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)

News Flash

22 June 2020

Action for unfair competition: Jurisdiction of interim applications judge (juge des référés) or motions judge (juge des requêtes)
The judge having issued the ex parte motion may withdraw or modify it, but where he limits the task entrusted to an expert witness while hearing an application for nullity of the investigative measures carried out on the basis of the motion, he must find a loss of legal basis of the measures already carried out and their resulting nullity.
Court of Cassation, 2nd civil chamber, 4 June 2020, LawLex20200000519JBJ

Action for unfair competition: Jurisdiction of interim applications judge (juge des référés) or motions judge (juge des requêtes)
The adversarial principle is violated where the judge hearing an application for the nullity of investigative measures carried out on the basis of an ex parte motion, modifies, ex officio, the mission entrusted to the bailiff and the computer expert by that ex parte motion without first inviting the parties to submit their observations.
Court of Cassation, 2nd civil chamber, 4 June 2020, LawLex20200000519JBJ

Unfair terms between professionals: Scope ratione materiae
A claim based on significant imbalance, which does not come within the jurisdiction of the Lyon Court of Appeal, is also inadmissible when brought against a finance company whose activities are governed solely by the Monetary and Financial Code.
CA Lyon, 4 June 2020, LawLex20200000498JBJ

Significant imbalance: Overall or clause-by-clause assessment
A trading partner’s claim that the obligation stipulated in a clause is imbalanced due to lack of consideration must fail where a reading of the agreement as a whole establishes that each clause contributes to the aim of ensuring an equilibrium in the structure of the contract.
CA Paris, 28 May 2020, LawLex20200000472JBJ

Sudden termination of established commercial relationship: Serious breach
A letter in which a service provider takes note of the issues attributed to him and undertakes to carry out the investigations necessary to determine their cause with a view to resolving them does not establish a sufficiently serious breach of his contractual obligations liable to justify the immediate termination of the established commercial relationship.
Court of Cassation, commercial chamber, 10 June 2020, LawLex20200000506JBJ

Actions available for abuse of dependence: Arbitration clause
Since an arbitration clause is legally independent of the main contract in which it is included, a significant imbalance in the commercial relationship arising from the general structure of the latter has no influence on its validity.
CA Paris, 2 June 2020, LawLex20200000488JBJ

Actions available for abuse of dependence: Applicable law
Article L. 442-1, II (formerly L. 442-6, I, 5°) of the Commercial Code does not constitute a mandatory provision in the international order where its aim is primarily to safeguard the private interests of a party rather than the economic organization of the country to the point of requiring its application to any situation falling within its scope.
CA Paris, 3 June 2020, LawLex20200000495JBJ

22 June 2020

Motor vehicle distribution: Transfer of contract
The manufacturer may refuse to approve a transferee proposed by the dealer without further examination of the application, where the mere knowledge of its identity makes it possible to determine that such a choice is incompatible with the strategic options under the manufacturer’s sole  prerogative.
CA Paris, 17 June 2020, LawLex20200000522JBJ

Commercial agents: Applicable law
By virtue of the Hague Convention, the law applicable to a commercial agency contract performed in Algeria is French law when the parties have designated the French courts to hear any disputes, used the French language in the drafting of the contract and where the place of origin of the products, of validation of estimates and payment of commissions is France.
CA Paris, 3 June 2020, LawLex20200000495JBJ

9 March 2020

Liability for defective products: Defect
The premature rupture of a hip implant, which is not due to the excess weight of the victim or to an error in the choice or design of the prosthesis or during the hip replacement surgery, at a point at its base in the zone of weakness of any hip prosthesis, incurs the legal liability of the manufacturer insofar as the femoral stem of the implant did not provide the safety which was to be legitimately expected.
Court of Cassation, 1st civil chamber, 26 February 2020, LawLex20200000301JBJ

