University Littoral-Côte d'Opale

Review

Valérie Durand Specialized courts: The French Supreme Court clarifies the admissibility of compensation claims (Horeca / Eurimex ; Wesina ; M. V. I.)

13 April 2023 82

The case is rooted in supply contracts signed on April 8, 2009 between Société Horeca and the companies Eurimex and Wesina, under which the former undertook to produce and supply various cookies, with the latter responsible for marketing them in France and abroad under various brand names. (...)

Valérie Durand Commercial relationships: The French Supreme Court rules on the elements of assessment taken into account to establish the precariousness of a commercial relationship (Africa Food Distribution)

22 March 2023 124

The brutal termination of established commercial relations remains a major source of litigation from both a procedural (see above) and a substantive point of view. substantial point of view. The decision rendered by the Commercial Chamber of the French Supreme Court on March 22, 2013 provides (...)

Valérie Durand Specialized jurisdictions: The French Supreme Court reaffirms the solutions adopted with regard to jurisdictional specialization (Canadour-Coqadour)

11 January 2023 220

After more than 10 years of application, the system of specialization of jurisdictions introduced by the law n° 2008-776 of August 4, 2008 for the modernization of the economy still raises questions. Simple at least on the surface, this mechanism consists in subjecting disputes relating to the (...)

Valérie Durand Established commercial relationship: The French Supreme Court rules on the conditions for the continuation of an established commercial relationship as well as on its partial termination due to a drop in orders (Schneider Electric / AJ Partenaires)

19 October 2022 106

While the reform of Title IV of Book IV C. com. is soon to celebrate its fourth anniversary, the judicial notoriety of the former article L. 442-6, I, 5° of the same Code does not seem to want to weaken, as shown by the decision rendered by the Commercial Chamber of the Court of Cassation on (...)

Valérie Durand Commercial agent: The French Supreme Court reiterates that former article L. 442-6. I. 5° of the commercial code does not apply to commercial agents (Exalis)

7 September 2022 175

The former article L. 442-6, I, 5° C. com. (now C. com., art. L. 442-1, II with Ordinance No. 2019-359 of April 24, 2019 recasting Title IV of Book IV on transparency, restrictive competition practices and other prohibited practices) is a cardinal device in the fight against unfair commercial (...)

Valérie Durand Faulty performance: The French Supreme Court reviews the identification of a sufficiently serious breach of contract (Smag)

7 September 2022 164

The public policy provision allowing the sanctioning of the brutal termination of an established commercial relationship may be set aside in the presence of the non-performance by the other party of its obligations. The solution was expressly provided for in the former article L. 442-6, I, 5° (...)

Daniel Fasquelle Competition law at a crossroad with digital giants (Paris, March 17, 2022)

September 2022 1448

At first competition law was unable to control the GAFAM. Fortunately, we now have a new set of rules both at the European and national level. But we have to make strategic choices to avoid certain pitfalls and to ensure these rules remain efficient. *This article is an automatic (...)

Valérie Durand Notice period: The French Supreme Court recalls the conditions for assessing the notice period (Baudet)

1 June 2022 138

While it had a long-standing business relationship with the company Baudet, the company Claas - having succeeded the company Renault agriculture - decided to end it. The decision to terminate the commercial relationship was notified by letter (dated September 26, 2014). The termination was (...)

Valérie Durand Specialized courts : The French Supreme Court recalls that the jurisdiction of specialised courts cannot be set aside by a jurisdiction clause (France Galop)

1 June 2022 113

This judgment illustrates once again the difficulty raised by the establishment of specialized courts, a difficulty that has survived the Order n° 2019-359 of April 24, 2019 recasting Title IV of Book IV of the C. com. relating to transparency, restrictive competition practices and other (...)

Valérie Durand Area of application: The French Supreme Court held that Article L. 442-6, I, 5° C. com. applies to an intermediary mandate in banking transactions (Caisse d’épargne)

6 April 2022 115

In a decision rendered on April 6, 2022, the Commercial Chamber of the Court of Cassation ruled that article L. 442-6, I, 5° C. com. in banking operations as defined in article L. 519-1 of the Monetary and Financial Code. To do so, it proceeds in three steps. First, it recalls that the (...)

Stéphanie Douteaud Irregular application: The French Administrative Supreme Court gives life to the power to grant the continuation of contractual relations in the presence of a contract concluded with an operator whose application is incomplete (Commune de Ramatuelle)

28 March 2022 144

"In a decision dated March 28, 2022, the Council of State reversed its jurisprudence concerning contracts awarded to a candidate whose application was inadmissible. It agrees to authorize the continuation of a flawed contract". "A defect in the procedure for awarding the contract, which (...)

Valérie Durand Abrupt termination: The French Supreme Court issues a few reminders regarding the brutal termination of established commercial relations (Société d’exploitation des établissements Roques, Société E. O. / Groupement forestier de la compagnie des Landes, société forestière de la Caisse des Dépôts et consignations)

16 February 2022 134

The case is simple. At issue was the breach of a contract for the cleaning of pine plots, signed following the Klaus storm of 2009. Following this breach, the victim service provider sued the forestry company of the Caisse des Dépôts et Consignations - which manages forest areas on behalf of (...)

Valérie Durand Disproportionality: The French Supreme Court confirms the disproportionate nature of a non-competition clause (Educinvest / Sud-Ouest Campus)

16 February 2022 155

The case has already made news (Cass. com., November 28, 2018, No. 17-18.619, L’essentiel, Droit de la distribution et de la concurrence, Feb. 1, 2019, obs. O. Zakharova-Renaud; Contrats conc. consom. 1/2020, 1, obs. M. Behar-Touchais and J.-B. Gouache; Juris association 2019, n° 592, p. 9, (...)

Valérie Durand Non-competition clause: The French Supreme Court emphasizes the complementarity of the various non-competition obligations in the context of a transfer of business (M. [W] [R], Ekip / Et toque !...)

26 January 2022 194

While it is traditional to distinguish between non-competition obligations according to their source (contractual or legal), it is also possible to distinguish between them according to their source (contractual or legal). See in particular. Rep. Dr. commercial, Dalloz, v Concurrence : (...)

Valérie Durand Applicable law: The French Supreme Court rules out the application of the former article L. 442-6, I, 5° C. com. to the relationship between an industrial property attorney and his clients (Brandstorming / Yves Saint-Laurent, Balanciaga, Yves Saint-Laurent parfum, Kering)

1 December 2021 132

The former article L. 442-6 of the French Commercial Code remains a particularly lively source of litigation. One of the causes of this litigation is undoubtedly the delimitation of the field of application of the sanction mechanism for the brutal rupture of established commercial relations. (...)

Valérie Durand Specialized jurisdictions: The French Supreme Court recalls the consequences of the existence of specialized courts to hear disputes relating to the provisions of the former article L. 442-6, I, 5° C. com. (Carrefour voyages) (La Villa Brignac / Caisse de crédit mutuel)

1 December 2021 117

From 2008 onwards, the litigation arising from the practices referred to in the former article L. 442-6 of the French Commercial Code has been largely competed by the questions raised by their judicial treatment. Indeed, the reservation of this litigation to specialized courts that have been (...)

Valérie Durand Sudden termination: The French Supreme Court recalls the criteria for assessing the notice period (Tél and Com / Bouygues Télécom)

10 November 2021 168

Bouygues Telecom and Tél and Com began their commercial relationship in 1999. During 2012, the two partners considered modifying the terms of their relationship with regard to the specific distribution conditions. As no agreement was reached, by letter dated November 27, 2012, Bouygues Télécom (...)

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 4364

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 (...)

Valérie Durand Exclusive jurisdiction: The French Supreme Court extends the exclusive jurisdiction of the Paris Court of Appeal to a subsidiary claim based on Article L. 442-6, I, 5° C. com. (MHCS)

31 March 2021 129

The legislator has chosen to establish a specialisation of the courts in the wake of litigation relating to restrictive competition practices. However, the implementation of this system continues to reveal its complexity. The decision rendered by the Commercial Chamber of the Court of (...)

Valérie Durand Sudden termination: The French Supreme Court excludes the application of the former Article L. 442-6, I, 5° C. com. to the relationship between a dental surgeon and his supplier (Sourire et Santé / Laboratoire BC)

31 March 2021 153

Housed at the heart of the mechanism introduced in the former article L. 442-6, I, 5° C. com. (now, C. com., art. L. 442-1, II since Order No. 2019-359 of April 24, 2019), the condition of "commercial relationship" remains a place of tension. While some solutions promote a flexible conception (...)

Stéphanie Douteaud Body governed by public law: The Court of Justice of the European Union answers the question whether a sports federation performing tasks in the public interest and having autonomous management is a body governed by public law within the meaning of Directive 2014/24/EU (Federazione Italiana Giuoco Calcio, Consorzio)

3 February 2021 132

Last spring, brief remarks by Councillor Anne Courrèges reminded us of what contemporary administrative law owes to sports litigation (A. Courrèges, "No sport", D.A., March 2021, benchmark). If the core of his analysis focuses on domestic law, the case settled by the Court of Justice on 3 (...)

Valérie Durand Unfair competition: The French Competition Authority provides clarifications concerning the interruption of the limitation period for actions based on acts of unfair competition and the abusive termination of commercial relations (Auto-Ritz / Automobiles Citroën and PSA Retail France)

14 January 2021 206

Extinctive prescription, of which Bigot de Préameneu said that ’of all the institutions of civil law, (prescription) is the most necessary to the social order’, remains a cardinal feature of litigation, against which the claims of litigants frequently come up against. The decision rendered by (...)

Valérie Durand Sudden termination: The French Supreme Court specifies the liability to be applied when the claim is based on common law of civil liability (Cap Recouvrement / Pathologie Nord-Unilabs)

16 December 2020 287

The Commercial Chamber of the Court of Cassation has recently had occasion to issue a few reminders concerning the implementation of the responsibility of the author of a brutal breach. The case was very simple: a contract for the provision of collection services had been concluded between the (...)

Valérie Durand Sudden termination: The French Supreme Court specifies that sufficiently serious breach of contract does not exclude any notice (Annick Goutal / Dispar)

14 October 2020 269

The Goutal company has contracted the exclusive distribution of its brand products to Dispar Spa. The contract, concluded for a period of three years, contains a clause of tacit renewal for periods of one year and provides for the possibility for the parties to terminate the agreement three (...)

Stéphanie Douteaud Concessions contract: The French Administrative Supreme Court introduces a transitional legal framework allowing economic operators convicted by a final court order to prove their reliability and then to take part in the consultation process (Vert Marine)

12 October 2020 175

“The "Société Vert Marine" case confirms what the eponymous judgment of the Court of Justice foreshadowed: the compulsory exclusion regime applicable to concessions from the Public Procurement Code (Code de la commande publique) is incompatible with the objectives of Directive 2014/23/EU. (...)

Valérie Durand Sudden termination: The French Supreme Court specifies the rules of prescription applicable to the sudden termination of commercial relations (Hamel / Établissement Denis)

8 July 2020 235

Following a dispute concerning a disturbance on a structure, the company Établissement Denis has terminated its commercial relations with the company Hamel, the termination having been notified by a letter dated September 2, 2009. In a first dispute, the latter made a counterclaim for (...)

Valérie Durand Sudden termination: The French Supreme Court reiterates the methods of compensation for damages resulting from the sudden termination of an established commercial relationship (Caisse fédérale du crédit mutuel Centre Est Europe / Offre et demande agricole)

24 June 2020 184

It’s a very simple case. Since 1999, various agreements have been concluded between ODA, which provides training and consultancy services in the marketing of agricultural raw materials, on the one hand, and the National Confederation of Mutual Credit (CNCM) and three Swiss Federal Credit (...)

Valérie Durand Sudden termination: The French Supreme Court reiterates that the termination of a commercial relationship without prior notice requires the establishment of a sufficiently serious breach of contract (SETNAG / Tecora)

10 June 2020 168

If the former article L. 442-6, I, 5° C. com. - applicable to the case - provided for the possibility of termination without notice, this possibility remained subject to the occurrence of special circumstances. These circumstances included force majeure and breach of contract. In order to (...)

Stéphanie Douteaud Inadmissible offer: The French Administrative Supreme Court reverses its case law extending admissible legal grounds for petitioners who submitted an inadmissible offer (Clean Building)

27 May 2020 132

In a court order dated 27 May 2020, the French Administrative Supreme Court reversed its case law concerning the petitioners for summary proceedings who had submitted an inadmissible offer. Returning to the "Syndicat Ody 1218 Newline of Lloyd’s of London" case, it agreed to examine the plea (...)

Valérie Durand Non-competition clause: The French Supreme Court specifies the condition of geographic scope required for the validity of a non-competition clause (Nutrisens, Bocage, Nutrisens médical / Clarelia)

4 March 2020 314

Although their validity and usefulness are recognised, non-competition clauses are still met with reluctance today because of their potential for substantial infringements of fundamental freedoms such as the freedom of enterprise. For this reason, the effectiveness of non-competition clauses (...)

Paul Belleflamme, Francisco Costa Cabral, Tim Cowen, Daniel Fasquelle, Paula Forteza, Inge Graef, Max Huffman, Frédéric Marty, Jacques Moscianese, Gabriella Muscolo, Martin Peitz, Sebastien Soriano, Thierry Warin, Ramsi Woodcock Digital & competition

February 2020 4236

This series of articles highlights the existing debate about the role of competition policy in the digital economy. Each contribution addresses the subject from a different perspective. The first two discuss non-price strategies practiced by monopoly digital platforms and remedies that can be (...)

Valérie Durand Guidelines: The General Directorate for Competition Policy, Consumer Affairs and Fraud Control publishes a new version of the guidelines on the supervision of promotions

16 January 2020 271

Article 15, I, of Law No. 2018-938 of 30 October 2018 for balanced trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all (known as the "Egalim Law") empowered the government to take, by means of an ordinance, "any measure falling within the (...)

Valérie Durand Unfair competition: The French Supreme Court recalls the rules for determining the applicable law to an action for unfair competition (FLP / Goyard Saint-Honoré)

15 January 2020 291

Two companies operating in the leather goods sector obtain from a common partner the opening of a counter in a department store located in Osaka. The two counters, located close to each other, are open on the floors of prestigious leather goods stores. One of the counters (opened under the (...)

Valérie Durand Sudden termination: The French Supreme Court recalls that an established commercial relationship may be terminated without notice in the event of a sufficiently serious breach (Système U / M. B.)

15 January 2020 240

Although Title IV of Book IV and, with it, Article L. 442-6 C. com. have been reformed (see L. No. 2018-938, 30 October 2018 for the balance of trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all, art. 17 empowering the Government to reform (...)

Stéphanie Douteaud Administrative appeal: The French Administrative Supreme Court articulates the administrative appeal and the "Tropic" appeal and prohibits the authority in charge of procurement operations from modifying a tender (Communauté de communes de Sélestat)

20 December 2019 132

The judgment reported should be mentioned in the columns of this column in view of the many contributions it makes to the law on the award of public business contracts (as shown in its file in the Lebon Reports). The submission of an application for an ex gratia payment by the third party (...)

Valérie Durand Unfair competition: The Paris Court of Appeal condemns a group of companies qualified as transport undertakings for unfair competition (Viacab / Uber)

12 December 2019 232

The activity of transporting people by car has been quite largely transformed by the contact with digital technology. The appearance of new services and new ways of providing transport services associated with the emergence of platforms have inevitably called into question the rules of various (...)

Valérie Durand Reform: The monitoring group implemented by the Commission for Economic Affairs of the French Senate issues a report on the implementation of Title I of Egalim law

30 October 2019 131

Act No. 2018-938 of 30 October 2018 on balanced trade relations in the agricultural and food sector and on healthy, sustainable and accessible food for all - known as the "Egalim Act" - is once again the subject of much attention. The Senate’s Economic Affairs Committee set up a monitoring (...)

