Nicolas Éréséo

University of Strasbourg, Centre de Droit de l’Entreprise (Montpellier)
Lecturer

Nicolas Éréséo has been a lecturer at the University of Strasbourg since 2008. After having completed a Master in commercial contract law at the law faculty of Montpellier in 2001, Mr Éréséo wrote a doctoral thesis concerning « l’exclusivité contractuelle » - exclusive rights in contracts » - under the supervision of Professor Didier Ferrier. He defended the thesis in December 2007, and rapidly published it with Litec in the series entitled : Bibliothèque du droit de l’entreprise (2008). Nicolas Ereseo specializes in distribution law, competition law and consumer protection. He teaches at the University of Strasbourg Law faculty but also at the CEIPI (Centre for International Intellectual Property Studies) and the IEP (Institute of Political Studies) as well as in various universities abroad : Holy Spirit University of Kaslik (Lebanon), University of Damas (Syria), etc. Moreover, he is an associate of the « Fédération Nationale pour le Droit de l’Entreprise » (Dir. Prof. J. Raynard) for which he teaches at the Masters level (Master II, Diplôme de juriste conseil en entreprise - Diploma in corporate law). Nicolas Éréséo takes part in conferences and regularly publishes articles. Since 2009 he has been collaborating on the Code de Commerce Litec (Dir. Prof. Ph. Pétel), and, as of 2010, is writing a column entitled “Distribution” in the review “Concurrences” with Didier Ferrier and Dominique Ferré.

Linked author

University Paris XIII Nord

Articles

41497 Review

Nicolas Éréséo Selective distribution: The Paris Court of Appeal dismisses the case against a car manufacturer on the grounds that it was not established that it had made the approval of its repairers subject to quantitative criteria (Garage Richard Drevet / Hyundai Motor France)

36

The reorganisation of selective distribution networks has been at the heart of the judicial news for several years, mainly in the automotive sector where the non-renewal of a contract is generally badly experienced by the distributor or repairer. The latter rarely hesitates to take legal action (...)

Nicolas Éréséo Franchising: The Orléans Court of Appeal rules that the loss caused by the violation of the “Doubin“ law is only compensable if the victim provides the evidence of a lack of consent (Ada)

38

A franchisor in the motor vehicle rental industry is proposing to a former general insurance agent to take over a franchised business in Orléans. The pre-contractual disclosure document (PID) is submitted on April 2, 2012, training is provided in April, the franchise agreement is signed on June (...)

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

357

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

Nicolas Éréséo Franchise: The Paris Court of Appeal rules that a post-contractual non-compete clause applicable for one year within a radius of 150 kilometres around the previously operated point of sale is disproportionate (Educinvest / Sud-Ouest Campus)

152

Rendered on referral after cassation (Cass. com., 28 Nov. 2018, n° 17-18.619), the judgment of the Paris Court of Appeal of 13 December 2019 had to rule, inter alia, on the validity of a post-contractual non-competition clause provided for by a franchisor in the education sector. Under two (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal rules that the company of the approved distributor whose control has been taken over by another distributor distributing a competing product does no longer comply with the contract signed with the supplier (Berthet / Blum France)

135

Most distribution contracts are concluded intuitu personae where the parties usually agree that the distributor will have to obtain the supplier’s consent before being able to dispose of its contractual position, shares or goodwill. Clauses of this type are normally to be interpreted strictly, (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal overturns its jurisprudence and rules that the refusal of approval is, in principle, a unilateral act and does not fall under the law of cartels (Mercedes-Benz France / Garage de Bretagne)

83

The decision handed down on 27 November 2019 by the Paris Court of Appeal will not fail to interest specialists in distribution law in that it returns to the much-discussed qualification of refusal of authorisation and brings about a surprising reversal of case law. Let us go back a few years (...)

Nicolas Éréséo Exclusive distribution: The Paris Court of Appeal rules that the provisions of the Commercial Code relating to price transparency and unfair commercial practices apply to the automotive distribution sector (Mazda / Montchapet Automobiles)

70

The judgment under comment deserves particular attention in that it illustrates a worrying phenomenon: the increasing pollution of the entire distribution law by provisions which were originally intended for the large-scale distribution sector alone. In the present case, two companies (...)

Nicolas Éréséo Exclusive distribution: The Paris Court of Appeal rules that the supplier is not required to favour the retraining of the concessionaire and that the provisions of the French Commercial Code relating to price transparency and unfair commercial practices apply to the automotive sector (Monchapet Automobiles and Est Automobiles / Mazda Automobiles)

91

The ruling handed down on 6 November 2019 by the Paris Court of Appeal deserves particular attention in that it illustrates a worrying phenomenon: the increasing pollution of the entire distribution law by provisions that were initially intended for the large-scale distribution sector alone. (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal rules that a concessionaire may invoke an implicit non compete obligation at the expense of the grantor (Aéroports de Paris / La Conciergerie Paris Airports)

92

The judgment under comment does not concern distribution contracts but will be of interest to all professionals who practice them in that it deals with well-known subjects such as the possibility of invoking an implicit exclusivity or the conditions of application of the so-called "Doubin" law. (...)

Nicolas Éréséo Excessive prices: The Polynesian Competition Authority rules that the refrigeration service is inherent to the sale of beverages and sanctions its billing by a distributor as an abuse of a dominant position (Wane)

77

French Polynesia is an overseas collectivity (COM) made up of five archipelagos and 118 islands, and enjoys a large degree of autonomy from mainland France. Among other specificities, it is only very recently that Polynesia abandoned the model of an administered economy in favour of a more (...)

Nicolas Éréséo Exclusive distribution: The Paris Court of Appeal rules that an exclusive supply clause represents a sufficient counterpart to an advance paid by rebate (Wikidil / Olivier Bertrand Distribution)

158

A company operating a restaurant enters into a 5-year contract with a drinks wholesaler under which the restaurant operator undertakes to obtain supplies exclusively from the wholesaler in return for the payment of an advance on discount of 5,000 euros. Less than a year later, the wholesaler (...)

