somewhat from a direction that had reduced the notion of an established commercial relationship to situations in which several companies succeed one another. The facts are fairly traditional. A communications agency provides design and publishing (...)

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

September 2016 566

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 (...)

Alexandre Lacresse Fines: The Court of Justice of the European Union holds that disputes over the payment of fines does not fall under the Civil and Commercial Matters of Regulation 44/2001 (Gazdasági Versenyhivatal)

28 July 2016 119

Regulation 44/2001 incorporated the Brussels Convention of 27 September 1968 into Union law. Following the latter, it concerns jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Like the Brussels Convention, it does not cover revenue, customs or (...)

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 154

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 (...)

Alexandre Lacresse Arbitration: The Court of Justice of the European Union admits a request for a preliminary ruling submitted in the context of an appeal against an arbitration award (Genentech)

7 July 2016 189

At the origin of the preliminary ruling was a worldwide non-exclusive licence agreement under which the licensee was required to pay three royalties for the right to exploit a technology. It is true that the licensee had indeed paid both the one-off royalty and the annual royalty. On the other (...)

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 199

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 117

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 120

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 (...)

Alexandre Lacresse Reasonable period to adjudicate: The Court of Justice of the European Union notices one more time the General Court’s failure to adjudicate within a reasonable period and sends it back the responsibility to decide on the compensation for the damage suffered (CEPSA, PROAS, Repsol)

9 June 2016 299

Of these three judgments, we note, at the procedural level, the confirmation of the case law, now well established, relating to the violation by the Court of First Instance of the reasonable time limit for judgment (CJEU, 23 Nov. 2013, Groupe Gascogne v Commission, C-58/12 P, Kendrionv (...)

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 265

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 (...)

Jean-Louis Fourgoux Termination of business relationships: The French Supreme Court quashes judges who had not characterized the existence of a single commercial relationship following resumption of business (Expeditors / Egetra)

3 May 2016 139

The question of the seniority of trade relations is becoming increasingly complex. The Court of Cassation has already suggested that each commercial relationship within a group should be treated independently in the absence of consultation between the various entities (Cass. com., 6 Oct. 2015, (...)

Alexandre Lacresse European Competition Network: The European Parliament analyses the roles and powers assigned to national competition authorities (NCAs) and calls for a strengthening and clarification of the European Competition Network’role (ECN)

18 April 2016 279

At the request of the European Parliament’s Committee on Economic and Monetary Affairs, the Directorate-General for Home Affairs has been examining the advisability of reforming European competition law and establishing decentralised application of these rules within the European Competition (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court approves judges who considered a mutual termination clause does not create imbalance and the notice period for a 19 years of trade relations could be set at 12 months, in the absence either of fault from the licensor suggesting the continuation of trade relations or fraud with a possible successor on the territory (Bénéteau / LGM Yachting)

12 April 2016 196

The facts are fairly traditional, since they are between an exclusive dealer, Bénéteau, which since 1992 has been marketing the manufacturer’s range of boats under a contract, the last of which was not renewed for five years. The licensor, in order to do so, sent a notification within the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court refuses the Paris Court of Appeal exclusivity to hear appeal on Article L. 442-6 of the French Commercial Code in proceedings introduced before December 1st, 2009 (Autocaravnas Rimo / Ypo Camp Sublet)

12 April 2016 118

This is a censorship judgment which was handed down by the Commercial Chamber in a case where the Lyon Court of Appeal had, in application of the principle of specialisation, refused to examine an appeal against a judgment handed down by the Lyon Commercial Court before the entry into force of (...)

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 105

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 150

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 212

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. (...)

Alexandre Lacresse Request of information: The Court of Justice of the European Union annuls a request for information whose purpose is not sufficiently clear and precise (HeidelbergCement)

10 March 2016 144

The Commission may, by means of a decision, request information from undertakings, sometimes in very large quantities (Reg. 1/2003, Art. 18, para. 3). Like any decision, that decision is subject to the obligation to state reasons, and that is what the Court of Justice has reminded the Court of (...)

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 1159

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 (...)

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 660

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 (...)

Alexandre Lacresse Merger: The Court of Justice of the European Union accepts the retroactivity effect of a Commission’s decision taken pursuant a judgement of the General Court of the European Union (Odile Jacob)

28 January 2016 125

In this case, the Court approved the Court of First Instance which had upheld the legality of the Commission’s decision approving the purchaser of certain assets in the context of a concentration. The special feature was that the contested decision replaced a previous decision annulled by the (...)

Alexandre Lacresse Presumption of innocence: The Court of Justice of the European Union considers that the principle of the presumption of innocence prevents to deduct the undertaking’s participation in the agreement from the sole sending of an email (Eturas)

21 January 2016 441

This case raised the delicate question of proof of the existence of a concerted practice, in particular when such proof is limited to a single indication, in this case an e-mail announcing the introduction of an automatic mechanism for setting a discount ceiling, and when acquiescence in the (...)

Alexandre Lacresse Unlimited jurisdiction: The Court of Justice of the European Union finds that the General Court’s unlimited jurisdiction is strictly limited to the fine and does not extend to the constituent elements of the infringement (Galp Energía Espana)

21 January 2016 440

Again, this case raises the question of the scope of the Court’s review of the Commission’s competition decisions (in particular, CJEU, 10 July 2014, Telefónica and Telefónica de España v Commission, Case C-295/12 P ; Concurrences No 4-2014, p. 204). In the present case, the Court of First Instance (...)

Alexandre Lacresse Leniency: The Court of Justice of the European Union enshrines the autonomy of applications for immunity leniency before the European Commission and national competition authorities in the absence of harmonization (DHL Express et DHL Global Forwarding)

20 January 2016 272

At the heart of this preliminary ruling case was the question of the relationship between the European and national leniency programmes in the light of the instruments adopted within the European Competition Network (ECN). In the present case, the Italian referring court first of all wanted to (...)

Jean-Louis Fourgoux Non-competition clauses: The French Supreme Court approves the trial court to have considered that a franchisor could change the sign of its network without abuse and require the execution of a non-competition clause yet not covered by the exemption regulation (vertical agreements), but proportionate to the franchisor’s interest in preserving the existing network (International Esthétique)

19 January 2016 203

The company International Esthétique operated a franchise network under the Epil center banner. The contracts contained a clause prohibiting the creation of a competing network with post-contractual effect. During the course of the contract, the franchisor had substituted its brand name with (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that without proofs and if it can be objectively justified, a termination of commercial relationships can make a referral to the Competition Authority non receivable (E-Kanopi)

19 January 2016 2948

This decision, which includes other rather questionable answers on the procedure before the Competition Authority (respect of the adversarial process...), was issued in a dispute between Google and an advertiser who contested the termination of its Adwords contract on the grounds that the (...)

Alexandre Lacresse Interim measures: The Court of Justice of the European Union considers the European Commission does not have to keep information as confidential in the only purpose of protecting the undertaking against a follow-on action (AGC Glass Europe)

14 January 2016 238

It is to be noted that the Court of Justice ruled that the publication of the Commission’s decision, which penalised the applicants for their participation in a cartel, could not give rise to serious and irreparable damage justifying the suspension of that publication pending the Court of (...)

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 246

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 (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court departs an association from the scope of Article L 442-6 I 5 ° imposing granted its partner a written notice proportionate to the duration of trade relations on the grounds that the victim did not claim that it was a service provider (Institut technique de la Fédération française du bâtiment / Pixscène)

5 January 2016 147

After an extensive interpretation of the notion of established commercial relationship, the Commercial Chamber of the Court of Cassation seems to want, with precautions, to give the impression of returning to a stricter and more literal application of the specific text. The facts of the case (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal refuses the sudden termination request of a distribution company not dominating the market considering that the absence of an agreement on the next commercial conditions authorized the parties to disengage prior notice as specified in the contract (Maisoning Eco Habitat / Castorama)

17 December 2015 166

An installation company collaborating with Castorama contested the termination of business relations, accusing the distributor of abuse of economic dependence and brutal termination. The Court dismissed the allegation of anti-competitive practices on the grounds that many retailers, not just (...)

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 128

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 (...)

Jean-Louis Fourgoux Refusal to sell: The Paris Court of Appeal refuses the request of a distributor facing a refusal to sell from a dominant firm due to no potential restraint of competition (NGK Spark Plugs France / Sifam)

16 December 2015 241

Very detailed decision on the delimitation of the market which leads to a dominant position of NGK but which nevertheless considers that the distributor who is the victim of a refusal to sell has alternative solutions and that NGK’s products are easily accessible to consumers on the French (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal refuses the request of an advertising agency, which after a competitive bidding has been excluded following a 3 months notice for 6 previous years of cooperation, pointing out that the dependance came from an agency’s "own deliberate choice" (Ailleurs Exactement / Grandvision)

4 December 2015 161

The Court, in accordance with settled case-law, verifies whether the contractual period of notice, which is respected, is sufficient in view of the nature of the activity and the duration of the relationship, and dismisses the claim based on interprofessional use in the absence of evidence of (...)

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 160

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 (...)