Stéphanie Douteaud Bidding ban regime: The Court of Justice of the European Union specifies the option available to any contracting authority to exclude a tenderer (Delta Antreprizà de Constructti si Montaj 93)

3 October 2019 178

A Romanian public company (CNAIR) initiated an open procedure for the award of a public works contract for the widening of a road. A temporary association of companies (ATE) submitted a bid. When CNAIR queried the electronic register supplied by the contracting authorities, it learned that the (...)

Daniel Fasquelle Is the role of the competition authorities limited to sanctions? (Paris, 17 Sept. 2019)

February 2020 265

Intervention made on September 17th, 2019 during the conference organized by Concurrences. I. Law enforcement function, decision-making function, advisory function 1. The primary mission of the Competition Authority ("ADLC" or "the Authority") is to ensure the competitive functioning of (...)

Stéphanie Douteaud Public domain: The Ministry of the Interior - wrongly? – comforts the fairgrounds by specifying that the authorisation to occupy the public domain issued for a period of less than four months avoids, in principle the tendering procedure (Réponse ministérielle n° 10392)

12 September 2019 103

The Corrèze senator D. Chasseing alerted the government to the uncertainties that competitive bidding for titles of state occupation is creating for fairground activities. In a question sent on 16 May, he called for the opening of a permanent dialogue between professionals in the sector and (...)

Valérie Durand Unfair competition: The Toulouse Court of Appeal recalls the grounds enabling to sanction unfair competition acts (Ms. G / Mr F)

4 September 2019 214

The ruling handed down by the Toulouse Court of Appeal on 4 September 2019 is an opportunity to recall the various sources of protection for competitors against acts of unfair competition. The case concerns acts carried out by a general insurance agent following his retirement. At the end of (...)

Daniel Fasquelle Restrictive trade practices in the food and retail sector: Is the end near, truly? (New Frontiers of Antitrust - Paris, June 14th, 2019)

November 2019 769

The present contribution was received following up the 10th edition of the “New Frontiers of Antitrust” annual Concurrences review Conference held in Paris on June 14th, 2019, at the French Ministry of Economy and Finance. The discussions revolved around four topics. The members of the first (...)

Daniel Fasquelle Opening remarks (The reform of the French Commercial Code’s Title IV Book IV - Nanterre, April 4th, 2019)

September 2019 277

The rewriting of Title IV of Book IV of the Commercial Code: Much ado about nothing? ---- Daniel Fasquelle Associate University Professor Member, LARJ (Legal Research Laboratory) EA 3603 Vice-Chairman, Economic Affairs Committee, National Assembly, Paris Introduction 1. Rewriting (...)

Valérie Durand Unfair competition: The French Supreme Court confirms a conviction for counterfeiting and unfair competition (Playmédia / France télévisions)

4 July 2019 301

The case between Playmédia and France Télévisions has once again made the news. The dispute arose around the offer of a live broadcasting service, free of charge and without subscription, of television channels accessible via a playtv.fr website proposed by the company Playmédia. More (...)

Valérie Durand Sudden break: The French Supreme Court rules that the announcement of a business transfer has no effect on the established character of the commercial relationship (Garage Sylvestre / Automobile Citroën)

3 July 2019 155

The termination of established commercial relations remains a particularly lively basis for litigation, as evidenced by the ruling handed down by the Commercial Chamber of the Court of Cassation on July 3, 2019. This ruling also provides an opportunity for the Court of Cassation to clarify the (...)

Valérie Durand Sudden termination: The French Supreme Court applies Article L. 442-6, I, 5° of the French Commercial Code to a sudden termination of an international commercial relationships (Acciaierie Bertoli Safau Sisak / Phocéenne)

7 May 2019 644

Where, unlike its partner, a party to the commercial relationship has its seat and activity in France, it seems logical that it should seek the protection offered by French law. This is the case where the breach of which it is a victim falls, or appears to fall, under the provisions of the (...)

Valérie Durand Compensation for termination: The French Commission for Examination of Unfair Commercial Practices examines the compliance with the former Article L. 442-6, I, 2 of the French Commercial Code of a compensation due in the event of non-renewal of a commission contract (Commission contract in the pharmaceutical sector)

18 April 2019 244

The Commission d’examen des pratiques commerciales (CEPC) was asked to examine a clause contained in a commission contract in the light of the former Article L. 442-6, I, 2° C. com. (which, with Order no. 2019-359 of 24 April 2019, became Article L. 442-1, I, 2° C. com.). The disputed clause (...)

Valérie Durand Sudden termination: The French Supreme Court recalls the meaning of non-combination of contractual and extra-contractual liabilities in case of sudden termination of commercial relationships (TIM / Laboratoire URG)

10 April 2019 363

Undoing business relationships that have developed over decades is not easy. The author of the breach exposes himself to the risk of his extra-contractual liability on the basis of the former article L. 442-6, I, 5° C. com. (which, withOrder no. 2019-359 of 24 April 2019, became article L. (...)

Daniel Fasquelle, Romain de Nijs Buyer power and supplier platforms merger: What role for competition authorities? (Paris, 21 Febr. 2019)

February 2019 329

These articles were collected following the Seminar ’Buyer power and supplier platforms merger: What role for competition authorities?’ organized by Concurrences on 21 February 2019 in Paris. The first contribution focuses on the legislative and jurisprudential difficulties in containing the (...)

Valérie Durand Sudden termination: The French Supreme Court rules that a sudden termination of established business relationships may be justified by the existence of an economic crisis (Iplus / Icade EMGP)

6 February 2019 347

The reduction or cessation of orders, even substantial, does not necessarily fall within the scope of Article L. 442-6, I, 5° C. com. However, the relationship that is broken must be an established commercial relationship and the break must be abrupt. The termination must also be attributable (...)

Valérie Durand Damage quantification: The French Supreme Court rules on the quantification of economic damage and refuses to take into account avoided costs (RPM Compagny / Texto France)

23 January 2019 290

The abrupt termination of established commercial relations constitutes a civil fault which allows the party who is the victim to engage the extra-contractual liability of the person who caused it (Com. L. 442-6. - Cass. com. 6 Feb. 2007, No. 04-13178, Bull. civ. IV, No. 21; V. égal. Cass. com. (...)

Valérie Durand Lawfulness: The Paris Court of Appeal examines the conformity of a non-competition clause with regard to Community law and internal law (P2M Shoes / Besson Chaussures)

12 December 2018 351

In November 2004, Besson Chaussures entered into a contract with P2M Shoes under which it entrusted the latter with the operation of a business for the sale of footwear, textiles and accessories. A new contract - a management contract for an indefinite period - was signed in September 2008, (...)

Valérie Durand Software package: The French Commission for examination of unfair commercial practices examines the compliance of a trade practices of a software package provider with Article L. 442-6 of the French Commercial Code (Trade practices of a software package provider)

4 October 2018 123

The Commission d’examen des pratiques commerciales has been questioned as to the conformity with the provisions of Article L. 442-6 C. com. of a commercial practice consisting of a software package supplier demanding payment of an additional fee from its customer under threat of ceasing (...)

Caroline Bellone-Closset, Catherine Prieto, Daniel Fasquelle, Jean-Christophe Grall, Julia Xoudis, Juliette Théry, Léna Sersiron, Marie-Alice Fasquelle-Leonetti, Romain Travade Agriculture and competition law, towards reconciliation?

September 2018 3327

What was implicit, and has been established in November 2017 by the Court of Justice in the judgment on endives, has been specifically laid down by the European legislator in the omnibus regulation of December 2017: the prohibition on cartels does not apply to producer organizations and (...)

Valérie Durand Notice period: The French Supreme Court decides that Article L. 442-6, I, 4° of the French Commercial Code does not apply to manoeuvres that occurred after the breach of the commercial relationship (France Ligne / 44 Galerie Lafayette)

20 June 2018 166

Since 1982, France Ligne has had a business relationship with four companies in the Galeries Lafayette Group (GL companies), including 44 Galeries Lafayette - the Group’s central purchasing unit. The latter notified France Ligne by registered letter dated 26 October 2011 of the termination of (...)

Valérie Durand Absence of jurisdiction: The French Supreme Court holds that a non-specialized court may not rule on a defence on the merits based on Article L. 442-6 of the French Commercial Code (Pharmacie de la Croix Verte / Pharmagest)

16 May 2018 199

Despite the successive clarifications provided by case law, the system of specialisation of the courts remains a hotbed of litigation. The Commercial Chamber of the Court of Cassation has handed down no less than ten judgments in this area since January 2018, including the judgment of 16 May (...)

Valérie Durand Exclusion: The French Supreme Court rejects the application of Article L. 442-6, I, 5° of the French Commercial Code to the exclusion of a cooperative member (Système U Centrale Régionale Est / Les Magasins longoviciens)

16 May 2018 204

Case law offers a new example of a restriction on the application of article L. 442-6 C. com. based on the existence of a special regulation and not on the impossible characterisation of the conditions of implementation of this provision (see not., Cass. com, Oct. 23, 2007, No. 06-16774, Bull. (...)

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

May 2018 703

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. (...)

Valérie Durand CEPC: The French Commission for Examination of Unfair Commercial Practices examines compliance with the law of clauses introduced in exclusive concession contracts as from renewal of those contracts (Agricultural equipment)

23 April 2018 306

The CEPC was referred to it by a trade union concerning two clauses inserted in exclusive concession contracts when they are renewed, it being specified that the contracts in question are concluded between a company operating in the agricultural equipment sector and the members of its (...)

Gianni De Stefano, Giovanni Labate, James Harvey, Jérémy Bernard, Laurent Eymard, Marie Blanchard, Nathalie Jalabert-Doury, Salomé Cisnal De Ugarte, William Koeberlé The Coty judgment: Online selective distribution and platform bans

May 2018 2075

In its Coty Germany c. Parfumerie Akzente decision dated 6 December 2017, the Court of Justice reiterated the conditions of application of Article 101 TFEU to selective distribution agreements based on qualitative criteria. The Court also ruled for the first time on the prohibition to resell (...)

Valérie Durand Right to a fair trail: The French Supreme Court indicates how to apply the reversal of the case law which intervened in March 2017 (Best automobile / Toyota France)

21 March 2018 244

The ruling handed down by the Commercial Chamber of the Court of Cassation on 21 March 2018 (No. 16-28412. V. not. F. Buy, Le contentieux et la modulation dans le temps des revirements de jurisprudence, AJ contrats 2018, p. 182 et seq.) underlines both the variety of questions raised by the (...)

Valérie Durand Franchise agreements: The Paris Court of Appeal confirms the sanction of the violation of a non-competition clause during the execution of franchise agreements (Paul service)

7 March 2018 214

The Holder company (franchisor) operates the franchise network of bakeries under the Paul brand. On April 6 and December 11, 2006, it entered into two franchise agreements with the company Coupaul. These agreements cover the operation of a bakery business owned by the franchisee in Poitiers (...)

Valérie Durand Jurisdiction clause: The French Supreme Court retains the application of a jurisdiction clause to a dispute relating to the sudden breach of established commercial relationships (DSL Distribution c/ Wiesenhof International)

5 July 2017 320

Wiesenhof, a company incorporated under German law for the production and marketing of poultry, which has been doing business with a wholesale company since 2005, has announced to its business partner that it is discontinuing its services. A letter dated 25 April 2012 to this effect set the (...)

Valérie Durand Specialised jurisdiction: The French Supreme Court holds that an action based on contractual provisions may defeat exclusive jurisdiction of specialised courts to hear actions based on Article L. 442-6 of the French Commercial Code (GTM c/ Speedy France)

21 June 2017 130

The ruling handed down on 21 June 2017 by the Commercial Chamber of the Court of Cassation testifies to the difficulty of implementing the monopoly conferred on the specialised courts to hear disputes relating to Article L. 442-6 C. com. under the rules of civil procedure. It also underlines (...)

Valérie Durand Economic interest grouping: The French Supreme Court states that Article L. 442-6, I, 2 ° of the French Commercial Code does not apply to the internal rules of an Economic Interest Grouping (Les indépendants c/ RadioNova)

11 May 2017 294

The GIE Les indépendants was created in 1992 by local radio stations. The aim was for these radio stations to aggregate their respective audiences in order to offer national advertisers a grouped offer of advertising space. After joining the members of the GIE - in 1993 and 2003 respectively - (...)

Valérie Durand Jurisdiction: The French Supreme Court specifies the limits of the specialized jurisdiction of the Paris Court of Appeal (SCA Landes / Afid Consulting Group)

26 April 2017 159

The establishment of specialized courts with jurisdiction to hear disputes relating to article L. 442-6 C. com. was in response to a concern for legal and judicial efficiency. The specialisation of the courts was intended to ensure the rapid, appropriate and uniform treatment of such disputes. (...)

Valérie Durand Specialized jurisdictions: The French Supreme Court decides on an arbitration clause and a clause conferring jurisdiction in the context of litigation relating to Article L. 442-6 of the French Commercial Code (Cabinet maîtrise d’œuvre / Lavalin international)

1 March 2017 255

Litigation arising from the existence of specialised courts with exclusive jurisdiction to hear disputes relating to Article L. 442-6 C. com. is not confined to questions arising from the multiple grounds for the claims or the application over time of the system set up by Law 2008-776 of 4 (...)

Valérie Durand Non specialized jurisdiction: The French Supreme Court considers the jurisdiction of a non-specialized court when, at first instance, the request is solely based on Article 1134 of the Civil Code (Messer France / Norgaz)

1 March 2017 139

Since Law No. 2008-776 of 4 August 2008, Article L. 442-6, III, paragraph 5 C. com. reserves the right to hear disputes relating to the application of Article L. 442-6 of the same Code to the specialised courts listed in Decree No. 2009-1384 of 11 November 2009. The system is supplemented by (...)

Valérie Durand Misleading commercial practices: The French Supreme Court specifies the conditions for unfair competition action based on deceptive marketing practices (Laboratoires Léa et La Boutique Léa Nature / Najjar)

1 March 2017 325

The dispute was between a company specialising in the manufacture and marketing of cosmetic products and a former supplier of artisanal soaps manufactured in Aleppo. At the heart of the dispute was the marketing by the former and a company of the same group of a soap under the name "Aleppo (...)

Valérie Durand Non-compete: The French Supreme Court reiterates the need to investigate if the non competitive clause was respected by the transferor of a business (Un jour à Paris / Le Manège)

11 January 2017 147

At issue was the scope of the commitment made by the seller in the context of a non-competition obligation subscribed at the time of the sale of the business. Following the sale, the assignee - the company Un jour à Paris - noted the opening of a similar business in premises adjacent to the (...)

Valérie Durand Temporal application of the law: The French Supreme Court holds that Article D. 442-3 of the Commercial Code is not applicable to proceedings introduced before its entry into force (La Redoute ; Generalis)

30 November 2016 207

Since Law No. 2008-776 of 4 August 2008, Article L. 442-6, III of the Commercial Code includes a fifth paragraph, which establishes the exclusive jurisdiction of specialized courts. More specifically, it reserves the right to hear disputes relating to Article L. 442-6 of the same Code to (...)

Valérie Durand Non-compete clause: The French Supreme Court holds that the non-compete clause in a non-employee management contract must provide for a financial consideration otherwise the clause would be void (Distribution Casino France)

5 October 2016 360

The articulation of the special rules between them and, more particularly, the rules of ordinary labour law and the special rules applicable to non-employee managers of food retail branches - as provided for in Articles L. 7322-1 et seq. of the Labour Code - has given rise to significant (...)

Valérie Durand Specialized Courts: The French Supreme Court holds that the breach of Article D. 442-6 of the Commercial Code is punishable by a plea of non-admissibility and affirms the impossibility of a separate instance (Alstom Switzerland, Alstom Holdings, Alstom / UAPE Holdings Usines Applications Poly Expases)

6 September 2016 182

In order to carry out energy projects in Russia, several companies of the Alstom Group and UAPE Holding Usines Applications Poly Expanses have concluded several cooperation protocols and preparatory agreements. The purpose of these agreements is the construction of hydroelectric power stations (...)

