French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

An unfair competition action can be brought by any natural or legal person who is victim of competitive harm, except for consumer associations . Therefore, a general food retail store has standing to bring an action against its competitors for failure to comply with the Sunday trading laws . Similarly, a professional association has standing to sue in unfair competition in parallel to the National …

Standing

An unfair competition action can be brought by any natural or legal person who is victim of competitive harm, except for consumer associations . Therefore, a general food retail store has standing to bring an action against its competitors for failure to comply with the Sunday trading laws . Similarly, a professional association has standing to sue in unfair competition in parallel to the National Council (Conseil de l'Ordre) of the profession , provided that it can show that the practices in question violate the collective interests that it represents . Although undertakings which sell genuine articles have standing to bring an unfair competition suit against an infringer even where they do not share the same customers , this is not the case for the supplier who does not exploit directly the protected products . The purchaser of a company whose right of pre-emption has been ignored is entitled to bring an action for unfair competition, since the absorbed company should have become the proprietor (titulaire) of the assets of a group of remarkable value in economic, financial, property and competitive terms .The standing of a parent company depends on the act of unfair competition at issue. Where the act in question requires the existence of a shared clientele, the parent of a subsidiary, which is a corporate entity and is legally autonomous, cannot bring legal proceedings on its behalf . Where the competitive situation is not a requirement for the admissibility of an action, as in the case of parasitic behavior, the parent company has standing to bring proceedings in unfair competition . In the latter case, however, according to the Paris Court of Appeal, a parent company's interest in protecting the investments it has made in a product, and in developing its own business and that of its subsidiary, is insufficient to give it standing to sue .

Unfair competition actions mainly come about in the context of horizontal relations and concern distinct products or services. But it can also concern the same product in the context of vertical relationships in spite of their contractual nature. Thus, a supplier may bring unfair competition proceedings against a distributor for selling his products at a loss: in this case, an unfair competition suit was deemed more appropriate than a claim in contract insofar as there was no provision in the contract for the material conditions of resale . An exclusive distributor may also bring an action for unfair competition against the importer of counterfeit products likely to create confusion as to the origin of the products sold, even if it has no private rights over the trademark . An authorized distributor of a selective distribution network may also seek redress for competitive harm caused by the breach by other members of the network of their contractual obligations . Finally, a third party to the contract may bring an unfair competition action for non-compliance with a selective distribution contract for harm caused due to an authorized distributor's breach of its contractual obligations .

In addition, actions for unfair competition, which are of a tortious nature, are subject to the limitation period laid down in Article 2224 of the Civil Code, so that the five-year period runs from the day on which the proprietor of the right knew or should have known of the facts enabling him to exercise it, and not from the day on which the offending acts ceased, the fact that the acts in question took place over a period of time being irrelevant , unless the facts invoked are distinct . The admissibility of the action is governed not only by the provisions of Article 2224, but also by those of Article 2232 of the same code, under which the postponement of the starting point, suspension or interruption of the statute of limitations may not have the effect of extending the extinctive period beyond twenty years from the day on which the right arose . When several acts likely to constitute unfair competition have been committed, it is up to the court to apply the statutory limitation rule in a distributive manner  and to declare the action time-barred only in respect of those acts performed by the defendant of which the plaintiff had been aware for more than five years at the date of the legal action .

For associations see Cass. com., 15 December 1998, LawLex200200001033JBJ; 18 December 2001, LawLex200200000571JBJ; 12 March 2002, LawLex200200000546JBJ. For a property lessor see CA Paris, 11 February 2000, LawLex200200000449JBJ, a lessor lacks standing when the clientele belongs to his tenant and he cannot reap a direct benefit in the absence of a turnover clause. For the transferee of a portfolio of insurance contracts see Cass. com., 19 January 2001, LawLex201000000110JBJ, lack of standing of assignee to whom the liability action does not pass with the transfer. For a Regional Tourism Committee, TGI Rennes, 18 December 2000, LawLex200200000696JBJ, accepting its standing in the context of its role of promoting the region. For an administrator responsible for a recovery plan, CA Paris, 20 December 2000, LawLex200200000692JBJ, who cannot sue in unfair competition insofar as his role is limited to the execution of the recovery plan. For authors, CA Paris, 14 May 2003, LawLex200300004257JBJ, on the inadmissibility of their action for lack of standing when they have transferred ownership of their property rights to a publishing company, as only the latter has standing to bring action for the parasitic behavior alleged.

Cass. com., 30 May 2012, LawLex201200000812JBJ.

CA Bordeaux, 31 March 1999, LawLex200200000139JBJ.

CA Paris, 2 February 2016, LawLex201600000299JBJ; 25 May 2016, LawLex201600001002JBJ.

CA Pau, 11 May 1999, LawLex200200000948JBJ.

Cass. com., 1 July 2003, LawLex200300002729JBJ. See also. Cass. 3e civ., 13 July 2010, LawLex201000001178JBJ, third-party to a lease agreement.

Cass. com. 26 February 2020, LawLex202000000299JBJ, quashing CA Paris, 30 March 2018, LawLex201800000561JBJ, which had held that the limitation period only begins to run from the day when the offending acts have ceased, insofar as unfair and parasitic competition constitutes a continuous quasi-offense ("quasi-délit continu")

CA Paris, 11 September 2024, LawLex202400006361JBJ.

CA Bordeaux, 3 July 2024, LawLex202400005102JBJ.

Cass. com, 14 June 2021, LawLex202100003699JBJ, holding that even if the successive opening, in 2010 and 2013, of two establishments in the same town under a brand name that was confusingly similar to the name of the plaintiff undertaking, and the online launch in 2015 of an internet site under a domain name that played on this similarity of name, were acts that were part of the continuity of the business carried on by the defendant since 2006, they are nonetheless distinct from the acts of which the plaintiff had been aware since 2009 - more than five years earlier - which consisted in using the disputed brand name to create confusion in the minds of the public between their two undertakings, and therefore the action for unfair competition is not time-barred.

CA Basse-Terre, 11 January 2024, LawLex202400000402JBJ.

