Anne-Cécile Martin

University Paris XIII Nord
Associate professor

Anne-Cécile Martin is “Maître de conférences” at the University of Paris XIII where she teaches Business Law and heads the Master 2 in Litigation. She is the author of "The charge of the risk between contracting" (price contract review, ed. LGDJ 2009, t. 508), and numerous articles in Business and Competition Law. She’s also member of the National studies and research division of Fidal in Competition and Distribution Law.

Linked authors

KLYB (Montpellier)
Fidal (Paris)
University of Strasbourg

Articles

35363 Review

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal rules once again on the lawfulness of the refusal of approval of a car distributor under antitrust law and confirms the "absorption" of qualitative selection criteria by quantitative criteria (Safirauto / Hyundai Motor France)

58

The dispute over the legality of refusing to approve distributors within selective distribution networks is not drying up, as shown by an interesting decision handed down on 24 June 2020 by the Paris Court of Appeal. The facts of this case are classic. The promoter of a selective distribution (...)

Nicolas Éréséo, Anne-Cécile Martin In Memoriam : Didier Ferrier (1945-2020)

357

This In Memoriam pays tribute to Professor Didier Ferrier. On January 5, 2020, Professor Didier Ferrier passed away. He was one of the fathers of distribution law. He was also its watchdog. His exceptional career bears witness to this. It’s not just the university professorship he held for (...)

Anne-Cécile Martin Branch manager: The French Supreme Court refuses to grant the supplier’s request to obtain the refund of the sums having remunerated the services performed by the legal entity in execution of the distribution contract, despite the application of the status of branch manager to the benefit of the representative of the latter (SFR)

99

The consequences of the application of the status of branch manager to the benefit of the representative, a natural person, of a legal person bound by a distribution contract have not finished being written about. As a reminder, under the terms of Article L. 7321-2 of the Labour Code, the (...)

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal validates the territorial restriction of active sale, with regard to the launching of a new product, limited in time and proportionate to the need to protect the network efficiency (Coty / Brandalley)

294

By a decision of August 30, 2019 rendered on referral after cassation (Cass. com., May 16, 2018, appeal No. 16-20.040, Concurrences No. 3-2018, obs. A.-C M. p. 110), the Paris Court of Appeal rules again on the liability action brought by a well-known supplier of cosmetic products against an (...)

Anne-Cécile Martin Selective distribution: The French Competition Authority fines a supplier distributing its products within the framework of a selective distribution network for having prohibited its distributor to resell online (Trek)

154

The vigilance of the competition authorities with regard to online sales restrictions in selective distribution networks is not weakening. This quarter, the Competition Authority sanctioned the promoter of a selective distribution network for top-of-the-range cycles for having prohibited its (...)

Anne-Cécile Martin Franchise: The Paris Court of Appeal refuses to consider as unfair or restrictive of competition the provision of the customer’s file and of the distributor’s physical point of sale in an online sales organization strategy within the network (Bourgoin Spirit / Esprit de corps ; Déco Club / Carré blanc)

169

While the collective dimension of distribution networks is an undeniable asset for the development of omnicanality, the legal independence of distributors can be a source of questioning especially through the prism of "unfair commercial practices law" (new title of Chapter II of Title IV of (...)

Anne-Cécile Martin Commercial agency: The Lyon Court of Appeal rules that the principal must respect its obligations of loyalty and information towards its commercial agent and therefore inform him of his pricing policy towards purchasing groups located on his exclusive territory (CB Forez Loisir / AS Pool)

115

A commercial agent complained of various breaches by his principal and sued him in order to obtain, inter alia, the judicial termination of his contract and compensation for various damages. He complained in particular about a discount policy practised by the principal with respect to, among (...)

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal grants the request for suspension of operation of a decision of the French Competition Authority imposing a fine to suppliers who prohibited online resale to their distributors on their own websites of products of a dangerous nature (Stihl)

211

By a decision rendered on October 24, 2018In a case involving a selective distribution network in the motorcycle equipment sector, the Competition Authority had sanctioned the promoter of a selective distribution network in the motorcycle equipment sector for having - by requiring the (...)

Anne-Cécile Martin Marketplaces: The French Competition Authority sanctions the prohibition of online resale by distributors on their own websites but validates prohibitions to resale on third party platforms (Distribution of machinery)

237

The regime for regulating online sales on the websites of distributors who are members of a selective distribution network and those via third-party platforms is gradually being built up. For the record, the Court of Justice of the European Union had accepted the possibility of prohibiting the (...)

Anne-Cécile Martin Manager of branches of a company: The Paris Court of Appeal specifies the consequences arising from the status given to an agent managing branches of a company (RTC / SFR)

115

A telephone subscription distribution company, represented by its manager, had entered into a distribution agreement with a telephone company. The contract had not been renewed at the end of its term. The manager of the distribution company had claimed and obtained the application, in his (...)

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal confirms and clarifies the possibility of prohibiting its selected distributors from using third-party online sales platforms (Caudalie / ENOVA)

295

The issue of the supervision of online sales and more specifically those made via platforms remains at the heart of the jurisprudential news. According to a decision handed down on July 13, 2018, the Paris Court of Appeal confirmed (CJEU, 6 Dec. 2017, Coty Germany v. Parfümerie Akzente, case (...)

Anne-Cécile Martin Characterized restrictions: The French Supreme Court recalls that the loss of the block exemption does not necessarily imply that the selective distribution network does not comply with the provisions of Article 101 § 1 TFEU (Coty)

335

In two different cases, the promoter of a well-known selective distribution network for branded luxury cosmetics and perfumery products had sought an injunction to cease their activities and to obtain compensation for damages against an internet site and a market place where he had found that (...)

Anne-Cécile Martin Transfer of franchise’s commercial property: The French Supreme Court rules that the preference clause is compatible with the law of anticompetitive practices (Carrefour)

203

In a groundbreaking decision handed down on May 3, 2018, the French Supreme Court of Appeal revisits the issue of the validity of preference (or priority) clauses stipulated in favor of the promoter of a distribution network - in this case franchised - in the event of a sale of the business by (...)

Anne-Cécile Martin Online resale: The Paris Court of Appeal considers that the limitation of the use of third party platforms does not constitute a hardcore restriction of competition and appreciates the lawfulness of the obligation for retailers to have a physical point of sale with regard to the nature of the goods in question, namely: luxury goods (Showroom privé / Coty France)

359

In line with the decision handed down by the Court of Justice of the European Union last December (Cf. 6 Dec. 2017, case C-230/16, obs. A.-C. Martin, Concurrences n° 1-2018), the Paris Court of Appeal considers that the limitation on the use of third party platforms does not constitute a (...)

