Jean-Louis Fourgoux

Fidal (Paris)
Lawyer (Partner)

Jean-Louis Fourgoux is a Partner at Fidal. He holds a DEA (Post graduate degree) in Business Law and Economic Law. He is member of Paris and Brussels bar and he is specialized in Economic, European law. Jean-Louis is known for his expertise advising clients in complex disputes before the European Commission, French antitrust authorities and commercial court on private enforcement litigations . He has particular experience in the retail, media, energy sectors. Co-author of the practical guide about competition litigation he writes various comments for Dalloz, Lexis-Nexis. Chairman of the Board of the French Association for the study of competition (AFEC), Jean-Louis teaches Competition Law, at Sciences Po Paris and Versailles University.

Linked authors

University Paris II Panthéon‑Assas
DGCCRF Bureau 3B
University of Corsica Pascal Paoli (Corte)
Université du Maine
Jones Day (Brussels)
Université Versailles Saint-Quentin-en-Yvelines
Armand Associés (Le Mans)
Le Mans University (La France)

Articles

73993 Review

Jean-Louis Fourgoux Selling at lost: The French Government commits to maintain the mechanism supervising promotions and the increase of the threshold for selling at a loss applicable to food products (Bill for the acceleration and simplification of the public action)

72

Article 3 of the Ordinance of 12 December 2018, taken in application of the so-called Egalim law (2018-938 of 30 October 2018 for balanced trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all), provides since 1 January 2019 that the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that the judges cannot substitute the basis for wrongful breach of contract with the basis for sudden termination of established commercial relationship, which is the jurisdiction of specialized courts (Rector Lesage / De Rijke Alsace)

76

A non-specialized court shall hear a claim for damages arising from the termination of a transport contract for a fixed period of two years, renewable by tacit agreement, before the end of the contract with immediate effect. The Court of Appeal had held that the commercial relationship had (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that the recruitment by a client of an employee of its service provider does not dispense with giving notice proportionate to the duration of the business relationship (Sum / Essilor)

76

This judgment confirms the Court of Cassation’s practical approach to the conditions under which a party may be exempted from giving notice proportionate to the duration of the commercial relations. In the present case, the company The machining and metallization department (Sum) had been doing (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court decides that pursuant to Article L 442-6 I 2° of the French Commercial Code, a commercial partner is a party with whom the other party commits, or is about to commit, to a commercial relationship without any other condition, either in terms of duration or stability of the commercial relationship (Cometik-Locam)

258

The significant imbalance in its initial wording and in the wording applicable since the Order of 24 April 2019 presupposes a precondition: the submission of one partner by the other contracting party to this imbalance. Indeed, while the Order has removed the reference to the "trading partner", (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal considers that if the economic crisis can constitute a case of force majeure, it must still be proven to dispense a written notice (Carrefour France / Ministre Économie and Coopérative Légumière Crimart)

30

The Paris Court of Appeal upheld the conviction of Carrefour, which had severed commercial relations with one of its suppliers without warning. A cooperative had been supplying ED and then Dia within the Carrefour group since 1996 after various legal restructurings. In 2014, the cooperative was (...)

Jean-Louis Fourgoux Commercial transparency: The French Government publishes the decree enumerating the list of large consumption products that must be the subject of detailed negotiation and contract, pursuant to Article L. 441-4 of the French Commercial Code (Décret no 2019-1413)

77

After having put the project out to consultation, the Minister for the Economy published, in the JORF of 21 December 2019, Decree No 2019-1413 of 19 December 2019 relating to the list of consumer products mentioned in Article L. 441-4 C. com. This decree comes into force on 22 December 2019 in (...)

Jean-Louis Fourgoux Sudden break: The French Supreme Court decides that the actualisation of the damage caused by the termination of commercial relations can only be the legal interest rate and not the rate applicable in the event of late payment of invoices provided for by the former Article L. 441-6 of the Commercial Code (Externis / Dinadis)

117

In a judgment on the abrupt termination of commercial relations between a logistics service provider (Dinadis) and its principal (Externis), the Paris Court of Appeal upheld the application for judgment on the ground that the notice period was insufficient and awarded Dinadis compensation with (...)

Jean-Louis Fourgoux Sudden break: The French Supreme Court approves the judges declaring inadmissible an action for compensation for the termination of a commercial relationship brought by several plaintiffs and based indiscriminately on contractual and tortious liability (Expertises-Rarecars / Artcurial)

98

An expert in car valuations worked with the auction company Artcurial. After founding a Rarecars company, he continued the relationship with this auctioneer’s company through him. After seven years of collaboration, Artcurial decided to terminate the contract. The expert first tries to have the (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court considers that in order for a contract clause to be considered as unbalanced, the proof of both the submission and the constraint imposed must first be provided (ITM Alimentaire International)

155

The significant imbalance in its initial wording and in the wording applicable since the Order of 24 April 2019 presupposes a precondition: the submission of one partner by the other contracting party to this imbalance. Indeed, while the Order has removed the reference to the "trading partner", (...)

Jean-Louis Fourgoux Sanction: The Paris Commercial Court partially grants the requests of the Minister of Economy and sentences two companies of the same group operating an international platform to 4 million euros for unbalanced contractual clauses binding one of them to third party sellers (Amazon)

139

After an investigation initiated in 2015, the French Minister of the Economy brought a quasi-tort liability action against three companies of the Amazon Service Europe group, Amazon Payments Europe and Amazon France Services (APE, ASE AND AFS) for practices observed during commercial relations (...)

Jean-Louis Fourgoux French Polynesia: The Polynesian Competition Authority imposes a €2 Million fine (FCP 235 Million) to a distributor for imposing a discriminatory and excessive pricing on his beverage suppliers for the provision of refrigerated exposure (Wane)

102

Beverage suppliers complained about the new financial conditions adopted by the Wane group from 2015 to be remunerated for the installation of beverages in its refrigerated cabinets. The monthly billing per door was significantly higher than in the past. The Wane group, which had several (...)

Jean-Louis Fourgoux Buying agent: The Paris Court of Appeal requires a laboratory to communicate its general terms and conditions of sales corresponding to the category of pharmacists to a purchasing group company (SRA) set up by pharmacists (Pyxis Pharma / Cooper)

178

It is a long battle that seems to be turning to the advantage of dispensing pharmacists who had opted for the SRA pursuant to Article D. 5125-24-1 of the CSP. The SRA is unique in that it is made up of dispensing pharmacists and acts on behalf of member pharmacies. In the present case Pixis (...)