CA Paris, 6 January 1993, LawLex200200001671JBJ; Cass. com., 1 December 1998, LawLex200200001043JBJ.

Cass. com., 21 July 1986, LawLex201000000217JBJ; 24 November 2009, LawLex200900003560JBJ: a professional association does not have standing to act when it attacks a promotional campaign on the grounds of unfair competition with respect to its members, instead of demonstrating harm to the collective interests of the profession; CA Paris, 24 June 2006, LawLex201400002164JBJ, lack of standing of the National Confederation of French Tobacconists, to rely, in the framework of an action for unfair competition with a view to protecting the specific interest of tobacconists, on the violation of the regulations on advertising tobacco products or derivatives of tobacco, which is only available to associations whose statutory objects include the fight against smoking; Cass. com., 24 May 2016, LawLex201600001006JBJ: the right to act recognized by law to associations invested with the general interest mission of the fight against smoking does not exclude the exercise of an unfair competition action by the National Confederation of Tobacconists of France (Confédération nationale des buralistes de France) aimed at prohibiting the promotion of electronic cigarettes with a view to protecting the particular interest of tobacconists.

CA Versailles, 12 February 1990, LawLex200200001887JBJ; Cass. com., 13 December 2005, LawLex200600000211JBJ: a company exploiting a trade mark, which, not having exclusive ownership of the intellectual property, may bring an unfair competition action, even if the elements on which it based its claim are the same as those that the proprietor of the mark has brought in an infringement action. Enshrined by Cass. com., 24 September 2013, LawLex201300001416JBJ.

CA Paris, 23 January 2002, LawLex200200000468JBJ. Correlatively, unlawful conduct cannot be attributed to an undertaking which is merely the supplier of the parasite undertaking (free-rider) having copied the catalog which, due to its similarities with the victim undertaking necessarily leads to a likelihood of confusion or misapprehension about the existence of links between those companies, Cass. com., 17 March 2015, LawLex201500000357JBJ.

Cass. com., 20 September 2016, LawLex201600001519JBJ.

CA Versailles, 19 February 1998, LawLex200200001175JBJ; see in the same vein, Cass. com., 8 July 2014, LawLex201400000781JBJ: a group does not have standing to defend itself against a claim of unfair competition and parasitic behavior which should have been brought against its subsidiary insofar as the two entities are separate legal persons and it operates no activity in competition with the plaintiff, which the subsidiary does.  

Cass. com., 7 April 2009, LawLex200900001613JBJ: a parent company incorporated under a foreign law which does not directly sell its products in France, but confers that role on its subsidiary, has standing to bring proceedings on the basis of unfair competition through parasitic behavior.

CA Paris, 2 June 2016, LawLex201600001053JBJ: stating that the expected return on investment of a product is not sufficient to give a parent company standing to bring an action for unfair competition when the services it provided in connection with the design and development of the product marketed by its subsidiary were re-invoiced to the latter, and it does not provide proof that part of the costs remained at its expense.

The relevant jurisdiction for actions between professionals based on unfair practices is normally the Commercial Court (Tribunal de commerce) . This remit cannot be overridden by the jurisdiction of the president of the judicial court to grant possible measures of investigation in futurum for the purpose of establishing facts of unfair competition .The Commercial Court is also competent to hear unfair competition actions against State-owned industrial and commercial establishments (EPICs)  or associations whose activity consisting of control and certification constitutes the performance of commercial acts . Conflicts between a trader and a non-trader are brought before either the civil or commercial courts, with the choice of jurisdiction belonging to the latter if he/she is the applicant. However, where the non-trader is defending the action, the matter is heard by a court with general civil jurisdiction  (Tribunal d'instance, Tribunal de grande instance which on 1 January 2020 merged into a single court, the judicial court - tribunal judiciaire). An action in unfair competition initiated by a commercial company against an artisan is subject to the jurisdiction of the civil courts . This is also true for actions against self-employed persons (auto-entrepreneur) not carrying out commercial transactions (actes de commerce) . 

The Tribunal judiciaire also has exclusive jurisdiction to rule on questions of unfair practices linked to actions involving patents or trademarks (Article L. 615-17, L. 716-3, Intellectual Property Code) .

When the facts inextricably link the acts of unfair competition to anticompetitive practices and the sudden termination of an established commercial relationship, the latter come within the jurisdiction of the specialized courts, even if the action on the merits was brought solely on the basis of Article 1240 of the Civil Code and the facts denounced were characterized as acts of unfair competition . 

Where the matter involves a former employee and employer, only the Labor Court (Conseil des prud'hommes) has jurisdiction to hear the suit , for unfair acts committed by a former employee before the term of the employment contract, or after its term if and only if they are related to the earlier acts . The exclusive and public policy status of the jurisdiction of the Labor Court prohibits it from being overruled on the grounds of related claims, except in the case of indivisibility, which can only result from the legal impossibility of simultaneous enforcement of two potentially conflicting decisions . However, the Commercial Court enjoys jurisdiction in such matters where the unfair practice continues to occur after the termination of the employment contract . Acts consisting in the use of materials collected during the employment relationship but used after the termination of the employment contract, and in the absence of a non-compete clause, fall within the jurisdiction of the Commercial Court, and not of the Labor Court .

By virtue of the principle of the separation of jurisdictions into judicial and administrative branches, the judicial courts cannot classify as an act of unfair competition the practice of charging prices below the cost price of a product in exchange for financial aid granted by a public authority . Similarly, the dispute between a clinic and hospitals in which the clinic accuses the latter of hiring one of its practitioners in violation of the contractual notice and non-relocation clauses falls within the jurisdiction of the administrative courts even if the acts of unfair competition invoked have no link with the administrative public service remit conferred on those establishments, nor with the administrative nature of the contract concluded with the practitioner, since any liability which may fall to the State or other legal entities governed by public law due to the harm attributed to their public administrative services, is subject to a public law regime . On the other hand, an action for unfair competition against a public industrial and commercial establishment is, except where a public work is at issue, subject to the jurisdictional and substantive rules of private law . This is also the case for an unfair competition action brought by a private undertaking against a laboratory dependent on a local authority . 