Valérie Durand Term of payment: The French Commission for Examination of Unfair Commercial Practice excludes the application of legal thresholds for term of payment in national law applicable to international sale contracts

24 June 2016 231

On 7 March 2016, the Trade Practices Review Commission (TPRB) was asked for advice on the coordination of domestic and international rules on payment periods. More specifically, the request concerns the application of Article L. 441-6, I, paragraph 9 of the French Commercial Code to an (...)

Valérie Durand Preliminary ruling on constitutionnality: The French Constitutional Court declares the third sentence of Article L. 442-6, III, paragraph 2 of the Commercial Code (concerning the civil fine) conform to the Constitution (ITM Alimentaire international)

18 May 2016 151

On 18 February 2016, the Constitutional Council was seized of a priority constitutionality question referred by the Commercial Chamber of the Court of Cassation (ruling no. 286) because of its serious nature. Formulated on the occasion of the appeal against a decision of the Paris Court of (...)

Valérie Durand Non-compete clauses: The CEPC holds that a non-compete clause may be not in accordance with contract law, the law of restrictive practices and the law of unfair practices

12 May 2016 370

The Commission d’examen des pratiques commerciales has been asked to give an opinion on the compliance with the law of a non-competition clause inserted in contracts concluded between a hotel reservation company and hotel establishments. The disputed clause stipulates that ’the hotel operator (...)

Valérie Durand Trademark infringement action: The French Supreme Court holds that the inscription of someone else’s trademark on a counterfait shoe brings discredit on a shoe collection of this brand – to clients and consumers – and creates a brand image harm, which is separate from the shoe slavish imitation retained for trademark infringement (Pindière / Venaty et Creaciones)

3 May 2016 150

Valérie Durand Parasitism: The Paris Court of Appeal recalls that parasitism does not imply a likelihood of confusion (Debonix / Société Quincaillerie Angle)

15 April 2016 300

Parasitism is defined in case law as "all conduct by which one economic agent interferes in the wake of another in order to take advantage without spending anything of his efforts and know-how" (Cass. com., 26 Jan. 1999, No. 96-22457). Although sanctioned on the basis of tort liability for (...)

Valérie Durand Parasitism: The French Supreme Court holds that the protection of famous marks is not depending on likelihood of assimilation or confusion (Maison du monde / Gifi et Gifi Mag)

12 April 2016 220

As shown by the decision handed down by the Commercial Chamber of the Court of Cassation on April 12, 2016, the protection of reputed trademarks is distinguished by its scope. While the principle of speciality has been attenuated - the protection applying when the goods or services in question (...)

Valérie Durand Trademark infringement action: The French Supreme Court holds that, in application of Regulation Brussels I, Article 6 (1) laying down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters, different requests for the same facts and rules - unfair competition and trademark infringement related to a golf equipment - characterizes a likelihood of irreconcilable solutions if ruled separately (Decathlon / Delta Handelskontor)

5 April 2016 139

Valérie Durand Non-compete clause: The French Supreme Court approves the trial judges for condemning the transferor and the company in which he pursues an activity in violation of the non-compete clause inserted in the share transfer agreement (M. X… et PBES / MM. Y… et Z… )

6 October 2015 339

The inclusion of a non-competition clause in the contract for the transfer of shares may prove particularly useful. First of all, the non-competition clause makes it possible to avoid, at least in part, the debate concerning the existence of a non-competition obligation on the part of the (...)

Valérie Durand Preliminary question : The French Supreme Court refers three preliminary questions related to the sale of computers including preinstalled software in order to determine whether the absence of any reference related to the price imputed upon the sale qualifies as an unfair and misleading practice and whether the impossibility to purchase a sotftware-free computer and the fact that the only other option is the contract revocation qualify as an unfair business practice (Sony)

17 June 2015 130

Valérie Durand Significative imbalance : The French Judiciary Supreme Court, after having recalled the conditions for admissibility of Ministry actions and stated the existence of significative imbalance between rights and obligations to the detriment of suppliers, considers that the provisions of the article 1152 of the Civil code do not preclude the application of the article 442-6 I 2° of the Commercial Code to a penal clause, as far as the conditions have been met (GALEC)

27 May 2015 331

Valérie Durand Significative imbalance : The Paris Commercial Court considers that the establishments located in France have to abide by the article L. 442-6-I 2° of the Commercial code as these provisions are necessary for the protection of the political, social and economic organisation of the country, so that they apply imperatively to the situation, no matter the applicable law (Expedia)

7 May 2015 289

Valérie Durand Non-competition clause : The French Judiciary Supreme Court holds that the reduction in the financial compensation provided by the parties in case of breach of work agreement shall be deemed unwritten (M. X./Fidecompta)

9 April 2015 292

The requirement of a monetary consideration for the non-competition undertaking is, in labour law, at the heart of a lively dispute. Affirming the specific nature of labour law, the Court of Cassation has made this requirement a condition for the validity of the non-competition clause (see (...)

Valérie Durand Counterfeit : The French Judiciary Supreme Court recalls the conditions of infringement proceedings, unfair competition and parasitism in the event of third party use of a name (registered as a trademark) to designate a tourist site on sold products (Moulin Rouge)

31 March 2015 465

The company Moulin Rouge is the owner of a French word mark "Moulin Rouge", registered on May 3, 1973 and renewed on November 26, 2002. This mark was registered to designate, in particular, in classes 16 and 21, stationery, office articles and glassware. The company Bal du Moulin Rouge - which (...)

Valérie Durand Counterfeit : The French Supreme Court reiterates the conditions of the necessary reference exception (M.X., Exbanor)

10 February 2015 268

Cass. com, Feb. 10, 2015, Mr. X v. Exbanor, No. 13-28263 The Court of Cassation agrees with the trial judges for having dismissed the action for infringement and unfair competition insofar as, on the one hand, it emerges from their findings and assessments that comprehensible and complete (...)

Valérie Durand Free riding : The French Supreme Court recalls the assessment conditions of unfair competition and free riding (SPF, SIPG)

10 February 2015 383

Cass. com. 10 Feb. 2015, SPF c/ SIPG, No. 13-24399 The Court of Cassation points out that, by virtue of the principle of freedom of trade and industry, the canvassing of other people’s customers, even by a former employee or his representative, is free provided that it is not accompanied by (...)

Valérie Durand Trademark coexistence : The French Supreme Court specifies the assessment criteria of counterfeit and unfair competition in case of disrespect of a trademark coexistence agreement (Lehning, Ecophar)

10 February 2015 347

Cass. com, Feb. 10, 2015, Lehning v. Ecophar, No. 13-24.979 While coexistence agreements allow for the coordination of the exploitation of trademarks to prevent conflicts that may arise, they do not in themselves preclude the existence of unfair commercial practices. At most, it is then (...)

Valérie Durand Reproduction of trademark : The French Supreme Court recalls the conditions of the use of another’s trademark (Ryanair, Opodo)

10 February 2015 293

Cass. com, Feb. 10, 2015, Ryanair v. Opodo, No. 12-26.023 The air transport company Ryanair Limited is the owner of the Community word mark ’Ryanair’ (No 4 168 721 registered on 13 December 2004) and the semi-figurative Community trade mark ’Ryanair’ (No 338 301 registered on 21 August 1996 (...)

Valérie Durand Counterfeit : The French Supreme Court confirms the terms of the protection of a mark used by a third party on the Internet (Tuto4pc, SNCF)

20 January 2015 238

Cass. com, 20 Jan. 2015, Tuto4pc c/ SNCF, n° 11-28.567 The Société Nationale des Chemins de Fer (SNCF), the owner of eight semi-figurative and word marks ("SNCF", "TGV", "Transilien", "Voyages-sncf.com" and "voyages-sncf") notes that the site accessible at http://www.lo.st uses them as (...)

Rodolphe Mesa Unfair competition : The French Supreme Court considers that the lack of similarity between two advertising slogans is exclusive of any risk of confusion and implies, consequently, rejection of action based on economic parasitism (Grandvision)

25 November 2014 449

The ruling handed down by the Commercial Chamber of the Court of Cassation on 25 November 2015 goes back over the various conditions necessary to convict a competitor on the basis of economic parasitism. In this case, a company marketing optical products and exploiting various trademarks, (...)

Valérie Durand Free riding : The French Supreme Court reiterates the role of trial judges in assessment of damage caused by free riding practices (ZV France)

21 October 2014 332

Two companies note that a third has marketed shoes reproducing the characteristics of the model of shoe they operate (in this case derby type shoes, reference SR 9900 new rodeo Calf 999, then SR 9900), under the name Serge and Serge bis. Considering themselves to be victims of unfair (...)

Valérie Durand Abuse of rights : The French Supreme Court approves of the trial courts having characterized an excessive use of unfair competition and infringement action (Gemlog)

7 October 2014 261

A new software for radiology practice management is marketed from November 2005. Noting that it was being offered to its clients, a competitor company decided to entrust an agency with an investigation mission and to seek the opinion of an amicable expert. At the end of the investigations, the (...)

Rodolphe Mesa Infringement : The French Supreme Court considers that the applicable law regarding infringement is that of the State whose protection is claimed (Tod’s / La Redoute)

7 October 2014 400

The ruling handed down by the Commercial Chamber of the Court of Cassation on 7 October 2014 returns to two interesting questions, namely the law applicable to the infringement action and the compatibility with European Union law of the differences in copyright protection that may exist in the (...)

Valérie Durand Inadmissibility : The French Supreme Court approves judges having declared an unfair competition action inadmissible due to the defendant’s lack of standing (Florian Mantione Institut)

8 July 2014 253

As part of the operation of its brand, a manager enters into a subcontracting agreement with a consulting firm. This contract includes a non-competition clause aimed at carrying out certain recruitment assignments. When the contract expires, a contractual relationship similar to the first one (...)

Valérie Durand Aggregation of actions : The French Supreme Court holds that a victim may bring both an action in contract and an unfair competition action against the same debtor if each action is based on separated facts (Global Ecopower)

8 July 2014 1085

After almost 5 years in office, the co-founder of a company specializing in the production of electricity from wind energy resigns from his position as President and Chief Executive Officer. At the same time, he made a three-year contractual commitment not to compete with the company in which (...)

Rodolphe Mesa Risk of confusion: The French Supreme Court reassesses the issue of the risk of confusion in case of imitation of a corporate name and imitation of a domain name (Air architectures, ingénierie, recherche)

24 June 2014 177

The ruling handed down by the Commercial Chamber of the Court of Cassation on June 24, 2014 reviews the factors used to assess the risk of confusion in the naming of competing companies in relation to companies exercising a regulated profession. In this case, the dispute was between the (...)

Rodolphe Mesa Ethical rules: The French Supreme Court holds that a mere violation of an ethical rule is not an act of unfair competition (Fiducial)

24 June 2014 251

In its judgment of 24 June 2014, the Commercial Chamber of the Court of Cassation confirmed the separation between the rules of professional ethics and the act of unfair competition that had been established following the judgment of 10 September 2013, such separation implying that a violation (...)

Rodolphe Mesa Risk of confusion : The French Supreme Court specifies the elements that can be used to characterize the introduction of a risk of confusion constitutive of an act of unfair competition (Kaspersky / Eptimum)

20 May 2014 228

The judgment delivered on 20 May 2014 returns to the assessment of the risk of confusion, the introduction of which is characteristic of an act of unfair competition. In that case, a company developing and marketing antivirus software on the internet brought an action for summary proceedings (...)

Rodolphe Mesa Sanctioning diversion of customers originated by employees: From unfair competition action to criminal sanction?

May 2014 1179

The diversion of customers is appreciated more restrictively. This fault tends to escape the civil penalty and unfair competition action. Conversely, the diversion of customers can be criminally punished through the offense of breach of trust. 1. Competitive activity necessarily leads to (...)

Valérie Durand Non-competition clause : The French Supreme Court holds that the seller of a business is free to resettle beyond the area stipulated in the non-competition clause (Mme X...)

8 April 2014 263

At the origin of the business was a simple contract for the transfer of a business by which the seller undertakes, in particular, not to relocate. The commitment not to relocate is limited both in its geographical scope and duration. Shortly after the sale, the seller relocates in strict (...)

Valérie Durand Non-competition clause: The French Supreme Court consideres there is no prohibited or unfair competition as far as the non-competition clause is valid and respected by the transferor of a business asset and as there is no evidence of transferor actions intending to divert the business customers (GL3E)

8 April 2014 202

The contractual non-competition obligation on the seller of a business is the source of a particularly lively dispute, one of the most lively aspects of which is undoubtedly the determination of its scope. Beyond the difficulties encountered in determining their validity, these clauses (...)

Valérie Durand Non-competition clause : The French Supreme Court holds that when the transferee only invokes the non-competition clause in order to recover compensation in respect of the damage resulting from its breach, the Court of Appeals is not required to examine the warranty of quiet possession (M. Y...)

25 March 2014 167

In the present case, at the time of the transfer of a business, the parties to the contract agree to insert in the deed a non-competition clause providing for a non-competition obligation for a period of three years from the date on which the purchaser takes possession of the business. As a (...)

Rodolphe Mesa Unfair competition action : The French Supreme Court subordinates the action for unfair competition to the existence of an incident causing a loss/damage (SFR / Féridis)

25 March 2014 245

The various rulings handed down by the Commercial Chamber of the French Supreme Court on March 25, 2014 in disputes between SFR and Féridis concern the terms of the unfair competition action. In these various cases, the former company had entered into agreements with several owners of parcels (...)

Rodolphe Mesa Body of evidence: The French Supreme Court finds that parasitic acts can be proven by a body of evidence (Tod’s, Dior)

20 March 2014 1020

Cass. 1st civ., 20 March 2014, n° 12-18.518, Tod’s c/ Pinet, Orphée club and Santiago Pons Quintana Cass. com, February 4, 2014, No. 13-11.044, Parfums Christian Dior c/ Ferragamo The Court of Cassation has returned to the evidentiary conditions of the action based on economic parasitism (...)

Rodolphe Mesa Economic parasitism : The French Supreme Court considers that the parasitic act is the fact, for a trader, to place himself in the wake of another, unduly taking advantage of the latter’s reputation or investment, regardless of any risk of confusion (Tod’s, Maisons Pierre)

20 March 2014 1167

Cass. com, March 20, 2014, Tod’s Spa and Tod’s France v. François Pinet and Orphée Club, Appeal No. 12-18.518, published in Bulletin Cass. com, 20 May 2014, Maisons Pierre contre Fousse constructions et Constructions traditionnelles Val de Loire, appeal n° 13-16.943, not published in the (...)

Valérie Durand Privity: The French Supreme Court considers that the non-competition clause only imposes obligation on the debtor and not on the third-party purchaser of the business assets (INOVA)

11 March 2014 362

On April 2, 1999, a commercial company sold part of its business. This sale is solely aimed at the business of selling kitchens to private individuals. The transfer agreement includes a non-competition clause in which the transferor "formally refrains from creating, founding, acquiring, (...)

Rodolphe Mesa Advertising: The French Supreme Court considers that the exercise of business activities in violation of the regulations and the dissemination of misleading advertising qualify as acts of unfair competition (Aud’ligne Taxi)

11 March 2014 317

After the disputes between operators of passenger vehicles with drivers and taxi drivers, the ruling handed down by the Commercial Chamber of the Court of Cassation on March 11, 2014 makes it possible to revisit the competitive relationship between taxis. In this case, an association of 15 (...)

Rodolphe Mesa Infringement: The French Supreme Court considers that the action for unfair competition may rely on elements that are factually identical to those raised in an infringement action dismissed (Revol)

4 February 2014 182

The ruling handed down by the Commercial Chamber of the Court of Cassation on February 4, 2014 returns to the classic and common question of the relationship between unfair competition and counterfeiting. In this case, a company selling porcelain objects had one of its competitors sued for (...)

Valérie Durand Employment contract: The French Supreme Court considers that the non-competition clause which provides the payments of financial consideration before the termination of contract is void (Laser Symag)

15 January 2014 159

Hired as a sales engineer and consultant in September 2001, then recruited as managing director in March 2002, the employee was finally dismissed for serious misconduct in the context of these two activities. Following his dismissal, he applied to the industrial tribunal to obtain payment of (...)