Alexandre Lacresse Res judicata: The Court of Justice of the European Union the effectiveness of rights conferred by EU law should prevail and calls upon the national judge to question the authority of res judicata of a national judicial decision validating an aid without having assessed its legality (Klausner Holz Niedersachsen)

11 November 2015 174

In this case, a German Land had concluded two timber supply contracts with a company. Following an initial series of actions, an appellate court found that the contracts in question remained in force, despite the failure of the company to perform them and despite the Land’s intention to (...)

Jean-Louis Fourgoux Terms of payment: The French Supreme Court considers that the penalties for delay provided in Article L. 441-6 of the Commercial Code may be subjected to a capitalisation, and states that the starting point should be based on either the T & C or on interprofessional agreement (Parquets Lemoine / Isoroy)

10 November 2015 347

On the occasion of a rather banal dispute between a supplier of wood paneling (the company Isoroy) and a customer, the Commercial Chamber of the Court of Cassation took the opportunity to issue a landmark decision on late payment penalties, which was published. The Isoroy company had obtained (...)

Alexandre Lacresse Public survey: The European Commission launches a public consultation on empowering national competition authorities to be more effective enforcers

4 November 2015 151

The Commission has opened a consultation to gather information on the ability of National Competition Authorities (NCAs), "key partners", to enforce EU competition rules. Recalling that since 2004 NCAs have been empowered by Regulation 1/2003 to enforce the competition rules and that they (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court prevents any non specialized court of appeal to review appeal competence for sudden termination (Gifi Mag)

20 October 2015 143

This ruling is a very firm call to order imposed by the Commercial Chamber on the Douai Court of Appeal and a lesson for all non-specialist courts of appeal. Indeed, cassation on a plea raised ex officio is a matter of principle and has no real impact on the case, other than the complexity of (...)

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 122

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 140

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 (...)

Alexandre Lacresse Interventions: The Court of Justice of the European Union recognizes a works council the status of interested party for the purpose of submitting to the European Commission observations on social considerations but denies the right to shareholder-employees to intervene in the absence of a sufficiently direct interest in the outcome of the dispute (AEMMELL, Comité d’entreprise SNCM, Cap Actions SNCM)

6 October 2015 930

By three orders issued on the same day, the Vice-President of the Court of Justice of the EU ruled on three appeals against decisions of the Court of First Instance rejecting applications to intervene in state aid cases. For the record, pursuant to the second paragraph of Article 40 of the (...)

Jean-Louis Fourgoux Breach of business relations : The French Supreme Court reminds that the article L. 442-6 I 5° of the Commercial Code does not apply to the breach of commercial relations of public road transport of goods performed by subcontractors when the standard contract between the parties provides for the notice period in case of breach (Drôme express)

22 September 2015 111

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 153

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 (...)

Alexandre Lacresse Interest in bringing proceedings: The Court of Justice of the European Union considers that the existence of an action for damages pending before a national court gives the competitor of the aid beneficiary an interest in acting but not locus standi against the decision of the European Commission not to recover that aid (Mory, Mory Team and Superga Invest)

17 September 2015 217

Between 2001 and 2012, the Commission adopted three decisions on certain aid granted to the Sernam group, operating in the mail sector, until it was taken over by Geodis (La Poste group). The first decision, in 2001, approved restructuring aid. The second decision, in 2004, confirmed the (...)

Alexandre Lacresse ECN : The Advocate General Wathelet suggests that the Court of Justice of the European Union observe the procedural autonomy of Member States and their competition authorities when adopting leniency programmes, subject to the respect of the Charter of Fundamental Rights and the general principles of the European Union (DHL)

10 September 2015 192

In his Opinion, Advocate General Wathelet suggests that the Court should reply to the Italian Council of State that the European Competition Network’s (ECN) 2006 Model Leniency Programme has no binding effect on national competition authorities (NCAs). However, when a Member State adopts a (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal examines the termination of an insurance general agent contract and refuses the request due to the agent’s repeated breaches (BTSG –es qualité Courtage Rive Gauche / Compagnie Generali Assurances)

8 September 2015 234

Without hesitation, the Court verifies whether the breaches are sufficiently serious to deprive the general agent of a notice period proportionate to the duration of the commercial relations in application of Article L 442-6 of the Commercial Code. In this case, the failure to pay the bonuses (...)

Alexandre Lacresse Leniency and settlement : The European Commission amends its procedural rules and limits access to corporate statements and the use of information obtained pursuant to the procedure in order to preserve the efficiency of the leniency and of settlement procedures

3 August 2015 371

Drawing on the lessons of recent judgements involving the production of documents resulting from proceedings for the implementation of a leniency programme in the context of national court proceedings (see Pfleidererjudgements, C-360/09 ; Donau Chemie, C-536/11) or European (see Commission v (...)

Alexandre Lacresse Fine calculation : The Court of Justice of the European Union admits that the calculation of the fine may take into account other sales than those related to the infringement in order not to artificially minimize the economic significance of the infringement implemented by a vertically integrated company (InnoLux)

9 July 2015 182

In 2010, the Commission condemned six major international LCD manufacturers for their participation in a cartel between 2001 and 2006. This decision was upheld, for the most part, by the Tribunal in 2014. Although the Court dismissed the action for partial annulment of the decision brought by (...)

Jean-Louis Fourgoux Economic dependence : The French Supreme Court dismisses the appeal filed by a supplier who required a longer notice period due to economic dependency and approves of the trial courts reproaching the supplier for not having explained the diversification of his activities and its risks (Nord Staff Bricolage, Leroy Merlin)

7 July 2015 148

Jean-Louis Fourgoux Significant imbalance : The Paris Court of Appeals sanctions a financial imbalance on the basis of Article L. 442-6 -I- 2 of the Commercial Code (GALEC)

1 July 2015 202

In a ruling dated 1 July 2015, the Paris Court of Appeal, on appeal by the Minister of the Economy, accepted that Article L. 442-6-I-2° of the French Commercial Code is applicable to end-of-year rebates. The implementation of this rule was challenged in principle by the distributor on the basis (...)

Jean-Louis Fourgoux Commission on business practices - Opinion : The French Commission on business practices (CEPC) issues two opinions on the application of articles L. 442-6 -I- 1 and 2 of the Commercial Code to pricing practices for services

23 June 2015 322

In two notices published on 23 June 2015, the Trade Practices Review Commission had to rule, at the request of undertakings, on the compliance of pricing practices with the law. In one case, the Commission was questioned on the rate of remuneration practised by a business introducer, up to 50 (...)

Alexandre Lacresse Inspections : The Court of Justice of the European Union reinforces companies’ rights of the defense by obliging the Commission to respect the object of the investigation and only to seize documents linked to the investigation (Deutsche Bahn)

18 June 2015 308

In March 2011, suspecting unjustified preferential treatment for the supply of energy granted by an entity of the Deutsche Bahn group to other subsidiaries, the Commission decided to carry out an inspection under Article 20 of Regulation 1/2003. This first inspection enabled the Commission to (...)

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 128

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 (...)

Alexandre Lacresse Damage claim : The Court of Justice of the European Union states that a court has jurisdiction over a compensation claim despite a victim’s withdrawal of the action against the sole participant domiciled in the same Member State as the court seised (CDC Hydrogene Peroxide)

21 May 2015 332

The applicant in the main proceedings is a company whose object is the recovery, by judicial and extrajudicial means, of compensation claims from undertakings affected by a cartel. In March 2009 it therefore brought an action for damages before a German court against six chemical companies (...)

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 186

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 213

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 210

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 215

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" (...)

Alexandre Lacresse Investigation : The European Court of Human Rights requires a practical and effective judicial review on proportionality regarding the seizure of documents unrelated to the investigation or protected by legal professional privilege (Vinci Construction, GTM Génie, Services Civil)

2 April 2015 458

ECtHR, 2 April 2015, Vinci Construction and GTM Génie et Services Civil v. France, aff. nos. 63629/10 and 60567/10 In this case, the two applicant companies had been visited and seized by the DGCCRF in 2007. On that occasion, numerous documents and computer files, including the e-mail files of (...)

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 198

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 237

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 (...)

Alexandre Lacresse Repeated infringement : The Court of Justice of the European Union considers that the mother company of a previously sanctioned company can be in a state of repeated infringement if it wasn’t previously charged with its subsidiary’s conduct (Versalis/Commission)

5 March 2015 359

CJEU, 5 March 2015, Commission v Versalis and Versalis v Commission, cases C-93/13 P and C-123/13 P, ECLI:EU:C:2015:150 This decision is also the subject of a commentary in the Agreements Chronicle in this issue, to which reference is made for further development. The question of the (...)

Jean-Louis Fourgoux Significant imbalance : The French Supreme Court rejects the appeals formed by two retailers against the judgments that admitted the claim of the Minister for the economy and according to which the provisions contained in the referencing agreements created a significant imbalance in the rights and obligations of the parties within the meaning of Article L 442-6 of the Commercial code (Eurauchan, Provéra)

3 March 2015 630

This is the first time that the High Court has ruled on the notion of significant imbalance since the controversial introduction of this text into the Commercial Code by the LME Act of 4 August 2008. The position adopted clearly supports the Paris Court of Appeal, a specialised court whose (...)