When the parties have included a jurisdiction clause, the Court of Cassation considers that it is applicable even if it is found in a shareholders' agreement having become null and void . According to the Court of Cassation, such a clause must be implemented even if it does not expressly stipulate that it is applicable in matters of unfair competition where the conduct complained of is linked to the contract containing that clause .

Where an arbitration clause in a shareholders' agreement does not specifically provide for its application to action based on unfair competition, the Court of Cassation considers that the clause cannot be ruled out without ascertaining whether the litigation concerned the breach of an obligation by which they were bound under the shareholders' agreement . 

The court having territorial jurisdiction is the court of the place where the harm occurred . The Court of Cassation has emphasized that territorial jurisdiction is not limited to a particular jurisdiction where the harm occurred in the whole of France . Where the act of unfair competition is committed on a website, the jurisdiction of the French courts would appear to depend on the conditions of access to the site. The remedy of the Paris Court of Appeal whereby the harm occurs in all places where the website is accessible and where the information is placed at the disposal of potential users  has been confirmed by the Court of Cassation : The French courts have jurisdiction to try unfair competition cases against websites where evidence is brought that the sites at issue are accessible to French internet users and that those users can obtain the products in question . This is the case in the presence of a disparaging message disseminated by a Japanese company on the “.com” extension of its website, which expressly targets French competitors and their allegedly infringing products, even if it is written in English and the information is relayed by third-party sites, since the message in question is necessarily aimed at the French public . On the other hand, the French courts are not competent where the website is in English and offers no products for sale to French consumers . Likewise, where there is disparagement on a website, the court must establish whether the information at issue is addressed to French internet users .

Lastly, in respect of international disputes  between nationals of EU Member States, international jurisdiction is determined in conformity with the Brussels I Regulation . The competent court is that of the Member State where the harmful event occurred , i.e. the place of the event giving rise to the damage or where the harm took place . The jurisdiction of the court of the Member State of a co-defendant's domicile must however be selected where both undertakings in the suit are accused of copyright infringement in respect of the same models of clothing and the same acts of unfair competition, and where in the absence of harmonization of copyright and unfair competition rules within the EU, there is a risk of conflicting decisions if the claims are heard separately . In that case the court designated is competent to rule on the whole of the loss resulting from the acts of unfair competition and parasitism committed abroad by the undertaking concerned, not only those affecting the French market .  Under the case law applicable to infringement of personality rights and which can be applied to acts of unfair competition, a legal entity which claims that its rights have been infringed by the publication of disparaging information about it on the internet and by the failure to delete comments about it, may bring an action for the rectification of such data and the deletion of such comments before the courts of the Member State in which the center of its interests is situated, but may not bring such an action before the courts of each Member State in whose territory the information published on the internet is or was accessible . However, if the claimant seeks both the rectification of data and the deletion of content, as well as compensation for the moral and economic prejudice resulting therefrom, he may seek compensation for the harm which would have been caused to him in the Member State of the court seized, before the courts of each Member State on whose territory the content is or was accessible, even if these courts do not have jurisdiction to hear the claim for rectification and deletion .

Where a contract contains a jurisdiction clause in conformity with Article 25 of the regulation, the French courts must decline jurisdiction . 

Finally, the law applicable to a non-contractual obligation arising out of an act of unfair competition must be in line with the principle laid down in Article 6(1) of the Rome II Regulation, the place of jurisdiction being that of the country where the competitive relations or the collective interests of consumers are affected or are likely to be affected. An exception to this principle under Article 6.2 is made in favor of the country of the place where the damage occurs when this conduct exclusively affects the interests of a specific competitor , on condition that these acts have no effect on the market concerned .

See CA Paris, 6 November 2012, LawLex201200002300JBJ, holding that the Commercial Court has jurisdiction for an action for unfair competition brought by a licensee company which does not have personally have any exclusive rights in respect of the ownership of the intellectual property rights at issue; CA Bordeaux, 19 January 2000, LawLex200200000854JBJ: the action in unfair competition follows the ordinary law rules of procedure, such that an action against a trader must be brought before the Commercial Court and an action against an employee before the Labor Tribunal ("Conseil de prud'hommes").

CA Lyon, 4 June 2019, LawLex201900000779JBJ.

CA Paris, 9 September 2015, LawLex201500001064JBJ.

Cass. soc., 28 January 2015, LawLex201500000148JBJ. Also see CA Pau, 8 October 2019, LawLex201900001216JBJ, specifying that in the event of indivisibility of deeds of the same nature which form the basis of claims for compensation against the employee, for example acts of unfair competition committed during the performance of his employment contract, and others committed after his dismissal, but linked to the former, the Labor Court has jurisdiction over the entire matter. Adding that there is no reason to declare that the Labor Court has jurisdiction over all of them on the grounds of an alleged connection when there is no impossibility of simultaneous enforcement of decisions rendered respectively by the Judicial Court and by the Labor Court, the former being competent to rule on the facts of unfair competition committed after the termination of the employment contract and not related to it, whereas the latter has jurisdiction in respect of acts of a different nature, committed during the performance of the employment contract, and there is no indivisibility between the separate claims for compensation made by the plaintiff undertakings. 

Cass. com., 4 October 1994, LawLex200200001538JBJ; CA Pau, 8 October 2019, LawLex201900001216JBJ, specifying that the Labor Court does not have jurisdiction to rule on acts of canvassing customers or poaching employees committed by an individual after his dismissal, since in the absence of a non-compete clause, these acts cannot be considered as breaches of an obligation under the employment contract and do not form an indivisible whole with the claim for compensation, based on the misappropriation of funds implemented during the performance of the contract, of which the court is seized as the principal claim.

CA Poitiers, 10 November 2020, LawLex202000003102JBJ. See, in this respect, CA Paris, 9 October 2024, LawLex202400007595JBJ: a company's action based exclusively on the tort liability of two former employees, under Article 1240 of the Civil Code, does not in any way require prior recognition by a labor tribunal of the contractual fault of the latter.

CA Nouméa 24 July 1997, LawLex200200000437JBJ.

 Cass. 1re civ., 6 February 2019, LawLex201900000196JBJ.

