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 in unfair competition: Proof of fault

The right to a fair trial requires that the person who assists the bailiff during the establishment of a certified bailiff’s report be independent from the applicant who, on suspecting acts of unfair competition, has applied to the President of the Tribunal de grande instance on the basis of Article 145 of the Code of Civil Procedure.
Court of Cassation, 2nd civil chamber, 5 December 2019, LawLex201900001512JBJ

Action in unfair competition: Arbitration clause

A national court cannot declare itself competent on the ground that the arbitration clause in a shareholders agreement was not obviously applicable to the tortious liability action based on the complaint of acts of unfair competition and parasitism, without ascertaining, as it was asked to do, whether the litigation concerned the breach by the respondents of the non-compete obligation by which they were bound under the shareholders agreement.
Court of Cassation, 1st civil chamber, 4 December 2019, LawLex201900001499JBJ

Disparagement: Right of reply

An undertaking is not entitled to accuse its competitor of disparagement for responding to the unfair conduct of its own staff.
Court of Cassation, commercial chamber, 4 December 2019, LawLex201900001495JBJ

Sudden termination of established commercial relationship: Refusal to order

The client who drastically reduces the volume of orders purchased from a supplier who legitimately believed in the continuity of relations in light of the turnover so far achieved, suddenly terminates an established commercial relationship, even if he stipulated that he was free to use its services or not and did not guarantee the supplier any particular turnover or exclusivity.
CA Paris, 27 November 2019, LawLex201900001490JBJ

Sudden termination of established commercial relationship: Breach of contract

A distributor who violates its exclusive purchase obligation and minimum purchase undertaking commits sufficiently serious breaches of contract to justify a termination of the established commercial relationship with thirty days’ notice.
Court of Cassation, commercial chamber, 4 December 2019, LawLex201900001504JBJ

Sudden termination of established commercial relationship: Length of notice

The 18-month cap provided for by the Ordinance of 24 April 2019 cannot be relied on for a dispute preceding its entry into force.
CA Paris, 27 November 2019, LawLex201900001489JBJ

Sudden termination of established commercial relationship: Length of notice

The refusal by the terminated partner to comply with an insufficient notice period does not in itself render him liable for the termination.
Court of Cassation, commercial chamber, 4 December 2019, LawLex201900001495JBJ

Investigations: Rights of the defense

The liberties and detentions judge must verify the existence of evidence of anticompetitive practices solely on the basis of elements which will subsequently be entered into the adversarial proceedings not on the basis of partially or totally redacted documents which he was able to consult elsewhere in their original version.
CA Papeete, 4 December 2019, LawLex201900001515JBJ

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French Distribution Law

Exclusive purchase: Targets clause

The distributor whose contract is terminated early due to the breach of the purchase commitment must compensate for supplier’s future, but certain harm consisting of the margin lost up to the normal term of the contract.
Court of Cassation, commercial chamber, 4 December 2019, LawLex201900001504JBJ

Exclusive distribution : Obligation of fairness

A reseller is guilty of parasitism when he uses the brand of his supplier and his position as exclusive distributor to promote a competing product on behalf of a company managed by the same persons that manage his own.
CA Paris, 27 November 2019, LawLex201900001491JBJ

Motor vehicle distribution: Specific performance of contract

The unilateral implementation of a termination clause, of which all the conditions have been fulfilled does not allow the reseller to claim imminent loss or a manifestly unlawful disturbance in order try to obtain the continuation, even temporarily, of the terminated contract.
Court of Cassation, commercial chamber, 4 December 2019, LawLex201900001496JBJ

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French Consumer Law

Warranty against latent defects: Disclaimers

Insofar as the manufacturer is presumed to be aware of the defects affecting the thing sold only with regard to the lay purchaser, a disclaimer may be enforced in respect of latent defects in a contract with an intermediary reseller in the same speciality, unless the latter can bring proof that the manufacturer had actual knowledge of the defect and had acted in bad faith.
Court of Cassation, 1st civil chamber, 27 November 2019, LawLex201900001516JBJ

Warranty against latent defects: Disclaimers

A manufacturer may implement the clause in the sales contract with its distributor limiting the warranty to a refund of the price to the exclusion of any other damages, against the sub-buyer of the thing.
Court of Cassation, 1st civil chamber, 27 November 2019, LawLex201900001516JBJ

Unfair terms: Indemnity

A contract term intended to remove or reduce the right to compensation for loss suffered by the consumer in the event of the professional’s failure to comply with one of his obligations, is irrefutably deemed unfair, irrespective of which party stipulated it.
Court of Cassation, 1st civil chamber, 11 December 2019, LawLex201900001520JBJ

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Europe

State aid: Private investor in a market economy test

The private investor test is not applicable  to an order made by a national court ruling in interlocutory proceedings, granting the appellant interim measures to protect its financial interests which presents, in view of its nature, the context in which it is set, its objective and the rules to which it is subject, the characteristics of a judicial act falling within the prerogatives of public authority of the Member State concerned.
CJUE Case C-332/18 P Mytilinaios Anonymos Etairia – Omilos Epicheiriseon, Judgment of 11 December 2019, LawLex201900001521JBJ

State aid: Effect on trade between Member States

The criteria relating to the distortion of competition and the effect on trade between Member States are met where an aid strengthens the position of an undertaking compared with other undertakings competing in the Union’s internal trade.
CJUE Case C-332/18 P Mytilinaios Anonymos Etairia – Omilos Epicheiriseon, Judgment of 11 December 2019, LawLex201900001521JBJ

Jurisdiction and enforcement of judgments: Scope of application

A dispute concerning a lawyer’s obligation to pay annual professional fees for which he or she is liable to the bar association to which he or she belongs comes within the scope of Regulation No 1215/2012 only if, in calling on that lawyer to perform that obligation, the bar association is not acting, under the national law applicable, in the exercise of public powers.
CJEU, Case C-421/18 Ordre des avocats du barreau de Dinant, Judgment of 5 December 2019, LawLex201900001513JBJ

Jurisdiction and enforcement of judgments: Concept of matters relating to a contract

An action by which a bar association seeks an order that one of its members pay the annual professional fees for which he or she is liable does not in principle constitute an action in matters relating to a contract, insofar as it is based on a legal obligation to register with the bar association to which practising as a professional lawyer is subject and not on a legal freely consented to by one person towards another.
CJEU, Case C-421/18 Ordre des avocats du barreau de Dinant, Judgment of 5 December 2019, LawLex201900001513JBJ

Jurisdiction and enforcement of judgments: Concept of matters relating to a contract

An action by which a bar association seeks an order that one of its members pay the annual professional fees for which he or she is liable and which are essentially intended to finance insurance services, must be regarded as constituting an action in matters relating to a contract, if those fees constitute consideration for services provided by that bar association to its members and those services are freely consented to by the member concerned.
CJEU, Case C-421/18 Ordre des avocats du barreau de Dinant, Judgment of 5 December 2019, LawLex201900001513JBJ

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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