Author Archives: Henry & Bricogne

Is a professional seller free to choose his customers?

Freedom of trade should imply the right of the professional seller to choose his customers. While this principle largely applies in a relationship between professionals, it is not the case when the seller is a professional and the buyer is a consumer. An article from our law firm published by the beaboss.fr website on 24 November 2021 takes stock of this issue.

https://www.beaboss.fr/Thematique/gestion-finance-1025/gestion-2036/relation-client-fournisseur-3107/Breves/vendeur-professionnel-est-libre-choisir-ses-clients-366749.htm

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Selective distribution: what commitments?

A supplier who uses selective distribution for the sale of his products or services is entitled to work only with resellers who meet the selection criteria he defines. This form of distribution allows for qualitative distribution. The website beaboss.fr published on 27 October 2021 an article by our law firm on this particular type of distribution.

https://www.beaboss.fr/Thematique/marketing-vente-1027/ventes-2049/Breves/Distribution-selective-quels-engagements-365820.htm

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What is an abuse of economic dependence?

A company is sometimes dependent on a customer or supplier who takes advantage of this to impose unfair commercial conditions. The offence of abuse of economic dependence makes it possible to deal with this situation. However, the conditions for its implementation are rigorous. Explanations in an article by our firm published on 24 September 2021 by the website https://www.daf-mag.fr

https://www.daf-mag.fr/Thematique/reglementation-1243/Breves/est-abus-dependance-economique-364542.htm

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This year again, our law firm was pleased to participate in the training of lawyers within the framework of CAMPUS by leading the training on unbalanced clauses in commercial contracts. Some pictures of the closing of CAMPUS 2021 in the garden of the Maison de la Chimie in Paris on 8 July 2021.

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Can a former employee set up a business competing with that of his former employer?

It is legitimate for an employee to want to set up a business, but often the project is developed in the same field of activity as the job previously held. Is this possible without generating conflict with the former employer? Answer in an article of our law firm published on July 23, 2021 by the website www.be-a-boss.com

https://www.chefdentreprise.com/Thematique/creation-entreprise-1024/Breves/ancien-salarie-peut-creer-entreprise-concurrente-son-employeur-363001.htm

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As in previous years, André Bricogne and Xavier Henry will be speaking at Campus Paris 2021 (training course for lawyers) on 7 July 2021 from 4:45 pm to 6:45 pm on the topic “Unbalanced clauses in commercial contracts (Article L. 442-1, I, 2° of the Commercial Code)”. This year, Campus is 100 % digital and 100 % face-to-face at La Maison de la Chimie in Paris (75007). Registration is open. https://www.avocatcampus.org/authentification/creation-de-compte.htm

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Can a manufacturer forbid its resellers to sell its products on Internet?

Internet seems to be now an unavoidable sales channel. However, some manufacturers believe that online sales are not suitable for their products and would like to prohibit their resellers from using it. Such a ban would however be contrary to competition law. Examination of this question in an article of our law firm published by the website chefdentreprise.com on June 7, 2021.

https://www.chefdentreprise.com/Thematique/juridique-1055/Breves/fabricant-peut-interdire-ses-revendeurs-vendre-ses-produits-internet-360991.htm

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Can support given to a partner in difficulty be abusive?

The support provided by a partner to a company in financial difficulty could be criticised. This support could indeed mislead about the situation of the supported company. However, aware of the usefulness of such support, the law has limited the risk of it being classified as abusive support. Reminder of this legislative evolution through an article by our law firm published by the website decision-achats.fr on 21 April 2021.

https://www.decision-achats.fr/thematique/achats-publics-1230/breves/soutien-apporte-partenaire-difficulte-peut-abusif-359577.htm

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Our firm has been awarded three times in the Palmarès du Droit 2021 organised by Le Monde Du Droit. In the category “Firms with less than 30 lawyers”, HENRY & BRICOGNE came third (bronze) in competition law, second in consumer law (silver) and finally, first in distribution law (gold).

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For the second consecutive year, our law firm has been listed in the “Best Law Firms 2021” ranking of Le Point Magazine in the “Commercial, Business and Competition Law” category.

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Distance sales: specific rules to know

The development of online sales has led the legislator to regulate distance contracts between traders and consumers. For these contracts, additional rules have been established compared to those provided for in-store contracts. An article by our law firm published on 17 March 2021 on the website chefdentreprise.com sets out these important rules.

https://www.chefdentreprise.com/thematique/juridique-1055/breves/vente-distance-consommateurs-regles-specifiques-faut-connaitre-358405.htm

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Can prices that are too low be prohibited?

Can a company be blamed for not selling its products or services at a high enough price? The question may seem bizarre. However, competition law sometimes has a negative view of companies that charge too low prices and punishes them. See on this question an article of our law firm published by the website chefdentreprise.com on January 20, 2021.

https://www.chefdentreprise.com/thematique/juridique-1055/breves/les-prix-trop-bas-peuvent-ils-interdits-356309.htm

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Is it possible to be protected against the unpredictable in a commercial contract?