Jean-Louis Fourgoux Sudden break: The French Supreme Court rules that in the event of a persistent disagreement on the purchase price of a wine vintage, the termination may not be attributed to either party (Château Baret)

128

The species was quite original and deserves a little explanation. A castle in the Bordeaux region (Chateau Baret) had been in a commercial relationship with a merchant for about thirty years without any reason to change it. The 2009 vintage will be a casus belli between the parties. The (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal rules that the general terms and conditions of purchase, which systematically take precedence over the general terms and conditions of sale and impose discount conditions without consideration, can be qualified as a significant imbalance within the meaning of the French Commercial Code (GEEPF)

124

This judgment is very significant because it was handed down in a relationship between a manufacturer and its suppliers and not between a distributor and its supplier. In the present case, GE Energy Product France (GE EPF) is a major manufacturer of medium and large gas turbines which was the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court refuses to consider that the contractual failure to submit accounts in the performance of an affiliation contract constitutes a circumstance allowing the contract to be terminated without notice (Transgourmet / Slad)

126

The transparency of negotiations in distribution networks is a source of major disputes sometimes linked to the notion of mandate between the network head and the members. The Court of Cassation in a dispute between a Bricorama franchisor and its franchisee approved the Paris Court of Appeals (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court decides that the commercial relationship must be understood as the contractual links existing between the companies, without taking into account the notion of parent and subsidiary companies (Rotosiam Batfim / Carrefour)

154

This case is quite revealing of the difficulty of including in the termination of commercial relations the notion of industrial relations within a group. In the first years of application of the text, the case law was fairly flexible with the victims and accepted that they could include in the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court decides that the continuation of discussions and negotiations for the renewal of an agent’s contract does not prevent the notification of the termination (Garage Jean Charles Nacci / Auto diffusion Saint Etienne)

145

The case involved a former Renault agent and his counsel, who himself had succeeded a Renault subsidiary. Indeed, in 2009 Renault had sold a branch to an independent dealer who had retained the Renault agents, the Renault agent and Dacia in place since 1980 in the contract territory. The new (...)

Jean-Louis Fourgoux Reform: The French government publishes an order amending Title IV of Book IV of the French Commercial Code simplifying the law on unfair commercial practices in France while maintaining a close framework for contractual relationships between professionals, as well as the texts of compliance and consistency (Egalim law)

216

For a complete and detailed study of the reform, read also the proceedings of the conference "The rewriting of Title IV of Book IV of the Commercial Code", organised on 4 April 2019 in Nanterre, under the direction of A.-S. Choné-Grimaldi, Revue ConcurrencesN° 3-2019, www.concurrences.com. (...)

Jean-Louis Fourgoux Black clauses: The European Parliament and the Council publish the directive establishing a list of black and grey clauses in the food chain (Agricultural and food supply chain)

399

The directive on unfair commercial practices in business-to-business relations within the food supply chain was adopted after much hesitation and multiple phases of negotiations (for the historical Emilie Prouzet at the conference "La réécriture du titre IV du livre IV du code de commerce", (...)

Jean-Louis Fourgoux Proposal for a directive: The European Parliament and the Council are about to definitively adopt the European Commission’s proposal for a directive establishing a list of black and grey clauses in business-to-business relationships (Food supply chain)

341

The proposal for a directive on unfair commercial practices in business-to-business relations in the food supply chain presented on 12 April 2018 included a number of prohibited clauses (Concurrences n° 3-2018, Art. n°87606, pp. 119-120 J.-L. F.) During the trialogue negotiations, an agreement (...)

Jean-Louis Fourgoux Charity: The Paris Court of Appeal rules that a non-profit-making association may exercise a paid activity of supply service and then be sued before specialised courts in case of sudden breach of commercial relationships (CNSUE / SEA TPI)

90

The Comité national de sécurité des usagers (CNSUE) is an association under the law of 1901, approved by the public authorities, which issues electricians with certificates of conformity for electrical installations. After having outsourced its IT service to a service provider, the Committee (...)

Jean-Louis Fourgoux Civil fine: The French Constitutional Council decides that the significant imbalance prohibited by Article L. 442-6 of the French Commercial Code is in conformity with the constitution even if it allows the judicial control of the prices and the imposition of a civil fine (Interdis / Minister Economy)

132

See also this issue, under "Practices", C. Grimaldi, Price Control in Distribution Contracts: Controlling the Evolution or the Level of Prices? Opponents of the significant imbalance introduced in the Commercial Code in 2008 had placed high hopes on the QPC transmitted by the Court of (...)

Jean-Louis Fourgoux Reform: The French Government establishes a draft order amending Title IV of Book IV of the French Commercial Code aiming to simplify the law on unfair commercial practices in France while maintaining a close framework for business-to-business relationships, which will be analysed by the French Supreme Administrative Court (Law n°2018-938)

268

The Order of 1 December 1986, by repealing the Orders of 30 June 1945, led to a profound overhaul of competition law, on the one hand, by establishing the principle of freedom of prices and competition and entrusting the Competition Council with the task of sanctioning anti-competitive (...)

Jean-Louis Fourgoux Charity: The French Supreme Court rules that relationships between a charity and one of its previous member are not subject to the prohibition of a significant imbalance (Association commerçant / Flunch)

72

Shopping centre leases often require the lessee to join a merchants’ association, the purpose of which is to promote the centre. In order to challenge certain clauses of the statutes, lessees have had the idea of having certain statutory clauses invalidated on the grounds of freedom of (...)

Jean-Louis Fourgoux Increase: The French Parliament adopts in last reading the Law ’agriculture and food’ authorising the French Government to adopts by the way of ordonnance a 10% increase of the sale at loss threshold as well as to frame food products discounts (Legislative proposal n°627)

100

Article 15 of the Act empowers the Government to take by ordinance, within four months of the publication of this Act, any measure falling within the scope of the Act and falling within the scope of the Com. com. necessary to provide for a period of two years : To apply a coefficient equal to (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court decides to transmit to the constitutional council a priority question of constitutionality relating to article L 442-6, 2 of the French Commercial Code prohibiting significant imbalance (Minister of Economy / Interdis & Carrefour)

111

In a dispute between them and the Minister of the Economy, Interdis and Carrefour had convinced the Paris Commercial Court to ask two priority questions of constitutionality: one on the significant imbalance (Art. L 442-6 2° C com.) and the other on the annual agreements (Art. L 441-7) (see "The (...)

Jean-Louis Fourgoux Integral repayment: The French Supreme Court decides that commercial cooperation services for services that suppliers assume themselves or that fictitious services must be reimbursed pursuant to Article L. 442-6 1° of the French Commercial Code (Système U / Minister of Economy)

110

The Commercial Chamber of the Paris Court of Appeal had issued a ruling on the punishment of false commercial cooperation and had sentenced a distributor (Système U) at the request of the Minister of the Economy to reimburse the full amount of the commercial cooperation it had received from (...)

Jean-Louis Fourgoux Arbitration clause: The Paris Court of Appeal decides that the possible significant imbalance of a commercial relationship has no effect on the validity of an arbitration clause because of the autonomy of the clause in relation to the contract that contains it (Subway)

161

The Paris Court of Appeal has applied the established case law limiting the challenge to the validity of an arbitration clause in a case that is nevertheless original in the context of the review of the order for enforcement of an arbitral award. A Subway franchisee in Narbonne was opposed to (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Commercial Court grants a request for the transmission of a « QPC » relating to Articles L. 442-6 and L. 441-7 of the French Commercial Code (Carrefour)

156

The Minister of the Economy has referred a request to the Paris Commercial Court, under Article L 442-6 I 2° prohibiting significant imbalance, for a ruling against the companies in the Carrefour group for attempting to impose an additional distribution discount as a precondition for (...)

Jean-Louis Fourgoux Large retail stores: The French Parliament examines a legislative proposal aiming to protect city-centre small shops against the excessive establishment of large retail stores (Legislative proposal n°1115)

71

The parliament is examining a bill aimed at strengthening control over the establishment of large supermarkets. Article 1 reduces the threshold of sales area to 400 m² as opposed to the current 1 000 m², above which authorisation is required for any creation or commercial extension in the food (...)