Valérie Durand Non-competition clause: The French Supreme Court decides to stay the proceedings and to refer the case to the administrative courts in order to assess the legality of the art. R. 242-65 of the Code Rural (Mme X…)

15 January 2014 229

The turnaround in case law brought about by the Barbier decision of 10 July 2002 has not finished making headlines. After having ipso facto caused the invalidation of all non-competition clauses concluded under previous case law (Cass. soc., 17 December 2004, Bull. civ. V, no. 436), it now (...)

Rodolphe Mesa Unfair competition : The Toulouse Commercial Court considers that the advertising and sale of electronic cigarettes by other that newsagent kiosk traders qualify as unfair competition (Herande c/ Esmokeclean)

9 December 2013 243

In a ruling handed down on 9 December 2013, the Toulouse Commercial Court ruled on the legality of the sale of electronic cigarettes by non-buralist retailers and the advertising of these products. The consular judges prohibited such acts on the basis of unfair competition and ordered the (...)

Valérie Durand No competition clause : The French Supreme Court considers that the voidance of the non-competition clause in a contract of employment is always at the detriment of the employee (M. X c/ Egérie Osia)

27 November 2013 160

Engaged on December 22, 2008 as a project manager assistance project manager, the employee in breach of the contractual non-competition obligation resigned on January 19, 2010. Subsequently, he applied to the industrial tribunal for payment of a provision on the grounds of the illegality of (...)

Rodolphe Mesa Unfair competition : The French Supreme Court states that the act of unfair competition does not contain intentional element (MM. X et Y c/ Microsoft)

14 November 2013 234

The First Civil Chamber of the Court of Cassation returns, with its ruling of 14 November 2013, to the elements constituting the fault sanctioned as an act of unfair competition. In this case, two software developers who had entrusted the marketing of their product to a company sued a (...)

Valérie Durand Liberal activity : The French Supreme Court approves the judgment of the Court of Appeal stating that the lawfulness of the non-competition clause is not certain enough for temporary measures to be pronounced (Mme X c/ M. Y et Mme Z)

16 October 2013 176

The summary procedure is particularly useful in litigation arising from non-competition clauses in that it allows the violation of the most obvious non-competition clauses to be quickly sanctioned. However, the specific conditions specific to this procedure still need to be met, as evidenced (...)

Valérie Durand Shareholders : The French Supreme Court considers that a non-competition clause stipulated in a social rights transfer agreement is licit towards the signatory shareholders as long as it is limited in time and space and proportioned to the interests justifying protection (M. X. c/ Point G immobilier Tours c/ Crédit agricole Touraine-Poitou immobilier)

8 October 2013 286

This case involved an agreement signed in February 2007 to acquire all the social rights of a real estate company. This agreement contained a non-competition clause to be borne by the assigning partners. However, one of them became an employee of the transferred company after the signing of (...)

Rodolphe Mesa Bashing : The French Supreme Court states that the disclosure of accurate and derogatory information is an act of unfair competition (Plein Air international, K France, ADG)

24 September 2013 381

The ruling handed down by the Commercial Chamber of the Court of Cassation on 24 September 2013 reviews the elements constituting the denigration characteristic of an act of unfair competition and its sanction. In this case, a company manufacturing and marketing gas appliances and gas (...)

Rodolphe Mesa Counterfeiting : The French Supreme Court states that a trademark user can obtain compensation for damage through unfair competition procedure based on counterfeiting facts (Abattoirs de Provence, Genedis et Charal)

24 September 2013 162

While it is settled case-law that the owner of an intellectual property right who is the victim of an act of infringement can only obtain a supplementary conviction of the offender on the basis of unfair competition by proving a fact distinct from the fault of infringement (Cass. com.., 6 (...)

Rodolphe Mesa Obligation to no competition : The French Supreme Court considers that a member of a simplified joint stock company is not generally prevented from exercising a concurrent activity of the company (LBDI, EGT)

10 September 2013 219

In its ruling handed down on 10 September 2013, the Commercial Chamber of the Court of Cassation ruled on the question of whether a shareholder of a simplified joint stock company is liable, in his sole capacity as a shareholder, for a non-competition obligation towards the company. In this (...)

Rodolphe Mesa Misuse of customers : The French Supreme Court finds that the violation of an ethical rule does not necessarily constitute an act of unfair competition (Sofidex, Gescore, Compta Sud)

10 September 2013 205

The Commercial Chamber of the Court of Cassation returns, with an important decision handed down on 10 September 2013 and published in the Bulletin, on the questions of the characterisation of the act of unfair competition following the transgression of a rule of professional ethics and the (...)

Rodolphe Mesa Misuse of customers: The Cour de cassation considers that there is no condemnation on the basis of customer poaching when there is no evidence that a former employee of a company working on behalf of a second has used unfair methods to establish business relationships with customers and suppliers (Inabata France/Prosyntis)

9 July 2013 512

The ruling handed down by the Commercial Chamber of the Court of Cassation on July 9, 2013 maintains the strict evidentiary requirements with regard to proof of fault in the matter of customer diversion. In this case, the former employee of a company, who had been dismissed for serious (...)

Rodolphe Mesa Unfair competition by confusion: The Cour de cassation points out that the slavish imitation of a product sold by a competitor whose likelihood might arise confusion in the mind of the customer is an act of unfair competition (Christian Liaigre)

9 July 2013 683

The ruling handed down by the Commercial Chamber of the Court of Cassation on July 9, 2013 returns to the characterization of unfair competition by confusion. The case decided was between a furniture designer and a furniture manufacturer. The former had entrusted the latter with the plans of (...)

Rodolphe Mesa Parasitic competition: The Cour de cassation considers that the conviction of an economic operator on the basis of parasitic competition assumes that the applicant brings both evidence of the investment he made and of the embezzlement by his rival of the returns of his investment (CSF/Distribution Casino France)

9 July 2013 223

The ruling handed down by the Commercial Chamber of the Court of Cassation on 9 July 2013 is interesting in that it reviews the conditions for sanctioning an economic operator on the basis of parasitic competition. In this case, a company operating supermarkets and hypermarkets had, after (...)

Rodolphe Mesa Lucrative fault in the context of unfair competition law and parasitic economic relationship

May 2013 1549

The act of unfair competition or economic parasitism can be lucrative when the author realizes a gain or economy. Positive law is deficient because damages are not a high enough amount. It is appropriate to strengthen the sanction. Principle of full restitution of illicit profits is a (...)

Rodolphe Mesa Unfair competition: The Cour de cassation says that the action punishment of unfair competition is an action for damages for proven misconduct (Brevini Power/M. X et Rossi)

May 2013 225

Cass. com, January 29, 2013, Brevini Power v. M. X and Rossi, No. 11-26.957 The Commercial Chamber of the Court of Cassation recalled, in its ruling handed down on 29 January 2013, the nature of a civil liability action for proven fault of the action intended to punish an act of unfair (...)

Rodolphe Mesa Unfair competition: The Cour de cassation considers that marketing products using misleading statements is an act of unfair competition (NS/Maison Apollinaire)

May 2013 168

Cass. com, February 12, 2013, ENS c/ Maison Apollinaire, n° 12-13.808 The ruling handed down by the Commercial Chamber of the Court of Cassation on 12 February 2013 provides an interesting illustration of the acts of unfair competition that may be committed in the context of craft (...)

Rodolphe Mesa Internet: The Cour de cassation points out that the solicitation of clients of competitors is lawful as long as it is not paired with unfair dealing (Cobrason/Solutions)

May 2013 228

Cass. com, January 29, 2013, Cobrason v. Solutions, Nos. 11-21.011 and 11-24.713. The Commercial Chamber of the Court of Cassation returned, with its ruling of 29 January 2013, to the limits to the freedom of trade and industry that are the consequence of the unfair competition regime. In (...)

Rodolphe Mesa Economic parasitism: The Cour de cassation reviews the definitions of economic parasitism and parasitism of notoriety (Eiffage TP/La Tour des chevaliers)

May 2013 269

Cass. com, 12 February 2013, Eiffage TP c/ La Tour des chevaliers, No. 12-14.045 The Commercial Chamber of the Court of Cassation recalls, in two interesting judgments handed down on 12 February 2013, the definitions and characteristics of economic parasitism and notorious parasitism. In (...)

Rodolphe Mesa Unfair competition: The Cour de cassation reiterates that the admissibility of the action for unfair competition is independent of the admissibility of an action for infringement (Antilles On Lines/Ouloger.com)

10 April 2013 228

The ruling handed down by the First Civil Chamber of the Court of Cassation on April 10, 2013 goes back over the complex relationship between the action for unfair competition and the action for infringement. In this case, an online travel sales company that accused a competitor of having (...)

Rodolphe Mesa Unfair competition: The Cour de cassation considers that the partner is not bound by an obligation of non-competition (Promes procédés et mesures)

19 March 2013 199

The Commercial Chamber of the Court of Cassation returned, with its ruling of 19 March 2013, to the issue of possible non-competition obligations to which the members of a limited liability company would be bound. In this case, a limited liability company with an industrial technology activity (...)

Rodolphe Mesa Unfair competition: The Cour de cassation considers the solicitation, by a former employee, of a client of his former employer falls within the principle of free trade (Proditrans express/Mercier)

19 March 2013 283

The Commercial Chamber of the Court of Cassation returned to the regime of canvassing of the customers of others with regard to the law of unfair competition with its ruling handed down on 19 March 2013 concerning the situation in which the canvassing is carried out by a former employee of the (...)

Rodolphe Mesa Unfair competition: The Cour de cassation considers that the practice of carpooling is lawful and finds that the loss of chance is serviceable (Transports Schiocchet excursions/Onet Luxembourg)

12 March 2013 396

The ruling handed down by the Commercial Chamber of the Court of Cassation on 12 March 2013 is interesting for two reasons. On the one hand, because it rules on the practice of carpooling with regard to unfair competition law. On the other hand, because it specifies the elements of damages (...)

Rodolphe Mesa Unfair competition: The Court of cassation considers illegal substitution of drugs as an act of unfair competition (Beaufour Ipsen Pharma/Mylan)

9 October 2012 350

"Cass. com., October 9, 2012, No. 11-20725, Beaufour Ipsen Pharma v. Mylan." After a first judgment on the issue of disparagement on 27 April 2011, which held that launching an opinion campaign on the need to open up the market for non-reimbursed medicines to competition is not in principle (...)

Rodolphe Mesa Unfair competition: The Court of cassation clarifies the limits of the injunction (Noirot/JP)

9 October 2012 179

"Cass. com, October 9, 2012, No. 11-28.498, Noirot v. JP outillages distribution". The ruling handed down by the Commercial Chamber of the Court of Cassation on 9 October 2012 is interesting in that it clarifies the termination regime that can be ordered in the context of an action for (...)

Rodolphe Mesa Unfair competition: The Court of cassation recalls the necessity for the plaintiff to prove the fault (Nestlé Nespresso & Nespresso France/Bodum; Groupe Léa nature & Léa institut Vital/La Photothèque)

25 September 2012 555

"Cass. com., 25 September 2012, No. 11-21266, Nestlé Nespresso and Nespresso France v. Bodum." In two rulings handed down on 25 September 2012, the Commercial Chamber of the Court of Cassation revisits the evidentiary requirements of economic parasitism, while recalling the principle of (...)

Rodolphe Mesa Unfair practices: The Cour of cassation refers to the distinction between unfair competition and counterfeiting to clarify the purpose of the two actions (Milo/EDF et GDF)

11 September 2012 206

Cass. com, 11.09.12, Milo v. EDF and GDF, No 11-21.322 The Commercial Chamber of the Court of Cassation returned, in its judgment of 11 September 2012, to the thorny issue of the distinction between counterfeiting and unfair competition, while adding contractual civil liability to the (...)

Rodolphe Mesa Unfair practices: The Cour de cassation rules that the sale of computers with a software preinstalled is not an unfair labour practice when the consumer has the opportunity to find computers "naked" on another site dedicated to professionals, even though the installation of open source software is a delicate process which the selling company can not guarantee success (Hewlett-Packard/UFC Que Choisir)

12 July 2012 174

Cass. 1st civ. 12 July 2012, Hewlett-Packard v/ association UFC Que Choisir, n° 11-18.807, published in the bulletin The ruling handed down by the First Civil Chamber of the Court of Cassation on July 12, 2012 settles a question of consumer law, the answer to which is likely to produce (...)

Rodolphe Mesa Unfair practices – Use of the competitor’s image: The Cour de cassation considers the image’s use of a castle belonging to a competitor as characteristic of the unfair competition (Château Marie du Fou/Jard Chais Mareuillais)

28 June 2012 1856

Cass. 1st civ. 28 June 2012, Château Marie du Fou v. Jard Chais Mareuillais, appeal no. 10-28716, not published in the bulletin. The First Civil Chamber of the Court of Cassation, in a ruling handed down on 28 June 2012, has provided certain clarifications on the regime governing the use of (...)

Rodolphe Mesa Unfair practices - Diversion of customers: The Cour de cassation considers that the injury results necessarily of the customers’ diversion and that the responsibility for unfair competition is not subject to the beneficiary’s questioning of the wrongdoing (Applitex)

26 June 2012 274

Cass. com, 26 June 2012, Applitex v. Mr X, appeal no. 11-19.520, not published in the Bulletin. The ruling handed down by the Commercial Chamber of the Court of Cassation on June 26, 2012 makes it possible to revisit the consequences of the misappropriation of customers and the conditions of (...)

Rodolphe Mesa Unfair competition – Breach of a non-competition clause: The Court of cassation accepts the moral damages suffered by a corporation (La Pizzeria, Reine Victoria)

15 May 2012 403

Cass. com, May 15, 2012, La Pizzeria v. Queen Victoria, No. 11-10278 In an important decision handed down on May 15, 2012 and published in the Bulletin, the Commercial Chamber of the Court of Cassation has brought the unfair competition action regime closer to that of the violation of (...)

Rodolphe Mesa Unfair competition: The Court of Cassation rules that there is a diversion of customers when the manager of a company presents itself to customers of its competitor as an agent thereof (Copytel, Totalia, Euro maintenance)

15 May 2012 177

Cass. com, May 15, 2012, Copytel c/ M. X..., Totalia and Euro maintenance, n° 11-12859 The ruling handed down by the Commercial Chamber of the Court of Cassation on 15 May 2012 provides an interesting illustration of a misappropriation of customers to the detriment of companies involved in (...)

Rodolphe Mesa Unfair competition: The Court of Cassation holds that the violation of a rule of professional conduct is an act of unfair competition

4 May 2012 191

Cass. 1st civ., May 4, 2012, Mrs. X..., n° 11-11180 The ruling handed down by the First Civil Chamber of the Court of Cassation on 4 May 2012 is interesting on two counts. On the one hand, because it highlights the interactions between the ethical rules of lawyers and the law of unfair (...)

Rodolphe Mesa Unfair competition: The Court of Cassation holds that the only imitation product whose patent has expired is not an act of parasitism (Lego, Lunatic construction)

3 May 2012 384

Cass. com, May 3, 2012, Lego v Lunatic construction, No. 11-18077 The ruling handed down by the Commercial Chamber of the Court of Cassation on 3 May 2012 is interesting in that it clarifies the contours of economic parasitism. In this case, a company marketing toys in the form of stackable (...)

Rodolphe Mesa Unfair competition and parasitic competition: The Court of Cassation rules that the imitation of a competitor’s products must be causing a risk of confusion to be sanctioned (J. M. Weston/Promoquestre ; La Marine)

5 April 2012 384

Cass. 1st civ., April 5, 2012, J.M. Weston v/ Promoquestre, n° 10-27373 Cass. 1st civ. 4 May 2012, Mr. X... and sté La Marine v. Mrs. Y... and Mr. Z..., n° 11-13116 The two rulings handed down by the First Civil Chamber of the Court of Cassation, respectively on 5 April 2012 and 4 May (...)