Anne-Cécile Martin Economic entity: The French Supreme Court recalls that the notion of economic entity, specific to competition law, does not apply in matters of common law civil liability (Optical Center / Gadol e.a.)

146

In the area of franchising and, more broadly, distribution networks, the Court of Cassation has also ruled that the network as an "economic entity" is not liable for civil liability. In this case, the promoter of a franchise network had sued several of its competitors for acts of unfair (...)

Anne-Cécile Martin Online sales prohibition: The Court of Justice of the European Union considers that a luxury goods supplier may prohibit its distributors from selling products on a third-party internet platform operating in a discernible manner towards consumers (Coty)

194

The decision, which was eagerly awaited, marks an important step in the recognition by competition law of the importance of protecting selective distribution networks from selling behaviour on the Internet which is perceived as parasitic. Unsurprisingly (cf. Cass com., 13 Sept. 2017, Caudalie v (...)

Anne-Cécile Martin Competitor store location: The French Supreme Court holds the franchisor liable for the franchisee’s loss of chance to obtain cancellation of an authorization to set up a competing store (Bricolor c/ Monsieur Bricolage)

124

A franchisee operating a do-it-yourself store had become aware of a decision by the Commission départementale d’aménagement commercial (CDAC) authorising the creation of a major shopping centre, including a competing do-it-yourself store, in the immediate vicinity of its own. He had informed his (...)

Anne-Cécile Martin Condition of personal exploitation: The French Supreme Court rules that before conclusion of each lease-management contract, a request must be made to Court to obtain a judicial exemption to be allowed not to personally exploit the business (d’Arsine)

112

The Court of Cassation has approved the decision of the trial judges to have annulled a management lease contract on the grounds that the exemption from personal use of the business, which had been granted by the lessor because of the state of health of the manager of the tenant company, had (...)

Anne-Cécile Martin Discriminatory refusal of authorisation: The Paris Court of Appeal states that the lawfulness of a discriminatory refusal of authorization does not prevent its sanction on the basis of the contractual liability rules for breach of the general duty of good faith in the choice of its contracting partner (FCA France / Catia automobiles )

222

The question of the freedom of selection of members of a selective distribution network is still under discussion. It is, in fact, in a jurisprudential context (Cf. CA Paris, 19 Oct. 2016, obs. N. Eréséo Cass. com. 21 June 2016, No. 15-10438, obs. D. Ferrier obs. N. Eréséo, Lettre de la distribu. (...)

Anne-Cécile Martin Franchise : The French Supreme Court confirms that it is to courts adjudicating on the substance to appreciate the existence of employee permutation within the framework of a franchise contract (Bh Forme)

130

It is now generally accepted that the legal independence of companies is not such as to prevent the recognition of a reclassification group, the relevant criterion being that of staff rotation. It now seems equally classical - even if questionable - to consider that the activity under a (...)

Anne-Cécile Martin Selective distribution: The European Court of Justice decides that the court having jurisdiction to hear an action for damages for breach of a selective distribution network resulting from the offer on websites operating in different Member States in the sense that the place where the damage occurred is to be considered as the territory of the Member State protecting the prohibition (Concurrence / Amazon ; Samsung)

308

The company Concurrence - which is active in the retail sale of electronic products intended for the general public through a store located in Paris and an online sales website called "concurrence.fr" - is constantly fuelling litigation over the prohibition of resales via marketplaces, in (...)

Anne-Cécile Martin Franchise : The Paris Court of Appeal specifies the extent of the franchisor’s pre-contractual and contractual commitments (Liliane Z / Bestseller Wholesale France)

129

Prior to the signing of the franchise agreement, the franchisor must communicate to the prospective franchisee information intended to enable him to join the network with full knowledge of the facts (art. L. 330-3 C. com.). After the conclusion of the contract, the franchisor must still (...)

Anne-Cécile Martin Franchise : The French Supreme Court reiterates the network promoter’s duty to enforce the exclusivity he gave and clarifies the notion of active sales (Point S)

129

Unlike the concession contract, territorial exclusivity is not the essence of the franchise contract. It can, however, become one. Case law considers that such exclusivity must be granted when it is necessary for the commercial success of the franchisee (cf. Cass. com. 28 Jan. 1980, JCP G. (...)

Anne-Cécile Martin Franchise : The French Supreme Court specifies that the unsuccessful beneficiary may apply for damages for loss of opportunity of developing himself and for unfair competition (Bricorama)

133

In the current events of this quarter, we will again note a decision of the Commercial Chamber of the Court of Cassation of 20 September 2016 (cf. Letter of the distribution Oct. 2016, p. 5, obs. K. Biancone) concerning the effectiveness of pre-emption clauses in franchise networks. These (...)

Anne-Cécile Martin Manager branch: The French Supreme Court reminds the public order provisions applicable to branch managers and specifies the consequences of the application of the status (Total raffinage marketing ; Yves Rocher)

95

Litigation over the application of employment law provisions to non-employee distributors is steadily increasing. This quarter’s jurisprudential news is further evidenced by decisions relating to the application of the status of branch manager to tenant managers (Cass. soc. 14 Apr. 2016, 2 (...)

Anne-Cécile Martin Franchising: The French Constitutional Court rules that article 64 of the Law on Labour, Modernisation of social dialogue and Safeguard of career paths of August 6th 2016 is conform to the constitution

92

Because it stands at the crossroads of other rights, distribution law is likely to be affected by reforms which, at first glance, do not concern it directly. The Labour Act of 8 August 2016 (known as "El Khomri") is an illustration of this. Its Article 64 provides, under certain conditions, (...)

Anne-Cécile Martin Online platform: The Paris Court of Appeals dismisses an action for unfair competition against an online platform because the supplier did not prove the lawfulness of its selective distribution network (Coty France / Brandalley)

291

The digital transition is definitely not sparing selective distribution networks. As proof, the question of their protection against the perceived parasitic behaviour of online sales platforms continues to feed the lines of this column. The Coty international group’s distribution network is (...)

Anne-Cécile Martin Franchising: The Paris Court of Appeals considers that the adoption of a new brand by the franchisor does not imply a fault justifying a termination of the franchising contract (International esthétique)

111

The evolution of the know-how and identification elements of the franchise network during the course of the contract always raises many questions. A decision of the Paris Court of Appeal is worth noting as it provides an interesting illustration. In this case, a franchisor had decided to (...)

Anne-Cécile Martin Lease management: The Rennes Court of Appeal considers that the lack of speculation "special" intent justifies the authorization for lease management before the end of the two-year period provided by law (France Quick)

107

The management lease contract - by which the owner or operator of a business grants a lease to a manager who operates it at his own risk - enables the promoter of a distribution network to organise integrated distribution while using independent traders. However, in order to ensure that the use (...)