CA Versailles, 31 October 1996, LawLex200200001318JBJ.

CA Nîmes, 23 January 2003, LawLex200300004415JBJ.

Cass. com., 5 July 2017, LawLex201700001296JBJ.

Cass. 1re civ., 30 January 2019, LawLex201900000168JBJ.

T. com. Paris, 6 May 1991, LawLex200200001812JBJ; CA Versailles, 31 October 1996, on the application of the civil law rules of jurisdiction.

Cass. 1re civ., 4 December 2019, LawLex201900001499JBJ.

The Commercial Court in Montpellier therefore has jurisdiction to hear an action for parasitic behavior where the harm occurred in that city, where the disputed photographs were made available to the public, the actual or potential harm to customers being irrelevant: Cass. com., 31 January 2012, LawLex201200000231JBJ.

Cass. com., 13 March 2004, LawLex200400000800JBJ.

CA Paris, 15 February 2006, LawLex200600000757JBJ. Also see Cass. com., 20 March 2007, LawLex200700000398JBJ, regarding a German website selling slavish imitations of a shoe model of a French undertaking.

Cass. com., 9 March 2010, LawLex201000000312JBJ.

But see Cass. com., 13 July 2010, LawLex201000000864JBJ, which adds to the requirement of accessibility on the French territory to advertisements promoting counterfeit goods on all French and foreign Google sites (google.fr, google.com. etc.), a condition pertaining to the target of the advertisements: proof must be shown that they are actually intended for the French market; 23 November 2010, LawLex201000001286JBJ. This condition is not expressly required in Cass. com., 7 December 2010, LawLex201000001379JBJ, ebay.com, holding that the French courts are competent where the typing of keywords corresponding to the names of major French perfumers directs users to a site on which the products in question are offered for sales via free advertisements translated into French.

CA Rennes, 13 September 2016, LawLex201600001545JBJ.

CA Paris, 26 April 2006, LawLex200700000450JBJ.

Cass. com., 20 March 2012, LawLex201200000508JBJ.

Cass. com., 29 November 2016, LawLex201600002016JBJ: the Court of Cassation referred to the Court of Justice the question of whether a liability action in which the assignee of part of a business acquired in the context of insolvency proceedings is accused of having misrepresented itself as ensuring the exclusive distribution of articles manufactured by the debtor falls exclusively within the international jurisdiction of the court opening those proceedings (i.e. the German court) insofar as it derives directly from it and is closely linked to it , or whether it constitutes an action under ordinary law that must be brought before the national court.

Cass. 1re civ., 17 November 2011, LawLex201100001820JBJ.

Cass. 1re Civ., 6 January 2010, LawLex201000000108JBJ.

Art. 7(2) Regulation No 1215/2012 of 12 December 2012, reproducing Article 5(3) of Regulation 44-2001 of 22 December 2000. On the other hand, when Article 7(2) is not applicable since it only concerns the possibility of suing a person domiciled on the territory of a Member State in another Member State (that of the place where the harmful event occurred), which is not the case of Japan, the jurisdiction of the court of the place of residence of the defendant is applied pursuant to Article 4 of Regulation No 1215/2012, as long as the perpetrator of the act of unfair competition, even if carried out in Japan, is domiciled in France, CA Paris, 10 May 2017, LawLex201700000874JBJ; 31 May 2019, LawLex201900000727JBJ.

Cass. 1re civ., 14 January 1997, LawLex200200001309JBJ; 14 April 2010, LawLex201000000514JBJ.

Cass. com., 26 February 2013, LawLex201300000268JBJ.

Cass. com., 20 September 2016, LawLex201600001548JBJ.

Cass. 1re civ, 13 May 2020, LawLex202000000454JBJ. For parasitism, see Cass. com, 16 March 2022, LawLex202500000721JBJ: it follows from the principles of sound administration of justice, foreseeability and proximity implemented by the Court of Justice that, for an action for damages for harm to one's image and reputation and for the loss, even if unproven, of sales resulting from parasitic behavior through the internet and discontinuation of sales, the materialization of the harm must be located in the State of the victim's registered office, which is the place of the victim's center of interests.

Cass. 1re civ., 15 June 2022, LawLex202500000715JBJ; February 1, 2023, LawLex202300001918JBJ, holding that since the claims were limited to damages for harm suffered in France and to appropriate measures to remedy and prevent further harm in that territory only, that it was established that the company in question was targeting the French market and providing users with a French-language website intended for the French public and that therefore, the plaintiff companies' action for an injunction, which was partial and not integral, was geo-rectification limited to the French territory to the exclusion of all others, and was geographically divisible and not one and indivisible, a court of appeal may hold that the plaintiffs were entitled to bring their action before the French courts, without ignoring European case law relating to the outright removal of disputed content from the internet, irrespective of any geographical considerations, according to which, given the ubiquitous nature of the data and content posted on an internet site, and the fact that the scope of their dissemination is in principle universal, a claim for the rectification of data and the deletion of content is a single and indivisible claim, and can only be brought before a court with jurisdiction to hear a claim for damages in its entirety.

Cass. com., 12 May 2010, LawLex201000000585JBJ.

CA Metz, 19 September 2024, LawLex202400006935JBJ: if justified by the facts, the court must apply the rules of public policy derived from EU law, such as a conflict of laws rule from which derogation is prohibited (loi de police), even if the parties have not cited it, so that in application of Article 6. 2 of the Rome II Regulation, given that the alleged acts of unfair and parasitic competition mainly affect France, where the victim's registered office is located, French law alone is applicable.

CA Paris, 12 September 1991, LawLex200200001794JBJ.

Cass. com., 8 November 2017,  LawLex201700001823JBJ; 15 January 2020, LawLex202000000079JBJ, quashing CA Paris, 10 May 2017, LawLex201700000874JBJ, which had held that the law applicable to a non-contractual obligation arising out of an act of unfair competition which affected only the interests of a specific competitor was, by virtue of Articles 6(1) and 4(2) of the Rome II Regulation, the law of the country in which the person claimed to be liable and the person sustaining damage had their habitual residence at the time when the damage occurred  - i.e. French law - and failed to investigate whether the disparagement and economic blackmail pursued had affected the Japanese market.