Rodolphe Mesa Unfair competition: The Court of Cassation states that the poaching of employees from a competitor is not a fault unless it is accompanied by unfair dealing and generates disruption of its business (Eurinter, La Solution interimaire, AS Interim, Agro Form, Afa)

3 April 2012 411

Cass. com, 3 April 2012, Eurinter and La Solution interimaire c/ AS Interim, No. 10-27743 Cass. com, 3 May 2012, Agro Form c/ Afa, No. 11-18059 The Commercial Chamber of the Court of Cassation, in two judgments handed down respectively on April 3, 2012 and May 3, 2012, recalled the scope (...)

Rodolphe Mesa Unfair competition – Economic parasitism: The Court of Cassation recalls the conditions of the sanction of imitation and specifies the amount of damages (Midi Tielles/Coudène Michel)

21 February 2012 432

Cass. com, February 21, 2012, Midi Tielles c/ Coudène Michel, n° 10-27966 The ruling handed down by the Commercial Chamber of the Court of Cassation on 21 February 2012 makes it possible to reconsider the conditions for sanctioning unfair and parasitic competition by imitation of a (...)

Rodolphe Mesa Unfair competition: The Court of Cassation specifies the duties of a partner of a limited partnership in relation to unfair competition (Clos-du-Baty and D. L. Finances/Fabi)

15 February 2012 360

Cass. com, November 15, 2011, Clos du Baty and Company D. L. Finances v. Fabi, SCI Chanterie and M. X..., No. 10-15049 The ruling handed down by the Commercial Chamber of the Court of Cassation on 15 November 2011 is important in that it clarifies the contours of the unfair competition (...)

Rodolphe Mesa Unfair competition – Confusion: The Court of Cassation recalls that a copy of a product that is not protected by an IPR is not illegal unless it is accompanied by an unfair act (Marc Jacobs International/Euroline and Galeries Lafayette)

15 February 2012 652

Cass. com, November 15, 2011, Marc Jacobs International v/ Euroline and Galeries Lafayette, n° 10-25473 The ruling handed down by the Commercial Chamber of the Court of Cassation on 15 November 2011 is interesting in that it returns to the contours of the protection of products that are not (...)

15 February 2012 1128

Cass. com, 4 October 2011, Titanbagno c/ LT Aqua +, No. 10-24009 The judgment of 4 October 2011 comes back, as does that of 15 November 2011 (Appeal No 10-25473, commented on elsewhere).), on how to protect products which are not the subject of an intellectual property right by means of the (...)

Rodolphe Mesa Unfair competition: The Court of Cassation rules on principle of liability of a corporation for the acts of misappropriation of clients committed by its employees who are still in an employment relationship (Marquage moderne/Libell)

15 February 2012 388

Cass. com, November 2, 2011, Marquage moderne c/ Libell, n° 10-26936 The ruling handed down by the Commercial Chamber of the Court of Cassation on November 2, 2011 makes it possible to reconsider the conditions of the action in unfair competition for customer diversion. In this case, an (...)

Rodolphe Mesa Unfair competition – Economic parasitism: The Court of Cassation specifies the conditions of the sanction of imitation of a sign (Alfred Kärcher and Kärcher France/DCM Friesland)

14 February 2012 385

Cass. com, 14 February 2012, Alfred Kärcher and Kärcher France v DCM Friesland, no. 10-27873 As regards the imitation of a non-banal sign or a product of an economic operator, the judgment of 14 February 2012 adopted a consistent solution, similar to that adopted subsequently in the judgment (...)

Rodolphe Mesa Economic parasitism: The Court of Cassation recalls that the applicant must prove the fault of the parasite (Labrador/RR Donnelley Printing)

12 January 2012 301

Cass. 1st Civ. 12 January 2012, Labrador v. RR Donnelley Printing, No. 10-24696 The ruling handed down by the First Civil Chamber of the Court of Cassation on 12 January 2012 is interesting, not only in that it recalls the evidentiary requirements inherent in an action based on economic (...)

Rodolphe Mesa Unfair competition: The Court of Cassation states on the poaching qualification punished under unfair competition rules (Géoconcept/Asterop)

20 September 2011 596

Cass. com, 20 September 2011, Géoconcept c/ Asterop, n° 10-19443 Is it unfair for former employees of a company to arrange for the transfer of some of their colleagues to participate in an activity that competes with that of their former employers? This is essentially the question which the (...)

Rodolphe Mesa Relationship between unfair competition and infringement: The Court of Cassation returns to the question of the relationship between unfair competition and counterfeiting and it also specifies the conditions of action in parasitism (X et Design Sportswears, Luna et Caractère)

6 September 2011 673

Cass. com, September 6, 2011, Mrs. X... and Design Sportswears c/ Luna et Caractère, n° 10-18299 Certain questions of law regularly recur in court cases relating to unfair competition and economic parasitism, including the relationship between the civil liability action and the action (...)

Rodolphe Mesa Complexity and issues of the relationship between parasitic competition and economic parasitism

September 2011 716

This article examines the relationship between parasitic competition and economic parasitism and their effects on the sanction of the appropriation of the work of others. The theory of economic parasitism has a relationship with some neighbouring regimes that is sometimes difficult to (...)

Rodolphe Mesa Unfair competition: The Court of Cassation returns to the regime of diverting customers (Cabinet Jean-Marc A./IEAD)

12 July 2011 612

Cass. com, 12 July 2011, Cabinet Jean-Marc A... c/ In Extenso Alpes Dauphiné (IEAD), n° 10-25386 Administrative regulation is not the only set of rules whose transgression is likely to be analyzed as an act of unfair competition (On this point, see Cass. Civ. 1, July 6, 2011, in this (...)

Rodolphe Mesa Unfair competition: The Court of Cassation considers a violation of administrative regulations is an act of unfair competition (Orion 38/Diybel)

6 July 2011 431

Cass. 1st civ., 6 July 2011, Orion 38 c/ Diybel, n° 10-20588 The ruling handed down by the First Civil Chamber of the Court of Cassation on July 6, 2011 is an opportunity to return to two important questions relating to the unfair competition action regime, namely the impact of the violation (...)

Rodolphe Mesa Unfair competition: The Court of Cassation specifies the conditions under which a sale of off grid is an act of unfair competition (Chanel/Capi ; Chanel/Jarnis)

24 May 2011 807

Cass. com, 24 May 2011, Chanel c/ Capi, n° 10-18474 Cass. com, May 24, 2011, Chanel c/ Jarnis, n° 10-20620 The rulings handed down by the Commercial Chamber of the Court of Cassation on May 24, 2011 make it possible to reconsider the complex relationship between the provisions of the (...)

Rodolphe Mesa Unfair competition and parasitic competition: The Court of Cassation reviews the conditions of denigration (Univers pharmacie, Direct labo and Union des groupements de pharmaciens d’officine/Groupement d’achats des centres Leclerc)

27 April 2011 949

Cass. com, 27 April 2011, Univers pharmacie, Direct labo et Union des groupements de pharmaciens d’officine c/ Groupement d’achats des centres Leclerc (Galec), n° 10-15648 On 27 April 2011, the Commercial Chamber of the Court of Cassation handed down a particularly interesting ruling in that (...)

Rodolphe Mesa Unfair competition and parasitic competition: The Court of Cassation recalls that there is no unfair or parasitic competition without confusion (Molinard/Joy Box Holding and PB licence)

29 March 2011 759

Cass. com, March 29, 2011, Molinard v/ Sociétés Joy Box Holding and PB licence, n° 09-71990 The ruling handed down by the Commercial Chamber of the Court of Cassation on March 29, 2011 is an opportunity to recall two principles relating to the sanctioning of acts of commercial disloyalty, (...)

Rodolphe Mesa Unfair competition: The Court of Cassation specifies the conditions of denigration of competing products (Laboratoires Omega Pharma France/Ferlux)

22 March 2011 1122

Cass. com, March 22, 2011, Laboratoires Omega Pharma France c/ Ferlux, nº 10-17814 The ruling handed down by the Commercial Chamber of the Court of Cassation on 22 March 2011 allows us to review the elements necessary to characterise a wrongful denigration of a competitor’s products, which (...)

Rodolphe Mesa Unfair competition – Economic parasitism: The Court of Cassation specifies the conditions of unfair competition for imitation of a design (Interior’s/Couleur des Alpes)

15 March 2011 1219

Cass. com, March 15, 2011, Interior’s c/ Couleur des Alpes, nº 09-72429 The ruling handed down by the Commercial Chamber of the Court of Cassation on 15 March 2011 in the case opposing Intérior’s and Couleur des Alpes allows us to review the conditions of unfair competition and parasitic (...)

Fateh Belaïd, Rodolphe Mesa Shared reflections on unfair competition in the law and Islamic economics

February 2011 1575

The Islamic law and economics do not directly address the issue of unfair competition. However, these practices detrimental to the circulation and the balance of wealth should be reprobate economically. It’s the same about Islamic law that promotes fairness in relations between contractors and (...)

Rodolphe Mesa Economic Parasitism: The Court of Cassation clarifies the relationship between counterfeiting and economic parasitism (Granimond et M X.../Établissements Gaubier)

14 December 2010 868

Cass. com, December 14, 2010, Granimond v/ Établissements Gaubier, No. 10-10951 In its judgment of 14 December 2010, the Commercial Chamber of the Court of Cassation returned to the inevitable, but sometimes complex, relationships between the counterfeiting and economic parasitism regimes (...)

Rodolphe Mesa Procedures - Internet: The Court of Cassation makes jurisdiction of the French Courts subject to two conditions (Louis Vuitton Malletier/eBay and eBay international)

7 December 2010 1040

Cass. com, December 7, 2010, Louis Vuitton Malletier v/ eBay Inc. and eBay international AG, No. 09-16811 The Commercial Chamber of the Court of Cassation returns, with the ruling of 7 December 2010, to the thorny issue of jurisdiction in matters of unfair competition acts carried out on the (...)

Rodolphe Mesa Unfair competition – Infringement on the Internet: The Court of Cassation confirms a Court of Appeal which recognized the jurisdiction of the French Courts for unfair competition committed through the Internet (Parfums Christian Dior, Parfums Givenchy Kenzo and Guerlain/eBay)

7 December 2010 1318

Cass. com, December 7, 2010, Parfums Christian Dior, Parfums Givenchy Kenzo et Guerlain c/ eBay Inc. and eBay international AG, No. 09-14545 This second judgment, handed down on December 7, 2010 and involving the various eBay companies, still deals with the determination of the criteria for (...)

Rodolphe Mesa Damages - Prohibition of lump sum compensation: The Court of Cassation rules that unfair competition cannot be compensated by a lump sum indemnity (Meny/Le Grand garage lorrain)

23 November 2010 1336

The Commercial Chamber of the Court of Cassation recalled the guiding principles for the assessment of the sanction of a competitor who has committed an unfair act, with the ruling handed down on 23 November 2010. In this case, a company operating several car dealerships had issued an (...)

Rodolphe Mesa Burden and object of proof in the case of economic parasitism

December 2010 1764

This article deals with the evidence necessary to establish parasitism, an act of unfair practice, in French law. In principle, civil responsibility procedural provisions should apply, as parasitism is a mere fault requiring regular proofs to be assessed. But case law requires in practice (...)

Rodolphe Mesa Misappropriation of customers - Misleading advertising: The Court of Cassation rules that misleading advertising amounts to unfair competition (Décathlon/Carrefour)

28 September 2010 1406

The ruling handed down by the Commercial Chamber of the Court of Cassation on 28 September 2010 is interesting in that it allows us to reconsider the characterisation of two types of behaviour that are punishable on the basis of unfair competition. In this case, a company operating a large (...)

Rodolphe Mesa Advertising on Internet: The Court of Cassation draws the conclusion of the Google France case law and confirms also that, in order to conclude to infringement of both counterfeiting and unfair competition rules, the plaintiff must assess different facts (CNNRH/Google and Tiger)

13 July 2010 1321

Cass. com, 13 July 2010, CNNRH v Google and Tiger, No. 06-15136 It is not uncommon, in the case of trademark infringement, for the request for sanction of the infringement to be accompanied by a claim for damages based on unfair competition law. This cumulation, which is subject to the (...)

Rodolphe Mesa Accumulation of condemnations: The Court of Cassation rules that, in order to conclude to infringement of both counterfeiting and unfair competition rules, the plaintiff must assess different facts and that this requirement is met when the infringer sales the counterfeiting products (Free/Sporazur Morris Sportswear ; MNC Altona/Dubois Jardin and Silvpol Spolka Zoo)

15 June 2010 1376

Cass. com, June 15, 2010, Free c/ Sporazur Morris Sportswear, n° 08-18279 Cass. com, June 15, 2010, MNC Altona v. Dubois Jardin and Silvpol Spolka Zoo, No. 08-20999 The questions of the relationship between actions for infringement and unfair competition and the cumulation of sentences (...)

Rodolphe Mesa Unfair competition - Jurisdiction: The Court of Cassation considers that an act of poaching together with an illicit capture of consumers has to be analyzed, when the relevant companies are bound by a contract of concession who provides exclusivity and ban to resort to the other agents, as a contractual non-fulfillment and that such behavior, between undertakings of different nationalities, should lead to the application of the jurisdiction clause stipulated in the contract but that such a clause is not applicable for the sanction of acts of unfair competition different from the breach of contract (Oasis/LF diffusion)

12 May 2010 1891

Cass. 1st civ. 12 May 2010, Oasis SRL v/ société LF diffusion, n° 08-21016 The ruling handed down by the First Civil Chamber of the Court of Cassation on May 12, 2010 makes it possible to come back both to the distinction between unfair competition and non-performance of a concession (...)

Rodolphe Mesa Unfair competition: The Court of Cassation considers, when an action brought before the criminal court via a direct action for counterfeiting leads to the acquittal of the defendants, that the plaintiff no longer has the possibility, once the decision has the force of res judicata, to apply before a civil court to order the defendants to pay damages based on this infringement or unfair competition (Seiko-Epson ; Epson France ; NS Prestations ; Magenta ; La centrale du consommable informatique ; Resolv Info Conso)

6 May 2010 1907

Cass. 2nd civ., 6 May 2010, Seiko-Epson and Epson France v/ Sociétés NS Prestations, Magenta, La centrale du consommable informatique and Resolv Info Conso, n° 09-11882 The decision handed down by the Second Civil Chamber of the Court of Cassation on May 6, 2010 proposes an interesting (...)

Rodolphe Mesa Unfair competition - Jurisdiction of French Courts: The Court of Cassation holds, when a foreign company makes a poaching of employees of a French company, that the causal event has occurred at the headquarters of French company taking into consideration the loss of skills and informations of the poached employees (Aluplast/Schüco)

14 April 2010 1475

Cass. 1st civil, 14 April 2010, Aluplast GmbH Kunststoffprofile v/ Schüco international, No. 09-12792 When an act of unfair competition involves two companies of different nationalities, there is a conflict of laws but also, as far as legal proceedings are concerned, a conflict of (...)

Rodolphe Mesa Selective distribution network: The Court of Cassation rules that the mere fact of reselling branded goods reserved for selective distribution outside such network may constitute a violation of both a trade mark and fair competition; however, in order to establish both violations, the plaintiff must establish different facts and prejudice (Chanel ; Marm ; Bery ; Land)

23 March 2010 2109

Cass. com, March 23, 2010, Chanel company v. Bery company, n° 09-66522, unpublished Cass. com, March 23, 2010, Chanel company v Land company, n° 09-65844, unpublished Cass. com, March 23, 2010, Chanel c/ société Marm, n° 09-66987, unpublished In three judgments handed down on 23 March 2010 (...)

