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

Confusion: Unlawful use

The decision of the undertakings in question to launch scooters called “Bolt” at the occasion of a trade show in France in May 2019 is constitutive of unlawful recklessness insofar as the principle of fairness in the free exercise of trade should have incited them to clearly distinguish themselves from their competitor – a Bolt scooter app service already present on the market – as any reasonably observant relevant member of the public, who is generally aware of the names of self-service scooters, is thus encouraged to consider them as being from economically linked undertakings.
CA Paris, 15 November 2019, LawLex201900001406JBJ

Unfair competition: Competitive situation

Even in the absence of a situation of direct and effective competition between the persons concerned, disclosure by one of them of information likely to discredit a product marketed by the other may constitute an act of disparagement.
CA Versailles, 12 November 2019, LawLex201900001407JBJ

Disparagement: Criticism

The online publication of an article that is part of a militant action in favor of natural health practices and aims to inform the public on a subject of general interest, namely the presence of chemical excipients in a vitamin D supplement for infants and on the health risks relating to them in a section of the article entitled “Coup de gueule” (outburst of anger) which is an expression denoting an opinion piece justifying the use of vehement or provocative language that the reader will be  able to put into perspective, does not characterize an act of disparagement.
CA Versailles, 12 November 2019, LawLex201900001407JBJ

Disparagement: Defamation

The truth exception, which applies to insult and defamation, cannot justify an act of disparagement.
CA Lyon, 7 November 2019, LawLex201900001391JBJ

Disparagement: Email

One e-mail sent to a client relating the state of mind of a former employee that does not discredit the products of his former employer or the company itself, does not characterize an act of disparagement.
CA Lyon, 7 November 2019, LawLex201900001390JBJ ​​​​​​​

Parasitism: Investments made by parasite

The claim of parasitism is rejected since, although the complainant had been known for a few months as an operator in the sector, it is not established that the defendants had probably intended to take advantage of its investments without any cost to themselves, since they had clearly invested in the launch of their scooters and planned to publicize their partnership with a former Olympic champion.
CA Paris, 15 November 2019, LawLex201900001406JBJ

Unfair terms between professionals: Potestative condition

A clause which allows the customer to adjust the agreed prices according to variations in its need for services is not imbalanced since its implementation is based on an objective criterion i.e. changes to its workforce.
CA Basse-Terre, 12 November 2019, LawLex201900001385JBJ

Sudden termination of established commercial relationship: Cooperative

The provisions of Article L. 442-1, II (former Article L. 442-6, I, 5°) of the Commercial Code are not applicable to the assessment of the corporate link between a retailers’ cooperative and a partner, but do apply to the conditions for the termination of the commercial relationship between them, since the special legislation does not govern the issue of notice.
CA Paris, 6 November 2019, LawLex201900001348JBJ

Sudden termination of established commercial relationship: EIG

Article L. 442-1, II (former Article L. 442-6, I, 5 °) of the Commercial Code is not intended to apply to a termination when there is no commercial relationship separate from the statutory relationship between the EIG and one of its members.
CA Paris, 13 November 2019LawLex201900001382JBJ

Sudden termination of established commercial relationship: Indirect victim

In the absence of any direct relationship with the supplier, a third party to a distribution contract which de facto ensures its performance in a part of the contract territory, cannot claim to be a victim of the termination notified to the distributor on the basis of Article L. 442-1, II ( former Article L. 442-6, I, 5°) of the Commercial Code.
CA Paris, 20 November 2019, LawLex201900001409JBJ

Sudden termination of established commercial relationship: Proof of fault

Complaints from customers that the supplier has not bothered to pass on to the reseller/repairer cannot be regarded as the manifestation of serious breaches able to justify an immediate termination of the established commercial relationship.
CA Paris, 7 November 2019, LawLex201900001366JBJ