Liability for defective products: Relationship with other liability rules
The liability of a doctor is only automatically incurred by reason of a defect in a healthcare product implanted in a patient on the basis of Articles 1245-6 of the Civil Code and L. 1142-2- 1, paragraph 1, of the Public Health Code in the case where the manufacturer is not able to be identified and the health professional or institution did not designate their own supplier or manufacturer within the specified time-limit.
Court of Cassation, 1st civil chamber, 26 February 2020, LawLex20200000301JBJ

22 June 2020

Merger control: Concept of significant impediment to effective competition
Article 2(3) of Regulation No 139/2004 allows the Commission to prohibit, in certain circumstances, on oligopolistic markets concentrations which, although not giving rise to the creation or strengthening of an individual or collective dominant position, are liable to affect the competitive conditions on the market to an extent equivalent to that attributable to such positions, by conferring on the merged entity the power to enable it to determine, by itself, the parameters of competition and, in particular, to become a price maker instead of remaining a price taker.
GC, Case T 399/16 CK Telecoms UK Investments Ltd, Judgment of 28 May 2020, LawLex20200000537JBJ

Merger control: Concept of significant impediment to effective competition
The concentration must lead to the elimination of the important competitive constraints that the merging parties had exerted upon each other, as well as a reduction of competitive pressure on the remaining competitors, for, under certain circumstances, the non-coordinated effects arising from the operation – in application of Article 2(3) of Regulation No 139/2004 read in the light of recital 25 of that regulation – to result in a significant impediment to effective competition.
GC, Case T 399/16 CK Telecoms UK Investments Ltd, Judgment of 28 May 2020, LawLex20200000537JBJ

Merger control: Concept of significant impediment to effective competition
While indicators of upward pressure on prices such as GUPPI or UPP analysis may be useful for screening purposes, by enabling the competition authorities to judge the need for a more thorough investigation, they must not be regarded as credible forecasts of price increases or simulations of mergers.
GC, Case T 399/16 CK Telecoms UK Investments Ltd, Judgment of 28 May 2020, LawLex20200000537JBJ

Unfair terms: Role of court
Article 7(1) of Directive No 93/13 precludes the interpretation of a national provision whereby a court hearing an action brought against a consumer by a seller or supplier, which falls within the scope of that directive, and giving judgment in default, where that consumer has failed to appear at the hearing to which he was invited, is prevented from adopting the measures of inquiry needed in order to examine of its own motion whether the contractual terms on which the seller or supplier based its action are unfair, when that court has doubts as to whether those terms are unfair.
CJEU Case C 495/19 Kancelaria Medius SA, Judgment of 4 June 2020, LawLex20200000530JBJ

Public procurement: Economic operator
Directive No 2014/24, which states explicitly that the concept of economic operator is to be interpreted in a broad manner so as to include any persons or entities active on the market irrespective of the legal form under which they have chosen to operate precludes a national law which prohibits a non-profit foundation entitled to offer certain services on the domestic market from taking part in procurement procedures for the award of public contracts for the provision of those services.
CJEU, Case C 219/19 Parsec Fondazione Parco delle Scienze e della Cultura Judgment of 11 June 2020, LawLex20200000531JBJ

Public procurement: Public contracts between entities within the public sector
The concept of cooperation, at the very heart of the exclusion laid down in Article 12(4)(a) of Directive No 2014/24 relative to public contracts between entities within the public sector, cannot be said to exist where a contracting authority which is responsible for a task in the public interest within its territory does not itself perform the entirety of that task — which is incumbent on it alone under national law and for the performance of which a number of operations are required — but rather commissions another contracting authority that is independent of it and is likewise responsible for that public interest task within its own territory to carry out one of the operations required in return for consideration.
CJEU, Case C 429/19 Remondis GmbH, Judgment of 4 June 2020, LawLex20200000535JBJ