Rodolphe Mesa Unfair competition - Jurisdiction of courts: The Court of Cassation considers, when unfair acts are made through Internet, that French courts have jurisdiction if the websites are accessed in France for French clients, written in French, and if the products are available in France and that the act of unfair competition can be identified when the defendant uses for his website a non-descriptive domain name borrowed from its competitor and it markets its products without applying the VAT rate (Pneus Online/Delticom)

9 March 2010 1519

Cass. com, March 9, 2010, Pneus Online Switzerland and Pneus Online France v. Delticom, No. 08-16752 In addition to the importance of the solutions that it provides or reaffirms, the judgment handed down by the Commercial Chamber of the Court of Cassation on March 9, 2010 must be emphasized (...)

Rodolphe Mesa Commercial cooperation - Tariff transparency: The Court of Cassation rules on the tariff transparency obligation in a commercial cooperation agreement (Carrefour Hypermarchés France et Interdis)

9 February 2010 1283

Criminal case, February 9, 2010, Carrefour Hypermarchés France et Interdis, n° 09-81574 The decision handed down by the Criminal Division of the Court of Cassation on 9 February 2010 proposes an interesting application of the offence of Article L. 441-7 C. Com, in its wording resulting from (...)

Rodolphe Mesa Unfair practices - Condition to act: The Court of Cassation rules that the existence of a risk of confusion arising from competitor’s practices is a prerequisite to act under the unfair competition provisions; in addition, such action may only be brought against alleged disruption of the competitor’s activity only if the defendant has actually committed an act aiming at such a result (Dan Foam and Tempur France/Ena ; Pac and Safe Tech)

2 February 2010 1977

Cass. com, February 2, 2010, Dan Foam company and Tempur France v/ Ena company, n° 09-11303, unpublished Cass. com, February 16, 2010, Mr. X... c/ company Pac and company Safe Tech, n° 08-20482, unpublished In two rulings handed down respectively on February 2, 2010 and February 16, 2010, (...)

Rodolphe Mesa Accumulation of condemnations: The Court of Cassation rules that, in order to conclude to infringement of both counterfeiting and parasitism, the plaintiff must assess different facts; such a requirement is not fulfilled where a Court of Appeal, which has already held the defendant guilty of counterfeiting, holds such defendant guilty of parasitism on the mere fact that it has placed itself in its competitor’s track and taken advantage of its investments (Céline/sociétés SSL, Infinitif, Marlène, SALM, Naf Naf boutiques, Morgan, la Gadgeterie du sentier et Groupe Vog)

19 January 2010 1645

Cass. com, January 19, 2010, Céline c/ companies SSL, Infinitif, Marlène, SALM, Naf Naf boutiques, Morgan, la Gadgeterie du sentier and Groupe Vog, n° 08-15338, 08-16459 and 08-16469, unpublished A company operating different models of belts had had counterfeit seizures made, before taking (...)

Rodolphe Mesa Parasitism : The Court of Cassation rules that the proof of investments made by the victim hijacked by the parasite must be reported by the plaintiff in the action (Ouest France Multimédia et Precom/Direct annonces)

5 March 2009 4046

Cass. 1st civ. 5 March 2009, Société Ouest France Multimédia and Société Precom v/ Société Direct annonces, n° 07-19.734 and 07-19.735 In its ruling handed down on 5 March 2009, the First Civil Chamber of the Court of Cassation provided certain important clarifications on the evidentiary (...)

Daniel Fasquelle, Laurent Roberval Unfair competition: The Court of Cassation rules on the inability to sell a judicial constraint imposed under unfair competition rules (Absolute c/Dipa)

3 March 2009 2778

Cass. com, March 3, 2009, Société Absolute v/ Société Dipa, n° 08-10.923 Can the new operator of a magazine apply for the liquidation of a periodic penalty payment imposed on its predecessor in order to put an end to an unfair competition practice? This is the question that was put to the (...)

Rodolphe Mesa Imitation : The Court of Cassation rules that the mere imitation of a competitor’s product is not necessarily an act of unfair competition and may be justified if done for the satisfaction of general interest (Granimond/OGF)

27 January 2009 2853

Cass. com, January 27, 2009, Société Granimond v/ Société OGF, n° 08-10.991 The ruling handed down by the Commercial Chamber of the Court of Cassation on January 27, 2009 makes it possible to reconsider the conditions necessary for the imitation of a competitor’s products to be (...)

Rodolphe Mesa Economic parasitism: The Court of Cassation makes clear the conditions of the economic parasitism action and the repair of damage (Cocktail/Pop’tel)

27 January 2009 4015

Cass. com, January 27, 2009, Société Cocktail c/ Société Pop’tel, n° 07-15.971 The ruling handed down by the Commercial Chamber of the Court of Cassation on January 27, 2009 is an opportunity to come back to two important elements of the theory of economic parasitism, namely the question of (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation: The Court of Cassation holds that the Minister of Economy can substitute a supplier even without his agreement in order to act before the Courts (ITM alimentaire c/ Ministre)

8 July 2008 3648

Cass. com, 8 July 2008, ITM alimentaire c/ Ministre de l’économie, n° 07-13.350 Cass. com, 8 July 2008, Minister for the Economy v GALEC, No. 07-16.761 The Court of Cassation has put an end to the uncertainty linked to the power of substitution granted to the Minister of the Economy on the (...)

Servane Morel Commercial cooperation - Criminal sanction: The Court of Cassation sanctions invoicing of a fake trade cooperation’s service on the basis of the offense of false of private deed (Cie. générale de conserves)

25 June 2008 3171

Cass. crim. 25 June 2008, Compagnie générale de conserves (CGC) e.a., No. 07-80261 The Criminal Chamber of the Court of Cassation sanctioned the erroneous invoicing of a commercial cooperation service on the basis of Article 441-1 of the Criminal Code despite the defendants’ argument (...)

Daniel Fasquelle, Laurent Roberval Modernisation of the Economy Act: The Legislator progresses toward the finalization of the law on the modernization of the Economy (Loi de Modernisation de l’économie)

17 June 2008 4460

Draft Law on the Modernization of the Economy (restrictive practices) As we conclude this section, in early July 2008, the Economic Modernization Act is still before the Senate. It is possible, however, to identify the main trends in this new reform, at least in its trade relations (...)

Servane Morel Unfair competition - Privacy: The Court of Cassation rules that when an employer has substantial reasons to fear unfair practices from his employee, interlocutory measures aiming at accessing to the employee’s computer may be ordered (Mediasystem)

10 June 2008 2960

Cass. soc. 10 June 2008, Ms X v. Mediasystem Company, No. 06-19229 In that it confirms for the first time in identical terms the solution reached by the Social Chamber of the Court of Cassation on 23 May 2007 (Cass. soc., 23 May 2007, No. 05-17.818: Bull. civ. 2007, V, No. 84 : (...)

Daniel Fasquelle, Laurent Roberval Late payments: The CEPC Commission issues an opinion on a code of good practices in the interim sector (PRISME)

May 2008 4535

It has become a classic exercise for the Trade Practices Review Commission (TPRB) to rule on the legality of a charter of good practice of private origin. This time it was PRISME, a body bringing together temporary employment professionals, which referred the matter to the Commission for an (...)

Daniel Fasquelle, Rodolphe Mesa Parasitism : The Court of Cassation holds that a mere contractual breach does not constitute parasitism (Soc. pluyolaise d’articles chaussants/Soc. Michel Fargeot)

11 March 2008 4717

Cass. com, 11 March 2008, Société pluyolaise d’articles chaussants (SPAC) v/ Société Michel Fargeot, No. 07-10.413 The ruling handed down by the Commercial Chamber of the Court of Cassation on 11 March 2008 provides some useful clarifications regarding the basis for the sanctioning of (...)

Daniel Fasquelle, Laurent Roberval Freedom of negociation: The Legislator receives a report on the per se rule and the freedom of negociation (Hagelsteen Report)

12 February 2008 5225

On 12 February 2008, Marie-Dominique Hagelsteen presented her report on the negotiability of tariffs and general terms and conditions of sale (see also in this issue the interview with Ms Hagelsteen, under the heading "Interview").. The purpose of this report is to prepare "the implementation (...)

Servane Morel Unfair competition: The Court of Cassation rules that an action based on unfair competition does not require competitive relationships between parties to the case (La Fermière / Yoplait)

12 February 2008 4016

An action for unfair competition presupposes the finding of wrongful conduct from which it necessarily follows that the victim has suffered damage. In order to assess whether or not the conduct in question is at fault, the case-law has long required proof of competition between the perpetrator (...)

Daniel Fasquelle, Laurent Roberval Code of good practices: The CEPC Commission supports a code of good practices between the professional of insurance and automobile (Good practices between the professional of insurance and automobile)

7 February 2008 3584

CEPC, Opinion n° 08-02 of 7 February 2008 on practices followed in commercial relations between insurers and body repairers, and its attached charter. The use of codes of conduct to regulate commercial relations is a method used by many States (J. Watin-Augouard, "Codes of conduct: when (...)

Daniel Fasquelle, David Spector, Dominique de Gramont, Jean-Patrice de La Laurencie, Jérôme Bédier, Muriel Chagny «Chatel» Law: A new deal for producers & distributors - Some legal and economic points of view

February 2008 10999

INTRODUCTORY WORDS Jean-Patrice DE LAURENCIE Counsel to the Court I. Brief presentation of the law 1. Law No. 2008-3 of 3 January 2008 "for the development of competition in the service of consumers’ (OJ of 4 January 2008, p. 258), already The Chatel law, known as the "Chatel law", has (...)

Daniel Fasquelle, Laurent Roberval Abuse of domination: The Court of Cassation rules on partnership contract on the basis of Art. L. 442-6 C. com (INBEV/France boissons)

29 January 2008 4721

Cass. com, 29 January 2008, INBEV v. France boissons, no. 07-13.778. In a ruling handed down on 29 January 2008, the Commercial Chamber of the Court of Cassation, in the context of interim injunction proceedings, had to consider whether a partnership contract was seriously questionable under (...)

Daniel Fasquelle, Laurent Roberval Restrictive practices: The University of Montpellier publishes the 2006-2007 report of civil matter and State prosecution in the field of restrictive practices (Montpellier Law Faculty Report)

2008 3329

Observatoire des pratiques commerciales: 18 months of court decisions available on the site of the Commission d’examen des pratiques commerciales (Report of the Faculty of Law of Montpellier, 2006-2007) The Faculty of Law of Montpellier delivered a new report in the framework of the (...)

Daniel Fasquelle, Laurent Roberval Economic dependency : The Court of Cassation rules that plaintiff must prove absence of equivalent solution (Norbert Dentressangle)

23 October 2007 5199

Cass. com, 23 October 2007, Transport Norbert Dentressangle v. M. X..., n° 06-14.981 The ruling handed down on 23 October 2007 by the Commercial Chamber of the Court of Cassation is a further illustration of the difficulty of proving the existence of a situation of economic dependence within (...)

Daniel Fasquelle, Servane Morel Unfair competition: The originality of a product is not a condition of the action in unfair competition (Bollé Protection)

24 July 2007 2998

Cass. com, June 12, 2007, Stés Bollé Protection and Bushnell Performance Optics Europe v/ Sté Euro Protection, n° 05-17.349, Published in the bulletin A few weeks after the judgment delivered by the First Civil Chamber commented in this review (Cass. 1ère civ., 20 March 2007, M. X... c/ (...)

Daniel Fasquelle, Laurent Roberval Discriminatory practices: The CEPC Commission renders an opinion on price discriminatory practices in the pharmaceutical sector (Pharmaceutical sector)

14 June 2007 4467

In commented opinion No. 07-04 of 14 June 2007, the Commission d’examen des pratiques commerciales (CEPC) attempts to make the link between the tariff differentiation enshrined in Article L. 441-6 of the French Commercial Code (C. com.) of the SME Act of 2 August 2005 and the prohibition of (...)

Rodolphe Mesa Counterfeiting and economic parasitism: Time for a new case-law ?

May 2007 6360

According to the French Supreme Court’s recent case law, a competitor can be condemned both on the grounds of parasitism and of infringement of intellectual property rights (counterfeiting) only if it can be proved that he is responsible for two distinct facts, one relevant for parasitism and (...)

Daniel Fasquelle, Rodolphe Mesa Parasitism: The Court of Cassation holds that damages must be equal to the damage suffered as assessed by the 1st and 2nd instance Courts (Métropole télévision M6)

30 May 2007 4769

Cass. com, May 30, 2007, Métropole télévision M6 c/ Sté LPG systems, n° 06-13.880, unpublished The Commercial Chamber of the Court of Cassation recalled the principles that should govern the determination of the amount of damages due by the perpetrator of a parasitic act in a decision handed (...)

Daniel Fasquelle, Servane Morel Unfair competition: The Court of Cassation considers that respect for the private life of employee does not constitute an obstacle to the establishment by the employer of the proof of its unfair manoeuvres (Datacep)

23 May 2007 5123

Cass. soc. 23 May 2007, Mr. X. v. Datacep, No. 05-17.818, published in the bulletin The success of the action in unfair competition presupposes that the victim has established wrongful conduct. The victim must still be able to preserve or establish sufficient evidence. In order to alleviate (...)

Daniel Fasquelle, Servane Morel Unfair competition - Recruting of employees: The Court of Cassation holds that recruiting employees of a competitor does not constitute unfair competition if the massive departure of employees is linked to financial difficulties of the employer (Innovex)

22 May 2007 6521

Cass. com, May 22, 2007, Sté Innovex -MBO v Sté Arvem, n° 06-13.421, Unpublished According to settled case-law, the massive hiring of employees of a competing undertaking constitutes an act of unfair competition when the latter is intended to disorganise the undertaking (Cass. com., 24 Oct. (...)

Daniel Fasquelle, Laurent Roberval Restrictive Practices - State Prosecution: The University of Montpellier assesses State prosecution in penal and civil matter (Montpellier Law Faculty Report 2005-2006)

May 2007 4938

Report of the Faculty of Law of Montpellier on the Application of Title IV of Book IV of the Commercial Code concerning legal actions at the initiative of economic actors: Assessment of criminal (year 2005) and civil (period from 1 January 2004 to the first half of 2006) court decisions The (...)

Daniel Fasquelle, Laurent Roberval Terms of sale: The CEPC takes sides against the draft decree on prices differenciation

12 April 2007 5127

CEPC, Opinion No. 07-01 of 12 April 2007 on the framework for tariff differentiation as provided for in Article 41 of the Law of 2 August 2005 in favour of SMEs. The Administration is still considering whether it would be advisable to adopt a decree determining the categories of purchasers (...)

Daniel Fasquelle, Laurent Roberval Delays for payment : The CEPC Commission insists on interprofessional negotiations in order to reduce delays for payment (Automobile Federation)

12 April 2007 4316

The question of payment periods under competition law has long been raised without a solution having yet been sketched out (see note J.-P. L. L, Concurrences, No 2-2006, p. 106.). However, far from being fatalistic, the Trade Practices Review Commission (TPRB) does not despair of finding a way (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation - Civil fine: The Nanterre commercial Court fines Leclerc 200 000 euros (DGCCRF/GALEC)

28 March 2007 6150

In the context of the fight against abusive commercial cooperation, the DGCCRF once again called into question the responsibility of the central purchasing body of the Leclerc centres, GALEC, and obtained the imposition of a civil fine of 200,000 euros (For a precedent: TC Nanterre, 15 Nov. (...)

Daniel Fasquelle, Rodolphe Mesa Economic Parasitism - Counterfeiting: The Court of Cassation holds that the Court of Appeal, while rejecting alleged counterfeiting practices, should have searched for an intent of taking advantage of investments made by the acting party (Compagnie française d’eaux de vie et spiritueux)

20 March 2007 4902

Cass. 1st civ., 20 March 2007, Mr X... c/ company Compagnie française d’eaux de vie et spiritueux, n° 06-11.522 and 06-11.657 In the absence of protection based on the provisions of the Intellectual Property Code, the question frequently arises as to whether it is possible to act on the (...)

