Les pratiques commerciales déloyales, Erwann KERGUELEN, Jean-Louis FOURGOUX et Leyla DJAVADI

Erwann Kerguelen, Jean-Louis Fourgoux, Leyla Djavadi

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The law of restrictive business practices (RBP) has an undeniable role in the regulation of economic public order. Alongside the law of anti-competitive practices, the law of restrictive business practices has, over the years, found an autonomous place that complements the other regulatory tools.

The regulation of PCR by legislation is twofold.

On the one hand, it allows economic operators to rely on the rules established by the legislator in order to encourage their negotiations and agreements to be in line with an economic balance, in the interests of both parties and, ultimately, of consumers. This regulation makes sense outside of any legal dispute, in a context of unbalanced bargaining power, when the weaker party calls on the legal provisions to remind the stronger party of the need to reach a balanced agreement.

In this respect, the regulation of PCR has been simplified by the order of 24 April 2019. The list of illegal clauses and practices has been considerably reduced in order to improve their readability and facilitate their appropriation by economic operators. The effectiveness of the old provisions has remained intact insofar as they are covered by the current prohibitions, which are more general and thus more likely to be adapted to new practices.

On the other hand, the regulation operated by the legislation on PCR allows the Minister of the Economy, in his capacity as defender of economic public order, to ask the judge to restore a posteriori the balance of the commercial relationship in the context of a legal dispute, when the seriousness and extent of the practices are such that economic public order is affected, to the detriment of the weaker party and, ultimately, the consumer.

The DGCCRF is particularly attentive to compliance with the rules on RCPs. Balanced commercial relations allow for a fair distribution of added value between all economic operators, thus enabling them to be competitive on the market, while allowing the consumer to benefit from their investments in quality, innovation and sustainable development.

In line with these objectives, the injunction under penalty payment created by the law of 3 December 2020 now allows the administration to enjoin a professional, after an adversarial procedure, to comply with its obligations in the event of breaches liable to a civil fine, and to attach to this measure a penalty payment liquidated by the administration in the event of failure to comply with the injunction. This new tool will strengthen the effectiveness of the protection of economic public policy.

In addition to the legislative advances, the action of the Minister of the Economy in the area of PCR has led in recent years to several advances in case law, such as the confirmation that the provision relating to significant imbalance is a police law, the clarification of the notion of commercial partner allowing the application of significant imbalance to commercial partners in the broadest sense of the term, and also the condemnation of several illegal practices historically denounced by economic operators (failure to comply with the agreed prices, margin compensation, price parity clauses, etc.) Moreover, over the years, litigation on PCR at the initiative of the Minister of the Economy has gone far beyond the retail sector to extend to various other sectors (online intermediation platforms, search engines, marketplaces, mobile phone manufacturers and operators, franchise networks, etc.). The lessons learned from the case law should lead some economic operators to correct their behaviour on the market.

Thoughts and actions on RCP are also gaining momentum at the European level. The "Platform to business" regulation of 20 June 2019 came to frame the practices of intermediation platforms and online search engines in order to ensure transparency and fairness in their relations with third-party sellers who market products to consumers via these platforms. The Directive of 17 April 2019 on unfair commercial practices in the agricultural and food sector, which has been transposed into French law, is also intended to preserve fairness in relations between the operators concerned. These developments attest to the interest and need to protect economic public policy through tools that complement existing regulatory tools in both domestic and European law. In this respect, French law on private equity is highly mature compared with most other Member States.

In this context, certainly of simplification of the commercial code but also of permanent enrichment of the jurisprudence and new European developments, the new edition of Erwann Kerguelen’s work is timely. Legal practitioners as well as economic operators will be able to find in it the clarity and the richness of the author’s analysis of this technical subject which is a key element of business life for many companies.

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Virginie Beaumeunier, Les pratiques commerciales déloyales, Erwann KERGUELEN, Jean-Louis FOURGOUX et Leyla DJAVADI, November 2021, Concurrences N° 4-2021, Art. N° 103409, pp. 222-223

Publisher Concurrences

Date 29 September 2021

Number of pages 552

ISBN 979-10-94201-21-3

Visites 178

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