January 16, 2019. Publication on the Justice Village website of a legal article written by Xavier Henry entitled “Franchise contract: pre-contractual information is still in the case law events”.
Although the provisions relating to the pre-contractual information that must be provided before signing a franchise contract in particular are not recent since they derive from the Act n° 89-1008 dated 31 December 1989 known as ” Doubin Act “and decree n° 91-337 dated 4 April 1991, they continue to generate plentiful case law.
January 7, 2019. The DGCCRF (French Directorate General for Competition, Consumer Affairs and Prevention of Fraud) submits to professionals for opinion the proposed changes of the Commercial Code regarding in particular invoicing and single agreement (“convention unique”).
These amendments will then be subject to legal provisions in accordance with the EGALIM Act of October 30, 2018.
The DGCCRF has prepared a document showing the modified provisions with its comments. Essentially:
With regard to invoicing: the invoice must be issued as soon as the delivery and no longer upon the completion of the sale.
as regards the single agreement, different cases are envisaged depending on whether or not the agreement concerns consumer products (“produits de grande consommation”) which are defined by the DGCCRF in its comments. When it does not cover such products, the conditions are less restrictive. There is no longer a deadline for concluding it because it is up to the parties to determine this date (the date of March 1, however, is maintained for single agreements concerning wholesalers). In the case of consumer products, the proposed amendments are more rigid ( forecast turnover, imperative date of conclusion which is no longer however necessarily that of March 1, no possibility for derogations, …).
Article L. 442-6 of the Commercial Code (significant imbalance, sudden termination of commercial relations, etc.) is not concerned and will be subject to subsequent proposals.
Comments must be sent by 21 January 2019 at the latest. The bill will be submitted to the Conseil d’Etat (State Council) at the end of February 2019.
Publication in October 2018 of a legal article written by André Bricogne on the Village de la Justice website about the Court of Appeal of Paris’ decision dated 4 July 2018, n° 16/05518, and entitled : “Distribution Contract: sudden OR unfair termination or sudden AND unfair termination ?”
Publication in September 2018 of an article written by André Bricogne on the Village de la Justice website about the Court of Appeal of Paris’ decision dated 12 September 2018, n° n°15/15234 and entitled “Termination of a distribution contract: The injury assessment according to the legal basis of the claim” (village-justice.com, 20 September 2018).
The economic reconversion of the business partner victim of a contractual termination will be, or will not be, taken into account to assess the reparable damage according to whether the claim for damages is brought on a contractual or tortious basis.
Publication in September 2018 of an article written by Xavier Henry in the legal Journal Dalloz Actualité Juridique Contrat entitled “Abusive clauses in commercial contracts: inventory of the situation ten years later” (Dalloz AJ Contrat – August-September 2018 – n° 8-9, p. 370).
The modernization of the economy law dated 4 August 2008 added in Article L. 442-6, I, 2 ° of the French Commercial Code a new case of responsibility prohibiting the fact of “submit or attempt to submit a trading partner obligations creating a significant imbalance in the rights and obligations of the parties “. The legislator thus wanted to extend to commercial contracts the prohibition of unfair clauses previously reserved for contracts between consumers and professionals. If Article L. 442-6, I, 2 ° does not constitute the revolution expected by some and dreaded by others, it nonetheless poses a general principle that simplifies the challenge of clauses not only by the weak party of the relationship but also by the Minister of the Economy. Ten years after its adoption, an inventory of case law is needed, the text having obviously raised questions that have not all received a clear answer.
Publication in September 2018 of an article written by our law firm on the Village de la Justice website about recent case law in economic law (Chronique sélective de la Jurisprudence rendue en droit économique, village-justice.com, 12 September 2018).
In particular, with regard to competition law, the European Commission has highly fined a search engine for abuse of dominant position and the Paris Court of Appeal has in general upheld the fines imposed by the French Competition Authority in the courier and parcels cartel . The Court of Appeal of Paris handed down various interesting decisions on the unfair (imbalanced) commercial clauses, on the disproportion of an advantage granted with regard to its value (subject rarely dealt with in case law), on the sudden termination of established relations, on unfair competition and parasitism. Regarding distribution law, Courts have been led to decide the validity of the pre-contractual information document imposed by Article L. 330-3 of the French Commercial Code, on certain contractual clauses such as purchase commitments or on the principles of calculation of the compensation due to the commercial agent in case of termination of his contract. Finally, regarding consumer law, the French Supreme Court (Cour de cassation) ruled on the legal guarantee of conformity.
Publication in July 2018 of an article by Xavier Henry in the Quarterly Review of Commercial Law and Economic Law (RTDCom), Editions Dalloz, entitled “The ill-established case-law principles of Article L. 442-6, I, 5 ° of the commercial code ” (RTDCom, April-June 2018, p. 523).
If the merits of Article L. 442-6, I, 5 ° of the French Commercial Code which requires, before terminating an established commercial relationship, to give written notice to the co-contracting party, are not disputed, its application makes debate. The Commercial Chamber of the French Supreme Court (Cour de cassation) has made this text a special category of civil liability, asserting in particular its tort nature although the parties were bound by one or more contracts (written or not). Above all, it created a new principle in French law: compensation without proof of harm. The case law is often disconcerting, which increases the legal uncertainty for companies which have to deal with new rules that it was hardly possible to anticipate such as the questioning of the resolutive clauses. However, an application of well-known legal principles would not diminish the effectiveness of the text and would provide greater legal certainty.
Legal article written by Xavier Henry published in the legal journal Les Petites Affiches dated April 6, 2018 entitled “Business relationships : to be established or not to be” (LPA 6 April 2018, n° 70, article n° 134h3, p. 9).
It presents thoughts about what are or should be “established” business relationships under Article L. 442-6, I, 5° of the French Commercial Code which prohibits abrupt termination of established business relationships.
Legal article written by our law firm published in the legal journal Dalloz Actualité Juridique Contrat of February 2018: “Motor vehicles and motorcycles contract: review of jurisprudence of the year 2017” (Dallloz AJ Contrat, February 2018, n° 2, p. 70).
Automotive distribution, given its economic dimension in France and uses or habits resulting from successive specific exemption regulations, generates numerous and sometimes specific cases. 2017 did not depart from this rule. Whether it is the selection of distributors, the performance of contracts or their termination, 2017 knew very interesting judgments. Motorcycles distribution, even if litigation is lower, completes this panorama of case law.