Daniel Fasquelle, Sébastien Charrière Non-Compete Clause: The Court of Cassation holds that the amount of the pecuniary counterpart of a non-compete provision cannot depend only on the execution time of the contract and its payment can intervene only after the rupture of the contractual relation (Publications Pierre Johanet)

7 March 2007 5520

Cass. soc. 7 March 2007, Mrs. X v. Publications Pierre Johanet, No. 05-45.511 Manuals dealing with the non-competition clause ancillary to an employment contract will henceforth have to make provision, as a matter of urgency, for a substantial part of their development to deal with the (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation, Term of payment...: The French Legislator and Government adopt more economic regulation (Various 2007 Decrees and Laws)

26 February 2007 4607

Decree No. 2007-257 of 26 February 2007 amending Decree No. 2005-524 of 20 May 2005 establishing the list of agricultural products mentioned in Article L. 441-2-1 of the Commercial Code Bill to regulate payment periods in industrial subcontracting, No. 3627, registered at the Presidency of the (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation: The Court of Cassation answers the question of proof in the case of false commercial cooperation (Vierzon distribution)

20 February 2007 4237

Cass. com, February 20, 2007, Sté Vierzon distribution v/ Minister of the Economy, n° 04-20.449, unpublished In a ruling handed down on 20 February 2007, the Commercial Chamber of the Court of Cassation provided interesting clarifications on the evidence of false commercial cooperation. In (...)

Daniel Fasquelle, Laurent Roberval Civil fine: The Court of Cassation holds that the Minister of the Economy cannot ask the judge to inflict a civil fine when he intervenes directly in appeal on the base of Art. L. 470-5 C. com (Streck Diffusion/La Redoute)

23 January 2007 4917

Cass. com, January 23, 2007, Streck Diffusion v/ société La Redoute, n° 04-16.779 The ruling handed down on 23 January 2007 by the Court of Cassation illustrates the difficulty of reconciling the guiding principles of civil procedure with the exorbitant prerogatives of ordinary law granted (...)

Daniel Fasquelle, Jean-Patrice de La Laurencie, Laurent Roberval State procecution: The DGCCRF pubishes a report on its 2005 activity

20 December 2006 5776

DGCCRF, Application du Titre IV du Livre IV du code de commerce - Actions en justice du ministre de l’Économie, Bilan des décisions judiciaires pénales (année 2005) et civiles (période : 1er janvier 2004-1er semestre 2006) 20 December 2006 In the area of restrictive competition practices, (...)

Daniel Fasquelle, Rodolphe Mesa Parasitism: The Court of Cassation considers that parasitism requires a risk of confusion and intention to take advantage of a third party reputation (Diramode et Promotion du prêt-à-porter/Jennyfer; Wirquin/Sanitaire accessoires services; Patrelle/Euro Confi)

12 December 2006 7224

Cass. com, December 12, 2006, Diramode et Promotion du prêt-à-porter c/ société Jennyfer, n° 05-18.988 Cass. com, February 20, 2007, Wirquin c/ société Sanitaire accessoires services, n° 05-16.683 Cass. com, February 20, 2007, Patrelle c/ Euro Confi company, n° 05-17.004 The ruling handed (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation: The Court of Cassation indicates the mentions which must appear on contracts of commercial cooperation and invoices (SCA Centre)

6 December 2006 5229

Criminal Case, 6 December 2006, SCA Centre, No. 06-82.834. In a ruling handed down on 6 December 2006, the Criminal Division of the Court of Cassation gave an extensive interpretation of the formal requirements imposed by Article L. 441-6 al. 5 C. com. which are nevertheless criminally (...)

Daniel Fasquelle, Servane Morel Unfair Competition: The Court of Cassation holds that malevolent remarks on the goods and services of a competitor must be sanctioned on the base of unfair competition and not on the ground of slandering (Cabinet d’études conseils diagnostics/Amrane Immobilier Expertise)

5 December 2006 5235

Cass. 1st civ. 5 December 2006, Cabinet d’études conseils diagnostics (CECD) and a. c/ Amrane Immobilier Expertise (AIE), n° 05-17.710 Defamation must be distinguished from disparagement. While the former refers to any attack on the honour or reputation of a natural person or legal entity, (...)

Daniel Fasquelle, Laurent Roberval Economic dependency: The Paris Court of Appeal reminds that a plaintiff must prove absence of equivalent solution (Galerie Sainte-Anne)

26 November 2006 6379

CA Paris, 5ème ch. A, 8 March 2006, SA Galerie Sainte-Anne In a judgment of 8 March 2006, the Paris Court of Appeal recalled that in order to rely on a situation of economic dependence, even as a defence, it is necessary to prove that one is under an obligation to continue the commercial (...)

Daniel Fasquelle, Laurent Roberval Economic dependency: The Anger Court of Appeal explains that a brutal increase in the price of accounting and administrative services is an abuse of economic dependency (Proservices c/ SA Orthodis)

26 November 2006 5919

CA Angers, Switzerland, February 7, 2006, SARL Proservices c/ SA Orthodis The ruling handed down on 7 February 2006 by the Angers Court of Appeal is instructive not only with regard to compensation for a victim of a multiple violation of the provisions of article L. 442-6 C. com, but also (...)

Daniel Fasquelle, Sébastien Charrière Non-Compete Clause: The Court of Cassation holds that a very low pecuniary counterpart amounts to an absence of pecuniary counterpart (M. X c/ Comasud)

15 November 2006 6828

Cass. soc. 15 November 2006, M. X v. Société Comasud, No. 04-46.721, published in the bulletin "Cass. soc. 15 November 2006", M. X v. Société Comasud, No. 04-46.721, published in the bulletin Current case law on non-competition clauses once again leads us on the beaten track of the pecuniary (...)

Daniel Fasquelle, Servane Morel Advertising : The Supreme Court rules on relationships between comparative advertising and unfair competition law (Thiers distribution c/ SNC LIDL)

31 October 2006 4751

Cass. com, October 31, 2006, Thiers distribution c/ SNC LIDL, n° 05-10.541, Published in the bulletin Ruling on illicit comparative advertising and its relationship with unfair competition. Cass. com, 31.10.06, Thiers distribution c/ LIDL 1. While comparative price advertising is nowadays (...)

Daniel Fasquelle, Servane Morel Unfair competition: The Court of Cassation holds that an act of unfair competition attributable to a competitor of the victim is required for an unfair competition action to be brought (Europe funérailles c/ Funéfrance Funéclair)

11 July 2006 5171

Cass. com, 11 July 2006, Europe funérailles v/ Funéfrance Funéclair, n° 02-18.229 Based on articles 1382 and 1383 of the Civil Code, an action for unfair competition requires proof of fault (Cass. com., 16 May 1995, No. 93-17.842; Cass. com., 30 May 2000, No. 98-15.549, Contracts, conc., (...)

Daniel Fasquelle Non-competition clause: The Court of Cassation holds that a compensation of the obligor when the clause is illegal is independent from the possibility or the impossibility for the obligor to have a competiting job (Toupargel)

4 July 2006 4678

Cass. soc., July 4, 2006, Mr. X... c/ société Toupargel, n° 04-46.261 Cass. soc., July 12, 2006, Mr. X... c/ société La Halle, n° 04-47.687, n° 05-40.990 In the event of unlawfulness of a non-competition clause, the Court of Cassation considers that "compliance by the employee with an (...)

Daniel Fasquelle, Sébastien Charrière Non-competition clause: The Court of Cassation decides that the compensation of the obligor when the clause is illegal is independent from the possibility or the impossibility for the obligor to have a competition job (M. X... c/ sté Panofrance Méditerranée)

28 June 2006 5455

Cass. soc., 28 June 2006, M. X... c/ société Panofrance Méditerranée, n° 05-40.990 The Social Chamber of the Court of Cassation clarifies its case law on the question of the possibility of adjusting the conditions of payment of the monetary consideration. On 31 May 2006, the Court of (...)

Daniel Fasquelle, Sébastien Charrière Non compete clause: The Court of Cassation declares unvalid a non-compete clause providing absence of pecuniary counterpart in case of dismissal (IPS Atlantique)

31 May 2006 5067

Cass. soc., May 31, 2006, Société IPS Atlantique c/ M. X..., No. 04-44.598 Case law on non-competition indemnities, a condition for the validity of non-competition clauses ancillary to an employment contract, remains, again and again, particularly prolific. The present judgment answers the (...)

Daniel Fasquelle, Laurent Roberval Economic dependency: The Versailles Court of Appeal gives a rare example of judgment on the base of Art. L. 442-6 I) 3) C. com (SAS Viastel c/ SA Maille Du Pevele)

18 May 2006 6936

CA Versailles, 12th ch. 2, 18 May 2006, SAS Viastel c/ SA Maille Du Pevele The judgment handed down by the Versailles Court of Appeal on 18 May 2006 is of interest for two reasons as regards the application of the provisions of the NRE Law n° 2001-420 of 15 May 2001: on the one hand, it is (...)

Daniel Fasquelle, Rodolphe Mesa Parasitic behavior - Counterfeit : The Court of Cassation holds that when a counterfeit action is brought, the liability of the defendant on the basis of parasitism requires a distinct event (Interbrew/Brasserie Fischer)

10 May 2006 7500

Cass. com, 10 May 2006, Interbrew v. Brasserie Fischer, No. 04-15.612 Cass. com, 23 May 2006, Casple and Amstutz Levin v. Muller and Campa, No. 04-16.254. Cass. com, June 20, 2006, Mr. X...and Société Céline c/ Infinitif e. a., No. 04-20.776 The rulings handed down by the Commercial Chamber (...)

Daniel Fasquelle, Sébastien Charrière Non-sollicitation clause: The Court of Cassation holds that only the employee can prevail himself of a non-sollicitation clause without a pecuniary counterpart (Union Technologies Informatique/Metaware Technologies)

10 May 2006 6030

Cass. com, May 10, 2006, Union Technologies Informatique v. Metaware Technologies, no. 04-10.149 Would companies have found a solution at the cost generated by the non-competition clauses ancillary to an employment contract? This is indeed what this interesting first judgment of the Court of (...)

Daniel Fasquelle, Laurent Roberval Excessive low prices - Commercial town planning: The Government adopts new regulatory provisions which make French regulated economy even stronger (Decrees of 4 May 2006, 10 April 2006)

4 May 2006 4619

Decree 2006-513 of 4 May 2006 implementing Articles L. 470-4-1 of the French Commercial Code, L. 141-2 and L. 216-11 of the French Consumer Code relating to the settlement of transactions and amending the Consumer Code Ministerial decree of 2 May 2006 amending the decree of 24 May 2005 laying (...)

Daniel Fasquelle, Laurent Roberval Discriminatory pricing policy: The Court of Cassation holds that a discriminatory pricing policy cannot allow a supplier to supplant a distributor which does not give satisfaction (Akzo nobel coating c/sté Bonnot)

25 April 2006 5839

Cass. com, 25 April 2006, Akzo nobel coating v/ société Bonnot, n° 03-20.353 While the decree implementing the SME Law of 2 August 2005 specifying the conditions for implementing price differentiation is still awaited, the Court of Cassation recalled, in a judgment of 25 April 2006, that (...)

Daniel Fasquelle, Servane Morel Unfair competition: The Court of Cassation confirms the necessity of a state of competition between the parties (AMG/Auchan - Atac)

25 April 2006 4713

Cass. com, April 25, 2006, AMG v. Auchan and Atac, No. 04-13.072 In returning to one of the conditions for bringing an action for unfair competition, the judgment of 25 April 2006 deserves attention. In the present case, AMG, which imports and exports all types of textiles and markets (...)

Daniel Fasquelle, Servane Morel Poaching: The Court of Cassation confirms that poaching doesn’t constitute in itself an act of unfair competition (Strulik/Strulik - Stik)

25 April 2006 5937

Cass. com, 25 April 2006, Strulik SA v. Mr. X and Strulik and Stik industries, No. 04-15.694 In the present case, Strulik SA had sued Mr X and the companies Strulik and Stik industries for damages for unfair competition, in particular because of the poaching of two former employees. The (...)

Daniel Fasquelle, Laurent Roberval Public domain: The Court of Cassation holds that irregular use of the public domain may lead to criminal sanctions (Sonia X)

4 April 2006 4665

Cass. crim. 4 April 2006, Sonia X..., No. 05-86.290 In a decision of 4 April 2006, the Criminal Division of the Court of Cassation, for the first time to our knowledge, specified the conditions for the application of Article L. 442-8 of the Commercial Code, which makes it a criminal offence (...)

Daniel Fasquelle, Rodolphe Mesa Private enforcements of EC antitrust: The EC Green book, A critical view

February 2006 7898

On December 2005, 19, considering the loopholes of positive law, the European Commission published a Green book on private enforcement of competition rules (Art. 81-82 EC). This document shows both curative and preventive effects of such actions. It also identifies the main barriers to their (...)

Daniel Fasquelle, Laurent Roberval Resale below cost: The OECD pleads against resale below cost

23 February 2006 5981

"The main reason is that it is too blunt an instrument to distinguish between pro-competitive and anti-competitive behaviour". This statement by John Hilke, Chairman and Rapporteur of the OECD Round Table on "Resale below cost and regulation", held on 23 February, sums up the OECD’s current (...)

Daniel Fasquelle, Sébastien Charrière Non-Compete Clause: The Court of Cassation holds that the respect by the employee of an illicit non-compete clause necessarily causes him a damage of which it is up to the judge to appreciate the extent (Prisme -Jouclas Périgord - BCS - Confort Line - Confort Line - Medex Biomédical - BMC Software - Axa - Ahi - Aseca - Orfac)

11 January 2006 6639

Compliance by the employee with an unlawful non-competition clause necessarily causes him or her a prejudice, the extent of which is to be assessed by the court. Cass. soc., 11 January 2006, Ms. X v. Prisme, No. 03-46.933 Cass. soc. 15 February 2006, Ms X v. Distrel, No. 03-47.941 Cass. (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation: The Administration stays strong on the SME law (Baud/DGCCRF)

16 December 2005 5002

TGI Créteil, 16 December 2005, Société Baud v DGCCRF T. com. Angers, 15 February 2006, DGCCRF c/ FINAMO In two recent cases, the DGCCRF has demonstrated its commitment to enforcing trade cooperation legislation. In a first case, it obtained a judgment dated 16 December 2005 from the Créteil (...)

Daniel Fasquelle, Servane Morel Domain name: The Court of Cassation rules on the difficulty for the holder of a domain name to protect it against the attacks of which it is the object (Soficar/Tourisme moderne)

13 December 2005 5120

Cass. com, 13 December 2005, SA Soficar c/ SA Le Tourisme moderne, compagnie parisienne du tourisme, n° 04-10.143 A year and a half after its first decision on the unfair use of a trade name in a domain name (Cass. com., July 7, 2004, n° 02-17.416, subject of a previous comment in this (...)

Daniel Fasquelle, Servane Morel Economic Parasitism: The Court of Cassation holds that an idea must be precise and original to be protected on the basis of parasitism (Syn’x/Softimage)

13 December 2005 4877

Cass. 1st civ. 13 December 2005, Sté Syn’x c/ Sté Softimage, n° 03-21.154 The ruling handed down by the First Civil Chamber of the Court of Cassation on 13 December 2005 provides valuable lessons on the scope of the protection of ideas through the theory of economic parasitism. In this case, (...)

Daniel Fasquelle, Laurent Roberval Commercial cooperation: The Court of Cassation rules on how to interpret the notion of « distinct services » (Concurrence / Sony)

6 December 2005 5476

Cass. com, December 6, 2005, SA Sony v. Sté Concurrence, No. 04-19.320 In a ruling handed down on 6 December 2005, one more in the lengthy dispute between Competition and Sony, the Court of Cassation recalled that the trial judges have sovereign power to assess whether services invoiced by a (...)

Daniel Fasquelle, Servane Morel Low price practices: The Court of Cassation refuses to sanction very low prices as an act of unfair competition (Usines Merger/Giat)

6 December 2005 6423

Cass. com, 6 December 2005, Merger Factories v. Giat Industries and others, No. 05-10.929. To the question "can an action for unfair competition sanction an abnormally low price practice deemed not to be contrary to the provisions of the Commercial Code by the Competition Council", the Court (...)