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal confirmes the ability to control the resale conditions online by network distributors (Candy Sud / Eberhardt)

194

From the point of view of competition law, the selective distribution contract constitutes a cartel only if the stipulated selection criteria and their implementation have the object or effect of restricting competition on the market. This is not the case where the criteria meet a "legitimate (...)

Anne-Cécile Martin Franchising: The French Supreme Court reiterates the importance of adapting the information provided based on the candidate’s profile to the franchise (Assurtis)

108

The franchisor - like any person who makes a trade name, trademark or sign available to another person, requiring him to give an exclusive or quasi-exclusive undertaking for the exercise of his activity - must provide any prospective franchisee with information enabling him to make an informed (...)

Anne-Cécile Martin Franchising: The Limoges Court of Appeal reiterates the franchisor’s general obligation of assistance particularly when the franchisee must face a new entrant (Royal Kids / Mr. X)

123

If the content of the pre-contractual information transmitted by the franchisor is crucial to enable the franchisee to make an informed commitment (cf. supra, Cass. com. 5 Jan. 2016), the conclusion of the agreement creates an obligation of assistance on the part of the franchisor for the (...)

Anne-Cécile Martin Branch manager: The French Supreme Court further specifies the conditions and consequences of the application of branch manager status (Total Marketing Services ; Yves Rocher)

166

Article L. 7321-2 C. trav. is increasingly invoked by independent distributors wishing to benefit from the protective provisions of social law. Two decisions specifying the conditions (sale of goods supplied exclusively or almost exclusively by a single company in premises supplied or approved (...)

Anne-Cécile Martin Commercial agency : The French Supreme Court rules that the compensation for contract termination is not due in case of termination during the trial period (Fadin, CTVL)

141

The protective arrangements for commercial agency allow agents to receive an end-of-contract indemnity to compensate for the loss suffered as a result of the termination of relations with their principal. This so-called termination indemnity is a matter of public policy (cf. L. 134-12 c. com. (...)

Anne-Cécile Martin Branch management : The French Supreme Court refuses to apply social law to the situation of the lessee-manager of a gas station and recalls the importance of the concrete assessment of the manager’s autonomy (Total marketing services)

198

Following the termination of his management lease by the lessor, the manager of a service station had sought the application of the status of branch manager (Art. L. 7321-2 C. trav.) in order to obtain payment of various sums. In particular, he argued that he was not free to determine his (...)

Anne-Cécile Martin Commercial agency : The French Supreme Court considers that the decline in the agent’s turnover reveals the lack of diligence considered as serious misconduct (Sady’s Trading)

107

If the commercial agent is entitled to an indemnity in the event of termination of his contract, it does not have to be paid by the principal when the termination of the agency contract is justified by the commercial agent’s serious fault (art. L. 134-13 c. com). The qualification of serious (...)

Anne-Cécile Martin Franchise : The Nancy Court of Appeals annuls a post-contractual non-competition clause due to a lake of spatio-temporal limitation (Victoria/Henquel Petitot Associés)

220

One franchise agreement contained a post-contractual non-competition clause according to which "in the event of termination of this agreement before its term for any reason whatsoever and without prejudice to any damages resulting for the franchisor from such termination[…], the franchisee (...)

Anne-Cécile Martin Selective distribution : The French Judiciary Supreme Court approves of the trial courts’ excluding the qualification as unfair competition of, first, the one-off sale of network products by a non-approved distributor and, second, the approval of a distributor established in a short distance from another distributor (Vannucci)

233

The basis of unfair competition is a now recurrent argument of network distributors wishing to obtain compensation for damage caused by third parties to the network (cf. above for low price Internet sales: Paris, 21 January 2015, note D.F.). In this respect, a decision of the Commercial (...)

Anne-Cécile Martin Franchise : The French Judiciary Supreme Court approves the nullity of a contract on the grounds that the franchisee had decided to enter into contract based on wrong and misleading information and a non-serious forecast and awaited profit results that could not be realised (Sodecob/Equip’buro 59)

200

A franchisee, whose profitability had proved to be much lower than the forecasts transmitted by the franchisor until his company went into receivership, had sued him for nullity of the franchise agreement for failure to comply with the pre-contractual disclosure obligation (Art. L. 330-3 c. (...)

Anne-Cécile Martin Franchise : The Lyon Court of Appeals considers that the assignment of the franchising agreement in the framework of a judicial review is not conditioned by the franchisee’s approval (Protisfi-EMC Elyse, TT Immobilier)

197

CA Lyon, 9 December 2014, Protisfi-EMC Elyse c/ TT Immobilier, RG n° 13/09690 A franchisor had been the subject of a receivership which had resulted in a plan to sell the business to a purchaser. A franchisee was then challenging the assignment of its contract without its agreement. The Lyon (...)

Anne-Cécile Martin Franchise : The Paris Court of Appeals takes into account the franchisee’s personality and excludes any vitiated consent steming from the precontractual information document (MT SP Gestion Restauration Rapide, Socorest)

194

CA Paris, Nov. 5, 2014, MT SP Gestion Restauration Rapide c/ Socorest, RG n° 12/13457 A franchisor had been sued by a franchisee for nullity of the franchise agreement for fraud or error. He invoked, on the one hand, unrealistic forecasts and, on the other hand, the absence in the (...)

Anne-Cécile Martin Severance allowance : The French Supreme Court rules that because the agency contract did not allow any commission, judges could not consider that the principal had to pay a severance allowance calculated by reference to the operations which should have led to paying commission to his agent (Dubus, ITC)

163

Under the terms of Article L. 134-12 C. com. the commercial agent may claim, by reason of the common interest which colours the agency contract, an indemnity for "termination of contract" intended to compensate him for the loss which the disappearance of the contract causes him for the future. (...)

Anne-Cécile Martin Exclusive supply : The French Supreme Court approves of the Paris Court of Appeals’ having characterized an abusive determination of sales price by a distributor (FdG, Camargo, Larzul)

568

Cass. com, Nov. 4, 2014, FdG and Camargo c/ Larzul, n° 11-14.026 An exclusive supply contract provided for the possibility for a supplier of snail meat to unilaterally fix the selling price of its products in return for a commitment to make every effort to enable its customer to compete. Taking (...)

