University of Montpellier Centre de Droit de l'Entreprise (Montpellier)

Didier Ferrier

University of Montpellier, Centre de Droit de l’Entreprise (Montpellier)
Professor of Law

Didier Ferrier (1945-2020) enseignait le droit de la distribution et le droit des affaires à l’Université de Montpellier. Il était directeur de la formation doctorale Master Recherche de Droit des Contrats d’Affaires. Il était également professeur et administrateur au Centre d’Etude Internationale de la Propriété Industrielle (CEIPI / Strasbourg) et professeur invité dans plusieurs Universités : Le Caire (IDAI), Varsovie, Turin...Didier Ferrier a rédigé plusieurs ouvrages de droit économique (Droit de la distribution, Litec, 5ème éd. 2009 ; La protection du consommateur, Dalloz 1986 et Litec 1996 ; Droit du contrôle national des concentrations, Dalloz, 2004). Ainsi qu’une centaine d’articles et notes de jurisprudence parus dans plusieurs ouvrages et revues français et étrangers. Il était responsable de la chronique Distribution dans la revue Concurrences. Vice-Président de l’International Distribution Institute, il était également co-chairman du groupe de travail « Contrats internationaux » de la Chambre de Commerce Internationale (ICC). Lire le In Memoriam publié en hommage à son travail et sa personne.

Articles

121331 Review

Didier Ferrier Interdependence : The French Supreme Court approves judges that admitted application of Article L. 7321-2 of the French Labour Code even if conditions required are satisfied through the aggregation of different agreements concluded with different co-contracting parties to the extent that these agreements are characterized by a total interdependence (ERTECO)

122

The judgment delivered on 19 October 2017 deserves interest despite its lapidary nature. It dismisses the appeal against a decision of the Court of Appeal of Rouen which had applied Article L. 7321-2 of the Labour Code to one of the managers of a tenant company managing a business operated (...)

Didier Ferrier Third party platform: The French Supreme Court rules a few weeks after the opinion of Advocate General Wahl that a prohibition imposed to a distributor to resale its products on online third-party platforms does not constitute in itself a hardcore restriction of competition (Caudalie c/ eNova santé)

265

After a solution for online sales that seemed as quick, in both directions of haste and summary, as final (Paris 31 January 2013, D 2013, p 887 note DF, epilogue of the Pierre Fabre Cosmétique case), here is the debate on the control of distribution via the Internet relaunched by a decision of (...)

Didier Ferrier Franchisor loyalty: The French Supreme Court rules that the franchisor who concludes an agreement for developping the implementation of franchisees has to propose new conditions in case of hardship instead of immediate termination and reaffirms that the loss suffered due to breach of pre-contractual information duty is only compensated by the franchisee’s lost of opportunity not to contract or to contract at better conditions, and not by loss of profit (Holder)

208

The franchisor has a particular obligation of information specified in Article L. 330-3 C. com., the execution of which is scrupulously controlled by the judges (CA Paris, 13 Feb. 2017, RG n° 15/20233, sanctions the presentation of a disclosure document which complies with the legal requirements (...)

Didier Ferrier Franchise : The Paris Court of Appeal and Versailles Court of Appeal confirm that franchisors and suppliers are free to reorganize the distribution of their products or services (Montres Suisses, RLG ; Foncia)

189

The reorganisation of the distribution network is a new recurring theme in litigation in this area. This is a sign of the sustained evolution of marketing conditions imposed by various factors that are often combined: the emergence of new distribution channels, particularly with the Internet; (...)

Didier Ferrier Selective distribution : The French Supreme Court rules that the sale of products resold through a selective distribution network by a non selected distributor at a very low price does not constitute an unfair competion or parasistic act and does not constitute a deterioration of the brand’s image (BLT / JPL Café Coton)

456

The promoter and the distributors who are members of a distribution network are today exposed to formidable competition from off-network resellers who take advantage of the tolerance of the judges towards this so-called parallel distribution and the vigilance of the competition authorities (...)

Didier Ferrier Selective distribution: The French Supreme Court rules that the reorganisation of a selective distribution network may imply the non-selection of a distributor even if he fulfills qualitative criteria (Guyapat / Rolex et Garage Gremeau / Mercedes-Benz France)

365

Selective distribution has been defined in European Union law, in Article 1-e of Regulation 330-2010 on vertical restraints of competition, as "the distribution system in which the supplier undertakes to sell the contract goods or services, directly or indirectly, only to distributors selected (...)

Didier Ferrier Selective distribution: The French Supreme Court recognizes to the manufacturer the freedom to choose the number of its distributors but seems to admit a control of the selection consequences of a new distributor as regards to the activity of a distributor previously selected (Part Dieu Automobile et JP Reverdy / Hyundai Motor France)

188

The Commercial Chamber of the Court of Cassation reaffirms the principle of the free choice by the car manufacturer of the number of members of its dealer network, while considering the consequences of the selection thus made. In the present case, three dealers had been selected by a (...)

