Frédéric Buy

University of Aix-Marseille
Professor

Frédéric Buy is Professor of private law at the Aix-Marseille University (AMU), where he teaches Commercial Law, Distribution Law and Contracts Law. He teaches also in Science Po Aix. Frederic has extensively written on Sport, Distribution and Contract law (articles and books). He is also co-director and co-founder of the chronicle on Ethics of the Enterprises (Lextenso). Frederic is visiting professor at the College d’Etudes juridiques franco-roumain of Bucarest. Frédéric is also Director of the Master 2 “Droit et fiscalité de l’entreprise” at the University of Auvergne.

Linked authors

Université Jean Moulin - Lyon III
Fidal (Paris)
Deprez Guignot Associés
Fidal (Paris)
Fidal (Paris)
Kingfisher (Paris)
University of Montpellier
Concurrences (London)

Articles

9425 Review

Frédéric Buy Sudden termination: The International Commercial Chamber of the Paris Court of Appeal rules that Article L. 442-6, I, 5° of the Commercial Code does not override mandatory provisions (Sodmilab / Waters)

48

Conflict of doctrines at the Paris Court of Appeal! Chambers 5-4 and 5-5 have so far disagreed as to whether or not the provisions of the former Article L. 442-6, I, 5° C. com. which became L. 442-1, II, constituted a police law: yes for the former (CA Paris, p5 Jul. 2017, RG no. 15/19988; 9 (...)

Frédéric Buy Sudden termination: The French Supreme Court decides that, in the event of a sudden breach of established commercial relationship, a third party cannot seek compensation for any damage on the basis of article L. 442-6 of the French Commercial Code (Back-holding, Ibis Backwarenvertriebs / Atlantique productions, Biscuiterie pâtisserie carrée and Régals de Bretagne)

28

"Only the party who directly maintains an established commercial relationship with the other party may, on the basis of this text, seek the latter’s liability in the event that he has, brutally and without written notice, broken this relationship, even partially third parties may claim (...)

Frédéric Buy Sudden termination: The Paris Court of Appeal decides that a third party can sue the company liable for a sudden breach of established commercial relationship when it has suffered a loss (Plaisir Selection Japan / Organisation Intra groupe des achats)

90

Here is a timely ruling (Paris, 5-5, Feb. 27, 2020, AJ Contrat 2020, forthcoming, obs. F. Buy). A few months ago, the Plenary Assembly of the Court of Cassation decided to uphold its Boot shop jurisprudence (Cass. ass. plén., Oct. 6, 2006, no. 05-13255), solemnly reaffirming that "a third party (...)

Frédéric Buy Unfair competition: The French Supreme Court rules that judges shall take into account any unfair profits made by the author of unfair commercial practices when assessing damages (Cristallerie de Montbronn / Cristal de Paris)

113

It is safe to say that the Cristal de Paris judgment is one of the most important judgments that the Court of Cassation has ever handed down on the subject of unfair competition, and on compensation for economic loss more generally. This innovative decision is promised to the greatest publicity (...)

Frédéric Buy Price transparency: The French Supreme Court decides, for the first time, that late fees shall not apply to non-professionals (FPBI, Solidarité et jalons pour le travail / Portakabin)

69

Late payments are, as we know, a real scourge. Because the ordinary law, which only grants interest at the legal rate (art. 1231-6, Civil Code), "has never discouraged bad payers" (D. Mainguy, note JCP E 2009, 1543), the Commercial Code has long provided for a derogatory rule: penalties for (...)

Frédéric Buy Sudden break: The French Supreme Court considers that a group of companies cannot be party to an established commercial relationship (Sabet Persepolis / Galeries Lafayette)

135

How does the law on abrupt breakups deal with corporate groups? The ruling handed down by the Court of Cassation on 16 October 2019 (CCC 2019, no. 199, obs. N. Mathey) provides an opportunity to take stock of a question that is certainly classic, but always delicate (see not. F. Buy, L’article (...)

Frédéric Buy Sudden break: The French Supreme Court decides, for the first time, that Article L. 442-6, I, 5° of the French Commercial Code does not apply between an agent and a principal (IDF Management / Gifi)

168

On 2 October 2019, the Court of Cassation handed down an important and noteworthy ruling (D. actu 17 October 2019, obs. X. Delpech; CCC 2019, No. 198, obs. N. Mathey; AJ Contrat 2019, p. 483, note N. Dissaux; adde F. Buy, De quelques conflits de lois internes en droit des affaires, D. 2019, p. (...)

Frédéric Buy Individual penalties: The European Court of Human Rights rules that a merging company can be sentenced to a civil fine while the unfair commercial practice has been committed by the absorbed company (Carrefour / France)

145

Question: Can an acquiring company be ordered to pay a civil fine for an unfair commercial practice (in this case, the obtaining of manifestly disproportionate advantages by a large distributor) previously committed by the company it has absorbed? Yes, and three times yes! Yes, firstly, for (...)

