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

Under Article L. 442-1(I)2 of the Commercial Code, the practice of imposing or attempting to impose on the other party obligations creating a significant imbalance in the rights and obligations of the parties is prohibited. The previous version of the provision  covered all relationships of dependence  or imbalance between economic partners where they gave rise to an abuse . The LME version of the …

Conditions for prohibition

Under Article L. 442-1(I)2 of the Commercial Code, the practice of imposing or attempting to impose on the other party obligations creating a significant imbalance in the rights and obligations of the parties is prohibited. The previous version of the provision  covered all relationships of dependence  or imbalance between economic partners where they gave rise to an abuse . The LME version of the provision, only applicable to contracts concluded after it came into force , went further and instigated a real control over unfair terms in contracts between professionals. Now the law has once again evolved with the deletion of the reference to the concept of commercial partnership following the entry into force of the Ordinance of 24 April 2019. After mostly being used in the context of actions brought by the DGCCRF against retail chains, it has been progressively extended to all business sectors, and noted by legal commentators - large retailers on the one hand were frequently and severely sanctioned, other economic operators less frequently so and, more importantly, more moderately - it is now starting to be applied to the “big five” (GAFAM) corporations and could eventually constitute a new tool against practices committed by them .

Which prohibited “abusing the relationship of dependence in which a partner is held or [abusing] one's buying or selling power by subjecting [the partner] to unjustified  commercial terms or obligations (...)”.

For a clarification of the concept of dependence, see CA Colmar, 30 April 2002, LawLex200400002191JBJ, which rules out a relationship of dependence in the case of non-compete clauses as long as they are balanced; CA Paris, 26 January 2005, LawLex200500005580JBJ, requiring proof that no alternative solution existed to establish dependence; CA Paris, 14 June 2006, LawLex200600001403JBJ, ruling out dependence where the distributor can easily switch networks and the supplier does not have a large market share; Cass. com., 23 October 2007, LawLex200700002022JBJ, re-stating that the existence of an alternative solution under comparable economic and technical conditions excludes a finding of dependence.

For examples of application, see TGI Paris, 18 May 2004, LawLex200400002360JBJ, considering that the fact that an operator attempts to improperly obtain the payment of royalties from a publisher of video games is not unlawful insofar as the latter made no such payment and the refusal did not lead to the loss of any advantages; CA Douai, 13 October 2005, LawLex200600000490JBJ, penalizing the attempt to require a supplier to pay for fictitious commercial cooperation services.

See in particular CA Paris, 9 July 2010, LawLex201000001329JBJ; 27 March 2014, LawLex201400001767JBJ; 18 March 2015, LawLex201500000388JBJ.

See for example T. com. Paris, T. com. Paris, 19 December 2022, LawLex202200011318JBJ (Apple);  28 March 2022, LawLex202200001846JBJ (Google); 2 September 2019, LawLex201900001011JBJ (Amazon).

The scope of application of Article L. 442-1, I, 2° of the Commercial Code needs to be defined both in terms of the persons subject to it, and the activities concerned. Its applicability to situations pre-existing the entry into force of the law has also been a source of some difficulty.

Former Article L. 442-6, I, 2° referred to the notion of commercial partner in matters concerning significant imbalance, which is now replaced by the broader notion of “other party”. “Partner” referred to all professionals exercising production, distribution, or services activities, especially manufacturers, wholesalers, sellers or buyers . The Ordinance of 24 April 2019 has profoundly changed the text, replacing the concept of business partner with that of “other party” to the contract.

Under the former wording, there had to be, as was required by the courts in matters concerning discriminatory practices, a commercial relationship between the party imposing the clause and the party on whom it was imposed . “Economic partner” also implied a certain degree of continuity in the business relationship and could not arise merely from the conclusion of only one contract between two companies  or cover a one-time financial lease operation insofar as such a contract did not reflect a common and reciprocal wish to jointly undertake production, distribution or service activities . Going still further, the Paris Court of Appeal had even required that the commercial relations generate a stable and continuous stream of business . The Court of Cassation struck down this restrictive approach to partnerships, finding that by imposing those requirements, the Court of Appeal had added further conditions to the law that it did not contain. Interpreting former Article L. 442-6, I, 2° in the light of new Article L. 442-1, I, 2°, the Court of Cassation established the rule that the commercial partner is the party with which the other party is engaging, or is about to engage, in a commercial relationship .