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 198

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 (...)

Alexandre Lacresse Inspections : The Advocate General Nils Wahl reveals a violation of rights of defence committed by the Commission during an inspection and suggests to annul partially the General Court’s judgment (Deutsche Bahn)

12 February 2015 268

CJEU, 12 Feb. 2015, Conclusions AG N. Wahl, Deutsche Bahn v Commission, Case C-583/13 P, ECLI:EU:C:2015:92 It will be recalled that, in that case, the applicants had been subject to three inspections in the same year and were critical of the Commission’s decisions to carry out a second and then (...)

Alexandre Lacresse Actions for damages : The European Parliament and the Council adopt the directive on rules governing actions for damages under national law for infringements of the competition law provisions

8 February 2015 390

Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing damages actions under national law for breach of the rules of competition law of the Member States and of the European Union has been published in the Official Journal of the (...)

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 203

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 259

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 181

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 207

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 213

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 204

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 (...)

Jean-Louis Fourgoux Sudden termination : The French Supreme Court considers that the parties can arrange full or partial termination of business relations without violating the public order nature of Article L442-6 I 5 ° (Ikea / Green Sofa Dunkerque)

16 December 2014 349

In this judgment, which is to be published in the Bulletin, the Commercial Chamber clarifies the conditions under which the termination of commercial relations may be contractualized and organized by the parties. Ikea has appealed to the Cour de Cassation against a decision of the Paris Court (...)

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 246

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 214

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 205

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 196

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 264

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 193

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 212

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 (...)

Jean-Louis Fourgoux Competence - Contradictions : The French Supreme Court considers that the Paris Court of Appeals is the only jurisdiction competent to rule on all decisions delivered by commercial courts within the litigation related to the article L. 442-6 of the Code of commerce as well and to rule on contradictions (Altiplast)

4 November 2014 207

To learn more about this case, click on Reference above.

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 254

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 (...)

Jean-Louis Fourgoux Competence - Termination : The Paris Court of Appeals decides that the victim of a sudden termination of commercial relations is not entitled to invoke a contractual basis in order to claim compensation for the damage caused by the termination, which falls under actions in tort and which was filed initially (Image Service)

22 October 2014 163

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 230

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 203

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 174

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 238

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 194

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 (...)

Jean-Louis Fourgoux Specialised jurisdiction : The French Supreme Court considers that in the field of restrictive practices, the specialisation of jurisdictions may make inadmissible all actions filed on the basis of the article L 442-6 of the Code of commerce (Ovalis / SEPPA)

7 October 2014 225

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 168

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".

Alexandre Lacresse ECHR - Inspections : The European Court of Human Rights rules that an inspection carried out by a competition authority on the premises of an undertaking must be subject to an effective ex post facto review when there was no prior judicial review (Delta Pekárny/Czech Republic)

2 October 2014 393

In this case, the Czech Competition Authority had carried out an inspection at the premises of a company in search of evidence of a cartel practice. This inspection had been authorized by the Competition Authority itself and had been carried out by several of its agents in the offices of the (...)

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

December 2014 854

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 416

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 233

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 (...)

Jean-Louis Fourgoux Communication : The European Commission encourages the use of self-regulation to fight against unfair trade practices in the food supply chain

15 July 2014 173

In a Communication of 15 July, the European Commission set out its Action Plan to combat unfair commercial practices ("UCP") in the food supply chain, which largely advocates the use of self-regulation. In view of the very different negotiating powers of the actors in the food supply chain (...)

Alexandre Lacresse Effective judicial protection : The Court of Justice of the European Union reminds the clarity and precision requirements that appeals should meet and continue its explanation work on the limits of the General Court’s judicial review of Commission’s decisions (Telefonica)

10 July 2014 194

In that case, the Commission had imposed on the applicant a fine more than ten times higher than those imposed four years earlier on similar undertakings for similar abusive conduct and on markets with similar characteristics. The Court of First Instance subsequently upheld that decision (...)

Jean-Louis Fourgoux, Marine Dantec Consumer protection : The Court of Justice of the European Union firmly recalls the scope of unfair commercial practices directive and condemns Belgium for keeping a law on the rebates ads and itinerant activities, incompatible with the directive (Commission / Belgium)

10 July 2014 249

Unsurprisingly, the European Court of Justice (CJEU) recalled on 10 July that the rule it keeps hammering home, according to which Member States must not prohibit by operation of law practices not listed in Annex I of Directive 2005/29/EC, known as "unfair commercial practices" (Directive of 11 (...)

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 199

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 94

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 293

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 (...)

Alexandre Lacresse Inspection : The Court of Justice of the European Union upholds the General Court’s decision partially revoking the Commission’s decision ordering an inspection and confirms it is sufficient for that decision to indicate the subject and the objective of the inspection (Nexans)

25 June 2014 224

The question of the review of the legality of the Commission’s inspection decisions is a subject which could become increasingly important, particularly after the recent judgment of the European Court of Human Rights in the case of Delta Pekárny v. the Czech Republic (2October 2014, application (...)

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 133

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. (...)

Jean-Louis Fourgoux Disparagement : The Paris Commercial Court condamns a company for disparagement towards another manufacturer and compensates the damage while refusing to order an expertise (Ethical Coffee / Nespresso)

6 June 2014 219

Trib. com. Paris, 6 June 2014, Ethical Coffe c/ Nespresso, RG 2012077904 Ethical COFFEE which is a manufacturer of compatible capsules for NESPRESSO machines, put on the market as from 2010, considers itself victim of anti-competitive and unfair practices from NESTLE NESPRESSO, consisting in a (...)

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 139

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 (...)

Alexandre Lacresse Umbrella effect: The Court of Justice of the European Union considers that participants in a cartel are also liable for damages linked to the circumstance that a non-participant increased prices because of the existence of the cartel (Kone)

5 June 2014 1064

The umbrella effect consists, for an undertaking which is not a member of a cartel and which competes with the cartelists, in increasing its own prices in view of the increase in market prices resulting from the existence of the cartel and bringing them to a higher level than would have been (...)

Alexandre Lacresse Rights of the defense: The Court of Justice of the European Union confirms that the group subject to a competition procedure is obliged to preserve the documents necessary for its defense even when it transferred the undertaking involved in the cartel (Bolloré)

8 May 2014 171

The question of the preservation over time of the means of proof, and hence of the means of defence, is particularly topical in the present case. It will be recalled that in the ArcelorMittal Luxembourg judgment, the Court of Justice established the principle that undertakings to which an (...)

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 76

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 (...)

Jean-Louis Fourgoux Sudden termination : The French Supreme Court rules that the duration of the commercial relation and the circumstances of the termination notice shall be taken into account when appreciating an adequate advance notice

8 April 2014 161

In this case, a company has a commercial relationship with a business agent. The latter claims the status of business agent, and not obtaining satisfaction, sues the company for damages, including termination of the relationship. For its part, the company attributes the termination of the (...)

Alexandre Lacresse Rights of the defense: The Court of Justice of the European Union reminds to the General Court that the respect of the rights of the defense do not tolerate ambiguity (Ballast Nedam / Commission)

27 March 2014 134

In 2006, the Commission sanctioned a cartel in the construction sector in the Netherlands (Commission, 13 September 2006, Case COMP/F/38.456 - Bitumen). In the context of this procedure, the Commission notified objections to Ballast Nedam, the head of the Ballast Nedam group, for the actions of (...)

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 96

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 91

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 130

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 (...)

Jean-Louis Fourgoux Arbitration clause: The Paris Court of Appeal applies the case law on the applicability of arbitration clauses in the litigation related to sudden termination of business relations (Sept de Cœur)

18 March 2014 216

CA Paris, March 18, 2014, RG no 12/13601, Sept de Coeur c/ Babybjörn In the present case, a French company, SARL Sept de Coeur, was entrusted in 1985 with the exclusive distribution in France of the childcare products of the Swedish company Babybjörn AB. Babybjörn AB terminated this contract on (...)

Jean-Louis Fourgoux Consumer protection : The French Government publishes the new consumer law

17 March 2014 228

The contributions of the Hamon law: One step forward, two steps backward The law relating to consumption, known as the "Hamon law", adopted on 13 February 2014 by the National Assembly, then validated, for the most part, by the Constitutional Council on 13 March 2014. (No 2014-690DC), was (...)

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 172

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 435

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 (...)

Alexandre Lacresse Access to file: The Court of Justice of the European Union extends its case law relating to access to file to the competition procedures of article 101 TFEU and admits a possible access to the documents obtained by means of a leniency procedure (Commission / EnBW)

27 February 2014 231

With regard to access to the file, the Court of Justice has consistently closed the loopholes opened by the case-law of the Court of First Instance. / Technische Glaswerke Ilmenau, C 139/07 P; 28 June 2013, Commission v. Éditions Odile Jacob, C 404/10 P, and Commission v. Agrofert Holding, C (...)