Jean-Louis Fourgoux Billing: The French Supreme Court rules that, pursuant to Article L. 441-6 of the French Commercial Code, a lawyer in relation with a professional client must receive late penalties and a lump sum indemnity for recovery costs (Cabinet Patrick Desbordes ; Mesa Industries)

118

These two judgments, handed down on the same day and promised for publication, deal with the relationship between a lawyer and his professional clients and confirm that the ordinary law on payment periods also applies to regulated professions. Both cases involved disputes between a lawyer and (...)

Jean-Louis Fourgoux Proposal for a directive: The European Parliament and the Council adopt a proposal for a directive in business-to-business relationships in the food supply chain aiming to prohibit certain unfair practices and to create national public authorities to investigate complaints (Proposal for a directive on unfair trading practices in business-to-business relationships in the food supply chain)

225

French law on practices restricting competition is being emulated. France is often singled out for its abundant regulations designed to preserve the precarious balance between suppliers and distributors. This trend is not about to be reversed, particularly in the agricultural sector. The French (...)

Jean-Louis Fourgoux Specialized jurisdictions: The French Supreme Court raises the lack of jurisdiction of the Basse Terre Court of Appeal and of the Basse Terre Commercial Court to rule on Article L. 442-6 of the French Commercial Code (Immobilière de Saint-Barthélemy)

60

The Court of Cassation censors on a plea raised ex officio the courts of appeal and the non-specialized commercial courts which rule on claims falling within the limitation of jurisdiction. The Commercial Chamber points out in this case that the Basse-Terre Court, which was itself devoid of any (...)

Jean-Louis Fourgoux Submission: The Paris Court of Appeal refuses to condemn contractual clauses of a major distributor in the absence of submission even in the presence of a significant imbalance (ITM Alimentaire International)

163

Article L. 442-6-I-2° C. com. which prohibits "subjecting or attempting to subject the trading partner to obligations a significant imbalance" could be presented as a safeguard against the purchasing power of mass distribution. The first decisions of the Paris Court of Appeal, a specialized (...)

Jean-Louis Fourgoux Compatibility: The French Supreme Court, through its commercial and criminal chambers, dismisses the incompatibility of the ban on resale at a loss with the Directive on unfair commercial practices against consumers (Alliance optique / Club opticlibre ; PM Dis et Central’Vet)

235

The first case concerns Club Opticlibre, a central purchasing body in the optical sector, bringing together independent opticians, which acquires products in order to resell them to its members on the basis of the commercial terms negotiated with suppliers, and Alliance Optique, carrying on the (...)

Jean-Louis Fourgoux Penalty for delay: The French Supreme Court reminds that penalties for payment delays provided for by Article L. 441-6 of the French Commercial Code are due ipso jure even if general agreements or contracts are silent on this point (EEVML / Vert Limousin ; Face Languedoc Roussillon)

144

The identical double disciplinary censure by the Court of Cassation of the Courts of Appeal of Versailles and Montpellier in less than a month is indicative of a certain ignorance by the judges of the merits of Article L. 441-6 C. com... The facts were quite similar in both cases. In the first (...)

Jean-Louis Fourgoux Absence of brutal termination: The French Supreme Court considers that the momentary decline in orders due to a crisis suffered by the client can not be described as a sudden termination and that the price increase claimed by the service provider to compensate for the decrease in volume may justify a break (Esquiss / Yves Dorsey)

114

This case marks the confirmation of the Caterpillar-CMI jurisprudence (Cass. com., Feb. 12, 2013, J-L. F), which states that a sudden break in the market presupposes a decision by the author and not a simple passing on of a market downturn, but goes further by specifying that the provider who (...)

Jean-Louis Fourgoux Burden of proof: The French Supreme Court decides that the person claiming to be the victim of a significant imbalance due to the refusal to revalue the tariff by the distributor customer must prove this by providing information on the composition of its costs (Jonction 3B / Alinéa)

94

This judgment underlines the complexity of business life and the delicate borderline between tariff negotiations and practices restricting competition. The company Jonction 3B was the supplier of textile articles to the company Alinéa France (the company Alinéa), since July 29, 1999. In May (...)

Jean-Louis Fourgoux Invoicing: The French Supreme Court decides pursuant to Article L 441-3 of the Commercial Code that the invoice of a commissionaire does not necessarily have to show the margin on its subcontractors (CAFOM Distribution / Somatrans)

141

Several companies of the Cafom Group, which operates furniture distribution stores under various trade names, have entrusted the transport of goods for more than 20 years to a freight forwarder (the Somatrans company). When they discovered that Somatrans had invoiced its subcontractors for (...)

Jean-Louis Fourgoux Action of the minister: The French Supreme Court refuses to transmit to the French Constitutional Council a question on Article L. 442-6, III of the French Commercial Code allowing the Minister of Economy to inform only in appeal the parties to a contract that it intends to pursue nullity on the ground of that Article (Système U centrale nationale)

105

In the context of a dispute between the national central company Système U and the Minister for Economic Affairs and Finance, the latter raised the unconstitutionality of the interpretation of Article L 442-6III of the Civil Code, thereby, according to Système U, violating the principle of (...)

Jean-Louis Fourgoux Call for tenders: The Paris Court of Appeal refuses to grant interim measures for the continuation of non-renewable commercial relations following a call for tenders in the absence of imminent damage (Terminaux de Normandie c/ NYK)

127

In a contract dated 21 August 2012, the G6 alliance entrusted, after a call for tenders, the exclusive handling of the ships of the shipowner companies of its grouping at a terminal in the Port of Le Havre to the company TN. On 5 August 2016, the Grouping informed its service provider of its (...)

Jean-Louis Fourgoux Transparency: The French Supreme Court decides that transparency within a franchise network - including under the negotiating mandate - does not allow franchisees to access to commercial terms with all suppliers (Ploneour / Bricorama)

168

In this case, a former franchisee of the Bricorama network left the network to join the Weldom network. In the context of the dispute which arose with Bricorama following his departure, that former franchisee demanded payment of end-of-year discounts from Bricorama and documents justifying the (...)

Jean-Louis Fourgoux Compelling behaviour: The French Supreme Court rules that a contract could be criticized under the prohibition of significant imbalance only if the perpetrator of the practice has constrained the other party (Netasq-ECONOCOM)

169

The Court of Cassation ruled, in a case not involving mass distribution, on Article L 442-6 I 2°, which refers to the fact of "subjecting or attempting to subject a trading partner to obligations that create a significant imbalance in the rights and obligations of the parties", and sets out the (...)

Jean-Louis Fourgoux Categorical sales conditions: The French Supreme Court points out, in very clear terms, the need for suppliers to establish their categorical conditions of sale on the basis of objective criteria and to justify them in the event of refusal to communicate pursuant to Article L 441-6 of the French Commercial Code (Pyxis / Cooper)

308

The Court of Cassation, in the context of relations between a laboratory and pharmacies, recalls the need for suppliers to establish the categorical conditions of sale on the basis of objective criteria. In this case, a pharmaceutical company had brought before the Paris Tribunal de Grande (...)