Since the 2019 ordinance, the scope of application of new Article L. 442-1, I, 2° has become broader as a result of the abandoning of the concept of commercial partner in favor of that of “other party” to the contract and its applicability to the pre-contractual phase. Nevertheless, the provision lays down very clear conditions by making its application subject to the existence of a contract, from the negotiation to the performance stage, between persons engaged in production, distribution or the provision of services . The concept of party to the contract also raises the question of whether third parties to the contract who have allowed or facilitated the imbalance implemented by one of the parties should continue to be classified as commercial partners  .

Certain legal relationships or activities are not included in the provision. Such is the case of sectors subject to special rules such as the activities of finance companies, which are exclusively subject to the Monetary and Financial Code , relations between the cooperative members and  cooperatives, which are governed solely by corporate law  or between the lessor of a local shopping mall and the lessee, who fall under the sole status of commercial leases, in the absence of assistance from partners in any production, distribution or service activity . Similarly, the provisions of Article L. 442-1, I, 2° may not be invoked against a non-trading company (société civile) . The terms of withdrawal of a member of an EIG in the contract establishing the grouping or by a clause in its the internal regulations are also excluded from the scope of the text .

In principle, the prohibition of unfair terms between professionals only applies to contracts concluded after the entry into force of the LME Law .  However, in certain certain rulings, the courts have held that the significant imbalance of contracts concluded before this date can be invoked where they have been renewed, even if tacitly, after that date .

CA Paris, 12 December 2013, LawLex201300001811JBJ, which clarifies that the scope of application of significant imbalance is not limited to relations between suppliers and distributors but may also extend to those with subcontractors; CA Paris, 21 June 2017, LawLex201700001094JBJ, according to which the scope of the regulations goes beyond the retail sector alone and covers the hotel reservations sector.

CA Paris, 20 November 2015, LawLex201500001531JBJ.

Cass. 3e civ, 15 February 2018, LawLex201800000287JBJ; CA Douai, 15 December 2016, LawLex201700000014JBJ; CA Douai, 12 July 2018, LawLex201800001098JBJ, holding that the status of commercial partner cannot be claimed by the parties to a commercial lease, in particular by the lessee's joint and several debtor; CA Paris, 21 December 2023, LawLex202400000078JBJ.

TJ Paris, 4 April 2024, LawLex202400003147JBJ.

Cass. com., 11 May 2017, LawLex201700000866JBJ.

Cass. com, 5 July 2017, LawLex201700001194JBJ; CA Paris, 9 July 2010, LawLex201000001329JBJ; 18 June 2014, LawLex201400001767JBJ; 18 March 2015, LawLex201500000388JBJ; 30 June 2016, LawLex201600001225JBJ ; TGI Paris, 23 June 2016, LawLex201600001146JBJ; 8 February 2018, LawLex201800000260JBJ; Paris, 31 May 2018, LawLex201800000824JBJ; 3 September 2020, LawLex202000003669JBJ; 10 December 2020, LawLex202000003709JBJ. Also see CA Paris, 30 June 2017, LawLex201700001209JBJ, clarifying that the signing of an amendment to the contract after the entry into force of former Article L. 442-6, I, 2° does not change the solution.

T. com. Rennes, 22 October 2019, LawLex202100000768JBJ, upheld by CA Paris, 5 January 2022, LawLex202200000144JBJ. See also CA Paris, 1 July 2020, LawLex202000001685JBJ; 17 February 2021, LawLex202100000554JBJ; 17 May 2023, LawLex202300007168JBJ; 8 November, 2023, LawLex202300013406JBJ.

CA Lyon, 10 May 2012, LawLex201200000803JBJ; CA Limoges, 5 April 2016, LawLex201600000815JBJ; CA Lyon, 28 July 2016, LawLex201600001344JBJ.

CA Nancy, 14 February 2013, LawLex201300000251JBJ; CA Paris, 6 March 2015, LawLex201500000306JBJ; 21 September 2016, LawLex201600001561JBJ; CA Aix-en-Provence, 10 March 2016, LawLex201600000636JBJ; CA Grenoble, 10 May 2016, LawLex201600000980JBJ; CA Paris, 27 September 2017, LawLex201700001542JBJ; contra, see CA Versailles, 23 June 2016, LawLex201600001281JBJ, based on the Opinion 15-1 of 22 January 2015 of the CEPC (Commission d'examen des pratiques commerciales) according to which “the concept of “commercial partner” implies a concrete examination of the relationship and the purpose of the contract, which must be maintained over time and be designed to develop the activity of the parties. In the present case, the concept of partnership is accurate for a contract of a duration of 48 months which is intended to develop the activities of the professional signatories”

CA Paris, 27 September 2017, LawLex201700001542JBJ.

