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

Mandatory payment deadlines: Legal deadlines

A trader cannot justify late payments on the grounds of an alleged agreement with the supplier for 6 or 8 month deadlines as this would be highly contrary to the provisions of Article L. 441-10 (former Article L. 441-6) of the Commercial Code.
CA Paris, 2 October 2019, LawLex201900001190JBJ

Sudden termination of established commercial relationship: Amendment of contractual terms

Although one party’s demand for an amendment that is unfavorable to the other in respect of a substantial aspect of the relationship may characterize a sudden termination, it must also be a condition for the pursuit of said relationship.
CA Paris, 3 October 2019, LawLex201900001186JBJ

Sudden termination of established commercial relationship: Statutory notice period

Article L. 442-1, II (former Article L. 442-6, I, 5 °) of the Commercial Code will apply to the termination of a management agent contract (gérance-mandat) insofar as Article L. 146-4 of the code does not regulate the question of the length of the notice period.
Court of Cassation, commercial chamber, 2 October 2019, LawLex201900001176JBJ

Restrictive agreements and abuse of dominance: Exclusive importation rights (French overseas territories)

Maintaining exclusive importation rights beyond 22 March 2013, or granting them after that date, constitute violations of Article L. 420-2-1 of the Commercial Code, which justify a sanction for both the grantor and beneficiary of those rights.
Competition Authority, 8 October 2019, LawLex201900001194JBJ

Mergers: Changes in the nature of control

A merger is only deemed to arise after a change in the nature of the control exercised over an existing undertaking, which was previously under sole control then becoming joint control, where the joint venture resulting from such an operation performs on a lasting basis all the functions of an autonomous economic entity – such as when, at the end of a start-up phase, i) it has sufficient resources, including financial, to operate independently on the market, ii) it is autonomous vis-à-vis its parent companies, which, beyond the control they exercise and the powers reserved to the Supervisory Committee, must confine themselves to providing assistance limited to purely preparatory or administrative support aspects, iii) it is constituted for a period of 99 years, and iv) it has a know-how license granted for the entire period of operation and the administrative authorizations required to exploit its plants for 30 years.
Competition Authority, 13 June 2019, LawLex201900001058JBJ ​​​​​​​

Mergers: Probability of coordination

Although, in assessing the existence of a risk of coordinated behavior, the activity of the joint venture is of crucial importance for the markets in which the parent companies are active, other factors, such as the financial links between the parent companies in the context of the formation of the subsidiary or the fact that the joint venture’s products are an essential factor of production in the activity of the parent companies in several of their markets, may create an increased level of interdependence between them.
Competition Authority, 13 June 2019, LawLex201900001058JBJ

Mergers: Product or services market

There is a market for the transfer of professional players on which the purchase (or sale) price of the players corresponds, in legal terms, to the transfer fee that the buyer clubs pay to the seller clubs in the event of early termination of the contract, while, in order to decide between the offers of various clubs, players will look to criteria such as (i) net remuneration, (ii) reputation of the club, (iii) duration of the contract, (iv) competitiveness of the national championship in which the club participates and (v) international competitions in which the club participates.
Competition Authority, 21 August 2019, LawLex201900001161JBJ

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French Distribution Law

Motor vehicle distribution: Breach of intuitus personae

A dealer who disregards the manufacturer’s refusal of approval by selling all his shares to a third party, whereas the contract was concluded intuitu personae, commits a breach of one of its essential obligations which justifies an immediate termination.
Paris Commercial Court, 2 October 2019, LawLex201900001199JBJ

Exclusive distribution: International contract

The court competent to rule on a dispute concerning an exclusive distribution contract, which constitutes a contract for the provision of services within the meaning of Article 7 of Regulation No 1215/2012, is that of the place where the services were provided or should have been provided.
CA Versailles, 26 September 2019, LawLex201900001134JBJ

Commercial agent: Serious breach by agent

A serious breach discovered after but committed before the termination can be relied on by the principal to refuse payment of the severance indemnity.
CA Paris, 3 October 2019, LawLex201900001187JBJ

Management agent under ordinary civil law: Termination of contract

A post-contractual non-compete clause in a management agent contract is null and void when, having fixed a radius of fifty kilometers as the crow flies around the brand’s stores for the application of a prohibition for former manager-agents to carry out any competing activity, it creates a de facto impossibility for the latter to relocate given the density of the network on the French territory and the diversity of its activities.
Court of Cassation, commercial chamber, 2 October 2019, LawLex201900001176JBJ

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French Consumer Law

Unfair commercial practices: Material distortion of the economic behavior of the consumer

A consumer does not demonstrate that the lottery entry documents sent to him have materially distorted his economic behavior if he cannot justify having placed orders that he would not have placed if the documents had not been sent.
CA Douai, 3 October 2019, LawLex201900001188JBJ

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Europe

Online advertising: Protection of personal data

Although Article 15(1) off Directive No 2000/31 on electronic commerce prohibits Member States from imposing on host providers a general obligation to monitor information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity, as is clear from recital 47 of that directive, such a prohibition does not concern the monitoring obligations “in a specific case” which may be a particular piece of information stored by the host provider concerned at the request of a certain user of its social network the content of which has been declared to be illegal by the court of a Member State.
CJEU, Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland, Judgment of 3 October 2019, LawLex201900001171JBJ

Online advertising: Protection of personal data

A court of a Member State may order a host provider to remove information covered by an injunction, or to block access to that information worldwide within the framework of the relevant international law.
CJEU, Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland, Judgment of 3 October 2019, LawLex201900001171JBJ

Public procurement: Exclusion clauses

The subcontracting, by an economic operator, of part of the works under a prior public contract, decided upon without the contracting authority’s authorization and which led to the early termination of that contract, constitutes a significant or persistent deficiency shown in the performance of a substantive requirement under that public contract and is therefore capable of justifying that economic operator being excluded from participation in a subsequent public procurement procedure if, after conducting its own evaluation of the integrity and reliability of the economic operator, the contracting authority which organizes that subsequent procurement procedure considers that such subcontracting entails breaking the relationship of trust.
CJEU, Case C-267/18 Delta Antrepriza de Constructii si Montaj 93 SA, Judgment of 3 October 2019, LawLex201900001170JBJ

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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