Nicolas Éréséo Franchise: The Paris Court of Appeal rules that the obligation of the franchisee to transmit the file of his customers to the franchisor is not an unfair practice (Déco Club / Carré blanc)

73

The obligation on the distributor to communicate its customer file to the supplier is multiplied in distribution contracts, particularly in franchise agreements, as shown in the judgment under comment. In the present case, a company specialising in the retail trade in furniture and household (...)

Nicolas Éréséo Selective distribution: The French Competition Authority rejects a complaint against a car manufacturer for lack of evidence and confirms the freedom to reorganize selective distribution networks (Hyundai)

135

In a case brought by three companies operating motor vehicle garages, the Competition Authority answered the question whether the Korean manufacturer Hyundai should be sanctioned for an anti-competitive cartel due to a policy of discriminatory selection of its authorised repairers. Victims in (...)

Nicolas Éréséo Reform: The French government reforms by ordinance the title IV of book IV of the French Commercial Code regarding transparency and antitcompetitive practices (Egalim law)

224

In application of the EGALIM law of 30 October 2018 (Lettre distr. nov. 2018, p. 12, obs. T. Leichnig), the order of 24 April 2019 gives rise to the most important reform known by Title IV of Book IV of the Commercial Code since the codification in 2000 and after multiple legislative amendments (...)

Nicolas Éréséo Selective distribution: The French Supreme Court rules that the duty of good faith does not require, from the head of a distribution network, the determination and implementation of a selection process guaranteeing the absence of discrimination (FCA France / Catia automobiles)

225

Do distributors who are victims of refusal of authorisation still have an interest in bringing an action before the courts in order to invoke a violation of competition law? This is doubtful in view of the developments in case law in recent years (on the whole issue, see N. Ferrier, La liberté (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal sanctions the illegal supply of spare parts to a non-authorised reseller (MA Pièces Auto Bretagne / Automobiles Peugeot)

125

An authorised distributor of spare parts contested in summary proceedings the termination for fault notified to him by the supplier and requested the continuation of the relationship, citing the need to prevent imminent damage and to stop a manifestly unlawful disturbance. Infirming the (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal sanctions the illicit supply of an unauthorized seller and reinforces the freedom for the supplier to reorganize its network (Automobiles Peugeot / MA Pièces Auto Bretagne ; SIAC / Renault)

279

The freedoms currently enjoyed by the promoters of selective distribution networks have been affirmed in case law, as confirmed by two decisions handed down on the same day by the Paris Court of Appeal. Both decisions concerned distribution contracts in the motor vehicle sector which at the (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal rules that the refusal of approval is not a unilateral act and falls under the law of cartels (Palau / Mazda)

150

The regime applicable to qualitative selective distribution has been continuously liberalised in recent years. Abandoning the principle which required suppliers to approve any distributor meeting the selection criteria, case law has finally enshrined the right to select them on a discretionary (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal rules that the refusal to grant authorisation as a distributor of a selective distribution network is not a unilateral act and falls under the law of cartels (Automobiles Palau / Mazda Automobiles France)

156

The regime applicable to qualitative selective distribution has been continuously liberalised in recent years. Abandoning the principle which required suppliers to approve any distributor meeting the selection criteria, case law has finally enshrined the right to select them on a discretionary (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal dismisses the appeal brought against a non-authorised reseller who has been legally supplied (LIDL / Puma France)

207

A manufacturer in the sports and leisure goods sector sues a supermarket chain for infringement of its selective distribution network and acts of unfair competition. In response, the defendant produced 73 invoices showing third-party supply to the network. The Court concluded that there was no (...)

Nicolas Éréséo Significant imbalance: The Constitutional Council rules that price control is not contrary to the Constitution (Interdis, Carrefour hypermarchés, Carrefour administratif France, CSF et Carrefour Proximité France)

130

Cet article a fait l’objet d’une première publication dans la Lettre de la distribution publiée par le Centre du Droit de l’Entreprise de l’Université de Montpellier. The decision under comment was particularly eagerly awaited. The Constitutional Council was once again called upon to rule on the (...)

Nicolas Éréséo Non-compete obligation: The Paris Court of Appeal rules that Article L. 341-2 of the French Commercial Code applies immediately to present contracts once it enters into force (Era / Vision Méditerranée immobilier)

104

Created by the Macron law of 6 August 2015, the new Title IV of Book III C. com. includes two provisions applicable to "commercial distribution networks". The first requires a common term when several contracts are involved in the operation of a retail shop and provides for indivisibility (...)

Nicolas Éréséo Change of control: The French Competition Authority admits the possibility for the franchisor to transfer its network (Take-away and home delivery of pizzas)

98

It is now a given that a franchisor is perfectly free to reorganize his network, i.e. to modify its density (Cass. com., 7 Jan. 2014, No. 12-17154, Letter distributed Feb. 2014, obs. N. Eréséo), the sign (CA Paris, 5 Feb. 2014, n° 12/18858, Letter distributed March 2014, obs. N. Eréséo) and even (...)

Nicolas Éréséo Active sales: The French Supreme Court rules that a member of a selective distribution system must be able to compete with another member of the network by concluding a business finder contract with a company located near the latter (4GH / Daimler et Mercedes)

279

Competition law makes a clear distinction between selective and exclusive distribution when it comes to determining the conditions under which such systems can benefit from a block exemption. Taking up solutions acquired over many years, Regulation (EU) No 330-2010 now lays down the following (...)