Cass. com., 15 January 2020, LawLex202000000076JBJ. See also CA Paris, 17 February 2021, LawLex202100000554JBJ.

For a chartered accountancy firm subcontracting part of its services to a third party, see CA Paris, 13 January 2022, LawLex202200000370JBJ.

For applications of this broad approach to the concept of partner, See T. com. Paris, 2 September 2019, LawLex201900001011JBJ; T. com. Rennes, 22 October 2019, LawLex202100000768JBJ; CA Paris, 5 January 2022, LawLex202200000101JBJ, characterizing a financing undertaking as complicit; 17 May 2023, LawLex202300007168JBJ, ruling that significant imbalance can only be assessed between commercial partners in the strict sense of the term, and not in relation to undertakings linked to them by capital ties.

Cass. com., 15 January 2020, LawLex202000000076JBJ; T. com. Paris, 2 September 2019, LawLex201900001011JBJ; CA Lyon, 4 June 2020, LawLex202000000498JBJ; CA Paris, 20 April 2022, LawLex202200002197JBJ; 15 March 2023, LawLex202300004094JBJ; 7 June 2023, LawLex202300007772JBJ; CA Lyon, 28 September 2023, LawLex202300013416JBJ; CA Colmar, 18 October 2023, LawLex202300013401JBJ; CA Poitiers, 27 February 2024, LawLex202400001917JBJ; Cass. com., 16 octobre 2024, LawLex202400007853JBJ ; TJ Nancy, 17 octobre 2024, n° 21/01170, LawLex202400008822JBJ. - Contra, Caen, 10 octobre 2024, LawLex202400007581JBJ.

 Cass. com., 18 October 2017, LawLex201700001744JBJ.

Scope of application

Article L. 442-1, I, 2° punishes the practice of imposing and attempting  to impose imbalanced obligations (subjection of partner to). Therefore the court does not have to assess the precise effects of a significant imbalance . An attempt does not necessarily result from the exerting of irresistible pressure  or coercion . Initially, the courts, including the Court of Cassation, agreed that subjection or attempt at subjection could arise from the existence of an economic imbalance of power between the parties from which the dependence of the partner could be deduced or from the inclusion by the distributor of an imbalanced clause in its standard contracts . Nevertheless, probably in order to narrow down an overly extensive application of the provision, the courts have now adopted a restrictive interpretation, leading it to hold that the main criterion for subjection is the lack of any effective negotiation and that the concentration of the distribution market or the insertion of imbalanced clauses by a powerful distributor do not constitute conditions which are sufficient to characterize “subjecting” the partner, but are only factors amongst other indications which must be supplemented by evidence of a lack of any actual negotiation . Since then, in practice, there has been a very significant decrease in the number of successful actions for significant imbalance, due to the difficulty of establishing the absence of effective negotiation.

Proof of an absence of negotiation can, for suppliers, result from distributors systematically refusing  or failing to heed their requests for amendments or reservations , thus making the contracts more like standard form agreements , or from the systematic prevalence of the distributors' terms and conditions of sale over those of the supplier with no opportunity for negotiation  due to the fact that the clause is not in the supplier's general terms of sale but in the annex of the distributor's standard agreement and initialed without modification by all of its trading partners , or from a specific clause in the contract, which, unlike its other stipulations, does not contain any space to allow for modifications to be made to its content and has not be subject to any real negotiations as shown by the uniformity of terms applied to all suppliers . Similarly, the fact that terms that are manifestly contrary to the interests of suppliers are drafted in a uniform, general and vague manner, without proof that there has been any real discussion between the parties regarding their inclusion or removal, is evidence of submission . Even when a supplier has been able to negotiate certain terms of the annual agreement, there is an element of forcing or “subjection” if rebates of a significant amount have not been discussed between the parties, despite their sharp increase in recent years . The client of a large undertaking is also subject to an imbalance if the same terms have appeared in its contract for several years and are found in all the agreements it concludes with its other clients  regardless of their economic model  . An undertaking which requires its customers either to accept its terms without discussion or to forego all purchases is subjecting them to a significant imbalance .  Persistent pressure and threats of de-listing to obtain advantages without effective negotiation or consideration  including during the course of the year, without showing any new circumstances likely to justify a request for renegotiation of the annual agreement  or making the granting of a discount a prerequisite for annual negotiations, while placing suppliers at risk of not meeting the 1 March cut-off date , are also characteristic of subjecting a party to imbalanced obligations. The same applies to a negotiation process in which a distributor demands non-compensated credit from its supplier, after threatening to delist the product on the grounds of alleged lack of profitability, which it then refrains from implementing once it has obtained satisfaction .  A distributor who gives notice of partial and then total delisting of the supplier's products during the annual negotiation period and refuses to enter into negotiations, arguing that the framework agreement signed the previous year is extended throughout the period of notice granted, is also subjecting its partner to a significant imbalance . The fact that a hundred distributors combined are unable to obtain a modification of a clause imposed by their supplier undoubtedly establishes their state of submission . In some cases, the lack of bargaining power of one party is inferred from its dependence on the other . This finding must, however, be supported by evidence relating, in particular, to the total turnover of the party claiming such dependence . Accordingly, subjection is ruled out when the professional merely alleges an aggressive sales technique by a co-contractor when the latter is not an unavoidable service provider for its activity .