Didier Ferrier Post-contract non compete clause: The French Supreme Court recalls the scope of a post-contractual non compete clause of a franchisee which must be justified by its geographic scope (Ucar / A2L)

201

It is not sufficient for the franchisor, in order to justify the stipulation of a non-competition clause with post-contractual effect having a broad territorial base (six départements), to point to the existence of substantial know-how formalised in a manual provided at the conclusion of the (...)

Didier Ferrier Selective distribution: The French Supreme Court considers a reseller liable under article L.442-6,I,6° of the Commercial code for buying products subject to a selective distribution system from a selected distributor who thus breaches its obligation not to sell to a non-authorized dealer, and under article 1382 of the Civil code by reselling these products in degrading circumstances or conditions (Futura Finances / Chanel)

294

Luxury products and cheap marketing have never been a good match. The report had been drawn up thirty years ago, with amused lyricism, by Jean-Marc Mousseron about perfumes ("Detchema ou le rêve avili", JCP E 1985, Cah. Dr. Distr. n° 3, p. 8), the consequences were again drawn from it, still in (...)

Didier Ferrier Franchise: The Courts of Appeal of Paris and Lyon take up the essential character of counseling and assistance obligations of the franchisor and specify the content (Co Gros. / Guy Hoquet real Estate)

159

The franchise agreement is based on know-how, the implementation of which requires advice and assistance from the franchisor. Two decisions note the essential nature of these two elements and specify their content. Considering the know-how that had been transmitted by a franchisor, until then (...)

Didier Ferrier Franchise: The Courts of Appeal of Bourges and Paris are vigilant in considering the expertise of the franchisor and scope of non-competition obligations of the franchisee (Qualité service propreté / France restauration rapide ; Ploneour loisir / Bricorama )

175

Post-contractual non-competition undertakings have been seriously undermined by the Law of 6 August 2015 (c. com., art. L. 341-2) which deems them unwritten in network agreements unless they meet the conditions set by European law to protect the know-how that would have been transmitted by the (...)

Didier Ferrier Branch management : The French Supreme Court and the Versailles Court of Appeals adopt a flexible application of the conditions of the status of representative branch managers (Carrefour proximité France, Yves Rocher)

217

The application of employment law to distributors who market products (or sometimes services: telephone subscriptions, see Cass. soc., 1 Feb. 2011, appeals Nos. 08-45.223, 08-45.295 and 09-65.999; Cass. soc., 12 Feb. 2014, appeals Nos. 12-28.160 and 12-28.376: D. Ferrier) under the (...)

Didier Ferrier Competition(s): A singular plural...

672

Most of the competition rules aim the protection of the competition but many of these rules aim also the direction of the economic policy it is important therefore to distinguish between these two main types of rules in relation to their effect on the business freedom Concurrences" " or (...)

Didier Ferrier Franchise : The Chambéry Court of Appeal decides that is void for lack of subject matter the franchise agreement according to which the know-how is described using “purely general” terms (Puis-je vous aider/Enfase)

239

Know-how is a determining factor in the success of a franchise, failing which the franchise agreement is considered devoid of cause or purpose and therefore void (Cass. com., 14 September 2010, Appeal No. 09-17.079). Therefore, the argument is frequently invoked by franchisees disappointed with (...)

Didier Ferrier Exclusive license : The Colmar Court of Appeals confirms that the distributor’s disrespect of the exclusive supply clause qualifies as serious misconduct (Cuisines Schmidt, RBSA)

265

CA Colmar, Feb. 13, 2015, Cuisines Schmidt c/ RBSA, RG nos. 120/2015, 13/01561 A licensor, having discovered that one of its dealers was distributing competing products, in breach of the exclusive supply commitment it had entered into, had terminated the dealership contract for serious (...)

Didier Ferrier Exclusive license : The Paris Court of Appeals does not characterise a wrongful termination of the license agreement by the licensor in case of respect of the termination policy inserted in the agreement, and provided that the licensor does not act in bad faith (Normande d’Importation Automobile, Financière Guez et Fils, Fiat France)

272

CA Paris, Feb. 4, 2015, Normande d’Importation Automobile et Financière Guez et Fils c/ Fiat France, RG n° 12/20412 One car manufacturer, after having concluded several authorised distribution contracts with a distributor, had terminated them three years later. The distributor then sued the (...)

Didier Ferrier Selective distribution : The Paris Court of Appeals condemns a website operator for parasitic behavior and unfair competition resulting from the sale of branded products at very low prices which is, according to them, “a parasitic behavior” and “acts of unfair competition” (JPL Café Coton c/ BLT Développement)

309

A company offering products of different brands for sale at low prices on its Internet site had been summoned by the proprietor of one of those brands which, distributing its products through a selective distribution network, accused it, first, of infringing the prohibition on sales outside the (...)

Didier Ferrier Sales representative : The French Supreme Court considers that an independant food retail subsidiary manager who is also a union representative entitles for the protection accorded to employee representatives (Distribution Casino France)

241

Cass. plen. ass., Jan. 9, 2015, Distribution Casino France, n° 13-80.967 A distributor, having terminated the contract of a non-salaried manager of a food branch, a trade union delegate, had been summoned by the public prosecutor for breach of the management contract without administrative (...)