Alexandre Lacresse Admissibility: The Court of Justice of the European Union declares admissible an action for annulment from aid’s beneficiaries against the decision declaring such aid compatible with the common market (Stichting Woonpunt, Stichting Woonlinie)

27 February 2014 161

CJEU, 27 February 2014, Stichting Woonpunt and Others v. Commission, Case C-132/12 P CJEU, 27 February 2014, Stichting Woonlinie v. Commission, Case C-133/12 P In the context of State aid litigation, the question of the individualisation of certain economic operators on the grounds that they (...)

Alexandre Lacresse Cooperation of national courts: The Court of Justice of the European Union considers that a national judge who is to rule on state aid recovery is not bound by the Commission’s considerations (Mediaset)

13 February 2014 122

In the field of State aid, the Court has clarified the relationship between the Commission’s intervention and that of the national court in the mechanisms for the recovery of unlawfully granted aid. It therefore takes the conventional view that the aid must be recovered simply because the (...)

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 140

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 (...)

Alexandre Lacresse Rules of procedure: The Court of Justice of the European Union adopts new supplementary rules of procedure to the attention of parties

1 February 2014 145

The Court of Justice of the European Union has recently published new Additional Rules of Procedure to take account of the completely recast Rules of Procedure of 25 September 2012. This new Additional Rules replaces the Additional Rules which, although amended on numerous occasions, date from (...)

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 161

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 108

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 141

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 186

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 113

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 143

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 (...)

Alexandre Lacresse Cartels : The Court of Justice of the European Union considers that a failure to adjudicate within a reasonable time without consequences on the General Court’s judgment can only be subjected to a claim for damages (Gascogne Sack Deutschland, Kendrion, Groupe Gascogne)

26 November 2013 233

CJEU, 26 November 2013, Kendrion v Commission, Case C-50/12 P CJEU, 26 November 2013, Groupe Gascogne v Commission, Case C-58/12 P These judgments stem from the Commission’s decision to impose fines on several undertakings for their participation or the participation of their subsidiaries in a (...)

Alexandre Lacresse Cartels : The Court of Justice of the European Union re-applies its case law related to the General court’s control of the Commission’s competition decisions (Kone)

24 November 2013 148

During the period under review, we will also note this case, the origin of which is to be found in the Commission’s decision to sanction a cartel in the lift and escalator sector, already at issue in a recent judgment of the Court (18 July 2013, Schindler Holding and Others v Commission, Case (...)

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

December 2013 616

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 (...)

Alexandre Lacresse State aids : The Court of Justice of the European Union sets aside the judgment of the General Court and rules that the decision related to a State aid’s compatibility is the measure that ends the investigation procedure (Deutsche Post)

24 October 2013 172

Does a second decision to initiate the formal investigation procedure in respect of State aid constitute a challengeable act capable of being the subject of an action for annulment where that decision was preceded by a first opening decision taken in respect of the same aid and where a decision (...)

Jean-Louis Fourgoux Tender : The French Supreme Court states very clearly that the notification of the use of a tender implies intention to run the notice

22 October 2013 137

In a ruling handed down on October 22, 2013, the French Supreme Court of Appeal censured the Montpellier Court of Appeal, which had ordered Areva to pay compensation to its logistics provider for the abrupt termination of an established commercial relationship, not on the principle but 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 121

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 (...)

Alexandre Lacresse State aids : The Court of Justice of the European Union confirms its strict interpretation of the grounds justifying the non-recovery of State aids (Italy, Greece)

10 October 2013 185

CJEU, 17.10.2013, Commission v. Italy, Case C 344/12 CJEU, 17.10.2013, Commission v. Greece, Case C-263/12 CJEU, 12.12.2013, Commission v. Italy, Case C-411/12 During the period under review, several formations of the Court of Justice have recalled the conditions under which Member States may (...)

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 217

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 (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal condemns a distributor for having tried to make his suppliers give up the refunds to which he was condemned in a procedure committed by Minister of the Economy

18 September 2013 241

The Court of Appeal considered that ’the Minister for the Economy rightly maintains that, in the present case, by attempting to subject its suppliers to an obligation to repay the sums which the Commercial Court had ordered it to repay to them by way of recovery of sums unduly paid, GALEC has (...)

Jean-Louis Fourgoux Significant imbalance: The CEPC considers that the various contracts between hoteliers and companies operating major hotel booking sites reveal clauses of restricting competition leading to invalidity (Booking)

16 September 2013 250

The Commission d’examen des pratiques commerciales (CEPC) has been asked by several organisations representing hotel professionals to examine the conformity with competition law of various contracts concluded with the companies operating the main hotel reservation sites. After dealing with the (...)

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 151

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 106

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 162

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 196

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 129

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 (...)

Alexandre Lacresse Setting of fines: The Court of Justice confirms that the European Commission has competence to adopt guidelines to set fines and reminds that the notion of undertaking has its own definition under competition law (Schindler)

18 July 2013 189

Intervening on appeal, the Court was called upon in the present case, inter alia, to rule on the European Commission’s power to impose fines and to fix their amount under the competition rules, in particular its power to adopt guidelines on the calculation of fines. The Court was also called (...)

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 142

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 113

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 72

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 118

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 172

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 (...)

Jean-Louis Fourgoux Referencing: The Cour de cassation approves the Paris Court of Appeal’s decision to cancel a referencing agreement (Brake France service/Aprest)

25 June 2013 226

In 2004, Aprest, the central purchasing office of a food supply group, awarded a contract to a supplier to supply a catering clientele affiliated to this group. The listing contract provided that ’in consideration for the priority given to suppliers and the services provided by Aprest in setting (...)

Alexandre Lacresse Complaint: The Court of Justice confirms the rejection by the Commission of a complaint against anti-doping rules established by the anti-doping world Agency (Cañas)

20 June 2013 111

This case concerned the rejection for lack of Community interest of a complaint lodged with the Commission by a professional tennis player sanctioned for failure to comply with the rules on doping. The player claimed that WADA and the ATP Tour had infringed the competition rules by adopting and (...)

Alexandre Lacresse Liability exemption: The Court of Justice considers that an undertaking can be punished for having participated to an antitrust practice even if that is the consequence of its error resulting from a legal advice given by a lawyer and gives the right to national competition authorities to grant immunity from a fine when applying UE law on an exceptional basis (Schenker & Co.)

18 June 2013 198

The case raised two important issues for companies seeking to avoid liability by shifting the blame for their involvement in an anti-competitive practice to a third party and for NCAs wishing to implement their leniency programme when applying EU law, in particular Article 101 TFEU. The facts (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal considers that a clause causing a significant imbalance and contrary to Article L. 442-6-I-2 of the commercial code should be deemed unwritten (Netmakers/Antigone)

7 June 2013 343

The dispute between a partnership of several lawyers and a supplier of photocopiers and a finance company with which it had entered into a long-term lease led the Paris Court of Appeal to hand down a very interesting ruling on 7 June 2013 regarding the rule in Article L. 442-6-I 2° of the (...)

Alexandre Lacresse Actions for damages: The Court of Justice widely grants the right for victims of antitrust practices to access evidences gathered in a leniency procedure (Donau Chemie)

6 June 2013 405

Actions for damages brought by natural or legal persons who are victims of a cartel ("private enforcement") is often a path fraught with pitfalls. If the existence of fault on the part of the perpetrators of the practice is established by the sole decision of the competition authority (...)

Jean-Louis Fourgoux Economic dependence: The Versailles Court of Appeal puts aside the economic dependence for lack of proof of solution of replacement and the unbalanced character of a reimbursement schedule of unpaid debts (Alliance Healthcare Répartition/Vitale)

4 June 2013 164

A dispute arose between a dispensing pharmacist and his drug supplier over the agreed commercial terms criticized because of the wholesaler’s demand for interest at the rate of 6% to reimburse unpaid invoices. The Versailles Court of Appeal dismissed the claim of abuse of the state of economic (...)

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 229

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 195

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 (...)

Jean-Louis Fourgoux International law: The CEPC provides a lesson in international law on the applicability of the law of restrictive practices by the relationship with foreign partners in two opinions useful to companies and judges the applicability of the law of restrictive practices in international contracts

27 May 2013 195

Opinion No. 13-07 on late payment penalties was issued on 27 May 2013, following a referral from an international group which questioned the applicability of the late payment penalty rate in the context of an international contract. Article L. 441-6 of the French Commercial Code stipulates (...)

Jean-Louis Fourgoux Partial breach: The Paris Court of Appeal compensates the supplier for private label sofas sudden termination of business relations and doubles the notice but dismisses the complaint challenging unbalanced clause on the tariff negotiations (GSD/Ikea)

23 May 2013 577

CA Paris, May 23, 2013, RG n° 12/01166 This very detailed ruling highlights the practical difficulties that may exist in the development of commercial relations between an industrialist and a major retailer. Green Sofa Dunkerque (GSD) has been supplying furniture to Ikea for the group’s various (...)

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 168

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 190

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 150

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 199

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 134

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 (...)

Jean-Louis Fourgoux Resale at a loss : The Court of Justice rules that the directive on unfair commercial practices precludes a national provision which provides a general prohibition on resale at a loss to consumer (Euronics Belgium/Kamera Express et Kamera Express Belgium)

May 2013 1044

CJEU (ord.), 7 March 2013, Euronics Belgium CVBA v Kamera Express BV and Kamera Express Belgium BVBA, case C-343/12 The list of unfair commercial practices declared incompatible with the Directive of 11 May 2015 (2005/291EC) is extended, this time burying the general ban on resale below cost (...)