On the other hand, the mere fact that the contract between the parties is a standard form contract is not sufficient to establish that it was impossible to negotiate its terms . The claimant must provide evidence of the context of the pre-contractual period in order to demonstrate that negotiation was not possible . Indeed, a price increase imposed by a service provider on its customers does not constitute subjection or attempted subjection when it is attributable to the service provider's financial difficulties and the service provider has shown a spirit of negotiation by proposing a staggered application of the new prices . Indeed, a supplier that does not substantiate that it requested the amendment of certain terms that the distributor allegedly refused   or that it raised any objections  to some of the terms proposed by the distributor while it contested others and obtained amendments  does not prove the condition of being subjected to an imbalance. A supplier who has been able to negotiate the price , obtain the removal of a take-back clause for unsold goods or the reduction of the rate of the discounts granted to the distributor  or various other terms in the agreement , refuse a distributor's request  and obtain effective consideration  , or even additional consideration  cannot claim to have been “subjected” to a significant imbalance . A supplier who has not succumbed to the threat of delisting or prohibition of access by its sales force to the distributor's shops by granting undue discounts or rebates, and who has been able to conclude contracts on terms different from those offered by the distributor, cannot claim to have been ‘subjected to’ those conditions. . The existence of genuine negotiations precludes subjection   even if the supplier's demands were ultimately rejected . Furthermore, recourse to a competitive bidding procedure, which enables the supplier to propose and discuss prices, while retaining the option of not entering into a contract if he or she considers that they are not sufficiently lucrative, excludes subjection to a significant imbalance .  Similarly, a professional who has had a long-standing relationship with its supplier cannot claim that the signing of the most recent contract was forced upon him .  Nor can a supplier who is not placed in a state of dependence vis-à-vis the distributor, due to the existence of an extended customer portfolio, varied outlets in various fields of activity, or even significant countervailing power, claim to have been subjected to an imbalance . Finally, a distributor that does not respond to the supplier's contract offer within the time-limit imposed by the supplier and challenges the application of the annual agreement demonstrates a bargaining power that precludes the allegation of being subject to a significant imbalance, especially when it distributes a significant number of competing brands .

A distributor who disputes submission to an imbalance must provide proof of the existence of the exceptions negotiated by the suppliers  : the agreement with a single client cannot, by itself, establish that the distributor readily accedes to demands for deletion of terms from its other suppliers . Moreover, the Minister of the Economy cannot use anonymous records as evidence of actual negotiations with the suppliers concerned ,  nor may the distributor merely produce anonymized or incomplete contracts which do not make it possible to assess the strength of the signatories or to verify whether the amendments obtained are not counterbalanced by other provisions  or the certification from a supplier that there is no imbalance in the contracts which he claims to have freely signed with a major retailer, insofar as that supplier is involved in the proceedings . On the other hand, the element of “subjecting” is not characterised when, out of the 45 suppliers questioned, 42 noted a total absence of pressure but, at most, a ‘strong incentive’ to sign the agreements .

Where the subjecting or attempting to subject the other party to imbalanced obligations is not established, it is not necessary to ascertain the existence of an imbalance .

Cass. com., 4 October 2016, LawLex201600001635JBJ, holding therefore that the court may rule solely on the basis of the standard contracts proposed by the distributor without having to examine the contracts signed by the suppliers; CA Paris, 28 June 2023, LawLex202300008655JBJ, considering that a request for a discount presented to the supplier shortly after the signing of the annual agreement, in order to compensate for the distributor's lower margins, with no immediate consideration offered and under threat of de-listing, effectively implemented following the refusal, characterizes an attempt at subjection. Cf. T. com. CA Paris, 27 April 2020, LawLex202100000625JBJ, considering that the mere coincidence between the sending of de-referencing letters and the commitment to commercial negotiations is not sufficient to establish the existence of an attempt to subject a partner to obligations creating a significant imbalance.