Copyright and related rights: Reproduction right
A product satisfying the condition of originality may be eligible for copyright protection, even if its realization has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices.
CJEU, Case C-833/18 SI and Brompton Bicycle Ltd 11 June 2020, LawLex20200000536JBJ

Vogel Global Competition Newsletter

No 3 – December 2020

Vertical Restraints:

  • Joseph Vogel and Louis Vogel (Vogel & Vogel, France and Europe)
  • Martin Nedelka and Jakub Jost (Nedelka Kubac Advokati, Czech Republic)
  • Charis Papachristodoulou (Papadopoulos & Lycourgos Co LLC, Cyprus)
  • Georgeta Dinu (NNDKP, Romania)
  • Balazs Csépai (Oppenheim, Hungary)
  • Chong Kin Lim (Drew & Napier, Singapore)
  • Sergiy Glushchenko (Asters, Ukraine)
  • Scott Rodger (Shepherd & Wedderburn, UK)

> Read more

No 2 – August 2020

Consequences of Covid-19 on Competition and Distribution Law.
Special thanks to the following authors whose contribution you will find in this letter:

  • Joanne Finn and Elaine Davis (DAC Beachcroft, Ireland)
  • Tzahi I. Yagur (Pearl Cohen, Israël)
  • Alexandru Sotropa and Oana Popescu (NNDKP, Romania)
  • Scott Rodger and Ellie Gannon (Shepherd Wedderburn, UK)
  • Marina Androulakakis and Tania Patsalia (Bernitsas, Greece)

> Read more

No 1 – March 2020

Francisco Rondoletti (Tanoira Cassagne, Argentina): Four key updates about Argentine law
Christan Liborius and Martin André Dittmer (Gorrissen Federspiel, Denmark): New Danish Supreme Court judgment limits companies’ chances of engaging in consortia and bidding jointly
Hanna Pohjola and Åsa Krook (Borenius, Finland): Short Update on Consumer Law Developments in Finland
Tania Patsalia (Bernitsas, Greece): Launch of sector inquiry into e-Commerce by the Hellenic Competition Commission (HCC)
Joanne Finn and Elaine Davis (DAC Beachcroft, Ireland): Four key updates about Irish law
Gabriel Bleser (Moyse Bleser, Luxembourg): Decision 2019-C-02 – Decision to take no further action by the Luxembourgish Competition Council
Kettani Law Firm (Morocco): Competition Council under the regime of Law 104-12 relating to the freedom of prices and competition
Krzysztof Kanton (Soltysinski Kawecki & Szlezak, Poland): Polish Competition Authority adopts its first settlement decision
Lim Chong Kin (Drew & Napier, Singapore): Singapore’s competition and consumer protection regulator obtains court order against the use of subscription traps by an online fashion retailer
> Read more

No 2 – October 2019

Finland – Finland must recover over EUR 50 million in incompatible
Hungary – Assessment of RPM remains formalistic in the approach of
Malta – Amendments to the Competition Act aim to restore public enforcement of competition law back on its feet
Romania – Cement sector in Romania under the scrutiny of the competition authority
Singapore – Singapore’s competition regulator gains new consumer protection mandate and other significant competition and consumer law developments in Singapore
Switzerland – In May 2013, the Swiss Competition Authority rendered a decision condemning thirteen distributors (several of them being Swiss daughter companies of French publishers) of French books in Switzerland from preventing direct sales from France to Switzerland
United Kingdom – Regulation of harmful content online
> Read more

No 1 – March 2019

Argentina – Argentina brings in new and guidelines for competition enforcement
Czech Republic – Problems persist with the Act of Significant Market Power
Greece – Decision on the public works cartel case – entities that did not submit to the settlement procedure
Poland – The Polish Competition Authority gains new powers to impose fines on managers
United Kingdom – The CMA targets the UK construction industry
Ukraine – Ukrainian Competition Authority explains vertical exemption in pharma
> Read more

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
> Read more

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
> Read more

My Vogel

Discover all of our economic law services