Alexandre Lacresse Power of review: The Court of Justice outlines the scope of its power of review regarding the application of several procedural principles by the General Court (Viega)

May 2013 171

CJEU, 14 March 2013, Viega v Commission, Case C 276/11 P In 2006, the German company Viega was one of some 30 companies fined by the Commission for its participation in the "copper fittings" cartel and was fined more than EUR 54 million (20 September 2006, Dec. C(2006) 4180, Case (...)

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 385

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 238

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 123

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 239

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 92

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 211

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 143

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 97

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 181

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 (...)

Jean-Louis Fourgoux Action of the Minister: The Court of cassation states that the Minister of Economy may intervene before the civil courts and, without being at the initiative of the procedure, be considered as a party pursuant to Art. L 442-6 C. com. (Carrefour)

24 February 2013 127

http://legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000026742676&fastReqId=403567882&fastPos=1" target="_blank">Cass. Com, December 4, 2012, No. 11-21743. The liquidator of a supplier to the mass retail sector had initiated proceedings for abrupt (...)

Jean-Louis Fourgoux Break in trade relations: The Court of cassation holds that an important decrease of volume can be considered as not being a sudden break of commercial relationships, as long as it is the consequence of an economic crisis (CMI/Caterpillar)

12 February 2013 227

Cass.com, February 12, 2013, No. 12-11.709. The Court of Cassation is starting to examine the first cases of termination of commercial relations following the economic crisis of 2008 and takes the opportunity to approve the judges on the merits who maintain a very pragmatic approach. The issue (...)

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 406

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 136

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 71

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 85

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 349

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 78

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 (...)

Alexandre Lacresse Inspections: The Court of Justice considers as serious by its own nature the breach of a seal during an inspection and confirms the fine of 38 million euro (E.ON Energie)

22 November 2012 207

CJEU, 22 November 2012, E.ON Energy c/ Commission, Case C-89/11 P In May 2006, Commission officials, assisted by officials of the German competition authority (Bundeskartellamt), carried out an inspection at the premises of E.ON in Munich, suspecting its involvement in anti-competitive (...)

Jean-Louis Fourgoux Sudden termination: The Court of cassation said that any business relationship can not be eternal, if a prior notice of non-renewal at the end of the contract is given, then a party is entitled to stop the relation (STPM/Bosch)

20 November 2012 157

"Cass. com., November 20, 2012, No. 11-22660." A company specialising in the repair of household appliances (STPM) has been providing services for Bosch since 1986, first without a written contract, then through a succession of contracts, initially for an indefinite period and then for a fixed (...)

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 402

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 111

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 (...)

Alexandre Lacresse Private enforcement: The Court of Justice recognizes the Commission’s right to claim and obtain damages for its own loss caused by a cartel (Europese Gemeenschap/Otis)

6 November 2012 242

CJEU, 6 November 2012, Europese Gemeenschap v Otis and Others, Case C-199/01 Are the European Community, as a legal person, and the European Union which succeeded it (hereinafter the Union) applicants in the field of ’private enforcement’ before the national courts in the same way as the (...)

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 118

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 576

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 241

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 91

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 134

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 62

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 116

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 (...)

Jean-Louis Fourgoux Sudden termination: The Cour de cassation validates the conviction of a distributor to repair the sudden termination of commercial relations and approve the judges who pronounced the nullity of contracts trade cooperation charging disproportionate amounts (Carrefour/Jean-Marc Valensi)

11 September 2012 362

Cass. com, Sept. 11, 2012, Carrefour c/ Jean-Marc Valensi, N° 11/14620 Delivered on the same day as another judgment concerning the same major retailer (Cass. com., n° 11/14608, Salins du midi hereafter), the Commercial Chamber of the Court of Cassation is moving forward step by step in (...)

Jean-Louis Fourgoux Sudden termination: The Cour de cassation validates the conviction of a distributor to repair a partial tear followed by a final rupture of commercial relations with their suppliers and fully repair the damage resulting from billing for services to disproportionate amounts (Carrefour Interdis/Compagnie des Salins)

11 September 2012 218

Cass. com. September 11, 2012, Carrefour Interdis v/ Compagnie des Salins, n° 11/14608 The ruling handed down on 11 September 2012 by the Chamber of Commerce can only strengthen the suppliers of the mass distribution sector who, once evicted, take advantage of the legal recourse to obtain the (...)

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 129

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 176

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 209

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 152

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 130

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 129

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 102

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 (...)

Alexandre Lacresse Investigations: The Court of Justice confirms the confidential nature of the documents exchanged between the Commission and parties or third parties during competition procedures (Odile Jacob / Agrofert)

28 June 2012 299

CJEU, June 28, 2012, Commission v. Odile Jacob, aff. C-404/10 P CJEU, 28.06.12, Commission v. Agrofert Holding, Case C-477/10 P Following the My Travel judgment of 21 July 2011 (Sweden v My Travel and Commission, C-506/08 P), the Court had appeared reluctant to extend its case law on access - (...)

Jean-Louis Fourgoux Specialized court of appeal: The Paris Court of Appeal retains its jurisdiction to rule on an appeal against a judgment of a Commercial Court entered before the entry into force of the specialization of courts (La Flèche/Sibell)

27 June 2012 186

The specialisation instituted, for Article L. 442-6 of the Commercial Code alone, by the Economic Modernisation Act of 4 August 2008, has not been much criticised in itself. On the other hand, its too narrow implementation (8 Tribunals and a single Court of Appeal) decided by Decree No. (...)

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 117

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 (...)

Alexandre Lacresse Intervention – Interest in the result of the case: The Court of Justice considers that the customer of undertakings participating in a cartel has no ground to intervene before the Court (Schenker, Deutsche Lufthansa e.a.)

8 June 2012 174

CJEU (Pres. Ord.), 8 June 2012, Schenker v Deutsche Lufthansa and Others, Case C-602/11 P(I). In that case, Schenker had sought to intervene in support of the Commission in the action for annulment brought by several airlines against the decision imposing a fine on them for their participation (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Appeal of Versailles states that the maintain of the same provider under the same economic conditions for the promotion of trademarks acquired from a competitor should be considered as the producer has continued the initial relationship established with the previous owner of the trademark (Agence Conseil 3 P Pred/Procter & Gamble Pharmaceuticals France)

5 June 2012 232

In a very detailed judgment, the Versailles Court of Appeal applied an extensive analysis of the concept of an established relationship, considering that a commercial relationship initially entered into by 3 P Pred, a company responsible for commercial prospecting among dentists, with Sanofi (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal declares the selective distribution agreements prohibiting the use of a website are contrary to Article 101 § 1 and condemns the perfumers to repair the damage caused to distributor unfairly evicted under the brutal rupture of commercial relations (News Parfums/Parfums Christian Dior)

4 June 2012 230

As many disputes relating to an allegedly brutal termination are legion, those in which the former prohibition of abuse of the relationship of dependence set out in point 2 b of the same article L. 442-6-I is invoked are rare. It is true that these two rules are used with unequal success, as (...)

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 103

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 (...)

Jean-Louis Fourgoux Significant imbalance: The Commercial Court of Bobigny holds that the clauses contained in a supply agreement whereby the distributor could obtain the reduced sale price if tariffs decrease characterize a significant imbalance and therefore the clauses are null and void (Minister of the Economy/Darty)

29 May 2012 360

This is a new important stage in the war between the Minister of Economy and the major distributors, which had given rise to some media hype since the Minister of Economy, at the time, had announced that he had taken legal action against nine distribution companies, including Darty. A first (...)

Jean-Louis Fourgoux Centrale d’achats – Référencement: The Paris Court of Appeal cancels the referencing agreement provision requiring the payment of an amount which is not accompanied by any quantitative commitment and which does not represent charges for specific serviced rendered (Aprest/Brake France Service)

24 May 2012 493

The Paris Court of Appeal has just handed down one of the first landmark decisions on listing premiums in the contract catering sector. The contract provided that "in return for the priority given to suppliers and the services provided by Aprest in setting up supplies", the supplier would pay a (...)

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 138

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 362

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 156

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Appeal of Colmar holds that the non-renewal announced to a contractor triggers the notice period within the meaning of Art. L. 442-6, although negotiations continued for an eventual renewal (Bellenni & Bourdillon Successeurs/Brasserie Kronenbourg)

10 May 2012 143

A distributor of Kronenbourg beers in the French Overseas Departments and Territories considered himself the victim of a brutal break-up by the Kronenbourg Company. He claimed that despite a letter of June 2004, in which the subsidiary of his supplier implied that the contract would not be (...)

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 204

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 (...)

Alexandre Lacresse Fines – Bank garantee: The Court of Justice confirms that the application for interim measures must contain precise and full information regarding the situation of the appelant itself and of its shareholders (Fapricela)

20 April 2012 185

CJEU (Pres. Order), 20 April 2012, Fapricela v. Commission, Case C-507/11 P(R) In July 2010, the Commission imposed a fine of almost €9 million on Fapricela, penalising its participation in a cartel in the prestressing steel sector. Fapricela then brought an action for annulment before the (...)