Cass. com. 3 March 2015, LawLex201500000284JBJ; CA Paris, 1 October 2014, LawLex201400000993JBJ; CA Paris, 16 May 2018, LawLex201800000727JBJ; T. com. CA Paris, 2 September 2019, LawLex201900001011JBJ, holding that the fact that a clause has not been implemented does not exclude the liability of its author, since the mere attempt is also sanctioned; CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ, holding that the fact that a supplier did not accept the investment solicited by the distributor does not rule out the infringement, since the attempt to subject the supplier is by definition constituted without its result materializing, and retaliatory measures sanctioning the refusal have been implemented; but see CA Lyon, 20 March 2014, LawLex201400002035JBJ.

CA Paris, 1 July 2015, LawLex201500000874JBJ.

Cass. com., 3 March 2015, LawLex201500000283JBJ.

CA Paris, 25 November 2015, LawLex201500001607JBJ; 22 October 2020, LawLex202000002840JBJ, clauses incorporated in an almost identical manner in all contracts entered into by the parties between 2006 and 2014 and which are found without possible amendment in all contracts entered into by other undertakings with the partner in question. Cf. T. com. CA Paris, 26 June 2024, LawLex202400004778JBJ, holding that the identical wording of part of the amendments relating to two types of price reductions is not sufficient to demonstrate the absence of effective negotiation.

CA Paris, 23 February 2022, LawLex202200001186JBJ.

Cass. com., 11 May 2022, LawLex202200002426JBJ; CA Paris, 7 January 2021, LawLex202100000030JBJ.

TJ Paris, 7 January 2022, LawLex202200000122JBJ.

Cass. com., 26 February 2022, LawLex202200000697JBJ.

T. com. Paris, 27 April 2020, LawLex202100000625JBJ. Cf. in the event of consideration, CA Paris, 25 October 2023, LawLex202300012903JBJ.

CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ, above, considering that a central purchasing body, which, less than two months after the conclusion of the annual agreement, asks its suppliers for an “investment”, without invoking any tangible and verifiable new circumstances, and without this request being accompanied by precise and quantifiable consideration, and whose principal, in the face of the refusal, notifies these suppliers of order stoppages on various references, based on under-performance which it does not justify, is attempting to subject its partners to a significant imbalance. Cf. CA Paris, 25 October 2023, LawLex202300012903JBJ, emphasizing that the mere fact that a distributor, wishing to take advantage of falling raw material prices to reduce consumer prices, requests credit notes from its suppliers without prior solicitation of the latter, is not sufficient to characterize subjection, if proof is not provided of the impossibility of opposing this request and putting an end to the negotiation freely and without sanction, and if consideration is offered.

T. com. Paris, 22 February 2021, LawLex202100000705JBJ.

CA Paris, 29 October 2014, LawLex201400001187JBJ: “subjecting or attempting to subject” as referred to in Article L. 442-1, I, 2° of the Commercial Code is not the same as exerting irresistible pressure ("contrainte irrésistible").

CA Paris, 25 October 2023, LawLex202300012903JBJ.

CA Paris, 29 November 2023, LawLex202300014222JBJ.

CA Paris, 11 October 2017, LawLex201700001648JBJ. See also in the same case, Cass. com., 18 October 2023, LawLex202300012835JBJ.

CA Paris, 18 November 2020, LawLex202000003120JBJ: partner dependent on the other for the content of its offer; a contrario, see CA Paris, 18 November 2020, LawLex202000003310JBJ: no obligation to contract with the other party; 26 June 2024, LawLex202400005516JBJ, ruling out dependence on a multi-brand distributor.

CA Paris, 19 November 2020, LawLex202000003147JBJ. See also CA Paris, 20 April 2022, LawLex202200002218JBJ, noting that the fact that one of the parties implements on average 95% of its sales with the other, that its employees wear the latter's branded clothing, that there is a difference in size and power between them and that the proposed contract is the standard contract applicable to transport subcontracting, is not sufficient to establish the existence of a subjection or and attempt to subject.

CA Paris, 5 January 2022, LawLex202200000101JBJ.

CA Paris, 9 July 2020, LawLex202000001754JBJ; Cass. com., 7 July 2021, LawLex202100004475JBJ; CA Paris, 6 January 2022, LawLex202200000175JBJ; 13 January 2022, LawLex202200000370JBJ; 7 June 2023, LawLex202300007777JBJ, emphasizing that the mere proposal of a standard form contract is not sufficient to characterize the subjection of partners to imbalanced clauses when suppliers, however few in number, have modified, deleted or negotiated some of them; 17 September 2022, LawLex202200006878JBJ; 8 November 2023, LawLex202300013419JBJ; 17 January 2024, LawLex202400000497JBJ. Cf. CA Paris, 17 May 2023, LawLex202300007168JBJ, holding that the presentation of contracts drawn up by the network head without prior discussion with its agents constitutes a strong indication of subjection.