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French Distribution Law

Exclusive distribution: Network discipline

The supplier, who, after becoming aware of active sales by a member of the network in the territory of one of its exclusive distributors, does not order the behavior to cease, if necessary by threatening termination of the contract, breaches the obligation of contractual good faith.
CA Lyon, 12 November 2019, LawLex201900001386JBJ

Franchise: Pre-contractual information

The pre-contractual information obligation applies to an affiliation contract even if the member does not subscribe to the exclusivity agreement with the same entity as the one having granted the signage rights.
CA Douai, 14 November 2019, LawLex201900001389JBJ

Franchise: Franchisor’s loss

The head of the franchisee undertaking who intentionally committed a particularly serious breach incompatible with the exercise of his corporate functions, by creating a company in competition with his own, using the concept of the franchise to better compete with it, is personally liable in damages in respect of the franchisor.
CA Paris, 13 November 2019, LawLex201900001388JBJ

Franchise: Jurisdiction clause

A jurisdiction clause is not a potestative clause because of an asymmetry in its terms of implementation – the French franchisee being required to bring disputes before the Italian court while the Italian franchisor may choose the Italian court or the court of the domicile of the franchisee – as, since the competent court is clearly designated, the objective of foreseeability is guaranteed.
CA Aix-en-Provence, 7 November 2019, LawLex201900001381JBJ

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French Consumer Law

Obligation to inform and advise: Concept

The professional seller who failed to inform the lay purchaser of a course race horse that it had recently suffered from colic, or that it had undergone two surgeries related to that pathology, fails, at the time of the sale, to provide a decisive piece of information relating to the state of health of the animal, taking into account the risks of recurrence of colic episodes, the fact that they were very recent, and the high-level sports activity for which the horse was purchased.
CA Versailles, 14 November 2019, LawLex201900001408JBJ

Fraud: Imputability

An individual cannot argue that his consent to the joint purchase of real estate is vitiated by the reluctance and deception of his companion as to the truth pertaining to her assets and seek the nullity of the sales agreement, since fraud is only a ground for nullity if it is committed by the party with whom the obligation is contracted, i.e. in this case the sellers.
CA Montpellier, 7 November 2019, LawLex201900001394JBJ

Liability for defective products: Three-year limitation period

Articles 1245-14 and 1245-15 of the Civil Code are only applicable to products whose entry into circulation is after that of the Law of 19 May 1998 on defective products (Article 21 thereof) and therefore an action based on those provisions concerning a bicycle put into circulation in November 1996 is inadmissible.
CA Aix-en-Provence, 7 November 2019, LawLex201900001383JBJ

Warranty against latent defects: Thing not fit for purpose

An offer to pay, as a gesture of goodwill, for the cost of a defective motor, excluding labor, is not an acknowledgment of liability.
CA Caen, 14 November 2019, LawLex201900001403JBJ

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Europe

Copyright and related rights directives: Right to communicate and make available

National legislation which establishes, as regards the exploitation of audiovisual archives by a body set up for that purpose, a rebuttable presumption that the performer has authorized the fixation and exploitation of his performances, where that performer is involved in the recording of an audiovisual work so that it may be broadcast, is compatible with EU law provided that such a presumption enables a fair balance of rights and interests between the different categories of rightholders.
CJEU Case C-484/18 PG, GF, Syndicat indépendant des artistes-interprètes (SIA-UNSA), Judgment of 14 November 2019, LawLex201900001393JBJ

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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 2 – October 2019

Finland – Finland must recover over EUR 50 million in incompatible

Hungary – Assessment of RPM remains formalistic in the approach of

Malta – Amendments to the Competition Act aim to restore public enforcement of competition law back on its feet

Romania – Cement sector in Romania under the scrutiny of the competition authority

Singapore – Singapore’s competition regulator gains new consumer protection mandate and other significant competition and consumer law developments in Singapore

Switzerland – In May 2013, the Swiss Competition Authority rendered a decision condemning thirteen distributors (several of them being Swiss daughter companies of French publishers) of French books in Switzerland from preventing direct sales from France to Switzerland

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