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 122

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Appeal of Bordeaux holds that a supplier providing after discussion a notice period of 16 months, before breaking definitely an exclusive distribution agreement of over 24 years, while at the same time negotiating a possible renewal has not terminated wrongfully the business relationship (Santa Maria AB, Santa Maria Belgium, Bruce Foods Europe/Sélection Diffusion Vente)

3 April 2012 363

The judgment of the Court of Bordeaux is significant because it completely reverses the solution adopted by the first judges and makes a detailed assessment of the parties’ conduct in order to rule out any abrupt break in commercial relations. The case brought against SDV: exclusive distributor (...)

Jean-Louis Fourgoux Term of payment: The French Parliament passes an Act relating to the simplification of law and easing administrative procedures provides, conditionally, a possible waiver extension to maximum period of payment (45/60 days) for 3 more years

22 March 2012 230

Law No. 2012-387 of 22 March 2012 on the simplification of the law and the simplification of administrative procedures, JORF No. 71 of 23 March 2012, p. 5226. The framework for payment periods was strictly regulated by the LME law, which was intended to lead to a reduction, by 1 January 2012 (...)

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 149

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 118

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 177

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 81

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 192

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 152

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, (...)

Alexandre Lacresse Antitrust proceedings: The European Commission formally adopts administrative guidance documents on antitrust proceedings and reformulates the mandate of the hearing officer

16 February 2012 358

Communication from the Commission on good practice in the procedures for applying Articles 101 and 102 TFEU, OJEU No C. 308 of 20 October 2011, p. 6 Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and mandate of Hearing Officer in certain (...)

Alexandre Lacresse Effective judicial remedy: The Court of Justice confirms General Court’s exercise of unlimited jurisdiction over antitrust fines imposed by the Commission (KME Germany/Commission, Chalkor/Commission)

16 February 2012 475

(see also, supra, "Agreements" column, obs. C. Sarrazin, article 42258 and section 42260) CJEU, 8 December 2011, KME Germany and Others v Commission, Case C-272/09 P, "Industrial copper tubes and copper plumbing tubes". CJEU, 8 December 2011, KME Germany and Others v Commission, Case C-389/10 (...)

Alexandre Lacresse Rights of the defence: The Court of Justice annuls a General Court’s judgment and declares illegal the Commission’s decisions adopted despite the loss of parts of the file (Solvay)

16 February 2012 279

CJEU, 25 October 2011, Solvay v. Commission, Case C-109/10 P, "Soda ash market". CJEU, 25 October 2011, Solvay v. Commission, Case C-110/10 P, "Soda ash market". Without going back over all the background to those disputes, it will be recalled that, in 1990, Solvay was penalised both under (...)

Alexandre Lacresse State aids – Admissibility: The Court of Justice applies its Kronoply-Kronotex case law and confirms that a discrepancy at the level of national law should have led the Commission to initiate the investigation procedure (Autriche/Scheucher Fleisch)

16 February 2012 303

CJEU, 27 October 2011, Austria v Scheucher-Fleisch and Others, Case C-47/10 P With this judgment, the Court applies its recent Kronoply and Kronotex case law ((ECJ, 24 May 2011, Commission v. Kronoply and Kronotex, Case C-83/09 P). It thus confirms its approach to the admissibility of actions (...)

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 259

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 (...)

Jean-Louis Fourgoux Significant imbalance: The Commercial Court of Créteil, by two judgments of the same day, declares inadmissible an action for termination introduced by the Minister of the Economy who has not justified information given to the contracting parties of the proceedings for nullity of the contracts initially incurred under the significant imbalance (Minister of the Economy/Système U and Minister of the Economy/GALEC)

15 February 2012 465

As is well known, the autonomous procedure under Article L 442-6 of the Commercial Code still gives rise to considerable debate and the summonses issued by the Minister against distributors trigger an armada of challenges. While some courts allow the applications (see T. com. Lille, 6 January (...)

Jean-Louis Fourgoux Significant imbalance: The Commercial Court of Paris ordered a distributor to stop requiring its suppliers repayment of amounts to which he was convicted by a previous lawsuit by the Minister of the Economy (Minister of the Economy/GALEC)

15 February 2012 438

23,313,681 for transactions considered to correspond to advantages without consideration (Versailles, 29 October 2009, Minister of the Economy v. GALEC, Revue Lamy de la Concurrence, 2010, No. 22; the Versailles Court of Appeal submits to the case law of the Court of Cassation), he intends not (...)

Jean-Louis Fourgoux Undue adavantage: The Court of Cassation, by two judgments on the same day, grants applications by the Minister of the Economy, approves the referral to the commercial courts where the damage was suffered by the victim and censors the judges who had refused to grant a request for restitution of undue advantage on the grounds that the author of restrictive practices had not received payment (Minister of the Economy/GALEC and Minister of the Economy/Carrefour)

15 February 2012 502

Cass. com, 18 October 2011, Minister of the Economy v/ GALEC, No. 10-28005 Cass. com. 18 October 2011, Minister of the Economy c/ Carrefour, n° 10-15296 The first judgment (No. 10-28005) does not merely decide a procedural question relating to the competent court; it also highlights the nature (...)

Alexandre Lacresse European competition network: The Court of Justice does not give up the criteria of the unity of the legal interest protected for the application of the ne bis in idem principle in competition cases (Toshiba Corporation)

14 February 2012 376

CJEU, 14 February 2012, Toshiba Corporation and Others, Case C-17/10 Highly anticipated since the delivery of Advocate General Kokott’s Opinion on 8 September 2011, the Court’s judgment in this case will disappoint those who had hoped for a development in its case-law on the application of the (...)

Alexandre Lacresse Res Judicata: The Court of Justice confirms GC’s decision and denies extension of a judgment that became final to applicants in another case (Total and Elf Aquitaine)

7 February 2012 208

CJEU (ord.), 7 February 2012, Total and Elf Aquitaine v Commission, Case C-421/11 P Total and Elf Aquitaine appealed to the Court of Justice against the judgment of the Court of First Instance (7 June 2011, Total and Elf Aquitaine v. Commission, T-206/06, Case T-206/07).), by which the latter (...)

Jean-Louis Fourgoux Action of the Minister of the Economy: The Paris Court of Appeal declares admissible the action of the Minister of the Economy, cancels 16 clauses of a major retailer contract, orders sums restitution to suppliers and confirms the imposition of a civil fine 2 millions of Euros (Carrefour Hypermarchés/Minister of the Economy)

2 February 2012 291

As part of a national survey, the CFRB reviewed the contracts entered into in fiscal year 2006 between the retail groups and their suppliers. During this survey, it focused in particular on the partnership agreements entered into between the Carrefour group and sixteen of its suppliers, and (...)

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 285

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation agrees with the trial court that held a broadcast producer could not require a notice over the period between the end of the season and the date of the new fall schedule (Paris modes éditions/A Prime Group)

31 January 2012 221

Cass. com, January 31, 2012, Paris modes éditions c/ A Prime Group, n° 11-12899 A broadcaster that edits a television channel had entrusted the production of programs to two companies. It notified them that the programmes would no longer be broadcast in the next season, due to falling audiences (...)

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 1298

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 158

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 (...)

Jean-Louis Fourgoux Action of the Minister of the Economy: The Court of Appeal of Nîmes sanctions, at the Minister of the Economy request, two retailers for invoicing services that were not rendered, in violation of Art. L. 442-6-I-1° of the Commerce code (SO SU MAR Centre Leclerc/Minister of the Economy ; Auzon-Ventoux/Minister of the Economy)

26 January 2012 259

The facts of these two cases are relatively old: in 2005 and 2006, DGCCRF investigators carried out checks on commercial cooperation contracts in several Leclerc supermarkets and hypermarkets. They drew up a report from which it emerged that many commercial cooperation services, in particular (...)

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 71

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 205

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 (...)

Alexandre Lacresse Appeal by the president of the French NCA: The Court of Cassation extends the rights of the President of the French NCA to bring an appeal against judgments of the Paris Court of appeal, in accordance with the VEBIC case law (SFR and France Télécom, Aximum and Sécurité et signalisation)

17 January 2012 312

Cass. com, January 17, 2012, Chairman of the French Competition Authority v. SFR and France Telecom, No. 11-13067 Cass. com, March 20, 2012, President of the Competition Authority c/ Aximum and Security and Signaling, No. 11-16128 While the modernization of competition law and in particular (...)

Jean-Louis Fourgoux Discriminatory pricing – Antitrust: The Paris Court of Appeal notes the repeal of price discrimination in Article L 442-6 of the Commercial code, censors a Court having applied but this text, examines the discriminatory practices of an airline under the angle of anticompetitive practices and orders compensation for damage (Compagnie Emirates/Chadep and British Airways)

14 December 2011 551

A travel agency found that, under strictly equivalent conditions, the ticket prices of the airlines British Airways and Emirates from London were approximately 400 euros lower than those offered by those two airlines from Paris. At the time, the agency had booked air tickets from London for (...)