CA Paris, 13 February 2020, LawLex202000000243JBJ; 11 March 2021, LawLex202100000720JBJ; 8 March 2024, LawLex202400002275JBJ.

TJ Paris, 10 October 2024, LawLex202400008110JBJ.

CA Paris, 12 June 2019, LawLex201900000846JBJ; 31 July 2019, LawLex201900000961JBJ; 5 September 2019, LawLex201900001022JBJ, holding that a supplier who does not provide any contextual information on the negotiating conditions of the contract it claims to be imbalanced, even though it is not a standard form agreement, does not establish subjection; 30 October 2019, LawLex201900001305JBJ, holding that the clause by which the customer's general terms of purchase prevail over the supplier's terms of sale does not characterize any subjection by the latter when it does not establish that it attempted unsuccessfully to have them amended or deleted in the course of the negotiation, that no action was taken on the reservations or amendments proposed, or that it found itself obliged to enter into the contract without any possible alternative; 24 June 2020, LawLex202000001665JBJ; 1 July 2020, LawLex202000001684JBJ, LawLex202000001685JBJ and LawLex202000001687JBJ; 26 January 2022, LawLex202200000573JBJ and LawLex202200000662JBJ; 8 September 2022, LawLex202200006878JBJ; 8 November 2023, LawLex202300013419JBJ; 17 January 2024, LawLex202400000497JBJ; 22 mai 2024, LawLex202400003859JBJ.

CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ, emphasizing that an aggressive and tense renegotiation of the terms and conditions enshrined in the single agreement is not sufficient to characterize an attempt to subject the other party to its terms, even in the absence of any new element substantiating the claim, when no tangible retaliatory measures planned or implemented are established and the supplier considers the compensations granted to be satisfactory and precisely identified and quantified.

T. com. Rennes, 22 October 2019, LawLex202100000768JBJ, which holds, with regard to allegedly unfair practices, that the absence of opposition during the course of the contract expressed by the person who relies on it precludes a finding of subjection.

CA Paris, 13 September 2017, LawLex201700001459JBJ.

CA Paris, 25 January 2019, LawLex201900000109JBJ; 7 November 2019, LawLex201900001365JBJ; 15 March 2023, LawLex202300003980JBJ.

CA Paris, 9 January 2019, LawLex201900000017JBJ; 10 November 2021, LawLex202100005924JBJ ; 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ.

CA Paris, 11 January  2019, LawLex201900000004JBJ, 6 February 2019, LawLex201900000191JBJ, 24 May 2019, LawLex201900000706JB; 11 March 2020, LawLex202000000389JBJ; 28 May 2020, LawLex202000000480JBJ; 1 July 2021, LawLex202100004331JBJ; 20 September 2023, LawLex202300012186JBJ, a franchisee having been able, “exceptionally”, to obtain the modification of certain terms of the franchisor's standard contract.

T. com. Paris,  26 June 2024, LawLex202400004778JBJ.

CA Paris, 10 May 2023, LawLex202300007759JBJ.

But see Cass. com. 3 March 2021, LawLex202100000682JBJ, the negotiation of certain clauses does not make it possible to establish that others have also been negotiated.

Cass. com., 29 September 2015, LawLex201500001194JBJ; CA Paris, 18 September 2013, LawLex201300001527JBJ, upheld by Cass. com., 27 May 2015, LawLex201500000721JBJ.

CA Paris, 30 January 2020, LawLex202000000188JBJ; 27 February 2020, LawLex202000000285JBJ; 14 January 2021, LawLex202100000108JBJ; 16 February 2021, LawLex202100000520JBJ; Cass. com., 31 March 2021, LawLex202100000975JBJ; CA Paris, 1 July 2021, LawLex202100005732JBJ;Cass. com. 11 May 2022, LawLex202200002543JBJ, ruling that a party cannot invoke a significant imbalance in the context of contract renewal talks when genuine negotiations have taken place, respecting the expression and rights of each party, without pressure, threats or unfair demands; CA Paris, 25 May 2022, LawLex202200002680JBJ; 17 January 2024, LawLex202400000497JBJ.

T. com. Paris, 27 April 2020, LawLex202100000625JBJ; CA Paris, 17 February 2021, LawLex202100000554JBJ, upheld by Cass. com., 16 November 2022, LawLex202200010341JBJ.