Nicolas Éréséo Obligation to provide pre-contractual information: The Paris Court of Appeal considers that the distributor’s written acknowledgment that a pre-contractual information document was given does not provide the evidence of compliance with the obligations placed on its charge by the article L. 330-3 of the French Commercial Code (De Neuville)

148

For any obligation to provide information, it is accepted that it is up to the debtor to prove that he has fulfilled his obligations, in accordance with case law that has been well established for some twenty years and is now taken up by the legislature (Cass. civ. 1ère, 9 Dec. 1997, No. (...)

Nicolas Éréséo Compliance of a contract: The French Review Commission on Trade Practices renders an opinion on the exclusive supply of pharmacies by wholesale distributors (Grossistes répartiteurs)

204

The CEPC is increasingly referred to the CEPC by legal professionals, as evidenced by Opinion 18-3 issued on the initiative of a pharmacist’s lawyer. The commission ruled on the conformity with the law and, in particular, with articles L. 442-6, I, 1° and 2° C. com. of the "commercial (...)

Nicolas Éréséo Refusal of authorisation: The Paris Commercial Court rules that refusals to approve distributors who satisfy the qualitative criteria are not enough to bring proof of unlawful practice when their number enables to preclude that they are isolated cases not forming part of a systematic conduct (Garage de Bretagne / Mercedes-Benz France)

219

Until relatively recently, it was accepted that a supplier having set up a qualitative selective distribution system had to select any distributor meeting the selection criteria in order for its system to escape Article 101(1) TFEU, in accordance with the principles adopted by the Court of (...)

Nicolas Éréséo Exclusive supply clause: The French Supreme Court dedicates the validity of a supply clause indicating a third party as beneficiary of the exclusive right to supply the distributor (CDFI / BTB)

264

Most distribution contracts contain clauses which restrict the freedom of purchase of distributors by depriving them of the possibility to acquire competing products and/or by requiring that the contract products be acquired exclusively from a specific person. The contract usually designates (...)

Nicolas Éréséo Parallel trade: The Paris Court of Appeals rules that a supplier operating outside the network can undercut prices without being liable for unfair competition (JPL Café Coton c/ BLT Développement)

375

The dispute between JPL Café Coton, a company engaged in the wholesale and retail trade of textile products, and BLT Développement, a company specialising in the sale of products online, has just been settled by a judgment of 15 November 2017 handed down by the Paris Court of Appeal after a first (...)

Nicolas Éréséo Territories not covered by the selective distribution: The Paris Court of Appeals rules that prohibition of resale can apply in territories not covered by the selective distribution (ACA Fiduciaire / Guerlain, LVMH et Christian Dior)

177

The promoters of selective distribution networks must guarantee their watertightness by stipulating that distributors are prohibited from passing on products to unauthorised operators. The clause is naturally exempted from the prohibition on cartels in that it is part of the very essence of (...)

Nicolas Éréséo Jurisdiction of French courts: The French Supreme Court considers that French Courts have jurisdiction to hear action against resale of products operated on electronic platforms directed to foreign countries (Concurrence c/ Samsung)

162

The litigation currently opposing Samsung and Competition on the application of the clause prohibiting the latter from using electronic platforms has given the Court of Cassation the opportunity to review the rules for determining the competent court when damage is caused by resales from (...)

Nicolas Éréséo Refusal to sale: The Paris Court of Appeal condemns a supplier for refusal to sale holding that there were both a cartel and an abuse of dominant position (NGK Spark Plugs France c/ Société de commercialisation de produits industriels)

383

The liberal trend currently enjoyed by the promoters of selective distribution networks does not allow for all types of behaviour, as illustrated by the conviction for refusal to sell decided against a manufacturer by the Paris Court of Appeal on 5 July 2017 (see Lettre distribution, Sept. (...)

Nicolas Éréséo Unilateral termination: The French Supreme Court enshrines the possibility for the franchisor to stop a relation during the probationary period agreed in writing (Dafy Moto c/ Motoshop)

150

"The situation of any franchisee is by nature precarious". This formula, hammered like a slogan by a remarkable series of judgments handed down by the Versailles Court of Appeal, clearly underlines the risks inherent in the adventure of franchising (CA Versailles 24 Jan. 2017 (6 judgments), RG (...)

Nicolas Éréséo Resale by an unauthorized e-retailer: The Paris Court of Appeal confirms the condemnation of an unauthorized e-retailer for having resold luxury products outside of the selective distribution network (Brandalley / L’Oréal Produits de Luxe France)

468

The development of online commerce poses a threat to selective distribution systems, which case law has been making vulnerable for nearly 30 years by establishing a principle of lawfulness of offline resale (Cass. com., 10 Jan. 1989, note A). Bénabent, D. 1989, p. 427 - Cass. com. 27 Oct. 1992 (...)

Nicolas Éréséo Selective distribution : The Paris Court of Appeal considers that a distributor early breaching its agreement to sell competitive products violates a non-compete obligation limited to the duration of the contract, notwithstanding the effective commercialisation and its duration after the end of the relationship (Needle Concept)

167

A company that has patented a flexible medical needle entrusts its exclusive distribution to a partner under a contract signed on September 27, 2009 for a period of three years renewable by tacit agreement. Complaining, on the one hand, about the existence of numerous competing products on the (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal rules that a car dealer may terminate and refuse to admit in its network an agent following a broader network reorganisation implemented by the manufacturer (Auto Diffusion)

168

Anticipating the entry into force of a new European exemption regulation, a car manufacturer gives notice of termination of contracts with dealers with 24 months plus one week to give them time to inform the agents with whom they have contracted. A dealer notifies an agent of the termination (...)

Nicolas Éréséo Franchise : The French Supreme Court and courts adjudicating on the substance specify the scope of pre-contractual obligation of information of some suppliers (CP Création ; France Editeurs ; Cash Converters Europe ; France Boissons Nord ; Sodecob ; Distribution Casino France)

146

Introduced nearly 30 years ago by the so-called "Doubin" law of 31 December 1989, the obligation of pre-contractual information provided for today by Article L. 330-3 of the French Commercial Code has given rise to recurrent disputes which case law is struggling to contain. In the franchise (...)