CA Versailles, 14 September 2006; Cass. com., 11 March 2008, LawLex200800000383JBJ, the Tribunal judiciaire (Judcial Court) has jurisdiction to hear actions for unfair competition brought by a commercial company against an artisan.

CA Douai, 5 April 2011, LawLex201100000822JBJ.

Amended by Article 196 of Law No 2011-525 of 17 May 2011. For an example see Cass. com., 20 February 2007, LawLex200700001688JBJ: an action for unfair competition must be brought before the Tribunal judiciaire and not before the Commercial Court when the assessment of fault requires a consideration of the rights of parties on the packaging in question and that they be protected under the trade mark law; 7 June 2010, LawLex201100001029JBJ, the Commercial Court has jurisdiction for actions based on acts of disclosure of know-how and not to acts of patent infringement ; 20 November 2012, LawLex201200002356JBJ, only the president of the Tribunal judiciaire has jurisdiction to order a measure of investigation on the basis of Article 145 of the Code of Civil Procedure when the measure sought is inextricably linked to acts of infringement; 16 February 2016, LawLex201600000372JBJ; CA Paris, 21 November 2014, LawLex201400001316JBJ, jurisdiction of the Paris Tribunal judiciaire to hear related infringement and unfair competition actions, by virtue of  Articles L. 522 And R. 521-1 of the Intellectual Property Code and R. 211-7 of the Code of Judicial Organization, and to rule on alleged unfair terminations of established commercial relations and abuses of economic dependence, taking into account the existence of a connection between the facts in question, which occurred consecutively during the same period, affecting the relations and the flow of trade between the parties; Cass. com., 6 September 2016, LawLex201600001425JBJ;  Cass. 1re civ., 3 November 2016, LawLex201600001831JBJ: the civil court, traditionally authorized to rule on patent matters, and in particular on actions for annulment brought against decisions taken by the director of the INPI concerning the issuance, rejection or maintenance of industrial property certificates (Art. L. 411-4 of the Intellectual Property Code), also has jurisdiction to rule on the harmful consequences - and in particular on the prejudice suffered as a result of the implementation of an action for unfair competition - which may result from faults committed by the director in the exercise of his functions

CA Versailles, 12 September 2017, LawLex201700001515JBJ.

CA Paris, 5 December 1990, LawLex200200001841JBJ, specifying that the anticompetitive conduct in question started to develop during the employment contract. CA Paris, 18 September 2008, LawLex200900001828JBJ, confirming the jurisdiction of the Conseil de prud'hommes (Labor Tribunal) only in the event of a non-compete obligation; Cass. com., 15 November 2011, LawLex201100001826JBJ, re-stating the principle of the jurisdiction of the Conseil de prud'hommes to hear the dispute which between an employer and a former employee in respect of a breach of an obligation in a settlement agreement governing the consequences of the termination of the employment contract even if the acts of unfair competition at the origin of that breach fall within the ambit of the commercial courts; Cass. soc., 17 December 2013, LawLex201300001880JBJ, holding that the exception of lis pendens presented before the Conseil de prud'hommes in favor of the Tribunal de grande instance first seized must be rejected the latter not being competent to rule on a claim for compensation for the loss suffered by the employer because of acts of unfair competition committed by an employee during the performance of the employment contract. But see Cass. 2e civ., 5 May 2011, LawLex201100000944JBJ, holding that the Tribunal de grande instance has jurisdiction to hear the application for the claim submitted by a company claiming to be victim of an act of poaching requesting the appointment of Bailiffs to conduct investigations at the headquarters of the competitor and the homes of former employees; Cass. soc., 16 November 2017, LawLex201700001911JBJ: Conseil des prud'hommes is competent to hear a recourse action brought by an employer against his employee regardless of whether the acts of unfair competition complained of were committed after the effective termination of the employment relationship.

Jurisdiction and applicable law

It may be necessary to have certain practices stopped in the short term pending a trial on the merits, which can take a long time. Article 2 of the Law of 2 July 1963 had provided for an accelerated procedure for the ceasing of the infringement in addition to the principal ordinary law action. Any trader, producer or artisan “having brought an action for reparation of the injury caused by acts of unfair or unlawful competition may, until a definitive ruling is rendered on the merits, apply for an order to cease the alleged conduct of the defendant either provisionally or subject to penalties for non-compliance”. The enactment of these provisions was to be ensured by a decree of the Conseil d’État which has never been published. 

The only remedy currently available is interim relief (référé), and the provisions which have extended its domain allow the courts to order the suspension of actions which are grossly unfair, when the urgency of the measure is ascertained, in order to prevent imminent harm , or to stop a manifestly unlawful disturbance (trouble manifestement illicite) . Interim relief can for example be used to ban the distribution, sale and promotion of a perfume on the French territory and to order the withdrawal from the French market of all products and commercial and advertising documents reproducing or making reference to that perfume, as long as the measure is limited to the products and advertisements deemed to be parasitic . However, the measure imposed must not be disproportionate to the facts .

Pursuant to Article 145 of the Code of Civil Procedure, the interim applications judge can also order that investigations be carried out  to gather evidence of the acts of unfair competition alleged where the trial court has not already been seized of the same case . The court with territorial jurisdiction to rule on an application based on Article 145 of the Code of Civil Procedure is the presiding judge of the court that is likely to hear the case on the merits, or the court within whose jurisdiction the requested measures of investigation in futurum are to be carried out, even partially, without the claimant being able to invoke a clause conferring territorial jurisdiction . The Court of Cassation has ruled that the existence of a pending proceeding constitutes an obstacle to the pronouncement of an investigative measure “in futurum” only if the proceedings on the merits were opened in the same case at the date of the application . The granting of such measures by the court requires that mission of the officer (judicial commissioner) appointed by the court to make the findings be proportionate to the objective pursued, sufficiently narrow and limited in time . Statements established in execution of a mission entrusted to a judicial officer by a retracted interim order, because they were not obtained in good faith, must be excluded from the proceedings .