Cass. com. 28 June 2023, LawLex202300008567JBJ. See also. CA Paris, 20 April 2022, LawLex202200002218JBJ; 20 March 2024, LawLex202400002608JBJ. Cf. Cass. com. 18 October 2023, LawLex202300012835JBJ, holding that the fact that a party is not obliged to sign the contract does not exclude the existence of subjection a attempted subjection, which can only be assessed in the light of the actual ability to negotiate before signing; CA Paris, 9 October 2024, LawLex202400007683JBJ, holding that although the conclusion of a contract in the context of a call for tenders with competitive bidding usually leaves little room for negotiation, the existence of a tender is not established when the party invoking it does not describe the sector in which it operates and whether or not this type of contract is essential.

CA Paris, 8 November 2023, LawLex202300013406JBJ.

CA Paris, 7 June 2023, LawLex202300007777JBJ. - See also. CA Paris, 23 March 2022, LawLex202200001797JBJ; 12 May 2022, LawLex202200002509JBJ; 7 September 2022, LawLex202200006916JBJ. Cf. CA Paris, 28 June 2023, LawLex202300008655JBJ.

CA Paris, 6 November 2019, LawLex201900001343JBJ.

For an application, see CA Paris, 19 November 2020, LawLex202000003147JBJ.

Cass. com., 29 September 2015, LawLex201500001194JBJ.

Cass. com., 11 May 2022, LawLex202200002425JBJ, and, on referral, CA Paris, 7 June 2023, LawLex202300007777JBJ.

CA Paris, 19 April 2017, LawLex201700000726JBJ.

CA Paris, 20 December 2017, LawLex201700002134JBJ; upheld by Cass. com., 20 November 2019, LawLex201900001423JBJ; see also CA Paris, 16 May 2018, LawLex201800000727JBJ; 27 June 2019, LawLex201900000871JBJ; T. com. Paris, 22 February 2021, LawLex202100000705JBJ; Paris, 15 mars 2023, LawLex202300003980JBJ et LawLex202300004002JBJ; CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ; 17 May 2023, LawLex202300007168JBJ, emphasizing that an imbalanced relationship between a leading network operator and two medium-sized undertakings whose combined sales are almost seven times lower than its own, constitutes only a weak indication of subjection, when the latter is not a vital partner in the relevant market; Cass. com, 6 December 2023, LawLex202300014369JBJ; CA Bordeaux, 18 June 2024, LawLex202400004609JBJ, holding that the mere fact that the trading partner presents itself as an independent pan-European bank, specialising in growth sectors, and European leader in the fields of technology and life sciences in the Nordic countries, does not, however, establish that it was able to subject the co-contracting company through the exercise of a power relationship to obligations that created a significant imbalance in the rights and obligations of the parties, especially as the latter has a large number of investors and investment funds among its shareholders; T. com. Paris,  26 June 2024, LawLex202400004778JBJ. Cf. T. com. Paris, 2 September 2019, LawLex201900001011JBJ, stressing that when the impossibility of negotiation is integral to the type of distribution in question, the existence of subjection or attempted subjection  must be sought in the content of the balance of power between the parties, whether or not the relationship is essential  for one of them and the practicability of a change of partners.

Cass. com., 26 April 2017, LawLex201700000802JBJ.

CA Paris, 7 June 2023, LawLex202300007772JBJ. Similarly CA Paris, 6 September 2024, LawLex202400006247JBJ, emphasising that the mere fact that an IT service provider is bound by a results-based obligation and that its client has only assumed a best-efforts obligation with regard to the payment for services, subject to the success of a fund-raising operation, is not sufficient to characterise the existence of a significant imbalance in the rights and obligations of the parties in the absence of pressure on the service provider, whose intention was to become a full partner of its client.

CA Paris, 20 December 2017, LawLex201700002134JBJ; Cass. com., 14 February 2018, LawLex201800000299JBJ.

See CA Paris 19 November 2020, LawLex202000003147JBJ which specifies that such reservations must be expressed at the time the contract is negotiated, and not after it has been concluded.

CA Paris, 20 November 2013, LawLex201300001638JBJ.

CA Paris, 18 December 2013, LawLex201300001881JBJ.

Concept of “subjection to”

What is a significant imbalance? The Constitutional Council, in a referral for a priority preliminary ruling on the issue of constitutionality on the concept of significant imbalance, considered that the concept is defined in terms that are sufficiently precise and clear insofar as it has already been set out in the Consumer Code and in Directive No 93/13 of 5 April 1993 and as it has been clarified in the case law . Likewise, the Paris Court of Appeal has held that the legislator had not disregarded the provisions of Article 7 ECHR by failing to list the prohibited terms and by entrusting to the court the review of the existence of a contractual imbalance, insofar as the wording of the provision informs economic operators of the fact that any major swing of the contractual balance in favor of either one of the contracting parties may be sanctioned and that the review of the contract falls traditionally within the role of the court .

