COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
In order to guarantee greater competence of the judicial courts called upon to rule on the application of former Article L. 442-6 (current Articles L. 442-1 to L. 442-4) of the Commercial Code, Articles D. 442-3 and D. 442-4 designate a limited number of specialized courts, the location and jurisdiction of which they determine. Eight judicial courts and eight commercial courts are competent, depending on the standing of the parties, to rule on these disputes: they are located in Marseilles, Bordeaux, Lille, Fort-de-France, Lyon, Nancy, Paris and Rennes. The Paris Court of Appeal has exclusive jurisdiction to hear appeals against the judgment of these specialized courts.
These rules of jurisdiction are a matter of public policy: failure to comply with them is sanctioned by a dismissal which must be raised ex officio. Moreover, the parties can only depart from them by including clauses conferring jurisdiction in the international order. Where the clause designates a court not included in the list in Articles D. 442-3 and D. 442-4, the ordinary rule of jurisdiction must be applied to identify the court of appeal with territorial jurisdiction, and then the specialized courts located within the jurisdiction of that court. On the other hand, when the jurisdiction clause designates one of the eight specialized courts, but not the one with territorial jurisdiction, the courts will accept its applicability as long as the specialization requirement is respected. Furthermore the Court of Cassation acknowledges the applicability of arbitration clauses, holding that articles D. 442-3 and D. 442-4 do not have the effect of conferring exclusive jurisdiction on national courts to hear disputes based on the provisions of Articles L. 442-1 to L. 442-4.
Articles D. 442-3 and D. 442-4 apply to actions on the merits or in interim proceedings, regardless of whether Articles L. 442-1 to L. 442-4 are invoked as the main cause of action, as a simple defense or in the alternative. In response to the argument based on the sometimes dilatory nature of the reliance on these provisions, the Court of Cassation has held that the jurisdiction of the specialized courts was independent of the merits of the claim.
Finally, when, despite these rules, a non-specialized court of first instance has ruled, jurisdiction to hear the appeal against its decision lies with the court of appeal within its jurisdiction – and not necessarily with the Paris Court of Appeal – which must, however, review ex officio the abuse of power committed by the court of first instance and annul its decision and rule, if necessary, on claims based on other provisions.
