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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)

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9 march 2020

Action for unfair competition: Limitation period
The action for unfair competition is time-barred five years from the day when the right holder knew or ought to have known the facts enabling him to bring the action and not from the day when the facts complained of ceased, irrespective of whether the acts occurred in succession over a long period.
Court of Cassation, commercial chamber, 26 February 2020, LawLex20200000299JBJ

Invoicing: Civil consequences
The time period in which an action to enforce payment of the price of services may be brought runs from the date of their completion and not the date the service provider chose to invoice them.
Court of Cassation, commercial chamber, 26 February 2020, LawLex20200000317JBJ

Unfair terms between professionals: Sanction
A termination clause may be declared void ab initio on the basis of Article 1171 of the Civil Code, in the absence of the applicability of Article L. 442-1, I, 2° of the Commercial Code by a non-specialized court when it allows only one of the parties to terminate the contract for reasons not corresponding to breaches of contract.
CA Lyon, 27 February 2020, LawLex20200000281JBJ

Sudden termination of established commercial relationship: Indirect victim
Although third parties may, on the basis of tort liability, claim for loss caused by the termination of an established commercial relationship, they are also required to establish the sudden nature thereof.
CA Paris, 27 February 2020, LawLex20200000285JBJ

Restrictive agreements and abuse of dominance: Exclusive overseas import rights
The offense referred to in Article L. 420-2-1 of the Commercial Code, which is characterized per se by the granting of exclusive import rights, does not require taking into account the specificities of the relevant market.
CA Paris, 20 February 2020, LawLex20200000271JBJ

Competition Authority procedure: Proceedings in rem
The Competition Authority, in a referral by the Minister of Economy following the refusal of the undertakings to settle, is not bound by the analyses or classifications used during the administrative phase of the investigation.
CA Paris, 20 February 2020, LawLex20200000272JBJ

Competition Authority procedure: Right not to incriminate oneself
The Competition Authority does not infringe the privilege against self-incrimination by sanctioning an undertaking which had settled in another case insofar as it did not rely on the statements made in the settlement procedure to incriminate it in the non-negotiated procedure.
CA Paris, 20 February 2020, LawLex20200000271JBJ

Competition Authority procedure: Rights of undertakings in receipt of a Statement of Objections
The Charter of Fundamental Rights of the European Union is not intended to apply when the undertaking in question is prosecuted only on the basis of national competition law.
CA Paris, 20 February 2020, LawLex20200000271JBJ

Fine: Ceiling
The maximum penalty incurred by an EIG is the amount applicable to entities which are not undertakings within the meaning of Article L. 464-2 of the Commercial Code, insofar as it is a not-for-profit organization.
CA Paris, 20 February 2020, LawLex20200000272JBJ

9 March 2020

Selective distribution: Unlawful use of trademark
The manufacturer at the head of a selective distribution network of perfumery and luxury cosmetics cannot bring an IP infringement action against an individual who sold products, which were lawfully purchased, to a second-hand store, insofar as this act does not characterize use of the mark “in the course of trade”.
CA Rennes, 25 February 2020, LawLex20200000294JBJ

Selective distribution: Exhaustion of rights within EEA
For perfumes and cosmetic products, any partial use of a product necessarily leads to its alteration, which is seriously detrimental to the image of the brand and to the environment of luxury and purity it purports to convey and consequently the right holder is legitimately entitled to oppose its sale within the second-hand goods market in accordance with paragraph 2 of Article L. 713-4 of the Intellectual Property Code.
CA Rennes, 25 February 2020, LawLex20200000294JBJ

Commercial agents: Applicable law
Articles L. 134-1 et seq. of the Commercial Code do not constitute an overriding mandatory provision applicable in the international legal order which would make it possible to replace the foreign law chosen by the parties to the contract.
CA Paris, 13 February 2020, LawLex20200000243JBJ

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

9 March 2020

Mergers: Inseparable transactions
The existence of a single concentration does not arise from transactions which, although ancillary to the concentration, have no direct functional link with its implementation, such as a public bid launched after the acquisition of control of the target undertaking.
CJEU, Case C-10/18 P Mowi ASA, Judgment of 4 March 2020, LawLex20200000314JBJ

Mergers: Fine
The Commission must establish a distinction, by means of the fines which it imposes, between the situations in which the acquiring undertaking complies with the notification obligation but infringes the standstill obligation and that in which that undertaking infringes both those obligations.
CJEU, Case C-10/18 P Mowi ASA, Judgment of 4 March 2020, LawLex20200000314JBJ

Free movement of persons and services: Implementation of principle of non-discrimination
The principle of the freedom to provide services does not preclude legislation of a Member State which imposes an obligation to submit a tax declaration on suppliers of advertising services established in another Member State for the purposes of their liability to a tax on advertising, whereas suppliers of such services established in the Member State where the tax is levied are exempt from that obligation, insofar as that obligation does not impinge on the exercise of the activity of advertising and such an exemption is only possible for the latter where they have already submitted a tax declaration or registered with the tax authority for the purposes of some form of direct or indirect tax.
CJUE, Case C-482/18 Google Ireland Limited, Judgment of 3 March 2020, LawLex20200000323JB

Vogel Global Competition Newsletter

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

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