Frédéric Buy Sudden break: The French Supreme Court prohibits lower judges, in accordance with the principle that the judge has an obligation not to distort the writing submitted to him, from deciding on the basis of a sudden breach of commercial relationships whereas the purpose of the request was based on contractual liability (IGA)

99

The law of unfair commercial practices is now leading practitioners and academics to "revisit the relationship between ordinary law and special law" (J. Klein, Les rapports entre le C. com. et le C. civ, Concurrences No. 3-2019, art. 90980.). Especially in the case of abrupt break-ups, the (...)

Frédéric Buy Unfair competition: The Paris Court of Appeal recalls that a legal entity not subject to a code of ethics’ rules can commit an act of unfair competition in case of breach distorting competition on the market (Mutualité française d’Alsace / Syndicat des chirurgiens-dentistes du Bas-Rhin)

337

Unfair competition is one of those notions that are sometimes thought, with little naivety, to be easily tamed. On the one hand, unfair competition does not, at least officially, belong to the family of unfair commercial practices as defined by the recent reform of Title IV of Book IV C. com (...)

Frédéric Buy Payment terms: The Marseille Administrative Court of Appeal inaugurates the administrative jurisdictional litigation of unfair commercial practices (Airbus Helicopters)

206

The time has come for administrative judicial litigation in commercial relations. After the introduction, by the Hamon law of 17 March 2014, of the administrative fine penalty to sanction the violation of a whole series of provisions of Title IV of Book IV C. com. the administrative judge (...)

Frédéric Buy Business partnership: The French Supreme Court rules that Article L. 442-6 of the French Commercial Code does not apply to the relationship between a lawyer and his law firm (M. E. / Cabinet S.)

152

By the time the reader reads these lines, the judgment under commentary will perhaps no longer be more than an illustration of the Byzantinisms on which article L. 442-6 C. com. has been based for too long. In this case, judges had rejected a lawyer’s claim for damages, directed against the law (...)

Frédéric Buy Non-competition clause: The Paris Court of Appeal considers, for the purpose of applying a non-competition clause, that using a common name does not imply the creation of a distribution network (International Esthétique / Joël M.)

132

Here is a most common contractual clause, housed in a franchise agreement: the distributor is prohibited from "creating a competing network[ in the same field] in all the cities where the franchised institutes are located, for one year from the termination of this contract". The clause is a (...)

Frédéric Buy Commercial lease: The French Supreme Court considers that Article L. 442-6 of the French Commercial Code is only applicable to production, distribution or services activities (Au Marahja)

154

The judgment handed down on 15 February 2018 by the Third Civil Chamber of the Court of Cassation (AJ Contrat 2018, p. 143, obs. K. Magnier-Merran) can be placed in the family of "grands arrêts du petit droit" (F. Buy, Les grands arrêts du petit droit, D. 2017, p. 1481). It is one of a growing (...)

Frédéric Buy Submission: The French Supreme Court considers, under article L. 442-6 of the French Commercial Code, that a liability clause cannot be deemed unwritten without submission (Delta Security Solutions)

159

The movement to block the application of Article L. 442-6 C. com. is still in progress. The reported judgment is perhaps not the most spectacular illustration of this, but it has the merit of reminding us that the law of commercial relations is not a "trick" that could be conveniently wielded (...)

Frédéric Buy Economic entity: The French Supreme Court rules that the concept of economic entity is specific to the antitrust law and cannot be applied to the common civil liability law (Optical Center / Frères Lissac, Lissac enseigne, Gadol et Audioptic Trade Services)

152

The judgment is not published in the bulletin, which is unfortunate (see CCC 2018, comm. 87, obs. M. Malaurie-Vignal). For the Court of Cassation is making an important decision here, which defuses an attempt to import so-called "economic" reasoning in civil law. Certain practices observed in (...)

Frédéric Buy Bank loans: The French Supreme Court decides that the provisions of article L. 442-6 of the Commercial Code do not apply to termination of bank loans (AMG Compagnie / CIC)

149

The commented judgment is important (obs. C. Mouly-Guillemaud, Lettre distr. nov. 2017; note N. Dissaux, JCP E 2017, 1665; chron. F. Buy, RLDC Jan. 2018, forthcoming). It constitutes a new illustration of the current "ebb" of article L. 442-6 C. com (Flux et reflux de la rupture brutale d’une (...)

Frédéric Buy Significant imbalance: The French Supreme Court considers that the provisions of article L. 442-6 of the Commercial Code do not apply to the relationship between a company and its partners (Sport / Intersport)

154

We reported and approved in these columns, a few months ago, the excellent decision of the Court of Appeal of Paris of February 3, 2016 which had refused, in substance, to apply the rules on significant imbalance and abrupt rupture to the relations maintained by a cooperative society of retail (...)

