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.
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.
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.
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.
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.
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.
Is it possible to do comparative advertising? André Bricogne, asked about this question by the site culturecuisine-lemag.com, pointed out the conditions of validity of comparative advertising in France and the sanctions for lawbreakers.
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.
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.
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.
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.
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).
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 practicesandcommercial litigation.
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.
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).
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.
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.
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.
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 onDecember 18 2019.
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.
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.
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.
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.
In its September 2019 issue, the Revue Lamy de la concurrence publishes an article by Xavier Henry entitled “Selective distribution and refusal to contract: the difficulty of reconciling Metro I case law with exemption regulations” (RLC n° 86 9/19 , p. 31).
In three recent decisions, the Paris Court of Appeal and the French Competition Authority had to examine, under competition law, the validity of a refusal to contract from heads of selective distribution networks to candidates for entry into these networks. In particular, they verified that the refusal to contract did not have an anti-competitive object in the light of the case law resulting from the Metro I judgment of the Court of Justice. However, this research does not seem useful because a refusal to contract which does not constitute a hardcore restriction within the meaning of the applicable vertical restraints exemption regulations is not unlawful in itself. The refusal to contract could possibly only constitute a restriction by effect (which was however not the case in the Court of Appeal’s décisions).
The law or companies provide a number of guarantees in favour of buyers of goods. Their multiplicity means that litigants may be lost, especially regarding time limits for asserting their rights. An article from our Law Firm published by the website chefdentreprise.com provides an update on this issue.
Since 2008, “significantly unbalanced” clauses in commercial contracts have been prohibited when imposed by the strong party to the contract. Review of this ban, sometimes unknown, which was reformed last April 24 in an article published by our firm on the website chefdentreprise.com
Few pictures of our presentation for Campus Avocats on July 5, 2019 in the Maison de la Chimie in Paris on the theme “Unbalanced clauses in commercial contracts (Article L. 442-1, I, 2° of the French Commercial Code): inventory of the situation and prospects after the reform of 24 April 2019“.
The French Competition Authority can enter the premises of companies without warning and seize documents on all media for several hours or even days. Knowing its rights in this kind of situation is essential. Review of the rights of companies in an article of our law firm published by the website chefdentreprise.com
In its June issue 2019, the Revue de Jurisprudence de Droit des Affaires (RJDA) publishes a legal article written by Xavier Henry entitled “price control by the judge based on the prohibition of submission to a significant imbalance between the parties: Much ado about nothing ?”
On November 30, 2018, the French Constitutional Council (Conseil constitutionnel) declared that the interpretation of the French Supreme Court (Cour de Cassation) regarding Article L. 442-6, I, 2° (now Article L. 442-1, 2°) of the French Commercial Code that the judge is entitled to control the price agreed by the parties was in accordance with the French Constitution. If this control does not appear so surprising since it is not new under French law, its implementation seems delicate so that the judicial challenge of the price should be exceptional. Moreover, if the Order dated 24 April 2019, which amends ex-article L 442-6, I-2°, will not be of any help on the implementation of the control issue, it could nevertheless broaden the judge’s right to control the price.
As every year, the Paris Bar organizes at the beginning of the summer a week of training for Paris Bar’s lawyers. These trainings are provided by lawyers, law professors, in-house lawyers, …
Our firm was selected to provide on July 5, 2019 at 16:45 at the Maison de la Chimie in Paris a training course entitled “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 “. The following link allows to register.
Inventory of the administrative fines imposed in 2018 and at the beginning of 2019 in case of payments exceeding legal deadlines through an legal article of our firm published on the websites decision-achats.fr and chefdentreprise.com entitled: “payment exceeding deadlines: fines increase”.
Order n° 2018-359 dated 24 April 2019 amends the provisions of Title IV of Book IV of the French Commercial Code, particularly the provisions concerning transparency in commercial negotiation. Without revolutionizing the subject, the reform brings new provisions that it is important to know. Review of the “new” transparency resulting from the order n° 2018-359 dated 24 April 2019 in a legal article published on 21 May 2019 by our firm on the Village de la Justice website entitled “Reform of the rules of the transparency in the commercial relations: the revolution will wait”.
Publication of a legal article by Xavier Henry co-written with his Colleague Emmanuel Dieny in the Revue Lamy de la concurrence entitled “Refusal of approval of a selective distributor: the Court of Appeal of Paris in front of the limits of the antitrust law”(RLC 3572, No. 83 May 2019, p.13).
In a few months, the Court of Appeal of Paris has rendered several decisions about the refusal of approval by car manufacturers to candidates who wanted to become or remain authorized repairers (selective distribution). Under this astonishing concentration of decisions, the Court of Appeal had to rule on a question which had not been submitted to it for a long time, i.e. whether a refusal to contract was an agreement in the sense of Article 101 (1), TFEU and 420-1 of the French Commercial Code (antitrust law) or if it was an unilateral act. The Court replied that it was an agreement that could be an anti-competitive agreement in the event of an anti-competitive object or effect. This position, which applies to all selective distribution and not only to automobile distribution, is questionable regarding the principles.
Order No. 2018-359 dated 24 April 2019 amends the provisions of Title IV of Book IV of the French Commercial Code, and in particular the provisions concerning restrictive practices. These are largely rewritten. Presentation of these important changes in an article published on May 15, 2019 by our law firm on the website of the Village de la Justice entitled “A real reform of restrictive practices of competition”.