Although under Article 145 of the Code of Civil Procedure, legally admissible measures of investigation may be ordered at the request of any interested person  on application or in interim proceedings if there is a legitimate reason for keeping or establishing, pre-trial, evidence on which the outcome of the litigation may depend , recourse to an order on application (ordonnance sur requête) is justified only in cases where the applicant has legitimate grounds not to include the other party  i.e. when it can justify that the effect of surprise is a prerequisite for the success of the measure sought . Measures ordered on application on the basis of Article 145 of the Code of Civil Procedure must be justified by a need to preserve the integrity of evidence or are null and void . However the grant of such measures does not require that any initial element of evidence be brought : the plaintiff does not have to prove the existence of the facts alleged . Indeed, the merits of the action for which the in futurum measure is sought do not have to be established at the filing stage . However, the claimant must demonstrate the existence of specific elements constituting evidence of a possible breach of a rule of law, making it possible to establish the plausibility of facts the proof of which might be required in an eventual trial on the merits .

Furthermore, urgency is not required for the investigative measures of inquiry provided for in Article 145 to be ordered . Moreover, the court may not order a measure of inquiry in futurum to establish acts of unfair competition without the application or the order expressly mentioning the circumstances that justify the measure not being taken in the presence of both parties . In such circumstances, the right to a fair trial requires that the person assisting the judicial commissioner in drawing up the minutes of the investigation be independent of the applicant, which is not the case of a trainee lawyer employed by the plaintiff's counsel  .

The judge hearing an application to revoke an order on application is vested with the powers of the judge who issued it, and may revoke or modify it . In order to do so, he must verify whether the in futurum measure ordered was necessary for the exercise of the petitioner's right to evidence, and proportionate to the conflicting interests at stake . When the measures ordered to establish the acts of unfair competition in dispute exceed the provisions of Article 145 of the Code of Civil Procedure , the judge in the retraction proceedings reduces their scope in order to limit them to the facts on which the resolution of the dispute could depend and to avoid excessive or unjustified infringement of business secrecy  or respect for private life . The sole purpose of a procedure to retract an order made on a motion is to submit to an adversarial debate the measures initially ordered on the initiative of a party in the absence of his or her adversary, and only the court which issued the order may be called upon to retract it  . Moreover, since such proceedings are merely an extension of the previous proceedings, the court must assess the existence of the legitimate reason on the day the motion was filed, in the light of the evidence produced in support of it and that produced subsequently before it . The court hearing the application for retraction then rules on the merits of the application, deciding on the grounds for the application or the order, which justify a derogation from the adversarial principle. These grounds must be given in concreto, and may not consist of a mere empty statement .

Furthermore, in order to substantiate the revocation of an order on an order on application, a court of appeal cannot take into consideration the results of the execution of the measures in futurum ordered to verify the legality of their authorization, which must be assessed at the time of their delivery . According to the Court of Cassation, investigative measures limited to the facts of the dispute described in the application, on which the outcome of the dispute may depend, constitute legally admissible measures, without it being necessary to determine whether the person sought consented to the handing over of the documents . On the other hand, a measure which is neither limited in its object nor in time, nor limited to the search for information relating to the facts of unfair competition described in the application, and which concerns the whole of the activity of the accused undertaking, constitutes a general investigative measure . However, it cannot be inferred from the mere fact that the order on application (requête sur ordonnance) provides for the possibility of using the police or a locksmith, or that it is intended not to provide spontaneous communication of the documents but to authorize access to the contents of the computer and to take a copy, that the measure is illegal, insofar as the measure is proportionate to the aim pursued and does not harm the legitimately protected interests of the appellant . The judge who issued the order on application may retract or amend it , but when he restricts the mission of the technician when hearing an application for nullity of the investigative measures carried out on the basis of the order on application, it is his responsibility to note the loss of legal basis for the measures already carried out and the resulting nullity. Furthermore, when amending the mission entrusted to the judicial commissioner or expert witness by the order on application , the judge must first ask the parties to present their observations, otherwise the principle of adversarial proceedings will be violated .

The procedure prescribed by Article 2 of the 1963 Law is inspired by rules that have existed for many years in certain European countries. The German law on unfair competition ("Gesetz gegen unlauteren Wettbewerb") allows recourse to the general interim procedure of the Code of Civil Procedure ("Zivilprozessordnung"), by means of which the cessation of the offending acts can be ordered by the court seized of the merits. In Italy, Article 700 of the Code of Procedure allows for the application of a provisional measure, up to and including a seizure, during the course of the proceedings. In Belgium, the president of the Commercial Court may order, by an order made on the merits, the cessation of acts contrary to honest practices in commercial and industrial matters .

T. com. Nanterre, 27 August 1992, LawLex200200001715JBJ, and 25 September 1992, LawLex200200001708JBJ, on the imminent nature of the damage resulting from the transmission of a television show slavishly copying that broadcast by another channel; CA Aix-en-Provence, 20 June 2024, LawLex202400004711JBJ: in the absence of a proof of the manifestly unlawful nature of the alleged acts of unfair competition, a loss of sales, in a highly competitive sector, cannot in itself demonstrate the existence of imminent damage justifying the taking of precautionary or preventive measures by the interim relief court.

CA Paris, 20 September 1991, LawLex200200001792JBJ; 12 July 1993, LawLex200200001627JBJ; CA Aix-en-Provence, 19 May 1994, LawLex200200001567JBJ; Cass. com., 16 December 1997, LawLex200200001200JBJ; 19 October 1999, LawLex200200000900JBJ, the criminal nature of the sanction of the actions denounced does not prevent the interim relief judge from ruling on the cessation of the manifestly unlawful disturbance resulting to the detriment of the unfairly attacked competitor. But see: TGI Paris, 1 July 2003, LawLex200300003297JBJ, considering that it is not within the jurisdiction of the interim applications judge to decide on the existence of unfair competition. Also see Cass. com., 15 May 2007, LawLex200700000680JBJ, the interim applications judge has no power to order the termination of an employment contract, or to take any measure leading to the termination of the latter, even if acts of unfair competition are ascertained; 22 September 2017, LawLex201700001573JBJ: the mere fact of copying a competing product that is not protected by any proprietary right does not in itself constitute an act of unfair competition, as such capable of characterizing a manifestly unlawful disturbance.

