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

Action for unfair competition: Jurisdiction of interim applications judge

The plaintiff is justified in not calling the opposing party to avoid maneuvers intended to thwart the presentation of the evidence of unfair competition by showing that the element of surprise was necessary for the success of the measure sought on the basis of Article 145 of the Code of Civil Procedure.
Court of Cassation, 2nd civil chamber, 30 January 2020, LawLex20200000156JBJ

Disruption: Creating a competing undertaking

Even if it derogates from the articles of association of the SARL (limited company) of which he was the manager, the creation, by that former partner, of a competing company is not unlawful since all the partners, including himself, subsequently consented to it in a memorandum of understanding, and therefore the fact that on the day said memorandum was concluded he transferred all his shares to a new partner – whose consent was not able to be obtained – neither affects its validity nor the lawfulness of the new activity.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000157JBJ

General terms and conditions of sale: Late payment penalties

An association, which can claim the status of non-professional in view of its activity is not liable for the late payment penalties provided for in Article L. 441-10, II (former L. 441 -6) of the Commercial Code.
Court of Cassation, 1st civil chamber, 5 February 2020, LawLex20200000165JBJ

Sudden termination of established commercial relationship: Unforseeability

The internalization of the service previously entrusted to a partner undertaking following the recruitment of one of its employees constitutes at minimum a partial termination of the established commercial relationship, which, even if it were foreseeable, does not relieve the client from the obligation to provide sufficient notice.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000148JBJ

Sudden termination of established commercial relationship: Length of notice

A late delivery cannot justify the immediate termination of relations during the notice period, when previous delays have not stopped the client from giving termination notice to its service provider and since the breach in question relates to only a small part of current orders.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000153JBJ

Abuse of dominant position: Exemption

The existence of acts of IP infringement cannot justify a discriminatory refusal to sell.
Court of Cassation, 2nd civil chamber, 30 January 2020, LawLex20200000150JBJ

Competition Authority proceedings: Business secrets

The decision by the Deputy General Rapporteur of the Competition Authority to declassify business secrets must establish why it is necessary in the debates before the Authority – which has the confidential version of the information communicated by the undertaking in question – for  the other parties to the procedure, including the applicant, to be made aware of that information.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000163JBJ

Civil sanctions: Harm

The victim of anticompetitive practices has the right to compensation not only for the direct and immediate loss of business volumes resulting from the anticompetitive practice, but also for the inevitable loss due to the delayed effect of the practice, consisting in the drop in business volumes caused by the inability to maintain the loyalty of the poached customers.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000162JBJ

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French Distribution Law

Exclusive distribution: Sudden termination of established commercial relationship

Thirteen months’ notice is sufficient to terminate an established business relationship of fifteen years and eight months.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000152JBJ

Franchise: Relationship to other networks

The transfer of a goodwill business at a derisory price, the waiving of debt and excessively long payment deadlines granted by a franchisor do not constitute acts of unfair competition with respect to franchisees of other networks.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000158JBJ

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French Consumer Law

Unfair commercial practices: Concept of commercial practice

The fact that a commercial practice is not prohibited by Directive No 2005/29 or does not fall within its scope does not render it lawful.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000164JBJ

Commercial lotteries: General principle of prohibition of lotteries

The “Winamax Poker Tour” tournament organized with players actually present, relating to a game of chance which raises the hope of a win, is an offer made to the public by means of a major advertising campaign and requires a financial sacrifice, meets the four elements of lotteries prohibited under the Internal Security Code, without it being necessary to find that the practice is unfair, and the fact that the organizing company operates an online poker site approved by the ARJEL (regulatory authority for online gambling) is not significant.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000164JBJ

Commercial lotteries: General principle of prohibition of lotteries

Directive No 2005-29 applies without prejudice to European and national rules relating to authorization schemes, in particular, the rules relating to gambling activities, and therefore the overriding mandatory provisions of national laws and regulations which govern gambling and are included in the Internal Security Code cannot be ruled out solely on the grounds that the disputed poker tournament is not prohibited by said directive.
Court of Cassation, commercial chamber, 29 January 2020, LawLex20200000164JBJ

Liability for defective products: Exclusion of damage caused to defective product itself

The claimant has not provided a legitimate reason for the purpose of obtaining the investigative measures pursuant to Article 145 of the Code of Civil Procedure on the basis of liability for defective products, insofar as the fires in question caused damage only to defective agricultural machinery, whereas the provision only applies to compensation for harm resulting from personal injury and damage greater than an amount fixed by decree, which arises from damage to property but not the defective product itself.
Court of Cassation, 1st civil chamber, 22 January 2020, LawLex20200000139JBJ

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Europe

Anticompetitive agreements: Restriction by object

The characterization as a “restriction by object” must be upheld where it is clear from an analysis of settlement agreement that the sole consideration for transfers of value provided by it is the generic manufacturer’s undertaking not to enter the market and no longer to challenge the patent and can have no explanation other than the commercial interest of both the patent holder not to enter the market and not to challenge the patent and the alleged patent infringer not to compete on the merits.
CJEU, Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex20200000131JBJ

Anticompetitive agreements: Restriction by object

When the parties to an amicable settlement purport to rely on its pro-competitive effects, the court must, as elements of the context of that agreement, take them into account for the purpose of the characterization as a “restriction by object” insofar as they are capable of calling into question the overall assessment of whether the concerted practice concerned revealed a sufficient degree of harm to competition and are demonstrated, relevant and specifically related to the agreement concerned.
CJEU, Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex20200000131JBJ

Anticompetitive agreements: Rule of reason

The taking into account of the pro-competitive effects of a settlement agreement does not conflict with the European Court’s settled case-law that EU competition law does not recognize a rule of reason, where it is intended not to undermine the characterization of a restriction of competition but merely to appreciate the objective seriousness of the practice concerned and, consequently, to determine the means of proving it.
CJEU, Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex20200000131JBJ

Public procurement: Participation in contract

The specific objective of Article 57(4)(a) of Directive No 2014/24, which is to ensure compliance with obligations under environmental, social and labor law, combined with the objective relating to the reliability of the economic operator under Article 101 of that directive, must enable the Member States to impose the contracting authority the option, or even the obligation, to regard as reliable only those economic operators who, when drawing up their tenders, have exercised the care and diligence required to ensure that, in the course of performance of the contract, the obligations concerned are complied with in all circumstances, whether by themselves or by the subcontractors to whom they intend to entrust part of that performance.
CJEU, Case C-395/18 Tim SpA – Direzione e coordinamento Vivendi SA, Judgment of 30 January 2020, LawLex20200000147JBJ

Public procurement: Causes of exclusion

National legislation is incompatible with EU law where it provides in a general and abstract manner for the automatic exclusion of the economic operator when a failure to fulfil obligations under environmental, social and labor law is established in relation to one of the subcontractors indicated in that operator’s tender, irrespective of the circumstances which led to that failure, and thus establishes an irrebuttable presumption that the economic operator must be excluded for any failure attributable to one of its subcontractors, without leaving the contracting authority the option of assessing, on a case-by-case basis, the particular circumstances of the case or the economic operator being able to demonstrate its reliability despite the finding of that failure.
CJEU, Case C-395/18 Tim SpA – Direzione e coordinamento Vivendi SA, Judgment of 30 January 2020, LawLex20200000147JBJ

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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