The chefdentreprise.com website publishes on December 9, 2020 an article by our firm providing some answers to this question.

https://www.chefdentreprise.com/Thematique/gestion-finance-1025/gestion-2036/Breves/Est-possible-premunir-contre-imprevisible-contrat-commercial-354703.htm

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The franchisor escapes nullity for fraud of the franchise contract but not nullity for damages of the sale of the business.

The Paris Court of Appeal handed down a decision on September 16, 2020 which may come as a surprise. The Court rejected the nullity of the franchise contract but annulled the concomitant sale of the business by the franchisor to the franchisee for the reasons that had led it to reject the nullity of the contract. Publication on December 7, 2020 of an article by our firm on the franchise-magazine.com website about this decision.

https://www.franchise-magazine.com/expert-franchise/tribunes/avis-expert-nullite-contrat-cour-appel-paris-decembre-2020

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Can a company hire a competitor’s employees?

The employees of a company have skills or a good knowledge of the customers. A competitor may therefore be tempted to offer these employees the opportunity to come and work for it. While such an offer is not prohibited, it may sometimes constitute an act of unfair competition. The website chefdentreprise.com publishes an article by our firm on October 15, 2020 on the rights and obligations of a company that wants to hire employees of a competitor.

https://www.chefdentreprise.com/Thematique/juridique-1055/Breves/Une-entreprise-peut-elle-embaucher-salaries-concurrent-353176.htm

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Our firm was awarded by Le Monde du Droit at a ceremony at the Intercontinental Hotel in Paris on 30 September 2020 the prize in the category “competition law – law firm with less than 30 lawyers”. Our firm was ranked third in this category.

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When selling a product, the seller must legally guarantee its customer against hidden defects. If the product is damaged by such a defect, then the customer has the right to request the cancellation of the sale or request a partial refund. But when can we speak of a hidden defect? Elements of answer in an article of our firm published by the website Actionco.fr.

https://www.actionco.fr/thematique/rh-1217/breves/vente-est-vice-cache-352370.htm

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Commercial agents: the clarification of the Court of Justice of the European Union

The Court of Justice of the European Union issued a very important decision on June 4, 2020 regarding the definition of commercial agents. Adopting a different position from that of the French Court of Cassation, this decision will lead to granting the status of commercial agent more often.

The solutions.lesechos.fr website published on August 27, 2020 an article written by our firm recalling the stakes and the scope of this decision.

https://solutions.lesechos.fr/juridique/c/agents-commerciaux-la-clarification-de-la-cour-de-justice-de-lunion-europeenne-21925/

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As last year, André Bricogne and Xavier Henry will be speaking at Campus Paris 2020 (training course for lawyers) on 7 July 2020 at 2 pm on the topic “Unbalanced clauses in commercial contracts (Article L. 442-1, I, 2° of the Commercial Code): inventory of the situation and prospects after the reform of 24 April 2019”. This year, Campus is digital. Registration is open.

https://www.avocatcampus.org/calendrier/zoomsession.htm?zoom=de5fb399-fcaa-ea11-80f0-005056ae0696

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What are the possibilities for a company to bring an action when another company copies its products or the presentation of its products, its name or its advertising? An action based on economic parasitism may be the solution. Presentation of the principles and consequences of economic parasitism through an article written by our firm published by the website https://artisans.chefdentreprise.com on June 26, 2020.

https://artisans.chefdentreprise.com/Thematique/juridique-1062/Breves/Comment-lutter-contre-parasites-commerciaux-350437.htm

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Our law firm is listed in the ranking “The best law firms in 2020” established by the magazine Le Point (n° 2496, June 25, 2020) in the category of commercial, business and competition law.

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The credit management magazine, Fonction Crédit, publishes an article by our firm in its No. 79 (p. 34): does the state of health emergency exempt one from paying one’s creditors?

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Is resale at a loss still prohibited in France? The answer is yes.

Even though the law has been amended in recent years, resale at a loss is still prohibited, with a few exceptions. However, European legislation raises the question of the validity of the French ban on resale at loss to consumers. Examination of the outlines of this prohibition in an article of our firm published by the website chefdentreprise.com on May 29, 2020.

https://www.chefdentreprise.com/Thematique/juridique-1055/Breves/revente-perte-est-elle-toujours-interdite-348114.htm

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Does the coronavirus give permission not to pay its creditors?

Even if Covid-19 was a case of force majeure, debtors could not invoke it as a reason for not paying their creditors who had performed their part of the contract. However, the debtors are not powerless to defer payment of the sums due because of the sanitary crisis. Read our Firm’s article on this subject published on the decision-achats.fr website.

https://www.decision-achats.fr/thematique/strategie-achats-1236/breves/coronavirus-donne-permission-pas-payer-ses-creanciers-348737.htm

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Publication of an article written by our law firm in the legal journal Dalloz Actualité Juridique Contrat of March 2020 “Automotive distribution: review of significant case law for the year 2019 ” (Dalloz AJ Contrat, March 2020 n° 3, p. 139).