Didier Ferrier Exclusive concession : The French Supreme Court implicitly qualifies the exclusive distribution agreement as provision of services contract… by the distributor (Franco-Badoise, Brenneke)

532

The concession contract is a service supply contract within the meaning of Regulation (EC) No 44/2001 of 22 December 2000 (Brussels I). The solution affirmed by the European Court of Justice on 19 December 2013 (case C-9/12, Corman-Collins v La Maison du Whisky, JCP éd. G 2014, 180, note P. (...)

Didier Ferrier Franchise : The Paris Court of Appeals considers that the know-how successfully implemented in a franchise network can be used by the franchisor for the development of another similar network (Platimmo, Guy Hoquet l’immobilier)

216

CA Paris, Nov. 12, 2014, Platimmo c/ Guy Hoquet l’immobilier, RG n° 12/15179 Know-how is a decisive element in the success of a franchise, failing which the franchise agreement is considered devoid of cause or purpose and therefore void (Cass. com., 14 Sept. 2010, Appeal No. 09-17.079). Also, (...)

Didier Ferrier Working conditions: The French Supreme Court approves of the Versailles Court of Appeals for having considered that a supplier had established "working conditions" of the managers and had thus the obligation to reimburse the latter for any overtime (Shell)

232

An oil company disputed that it owed various indemnities to the managers of a service station qualified as branch managers (Article L. 7321-2 of the Labour Code) because the conditions of Article L. 7321-3 were, according to the company, not satisfied "the conditions of work, health and safety (...)

Didier Ferrier Waiver of rights : The French Supreme Court reminds that it is impossible to give up rights contained in the public policy provisions of the articles L. 7321-1 and following of the French Labour Code (Shell)

185

The Versailles Court of Appeal had dismissed a claim by the managers of a service station against their supplier, an oil company, for damages for working on Sundays and public holidays and exceeding maximum working hours, on the grounds that "they had knowingly agreed to operate a service (...)

Didier Ferrier Franchise : The Lyon Court of Appeals recalls that the error on the economic profitability of the operation does not constitute an error on substance (Tech’innove expansion / Ecrinh)

140

A mundane case in which a franchisee sued for payment of royalties invoked the nullity of the franchise agreement. It alleged, on the one hand, the franchisor’s failure to comply with the pre-contractual disclosure obligation imposed on it by Article L. 330-3 C. com. and, on the other hand, the (...)

Didier Ferrier Supplier’s default: The Paris Court of Appeals considers that a distributor who accepts a "commercial gesture" from his defaulting supplier does not automatically give up an action for damages (Drommelschlager / Christian Lacroix)

110

An exclusive distributor had assigned its licensor liability for "deficiencies in goodwill" and defects in the products supplied. The licensor argued that the discounts it had given its distributor as a "commercial gesture" because of its various deficiencies rendered the claim inadmissible. (...)

Didier Ferrier Exclusive sourcing: The French Supreme Court recalls that no assumption of indivisibility applies to two contracts concluded within the same agreement and that it is necessary to obtain the transferor’s consent in case of a business transfer with contractor substitution (BDG / PM Bago)

140

A distributor had entered into an exclusive supply agreement with supplier A and supplier B within the same contract. As supplier B had transferred its business, the distributor had ceased to obtain supplies from the transferee. The assignee then assigned it to pay various sums under the (...)

Didier Ferrier Branch manager: The French Supreme Court approves an appellate court for granting the benefit of the branch manager protective regime to the manager of a company distributing telephone subscriptions (SFR / M. X)

206

The application of employment law to distributors, under the qualification of non-employee branch managers (C. trav., art. L. 7321-2), is a growing source of litigation within networks, as case law shows. In the case before the Social Chamber of the Court of Cassation, several contracts of the (...)

Didier Ferrier Transfer of contract: The French Supreme Court approves of the Lyon Court of Appeals having condamned a distributor to pay fees to a supplier to whom the contract was transferred (Besdi / Safe & Web)

181

Following the dissolution without liquidation of a company that had carried out a universal transmission of assets and liabilities to its sole partner, the latter had assigned a distributor who was bound by a distribution contract to the dissolved company, in payment of the royalties provided (...)

Didier Ferrier Branch manager: The Bordeaux and Poitiers Courts of Appeal set out the conditions required to apply the branch manager status to the distributor in a state of economic dependence (Picoty, SFR)

311

CA Bordeaux, December 5, 2013, RG n° 13/05047, Picoty CA Poitiers, December 18, 2013, RG no 12/02637, SFR In a first case, a court of appeal applied the status of branch manager (art. L. 7321-2 C. trav.) to a fuel distributor who showed that he was "in a situation of economic subordination (...)