Nicolas Éréséo Franchising: The Paris and the Versailles Courts of Appeals assess the substantiality of the know-how in the franchising agreement (Catherine M. épouse K / Speed Rabit Pizza et CF and CO / Pays Basque Evasion)

150

Recognizing the originality of the franchise agreement in relation to other distribution agreements presupposes a strict appreciation of the notion of know-how. The favourable treatment that competition law reserves to franchising is moreover conditioned by a triple requirement firmly stated by (...)

Nicolas Éréséo Exclusive supply: The Aix-en-Provence Court of Appeals rejects the qualification of penalty clause when a distributor has to buy the equipment lent by the supplier in consequence of the sales objectives disrespect (Fradays / R. Père et fils)

104

The beer contract is based on a coherent set of obligations: the supplier invests in the outlet (usually by lending equipment free of charge) and makes sure that his investment is amortised by stipulating a minimum duration and minimum quantities to be reached, thereby satisfying the (...)

Nicolas Éréséo ExclusIve supply: The Reims Court of Appeals rules that the supplier does not have to provide pre-contractual information (C. com., art. L. 330-3) in the beer sector (Ardenne Boisson)

187

Two operators of a catering business, who had signed an exclusive supply contract with a drinks supplier, argued that this was in fact a franchise agreement and that the provisions of Article L. 330-3 of the Commercial Code relating to pre-contractual information due from certain suppliers (the (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeals rules that a supplier is unable to protect a selective distribution system against unauthorized online relase when the network has anticompetitive effects (France Télévisions / Mme Valentina Z)

167

Defending a selective distribution network presupposes being able to demonstrate its lawfulness, as illustrated once again by the ruling handed down on 25 May by the Paris Court of Appeal. In the present case, a French subsidiary of a group made up of two entities whose business is to create (...)

Nicolas Éréséo Exclusive distribution: The French Supreme Court upholds that a market penetration clause based on objective conditions and which was not discriminatory is lawful (Sodea / General Motors France)

153

The setting of quotas (minimum quantities to be bought or sold in), of minima (minimum quantities to be resold or sold out), or of market penetration coefficients (market shares to be gained) accompanies practically all network distribution contracts, whether selective, exclusive or franchised (...)

Nicolas Éréséo Franchising: The Versailles Court of appeals rules that a franchisee deserves a protection against any new implementation when the franchisor violates his good faith duty (Laforet Franchise / Ensemble et Toit)

231

After a long discussion, the solution finally settled in case law: a franchise agreement does not imply that exclusivity is granted to the franchisee if success can be achieved in the absence of such a stipulation (D. and N. Ferrier, Droit de la distribution, 7th ed, Lexisnexis 2014, No. 723). (...)

Nicolas Éréséo Exclusive distribution: The Paris Court of appeals rules that a supplier can pronounce the cancellation of the contract in case of disrespect by the distributor of the sales objectives independently of the cancellation clause (Vaneste / Dinh Van (DV) ; I.B.R Concept / Falvo Automobiles)

157

The setting of quotas (minimum quantities to be bought or sold in), of minima (minimum quantities to be resold or sold out), or of market penetration coefficients (market shares to be gained) accompanies practically all network distribution contracts, whether selective, exclusive or franchised (...)

Nicolas Éréséo Franchising: The French Supreme Court upholds its caselaw stating that the franchisor bears no obligation to disclose its past financial difficulties to the franchisee candidate (M. S. J. et la Sam & co / Casa concept services)

133

The failure of the franchisee’s business generally leads its manager or possibly the liquidator to seek the cancellation of the contract and, subsidiarily, its termination to the exclusive detriment of the franchisor, as illustrated in this case by the claims made by a restaurant franchisee. In (...)

Nicolas Éréséo Selective distribution: The French Supreme Court confirms the liability of the motor vehicles manufacturer for a non-compete obligation on the spare parts market (Renault / DAB)

191

Competition in the motor vehicle aftermarket sector still suffers from many shortcomings as the Competition Authority has explained at length (Aut. conc., Opinion No 12-A-21 of 8 Oct. 2012, on the competitive functioning of the vehicle repair and maintenance sector and the manufacture and (...)

Nicolas Éréséo Franchise: The Court of Appeal of Paris reminds that cancellation of franchise contract for fraud is justified when the franchisor intentionally gives a wrong description of the network and of projected businesses via implementation of know-how (Me B. Jeanne / Ducatti West Europe ; Me Rey et Verrechia / BM Est France )

156

The franchisor’s failure to comply with his pre-contractual obligations of information, reinforced by Article L. 330-3 of the Commercial Code, often leads the franchisee to invoke the nullity of the contract for error and sometimes for fraudulent concealment (Civil Code, Art. 1116), as (...)

Nicolas Éréséo Exclusive distribution: The French Supreme Court rules that a representative who has applied marks on goods can refuse to return them but is still responsible of unfair competition when he sells them despite the prohibition notified by the principal (Colegram / Elsodent et G-Pharma)

179

The fate of stocks after the termination of the relationship between a supplier and a distributor fuels a rather rare but worthwhile dispute, given the lack of consensus on the solutions to be adopted. Although unpublished, the ruling handed down on 9 September 2015 by the Court of Cassation (...)

Nicolas Éréséo Exclusive concession : The Paris Court of Appeals rules that a supplier is responsible when sales are operated in the exclusive area of a distributor (Motoworld, Pc Moto)

194

Do proceedings pending before the Competition Authority allow the subject of the proceedings to suspend the performance of its obligations on the grounds that they are likely to have an anti-competitive object or effect? This is essentially the problem that the Paris Court of Appeal was called (...)

