15 June 2020

Price transparency: Written commercial agreement
The absence of a written agreement is not sanctioned by the cancellation of the price reductions usually agreed between the parties.
CA Aix-en-Provence, 28 May 2020, LawLex20200000469JBJ

Unfair terms between professionals: Burden of proof
The terms in a clause providing that claims concerning invoicing errors must be made within two months of receipt of the statement do not create a significant imbalance since their purpose is not to provide for a derogation from the limitation period under ordinary law, but to establish a presumption that invoices are in order.
CA Rouen, 2 June 2020, LawLex20200000487JBJ

Sudden termination of established commercial relationship: Takeover or transfer of business
Changes in the structure of the legal entities which have successively constituted the person of the supplier do not call into question the continuity of the relationship where the latest contract concluded between the parties refers to a duration of 25 years.
CA Paris, 28 May 2020, LawLex20200000473JBJ

Sudden termination of established commercial relationship: State of dependence
A service provider that is not bound to its partner by an exclusive arrangement may nevertheless be recognized as being dependent when 82% of its turnover is achieved with the latter and the nature of the relationship requires it to be in a position to respond to its client’s demand in the shortest time possible.
CA Paris, 28 May 2020, LawLex20200000474JBJ

Sudden termination of established commercial relationship: Loss of profits
The loss of profit of the victim of the termination must be calculated after deduction of external charges, taxes, and costs relating to dedicated staff.
CA Paris, 4 June 2020, LawLex20200000501JBJ

Investigations: Obstruction
Article L. 464-2, V of the Commercial Code, which does not give an exhaustive list of acts of obstruction, may apply to the breaking of seals and the diverting of electronic messages.
CA Paris, 26 May 2020, LawLex20200000462JBJ

Investigations: Obstruction
The offense of obstruction is applicable to an undertaking for the purposes of competition law and it is not therefore necessary to establish any action or even knowledge of the offense by the partners or executives of the undertaking but only action committed by a person authorized to represent it.
CA Paris, 26 May 2020, LawLex20200000462JBJ

Investigations: Obstruction
The offense of obstruction committed by certain undertakings cannot be attributed to their sister undertakings without establishing in what way the latter determined the offending behavior.
CA Paris, 26 May 2020, LawLex20200000462JBJ

Competition procedure: Imputability of the infringement
The presumption of imputability of the subsidiary’s offending conduct to the parent also applies to procedural violations.
CA Paris, 26 May 2020, LawLex20200000462JBJ

Competition procedure: Supplementary investigations
The supplementary investigation procedure referred to in Article R. 463-7 of the Commercial Code may be used to allow a document to be added to the case file, to which the accused company did not have access, in order to ensure compliance with the adversarial principle.
Court of Cassation, commercial chamber, 18 March 2020, LawLex20200000467JBJ

Competition procedure: Legitimate suspicion
Even in the absence of any specific provision in the matter, any person prosecuted before a competition authority with the power to impose sanctions must be able to request a referral on grounds of legitimate suspicion to the court hearing appeals from that authority.
Court of Cassation, 2nd civil chamber, 4 June 2020, LawLex20200000476JBJ

Competition procedure: Joining proceedings
The complainant undertaking may not join the proceedings in an appeal against the penalty imposed for obstruction of the investigation against the alleged perpetrator of the practices, since the outcome of that action is unlikely to produce any legal effect on the characterization of the practices referred.
Court of Cassation, commercial chamber, 18 March 2020, LawLex20200000477JBJ

Competition procedure: Joining proceedings
Voluntary intervention in proceedings under Article R. 464-17 of the Commercial Code is reserved for persons to whom the Competition Authority’s decision to dismiss the case for lack of evidence has been notified, i.e. the party requesting the referral and the Minister of the Economy, to the exclusion of the respondents.
CA Paris, 4 June 2020, LawLex20200000482JBJ