Anne-Cécile Martin Franchise : The French Supreme Court and the Versailles Court of Appeals remind that the defect of consent is not presumed following a failure to deliver within the legal deadline (Banc)

195

Cass. com, 7 October 2014, Ms X. v. Bench, Appeal No. 13-23.119 CA Versailles, September 18, 2014, Panoptic c/ Lynx optique, RG n° 13/01408 In a first case, a distributor bound by a commission-affiliation contract blamed its principal for failing to submit the pre-contractual information (...)

Anne-Cécile Martin Franchise : The French Supreme Court rejects the claim based on unfair competition against the third party accessory to the breach of the franchisor’s preferential right, as it could not demonstrate any damage resulting from the alleged network disorganization (CSF, Distribution Casino)

250

The promoter of a distribution network can protect it against the disloyalty of its distributors by stipulating preference, non-competition or, for example, non-reaffiliation clauses in its favour. He can also protect the network against the disloyalty of third parties through the action of (...)

Anne-Cécile Martin Exclusive license : The French Supreme Court approves of the Orléans Court of Appeals’ having sanctioned a licensor whose bad faith discouraged candidates from taking over the license (John Deere, Etablissements Pinchon)

198

Cass. com, Sept. 23, 2014, John Deere v. Établissements Pinchon, No. 13-18.938 A concession contract provided that, in the event of succession of the manager of the concessionaire company, the latter was obliged to submit an "acceptable" candidate for the takeover to the grantor for approval (...)

Anne-Cécile Martin Franchise : The French Supreme Cour rules on the terms of assessment of the disproportionality of non-competition engagement and post-contractual non-affiliation (France restauration rapide / Qualité service propreté, Carrefour et CSF / Segurel)

201

[ Cass. com, September 23, 2014, France restauration rapide c/ Qualité service propreté, appeal no. 13-20.454 Cass. com, 23 September 2014, Carrefour and CSF v. Francap and Ségurel, appeal no. 13-22.624 Two cases are noteworthy as regards the conditions for assessing the proportionality of (...)

Anne-Cécile Martin Good name of a brand : The Paris Court of Appeals considers that the renown of a salespoint means its notoriety or recognition by a wide audience (Carrefour, Champion)

203

The Paris Court of Appeal, hearing a case brought by a franchisor alleging that its former franchisee had breached the non-affiliation clause, held that such a clause, prohibiting its reaffiliation "with a sign of national or regional renown", did not apply to reaffiliation with a sign which (...)

Anne-Cécile Martin Franchise: The Aix-en-Provence Court of Appeals states that being franchisees of a same brand does not imply de facto employees’ exchangeability among the various franchisees of the network (LG Jardinerie)

106

Labour law is constantly interfering in franchise law and, more broadly, in distribution law. Alongside the now classic litigation concerning the reclassification of franchise contracts as employment contracts or the application of the provisions of Article L. 7321-2 of the French Labour Code (...)

Anne-Cécile Martin Franchise: The French Supreme Court approves of a court of appeals rejecting the termination request of a commercial lease agreement from a lessor (La Cour et Royal Cambon c/ Saint-Honoré 265)

121

In a decision handed down on 3 June 2014 - which, although it does not have the honours of the Bulletin, nevertheless deserves attention - the Court of Cassation returned to the delicate question of the possibility for franchisees to avail themselves of their own clientele, distinct from that (...)

Anne-Cécile Martin Territorial exclusivity: The Limoges Court of Appeals assesses the scope of a territorial exclusivity clause in view of the franchisor’s behaviour (Prim’style)

158

A franchisor had entered into a franchise agreement with a new franchisee under which the franchisor would not "permit the opening of other outlets under [its] name without the prior consent of the franchisee". The franchisee had complained that the franchisor was providing, in violation of the (...)

Anne-Cécile Martin Branch managers: The Bordeaux Court of Appeals specifies that if the criteria of Article L. 7321-2 of the French Labour Code are necessary to apply a number of social law provisions to non-employees, they cannot set aside a reclassification to employment contracts in the event of legal subordination (Bambou et compagnie / Les Ateliers des cotonniers)

129

CA Bordeaux, April 30, 2014, RG n° 12/06406, Bambou et compagnie c/ Les Ateliers des cotonniers The commission-affiliation contract seemed to be protected from being reclassified as a commercial agency contract (cf. Cass. com., 29 June 2010, No. 09-66.773, aff. Chattawak, supra, note 2, at p. (...)

Anne-Cécile Martin Franchise: The Rennes Court of Appeals dismisses a belated action filed by a franchisee related to the invalidity of the nearly entirely executed franchise agreement (Agri Placement)

194

Following the termination of his franchise agreement, a franchisee had sued his franchisor for nullity of the agreement for lack of elements characteristic of a franchise (know-how, technical and commercial assistance). The Rennes Court of Appeal dismissed his claims, noting "that the (...)

Anne-Cécile Martin Layoff: The Bordeaux Court of Appeals considers that economic difficulties justifying redundancies need to be appreciated in the framework of the society and not the establishment (Mme P. / Rogaray Val de Loire)

84

CA Bordeaux, March 27, 2014, RG n° 13/00013, Mrs P. c/ Rogaray Val de Loire The Bordeaux Court of Appeal accepted the claim for compensation for dismissal without real and serious cause made by a branch manager, on the ground that the evidence adduced to justify his dismissal on economic (...)

Anne-Cécile Martin Online distribution: The Paris Court of Appeal paves the way for a more favorable approach of possible individual exemption regarding Internet sales restrictions within distribution systems (Bang & Olufsen)

397

The Paris Court of Appeal confirmed the decision of the French Competition Authority (dec. no. 12-D-23 of December 12, 2012) relating to practices implemented by Bang & Olufsen in the selective distribution of hi-fi and home cinema equipment, obs. D. Ferrier) condemning Bang & Olufsen, (...)

Anne-Cécile Martin Franchising: The Versailles Court of Appeal decides that the franchisee refusal to sign a franchising proposal with a non-reinstatement clause prevents from considering that the parties had a common intention of renewing the prohibition of reinstatement clause (Rapid’ Auto Albi / Speedy France)

116

CA Versailles, January 30, 2014, RG n° 12/08575, Rapid’ Auto Albi c/ Speedy France In a decision handed down on 30 May 2012, the Court of Cassation (cf. Cass. com., 30 May 2012, no. 11-18.779, obs. A.-C. M.) had censured judges on the merits who had dismissed the application of a franchisor who (...)

Anne-Cécile Martin Intragroup transfer: The French Supreme Court overrules an appellate court for having considered that a post-contractual non-compete clause did not apply after the intragroup transfer of an employee (Sonepar Sud-Est)

430

An employee had been transferred from company code A to company code B in the same group. Each of the two employment contracts successively concluded with these two companies imposed on the employee a post-contractual non-competition obligation from which he could be released by the employer (...)