Nicolas Éréséo Franchise : The Paris, Montpellier and Riom Courts of Appeals consider that a bank does not have to warn a franchisee when the franchisor provides non relevant pre-contractual information (Lunois, Crédit Du Nord, Banque Populaire Occitane, Slimless, BNP Paribas)

117

In a previous column, attention was drawn to a decision of the Paris Court of Appeal which had originally decided that a bank in relation with the manager and guarantor of a franchised company "should have drawn the attention of[ this client] to the inadequacy of the pre-contractual information (...)

Nicolas Éréséo Selective distribution : The Paris Court of Appeals considers that a supplier acts in good faith when he excludes a distributor who had refused an audit (Nabor Auto Confiance, Volkswagen)

170

What remains of contractual solidarity in jurisprudence? Not much, if we read the decision handed down on 24 June 2015 by the Paris Court of Appeal in a context - the automobile - which was nevertheless the chosen terrain for the generous theses defended in the past by certain authors (see (...)

Nicolas Éréséo Opinion : The French Competition Authority issues an opinion on central purchasing and reference agencies, reveals multiple competition risks on downstream and upstream markets and makes several recommendations for the legislator

363

In barely three months, the French retail landscape has undergone a major upheaval following the conclusion of three merger agreements between the main distribution groups. These agreements concern A first agreement of September 10, 2014 by which Système U mandated Auchan to negotiate a part of (...)

Nicolas Éréséo Sales representative : The French Supreme Court confirms that sales representatives employed by two separate companies may nevertheless be considered to have been committed exclusively when these companies constitute a single employer (Médias diffusion conseil, Média Plus communication)

229

Cass. soc. 18 Feb. 2015, Ms X c/ Médias diffusion conseil and Média Plus communication, n° 13-28231 Contracts concluded between suppliers and travellers, sales representatives (VRP) are subject to the rules laid down in Articles L. 7311-1 et seq. of the Labour Code, the mandatory nature of which (...)

Nicolas Éréséo Exclusive license : The Limoges Court of Appeals considers that the Regulation No 1400/2002 allows national legislation to provide longer period notice than those enacted (BMW France, Taurisson)

217

CA Limoges, 18 Feb. 2015, BMW France v/ Taurisson, RG n° 13/01488 On the sidelines of a dispute between a car manufacturer and a dealer relating in particular to the application of Article L. 442-6, I, 5° of the Commercial Code concerning the abrupt termination of the established relations, the (...)

Nicolas Éréséo Exclusive supply : The Montpellier Court of Appeals validates the beer distribution contracts and sets aside the provisions of both the "Doubin" law related to precontractual information of the distributor and of the monetary and financial code related to the banking monopoly on credit operations (Bar Le Corsaire, Brasserie Milles)

512

CA Montpellier, 17 Feb. 2015, Bar Le Corsaire c/ Brasserie Milles, RG n° 14/01926 The Montpellier Court of Appeal was seised of an exclusive supply contract concluded between a drinks supplier and a pub owner and examined the recurring questions raised by these contracts. It began by stating (...)

Nicolas Éréséo Commercial agents : The Paris Court of Appeals considers that a representative cannot bear the losses originating from an element still managed by the principal (F. Hebert, Oil France)

196

CA Paris, 11 Feb. 2015, F. Hebert v/ Oil France, RG n° 12/22507 Contractual relations between oil companies and pump attendants are often based on two institutions: the management lease of a business and the mandate as governed by Articles 1984 et seq. of the Civil Code. In view of the (...)

Nicolas Éréséo Exclusive distribution : The French Judiciary Supreme Court approves of the Pau Court of Appeals’ considering that a car manufacturer could have legally breached the contract with an authorised repairer, as a pretext to the violation of another contract made for distribution activities (BJ auto/Kia Motors France)

228

The organisation of distribution often calls for arrangements involving two or more indivisible contracts. The motor vehicle sector has been a good example since the European Commission began separating the fate of sales agreements from that of after-sales agreements, which raise specific (...)

Nicolas Éréséo Commercial agents : The French Supreme Court confirms that the validity of a post-contractual non-competition clause imposed on the commercial agent is not conditioned by a financial counterpart in favour of the latter (CFG Patrimoine, ACT Patrimoine)

263

Cass. com, Feb. 10, 2015, CFG Patrimoine c/ ACT Patrimoine, n° 13-25667 The post-contractual non-competition clause imposed on a commercial agent is subject to compliance with Article L. 134-14 of the Commercial Code, which provides that it "must be drawn up in writing and must relate to the (...)

Nicolas Éréséo Exclusive supply : The Montpellier Court of Appeals does not consider as clearly excessive a clause applying in case of a unilateral breach of agreement due to total or partial disrespect of obligations by the distributor and according to which the latter has to reimburse 20% of purchases yet to be made before the end of the agreement (Brasseries Milles, G.R. Noel)

232

CA Montpellier, 3 Feb. 2015, Brasseries Milles c/ G.R. Noel, RG n° 13/07364 Exclusive supply contracts concluded between beverage suppliers and cafe owners, hotels or restaurants generally include a clause setting minimum quantities to be purchased during the performance of the contract as well (...)

Nicolas Éréséo Commercial agents : The Paris Court of Appeals refuses to recognize any implicit territorial exclusivity granted to a sales representative (Bio Service Antilles, Olympus France)

264

CA Paris, Jan. 15, 2015, Bio Service Antilles c/ Olympus France, RG n° 12/12120 A French company that is a member of a Japanese group specializing in the manufacture and marketing of very high-tech equipment, particularly in the field of medical imaging and endoscopy, had given another company (...)

Nicolas Éréséo Franchise : The Paris Court of Appeals considers that the cancellation of a franchising agreement can be requested in case the franchisor conceals a former failure of the regional network director even though the collapse took place in the framework of another franchise and in another sector of activity (Era Global Management, REQ2PAY)

206

CA Paris, 14 Jan. 2015, Era Global Management v REQ2PAY, RG n° 12/18716 When a franchisee brought an application for annulment based on Article L. 330-3 of the Commercial Code, the Paris Court of Appeal held that although "the law does not require the ’transmission of the criminal record of each (...)