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 568

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 256

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 568

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 (...)

Alexandre Lacresse State aids: The Court of Justice declares admissible an action against Commission’s decision requiring a Member State to provide information for the examination of a State aid project (Deutsche Post)

13 October 2011 410

CJEU, 13 October 2011, Deutsche Post and Germany v. Commision, joined cases C-463/10 P and C-475/10 P Where a Member State intends to grant aid through State resources and notifies the Commission of its intention to do so, it is required to provide all the information necessary to enable the (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation gives priority to the delay of notice provided by the framework law on the internal transport (LOTI) about the notice proportionate to the length of the commercial relationships required by the Article L. 442-6 I-5° of the Commercial Code (Gefco/Frigo 7-Locatex)

4 October 2011 569

Cass. com, October 4, 2011, Gefco c/ Frigo 7-Locatex, n° 10-20240 It is by a ruling of principle that the Court of Cassation dismisses the application of Article L. 442-6 of the Commercial Code in favour of the period of notice provided for in the standard transport subcontracting contract. (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation approves the trial judges that exclude the character established of the relationship within the meaning of Article L. 442-6 I-5° of the French Commercial Code provided the relationships are based on tenders (YF, Habitat France)

20 September 2011 414

Cass. com, 20 September 2011, YF c/ Habitat France, n° 10-15750 The Habitat distribution group has had its catalogue formatted and printed for many years by a specialist company, outside the strict contractual framework. Following a reorganisation, Habitat informed its publisher of its wish to (...)

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 375

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation states again on the article L. 442-6-I-5° of the Code of Commerce and reverses the decision of the Court of Appeal who had insisted on the independence of the contracts (Racer/Décathlon)

6 September 2011 437

Cass. com, September 6, 2011, Racer v. Decathlon, No. 10-30679 The supplier of a large specialised retailer after complaining of a significant drop in orders was deregistered after six months’ notice. He then brought an action for damages against his customer, whom he claimed had abruptly (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation states that a third party to the business relationship may invoke the sudden termination of a business relationship if that has caused injury to him (Lesaffre)

6 September 2011 468

Cass. com, 6 September 2011, Lesaffre v/ Commercial Company of Siam and Denis frères, No. 10-11975 A company specializing in the manufacture and sale of yeast had established relations with a French import-export company for the distribution of its products in Thailand through a local (...)

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 226

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships - Commercial cooperation: The Paris Court of Appeal condemns a distributor for sudden termination of commercial relationships and pronounces the nullity of commercial cooperation agreements (Jean-Marc Valensi/Carcoop France et Carrefour)

30 August 2011 1052

Jean-Marc Valensi, a jewellery manufacturing company, has had regular commercial relations with the Carrefour-Promodes group since 1990 and has participated in the development of the "Manèges à Bijoux" in Carrefour stores. In February 2003, the Carrefour group informed Jean-Marc Valensi of its (...)

Alexandre Lacresse Merger: The Court of Justice widely opens access to documents of the institutions when decision-making process is ended (Sweden/MyTravel and Commission)

21 July 2011 403

CJEU, 21 July 2011, Sweden v MyTravel and Commission, case C-506/08 P The first case of annulment of a Commission decision declaring a merger incompatible with the common market, the merger between the British tour operators Airtours and First Choice, which was rejected in 1999, has undergone (...)

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 492

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 1107

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 (...)

Alexandre Lacresse Leniency: The Court of Justice refers back to national courts the decision to disclose documents provided to national competition authorities by leniency applicants (Pfleiderer)

14 June 2011 855

CJEU, 14 June 2011, Pfleiderer, aff. C-360/09 In a recent judgment of the Grand Chamber, the Court of Justice of the European Union (ECJ) clarifies the guiding principles to be applied by national courts in deciding on a case-by-case basis on the issue of access to documents obtained by (...)

Jean-Louis Fourgoux Specialisation of courts: The Council of State rejects appeals formed against the decree instituting the specialisation of courts by refusing to ask a priority question of constitutionality and notably validates the decree with regard to article 6 of ECHR (Ordre des avocats au barreau de Lyon)

10 June 2011 494

CE, 10 June 2011, Ordre des avocats au barreau de Lyon e.a., n° 335584, 335593 and 335595 The Bar Associations of Lyon, Strasbourg, Toulouse, Lille, Rennes, Colmar and Mulhouse have asked the Council of State to annul for excess of power Decree No. 2009-1384 of 11 November 2009 relating to the (...)

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 274

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 (...)

Alexandre Lacresse State Aid: The Court of Justice confirms broad interpretation of “ interested parties ” and eases the admissibility requirements for direct actions against non objection decisions (Kronoply et Kronotex)

24 May 2011 539

CJEU, 24 May 2011, Commission v Kronoply and Kronotex, Case C-83/09 P By validating the broad interpretation of the concept of interested parties adopted by the Court of First Instance, the Court of Justice of the European Union confirms the right to appeal against Commission decisions not to (...)

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 486

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 1866

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 (...)

Christophe Pecnard, Daniel Tricot, Jacqueline Riffault-Silk, Jean-Louis Fourgoux, Muriel Chagny Significant imbalance under French unfair practice law

May 2011 2303

The papers gathered in this section devoted to significant imbalance in the parties’ rights and obligations study, not only the rule in itself from a theoretical and practical point of view and the consequences of the French Constitutional Court’s decision, but also in its links with other French (...)

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 565

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 136

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, (...)

Alexandre Lacresse Temporal application of the law: The Court of Justice confirms the application of article 65(1) of the ECSC Treaty jointly with procedural provisions of Regulation n° 1/2003 and specifies the application of limitation period provisions (Luxembourg, ThyssenKrupp Nirosta)

29 March 2011 784

CJEU, 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg, cases C-201/09 P and C-216/09 P. CJEU, 29 March 2011, ThyssenKrupp Nirosta (formerly ThyssenKrupp Stainless) v Commission, case C-352/09 P (See also, supra, "Agreements" column, obs. N. (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal condemns a distributor for sudden termination of established relationships and pronounces the nullity of commercial cooperation agreements (Accorequip and Accor Paris/Minister of the Economy and Transfer)

23 March 2011 551

CA Paris, 23.03.11, G.I.E. Accorequip and Accor Paris v. Minister of the Economy and Transfer, 07/07337 The Paris Court of Appeal considers that the use of a call for tenders may constitute a sham of competition and reveal a discriminatory practice intended to conceal a sudden break in (...)

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 811

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal decides that the failure excluding notice requires a serious and urgent situation to justify immediate termination (Cabinet Cartier/Immo De France)

28 January 2011 746

A firm of property administrators had been managing a property complex in Marseille for 30 years, following various contracts. The owner, due to an overall overspending of more than 25% over the validated budget, expressed his strong dissatisfaction and asked the manager to make a claim. (...)

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 1102

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal confirms a ruling granting advance notice of three months to an audiovisual producer and considers that the damage is the loss of gross margin and not the loss of margin about variable costs (Equidia/25 Mars Production)

20 January 2011 1415

This judgment is part of an extensive interpretation of Article L. 442-6-I-5° since it allows its application in a dispute between an audiovisual production company and a television channel devoted to horse racing (EQUIDIA). While the audiovisual producer had been entrusted with various (...)

Jean-Louis Fourgoux Termination of commercial relationships: The Paris Court of Appeal rules that a distributor may be held liable for removing a portion of trade flows and by terminating any commercial relations with a supplier and re-evaluates the services rendered by the distributor considering them as disproportionate, without pronouncing the invalidity of the agreements (Compagnie des Salins du Midi et des Salines de l’Est/Carrefour)

19 January 2011 1119

In its ruling of January 19, 2011, the Paris Court of Appeals heavily sanctioned a distributor whose commercial relations with one of its suppliers had deteriorated to the point of total breakdown. Since 1974, Compagnie des Salins du Midi had been supplying at least the PROMODES hypermarkets, (...)

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 796

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 1010

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 (...)

Jean-Louis Fourgoux Significant imbalance: The French Constitutional Court rules that the significant imbalance in the parties’ rights and obligations, prohibited by Article L442-6 I-2 of the Commercial Code respects the principle of legality of criminal offences and penalties (Darty et Fils)

13 January 2011 1300

This decision was eagerly awaited, and not only by lawyers practicing distribution law. Its starting point dates back to October 2009, when the Minister of the Economy initiated eight proceedings before various commercial courts against distributors to have this or that clause in the contracts (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal rules that a corner shop agreement constitutes the support of commercial relationship and could be terminated only in accordance with Art. L. 442-6-I 5 ° (Le Bon Marché/Villeroy et Boch)

10 December 2010 1003

The company Villeroy et Boch had a stand contract and operated a sales area within Le Bon Marché which, after 14 years, was subject to a contractual renewal providing for 6 months’ notice in the event of termination. A year and a half after this renewal, Le Bon Marché terminated this agreement due (...)