The 2019 case law year for automotive distribution was particularly interesting. Indeed, with regard to the refusal to contract with authorized repairers, vertical anti-competitive practices has been thoroughly reviewed (agreement, restrictions, market). Moreover, the use of good faith to challenge a refusal to contract has been limited. The Paris Court of Appeal has also handed down an interesting decision concerning the submission of a distributor to a significant imbalance. Automotive distribution has thus made an interesting contribution to the legal discussion (the solutions of which also apply to other distribution sectors).

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Our law firm is once again listed in 2020 in Best Law Firm ranking established by Décideurs Magazine in antitrust and anti-competitive practices as well as distribution law and restrictive practices and commercial litigation.

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Writing an invoice for a sale or a service is not an insignificant exercise. An article of our firm published by the Commerce Magazine website on March 12, 2020 recalls the mandatory information that must appear on the invoice, two of which were added by Order No. 2019-359 of April 24, 2019.

https://commerce.chefdentreprise.com/Thematique/juridique-1070/Breves/loi-est-plus-exigeante-mentions-obligatoires-facture-347633.htm

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Towards the block exemption for authorised motor vehicle repair contracts?

This question deserves to be asked again. Traditionally, competition authorities consider that each car manufacturer’s share on the market of repair and maintenance of motor vehicles of its brand would be above 30%, which would prohibit authorised car repair contracts to benefit of the block exemption of Regulation 330/2010 dated 20 April 2010. Reassessment of the issue in the light of recent case law and market studies in an article by Xavier Henry published by the Revue Lamy de la Concurrence in its February 2020 issue (RLC 3742 N° 91, p. 38, February 2020).

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The commercial agent has a regulated status that protects him, particularly in the event of termination of the contract. An article by our law firm published by the website chefdentreprise.com on 29 January 2020 sets out the principles governing this activity.

https://www.chefdentreprise.com/Thematique/juridique-1055/Breves/Agent-commercial-statut-protecteur-346350.htm

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In the event of a sudden termination of established commercial relationships, how are the damages to which the victim of the termination is entitled assessed? Elements of answer in an article of our law firm published by the website decision-achats.fr on January 6, 2020.

https://www.decision-achats.fr/Thematique/strategie-achats-1236/Breves/Rupture-brutale-relations-commerciales-quelle-indemnisation-345479.htm

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Publication of an article by our law firm on the Village de la Justice website on December 23, 2019 about the contestation of the existence of know-how by franchisees. Study of the analysis of the Paris Court of Appeal which rejects the claim of the franchisees.

https://www.village-justice.com/articles/contestation-savoir-faire-franchiseur-rejetee-par-cour-appel-paris,33304.html

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A franchisor sometimes sells its products directly to consumers through Internet in parallel with its sales to its franchisees. Can they challenge this practice of direct sales? Study of the question in an article from our firm published by the franchise-magazine.com website on December 18 2019.

https://www.franchise-magazine.com/expert-franchise/tribunes/ventes-directes-site-internet-franchiseur-cour-appel-paris-decembre-2019

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Customer rights in the event of a distribution contract under a brand name (selective distribution, franchise) is a very sensitive issue. What are the retailer’s rights on customers? An article published by our Law firm on December 10, 2019 by Les Echos Solutions provides an update on recent case-law in this field.

https://solutions.lesechos.fr/franchise-retail/c/quels-sont-les-droits-dun-detaillant-appartenant-a-un-reseau-de-distribution-sur-la-clientele-18954/

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In its November 2019 issue, the legal journal Dalloz AJ Contrat publishes Xavier Henry’s comments on the judgment handed down on 19 September 2019 by the European Court of Justice (ECJ) concerning the communication by car manufacturers of technical information about their vehicles to independent repairers. This is an opportunity for the ECJ to recall the rights and obligations of car manufacturers with regard to EU Regulation N° 715/2007.

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Judgment of the Paris Court of Appeal of 6 November 2019 on the single agreement and the significant imbalance in the relationship between an car manufacturer and a distributor

The Paris Court of Appeal had to rule on disputes raised by an automobile distributor concerning the single agreement proposed by a car manufacturer (represented by our firm). The disputes were based on Article L. 441-7 (former) of the French Commercial Code (now Article L. 441-3) governing single agreements and on Article L. 442-6, I, 2° (former), now Article L. 442-1, I, 2°, of the same code relating to significant imbalance. Two main lessons can be drawn from the judgment rendered on 6 November last:

  • there was no subjugation to unbalanced obligations if the distributor was multi-brand and belonged to a large distribution group, which did not reflect an unbalanced balance of power. The single agreement could therefore not be challenged on the basis of Article L. 442-6, I, 2° (former).
  • the supplier wasfree to set a deadline for its distributors to sign the single agreement even if this date was before March 1 (in this case, the agreement had to be returned on December 1 of year n -1). If it was not returned within the time limit, the distributor was not entitled to the variable discounts stipulated in the agreement.

CA Paris arrêt 19.11.06

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On 16 October 2019, the daf-mag.fr website published an article written by our firm entitled “Anti-competitive agreement: definition and risks”, which is a reminder that sometimes agreements between companies can distort competition and lead to serious fines.

https://www.daf-mag.fr/thematique/gestion-risque-1241/breves/est-entente-anticoncurrentielle-quels-sont-risques-343108.htm#rtT50XbeFQ32wpGb.97

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