COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
Obtaining or attempting to obtain a manifestly disproportionate advantage in relation to the value of the consideration granted incurs the liability of the perpetrator (Commercial Code, Art. L. 442-1, I, 1°).
Proof of a manifest disproportion between the benefit of the service and its remuneration must be established. Although the distributor’s low turnover on the product(s) concerned by a commercial cooperation agreement or the lack of significant sales growth during the reference period are elements of assessment, they alone are not sufficient to establish proof of manifest disproportion. Indeed, distributors who enter into commercial cooperation agreements are not bound by a results-based obligation. Disproportionality may, however, be established by comparing the commission paid to the distributor with that charged by third parties for similar services or with respect to the difference in rates charged for the same service between suppliers. Finally, the assessment must be comprehensive: the disproportionate nature of the remuneration for a service cannot be identified if it is not representative of all the services invoiced.