Jean-Louis Fourgoux Resale at a loss: The French Constitutional Court authorizes the French legislator, in order to improve efficiency, to decline the application of the retroactivity «in mitius» of the new law on resale at a loss as the repression is inhere in previous system (Jean-Marc P)

3 December 2010 1273

This important decision of the Constitutional Council underlines the contributions of the "Priority Constitutionality Question" (PQPC) in all areas of law, including economic law. In this case, on 17 June 2010, the Criminal Court of Tours, in proceedings relating to the resale of a product at a (...)

Jean-Louis Fourgoux Sudden termination of commerial relationships: The Paris Court of Appeal rules that in case of jurisdiction clause provided for the competence of a foreign court, the summary trial judge remains competent only of it exists a connecting factor between the purpose of the measure and the judge who orders the measure (SBMM/Ingrid Kränzle)

26 November 2010 1187

As in the case decided on 28 October by the First Chamber of the Paris Court of Appeal (see above), the panel ruling in summary proceedings proceeded to a strict interpretation of EC Regulation 44/2001 in order to exclude the jurisdiction of the judge hearing summary proceedings in a dispute (...)

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 1287

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 (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal rules that, concerning international agreements, the jurisdiction clause, provided for any disputes arising between the parties, shall apply to the termination of contractual relations but also to abuse of economic dependence (Mondo Uomo/Staff International)

28 October 2010 1114

This decision underlines the will of the Paris Court of Appeal to give the litigation of the abrupt termination of commercial relations a contractual qualification and thus to move away from the approach of the Commercial Chamber of the Court of Cassation, which advocates the qualification of a (...)

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

December 2010 3061

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 903

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 843

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 2327

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 1789

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 882

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 161

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 1385

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 2202

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 1021

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 1270

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 1871

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 1395

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 1161

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 1601

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 1712

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 2049

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 3568

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 (...)

Anne-Marie Luciani, Jean-Louis Fourgoux, Laurent Roberval Payment deadlines - A year ahead the LME Act

February 2010 3988

This set of 3 articles concentrate on the issue of terms of payment as provided by the LME Act. The first contribution deals with the conformity of the French regime with regard to the EC Directive of the 29 June 2000. This study tries to shed light on this problem and in particular on the (...)

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 1119

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 1602

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 1577

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 1858

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 2158

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 1612

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 2264

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 2668

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 2684

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 2477

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 1812

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 1689

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 1308

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 2002

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 3079

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 (...)

Dominique Thesmar, Gilbert Parleani, Jean-Bertrand Drummen, Jean-Louis Fourgoux, Laurence Idot, Martine Behar-Touchais, Muriel Chagny, Valérie Michel Amsellem, Yann Utzschneider Colloque: Restrictive trade practices under the LME Act (AFEC, Paris, 6th October 2008)

September 2009 4859

Introductory remarks Laurence Idot Professor, Universtité Paris II, European College Director of the Scientific Committee of Concurrences Madam President, Ladies and Gentlemen, Dear friends, As the afternoon is busy, I will not go into the substance of the colloquium, but on behalf of AFEC (...)

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

December 2007 2887

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 1692

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 1508

[ 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 2245

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 1773

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 1932

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 3214

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 2336

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 2234

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 5832

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 2139

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 2177

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 4675

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 (...)

Jean-Louis Fourgoux Breaking off of commercial relationships under French restrictive trade practices law: The influence of public order on common law

May 2009 5697

Since 1996, in French restrictive trade practices law, a written notice proportionate to the duration of relationship is necessary before a complete or even a partial breakdown. This provision has been widely applied in a protective way by the case law, both on the notion of "established" (...)

Alain Ménéménis, Arnaud Nuyts, Catherine Kessedjian, Catherine Prieto, Christophe Lapp, Claire Favre, Denis Mazeaud, Emmanuelle Claudel, Frédéric Jenny, Hélène Gaudemet-Tallon, Jean-Louis Fourgoux, Jean-Marc Kiviatkowski, Joelle Simon, Laurence Idot, Louis Vogel, Marie-Laure Niboyet, Michael Wilderspin, Rainer Becker, Soraya Amrani-Mekki, Yves Gaudemet Conference: The EC White Book on competition private enforcement (Paris, 13 06 2008)

May 2009 7100

Whereas in the enforcement system of Articles 81 and 82 EC resulting from Regulation No 17/62, it was usual to distinguish between the application of these texts, on the one hand, by the Commission and, on the other hand, by the national authorities and courts, which led to a preference for a (...)

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 2052

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 1702

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 2044

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 4199

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 2029

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 1854

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 1757

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 2089

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 2487

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 4109

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 1884

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 2139

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 2575

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 1661

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 1958

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 1988

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 2859

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 2995

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 4264

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 2642

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 2136

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 2095

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 1784

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 2797

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 1943

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 2474

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 2160

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 2126

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 2023

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 2435

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 1711

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 1830

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 2645

"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 6814

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 2287

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 1928

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 2184

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 2245

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 2288

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 3318

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 2301

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 1803

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 2206

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 2494

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 2337

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 3009

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 2542

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 2071

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 2286

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 2042

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 2352

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 1921

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 1849

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 1887

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 1730

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 1686

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 2040

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 2138

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 2410

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 1917

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 2293

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 1932

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 2031

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 1912

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 (...)

Anne-Marie Luciani, Eric Morgan de Rivery, Frédérique Daudret-John, Jean-Louis Fourgoux, Laurence Idot, Muriel Chagny, Stephan Reifegerste, Valérie Lasserre, Véronique Lemeur-Baudry Civil law remedies to anticompetitive practices (Le Mans, 5 December 2006)

May 2007 10508

This article appears only in pdf version, attached.

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

17 April 2007 2602

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 2761

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 2526

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 2095

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 1748

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 1900

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 2287

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 1635

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 2395

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 1743

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 2189

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 2175

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 2310

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 1605

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 1673

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 2124

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 2500

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 2063

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 1801

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 1942

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 3675

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 2041

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 1936

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 10812

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 1864

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 2531

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 2344

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 1700

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 1828

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 1606

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 1587

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 2673

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 1955

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 1672

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 2575

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 3214

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 1754

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 9921

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 1504

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 2071

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 2269

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 2800

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 2071

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 1819

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 1862

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 2053

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 1838

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 1747

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 1773

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 1761

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 2181

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 1791

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 1595

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 2059

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 2106

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 1799

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 2069

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 1753

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 1894

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 1952

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 2097

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 2534

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 2069

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 2095

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 2240

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 1758

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 2596

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 1587

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 2152

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 1896

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 2401

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 1875

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 1690

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 2251

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 1789

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 2370

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 1773

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 1733

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 2167

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 1750

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 2424

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 1805

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 1687

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 1693

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 2186

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 1803

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 2584

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 2192

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 2562

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 2252

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 1673

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 2265

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 996

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 1855

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 1070

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 873

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)

29 April 2004 948

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 316

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 998

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 1908

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 944

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 992

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 2251

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 2719

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 1336

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 921

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 2254

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 4309

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 959

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 1288

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 (...)

Bulletin

Foreword

Alexandre Lacresse Agency agreements: An overview of EU and national case law

19 December 2019 1321

Discussions on agency agreements have long focused on the distinction between “genuine” and “non-genuine” agents and on the question of who, between the principal and the agent, bears the risks. As the literature on this distinction is profuse, the current article will mainly attempt to give an overview of recent cases in which principals and/or agents were found liable for anticompetitive behavior under Article 101(1) or 102 TFUE, especially where the agreement facilitated collusion or price control. The principal’s liability for its agent’s conduct is particularly at stake in such cases.

European Union

Alexandre Lacresse The EU Court of Justice affirms the need to clearly distinguish between restrictions by object and restrictions by effect (Toshiba)

20 January 2016 200

No more than two years elapsed between the Allianz Hungária case, which appeared to confuse the notions of “restriction by object” and “restriction by effect”, and the Groupement des cartes bancaires case, which seemed to put an end to that confusion. The Court needed to adopt a third position in (...)

France

Fayrouze Masmi-Dazi, Jocelyn Goubet The French Civil Supreme Court requests justification on how belonging to a group may be considered an aggravating factor in setting antitrust fines (Allez)

21 October 2014 149

On 21 October 2014, the French Civil Supreme Court issued a decision regarding bid rigging in the public contract sector. Following an investigation of the Directorate-General for Competition, Consumption and the Fight against Fraud, the French Competition Authority found ten undertakings (...)

Conferences

18 Nov 2020 Webinar Distribution, competition and unfair practices #2 : Trade negotiations, Significant imbalance & Closing discussion See documents

17 Nov 2020 Webinar Distribution, competition and restrictive practices #1: Joint purchasing agreements See documents

28 Mar 2019 Paris 4th Private Enforcement Conference : The current state of private enforcement in the EU and France See documents

18 Oct 2016 Paris New competition opportunities before ordinary courts - Competition Talks See documents

Books

Price 45^€00 A quoi sert la concurrence ?

See the "avant-propos" of Laurence Idot, Frédéric Jenny et Nicolas Charbit the Foreword of Martine Béhar-Touchais The full list of contributors and the Table of Contents 100 contributions for the (...)

Date 30 September 2014

Author(s): Martine Behar-Touchais, Nicolas Charbit, Rafael Amaro

Price 45^€00

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