Frédéric Buy Judicial specialisation: The French Supreme Court points out that disputes relating to the application of the article L. 441-7 of the Commercial Code do not fall within the jurisdiction of specialized courts (Sofexi / Profima)

105

The solution set out in the Court of Cassation’s ruling of 20 September 2017 is self-evident. Nevertheless, it shows that the rule of jurisdictional specialisation laid down in Article L. 442-6, III C. com. sometimes gives rise to improbable disputes. In the present case, in declaring (...)

Frédéric Buy Proper notice: The French Supreme Court overrules the decision of the Paris Court of Appeal according to which successful conversion had to be taken into account to appreciate the proper notice of termination (Cargo Lines c/ Carotrans)

185

We had recently reported in these columns an original decision of the Paris Court of Appeal (CA Paris, 5-5, Jan. 28, 2016, RG n° 14/13036, Concurrences No. 2-2016, p. 131, obs. F. Buy JCP G 2016, 288, note C. Grimaldi; RTD civ. 2016, 361, obs. H. Barbier) which had entered into resistance (...)

Frédéric Buy French law on the modernisation of the economy: The French Supreme Court considers that French law on the modernisation of the economy is not retroactive and recalls the need to specify legal grounds (Maisoning éco habitat c/ Castorama France)

165

The ruling of the Court of Cassation handed down on 5 July 2017 will be of particular interest to practitioners. Its lesson could be that, if legal rigor is not in order with regard to "the fundamentals", the law of restrictive practices, however attractive it may be, could well be a mirror for (...)

Frédéric Buy Parity clause: The Paris Court of Appeal sanctions, in accordance with Article L. 442-6 of the French Commercial Code, parity clauses imposed to hoteliers and recognises jurisdiction of French Courts (Expedia)

354

The practices of hotel reservation platforms have not gone unnoticed for some time now. Lawyers have discovered the so-called "parity" clauses that these platforms impose in their contracts with hoteliers: the "parity of rates" clauses, which ensure that the best rates are automatically (...)

Frédéric Buy Cancellation: The French Supreme Court considers that significant imbalance cannot be subject to a cancellation under the French Commercial Code (Nord Toitures / SCT)

253

Here is an unpublished decision of the Court of Cassation which, out of the blue, seems to have settled, for the first time, one of the major questions relating to the regime of article L. 442-6, I, 2° C. com. In the case in point, a company had signed a contract with a telephone operator for (...)

Frédéric Buy Minister legal action: The French Supreme Court approves the condemnation of a specialised distributor for significant imbalance and refuses to criticise the French Minister for Economy which highly publicised its legal action (Darty)

194

After the signs of the large food distribution, the signs of the specialized distribution are, in their turn, under the spotlight of the Court of Cassation. The scenario is well known, with an action initially launched by the Minister who considered that two clauses inserted in the contracts (...)

Frédéric Buy Member of a cooperative company: The French Supreme Court considers that the exclusion of a member of a cooperative company is not subject to the application of the article L. 442-6, I, 5° of the Commercial code (Coopérative des transporteurs en benne / SPS Roland X)

135

Among the questions raised by Article L. 442-6, I, 5° C. com., that of the delimitation of its field of application is certainly one of the most delicate (Obs. F. Buy, L’article L. 442-6, I, 5° du Code de commerce, Lamy droit du contrat, 2016, n° 2495 et seq. ; adde notre article Rupture brutale (...)

Frédéric Buy Judicial control of prices: The French Supreme Court considers that prices can be controlled according to the article L. 442-6, I,5° of the Commercial code (Le Galec)

264

The decision of the Commercial Chamber of the Court of Cassation of 25 January 2017 (Obs. F. Buy, D. 2017, p. 481; obs. M. Béhar-Touchais, JCP G 2017; obs. S. Pech-Le Gac, JCP E 2017, 1135), presided over for the occasion by First President Louvel, is probably the most important decision that (...)

Frédéric Buy Reform : The French Parliament adopts, on December 9th 2016, the law n° 2016-1691 on transparency, the fight against corruption and modernization of economic life (Loi Sapin 2)

533

The law on transparency and practices restricting competition has just been amended by the imposing law n° 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as "Sapin 2". One hardly dares, so well known is it, to sing the (...)

Frédéric Buy Selective distribution : The Paris Court of Appeal rules that a company may refuse to examine an application of another company for selective distribution membership, without providing a justification (Élysées Shopping / Rolex France)

237

Can a candidate for integration into a selective distribution network challenge the refusal of approval on the basis of discrimination? This is the beautiful question posed by the decision of the Paris Court of Appeal handed down on 19 October 2016 (see Vogel & Vogel blog: vogel-vogel.com). (...)