Anne-Cécile Martin Wholesale : The French Supreme Court approves of an appellate court having considered that it is up to the distributor-acquirer who benefits from price advantages to account for the product destination (Pomona)

99

A wholesaler who bought fresh fruit and vegetables to resell them to professional customers had been criminally prosecuted before the entry into force of the LMAP on the basis of Article L. 441-2-1 of the Commercial Code for having concluded 130 contracts with suppliers with discounts but (...)

Anne-Cécile Martin Distribution of medications: The French Competition Authority makes observations and proposals in order to stimulate the competition in the sector of urban distribution of medicinal product for human use

134

In early 2013, the Competition Authority had asked for an opinion to examine the sector of urban distribution of medicinal products for human use. Last December, it published an opinion in which it made a number of observations and proposals "which form part of a coherent approach to promoting (...)

Anne-Cécile Martin Contract : The French Supreme Court states that a jurisdiction clause that is not written in clear legible letters, does not satisfy the obligations under article 48 of the French Civil Procedure Code (Grenke location/Rubenzo car)

186

Cass. civ. 2, 7 June 2012, Grenke location v. Rubenzo car, appeal no. 11-13.105 The Court of Cassation approved a court of appeal for having, in order to declare this clause unenforceable as not being "specified in a very apparent manner", noted "that the original leasing agreement[has], on (...)

Anne-Cécile Martin Cartel: The Court of Justice specifies that it is forbidden to come to an agreement in order to to eliminate a competitor even if it is an illegitimate one (Slovenska Sporitel’na)

109

CJEU, 07.02.2013, Slovenska Sporitelna, Case C-68/12 A bank that had been convicted of a cartel by a national competition authority contested the amount of the fine on the grounds, firstly, that the cartel did not infringe the competition rules since the "victim" was a company operating (...)

Anne-Cécile Martin Franchise - Abuse of dominant position : The French Competition Authority and the Court of Appeal of Paris decide on the consequences of the exercise of a right of preemption in distribution contracts (Panama c/ Group’Michigan)

164

The validity and conditions of implementation of the clauses limiting the possibility for distributors to change brands at the end of the contract raise a number of questions. From a competition point of view - whether it concerns pre-emption rights or preferential rights for the benefit of (...)

Anne-Cécile Martin Franchise - Territorial exclusivity : The Rouen Court of Appeal considers that the franchisor establishing a sales point under a different name on the territory granted to the franchise holder does not commit a fault (Villaflora c/ Floria création )

120

A franchisor which had granted territorial exclusivity to one of its franchisees had, after having been integrated into a group of companies, allowed a store under another name of the group to be established in its exclusive territory. The franchisee had sued the franchisor for breach of the (...)

Anne-Cécile Martin Exclusive distribution - Selective distribution : The French Supreme Court censures a court of appeal for having dismissed the alleged breach of obligation to maintain the sealing made by a dealer network against its licensor without further explanation (Motoworld / PC Moto)

172

Cass. com, 22.10. 2013, Co Motoworld c / Moto PC, dec. no. 12-22.281 An "exclusive concessionaire" accused a "off-network" reseller, who was competing with him, of acts of unfair competition and the "licensor" of not "sealing the network". On the first grievance, the Court of Cassation (...)

Anne-Cécile Martin Exclusive distribution : The French Supreme Court approves of a court of appeal having accepted the responsibility of a grantor for breach of the duty of good faith in the exercise of their right of termination (M. X c/ Fiat)

148

The question of the breach of distribution contracts is nowadays dealt with more from the point of view of practices restricting competition than from that of contractual liability. Article L. 442-6, I, 5° of the Commercial Code, which penalises the fact of "abruptly terminating an established (...)

Anne-Cécile Martin Lease management - Franchise : The Paris Court of Appeal annuls the totality of leasing and franchise contracts due to breach of pre-contractual information obligation (Les Gourmandises d’esquermoise c/ Boulangerie Paul)

140

A court of appeal annuls a management lease and a franchise agreement entered into concurrently on the grounds that : in the context of the management lease, had violated Article L. 330-3 of the French Commercial Code due to the lack of pre-contractual information; in the context of the (...)

Anne-Cécile Martin Franchise : The French Commercial Supreme Court and the Paris Court of Appeal continue to illustrate the application of the article L. 330-3 of the French Commercial Code

102

In a first case, the Court of Cassation approved a Court of Appeal which had dismissed a franchisee’s application for the nullity of the franchise agreement (concluded in 2003) for failure to comply with the pre-contractual disclosure requirement of Article L. 330-3 of the Commercial Code, (...)

Anne-Cécile Martin Franchise : The Paris Court of Appeal considers that a franchise contract may be assimilated to a membership contract, which is to be interpreted against the one who drafted the contract (M. X c/ Cash Converters Europe)

118

A franchisee who had failed to regularise a commercial lease within the time limit set out in the franchise agreement took advantage of the ambiguity of the agreement to request its termination and, consequently, the return of the sum paid to the franchisor as a deposit on the entrance fee. The (...)

Anne-Cécile Martin Franchise: The Cour de cassation recalls that the creation of a website is not comparable to the setting-up of a point of sale in the sector protected by a territorial exclusivity (GSR)

126

One franchisor had granted a territorial exclusivity to its franchisee, "in order to] guarantee [him in terms of clientele an area of sufficient attractiveness in relation to the concept". The franchisor had opened an Internet site for the sale of its products and had distributed catalogues (...)

Anne-Cécile Martin Exclusive distribution : The Paris Court of Appeal rules that licensor’s refusal to authorize the geographical transfer of the distribution cannot qualify as abuse (X / Honda Motor Europe Limited)

101

An exclusive concessionaire had wished to relocate its point of sale from the city centre to the outskirts to achieve its objectives. When the grantor objected, the concessionaire then sued the concessionaire, inter alia, for wrongful refusal. A court of appeal ruled out any abuse on the (...)

Anne-Cécile Martin Franchise : The Cour de cassation confirms, as Courts of Appeal, the nullity of the franchise contract in case of transmission by the franchisor of an unrealistic projected turnover (Hypromat)

97

Article L. 330-3 of the Commercial Code obliges the franchisor to transmit a pre-contractual disclosure document to the prospective franchisee. If the provisional accounts are not part of the information to be included in the document, they must nevertheless - if they are communicated (...)

Anne-Cécile Martin Franchise : The Cour de cassation refuses to pronounce the nullity of a franchise contract in spite of the omission by the franchisor in the precontractual document of information of the presentation of the state and the perspectives of development of the concerned market (Alizés diffusion)

102

If the projected accounts are not included in the information to be included in the pre-contractual disclosure document to be submitted by the franchisor to the prospective franchisee (pursuant to Article L. 330-3 of the Commercial Code), the state and development prospects of the market (...)

