Dominique Ferré

Fidal (Paris)
Lawyer (Partner)

Dominique Ferré has extensive experience advising clients on European and national competition law rules. He represents clients before European and national competition authorities. He also provides legal assistance in relation to restrictive practices and consumer protection regulatory constraints. He has been the Director of Fidal’s Competition and Distribution law Department since year 2000. As such, he is in charge of the development of the activities of the department and manages a team of 60 lawyers across France and the members of the Brussels office. He has lead a large number of conferences on competition and distribution law subjects.

Linked authors

Paul Hastings (Brussels)
Casino (Paris)
French Ministry of the Economy (Paris)
Janssen (Issy-les-Moulineaux)
French Competition Authority (Paris)
KLYB (Montpellier)
University of Montpellier
Loi & Stratégies

Articles

236920 Review

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

106

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

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

137

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

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

157

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

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

147

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

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

113

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

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

138

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

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

231

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

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

289

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

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

118

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

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

108

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

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

135

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

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

144

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

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

106

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

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

104

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

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

125

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

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

107

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

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

141

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

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

101

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

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

121

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

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

157

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

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

132

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

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

171

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

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

411

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

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

132

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

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

286

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

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

101

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

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

94

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

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

148

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

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

129

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

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

98

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

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

127

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

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

183

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

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

110

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

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

99

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

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

216

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

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

99

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

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

115

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

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

183

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

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

151

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

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

110

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

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

141

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

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

114

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

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

125

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

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

136

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

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

118

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

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

176

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

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

196

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

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

195

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

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

195

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

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

188

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

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

223

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

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

188

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

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

190

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

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

243

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

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

168

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

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

196

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

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

196

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

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

188

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

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

226

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

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

198

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

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

193

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

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

182

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

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

236

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

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

165

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

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

197

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

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

202

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

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

216

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

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

183

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

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

156

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

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

224

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

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

176

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

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

151

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

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

380

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

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

211

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

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

181

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

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

83

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

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

272

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

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

114

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

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

121

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

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

69

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

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

87

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

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

76

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

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

143

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

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

366

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

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

132

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

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

126

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

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

99

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

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

128

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

Dominique Ferré 90.Non-competition clause: The Nancy Court of Appeal declares null and void a non-competition clause which was too large in its geographical extent and did not contain any financial contribution for the benefit of the commercial agent (CP Conseil / M.V.)

169

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

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

100

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

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

121

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

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

591

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

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

109

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

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

139

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

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

145

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

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

119

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

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

99

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

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

67

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

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

106

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

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

158

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

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

209

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

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

139

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

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

139

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

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

145

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

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

305

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

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

117

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

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

229

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

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

83

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

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

155

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

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

394

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

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

122

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

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

550

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

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

221

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

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

116

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

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

164

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

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

196

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

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

348

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

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

193

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

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

248

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

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

510

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

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

460

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

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

972

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

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

476

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

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

773

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

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

1254

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

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

2303

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

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

1326

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

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

1259

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

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

1098

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

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

1844

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

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

1597

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

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

2251

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

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

2667

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

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

2456

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

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

1680

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

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

1292

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

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

1986

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

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

2988

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

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

1497

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

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

1760

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

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

2216

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

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

2123

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

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

2035

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

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

4039

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

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

2459

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

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

4040

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

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

2118

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

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

1943

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

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

1975

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

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)

2421

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 (...)

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

1819

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

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

2278

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

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

2336

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

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

1900

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

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

2284

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

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

2007

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

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

2513

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

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

2041

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

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

1735

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

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

1610

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

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

1636

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

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

1925

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

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

2324

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

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

1679

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

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

2766

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

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

1788

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

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

1829

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

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

2032

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

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

1824

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

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

1774

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

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

1578

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

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

1787

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

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

2416

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

Dominique Ferré Agent : The CFI rules that the agent who does not determine selling conditions and does not bear the main risks resulting from the activity is not an independent economic operator in the meaning of Article 81 CE (DaimlerChrysler AG)

1773

Facts Consumers have complained to the European Commission about certain practices of companies in the Daimler-Benz AG group. They were accused of to impede the export of new Mercedes-Benz motor vehicles to various Member States. The Commission found that there was an anti-competitive cartel (...)