Jean-Louis Fourgoux 2016 Report: The Observatory of payment period (2016 Report) shows a reduction in payment periods in France which is encouraged by the French Commission for examination of unfair commercial practices (Payment periods conditions of suppliers)

137

Payment periods are subject to mandatory regulations for certain products or services such as the sale of live cattle and fresh meat for which payment must be made within twenty days following the day of delivery, the sale of perishable food products for which payment must be made within thirty (...)

Jean-Louis Fourgoux Scope of the clause: The French Supreme Court considers that a non-compete clause only seeking the initial territory given to a commercial agent is not applicable if this territory was modified three times without contract amendment (Cafpi)

109

The Court of Cassation considers that a non-competition clause which only covers the territory initially entrusted to a commercial agent is not applicable if this territory has been modified three times without amendment. Morality either it is a resurgence of the notion of cause in the contract (...)

Jean-Louis Fourgoux Annual report: The Directorate-general for competition consumption and repression of fraud (DGCCRF) publishes its 2016 report, which highlights the strengthening of the administration’s action on restrictive practices

175

The DGCCRF is no longer solely in charge of investigations - even if the control of practices has been very sustained (in 2016, DGCCRF agents carried out 13,356 control actions concerning the balance of trade relations) - but now has the power to impose administrative sanctions, extended since (...)

Jean-Louis Fourgoux Breach of commercial relationships: The Paris Court of Appeal dismisses the supplier ‘s complaint two years after the rupture and while no claim had been made in writing (Nelly de France / GALEC)

95

For the Court, it is important for the person claiming to be a victim to prove that the break-up is attributable to him or her. The judgment adds that the supplier cannot hide behind the unbalanced balance of power, nor the fact that most of the discussions were oral. This decision deserves to (...)

Alain Gauvin, Irène Luc, Jean-Louis Fourgoux, Maurice Nussenbaum, Muriel Chagny What attractiveness of competition law at the date of reforms? (Competition’s interviews: New competitive opportunities before ordinary courts, October 18, 2016)

526

The third edition of “Entretiens de la concurrence”, focusing on the new economic and legal opportunities before ordinary courts, aimed to emphasise on the specific nature and assets of those jurisdictions in competition law. Having to implement competition law rules in a globalized economy, the (...)

Jean-Louis Fourgoux Commercial relationships: The Paris Court of Appeal holds that a succession of commercial leases does not constitute a commercial relationship (ATS / Pierre et Vacances)

87

In that judgment, the Paris Court of Appeal was asked whether a succession since 1998 of seasonal commercial leases granted by Pierre et Vacances to ATS for the operation of several mini-markets within holiday resorts could be subject to the provisions of Article L. 442-6, I, 5°. In 2011, Pierre (...)

Jean-Louis Fourgoux Commercial relationships: The French Supreme Court clarifies the applicability to an association of the commercial relationship within the meaning of Article L. 442-6, I, 5 ° (Rubis / GMPA et Allianz Vie)

169

The somewhat tangled facts of this case will lead the Court of Cassation to issue a ruling of principle that is promised to be published. The Rubis company had contracted with the insurance company Allianz vie, a credit institution and the association Groupement de prévoyance des armées (GMPA). (...)

Jean-Louis Fourgoux Duration of notice : The French Supreme Court considers that the lack of social labelling of a service provider in the field of meat contracting cannot justify a breach without proportionate notice to the duration of the commercial relations, limited to 1 year in the absence of justification for economic dependence (Bigard)

141

The Bigard Group ended its commercial relations with a service provider, Nordesosse, after two months’ contractual notice, as it had not obtained social label certification following an audit by Veritas. The Court of Cassation agreed with the trial judges, who noted that the purpose of the audit (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court considers that the First Instance Court of Paris may examine request introduced by a lessee against a lessor on the ground of significant imbalance and status of commercial lease (H&M)

101

H&M contested the behaviour of its lessor on the grounds of a fault during negotiations for the renewal of a commercial lease, but also on the grounds of the significant imbalance to which the lessor had attempted to subject it during those negotiations. The Commercial Court of Paris had (...)

Jean-Louis Fourgoux Notice : The French Supreme Court approves the sovereign analysis of the Paris Court of Appeal holding that the economic dependence of pharmaceutical company vis-à-vis its supplier required a respected notice without substantial change, for thirty-six months (Saint Gobain)

253

At a time when the extensive application of Article L. 442-6 I 5°) is being criticised for undermining the ability of businesses to adapt, this ruling confirms the essential protection of economic partners, including those outside the food distribution sector, so that greater fairness in (...)

Jean-Louis Fourgoux Contractual relationships: The French Supreme Court considers that the business relationship may cover contractual relationships and isolated orders in the business stream even if they are of low weight (Eclatec)

109

This is an important practical issue that the Court of Cassation seems to rule in favour of greater protection for evicted partners. One carrier (Marchal) had a two-year contract with a lighting company (Eclatec) and terminated it after 5 years and then stopped all commercial relations with (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that the succession of two providers of quality companies may in some cases constitute a unique relationship (Excell communication / Média international masculin)

111

The Court of Cassation seems to be shifting somewhat from a direction that had reduced the notion of an established commercial relationship to situations in which several companies succeed one another. The facts are fairly traditional. A communications agency provides design and publishing (...)

Jean-Louis Fourgoux Termination of business relationships: The French Supreme Court quashes judges who had not characterized the existence of a single commercial relationship following resumption of business (Expeditors / Egetra)

126

The question of the seniority of trade relations is becoming increasingly complex. The Court of Cassation has already suggested that each commercial relationship within a group should be treated independently in the absence of consultation between the various entities (Cass. com., 6 Oct. 2015, (...)

Jean-Louis Fourgoux Significant imbalance: The French Supreme Court approves judges who considered a mutual termination clause does not create imbalance and the notice period for a 19 years of trade relations could be set at 12 months, in the absence either of fault from the licensor suggesting the continuation of trade relations or fraud with a possible successor on the territory (Bénéteau / LGM Yachting)

169

The facts are fairly traditional, since they are between an exclusive dealer, Bénéteau, which since 1992 has been marketing the manufacturer’s range of boats under a contract, the last of which was not renewed for five years. The licensor, in order to do so, sent a notification within the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court refuses the Paris Court of Appeal exclusivity to hear appeal on Article L. 442-6 of the French Commercial Code in proceedings introduced before December 1st, 2009 (Autocaravnas Rimo / Ypo Camp Sublet)

106

This is a censorship judgment which was handed down by the Commercial Chamber in a case where the Lyon Court of Appeal had, in application of the principle of specialisation, refused to examine an appeal against a judgment handed down by the Lyon Commercial Court before the entry into force of (...)

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 (...)

Jean-Louis Fourgoux Non-competition clauses: The French Supreme Court approves the trial court to have considered that a franchisor could change the sign of its network without abuse and require the execution of a non-competition clause yet not covered by the exemption regulation (vertical agreements), but proportionate to the franchisor’s interest in preserving the existing network (International Esthétique)

181

The company International Esthétique operated a franchise network under the Epil center banner. The contracts contained a clause prohibiting the creation of a competing network with post-contractual effect. During the course of the contract, the franchisor had substituted its brand name with (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court considers that without proofs and if it can be objectively justified, a termination of commercial relationships can make a referral to the Competition Authority non receivable (E-Kanopi)

2723

This decision, which includes other rather questionable answers on the procedure before the Competition Authority (respect of the adversarial process...), was issued in a dispute between Google and an advertiser who contested the termination of its Adwords contract on the grounds that the (...)