Anne-Cécile Martin Sale of Buniness: The Amiens Court of Appeal holds that the use of a website to reach customers within the scope of prohibition of a non-recovery and non-solicitation provision, forbidden by contract, is not a breach of contract in the absence of an express provision that qualifies it as such (Chermes/Maison Richet)

165

The issue of the legal treatment of online sales and, incidentally, the delicate classification of e-shops is now classically illustrated by the prohibition on the promoters of distribution networks to prohibit, in an absolute manner, passive resales by their distributors from their own online (...)

Anne-Cécile Martin Exclusive supply: The Douai Court of Appeal decides in favor of a supplier which was a third-party to a management lease agreement concerning the breach of an exclusive supply clause ruling that the third-party supplier was the direct beneficiary of the clause, that the supplier is not bound by a pre-contractual information obligation under article L. 330-1 of the commercial code (Lehoucq/M. et Mme X)

150

CA Douai, 24 January 2013, LEHOUCQ c/ Mr and Mrs X, RG 11/06247 The question of the scope and application of Articles L. 330-1 and L. 330-3 of the French Commercial Code is the subject of a decision by the Court of Appeal this quarter which deserves attention because of the contractual (...)

Anne-Cécile Martin Commercial agency: The Besançon Court of Appeal rejects the pursuit of a commercial agency agreement with a buyer designated as part of a collective procedure for the principal company (Euro Distri Baby)

99

CA Besançon, 9 January 2013, Euro Distri Baby v/ Smoby Toys, RG 11/02515 The Besançon Court of Appeal rejected the application of a commercial agent who claimed that his contract had continued with the purchaser appointed by the Commercial Court of Lons Le Saunier on the terms previously agreed (...)

Anne-Cécile Martin Franchising: The Aix-en-Provence Court of Appeal condemns a franchisor for breach of its obligation of pre-contractual information revealed by the emails from the franchisee at the beginning of its activity (Comme Ulysse)

190

CA Aix-en-Provence, 10 January 2013, Comme Ulysse, RG 11/14007 The Court of Appeal of Aix-en-Provence granted the request of a franchisee to have his franchise agreement cancelled because he was unable to operate his business on a permanent basis without having received sufficient and sincere (...)

Anne-Cécile Martin Exclusive supply: The Montpellier Court of Appeal defines the concept of "usual price" used by a supplier and rejects the request of a distributor alleging breach of this clause (Caplau/France Boissons Languedoc)

149

CA Montpellier, 11 December 2012, Caplau c/ France Boissons Languedoc, RG 11/05139 Ruling on referral after cassation, the Montpellier Court of Appeal again rejected a distributor’s claim for breach by the supplier of the clause guaranteeing that the price of the supply would be "that resulting (...)

Anne-Cécile Martin Franchise: The Cour de cassation decides that the legitimacy of the request of conservation measures formulated by a franchisor must not be assessed according to its diligence to establish the arbitration court planned in case of disputes (Carrefour Proximité France/Ramaje)

101

Following a franchisee’s decision to terminate the franchise agreement early, a franchisor had filed a summary judgment against him to force him to continue the agreement until the end of its term and prevent the removal of the sign and the transition to competition. A court of appeal had (...)

Anne-Cécile Martin Franchise: The Paris Court of Appeal rules against the franchisor, finding that the franchise agreement was terminated due to his fault because he did nothing to prevent the ruin of consecutive network (BCBG Max Azria Group/Cimpave)

133

The promise of repeated commercial success is a fundamental element of the franchise agreement. The franchisor must provide its franchisee with the means of success it proposes and control its development. The franchisor is therefore responsible to his franchisees when he does not intervene to (...)

Anne-Cécile Martin Restrictive practices: The French Supreme Court decides that the determination of the competent court regarding restrictive practices is not subordinated to the examination of the legitimacy of the requests (BMW/RETIF)

173

Cass. com, 26 March 2013, BMW / RETIF, Appeal No. 12-12685 A car manufacturer had signed an audit contract with a company wishing to join its network of authorised repairers, the purpose of which was to have the latter audited by a third party service provider in order to determine whether it (...)

Anne-Cécile Martin Selective distribution: The Douai Court of Appeal allows the action for unfair competition of suppliers of selective distribution denouncing practices of resale outside network on the Internet provided they relate proof of the legality of the network (Christian Dior)

298

CA Douai, 19 March 2013, Mrs X. v. Christian DIOR et al, RG 10/06955 The question of the marketing of products on the Internet in a distribution network is a constant source of case law on selective distribution contracts. After the negative answer given by the Court of Justice of the European (...)

Anne-Cécile Martin Franchising: The Montpellier Court of Appeal holds that the amount of compensation stipulated under a penalty clause designed to punish the franchisee for breach of his non-compete obligation is manifestly excessive (Théraform)

133

CA of Montpellier, 16 October 2012, Théraform c/ M. X, RG n° 11/°1745 The assessment of the validity and regime of post-contractual non-competition clauses with regard to their purpose is, in several respects, at the forefront of the case law. If unjust enrichment cannot lead to any paralysis of (...)

Anne-Cécile Martin Franchising: The Court of cassation approves the appeal decisions rejecting claims by distributors on the grounds of unjust enrichment (Summer/SFR ; Arnaud/Sabicinnovative plastics France)

239

The issue of compensation for independent distributors at the end of a contract is again in the forefront of the legal scene this quarter. In two decisions handed down on the same day, the Court of Cassation denied independent distributors the possibility of obtaining compensation for loss of (...)

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal confirms, on the basis of art. 101, § 1 of the TFUE, the impossibility to ban online sales in a selective distribution network when the prohibition is not justified by the legal and economic context nor by its goals, and refuses to grant, on the basis of art. 101, § 3 of the TFUE, an individual exemption (Pierre Fabre Dermo-Cosmetique)

403

CA Paris, 31 January 2013, Sté Pierre Fabre Dermo-Cosmétique, RG 08/23812 In a decision dated January 31, 2013, the Paris Court of Appeal finally handed down its "verdict" in the now famous Pierre Fabre case (to our knowledge at the time of writing, no appeal to the Supreme Court had been lodged (...)

