Vogel News

A weekly update of important cases in French and European competition law, distribution law, consumer law and European business law.

All decisions cited are available for consultation in our Decisions database (full text)

French Competition Law

Resale price maintenance : RPM clauses

The franchisee’s obligation to inform the franchisor of the mark-up applied does not in itself reflect the existence of a monitoring of the profit margin which would constitute indirect resale price maintenance.
CA Paris, 19 June 2019, LawLex20190000834JBJ

Unfair terms between professionals: Subjection to imbalanced obligations

A claimant who cannot show that it objected to the allegedly unfair commercial terms is precluded from claiming subjection to a significant imbalance.
CA Paris, 19 June 2019, LawLex20190000846JBJ ​​​​​

Sudden termination of established commercial relationship: State of dependence

The dependence of a service provider is assessed with regard to the turnover achieved with the terminating party and not that achieved with other companies of the group to which the latter belongs and to which it also provides services.
CA Paris, 19 June 2019, LawLex20190000843JBJ ​​​​

Actions available for abuse of dependence: Applicable law

Although Article L. 442-6, I, 5° [now L. 442-1, II] of the Commercial Code is an overriding mandatory provision, it does not allow the exclusion of the foreign law designated by the conflict-of-law rules when the dispute does not have a sufficient connection with France.
CA Paris, 12 June 2019, LawLex20190000804JBJ ​​​

Anticompetitive agreements: Restriction by object

The definition, by a professional grouping, of terms of access and exclusion which are intended to prevent the creation of new bailiff’s offices, whereas this was promoted by the Law of 6 August 2015, constitutes a restriction by object.
Competition Authority, 24 June 2019, LawLex20190000857JBJ ​​​​

Anticompetitive agreements: Legal and economic context

The harmfulness of a price-fixing agreement is obvious when the analysis of the economic and legal context in which it operates reveals that it is intended to hinder the legislature’s desire to introduce more competition to the sector in question.
Competition Authority, 24 June 2019, LawLex20190000858JBJ

Court-ordered investigation: Assisting the national competition authorities

The Competition Authority applying for a warrant to carry out search and seizure operations at the request of the authority of another Member State does not unreasonably extend the scope of the investigations by asking that they also relate to practices implemented on the national territory, insofar as the foreign authority’s procedure concerns conduct liable to affect several Member States.
CA Paris, 19 June 2019, LawLex20190000835JBJ ​​

Mergers: Product or services market

Although in the retail sector of basic consumer goods, the decision-making practice distinguishes six retail categories of consumer goods: (i) hypermarkets (predominantly food stores with a regulatory sales area of more than 2,500 m²), (ii) supermarkets (between 400 and 2,500 m²), (iii) specialized retailers, (iv) the small retailers (less than 400 m²), (v) the maxi -discounters, and (vi) mail-order sales, the surface-area thresholds may be adapted as stores with surface areas that are close to a threshold – either under or over –  may be in direct competition with stores in another category.
Competition Authority, 26 April 2019, LawLex20190000758JBJ ​​

Mergers: Input foreclosure strategy

Insofar as the channels of talent and influencers managed by the notifying party represent less than 25% of the audience on YouTube, regardless of how the calculation of the base (total number of views, number of views in the thirty last days or number of new subscribers in the last 30 days), it is not able, through contractual stipulations, to compel the talent and influencers to produce audiovisual content for television exclusively through the target undertaking, and, as it faces  competitors which are equally as integrated, there is no risk of foreclosure of access to talent and influencers liable to exclude competitors of the new entity from markets for broadcasting rights for audiovisual programs.
Competition Authority, 24 May 2019, LawLex20190000867JBJ ​​​​​​

Mergers: Geographic market

Insofar as the management services for talent and influencers are paid for by the monetization of their image with advertisers, either through campaigns involving talent and influencers, or by selling advertising space preceding their videos, or monetization of the placements or promotion of products, the geographical dimension of the management services market for talent and influencers must be considered as national, since the language criterion is important for advertisers in the choice of the medium and content for the publishing of the advertisement.
Competition Authority, 24 May 2019, LawLex20190000867JBJ ​

Mergers: Vertical mergers

In order to estimate the notifying party’s market share in the management services markets for talent and influencers, one hypothesis is to rely on data from the YouTube platform alone, given that it is the platform on which it invests the most in terms of communication and recruitment of talents and influencers.
Competition Authority, 24 May 2019, LawLex20190000867JBJ​​​​

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French Distribution Law

Exclusive distribution: Foreclosure guarantee, latent defects and defective products

An exclusive distributor to which a large quantity of defective products has been delivered is entitled to terminate the distribution contract immediately, even if the supplier has provided a credit note.
CA Paris, 19 June 2019, LawLex20190000845JBJ

Franchise: Duty to assist

Although the franchisor owes some commercial and technical assistance to the franchisee, which may be accompanied by financial assistance and a duty to advise, it is under no obligation to lower the selling prices in order to allow the franchisee to increase its turnover or profit margin.
CA Paris, 19 June 2019, LawLex20190000834JBJ

Commercial agents: Serious breach by agent

The fact that the principal did not claim serious breach when informing the agent that the contract would not be renewed, which he is under no obligation to justify, does not prevent him from invoking the existence of such a breach at a later date to contest the payment of any indemnity.
Cass. com., 19 June 2019, LawLex20190000836JBJ