Jean-Louis Fourgoux Sudden termination: The French Supreme Court departs an association from the scope of Article L 442-6 I 5 ° imposing granted its partner a written notice proportionate to the duration of trade relations on the grounds that the victim did not claim that it was a service provider (Institut technique de la Fédération française du bâtiment / Pixscène)

135

After an extensive interpretation of the notion of established commercial relationship, the Commercial Chamber of the Court of Cassation seems to want, with precautions, to give the impression of returning to a stricter and more literal application of the specific text. The facts of the case (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal refuses the sudden termination request of a distribution company not dominating the market considering that the absence of an agreement on the next commercial conditions authorized the parties to disengage prior notice as specified in the contract (Maisoning Eco Habitat / Castorama)

152

An installation company collaborating with Castorama contested the termination of business relations, accusing the distributor of abuse of economic dependence and brutal termination. The Court dismissed the allegation of anti-competitive practices on the grounds that many retailers, not just (...)

Jean-Louis Fourgoux Refusal to sell: The Paris Court of Appeal refuses the request of a distributor facing a refusal to sell from a dominant firm due to no potential restraint of competition (NGK Spark Plugs France / Sifam)

220

Very detailed decision on the delimitation of the market which leads to a dominant position of NGK but which nevertheless considers that the distributor who is the victim of a refusal to sell has alternative solutions and that NGK’s products are easily accessible to consumers on the French (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal refuses the request of an advertising agency, which after a competitive bidding has been excluded following a 3 months notice for 6 previous years of cooperation, pointing out that the dependance came from an agency’s "own deliberate choice" (Ailleurs Exactement / Grandvision)

141

The Court, in accordance with settled case-law, verifies whether the contractual period of notice, which is respected, is sufficient in view of the nature of the activity and the duration of the relationship, and dismisses the claim based on interprofessional use in the absence of evidence of (...)

Jean-Louis Fourgoux Terms of payment: The French Supreme Court considers that the penalties for delay provided in Article L. 441-6 of the Commercial Code may be subjected to a capitalisation, and states that the starting point should be based on either the T & C or on interprofessional agreement (Parquets Lemoine / Isoroy)

254

On the occasion of a rather banal dispute between a supplier of wood paneling (the company Isoroy) and a customer, the Commercial Chamber of the Court of Cassation took the opportunity to issue a landmark decision on late payment penalties, which was published. The Isoroy company had obtained (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal examines the termination of an insurance general agent contract and refuses the request due to the agent’s repeated breaches (BTSG –es qualité Courtage Rive Gauche / Compagnie Generali Assurances)

196

Without hesitation, the Court verifies whether the breaches are sufficiently serious to deprive the general agent of a notice period proportionate to the duration of the commercial relations in application of Article L 442-6 of the Commercial Code. In this case, the failure to pay the bonuses (...)

Jean-Louis Fourgoux Commission on business practices - Opinion : The French Commission on business practices (CEPC) issues two opinions on the application of articles L. 442-6 -I- 1 and 2 of the Commercial Code to pricing practices for services

302

In two notices published on 23 June 2015, the Trade Practices Review Commission had to rule, at the request of undertakings, on the compliance of pricing practices with the law. In one case, the Commission was questioned on the rate of remuneration practised by a business introducer, up to 50 (...)

Jean-Louis Fourgoux Significant imbalance : The French Supreme Court rejects the appeals formed by two retailers against the judgments that admitted the claim of the Minister for the economy and according to which the provisions contained in the referencing agreements created a significant imbalance in the rights and obligations of the parties within the meaning of Article L 442-6 of the Commercial code (Eurauchan, Provéra)

492

This is the first time that the High Court has ruled on the notion of significant imbalance since the controversial introduction of this text into the Commercial Code by the LME Act of 4 August 2008. The position adopted clearly supports the Paris Court of Appeal, a specialised court whose (...)

Jean-Louis Fourgoux Sudden termination : The French Supreme Court considers that the parties can arrange full or partial termination of business relations without violating the public order nature of Article L442-6 I 5 ° (Ikea / Green Sofa Dunkerque)

314

In this judgment, which is to be published in the Bulletin, the Commercial Chamber clarifies the conditions under which the termination of commercial relations may be contractualized and organized by the parties. Ikea has appealed to the Cour de Cassation against a decision of the Paris Court (...)

Jean-Louis Fourgoux, Marine Dantec Consumer protection : The Court of Justice of the European Union firmly recalls the scope of unfair commercial practices directive and condemns Belgium for keeping a law on the rebates ads and itinerant activities, incompatible with the directive (Commission / Belgium)

219

Unsurprisingly, the European Court of Justice (CJEU) recalled on 10 July that the rule it keeps hammering home, according to which Member States must not prohibit by operation of law practices not listed in Annex I of Directive 2005/29/EC, known as "unfair commercial practices" (Directive of 11 (...)

Jean-Louis Fourgoux Disparagement : The Paris Commercial Court condamns a company for disparagement towards another manufacturer and compensates the damage while refusing to order an expertise (Ethical Coffee / Nespresso)

187

Trib. com. Paris, 6 June 2014, Ethical Coffe c/ Nespresso, RG 2012077904 Ethical COFFEE which is a manufacturer of compatible capsules for NESPRESSO machines, put on the market as from 2010, considers itself victim of anti-competitive and unfair practices from NESTLE NESPRESSO, consisting in a (...)

Jean-Louis Fourgoux Sudden termination : The French Supreme Court rules that the duration of the commercial relation and the circumstances of the termination notice shall be taken into account when appreciating an adequate advance notice

149

In this case, a company has a commercial relationship with a business agent. The latter claims the status of business agent, and not obtaining satisfaction, sues the company for damages, including termination of the relationship. For its part, the company attributes the termination of the (...)

Jean-Louis Fourgoux Arbitration clause: The Paris Court of Appeal applies the case law on the applicability of arbitration clauses in the litigation related to sudden termination of business relations (Sept de Cœur)

184

CA Paris, March 18, 2014, RG no 12/13601, Sept de Coeur c/ Babybjörn In the present case, a French company, SARL Sept de Coeur, was entrusted in 1985 with the exclusive distribution in France of the childcare products of the Swedish company Babybjörn AB. Babybjörn AB terminated this contract on (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal condemns a distributor for having tried to make his suppliers give up the refunds to which he was condemned in a procedure committed by Minister of the Economy

206

The Court of Appeal considered that ’the Minister for the Economy rightly maintains that, in the present case, by attempting to subject its suppliers to an obligation to repay the sums which the Commercial Court had ordered it to repay to them by way of recovery of sums unduly paid, GALEC has (...)

Jean-Louis Fourgoux Significant imbalance: The CEPC considers that the various contracts between hoteliers and companies operating major hotel booking sites reveal clauses of restricting competition leading to invalidity (Booking)

219

The Commission d’examen des pratiques commerciales (CEPC) has been asked by several organisations representing hotel professionals to examine the conformity with competition law of various contracts concluded with the companies operating the main hotel reservation sites. After dealing with the (...)