Frédéric Buy Submission : The French Supreme Court approves the judgment of the Paris Court of Appeal that ruled against a large retailer for submitting or having attempted to submit its suppliers to significant imbalance (Carrefour)

524

This is the latest episode in the fight, for the moment victorious, led by the Minister of the Economy against the players in the mass distribution sector. In a ruling handed down on 4 October 2016 (CCC 2016, comm. 253, obs. N. Mathey; blog Vogel & Vogel), the Commercial Chamber of the (...)

Frédéric Buy Abrupt concept: The French Supreme Court rules on the conflict between community and national law on the question of the notice period to be granted in case of breach of established commercial relationships and on the compensation for a sudden breach (US Import Export / Sniw)

227

Strangely, the central condition of the offence of brutal termination of an established commercial relationship was, until now, only imperfectly understood (see, however, the enlightening study by C. Mouly-Guillemaud, "Répercussion de la crise économique, perte de rentabilité d’une relation ou (...)

Frédéric Buy Abrupt termination: The Court of Justice of the European Union considers that an action for damages based on an abrupt termination of established commercial relationship is not always a matter relating to tort or delict (Granarolo / Ambrosi Emmi France)

167

Litigants are called upon to put their work back on the job! For the application of the Brussels I European Regulation, the Court of Justice of the European Union has just ruled, in a break with the solution that was up to now defended by the Court of Cassation, that "Article 5(3) of Council (...)

Frédéric Buy Sudden termination: The French Supreme Court confirms the liability of a manufacturer for sudden termination when its subsidiaries and its franchisees when they do not have a decision-making independence (Blue Oceans Venture / Groupe Planet Sushi)

144

Groupe Planet Sushi, which specialises in the catering and delivery of Japanese cuisine, which it carries on, notably through its subsidiaries and its network of franchisees, is assigned by one of its service providers, Blue Oceans Venture, on the basis of an abrupt termination of an (...)

Frédéric Buy Significance imbalance: The Paris Court of Appeal considers that the provisions of article L. 442-6 of the commercial code do not apply to the relationship between a company and its partners (Distribution Labege / Intersport)

208

It is well known that Article L. 442-6 of the French Commercial Code, which was originally created to govern distribution relationships, has long since fallen out of bed. Can it now be applied to the relationship between a company and its own partners? This is the very interesting question (...)

Alain Gauvin, Christophe Grison, Frédéric Buy, Jean-Christophe Roda, Jean-Louis Fourgoux, Julie Zoughi, Leyla Djavadi French distribution law following adoption of Macron law

1089

With this new Trends issue related to the last evolutions of the French distribution law, the review Concurrences carries on its work on the most important competition issues raised by the Macron law adopted on August 6th, 2015. From small adjustments in transparency law to genuine developments (...)

Frédéric Buy Sudden termination: The Paris Court of Appeal considers that successful conversion has to be taken in account to appreciate the proper notice of termination (Cargo Lines / Carotrans international)

176

Practitioners familiar with the litigation of abrupt terminations will not fail to appreciate the originality of this decision of the Paris Court of Appeal "discovered" by our colleague Cyril Grimaldi (JCP G 2016, 288), which runs counter to the current case law of the Court of Cassation on a (...)

Frédéric Buy Notion of commercial relationship: The French Supreme Court approves the decision of the Court of appeal of Angers which ruled that article L. 442-6,I,5° of Commercial Code is not applicable to the relationship between a lawyer and his/her client (X / Banque populaire atlantique)

194

Although foreseeable (the judgment is not published in the Bulletin), the solution adopted in this case by the Commercial Chamber of the Court of Cassation will certainly attract the attention of legal professionals. Indeed, the High Court decided, for the first time to our knowledge, that the (...)

Frédéric Buy Sudden termination: The French Supreme Court overrules the decision of the Court of Appeal of Paris, which in order to assess the consequences of a sudden termination, has taken into account all the relationships built up between the victim and several subsidiaries of a group, whithout noting that the latter had colluded with each other (Toyota / Fonderie Bouhyer)

216

It is customary to say, perhaps a little quickly, that the concept of the corporate group, which is more economic than legal, is difficult to grasp properly in law. But, precisely because it does not run on classical civil law concepts, is the law of abrupt breaks in commercial relations not (...)

Frédéric Buy Significant imbalance: The French Supreme Court is gradually building up strict legal precedents concerning significant imbalance in contracts in the retail sector (EMC distribution)

299

After a few years of waiting, the decisions of the Court of Cassation on the "significant imbalance" are beginning to flourish. The reported ruling, dated 29 September 2015, confirms and consolidates, in the form of a lengthy rejection decision, what three other noteworthy rulings handed down (...)

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