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French Consumer Law

Liability for defective products: Defective presentation/information

The medication Aspégic is not defective within the meaning of Article 1245-3 of the Civil Code, even if it does not refer to Lyell syndrome in the accompanying notice, insofar as it does indicates the risk of a potentially serious allergic reaction and as, despite the side effects, the risk-benefit ratio remains positive.
Court of Cassation, commercial chamber, 19 June 2019, LawLex20190000838JBJ

Liability for defective products: Manufacturing/design defect

The viticultural machine having an ergonomic defect in the driver’s seat such that the operator runs a risk of injury, is abnormally dangerous and incurs the full liability of the manufacturer.
CA Reims, 18 June 2019, LawLex20190000859JBJ

Liability for defective products: Fault of the victim

Despite the existence of a safety defect on the viticultural machine at issue, the failure by the victim, a wine-making professional, to comply with elementary safety rules may reduce his compensation by half.
CA Reims, 18 June 2019, LawLex20190000859JBJ

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Free movement of persons and services: Rule of reason

The restrictions on transfers of losses imposed by the legislation of the Member State of establishment of the subsidiary are not decisive so long as the parent company has not adduced evidence that it is impossible for those losses to be used by a third party, in particular after a sale for a price including the tax value of the losses, but if such evidence is adduced, the fiscal authorities are required to find that the losses of a non-resident subsidiary are final and that it is therefore disproportionate to not allow the parent company to take them into account at its level for tax purposes.
CJEU, Case C-607/17 Skatteverket v Memira Holding AB, Judgment of 19 June 2019, LawLex20190000831JBJ

Free movement of persons and services: Rule of reason

In the assessment of the finality of the losses of a non-resident subsidiary on which the parent company’s deductibility is dependent, the fact that there are no other entities in the State of establishment of the subsidiary which could have had the losses of that subsidiary transferred to them via a merger if such a possibility had been afforded is irrelevant.
CJEU, Case C-607/17 Skatteverket v Memira Holding AB, Judgment of 19 June 2019, LawLex20190000831JBJ

Free movement of persons and services: Rule of reason

Where the intermediate subsidiary or, subsidiaries between the parent company applying for group relief and the sub-subsidiary sustaining losses that could be regarded as final are not established in the same Member State, it is not disproportionate for a Member State to make cross-border tax relief conditional on a direct link.
CJEU, Case C-608/17 Skatteverket v Holmen AB, Judgment of 19 June 2019, LawLex20190000825JBJ

Free movement of persons and services: Rule of reason

National legislation which precludes group relief in the event of losses of a non-resident subsidiary if there is no direct link between the parent company making the application and the non-resident subsidiary sustaining the losses may be justified by the need to preserve the balanced allocation of the power to impose taxes between the Member States and to prevent the risk of losses being used twice and of tax avoidance.
CJEU, Case C-608/17 Skatteverket v Holmen AB, Judgment of 19 June 2019, LawLex20190000825JBJ

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Vogel Global Competition Newsletter

Our quarterly newsletter discusses recent case law of the countries of the Vogel Global Competition Network.

No 1 – April 2019

Argentina – Argentina brings in new law and guidelines for competition enforcement by Francisco Rondoletti

Czech Republic – Problems persist with the Act on Significant Market Power by Jindrich Kadoun

Greece – Decision on the public works cartel case – entities that did not submit to the settlement procedure by Tania Patsalia

Poland – The Polish Competition Authority gains new powers to impose fines on managers by Krzysztof Kanton

United Kigdom – The CMA targets the UK construction industry by Tripti Malhotra

Ukraine – Ukrainian Competition Authority explains vertical exemption in pharma by Tetiana Vovk

No 2 – December 2018

Australia – New prohibition against concerted practices

Denmark – The Danish Competition Council’s decision on industry standard setting

Estonia – The Estonian Competition Authority – a shift towards stricter merger control?

Lithuania – Improving merger control in Lithuania

Polynesia – French Polynesia establishes competition framework

Romania – Romanian Competition Council sanctions private medical hospitals and stem cells banks for anticompetitive agreements

No 1 – March 2018

Croatia – Prohibition of unfair trading practices in the food supply chain

Denmark – Danish competition rules become more reflective of EU law

India – New target exemption under the Competition Act 2002

Malta – Maltese Competition Authority imposes interim measures on insurance companies

Romania – Exchange of sensitive information in merger cases – Romanian Competition Council assessment

South Africa – The South African Competition Amendment Bill – will it be business as usual in South Africa?

United Kingdom – UK competition law following Brexit – update

No 3 – November 2017

Belarus – Upgrading the Belarusian anti-monopoly regulation

China – How to assess ‘control’ under MOFCOM’s latest draft of measures for reviewing notifi cation of concentrations

Estonia – European Commission disapproves of Estonia’s fi ning practices

Belarus – Upgrading the Belarusian anti-monopoly regulation

China – How to assess ‘control’ under MOFCOM’s latest draft of measures for reviewing notifi cation of concentrations

Estonia – European Commission disapproves of Estonia’s fi ning practices

No 2 – July 2017

Chile – Legislative amendments to the Chilean competition defense system

Denmark – New Danish Marketing Practices Act

No 1 – March 2017

Cyprus – Combating cartels – the leniency program in Cyprus by Charis Papachristodoulou

Greece – Procedural modernization of Greek competition law – new settlement procedure for cartel investigations by Tania Patsalia