Jean-Louis Fourgoux Significant imbalance: The Paris Court of Appeal considers that a clause causing a significant imbalance and contrary to Article L. 442-6-I-2 of the commercial code should be deemed unwritten (Netmakers/Antigone)

332

The dispute between a partnership of several lawyers and a supplier of photocopiers and a finance company with which it had entered into a long-term lease led the Paris Court of Appeal to hand down a very interesting ruling on 7 June 2013 regarding the rule in Article L. 442-6-I 2° of the (...)

Jean-Louis Fourgoux Economic dependence: The Versailles Court of Appeal puts aside the economic dependence for lack of proof of solution of replacement and the unbalanced character of a reimbursement schedule of unpaid debts (Alliance Healthcare Répartition/Vitale)

151

A dispute arose between a dispensing pharmacist and his drug supplier over the agreed commercial terms criticized because of the wholesaler’s demand for interest at the rate of 6% to reimburse unpaid invoices. The Versailles Court of Appeal dismissed the claim of abuse of the state of economic (...)

Jean-Louis Fourgoux International law: The CEPC provides a lesson in international law on the applicability of the law of restrictive practices by the relationship with foreign partners in two opinions useful to companies and judges the applicability of the law of restrictive practices in international contracts

175

Opinion No. 13-07 on late payment penalties was issued on 27 May 2013, following a referral from an international group which questioned the applicability of the late payment penalty rate in the context of an international contract. Article L. 441-6 of the French Commercial Code stipulates (...)

Jean-Louis Fourgoux Partial breach: The Paris Court of Appeal compensates the supplier for private label sofas sudden termination of business relations and doubles the notice but dismisses the complaint challenging unbalanced clause on the tariff negotiations (GSD/Ikea)

530

CA Paris, May 23, 2013, RG n° 12/01166 This very detailed ruling highlights the practical difficulties that may exist in the development of commercial relations between an industrialist and a major retailer. Green Sofa Dunkerque (GSD) has been supplying furniture to Ikea for the group’s various (...)

Jean-Louis Fourgoux Resale at a loss : The Court of Justice rules that the directive on unfair commercial practices precludes a national provision which provides a general prohibition on resale at a loss to consumer (Euronics Belgium/Kamera Express et Kamera Express Belgium)

1009

CJEU (ord.), 7 March 2013, Euronics Belgium CVBA v Kamera Express BV and Kamera Express Belgium BVBA, case C-343/12 The list of unfair commercial practices declared incompatible with the Directive of 11 May 2015 (2005/291EC) is extended, this time burying the general ban on resale below cost (...)

Jean-Louis Fourgoux Action of the Minister: The Court of cassation states that the Minister of Economy may intervene before the civil courts and, without being at the initiative of the procedure, be considered as a party pursuant to Art. L 442-6 C. com. (Carrefour)

112

http://legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000026742676&fastReqId=403567882&fastPos=1" target="_blank">Cass. Com, December 4, 2012, No. 11-21743. The liquidator of a supplier to the mass retail sector had initiated proceedings for abrupt (...)

Jean-Louis Fourgoux Break in trade relations: The Court of cassation holds that an important decrease of volume can be considered as not being a sudden break of commercial relationships, as long as it is the consequence of an economic crisis (CMI/Caterpillar)

204

Cass.com, February 12, 2013, No. 12-11.709. The Court of Cassation is starting to examine the first cases of termination of commercial relations following the economic crisis of 2008 and takes the opportunity to approve the judges on the merits who maintain a very pragmatic approach. The issue (...)

Jean-Louis Fourgoux Sudden termination: The Court of cassation said that any business relationship can not be eternal, if a prior notice of non-renewal at the end of the contract is given, then a party is entitled to stop the relation (STPM/Bosch)

144

"Cass. com., November 20, 2012, No. 11-22660." A company specialising in the repair of household appliances (STPM) has been providing services for Bosch since 1986, first without a written contract, then through a succession of contracts, initially for an indefinite period and then for a fixed (...)

Jean-Louis Fourgoux Sudden termination: The Cour de cassation validates the conviction of a distributor to repair the sudden termination of commercial relations and approve the judges who pronounced the nullity of contracts trade cooperation charging disproportionate amounts (Carrefour/Jean-Marc Valensi)

337

Cass. com, Sept. 11, 2012, Carrefour c/ Jean-Marc Valensi, N° 11/14620 Delivered on the same day as another judgment concerning the same major retailer (Cass. com., n° 11/14608, Salins du midi hereafter), the Commercial Chamber of the Court of Cassation is moving forward step by step in (...)

Jean-Louis Fourgoux Sudden termination: The Cour de cassation validates the conviction of a distributor to repair a partial tear followed by a final rupture of commercial relations with their suppliers and fully repair the damage resulting from billing for services to disproportionate amounts (Carrefour Interdis/Compagnie des Salins)

206

Cass. com. September 11, 2012, Carrefour Interdis v/ Compagnie des Salins, n° 11/14608 The ruling handed down on 11 September 2012 by the Chamber of Commerce can only strengthen the suppliers of the mass distribution sector who, once evicted, take advantage of the legal recourse to obtain the (...)

Jean-Louis Fourgoux Specialized court of appeal: The Paris Court of Appeal retains its jurisdiction to rule on an appeal against a judgment of a Commercial Court entered before the entry into force of the specialization of courts (La Flèche/Sibell)

174

The specialisation instituted, for Article L. 442-6 of the Commercial Code alone, by the Economic Modernisation Act of 4 August 2008, has not been much criticised in itself. On the other hand, its too narrow implementation (8 Tribunals and a single Court of Appeal) decided by Decree No. (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Appeal of Versailles states that the maintain of the same provider under the same economic conditions for the promotion of trademarks acquired from a competitor should be considered as the producer has continued the initial relationship established with the previous owner of the trademark (Agence Conseil 3 P Pred/Procter & Gamble Pharmaceuticals France)

207

In a very detailed judgment, the Versailles Court of Appeal applied an extensive analysis of the concept of an established relationship, considering that a commercial relationship initially entered into by 3 P Pred, a company responsible for commercial prospecting among dentists, with Sanofi (...)

Jean-Louis Fourgoux Sudden termination: The Paris Court of Appeal declares the selective distribution agreements prohibiting the use of a website are contrary to Article 101 § 1 and condemns the perfumers to repair the damage caused to distributor unfairly evicted under the brutal rupture of commercial relations (News Parfums/Parfums Christian Dior)

218

As many disputes relating to an allegedly brutal termination are legion, those in which the former prohibition of abuse of the relationship of dependence set out in point 2 b of the same article L. 442-6-I is invoked are rare. It is true that these two rules are used with unequal success, as (...)

Jean-Louis Fourgoux Significant imbalance: The Commercial Court of Bobigny holds that the clauses contained in a supply agreement whereby the distributor could obtain the reduced sale price if tariffs decrease characterize a significant imbalance and therefore the clauses are null and void (Minister of the Economy/Darty)

346

This is a new important stage in the war between the Minister of Economy and the major distributors, which had given rise to some media hype since the Minister of Economy, at the time, had announced that he had taken legal action against nine distribution companies, including Darty. A first (...)