Nicolas Éréséo Franchise : The Paris Court of Appeals confirms that a franchisor is not obliged to provide information about a competing point of sale to be installed next to the franchisee but that he has to mention the actual presence of direct or indirect competitors (André Gobbo, Cash Express)

238

CA Paris, Dec. 17, 2014, André Gobbo v/ Cash Express, RG n° 13/08615 Seized by a franchisee placed in judicial liquidation after having operated in the sector of the sale of second-hand products put on deposit by private individuals, the Paris Court of Appeal ruled that the pre-contractual (...)

Nicolas Éréséo Franchise : The French Supreme Court encourages judges to consider the Competition Authority’s Opinion N° 10-A-26 on affiliation agreements of independent retailers and the terms for acquiring commercial land in the food retail sector (X / Casino)

213

As the Competition Authority demonstrated in its opinion of 7 December 2010, competition in the food distribution sector works very badly (Opinion No 10-A-26, on affiliation agreements of independent shops), particularly in Paris where the market is particularly concentrated (Opinion No. (...)

Nicolas Éréséo Franchise : The French Supreme Court approves of an appellate court having declared null and void non-compete obligations in the food distribution sector (Carrefour, Champion)

281

A franchisor wishing to protect the integrity of its network by stipulating exclusive supply or non-reaffiliation clauses must ensure that it has sufficient know-how to justify the existence of such restrictions of competition. In the food sector, network promoters often come up against this (...)

Nicolas Éréséo Franchise : The Paris Court of Appeals states that a bank has to warn a franchisee when the franchisor provides non relevant pre-contractual informations (Mme V. / Société Générale)

132

The decision of the Paris Court of Appeal on 29 April went relatively unnoticed. Reading it, one can understand the embarrassment it must have caused the French banking community. Essentially, the judges decided that a bank may be held liable, as part of its duty to provide information and (...)

Nicolas Éréséo Franchise: The Rennes Court of Appeals considers that a franchisee who has been fulfilling the agreement for several years cannot raise the lack of elements characterizing a franchise (Agri Placement / Agri)

81

CA Rennes, April 24, 2014, RG n° 12/08326, Agri Placement c/ Agri Following the termination of his franchise agreement, a franchisee had sued his franchisor for nullity of the agreement for lack of elements characteristic of a franchise (know-how, technical and commercial assistance). The (...)

Nicolas Éréséo Franchise: The Lyon Court of Appeals sanctions two franchisors for having failed to fulfill their obligation to provide information prior to the contract (Distribution Casino France, Langloyx traiteur)

129

CA Lyon, 27 February 2014, RG n° 12/02379, Distribution Casino France CA Lyon, 27 February 2014, RG n° 12/07174, Langloyx Traiteur In a first case, the Lyon Court of Appeal awarded a franchisee damages for loss of opportunity to "contract on more advantageous terms than those [he] had accepted" (...)

Nicolas Éréséo Franchise: The Aix-en-Provence and the Paris Courts of Appeals raise exceptional circumstances and refuse to annul franchise agreements for defect of franchisee’s consent (Holding Financière Seguy, Hervé A&N / Assurtis)

107

Aix-en-Provence Board of Directors, February 20, 2014, RG n° 12/01385, Holding Financière Seguy CA Paris, February 19, 2014, RG n° 11/19868, Hervé A&N associés c/ Assurtis In a first case, the Court of Appeal of Aix-en-Provence ruled out the existence of fraud at the origin of the "financial (...)

Nicolas Éréséo Franchise: The Paris Court of Appeals admits an action for personal damages filed by the director of a franchised company but excludes any error of profitability committed by the company and its director (M. D. / Assurtis)

86

CA Paris, February 19, 2014, RG n° 11/20167, M. D. c/ Assurtis The director of a franchised company had, in parallel with his company’s claims for breach of the franchisor’s pre-contractual disclosure obligation, made a personal claim for compensation in his capacity as a third party victim of (...)

Nicolas Éréséo Automobile: The Paris Court of Appeal rules on the relationship between regulation (EC) no 1400/2002 and the article L. 442-6 of the French Code de commerce (Europe Auto / Volkswagen)

141

CA Paris, January 15, 2014, RG n° 12/13845, Europe Auto/Volkswagen Group France Already mentioned on the subject of network reorganisation (see this column, supra), the ruling handed down by the Paris Court of Appeal on 15 January 2014 still deserves some comments in that it also deals with the (...)

Nicolas Éréséo Network reorganization: The French Supreme Court and the Paris Court of Appeal decide on the freedom of the network head-end to reorganize its network (Adour Pyrennées location, Europe Auto, EPIL SUN)

162

CA Paris, January 15, 2014, RG n° 12/13845, Europe Auto c/ Volkswagen Group France CA Paris, February 5, 2014, RG n° 12/18858 EPIL SUN c/ SELARL AJA Reconciling freedom of enterprise with contractual law, case law regularly sets out the solution whereby any supplier is free to modify the (...)

Nicolas Éréséo Selective distribution : The Paris Court of Appeal considers non-valid an indirect non-compete obligation on the market of spare parts (Sergent c/ Distribution Automobile Béthunoise et Renault)

215

The motor vehicle aftermarket sector suffers from serious malfunctions which are regularly denounced by the competition authorities (see, most recently, Aut. conc., Opinion No 12-A-21 of 8 Oct. 2012, on the competitive functioning of the vehicle repair and maintenance sector and the manufacture (...)

Nicolas Éréséo Parallel trade : The Paris Court of Appeal strongly condemns a purchasing body for having provided different soldeurs following the liquidation and the inventory repurchase of a member of a selective distribution network (Futura Finances c/ Chanel)

206

A company with a wholesale business involving discount products acted as a central purchasing office and franchisor for the benefit of various distributors. It had acquired cosmetic and make-up products bearing the CHANEL brand at an auction following a judicial liquidation, before reselling (...)