Anne-Cécile Martin Selective distribution: The Paris Court of Appeal reminds that the promoters of selective distribution networks may not refuse their distributors to sell their products online and punishes promoters for sudden breach of the distribution agreement (News Parfums/Parfums Christian Dior, Guerlain et LVMH Frangrance Brands)

400

CA Paris, 27.06.12, News Parfums c/ Parfums Christian Dior, Guerlain and LVMH Frangrance Brands, RG n°10-04245 In the wake of the publication by the Competition Authority of its long-awaited opinion on the competitive functioning of e-commerce Aut[. Conc. opinion No. 12-A-20 of 18 September (...)

Anne-Cécile Martin Franchising: The Cour de cassation approves a decision of an appellate court that ordered the franchisee to repair the damage caused by ricochet to the supplier because of the breach of the franchise agreement (Alimentation Gouardère Lafitte Aquitaine/CSF)

164

Cass. com, 10.07.12, Alimentation Gouardère Lafitte Aquitaine c/ CSF, n° 11-22.301 The question of the franchisee’s exit from the distribution network remains a central issue in franchise law. Most often in this case, either the franchisee wishes to leave the franchise network and his concern is (...)

Anne-Cécile Martin Commercial agency: The Paris Court of Appeal refuses to consider the telephone subscriptions diffusers as "commercial agents" or "representatives of public interest" (Waris Télécom and Mim Com/Orange France)

117

CA Paris, May 9, 2012, Waris Télécom and Mim Com c/ Orange France, RG n° 09/19381 The Paris Court of Appeal rejected the application of telephone subscription distributors whose contracts had been terminated by an operator and who claimed the benefit of the status of commercial agents, their (...)

Anne-Cécile Martin Commercial agency: The Paris Court of Appeal retains that the mandator who unilaterally removes a part of the tasks entrusted to the commercial agent cannot be accused of breaking their contract when he refuses a new contract to compensate for this withdrawal (Frig’Invest/Boulenger)

82

Board of Directors Paris, May 31, 2012, Frig’Invest v. Boulenger, RG n° 11/10619 A sales agent received two types of commission, one for promoting sales of floor coverings and the other for monitoring the installation of floor coverings by his principal. The agent considered that the principal (...)

Anne-Cécile Martin Commercial agency: The Colmar Court of Appeal reminds that the status’ application of commercial agent depends effective conditions of the agent’s activity (ZR Diffusion/Groupe Exo TIC)

104

CA Colmar, July 17, 2012, ZR Diffusion c/ Groupe Exo TIC, RG n° 09/06006 Upon termination of his "commercial agent contract" by the principal, an agent in charge of setting up new distributors and participating in the animation of the principal’s network requested payment of the termination (...)

Anne-Cécile Martin Commercial agency: The Cour de cassation overturns an appellate court decision for having retained the severally condemnation of the parent company and for failing to seek whether the parent company’s immixion in the commercial policy of the mandator had created a misleading appearance (PCAS/Markinter)

92

Cass. com, 12 June 2012, PCAS v. Markinter, No. 11-16.109. The Court of Cassation censured a court of appeal which had declared the parent company of a principal jointly and severally liable for the latter’s breaches after having noted that "the parent] company[ has constantly interfered in the (...)

Anne-Cécile Martin Brand agreement: The Cour de cassation overturns an appellate court decision for failing to search whether a statutory clause of a limited company was potentially a breach to the contractual freedom and the competition (Lioser/ITM région parisienne)

156

Cass. com, 30 May 2012, Lioser c/ ITM région parisienne, n° 1-18.024 The articles of association of a public limited company that operated a department store made the termination of the sign contract concluded with the holding company of the distribution group subject to the prior approval of (...)

Anne-Cécile Martin Franchising: The Paris Court of Appeal retains the claim of a franchisee for breach of contract by the franchisor who has not issued letter of formal notice (DB Services/France Débosselage)

115

CA Paris, June 27, 2012, DB Services v/ France Débosselage, RG n° 11/00342 The Paris Court of Appeal granted the claim of a franchisee who wished to obtain compensation for the damage suffered as a result of the abusive breach of contract by the franchisor, noting, on the one hand, that "it (...)

Anne-Cécile Martin Selective distribution: The Aix-en-Provence Court of Appeal condemns call forwarding an authorized distributor selling products on the internet (Pierre Fabre Dermo Cosmétique)

169

CA Aix-en-Provence, 11 October 2012, Pierre Fabre Dermo Cosmetics, RG n° 11/12322 A company operating a selective distribution network had obtained in summary proceedings the cessation of Internet sales of its products by the agent of one of its selected distributors. A court of appeal (...)

Anne-Cécile Martin Franchising: The Court of Cassation approves an appellate court refusing the annulment of a franchise contract based on defect in consent, provided that his consent was not totally vitiated by the franchisor’s information (Le Pain des abondances/SFBC)

111

Cass. com, 3 April 2002, The Bread of Plenty v. SFBC, Appeal No. 11-14.001. A franchisee who had been ordered to pay the franchisor arrears of fees had applied to the court to have the franchise agreement annulled for fraud by the franchisor. The Court of Cassation approved a Court of Appeal (...)

Anne-Cécile Martin Franchising: The Court of Cassation censures a Court of Appeal for failing, firstly, to seek whether at the time of the tacit renewal of the contract the parties had “the common intention to renew the disputed clause”, and secondly, to hold that “this clause was not proportionate to the legitimate interests of the franchisor” (Speedy France/Rapid’auto)

165

Cass. com, 30 May 2012, Speedy France v Rapid’auto, n° 11-18779 The validity and effectiveness of the stipulation of a non-reaffiliation clause is constantly being updated in the case law on distribution contracts. The Court of Cassation had seemed to reserve for this clause, which "merely (...)

Anne-Cécile Martin Non-competition clause: The Court of Cassation overturns an appellate court decision holding that the integration into a single distribution network is sufficient to preclude a situation of competition between companies belonging to the network (Leclerc)

162

Cass. soc., May 16, 2012, M. X... c/ Leclerc, n° 11-10712 If the assessment of the non-reaffiliation clause (cf. supraAgence commerciale : La Cour de cassation approuve une cour d’appel d’avoir annulé une clause de non-concurrence post-contractuelle stipulée dans un contrat d’agence commerciale à (...)

Anne-Cécile Martin Services : The French Supreme Court confirms that the consideration of the service providers can be reduced when it is disproportionate compared to the service (Prédica)

185

Cass. civ. 1, 23 November 2011, Prédica, appeal no. 10-16.770 A service provider had undertaken to carry out, on behalf of a universal legatee, all the legal procedures necessary to have his rights in a succession recognized and to bear the costs, if any. The Court of Cassation censured the (...)

