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

Disruption: Non-compliance with regulations

The online publication of offers for grouped purchases of services including the performance of medical acts, for the benefit of doctors and subscribing establishments, constitutes an act of unfair competition with regard to the medical community, insofar as it causes them moral harm by creating unequal treatment in the conditions of exercise of their activities and undermines the image of the profession by equating the practice of medicine with a commercial activity.
Court of Cassation, 1st civil chamber, 12 December 2018, LawLex201800001993JBJ

Unfair terms between professionals: Concept of imbalance

The proposal to spread a 30% price increase over nine months does not constitute notice insofar as it is not carried out under the former terms.
CA Paris, 19 December 2018, LawLex201900002024JBJ

Abuse of dependence: Listing fees

Article L. 442-6, I, 3 ° of the Commercial Code does not apply to a relationship in which the person requesting a financial contribution does not purchase from the person who grants it.
CA Paris, 19 December 2018, LawLex201900002024JBJ

Fine: equal of treatment

Compliance with the principle of equal treatment cannot require the Competition Authority to align the fine imposed on an undertaking which has not opted to settle with the amount of the settlement reached by the other participants in the infringement with the minister.
CA Paris, 20 December 2018, LawLex201800001990JBJ

Fine: Value of sales to which the infringement relates

When calculating the value of the undertaking’s sales in relation to the infringement, the Competition Authority must deduct the year-end discounts granted to hypermarkets.
CA Paris, 20 December 2018, LawLex201800002000JBJ

Fine: Single or multi-product undertaking

A company cannot claim to be a “single-product” undertaking when the value of sales in relation to the infringement, set against the consolidated turnover of its parent company which has also been sanctioned for its behavior, represents no more than 10. 84% of the turnover of the sanctioned undertaking.
CA Paris, 20 December 2018, LawLex201800002000JBJ

Civil sanctions: Jurisdiction

The fact that a non-specialized court heard a dispute based on the provisions of Article L. 420-1 of the Commercial Code constitutes an absolute bar to proceeding with the action which may be raised by the Paris Court of Appeal of its own motion even if the parties to the dispute oppose it.
CA Paris, 19 December 2018, LawLex201900002084JBJ

Criminal sanctions: Existence of an anticompetitive practice

Article L. 420-6 of the Commercial Code which prohibits the abuse of a dominant position as referred to in Article L. 420-2, paragraph 1, of the same code, without specifying what practices may be abusive or whether deception characterizes a constituent element of the offense, or whether the abuse is intended to have the object or effect of impeding competition, does not violate the principle that offenses and penalties must be defined by law, insofar as Articles L. 420-6, L. 420-1 and L. 420-2 are drafted in terms which are sufficiently clear and precise to exclude any risk of arbitrariness, leaving it to the court, which is entitled to consult the Competition Authority, to characterize, in accordance with its office, behaviors that the legislator cannot exhaustively list due to their number and complexity.
Court of Cassation, criminal chamber, 19 December 2018, LawLex201900002104JBJ

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French Distribution Law

Selective distribution: Resale price maintenance

Resale price maintenance is established when the head of the network communicates its rates to its distributor who is then required to apply them through reminders to comply when any divergence is noted and denounced by the other network members.
CA Paris, 19 December 2018, LawLex201900002084JBJ

Franchise: Pre-contractual information

The presentation of the profitability of a network on the basis of an average of turnover of the sites operated does not constitute fraud even if several of them have encountered serious difficulties, insofar as the data is accurate.
CA Aix-en-Provence, 20 December 2018, LawLex201800002045JBJ

Franchise: Relation with other networks

Allegations of non-compliance with payment deadlines within a competing network cannot establish unfair behavior when they are not sufficiently substantiated or are established based on methods which can attribute to the claimant undertaking the same breach if applied to it.
CA Paris, 12 December 2018, LawLex201800001994JBJ

Commercial agents: Notice period

The fact that invoices were paid several months after notification of the termination of the agency contract does not mean that the principal has granted a notice period to the partner, where said payments related to previous transactions.
CA Paris, 20 December 2018, LawLex201900002103JBJ

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French Consumer Law

Unfair terms: Liability of consumer or non-professional

An exclusion of warranty clause is not unfair simply because it covers both intentional and unintentional breaches by the consumer.
Court of Cassation, 1st civil chamber, 12 December 2018, LawLex201900002059JBJ

Warranty against latent defects: Damages

The court is not required to ascertain whether a professional seller was aware of the defect of the thing.
Court of Cassation, commercial chamber, 5 December 2018, LawLex201900002105JBJ

Warranty against latent defects: Occasional seller

An occasional seller cannot enforce a warranty disclaimer against the buyer when he has carried out, or has had carried out, the work having caused the defect without engaging a professional undertaking.
Court of Cassation, 3rd civil chamber, 6 December 2018, LawLex201900002092JBJ

Warranty against latent defects: Expert appraisal

The court cannot rely exclusively on a non-court ordered appraisal carried out at the request of one of the parties, even if the other party was present.
CA Versailles, 20 December 2018, LawLex201900002100JBJ

Warranty against latent defects: Short time-period

The period available to the contractor to bring an action to enforce a warranty against latent defects against a manufacturer pursuant to Article 1648 of the Civil Code runs from the date of the summons issued against it, as the limitation period under Article L. 110-4 of the Commercial Code is suspended until its liability is sought by the primary contractor.
Court of Cassation, 3rd civil chamber, 6 December 2018, LawLex201900002083JBJ

Liability for defective products: Jurisdiction

Insofar as, pursuant to Article 7(2) of Regulation No 1215/2012, where the place the harmful event occurred and the place of the causal event is not the same the defendant may be sued in the court of either of them, and, in the case of liability for defective products, the place where the harmful event occurred means the place where the original damage occurred as a result of the normal use of the product for the purposes for which it is intended, a court of appeal cannot, in order to dismiss the jurisdiction of the French court, hold that where a manufacturer is sued for liability on that basis, the place of the causal event is the place of manufacture i.e. Germany, since the fire on the yacht in question occurred near the port of Cogolin, and therefore an action against the manufacturer may be brought, at the discretion of the insurer subrogated to the rights of the buyer, before the Commercial Court of Fréjus.
Court of Cassation, 1st civil chamber,19 December 2018, LawLex201900002072JBJ

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Europe

Jurisdiction: Exclusion of fiscal, customs or administrative matters

Having regard to the exceptional character of the conditions and the circumstances surrounding the adoption of the national legislation according to which the initial borrowing terms of sovereign bonds were unilaterally and retroactively amended by the introduction of a “collective action clause” (CAC), and to the public interest objective that it pursues, the origin of the dispute stems from the manifestation of public authority in such a way that that dispute does not fall within civil and commercial matters within the meaning of Regulation No 1215/2012.
CJEU, Case C-308/17 Greece v Leo Kuhn, Judgment of 15 November 2018, LawLex201800001727JBJ

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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 – 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