Nicolas Éréséo Exclusive distribution agreement: The Cour de cassation applies articles L. 330-1 and L. 330-2 of the commercial code to certain agreements of the food sector by declaring null and void those concluded for more than ten years

315

Cass. com, January 15, 2013, No. 11-17797 and 11-24155. The French Competition Authority deplored this at length in its opinion of 7 December 2010: the food sector is the scene of contractual commitments entered into for excessively long periods of time, which have the effect of blocking (...)

Nicolas Éréséo Franchise: The Paris Court of Appeal considers that the franchisor does not have to guarantee the realization of the turnover estimated in a projected of activity (Du pareil au même)

115

Among other grievances, a former franchisee alleged that the franchisor had failed to provide fair, accurate and prudent information on the viability of the business and claimed to have been the victim of an error regarding the economic profitability of the operation. She pointed to the absence (...)

Nicolas Éréséo Selective distribution: The Paris Court of Appeal makes a rigorous application of rules relative to the proof of the exhaustion of the rights on the trademark (Zimmermann/Honda Motor)

255

A distributor of multi-brand motorcycles was being sued by a manufacturer (Honda) for importing a number of products not intended for the European market, thereby infringing the supplier’s trademarks. In an action for infringement, the Parisian advisers pointed out that, under Article 7 of (...)

Nicolas Éréséo Selective distribution: The French Competition Authority issues recommendations aiming at lowering the prices as well as forging new dynamics in the automotive sector, after close examination of the car repair and maintenance sector

214

Opinion No. 12-A-21 of 8 Oct. 2012 on the competitive functioning of the vehicle repair and maintenance and spare parts manufacturing and distribution sectors. In law as in fact, the motor vehicle sector is divided into two quite distinct markets: the market for the sale of vehicles, (...)

Nicolas Éréséo Exclusive distribution: The Courts of Appeal of Versailles and Limoges pronounce on relationship between regulation (EC) n° 1400/2002 and the article L. 442-6 of the French Commercial code (BMW France/Paris Ouest Service, BMW France/Taurisson)

197

In force until 1 June 2013, Regulation (EC) No 1400/2002 lays down the exemption conditions applicable to agreements for the sale of new motor vehicles (N. Eréséo and D. Ferré, Rep. Dr. comm. Dalloz, V° Automobile). In accordance with the intrusive policy inaugurated with the adoption of the (...)

Nicolas Éréséo Quantitative selective distribution system: The Court of Justice rules that the term ‘specified criteria’, referred to Commission Regulation 1400/2002 means, with respect to a quantitative selective distribution system within the meaning of that regulation, criteria the precise content of which may be verified (Auto 24)

366

CJEU, 14 June 2012, Auto 24, Case C-158/11 Particularly awaited by all the players in the automotive world, the Court of Justice has just handed down an important decision which offers manufacturers great freedom of organisation of their distribution networks. The case concerned the (...)

Nicolas Éréséo Selective distribution: The Court of Cassation rules on selective distribution networks and outside-network sales made on online auction website (Christian Dior/eBay)

348

It will be recalled that, in three judgments handed down on the same day, the Paris Court of Appeals had ordered the online broker eBay to compensate several companies in the perfume sector to the tune of 5.6 million euros (CA Paris, September 3, 2010, Sté eBay Inc and eBay AG v. Louis Vuitton (...)

Nicolas Éréséo Commercial agency : The Court of Cassation rules that the commercial agent’s statute applies if the principal is a producer according to the article L. 134-1 of the commercial code

166

Cass. com, 20 March 2012, Mr. X v. Ms. Y, No. 11-15287 Because of its financial stakes (Com. C., art. L. 134-12), the status conferred on commercial agents is very frequently claimed or contested before the courts. In these circumstances, it is generally the status of the agent which is (...)

Nicolas Éréséo Non compete obligation: The Court of Cassation pronounces on compensation offered to the distributor in the beer sector when a non compete obligation is planned in the contract (Karlsbrau/Farigoulette)

256

Cass. com, 17 January 2012, Karlsbrau v. Farigoulette, No. 11-10641 The so-called "beer contract" is probably the most basic of all distribution contracts. Only three stipulations contribute to its content. The first is an exclusivity clause, which obliges the distributor to obtain beer and (...)

Nicolas Éréséo Freedom of competition: The Court of cassation rules that the freedom of competition involves the possibility of recording the prices practised by a rival company (Hyper Saint-Aunès/Carrefour)

518

Cass. com, October 4, 2011, Hyper Saint-Aunès c/ Carrefour hypermarkets, n° 10-21862 Since the establishment of comparative advertising in the early 1990s (see C. conso., art. L. 121-8 et seq.), commercial communication has become increasingly aggressive, particularly when the first advertising (...)

Nicolas Éréséo Franchising: The Court of Cassation rules that the acquisition of a business belonging to a franchisee is not a fault when done in accordance to the "English clause" and without unfair competition (Carrefour proximité, CSF, ITM, Sud-Est France, Distribution Casino France)

451

Cass. com, 6 September 2011, Carrefour proximité France and CSF c/ ITM Sud-Est France, n° 10-23051 Cass. com, 6 September 2011, Carrefour proximité France and CSF c/ Distribution Casino France, n° 10-20776 Almost systematically arbitrated, disputes in the context of food distribution rarely (...)

Nicolas Éréséo Exclusive distribution – Motor vehicle sector: The Paris Court of Appeal rules that the notice period of one year exempted by regulations (EC) 1475/95 and 1400/2002 deprives of authority the article L. 442 6, I, 5° C. com (Armor Véhicules/DAF Trucks)

490

Context of the judgment Since the mid-1990s, the European exemption regulations applicable to the automotive sector have included provisions designed to guarantee the independence of the distributor. In this respect, both Regulation 1475/95 and its successor Regulation 1400/2002 provide in (...)