Jean-Louis Fourgoux Centrale d’achats – Référencement: The Paris Court of Appeal cancels the referencing agreement provision requiring the payment of an amount which is not accompanied by any quantitative commitment and which does not represent charges for specific serviced rendered (Aprest/Brake France Service)

426

The Paris Court of Appeal has just handed down one of the first landmark decisions on listing premiums in the contract catering sector. The contract provided that "in return for the priority given to suppliers and the services provided by Aprest in setting up supplies", the supplier would pay a (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Appeal of Colmar holds that the non-renewal announced to a contractor triggers the notice period within the meaning of Art. L. 442-6, although negotiations continued for an eventual renewal (Bellenni & Bourdillon Successeurs/Brasserie Kronenbourg)

130

A distributor of Kronenbourg beers in the French Overseas Departments and Territories considered himself the victim of a brutal break-up by the Kronenbourg Company. He claimed that despite a letter of June 2004, in which the subsidiary of his supplier implied that the contract would not be (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Appeal of Bordeaux holds that a supplier providing after discussion a notice period of 16 months, before breaking definitely an exclusive distribution agreement of over 24 years, while at the same time negotiating a possible renewal has not terminated wrongfully the business relationship (Santa Maria AB, Santa Maria Belgium, Bruce Foods Europe/Sélection Diffusion Vente)

347

The judgment of the Court of Bordeaux is significant because it completely reverses the solution adopted by the first judges and makes a detailed assessment of the parties’ conduct in order to rule out any abrupt break in commercial relations. The case brought against SDV: exclusive distributor (...)

Jean-Louis Fourgoux Term of payment: The French Parliament passes an Act relating to the simplification of law and easing administrative procedures provides, conditionally, a possible waiver extension to maximum period of payment (45/60 days) for 3 more years

216

Law No. 2012-387 of 22 March 2012 on the simplification of the law and the simplification of administrative procedures, JORF No. 71 of 23 March 2012, p. 5226. The framework for payment periods was strictly regulated by the LME law, which was intended to lead to a reduction, by 1 January 2012 (...)

Jean-Louis Fourgoux Significant imbalance: The Commercial Court of Créteil, by two judgments of the same day, declares inadmissible an action for termination introduced by the Minister of the Economy who has not justified information given to the contracting parties of the proceedings for nullity of the contracts initially incurred under the significant imbalance (Minister of the Economy/Système U and Minister of the Economy/GALEC)

455

As is well known, the autonomous procedure under Article L 442-6 of the Commercial Code still gives rise to considerable debate and the summonses issued by the Minister against distributors trigger an armada of challenges. While some courts allow the applications (see T. com. Lille, 6 January (...)

Jean-Louis Fourgoux Significant imbalance: The Commercial Court of Paris ordered a distributor to stop requiring its suppliers repayment of amounts to which he was convicted by a previous lawsuit by the Minister of the Economy (Minister of the Economy/GALEC)

422

23,313,681 for transactions considered to correspond to advantages without consideration (Versailles, 29 October 2009, Minister of the Economy v. GALEC, Revue Lamy de la Concurrence, 2010, No. 22; the Versailles Court of Appeal submits to the case law of the Court of Cassation), he intends not (...)

Jean-Louis Fourgoux Undue adavantage: The Court of Cassation, by two judgments on the same day, grants applications by the Minister of the Economy, approves the referral to the commercial courts where the damage was suffered by the victim and censors the judges who had refused to grant a request for restitution of undue advantage on the grounds that the author of restrictive practices had not received payment (Minister of the Economy/GALEC and Minister of the Economy/Carrefour)

445

Cass. com, 18 October 2011, Minister of the Economy v/ GALEC, No. 10-28005 Cass. com. 18 October 2011, Minister of the Economy c/ Carrefour, n° 10-15296 The first judgment (No. 10-28005) does not merely decide a procedural question relating to the competent court; it also highlights the nature (...)

Jean-Louis Fourgoux Action of the Minister of the Economy: The Paris Court of Appeal declares admissible the action of the Minister of the Economy, cancels 16 clauses of a major retailer contract, orders sums restitution to suppliers and confirms the imposition of a civil fine 2 millions of Euros (Carrefour Hypermarchés/Minister of the Economy)

280

As part of a national survey, the CFRB reviewed the contracts entered into in fiscal year 2006 between the retail groups and their suppliers. During this survey, it focused in particular on the partnership agreements entered into between the Carrefour group and sixteen of its suppliers, and (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation agrees with the trial court that held a broadcast producer could not require a notice over the period between the end of the season and the date of the new fall schedule (Paris modes éditions/A Prime Group)

203

Cass. com, January 31, 2012, Paris modes éditions c/ A Prime Group, n° 11-12899 A broadcaster that edits a television channel had entrusted the production of programs to two companies. It notified them that the programmes would no longer be broadcast in the next season, due to falling audiences (...)

Jean-Louis Fourgoux Action of the Minister of the Economy: The Court of Appeal of Nîmes sanctions, at the Minister of the Economy request, two retailers for invoicing services that were not rendered, in violation of Art. L. 442-6-I-1° of the Commerce code (SO SU MAR Centre Leclerc/Minister of the Economy ; Auzon-Ventoux/Minister of the Economy)

226

The facts of these two cases are relatively old: in 2005 and 2006, DGCCRF investigators carried out checks on commercial cooperation contracts in several Leclerc supermarkets and hypermarkets. They drew up a report from which it emerged that many commercial cooperation services, in particular (...)

Jean-Louis Fourgoux Discriminatory pricing – Antitrust: The Paris Court of Appeal notes the repeal of price discrimination in Article L 442-6 of the Commercial code, censors a Court having applied but this text, examines the discriminatory practices of an airline under the angle of anticompetitive practices and orders compensation for damage (Compagnie Emirates/Chadep and British Airways)

509

A travel agency found that, under strictly equivalent conditions, the ticket prices of the airlines British Airways and Emirates from London were approximately 400 euros lower than those offered by those two airlines from Paris. At the time, the agency had booked air tickets from London for (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation gives priority to the delay of notice provided by the framework law on the internal transport (LOTI) about the notice proportionate to the length of the commercial relationships required by the Article L. 442-6 I-5° of the Commercial Code (Gefco/Frigo 7-Locatex)

552

Cass. com, October 4, 2011, Gefco c/ Frigo 7-Locatex, n° 10-20240 It is by a ruling of principle that the Court of Cassation dismisses the application of Article L. 442-6 of the Commercial Code in favour of the period of notice provided for in the standard transport subcontracting contract. (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation approves the trial judges that exclude the character established of the relationship within the meaning of Article L. 442-6 I-5° of the French Commercial Code provided the relationships are based on tenders (YF, Habitat France)

405

Cass. com, 20 September 2011, YF c/ Habitat France, n° 10-15750 The Habitat distribution group has had its catalogue formatted and printed for many years by a specialist company, outside the strict contractual framework. Following a reorganisation, Habitat informed its publisher of its wish to (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation states again on the article L. 442-6-I-5° of the Code of Commerce and reverses the decision of the Court of Appeal who had insisted on the independence of the contracts (Racer/Décathlon)

424

Cass. com, September 6, 2011, Racer v. Decathlon, No. 10-30679 The supplier of a large specialised retailer after complaining of a significant drop in orders was deregistered after six months’ notice. He then brought an action for damages against his customer, whom he claimed had abruptly (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Court of Cassation states that a third party to the business relationship may invoke the sudden termination of a business relationship if that has caused injury to him (Lesaffre)

450

Cass. com, 6 September 2011, Lesaffre v/ Commercial Company of Siam and Denis frères, No. 10-11975 A company specializing in the manufacture and sale of yeast had established relations with a French import-export company for the distribution of its products in Thailand through a local (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships - Commercial cooperation: The Paris Court of Appeal condemns a distributor for sudden termination of commercial relationships and pronounces the nullity of commercial cooperation agreements (Jean-Marc Valensi/Carcoop France et Carrefour)

1037

Jean-Marc Valensi, a jewellery manufacturing company, has had regular commercial relations with the Carrefour-Promodes group since 1990 and has participated in the development of the "Manèges à Bijoux" in Carrefour stores. In February 2003, the Carrefour group informed Jean-Marc Valensi of its (...)

