Statut des baux commerciaux et concurrence

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Between the regulation represented by the status of commercial leases and the implacable market of which competition seems to be the instrument, can there be bridges?

Beyond the clash of ideas which a priori opposes them, the status of commercial leases and competition share a common nature and purpose which is economic. They are both the expression of an economic policy. They are also the expression of economic law. Indeed, through provisions that are often imperative, they define, guide or frame, concurrently or in a complementary manner, the behavior of economic agents on the market, with the main leitmotiv being the efficiency of the exchanges that take place there.

The book, which takes the gamble of answering the question in the affirmative, analyzes and puts into perspective the relationship between the status of commercial leases as it results from the law and the regulations interpreted by the jurisprudence, and competition on the markets falling within the sphere of application of the said status, essentially the market for the distribution of goods and services. The author confronts the status of commercial leases with the founding principles of competition, namely freedom and equality. In the first case, the author tends to demonstrate that this statute contains the necessary freedom to allow companies that do not own the buildings or premises used to carry out their activities to take the initiative on the market. In the second, the exercise undertaken by the author consisted in a search for elements of answer to the question of knowing if the statutory protection is accessible indistinctly to the actors in competition on the same market.

In the course of the analysis, the author notes that the status of commercial leases and competition maintain a relationship strongly marked by ambivalence. The positive effect of the statute on the dynamics of competition in the markets covered is tempered by the purpose and/or effect of certain statutory provisions and their interpretation in case law, in particular those relating to the field of application, rent and mobility in the market, which create a logic of distortion and restriction of competition between economic agents who are actual or potential users of the commercial lease. In order to reduce these distortions and restrictions of competition, and to restore to the commercial lease its status as an instrument more favourable to the market, the work makes proposals that are not devoid of interest, both normative and jurisprudential. For the author, these normative and jurisprudential evolutions are necessary and even indispensable in order to adapt this soon to be century-old statute to the real situation of the distribution market at the threshold of the 21st century.



Abdoulaye Mbotaingar, Statut des baux commerciaux et concurrence, May 2008, Concurrences N° 2-2008, Art. N° 110293

Publisher LexisNexis

Date 7 February 2008

Number of pages 489

ISBN 9782711010134

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