Didier Ferrier Compliance with convention : The French Social Supreme Court declares the provisions of the Article L. 7321of the French Labor Code compatible with the Article 6 §1 of the European Convention of Human Rights, while the Court of Appeal of Chambéry refuses to apply the same Article to a branch manager of the contracting society

104

In two cases, the Court of Cassation held that the freedom left to the judge to interpret the general terms of Article L. was not such as to infringe the right to a fair trial (Article 6 § 1 ECHR). 7321-2 of the Labour Code: in fact, "the fact that the courts assess in each case the importance, (...)

Didier Ferrier Selective distribution : The French Supreme Court approves the Court of Appeals for condemning a selective distribution clause requiring that “sales of products cosmetics and personal hygiene carried out in physical space require the presence of a qualified pharmacist” (Caribéenne de diététique et de santé c/ Pierre Fabre dermo cosmetique)

332

The solutions adopted in the "Pierre Fabre Dermo Cosmetics" case (CJEU, 13 October 2011, Case C-439/09) have succeeded in blurring the validation criteria for selective distribution. One would think one was back to the time when this method of distribution was systematically condemned on the (...)

Didier Ferrier Lease management : The Rennes Court of Appeal applies the Article L. 7321-2 of the French Labor Code to franchise and leasing agreements and thus refuses to apply the arbitration clauses contained in the agreement (Carrefour c/ M. P)

162

A supermarket chain and a lessee manager of a business operated under a franchise agreement had terminated the management and franchise contracts by amicable settlement protocols excluding any indemnity and stipulating an arbitration clause. Subsequently, the distributor had filed a claim for (...)

Didier Ferrier Exclusive supply: The Court of Appeal of Colmar pronounces the termination against the selling of an exclusive supply contract in beer but reduces the obviously excessive amount of the penalty clause (Brasserie Météor/M. V.)

239

A publican who had breached his exclusive supply obligation to the brewer claimed that the warehousekeeper appointed by the brewer had himself ceased to supply him. The Colmar Court of Appeal rejects the argument and pronounces the termination of the contract to the detriment of the debtor, (...)

Didier Ferrier Branch Manager: The Montpellier Court of Appeal recalls the nullity of clauses entailing the anticipated renunciation to invoke the benefit of articles L. 7321-2 and following of the Labor Code (Total)

123

Tenant service station managers had requested the application of the status of branch manager, despite their waiver to invoke the benefit of Articles L 7321-2 et seq. of the Labour Code set out in the memorandum of understanding recording the amicable termination of the contract. The Court of (...)

Didier Ferrier Requalification in employment contract: The Reims Court of Appeal, on the one hand, annuls a manager-agent contract for breach of pre-contractual information vitiating his consent and, on the other hand, requalifies the contract as an employment contract (Heytens)

190

The authorised managers of businesses were subject to protective measures (C. com., art. L. 146-1 et seq.) by certain provisions of Act 2005-882, known as the "Dutreil" Act of 2 August 2005, which sought to exempt them from the application of even more protective provisions that apply to branch (...)

Didier Ferrier Selective distribution: The Paris Commercial Court recalls that in a selective distribution network, limited capacity legitimize a limited number of distributors (Casty-Delphes/Audemars Piguet France)

201

T. com. Paris, February 12, 2013, Casty-Delphes c/ Audemars Piguet France, RG 11/023119 The Paris Commercial Court rejects the claim for damages by a distributor who contested the refusal to grant him approval by the promoter of a selective distribution network, based in particular on the (...)

Didier Ferrier Franchising: The Paris Court of Appeal rules that a non reaffiliation clause in a franchise contract between a mass retail distribution brand and a supermarket outlet is null and void on the ground of anticompetitive practices (Prodim et Champion/Segurel)

299

CA Paris, 6 March 2013, Prodim and Supermarket France Champion v/ Etablissements Segurel, RG 09/16817 The commitment of non-reaffiliation, and a fortiori of non-competition with post-contractual effect, on the part of distributors, should, if not disappear, at least be strictly limited in (...)

Didier Ferrier Franchise: The Cour de cassation takes a decision illustrating the risk of proceeding to an operation of partial asset transfer without having obtained the prior consent of the franchisees (SCF/Pro Distribution & Distrimab)

121

In a partial asset contribution agreement, a franchisor, operating in the food sector, had contributed to a company "the complete branch of business of commercial operation and supply of supermarket-type goodwill, including the related contracts". The beneficiary of the contribution had sued (...)

Didier Ferrier Exclusive supply: The Colmar Court of Appeal cancels a service and supply contract stating a commitment to purchase for the distributor due to the absence of effective counterpart of the commitment undertaken (M. X/France Boisson)

124

CA Colmar, March 13, 2013, Mr X v France Boisson, RG 11/05506 "Assistance and supply agreements", brilliantly defined by Jean-Marc Mousseron and Alain Seube in 1973 in connection with a dispute over their subject-matter and, more particularly, the price of supplies (D. 1973, Chron. p. 197), (...)