Anne-Cécile Martin Exclusive distribution: The Court of Cassation censures the appeal decision dismissing the application of a dealer based on non-compliance with Article L. 330-3 of the French Commercial Code on the grounds that the grantor had qualified him as a new distributor and that such modification of the original contract required to furnish such information to enable him to give informed consent (Marina Europe/Bénéteau)

176

Cass. com, 21 February 2012, Marina Europe v Bénéteau, No. 11-13653 Article L. 330-3 of the French Commercial Code is still at the heart of this quarter’s jurisprudential news. The pre-contractual obligation of information that it imposes, in the event of making available know-how, a trademark or (...)

Anne-Cécile Martin Franchising: The Court of Cassation censures a decision of a Court of Appeal which held that the prejudice resulting from a breach of a pre-information obligation consists of the loss of opportunity to obtain the expected results whereas it comes to repairing the loss of a chance of not contracting or contracting in more favorable terms (Distribution Casino France/Asinat distribution)

231

Cass. com, January 31, 2012, Distribution Casino France v/ Asinat distribution, n° 11-10834 Contractors disappointed by the profitability of the operation they have undertaken are also, once again this quarter, at the heart of the Court of Cassation’s case law. After having censured, under (...)

Anne-Cécile Martin Fuel distribution : The French Commercial Supreme Court approves the trial court to have found the termination of the contract to operate solely to blame the oil company because the complete overhaul of the station depended on his will alone, not objective circumstances (Esso Raffinage v. Tina)

325

Cass. com, September 20, 2011, Esso Raffinage v. Tina, No. 10-30567 In the 1990s, an oil company had concluded several fixed-term contracts with an operator for the operation of a service station under the dual system of management lease for the ancillary activities of the service station (...)

Anne-Cécile Martin Franchising: The French Supreme Court censures, in a first decision, the judges of the fund for not having considered whether the consent of the franchisee was not determined by a substantial error and recalls, in a second decision, the irreconcilable nature of the pronouncement of the invalidity the contract and the grant of damages for breach (Sodecob ; Lina’s développement)

245

Cass. com, October 4, 2011, Mr. X... c/ Sodecob, n° 10-20956 Cass. com, October 18, 2011, Lina’s development c/ K3, n° 10-23524 The object of the franchise contract is the "reiteration" (D. Ferrier, Droit de la distribution, 5th ed. Litec, 2009, p. 302) of a commercial success: that of the (...)

Anne-Cécile Martin QPC : The Constitutional Council holds that the provision allowing the French Minister of Economy and public prosecutor to bring an action to stop competition-restraining practices is constitutional(Systéme U)

141

Constitutional Council, 13 May 2011, QPC No. 2011-126, Société Système U The company Système U had been assigned in 2007 by the Minister of the Economy for fictitious services billed to a supplier ... It is in this context that on 8 March 2011, the Court of Cassation referred to the (...)

Anne-Cécile Martin Internet distribution: The Advocate general Mazàk issues an opinion on the preliminary question referred by the Paris Court of Appeal concerning Internet retail distribution (Pierre Fabre)

838

CJEU, Opinion of the Advocate General, 3 March 2011, Case C-439/09, Pierre Fabre Dermo-Cosmétique. The Advocate General’s conclusions on the reference for a preliminary ruling made by the Cour d’appel de Paris before the Court of Justice of the European Union in the case of Pierre Fabre (...)

Anne-Cécile Martin Preliminary question of constitutionality : The Constitutionnal Council and the Court of Cassation examine the constitutionality of articles of Commercial Code (Expedia et al.)

1086

Cass. com, October 15, 2010, Expédia inc, No. 10-14.888 Cons. const. 18 October 2010, No. 2010-55 QPC Cons. const. 3 December 2010, No. 2010-74 QPC Cons. const. 13 January 2011, No. 210-85 QPC With respect to anti-competitive practices, on October 15, 2010, the Cour de cassation refused to (...)

Anne-Cécile Martin Selective distribution : The Paris Court of Appeal sanctions eBay because of its indirect participation to the violation of selective distribution contracts (eBay)

1000

CA Paris, September 3, 2010, eBay Inc. and eBay International AG c/ Parfum Christian Dior, Kenzo Parfums, Parfums Givenchy et Guerlain, RG n°08/12822 Facts Several promoters of selective fragrance distribution networks had assigned an electronic auction platform, finding that a significant (...)

Anne-Cécile Martin Informations exchange: The European and French Competition Authorities publish documents on the competitive assessment of informations exchange among competitors

2010

Annual Report of the Competition Authority for 2009, Annex "Thematic Studies". Autorité de la concurrence, Opinion No. 10-A-11 of 7 June 2010 on the Conseil interprofessionnel de l’optique (Interprofessional Optics Council) Draft Guidelines on the applicability of Article 101 TFEU to horizontal (...)

Anne-Cécile Martin Consumers’ association: The French Supreme Court holds that the "unlawful practice" from which a consumers’ association may seek injunctive relief needs not to be a criminal offence (UFC Que Choisir 38)

1111

Cass. civ. 1, March 25, 2010, UFC Que choisir 38, Appeal No. 09-12.678 A consumer association had assigned a distributor and installer of kitchens and bathrooms on the basis of Articles L. 421-2 and L. 421-6 of the Consumer Code, because he had the quotation drawn up before a precise survey of (...)

Anne-Cécile Martin Precontractual informations: The French Supreme Court holds that under Art. L. 330-3 C. Com., exclusivity or quasi-exclusivity is to be measured in light of the activity covered by the contract, not of the distributor’s overall activity (Experts)

2121

Facts The managers of a company operating a household goods shop under the name of a cooperative group of independent traders had been assigned as guarantors by a bank during the compulsory liquidation of their company. They had then called in the cooperative as a guarantee, accusing it of (...)

Anne-Cécile Martin Excessive length of the procedure: The Paris Court of Appeal cancels the French Competition Authority’s decision on a vertical pricing arrangement in the luxury perfumes sector, due to the excessive length of the procedure (Parfumerie de luxe)

2298

CA Paris, November 10, 2009, Beauté Prestige International and others, RG n° 2008/18277 Facts At the end of 1998, the Competition Council took up the competition situation in the luxury perfume distribution sector on its own initiative. It was not until four and a half years after the DGCCRF (...)

Anne-Cécile Martin, Régis Pihéry Sudden termination of a commercial relationship : The CEPC issues its 2009 report on the decisions rendered with respect to restrictive practice issues and reveals the importance of the "sudden termination of a commercial relationship" argument

1509

Commission d’examen des pratiques commerciales, activity report for 2009 The publication of the CEPC’s latest annual activity report (transmitted to the Government and Parliament pursuant to the Act of 2 August 2005) shows, once again (see the CEPC report for 2006, 2007 and 2008), in the review (...)

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