CA Versailles, 10 October 2024, LawLex202400007860JBJ, clarifying that the fact that the court had retained jurisdiction to order measures of inquiry in futurum within four companies under the terms of a single order on application (ordonnance sur requête), does not give one of them an interest in bringing an action for retraction on behalf of the other three, since it is linked to the latter only by business relations and as the latter have brought an action for retraction on their own behalf, there would be a risk of conflicting decisions if its action were upheld.

CA Paris, 11 January 2024, LawLex202400000477JBJ: the allegations of an advertising campaign promoting a straightener, which induce in the mind of the average, normally informed and reasonably attentive consumer, that the styling product it promotes would allow a more efficient straightening in terms of speed and smoothness and without damage to the hair because it is the only one to have a steam-based technology, whereas the results of laboratory tests show that steam is not likely to influence the speed and quality of straightening, nor does it reduce damage to the hair, are sufficient to render a misleading commercial practice plausible and to demonstrate the applicant company's interest in requesting, under article 145 of the Code of Civil Procedure, the disclosure of documents making it possible to verify the veracity of these allegations and the fairness of the advertising campaign, with a view to possible future litigation.

CA Paris, 22 November 2019, LawLex201900001466JBJ; CA Versailles, 10 October 2024, LawLex202400007860JBJ: the non-adversarial route of the order on application (ordonnance sur requête) is justified in granting measures in futurum, since the data enabling the applicant to establish proof of the extent of the acts of unfair competition of which it claims to be a victim are essentially made up of exchanges of e-mails or computerized documents which, by definition, could easily be deleted by the companies targeted by the measures sought.

Cass. 2e civ., 30 January 2020, LawLex202000000156JBJ; CA Lyon, 11 September 2024, LawLex202400006340JBJ: the need to depart from the adversarial principle for the granting of pre-trial measures must be explained precisely and in detail in the application, such being the case when the effectiveness of the requested measure depends on a factor of surprise and discretion, which excludes any adversarial approach.

Cass. 2e civ., 23 February 2017, LawLex201700000393JBJ: investigative measures ordered ex parte on the basis of Article 145 of the Code of Civil Procedure with a view to ascertaining the existence of possible acts of unfair competition are null and void where they concern documents which are required to be kept within the company and therefore not likely to disappear, and the other information requested is not necessary to characterize the offense; 16 November 2017, LawLex201700001921JBJ; 1 March 2018, LawLex201800000376JBJ and LawLex201800000375JBJ.

Cass. com., 30 May 2018, LawLex201800000828JBJ.

Cass. com., 20 February 2019, LawLex201900000260JBJ: an appellate court cannot rely on the absence of evidence of facts that the investigative measure granted was intended to establish or find  to withdraw an order made on motion, annul the acts, minutes and findings made pursuant to it and order the return of the items seized.

Cass. com., 4 November 2020, LawLex202000003083JBJ.

CA Versailles, 10 October 2024, LawLex202400007860JBJ.

CA Versailles, 17 January 2019, LawLex201900000106JBJ.

Cass. com., 4 February 2014, LawLex201400000227JBJ

Cass. 2e civ., 26 January 2017, LawLex201700000242JBJ;  14 November 2019, LawLex201900001420JBJ: an order on ex parte application is sufficiently reasoned when it refers to the nature of the facts of unfair competition expressly denounced in the application and mentions a risk of degradation and destruction of evidence as well as the need for a surprise element in order to prescribe measures on the basis of Article 145 CPC. Cf. CA Paris, 31 July 2019, LawLex201900000953JBJ, holding that there is reason to retract the order on application for measures of investigation on the basis of Article 145 CPC with a view to establishing the acts of unfair competition at issue, since the effect of surprise sought or the risk of evidence being destroyed was not relevant in this case to justify a derogation from the adversarial principle, the petition having been filed on 4 October 2018 because the undertaking in question, having been informed since June 2018 of the complaints against it, could have taken measures to have evidence destroyed; 22 November 2019, LawLex201900001466JBJ: the act of proceeding by way of an order on application to grant a measure on the basis of Article 145 CPC is not justified, when the derogation from the adversarial principle was motivated by a risk of deterioration of evidence in the event that the respondent company came to know of the procedure, while informed of the accusations of unfair competition made against it by previous letters of formal notice and in a position to alter the evidence sought, it did not attempt anything to that end.

Cass. 1st civ, 25 January 2017, LawLex201700000216JBJ. Also see Cass. 2e civ, 5 December 2019, LawLex201900001514JBJ and LawLex201900001514JBJ, considering that an appellate court cannot hold, in rejecting the application for retraction of the order on ex parte application, that the fact that the company specializing in information technology, mentioned in the application to assist the judicial officer, is common to both companies in the dispute, does not amount to a lack of fairness in the administration of evidence of the suspected acts of unfair competition, in the absence of any power of observation or analysis of this undertaking, which was only called upon to provide technical assistance in the input of data, since the right to a fair trial requires that the person who assists the judicial commissioner in drawing up a report be independent of the applicant.

Cass. 2e civ., 23 November 2023, No. 21-20.436.

Cass. 2e civ., 25 March 2021, No 19-20.156.

CA Versailles, 16 May 2024, LawLex202400003739JBJ: within the meaning of Article 145 of the Code of Civil Procedure, legally admissible measures are those provided for in Articles 232 to 284-1, provided they do not infringe any fundamental freedom and are proportionate to the aim sought.