Didier Ferrier Franchise: The Paris Court of Appeal pronounces on the legality of clauses hindering the freedom of the franchisee during the execution and in the cessation of the contract, whereas the Toulouse Court of Appeal spreads any disorganization of the network because of the violation of a pact rather by the franchisee (Diapar/Carrefour proximité France; SCF/Distribution Casino France)

311

CA Toulouse, 20 March 2013, SCF c/ Distribution Casino France, RG 11/05979 In a first case, the Paris Court of Appeal ruled on the basis of Article L. 420-1 of the Commercial Code : the clause by which a franchisee had undertaken "not to use directly or indirectly (...) for a period of one (...)

Didier Ferrier Franchise: The Aix-en-Provence Court of Appeal specifies the obligations of a franchisee to whom the franchisor puts back a projected account (MMC et Taddei Funel/SFBC, Développement S. & HFS)

120

The Court of Appeal of Aix-en-Provence dismissed a franchisee’s application for the nullity of the contract for lack of sincerity of the franchisor’s projected account on the following grounds: on the one hand, that, as this account was "established on the basis of the average of the stores in (...)

Didier Ferrier Selective distribution: The French Competition Authority issues a decision by which it imposes on a producer a fine of €900,000 for having prohibited its distributors from selling the brand’s products online (Bang & Olufsen)

255

Aut conc, 12 December 2012, Decision No 12-D-23, relating to practices implemented by Bang & Olufsen in the selective distribution of Hi-fi and Home Cinema equipment In its decision of 12 December 2012, the French Competition Authority imposes a fine of 900,000 euros on Bang & Olufsen (...)

Didier Ferrier Franchising: The Paris Court of Appeal declares null and void a franchise agreement for lack of know-how, of precontractual information in accordance of Article L. 330-3 of the French commercial code and of profitability of the franchise (Service personnel/C.G.)

200

CA Paris, 03.10.12, RG no. 11/05235, Service personnel v. C.G. The franchise agreement presupposes the existence of know-how likely to ensure the profitability of the franchised activity. In the absence of know-how mastered by the franchisor, the franchise agreement is null and void because (...)

Didier Ferrier Franchising: The Cour de cassation reminds that the transferee of a franchise agreement must receive the prior information of the Article L. 330-3 of the French Commercial code and punishes, together with the Paris Court of Appeal, excessive behaviours of franchisors that had vitiated the consent of franchisees for whom the expected gain was essential (Chantiers Bénéteau, Chrysalide, Cash Converters Europe, Itegral Diagnostics France)

216

Cass. com, February 21, 2012, Chantiers Bénéteau, n° 11-13.653 Cass. com, June 12, 2012, Chrysalis, No. 11-19.047. Article L. 330-3 of the Commercial Code, which stems from Law No. 89-1008 of 31 December 1989, requires the franchisor to provide the prospective franchisee with certain information (...)

Didier Ferrier Franchising: The Paris Court of Appeal recognizes the liberty of the franchisor to modify its business model and, thus, the elements of a franchise (Bruz distribution/ATAC)

396

As the main purpose of the franchise agreement is to reiterate a commercial success and not only to communicate know-how operated under a recognized brand name, these elements are often called upon to evolve according to the economic context, the needs of the consumer and the actions of (...)

Didier Ferrier Selective distribution: The Toulouse Court of Appeal qualifies as disproportionate and likely to distort competition the clause of a selective distribution agreement requiring the presence, physical and permanent, of a pharmacist who holds a degree at the outlet of cosmetic products (Pierre Fabre Dermo Cosmétique)

866

Curiously, selective distribution, which was recognised by judges more than 30 years ago before being recognised by the competition authorities, now appears to be more severely appreciated by the former than by the latter. Following the judgment of the Court of Justice of the European Union (...)

Didier Ferrier Franchising – Precontractual information: French Courts of Appeal rules on the content of informations transmitted according to Article L. 330-3 of the French commercial code (Sur Mesure Minceur, Eurocom Systems, Al Conseils Immobiliers, Immobilière D.)

403

Franchising is a formula for the reiteration of a commercial success sometimes sought after by those who claim to have obtained it. It then becomes a mirror to the larks... The legislator has mitigated this risk by the requirement to provide the prospective franchisee with precise information (...)

Didier Ferrier Affiliated commissionnaire: The Versailles Court of Appeal identifies criteria in order to distinguisch between affiliated commissionnaire and commercial agent (Business XX/Mexx Boutiques)

539

A distributor who marketed a supplier’s products on the supplier’s behalf claimed compensation for the non-renewal of the distribution contract, which he presented as the termination of a commercial agency agreement. For its part, the supplier invoked the classification of the contract as a (...)

Didier Ferrier Exclusive distribution: The Court of Cassation and the Versailles Court of Appeal decide on the freedom of the network headend to reorganize its network and to set selection criteria of its distributors (Nouvelle Sartex/Dim ; Salentine/General Motors France)

919

Cass. com, March 1, 2011, Salentine v. General Motors France, No. 10-12144 Any network promoter is free to change its organization The reorganization is then generally a source of grievance for those who are not retained and in particular for those who were part of the former organization. (...)