Nicolas Éréséo Selective distribution - Motor vehicle sector: The Court of Cassation asks the Court of Justice to clarify the meaning of “specified criteria” mentioned by regulation (EU) 1400-2002 (Land Rover/Auto 24)

1185

Cass. com, March 29, 2011, Land Rover v. Auto 24, #10-12734 Fully enshrined in Regulation (EC) No. 1400/2002 (Article 1.1.g), the quantitative selection of motor vehicle distributors is regularly disputed by manufacturers when they refuse to grant approval (see also recently: Cass. com, 28 (...)

Nicolas Éréséo Franchising: The Court of Cassation reaffirms that the violation of article L. 330 3 C. com. provokes the cancellation of the contract if the breach in the obligation of information chargeable to the supplier has for consequence to affect the consent of the distributor (Mikit France/M. X…)

719

Cass. com, 15 March 2011, Mikit France v. M. X..., No. 10-11871 Context of the judgment The obligation to provide pre-contractual information, which is currently set out in Article L. 330 3 of the French Commercial Code, and which was introduced by the Doubin Act of 31 December 1989, is a (...)

Nicolas Éréséo Refusal of agreement: The Court of Cassation rules that the bad faith of the distributor excludes any responsibility in case of refusal of agreement decided by the supplier (BMW/Sodac)

908

Cass. com, September 28, 2010, BMW c/ Sodac, n° 09-16424 and 09-16753 In the motor vehicle sector, the transition from one exemption regulation to another generally favours the reorganisation of distribution networks and, consequently, the exclusion of distributors whose approval had hitherto (...)

Nicolas Éréséo Franchising : The French Civil Supreme Court rules that the non competition obligation has for object to limit the exercise by the franchisee of a similar activity, whereas «non-réaffiliation» obligation restricts its freedom of membership to another network (Prodim)

971

In the course of the 1990s, social, commercial and then civil case law on non-competition clauses gradually became stricter: in addition to the traditional requirement of limiting the scope of the clause (e.g. Cass. com., 12 Jan. 1988, Bull. civ. IV, No 31), a condition of proportionality to (...)

Nicolas Éréséo Selective distribution - Internet: The Paris Court of Appeal rules that on line brokers are responsible for announcements using protected brands (eBay/LVMH; e-Bay/Christian Dior)

1573

CA Paris, September 3, 2010, eBay Inc and eBay AG v/ Christian Dior Couture, JurisData no. 2010-015040 CA Paris, September 3, 2010, eBay Inc and eBay AG v/ Louis Vuitton Malletier, JurisData n° 2010-015044 CA Paris, September 3, 2010, eBay Inc and eBay AG v/ Parfums Christian Dior, JurisData no. (...)

Nicolas Éréséo Violation of Art. L. 330-3 C. com.: The Dijon Court of Appeal recalls that the violation of Article L. 330-3 C. com. leads to the cancellation of the contract when the breach of the supplier’s obligation of information affects the distributor’s consent (BM/Franchises Grand Optical Dijon ; Phone Pratique/Société française du radiotéléphone ; OSD/N. G.)

1538

It has been known since 1998 that failure to comply with the obligation to provide information under article L. 330-3 C. Com. only leads to the annulment of the distribution contract if it has resulted in vitiating the distributor’s consent (Cass. com., 18 Feb. 1998, Bull. civ. IV, No. 71; D. (...)

Nicolas Éréséo Non-compete provisions: The Paris court of Appeal holds void a non-competition obligation not justified by the protection of the know-how passed on by the franchisor (Prodim/Diapar, Francap et Groupe G20)

1319

The non-reaffiliation clause stipulated as an accessory to a franchise agreement is a recurrent dispute, as franchisors are reluctant to see a point of sale switch to a competing brand (See lastly CA Paris, 17 Sept. 2009, ConcurrencesNo. 1-2010, p. 119, obs. D. Ferrier). In this case, a (...)

Nicolas Éréséo Application of Article L. 330-3 C. com.: The Court of Cassation rules that the possibility for the distributor to exercise competing activities cannot justify application of Article L. 330-3 C. com. and recalls that if this provision does not require the establishment of a local market study or a projected sales study, the debtor of the information who supplied such documents can nevertheless engage his liability (Groupe Expert)

1464

Cass. com, January 19, 2010, Groupe Expert v. Spouse C., n° 09-10980, published in the Bulletin More than twenty years after its adoption, the law known as the "Doubin" law, now set out in article L. 330-3 C. Com. still gives rise to novel questions, as is apparent from the judgment delivered (...)

Nicolas Éréséo Swarming: The Paris Court of Appeal rules that a car manufacturer cannot be considered responsible for the exercise by one of his distributors of the faculty of swarming offered by EC Regulation N° 1400-2002 (Auto 24/Jaguar Land Rover France)

1661

Regulation (EC) No 1400/2002, which entered into force on 1 October 2002, exempts certain agreements for the distribution of new motor vehicles, spare parts or repair and maintenanceservices. Replacing Regulation (EC) No 1475/95, the new system put an end to the cumulation of selectivity and (...)

Nicolas Éréséo Resale forbidden discount traders: The ECJ rules that a clause provided in a leading license agreement prohibiting the resale of goods to discount traders allows the trademark holder to act in counterfeiting against the licensee that operated such resales and avoid the exhaustion of the rights when the discount trader’s activity infringes the trade mark prestige (Copad ; Christian Dior Couture)

2985

ECJ, 23 April 2009, Copad v. Christian Dior Couture, case C-59/08 Any selective distribution system is confronted with parallel distribution phenomena which the network promoter seeks to combat in order to preserve the coherence and economic viability of its distribution model. In this (...)

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