Jean-Louis Fourgoux Specialisation of courts: The Council of State rejects appeals formed against the decree instituting the specialisation of courts by refusing to ask a priority question of constitutionality and notably validates the decree with regard to article 6 of ECHR (Ordre des avocats au barreau de Lyon)

480

CE, 10 June 2011, Ordre des avocats au barreau de Lyon e.a., n° 335584, 335593 and 335595 The Bar Associations of Lyon, Strasbourg, Toulouse, Lille, Rennes, Colmar and Mulhouse have asked the Council of State to annul for excess of power Decree No. 2009-1384 of 11 November 2009 relating to the (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal condemns a distributor for sudden termination of established relationships and pronounces the nullity of commercial cooperation agreements (Accorequip and Accor Paris/Minister of the Economy and Transfer)

531

CA Paris, 23.03.11, G.I.E. Accorequip and Accor Paris v. Minister of the Economy and Transfer, 07/07337 The Paris Court of Appeal considers that the use of a call for tenders may constitute a sham of competition and reveal a discriminatory practice intended to conceal a sudden break in (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal decides that the failure excluding notice requires a serious and urgent situation to justify immediate termination (Cabinet Cartier/Immo De France)

733

A firm of property administrators had been managing a property complex in Marseille for 30 years, following various contracts. The owner, due to an overall overspending of more than 25% over the validated budget, expressed his strong dissatisfaction and asked the manager to make a claim. (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal confirms a ruling granting advance notice of three months to an audiovisual producer and considers that the damage is the loss of gross margin and not the loss of margin about variable costs (Equidia/25 Mars Production)

1394

This judgment is part of an extensive interpretation of Article L. 442-6-I-5° since it allows its application in a dispute between an audiovisual production company and a television channel devoted to horse racing (EQUIDIA). While the audiovisual producer had been entrusted with various (...)

Jean-Louis Fourgoux Termination of commercial relationships: The Paris Court of Appeal rules that a distributor may be held liable for removing a portion of trade flows and by terminating any commercial relations with a supplier and re-evaluates the services rendered by the distributor considering them as disproportionate, without pronouncing the invalidity of the agreements (Compagnie des Salins du Midi et des Salines de l’Est/Carrefour)

1110

In its ruling of January 19, 2011, the Paris Court of Appeals heavily sanctioned a distributor whose commercial relations with one of its suppliers had deteriorated to the point of total breakdown. Since 1974, Compagnie des Salins du Midi had been supplying at least the PROMODES hypermarkets, (...)

Jean-Louis Fourgoux Significant imbalance: The French Constitutional Court rules that the significant imbalance in the parties’ rights and obligations, prohibited by Article L442-6 I-2 of the Commercial Code respects the principle of legality of criminal offences and penalties (Darty et Fils)

1288

This decision was eagerly awaited, and not only by lawyers practicing distribution law. Its starting point dates back to October 2009, when the Minister of the Economy initiated eight proceedings before various commercial courts against distributors to have this or that clause in the contracts (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal rules that a corner shop agreement constitutes the support of commercial relationship and could be terminated only in accordance with Art. L. 442-6-I 5 ° (Le Bon Marché/Villeroy et Boch)

991

The company Villeroy et Boch had a stand contract and operated a sales area within Le Bon Marché which, after 14 years, was subject to a contractual renewal providing for 6 months’ notice in the event of termination. A year and a half after this renewal, Le Bon Marché terminated this agreement due (...)

Jean-Louis Fourgoux Resale at a loss: The French Constitutional Court authorizes the French legislator, in order to improve efficiency, to decline the application of the retroactivity «in mitius» of the new law on resale at a loss as the repression is inhere in previous system (Jean-Marc P)

1245

This important decision of the Constitutional Council underlines the contributions of the "Priority Constitutionality Question" (PQPC) in all areas of law, including economic law. In this case, on 17 June 2010, the Criminal Court of Tours, in proceedings relating to the resale of a product at a (...)

Jean-Louis Fourgoux Sudden termination of commerial relationships: The Paris Court of Appeal rules that in case of jurisdiction clause provided for the competence of a foreign court, the summary trial judge remains competent only of it exists a connecting factor between the purpose of the measure and the judge who orders the measure (SBMM/Ingrid Kränzle)

1179

As in the case decided on 28 October by the First Chamber of the Paris Court of Appeal (see above), the panel ruling in summary proceedings proceeded to a strict interpretation of EC Regulation 44/2001 in order to exclude the jurisdiction of the judge hearing summary proceedings in a dispute (...)

Jean-Louis Fourgoux Sudden termination of commercial relationships: The Paris Court of Appeal rules that, concerning international agreements, the jurisdiction clause, provided for any disputes arising between the parties, shall apply to the termination of contractual relations but also to abuse of economic dependence (Mondo Uomo/Staff International)

1098

This decision underlines the will of the Paris Court of Appeal to give the litigation of the abrupt termination of commercial relations a contractual qualification and thus to move away from the approach of the Commercial Chamber of the Court of Cassation, which advocates the qualification of a (...)

Dominique Thesmar, Gilbert Parleani, Jean-Bertrand Drummen, Jean-Louis Fourgoux, Laurence Idot, Martine Behar-Touchais, Muriel Chagny, Valérie Michel Amsellem, Yann Utzschneider Colloque: Restrictive trade practices under the LME Act (AFEC, Paris, 6th October 2008)

4836

Introductory remarks Laurence Idot Professor, Universtité Paris II, European College Director of the Scientific Committee of Concurrences Madam President, Ladies and Gentlemen, Dear friends, As the afternoon is busy, I will not go into the substance of the colloquium, but on behalf of AFEC (...)

Alain Ménéménis, Arnaud Nuyts, Catherine Kessedjian, Catherine Prieto, Christophe Lapp, Claire Favre, Denis Mazeaud, Emmanuelle Claudel, Frédéric Jenny, Hélène Gaudemet-Tallon, Jean-Louis Fourgoux, Jean-Marc Kiviatkowski, Joelle Simon, Laurence Idot, Louis Vogel, Marie-Laure Niboyet, Michael Wilderspin, Rainer Becker, Soraya Amrani-Mekki, Yves Gaudemet Conference: The EC White Book on competition private enforcement (Paris, 13 06 2008)

7064

Alors que dans le système de mise en oeuvre des articles 81 et 82 CE issu du règlement n° 17/62, il était usuel de distinguer l’application de ces textes, d’une part, par la Commission, d’autre part, par les autorités et juridictions nationales, ce qui conduisait à privilégier un critère formel fondé (...)

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