Didier Ferrier Exclusive distribution: The Court of Cassation holds that refusal to supply an exclusive distributor after notice termination of the contract is not a fault if he has an adequate stock to distribute until the termination (Brasserie du Pacifique/Lesieur)

1017

Cass. com, November 9, 2010, Brasserie du Pacifique v Lesieur, nº 09-15889 Interesting decision on the still sensitive issue of the treatment of the dealer’s inventory at the end of the exclusive dealership contract. A plethoric but futile dispute had developed to have the concessionaire’s (...)

Didier Ferrier Contract management mandate qualification: The Court of Cassation approves the control of the contract management mandate qualification by the Paris Court of Appeal (Babou)

1821

Cass. soc., June 8, 2010, B & B, No. 08-44965 Cass. soc., 23 June 2010, Babou, n° 09-40093 After the major debates that led to the harmonization of the regimes applicable to managing agents and salaried branch managers, now provided for in Article L. 7322-1 of the LabourCode, questions are (...)

Didier Ferrier Motor car distribution agreement: The Paris Court of Appeal rules on the termination of a distributorship agreement and on the non agreeing of an exclusive or a selective distributor (Laudat/Groupe Volkswagen France, Groupe Volkswagen France/Europe Garage)

1581

Breach of the distribution contract by the supplier is often a source of litigation at the initiative of the distributor, who is then deprived of the benefits that the continuation of the relationship could bring him, in particular when he was planning to transfer his business with the benefit (...)

Didier Ferrier Significant imbalances: The Commercial Court of Lille condemns a distributor on the basis of Article L. 442-6, I, 2° of the Commercial Code, aimed at correcting "significant imbalances in the parties’ rights and obligations" (Castorama)

3440

Lille Commercial Court, 6 January 2010, RG n°2009-05184, Minister of Economy v/ Sté Castorama The first decision rendered on the basis of Article L. 442-6, I, 2° of the French Commercial Code as it resulted from the reform of August 4, 2008, the judgment of the Lille Commercial Court of January (...)

Didier Ferrier Obligations of the franchisee: The Paris Court of Appeal holds that the franchisee may be bound by exclusive purchasing and post-contractual non-competition obligations since such obligations have a limited scope (La Gadgetomanie ; Soho ; Grand Sud ; LFJ ; Distribution Casino France)

2612

Cass. com, November 24, 2009, LFJ c/ Distribution Casino France, n° 08-17650 The franchise agreement may impose on the franchisee non-competition obligations related to the economy of the operation, classically defined as the repetition of a commercial success through the application of (...)

Didier Ferrier Sales agent - Taxation of the end-of-contract indemnity: The Court of Cassation holds that the taxation of the end-of-contract indemnity due to a sales agent must not be taken into consideration in its evaluation (Festina)

1893

Court of Cassation, Commercial Chamber, 15 September 2009, Appeal No 08-16.696, Sté Festina France v M. Baise-Cea Facts A commercial agent whose contract had been terminated had summoned his principal to pay the compensatory indemnity. Considering that the compensation for the damage suffered (...)

Didier Ferrier Exclusivity’s territory: The Court of Cassation, together with Paris and Reims Court of Appeal, give a narrow interpretation to the distributor’s territory, the extent of that territory and the supplier’s obligations relating to that territory (M. Bedda/Florest ; Lanson Internationale Diffusion/M. Pérez ; Amg2r/Marini Silvano ; Laurice El Badry Rahme/HJC)

2115

Cass. com, December 8, 2009, Amg2r c/ company Marini Silvano, n° 08-17749 Cass. soc. 1 July 2009, M. Bedda v. Ets Florest, No. 08-40605, unpublished. The attribution of an exclusive territory to a distributor opens up advantages of such importance (cf. N. Eréséo, L’Exclusivité contractuelle, (...)

Didier Ferrier Merger - Franchise : The French Competition Authority holds that a franchisor-franchisee relationship can, under certain conditions, be subject to merger control (Evolis)

2483

French Competition Authority, decision n°09-DCC-06 of 20 May 2009 relating to the acquisition of exclusive control of EVOLIS SAS by ITM ENTREPRISES. Facts ITM ALIMENTAIRE EST owns the INTERMARCHE brand. It has concluded a membership contract and a brand contract with EVOLIS SAS allowing the (...)

Didier Ferrier Exclusive purchasing obligation : The ECJ holds that an exclusive purchasing obligation of more than five years duration may be exempted if the supplier provides the distributor with the premises and the land from which contractual goods are resold and if no resale prices are imposed (Pedro IV Servicios)

2554

Court of Justice of the European Communities, 2 April 2009, C-260/07, Pedro IV Servicios v. Total Espana Facts In 1989, a Spanish distributor had concluded several contracts with a supplier of petroleum products, providing for : a "surface right" in favour of the supplier, allowing the (...)