Dominique Ferré Commitment proceedings: The French Competition Council implements for the first time the commitment proceedings and decides on the practices implemented in the market for audience measurement in the national daily press and on the related advertising market (EuroPQN)

1793

Competition Council, Decision No. 05-D-12, 17 March 2005, EUROPQN Facts The companies 20 Minutes France and Publications Métro France, publishers of free daily general information newspapers financed exclusively by advertising, have lodged a complaint with the French Competition Council (...)

Dominique Ferré Motor vehicles distribution : The Versailles Court of Appeal rules that the licensor is free to define the modalities of his network’s reorganization, in particular the time to terminate the license contracts (Daimler Chrysler/Garage de Bretagne)

1669

CA de Versailles, February 24, 2005, Daimler Chrysler France v/ Garage de Bretagne Facts SA Garage de Bretagne was linked to Daimler Chrysler France by an exclusive concession contract. That contract stipulated, in accordance with the Community Regulation, that No 1475/95 of 28 June 1995, (...)

Dominique Ferré Prices differentials between Member States : The Paris Court of Appeal decides on the liability of automobile manufacturer who practices price differentials between Member States of the European Union (Volkswagen)

1793

CA Paris, January 26, 2005, Bellevue Auto et Consorts Petit v/ Groupe Volkswagen France and Volkswagen AG Facts Volkswagen Group France, a motor vehicle importer and subsidiary of Volkswagen AG, had entered into exclusive dealership agreements with Bellevue Auto, a company based in the border (...)

Dominique Ferré Retail distribution : The Minister of Economy receives a report on relationships betwen trade and industry which takes side for a reform of the Galland Act ("Canivet Report")

2199

Canivet Report of October 18, 2004 Following the commitment made on 17 June 2004, the Minister for the Economy, Mr Nicolas SARKOZY, appointed a Commission chaired by Mr Guy CANIVET to consider a new legislative and regulatory framework organising relations between suppliers and distributors. (...)

Dominique Ferré Motor vehicle distribution : The French Supreme Court holds that the licensor is free in the organization of his network and in the choice of his licensees (Rover France)

1652

Facts A car dealer wanted to sell his business. The licensor’s approval was required. The latter induced a potential buyer to obtain a substantial reduction in the sale price from the dealer. He also invited him to take an interest in taking over another dealership. The dealer, however, (...)

Dominique Ferré Boycott : The Paris Court of Appeal rules that a boycott or the mere threat of a boycott are "per se" punishable anticompetitive behavior even if they have no effect on the market (CNPA / SPEA)

973

CA Paris, 29 juin 2004 statuant sur la décision n° 03-D-68 du Conseil de la concurrence, Conseil national des Profession de l’Automobile (CNPA) c/ Syndicat des Professionnels européens de l’Automobile (SPEA) Faits Le CNPA 57 souhaitant lutter contre des intermédiaires mandatés par des consommateurs (...)

Dominique Ferré Resale price maintenance : The French Competition Council sanctions resale price maintenance in the distribution of sports and leisure (Décathlon / Go Sport)

991

Faits La société Go Sport, distributeur d’articles de sport, a saisi le Conseil de la concurrence de pratiques d’abus de position dominante et d’entente. En ce qui concerne l’abus de position dominante, la société Go Sport reproche à la société Décathlon, son principal concurrent, d’avoir abusé de sa (...)

Dominique Ferré Automobile distribution: The Dijon Court of Appeal considers that automobile manufacturer is free to chose its distributors, subject to apply strictly selected criterions (Garage Gremeau/Daimler Chrysler)

1890

CA Dijon, 1 April 2004, Garage Gremeau v Daimler Chrysler France, No. 03/01547 Facts In all three cases, a car dealer, whose contract had been terminated under Regulation 1475/95, wanted to join the network set up by its former supplier under Regulation 1400/2002: First case: The manufacturer (...)

Dominique Ferré, Karine Biancone Resale price maintenance: The French Competition Council sanctions resale price maintenance and refers the case to the Prosecutor for criminal proceedings rules (Boulangerie de la Marne)

1328

Faits La réduction du temps de travail aux trente-cinq heures ayant entraîné une augmentation des charges professionnelles supportées par les boulangers, le président de la Fédération départementale de la boulangerie de la Marne a alors incité, lors d’une assemblée générale le 23 avril 2001 les (...)

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