CA Versailles, 9 November 2017, LawLex201700001883JBJ. Cf. Cass. com, 17 January 2018, LawLex201800000113JBJ: orders which impose investigative measures on the basis of Article 145 of the Code of Civil Procedure do not concern a general mission of investigation when they entrust the judicial officer with a search for evidence directly related to the facts denounced under unfair competition; CA Nîmes, 26 January 2024, LawLex202400000736JBJ: business secrecy does not constitute an absolute obstacle to the granting of investigative measures in futurum if the court finds that the measures ordered derive from a legitimate reason, are necessary to protect the rights of the plaintiff and do not disproportionately infringe the rights of the other party; CA Dijon, 22 August 2024, LawLex202400005777JBJ: provided that the mission includes restrictions intended to limit the infringements likely to be made to business secrecy, which does not in itself constitute an obstacle to the application of the provisions of Article 145 of the Code of Civil Procedure, by the requirement to conceal certain sensitive financial information not directly related to the exercise of the plaintiff's right to establish proof of acts of unfair competition attributed to its competitor, the investigative measure is proportionate to the evidentiary purpose pursued, so that there is no need to retract the order on application which authorized it.

The application of Article 145 of the Code of Civil Procedure does not contradict the principle of respect for private life, which is not disproportionately affected when, in view of the itinerant functions of the persons concerned, the measure ordered is executed at their homes, without being extended to the computers of the spouses, See Cass. 2e civ., 16 May 2019, LawLex201900000653JBJ.

Cass. com., 2 December 2020, LawLex202000003492JBJ, adding that an appeal court cannot rule on the merits of the application for withdrawal of the order authorizing the contested measure in futurum, since it was seized, as a principal claim, with an application for release of the items and parts placed in escrow and, as a counterclaim, with an application for withdrawal, which should have been made not before it, but before the applications judge who issued the order.

CA Paris, 9 October 2019, LawLex201900001217JBJ, stating that the undertaking which, under a name it had previously renounced by memorandum of understanding with the respondent company, takes action against the latter on the basis of Article 145 CPC with a view to obtaining a finding of possible unfair competition, has no legitimate reason to obtain such an investigative measure (under that name), so that the order which retracted the measure ordered on application must be upheld; Cass. 2e civ., 25 March 2021, LawLex202100000917JBJ, specifying that the revoking court must review its jurisdiction with respect to the original motion, which is not superseded by the notice of appeal from an order for dismissal.

Cass. com., 13 March 2019, LawLex201900000340JBJ: a court of appeal cannot uphold an order which, subject to a penalty, prohibits the defendant undertaking from referring, to any third party, closely or remotely related to the group to which the letter was addressed, in whatever medium or expression, to the plaintiff undertaking, its director or its products, without verifying whether the measure ordered is not disproportionate, in view of the facts, in that it would prevent the plaintiff undertaking from pursuing its main contracts with its most important partners.

Cass. 2e civ., 31 January 2019, LawLex201900000183JBJ.

CA Versailles, 17 January 2019, LawLex201900000106JBJ; CA Paris, 6 September 2024, LawLex202400006248JBJ: an investigative measure is equivalent to a general investigative measure likely to infringe the business secrecy of the company concerned when it has been authorized without providing for a combination of keywords strictly limited to the scope of the unfair competition facts complained of.

CA Colmar, 7 May 2025, LawLex202500004620JBJ, held that measures which resemble a veritable search and seizure operation within the meaning of Article 145 of the Code of Civil Procedure, are neither limited to the disputed facts nor proportionate to the objective pursued, insofar as they require the mobilization of all staff members, the availability of all equipment and materials (printers, scanners, photocopiers) for an unlimited duration, allow the judicial commissioner to make a full copy of files, hard drives, and other media in order to carry out searches at a later date in his office, and require the defendant companies, now appellants, to actively cooperate in conducting the investigative operations;  CA Douai, 15 November 2018, LawLex201800001749JBJ.

Cass. 2e civ, 23 November 2023, LawLex202300013866JBJ: the court hearing a motion for retraction of an order on application may amend the mission as initially defined, by supplementing or amending it so that it is limited in scope and time, including where the motion to amend the order undertaken was made in the alternative, in response to the motion for retraction.

Cass. 2e civ., 4 June 2020, LawLex202000000519JBJ.

Law of 14 July 1991, on commercial practices and consumer information and protection, the provisions of which are now codified in the new Belgian Commercial Code.

CA Paris, 3 December 2014, LawLex201400000391JBJ, holding that, in application of Article 145 of the Code of Civil Procedure, a car dealership may, in the same way as the head of the network, demand the disclosure of the purchase invoices for the vehicles of the brand concerned, since in its status as a member of the network, it is subject to the obligations which the non-network reseller is not, who thus commits an act of unfair competition against that dealer.

Cass. com., 3 April 2013, LawLex201300000541JBJ; CA Paris, 7 April 2014, LawLex201500000472JBJ, holding that the simultaneous nature of  the resignations but also the hiring of five experienced employees out of seven in a department to a competing company is enough to create the presumption of the existence of collusion and unfair conduct such as justify the application for investigation measures “in futurum” (order to facilitate any future investigations).

Cass. 2e civ., 22 October 2020, LawLex202000002858JBJ.

Cass.com., 20 February 2019, LawLex201900000260JBJ; Cass., 2e civ., 20 May 2021, LawLex202100003056JBJ; 30 September 2021, LawLex202100005494JBJ; 23 November 2023, LawLex202300014001JBJ: there can be no overlapping of litigation, within the meaning of Article 145 of the Code of Civil Procedure, between proceedings on the merits, in which the plaintiff company accuses a franchisor and its franchisees of operating their stores and website by copying the franchisor's store concept and communication codes, and the dispute in which that company is requesting, on order on application (requête sur ordonnance), the granting of measures in futurum, for the purpose of establishing acts of unfair competition, committed on their own behalf, by other undertakings, consisting in having developed a kit for copying the concept of one of its stores and its communications.

Cass. 2e civ., 5 January 2017, LawLex201700000069JBJ: holding invalid the investigative measures pronounced on the basis of Article 145, inter alia on the grounds that the operations carried out resembled an actual search under civil law Cass., 1re civ., 22 June 2017, LawLex201700001120JBJ: a court of appeal cannot dismiss a request for substitution of an expert witness measure, without examining whether that measure, entrusted to a third party subject to professional secrecy, is proportionate to the right of the complainants to establish proof of acts of unfair competition attributed to their former general insurance agent and to the preservation of business secrets of the undertakings on whose behalf the latter is currently working.

Cass. com., 6 December 2016, LawLex201600002048JBJ.

French Competition Law

35. Standing

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