Daniel Fasquelle, Sébastien Charrière Non-compete clause: The Court of Cassation decides that a separate non-compete clause may not create any obligation to pay a financial compensation (Neda)

30 November 2005 4953

Cass. soc., November 30, 2005, Mr. X... c/ Sté Neda, n° 04-41.709 The judgments of the Social Chamber of the Court of Cassation have often been a source of inspiration for extending the solutions devised for the employment contract to other contracts (on the need for a legitimate interest (...)

Daniel Fasquelle, Laurent Roberval Civil fine - Appeal: The Court of Appeal of Douai rules on the first intervention of the Administration in appeal to get the retailer convicted of a civil fine (Eurauchan/Label Gourmand)

13 October 2005 5157

CA DOUAI, 2nd ch. sect. 1, 13 October 2005, SAS Eurauchan c/ SARL Label Gourmand, n° 04-1971 If the Minister of the Economy can intervene directly on appeal to request the pronouncement of a civil fine even though he did not participate in the first instance, it is only on the condition that (...)

Daniel Fasquelle, Sébastien Charrière Non compete: The Court of Cassation imposes compensation for compliance to an illicit non-compete clause (La Fiduciaire d’Armor, Société Eismann)

12 October 2005 5319

Cass. soc., October 12, 2005, Mr. X... c/ Sté La Fiduciaire d’Armor, n° 03-46.752 Cass. soc., October 19, 2005, Mr. X... c/ Sté Eismann, n° 04-40.803 The case law on the establishment of consideration as a condition for the validity of any non-competition clause inserted in an employment (...)

Daniel Fasquelle, Servane Morel Intellectual Property - Unfair Competition: The Paris Court of Appel holds that imitation by a third party of the universe and presentation of comic strips can be sanctioned on the basis of of unfair competition (Albin Michel/Dargaud)

1 July 2005 5215

CA Paris, 4th ch., sect. B, 1 July 2005, Albin Michel / Dargaud, n°05-07.980 The Paris Court of Appeal has just handed down a judgment which shows once again the very great plasticity of the law of unfair competition and its complementarity with intellectual property rights (on this point, (...)

Daniel Fasquelle, Laurent Roberval Producers/Distributors: The Government and the Commission for the study of commercial practices establish a new framework for penalties for late payment (CEPC Opinion, new Art. L. 442-6-I-8° C. com)

23 June 2005 6214

ECCP, Recommendation No. 05-01 of 21 March 2005 on payment periods and their application. Glais Report, 1 February 2005, Study on payment periods for the CEPC Law No. 2005-882 of 2 August 2005 in favour of small and medium-sized enterprises Late penalties are being misused, a point on which (...)

Daniel Fasquelle Unfair practices: The Court of Cassation holds that an act of unfair trading can justifiy the dismissal of a person (Poney Intn.)

14 June 2005 6131

Cass. soc. 14 June 2005, Sté Poney International v. Mrs. X, No. 03-43.401 If the purpose of the non-competition clause is to prohibit the employee, at the end of his contract, from engaging in certain activities which may be detrimental to his former employer, the absence of such a clause (...)

Daniel Fasquelle Non-Compete: The Court of Cassation sanctions the implementation of a non-compete clause devoided of any financial compensation by interim measures (Piejac-Maingret)

25 May 2005 5231

Cass. soc. 25 May 2005, Sté Piejac-Maingret c/ X, n° 04-45.794 The decision handed down by the Social Chamber of the Court of Cassation on 25 May 2005 is interesting in that it is the first to rule on the question of the referral to the judge in summary proceedings to declare a (...)

Daniel Fasquelle Non-Compete: The Court of Cassation rules on the recourse to unfair trading provisions in the case of a void non-compete clause (Forlin/Arve Intérim)

24 May 2005 5936

Cass. soc. 24 May 2005, M. Forlin and a. c/ SA Arve Intérim, n° 03-43.471 In so far as it confirms the possibility for an employer to bring a double action in unfair competition against not only its former employees but also against the competing undertaking which the latter have founded, (...)

Daniel Fasquelle, Laurent Roberval Prohibition of resale below cost: The Pau Court of Appeal reminds the per se prohibition of resales below cost (Scalandes)

21 April 2005 6247

CA Pau, 21 April 2005, SA Scalandes, n°04/00.970 In the aftermath of the "Sarkozy" agreements and on the eve of the entry into force of a new threshold for resale at a loss, the Court of Appeal of Pau recalls that the prohibition of article L. 442-2 of the Commercial Code is an offence per (...)

Daniel Fasquelle, Servane Morel Patent - "Economic Parasitism": The Court of Cassation holds that parasitism can be sanctioned even if there is a violation of the patent and in absence of any misappropriation of the clients (Stratégie Média Conseil/IPACA...)

5 April 2005 6267

CA Paris, 4th floor, 12 January 2005, unpublished TGI Paris, 3rd district, March 9, 2005, unpublished Cass. com, April 5, 2005, Société Stratégie média conseil c/ Association IPACA, n° 02-21.334 The decisions commented on provide an opportunity to return to two important issues. The first (...)

Daniel Fasquelle Non-Compete: The Court of Cassation holds that the non-compete provision survives to the company (TGCP)

5 April 2005 5710

Cass. soc., 5 April 2005, X c/ Sté TGCP, n° 02-45.540 Must the non-competition indemnity, which is a condition for the validity of any non-competition clause inserted in an employment contract, be paid to the debtor employee when the company has ceased to exist legally? The Court of (...)

Daniel Fasquelle, Sébastien Charrière Non-Compete Clause: The Court of cassation applies new case law on nullity of non-compete clause for lack of financial counterpart applies to current situations (AXA Conseil ; 4M Promotion ; TMT France ; France Arno)

30 March 2005 6236

Cass. soc., 27 September 2005, company France Arno v. Mrs. X..., No. 03-45.753 Cass. soc. 28 June 2005, TMT France c/M. X..., No. 03-45.342 Cass. soc., March 30, 2005, société AXA conseil c/ M. X..., n° 03-41.911 Cass. soc. 30 March 2005, 4M Promotion c/M. X..., No. 02-46.114 The warnings (...)

Daniel Fasquelle, Rodolphe Mesa Parasitism: The Court of Cassation rules on the rights of a brand licensee (Cie. du grand large/Auchan)

22 March 2005 4824

Cass. com, March 22, 2005, Compagnie du grand large c/ M. X, Auchan and Champion organisation development, n° 02-21.105 The ruling handed down by the Commercial Chamber of the Court of Cassation on March 22, 2005 provides some interesting clarifications on the relationship between trademark (...)

Daniel Fasquelle Bankruptcy law and Competition law

February 2005 5297

Daniel Fasquelle Economic parasitism: The Court of Cassation considers that lower courts are fully competent to assess the criteria of a risk of confusion in order to apply the economic parasitism doctrine (Asics; Stratégie Media Conseil/IPACA)

8 March 2005 5826

Cass.com, March 8, 2005, Sté James Gilberts rugby footballs Ltd. v/ Sté Asics France, n° 03-13.733 Cass. com, April 5, 2005, Sté Stratégie média conseil c/ Association IPACA, n° 02-21.334 By these two judgments handed down on 8 March and 5 April 2005, the Commercial Chamber of the Court of (...)

Daniel Fasquelle, Sébastien Charrière, Servane Morel Action: The Court of Cassation rules on action for unfair practices and non-compete clause (Monsbrot)

28 January 2005 5081

Cass. soc. 28 January 2005, Mrs. X v. Société Fretoccitan, No. 02-47.527 Unfair or anti-contractual competition often results from a three-way game. The judgment presented here is a perfect illustration of this and raises the question of actions brought both against a former employee and (...)

Daniel Fasquelle, Rodolphe Mesa Parasitism: The Court of Cassation rules that only first instance Courts may assess the fault and the damages (Mill’Vi/ALS)

25 January 2005 8402

Cass. com, 25 January 2005, Société Mill’Vi c/ Sociétés ALS service, Bennes Rhône-Alpes and Bennes Manjot, n° 03-11.770 The judgment of 25 January 2005 provides an opportunity to reconsider the extent of the sovereign power of the trial judges in the context of the sanctioning of parasitic (...)

Daniel Fasquelle, Georges Chalot, Isabelle Cretenet (Blin), Jean-Patrice de La Laurencie, Sabine Lochmann Beaujour The afterwards of the "Canivet Report" on Producers/Distributors relationships

December 2004 7132

The report from the Canivet Commission was released the 18 October 2004. This article gathers contributions from main interested parties in the producers/distributors relationship issue. M. Jean-Patrice de La Laurencie, coordinator of the debates among the AFEC association, gathered the four (...)

Daniel Fasquelle, Laurent Roberval De minimis: The French Competition Council states on de minimis and discriminatory practices (Art. L 442-6 I) 1° Cod. com.) (Appareils électrodomestiques)

30 November 2004 5139

Council Directive (EC) No 04-D-64 of 30 November 2004 on practices in the distribution of household electrical appliances The Council was asked by the Minister of the Economy to examine the legality of certain practices of a central purchasing body. Without going into detail, the latter was (...)

Daniel Fasquelle, Sébastien Charrière Time application of courts decisions : The president of the Court of Cassation receives a report which takes position in favour of a selective application in time of French courts decision with reference to ECJ case law

30 November 2004 5443

Report of 30 November 2004 submitted by the working group chaired by Professor N. Molfessis to the First President of the Court of Cassation on reversals of case law As the First President of the Court of Cassation, Guy Canivet, put it very well recently, "reversals of case law create an (...)

Daniel Fasquelle, Servane Morel Counterfeiting: The Court of Appeal of Paris applies unfair competition rules when the counterfeit good is not protected by intellectual/artistic property rights (Zara France c/ Fiso)

19 November 2004 6695

CA Paris, 4ème ch. B, 19 November 2004, Sociétés Inditex Industria de Diseno Textil et Zara France c/ Société Fiso, RG 2003/12008 The judgment of 19 November deserves attention as it testifies once again to the importance and interest of the action for unfair competition when the imitated (...)

Daniel Fasquelle, Servane Morel Unfair competition: The Court of Cassation considers that a non-exclusive supplier can not sell directly to the clients of his bankrupt distributor (Ronéo c/Société Drôme)

12 October 2004 5833

Cass. com, October 12, 2004, Société Ronéo c/ Société Drôme bureau, n° 02-13.404 To the question "Does a company in difficulty benefit from the protection offered by the law of unfair competition? "the Court of Cassation answers here, without hesitation, in the affirmative. In the present (...)

Daniel Fasquelle, Laurent Roberval Break of established commercial relationships: The Court of Cassation uses common rules in addition to unfair competition provisions (Rover France)

5 October 2004 5285

Cass. com, October 5, 2004, Société Rover France v. M. X, No. 02-17.338 Cass. com, 3 November 2004, Société Manitou v/ Société CMG, No. 02-17.919 What role can common law play alongside Title IV of the Commercial Code, which specifically regulates the abusive termination of established (...)

Daniel Fasquelle, Servane Morel Unfair competition: The Court of Cassation rules on the complex conciliation of unfair competition rules and freedom of commerce and industry (Média Overseas)

5 October 2004 4957

Cass. com, October 5, 2004, Mr. and Mrs. X...Y... and Mrs. Z...c/ Société Média Overseas, No. 03-11.530 Cass. 1st civ. 7 December 2004, Société Magellan c/ M. X, n° 02-21.245 Cass. com, 30 November 2004, Société Gras Savoye v/ Société AON Conseil and Société des assurés du Sud-Est-SASE, No. (...)

Daniel Fasquelle, Rodolphe Mesa Counterfeiting/Parasitism: The Court of Cassation rules that actions against counterfeiting and parasitism require two distinct faults (Cave de Gaillac)

28 September 2004 4815

Cass. com, September 28, 2004, Coopérative agricole la cave de la bastide de Levis v/ Société La Cave de Gaillac, n° 02-13.697 Cass. 1st civ., 19 October 2004, Mrs. X... and Company X... c/ DMBB Company and Fiat Company, n° 02-16.057 The judgments handed down by the Court of Cassation on 28 (...)

Daniel Fasquelle, Sébastien Charrière Non-Compete Clause: The Court of Cassation considers that the amount of the non-compete compensation is not a criteria for assessing the validity of the non-compete provision (CGRP)

21 September 2004 6078

Cass. com, September 21, 2004, Mr. X v. CGRP, No. 00-18.265. The question of proportionality in the area of non-competition clauses has become increasingly important in recent years in the case law of the Court of Cassation. The latter now requires that, in order to be valid, a (...)

Daniel Fasquelle, Rodolphe Mesa Restrictive practices: The French Court of Cassation rules that the Ministry of Economy can not intervene on the behalf of the victim (Carrefour)

7 July 2004 4874

– Cass. com, 7 July 2004, Minister of the Economy and Union of Record Retailers and a. c/ Société Carrefour France, n° 03-11.369 The NRE Act of 15 May 2001 considerably broadened the prerogatives of the Minister of the Economy with respect to the sanctioning of practices restricting (...)

Daniel Fasquelle, Servane Morel Unfair Competition: The French Court of Cassation rules on the use of a commercial name as an Internet website name (Bretagne Ventes Immobilière)

7 July 2004 5722

Cass. com, 7 July 2004, SA Bretagne Ventes Immobilière c/ EURL Véronique Le Helley, n° 02-17.416 On the Canivet Commission report, see also Trends, Concurrences, N° 1-2004 The use, as a domain name on the Internet, of the distinctive signs of another company in order to create confusion (...)

Daniel Fasquelle, Laurent Roberval, Sébastien Charrière Break of established relationships: The French Court of Cassation considers that the judge must take into account the existence of alternative commercial solution for the distributor (Auchan)

12 May 2004 5726

Cass. com, May 12, 2004, Sté ABCG participation c/ Sté Auchan France, n° 01-12.865 In order to assess the brutal nature of the termination of a commercial relationship within the meaning of Article L 442-6, I, 5°, must the courts take into account the state of dependence of the ousted (...)

Daniel Fasquelle, Servane Morel Unfair competition: The French Court of Cassation rules on faulty communication about a legal action (Loire Affinage)

12 May 2004 5053

Cass. com, 12 May 2004, Messrs Y..., Z... and X... and the company La Maison de l’eau c/ SARL Loire affinage, n° 02-19.199 Cass. com, 12 May 2004, SCP Becheret-Thierry c/ SA Défi, n° 02-16.623 These two judgments are of interest in that they were an opportunity for the Court of Cassation to (...)

Daniel Fasquelle, Rodolphe Mesa Unfair competition: The French Court of Cassation rules on an action against parasitism (Cima textil)

31 March 2004 6367

Cass. com, March 31, 2004, Société Cima textil SL c/ Société Pépino frères and Société Actua’tex, n° 02-11.113 Cass. com, 28 April 2004, Association Fédération sépharade mondiale et Association Fédération sépharadie de France c/ Association Fédération des associations sépharades de France, n° (...)

Bulletin

European Union

Daniel Fasquelle, Emmanuelle Inacio The EU Commission publishes a draft on a legislative package promoting a single market for digital services

15 December 2020 357

Toward New European Rules for Digital Players in the Internal Market GAFAM (Google, Apple, Facebook, Amazon & Microsoft), the providers of core platform services, are dominating the digital market. In other words, globally, almost all digital services depend on GAFAM. This phenomenon was (...)

Events

24 Nov 2022 Paris Distribution, Competition & Restrictive Practices See documents

17 Mar 2022 Paris Digital Antitrust: How to Regulate? See documents

6 Oct 2021 Paris New Concurrences Book Collection See documents

4 Oct 2021 Paris Distribution & Retail - 2nd edition See documents

10 Mar 2021 Webinar Digital and Competition #2 Keynote Speech by Thierry Breton & Tipping: Should regulators intervene before or after ? See documents

9 Mar 2021 Webinar Digital and Competition #1 Opening discussion & Digital antitrust reforms in the EU and the US See documents

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