Didier Ferrier Sales agent : The Court of Cassation holds that a sales agent who sells to a purchasing group located in his geographic sector is entitled to a commission for all transactions entered into with the group (Sofoc)

1994

Court of Cassation, Commercial Chamber, 3 March 2009, Appeal No. 07-21.586, Sté Sofoc v. Delamare Facts A sales agent, whose contract had been terminated, had summoned his principal to pay commissions for all sales made through a central purchasing office. The principal criticised the Court (...)

Didier Ferrier Predation by reputation - Price squeezing : The Court of Cassation decides on the anticompetitive effects of "predation by reputation" strategy and "price squeezing" (SFR et GSK)

3313

1st species: Facts France Télécom and SFR charged retail tariffs for fixed-to-mobile communications that were sufficiently low to prevent new entrants to the fixed telephony market, which had been open to competition since 1 January 1998, from offering businesses competitive fixed-to-mobile (...)

Didier Ferrier, Régis Pihéry Trade intermediary : The EU Court of Justice holds that a trade intermediary, by selling products in its own name but on behalf of its principal, uses the trademark within the meaning of Article 9 of the EC regulation on the Community trademark (Brandtraders)

2370

Facts Brandtraders operates a website on which Internet users can anonymously place an ad as a seller or as a buyer and where they can also anonymously negotiate their transactions. Brandtraders, as soon as it is informed of the acceptance of the offer of sale, concludes a contract of sale (...)

Didier Ferrier Pre-contractual information obligation: The Court of Cassation holds that the distributor can claim damages if the provider breaches its pre-contractual information obligation imposed by Article L. 330-3 of the Commercial code (Phone pratique)

2480

Court of Cassation, Commercial Chamber, 27 January 2009, Appeal No. 07-21.616, Sté Phone pratique v Sté SFR Facts A franchisee sought compensation for damages resulting from the franchisor’s failure to provide pre-contractual information due under Article L. 330-3 of the Commercial Code. The (...)

Didier Ferrier Breach of commercial relationships: The Court of Cassation rules again on the conditions of Article L. 442-6, I, 5° of the Commercial code on breach of commercial relationships (Les Ateliers d’origine, Maupin, Piardon,...)

2660

Court of Cassation, Commercial Chamber, 16 December 2008, Appeal No. 07-15.589, Sté Les Ateliers d’origine v Sté Bouygues bâtiment international; Court of Cassation, Commercial Chamber, 16 December 2008, Appeal No. 07-18.050, Maupin v. Sté Ubik; Court of Cassation,Commercial Chamber, 20 January (...)

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

2427

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

Didier Ferrier Exclusive branding: The Toulouse Court of Appeal holds the launching of a website does not violate the exclusive brading obligation imposed to a franchisee (Flora/Eco Flor)

1620

The referral decision which follows the decision handed down by the Court of Cassation on 14 March 2006 confirms that the franchisor does not violate its obligation of exclusivity by creating an Internet site for online sales because "the creation of an Internet site is not comparable to the (...)

Didier Ferrier Commercial agency - Damages: The Paris Court of Appeal opposes to the provision providing for damages in case of absence of renewal of the agency contract, thus diverting from main case law (MDM Design/EFP)

2044

Paris Court of Appeal, 5th Chamber, Section B, 20 September 2007, RG n°05/22366, MDM Design v EFP Facts Following the non-renewal of the contract that bound him to his principal, a commercial agent summoned the latter to obtain payment of the indemnity provided for in Article L. 134-12 of the (...)

Didier Ferrier Sales Conditions: The CEPC stresses that a supplier dealing directly with its distributor’s customers under conditions more favorable than those granted to its distributor must be able to justify this difference in treatment (CEPC, Opinion N°07-D-01)

2146

ECCP Opinion No. 07-D-01 Article L. 441-6 C. com. provides that "general terms and conditions of sale may be differentiated according to the categories of purchaser of products or applicant for the provision of services (...). The conditions under which these categories are defined are set by (...)

Didier Ferrier Commercial agency: The Court of Cassation considers that a serious wrongdoing liable to provoke the termination of a commercial agency agreement can be disclosed after said termination (FDI/Neuf Cegetel)

1689

Facts The commercial agent of a mobile telephone operator has entered into a new contract with a company competing with its principal. This new contract was knowingly concealed by the commercial agent from his principal. A few months later, he terminated his contractual relationship with the (...)

Didier Ferrier False commercial cooperation - Economy Minister’s action: The Versailles Court of Appeal decides on the admissibility of the Economy Minister’s action in accordance with Article L. 442-6, III of the Commercial code (Galec)

1764

CA Versailles, 12th Chamber, 3 May 2007, Le Galec v. Minister of the Economy The Versailles Court of Appeal has just ruled on the issue of false commercial cooperation, on the competence of the Minister of the Economy to act on the basis of Article L.442-6-III of the Commercial Code to declare (...)

