FLASH-CONCURRENCE-28OCT2019

A court of appeal cannot hold – in order to reject the application of the transferee of a business for the cessation by a competing undertaking, subject to penalties, of the fraudulent use of elements of its trade name included with the transferred business – that it is not established that the undertaking knew that the disputed name was part of the transferred business or was even aware of the non-compete obligation signed by the transferors with regard to the transferee, without ascertaining whether such use was likely to create a risk of confusion in the mind of the customers, by implying that the transferors’ previous business has relocated, the fact that, since its creation, the transferee has been using a trading name which is different from the name at issue being irrelevant.
Court of Cassation, commercial chamber, 16 October 2019, LawLex201900001250JBJ

Non-compete clause: Third party complicity
A person who knowingly recruits an employee in full knowledge of the non-compete obligation by which the latter is bound towards his former employer, commits a tort without it being necessary to show the existence of unfair maneuvers.
Court of Cassation, commercial chamber, 16 October 2019, LawLex201900001247JBJ

Unfair terms between professionals: Contractual penalties
A clause which stipulates penalties in the event of late delivery causing the non-payment of the service is not imbalanced when the parties have agreed that punctuality shall constitute an obligation to produce a result (obligation de résultat).
CA Paris, 17 October 2019, LawLex201900001231JBJ

Sudden termination of established commercial relationship: Group of companies
Insofar as it has no legal personality, a group of companies cannot enter into a contract or be a commercial partner within the meaning of Article L. 442-1, II (former Article L. 442-6, I, 5 °) of the Commercial Code.
Court of Cassation, commercial chamber, 16 October 2019, LawLex201900001237JBJ

Sudden termination of established commercial relationship: Length of notice period
The customer who only places one order during the notice period without justifying any obstacle to the pursuit of trading relations during that period, is liable.
CA Paris, 17 October 2019, LawLex201900001232JBJ

Anticompetitive agreements: Legal and economic context
The fact that three national competition authorities, one of which is non-EU, have not brought proceedings after having taken cognizance of the contracts of the network does not create a legitimate expectation that those contracts are lawful since the Commission alone is empowered to rule that Article 101 TFEU is inapplicable and it has not been established that those authorities were in possession of the same information as the French Competition Authority.
CA Paris, 17 October 2019, LawLex201900001229JBJ

Anticompetitive agreements: Rule of reason
Although an obligation of the physical handing over of dangerous products is able to guarantee their proper use and the safety of users, it goes beyond what is necessary for their sale where it is also imposed for sophisticated users and professionals users, the obligation to personally ensure said handing over could be replaced by subcontracting agreements between resellers and a demonstration of the terms of use of the products can be carried out online via animations or videos.
CA Paris, 17 October 2019, LawLex201900001229JBJ

Mergers: Strengthening of buyer power/Dependence
A merger is only liable to affect competition if the creation or strengthening of a state of economic dependence of the suppliers of the parties to the transaction may affect the structure or functioning of competition in the relevant markets.
Competition Authority, 27 September 2019, LawLex201900001225JBJ

Mergers: Transfer of shares or assets
The concentration is authorized subject to an unprecedented up-front buyer commitment which offers a reliable guarantee of efficiency in its implementation to the extent that the transaction cannot be carried out until the buyer of the transferred assets is approved and the Competition Authority has ensured that the latter has obtained all the guarantees necessary for the takeover (independence, continuation of the activity).
Competition Authority, 27 September 2019, LawLex201900001225JBJ