Didier Ferrier Attendance at meetings: The Court of First Instance of the European Union rules that an operator’s failure to take a clear position at a meeting organized with a view to setting up anticompetitive practices can be considered as taking part in the violation (Westfalen Gassen Nederland)

1784

Court of First Instance of the European Communities, 5 December 2006, Case T-303/02, Westfalen Gassen Nederland BV v. Commission Facts In 2002, the Commission condemned several companies operating in the industrial and medical gases sector in the Netherlands for anti-competitive cartels. In (...)

Didier Ferrier Economic review: The ECJ rules that to be excepted from the ban on anticompetitive agreements, an agreement or concerted practice must, in particular, contribute to the improvement the production or the distribution of products (Unilever Bestfoods)

2174

Court of Justice of the European Communities, Order, 28 September 2006, Case C-552/03, Unilever Bestfoods v Commission Facts For several years, HB, the principal manufacturer of ice-cream products in Ireland, has supplied to ice-cream retailers, ’free of charge’ or for an insignificant rent, (...)

Didier Ferrier Selective distribution: The French Court of Cassation rules that when a selective distributor’s contract is terminated for breach, it can be refused a new contract even though the selective distributor fulfills the conditions to join the network (Ophée/Parfums Christian Dior)

2611

Court of Cassation, Commercial Division, September 19, 2006, appeal no. 04-15.025, Ophée v. Parfums Christian Dior Facts One distributor, whose contract had been terminated, was seeking from its former supplier the possibility of reintegrating its selective distribution network. When the (...)

Didier Ferrier Scope of Competition Law: The ECJ rules that the person who purchases products to use them within the framework of a "social" activity is not subjected to Competition Law (FENIN)

2825

Court of Justice of the European Communities, 11 July 2006, Case C-205/03, FENIN v. Commission Facts FENIN, a Spanish association of companies marketing medical devices, accused the managing bodies of the National Health System (SNS) of abusing their dominant position by paying their (...)

Didier Ferrier Franchising - Pre-contractual information: The Paris Court of Appeal holds that the future franchisee must assess himself the economics of the prospected market (Speed Rabbit Pizza)

2128

Facts A franchisee, invoking the incomplete nature of the market research communicated by its franchisor prior to the conclusion of the franchise agreement, claimed that the agreement was null and void for failure to fulfil its pre-contractual obligation to provide information. When the Paris (...)

Didier Ferrier Anticompetitive practices - Consumer: The CFI rules that a final customer may have a legitimate interest in making a complaint in order to seek a declaration that Articles 81 EC and 82 EC have been infringed (Österreichische Postsparkasse)

1652

Court of First Instance of the European Communities, 7 June 2006, Cases T-213/01 and T-214/01 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v Commission Facts In 1997, the FPÖ (Austrian Political Party), a consumer of eight banks, requested the opening of an (...)

Didier Ferrier Discriminatory practices: The Court of Cassation rules that the supplier who competes against its distributor and grants better conditions to final customers is responsible for anticompetitive discrimination (Akzo Nobel)

2526

Court of Cassation, Commercial Chamber, 25 April 2006, Appeal No. 03-20.353, Akzo nobel coating c/sté Bonnot Facts A supplier having directly prospected final customers in the territory of one of its distributors, the latter sues it for damages, on the basis of Article L. 442-6, I, 1°, of the (...)

Didier Ferrier Franchise - Non-reaffiliation clause: The Court of Cassation rules that the non-reaffiliation clause limited in time and space and not prohibiting the continuation of an "identical" activity is valid (Varassedis/Prodim)

1859

Court of Cassation, Commercial Chamber, 17 January 2006, Appeal No. 03-12.385, Société Varassedis v. Société Prodim Facts A Shopi franchisee changed its name after unilaterally terminating its franchise agreement. The agreement contained a non-reaffiliation clause under which the franchisee could (...)

Didier Ferrier Selective distribution: The Court of Cassation holds that a third party can rely on the infringement of a selective distribution agreement against a selected distributor as well as a non-selected distributor (Auchan/Levi Strauss)

2991

Court of Cassation, Commercial Chamber, 11 January 2005, Appeal No. 02-10.566, Auchan France v. Levi Strauss Continental Company Facts Levi Strauss has found Levi’s brand products in Auchan stores that are not part of its selective distribution network. By judgment of 16 May 2001, the (...)

Didier Ferrier Distribution - Agreement - Trade between Member States: The French Competition Council interprets the notion of agreement in the distribution sector and for the first time the European communication on trade between Member States (Browning Winchester)

2441

Competition Council, Decision No. 05-D-07, February 24, 2005, Browning Winchester Facts Browning Winchester France (BWF), which is active on the civilian arms and ammunition market, has set up a distribution network based on a contract of The term "pilot reseller" was modified, from 1997 (...)

Didier Ferrier Technology transfer agreements : Member States must comply with the block exemption regulation on technology transfer agreements due to the end of the transitional period

1969

Regulation No 772/2004 of 27 April 2004 on the application of Article 81(3) of the EC Treaty to categories of technology transfer agreements, OJ L 123 of 27 April 2004. Community Regulation 772/2004 lays down the conditions under which technology transfer agreements prohibited by Article 81(1) (...)

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