Article L. 442-1, I, 2°, which has been classified as an overriding mandatory provision (loi de police) in proceedings initiated by the Minister of the Economy, has made it possible to exclude the application of the foreign law chosen by the parties . However, such a classification has been challenged in disputes between undertakings, where it is invoked to protect private interests .

The Court of Cassation has intervened to clarify the boundaries of the concept and the criteria of imbalance  upholding the major trends coming from judgments rendered by the trial courts. Thus, a stipulation imposing an obligation which is devoid of reciprocity   i.e., one which grants a right or imposes an obligation on only one of the parties, without offering or imposing it on the other, is imbalanced. However, there are situations in which the asymmetry of rights and obligations arises from the very nature of the relationship, so that it cannot be sanctioned simply by virtue of its existence . Moreover, the absence of reciprocity resulting from the drawing up of a contract does not prevent the party who feels aggrieved from making use of the possibilities offered by ordinary civil law to re-balance the contract.  Accordingly, a growing number of judgments have held that a contract is not imbalanced simply because it offers the right of termination to only one of the parties, as long as it does not deprive the other party of the right to give notice of unilateral termination under the conditions laid down in Articles 1224 and 1226 of the Civil Code, or to seek judicial termination of the contract in accordance with Article 1227 thereof .  Naturally, a clause which applies equally to both parties will not be regarded as unfair .

A lack of balance may also result from a lack of consideration for a right or obligation . The party claiming the lack of consideration must prove ir . In effect, when the existence of consideration is established, the claim cannot succeed .

Thirdly, a clause is imbalanced where the application or interpretation of it is subject to the choice of one of the parties . According to the Court of Cassation, this is not the case with the clause allowing a hosting provider to quickly suspend the use of its referencing services ‘for legal reasons’, since Article 6(2) of the Law of 21 June 2004 on confidence in the digital economy requires it to act promptly to remove data it knows to be unlawful or to make access to it impossible .

Imbalance can finally be a result of the disproportion between the rights and obligations of the parties .  Disproportion may pertain to the exaggerated nature of a sanction ,  or to a price or payment . In the latter case, it is the responsibility of the party claiming disproportion to provide details of comparisons with market prices for comparable products or services . Similarly, a contracting party who denounces the cumbersome and inappropriate nature of the provisions of a contract concluded following a call for tenders without explaining the allegations, with regard to the activity in question, its organization and the resulting constraints, does not establish the alleged imbalance .

According to the court, the balance of the parties' rights and obligations is assessed with regard to the legal structure of the contract, and not its economic profitability . However, the implementing of a discriminatory practice does not in itself constitute an imposition of imbalanced obligations and thus cannot be sanctioned under Article L. 442-1, I, 2° . 

Cons. constit, No 2010-85 of 13 January 2011, LawLex201100000039JBJ. Cf. CA Paris, 29 October 2014, LawLex201400001187JBJ, cited above, finding that although the court may take inspiration from consumer law cases on unfair terms, it may not reason by analogy insofar as the scope of the two provisions is different.

CA Paris, 1 October 2014, LawLex201400000993JBJ.

CA Paris, 23 February 2022, LawLex202200001186JBJ, holding that the fact that the payment of allegedly conditional rebates is scheduled on fixed dates demonstrates that no real consideration is attached to them.

T. com. Nancy, 6 July 2018, LawLex201800001462JBJ; CA Paris, 6 November 2019, LawLex201900001343JBJ, holding that the deprivation of a bonus does not institute a significant imbalance in the rights and obligations of the parties when the distributor has made the corresponding saving of an investment to which the benefit of this bonus was attached; T. com. CA Paris, 27 April 2020, LawLex202100000625JBJ : assets granted by a supplier to maintain its listing, or in return for useful statistical data, or to take account of falling raw material costs; CA Paris, 6 May 2021, LawLex202100002874JBJ; 7 September 2022, LawLex202200006916JBJ, holding that a volume premium that remunerates the service provider's referencing of its customer's subsidiaries, encouraging them to use its services rather than those of other operators, which has doubled the sales achieved with this customer, is not devoid of consideration; CA Paris, 8 September 2022, LawLex202200006878JBJ, holding that discounts compensating for a logistical service, enabling the supplier to deliver goods to a single warehouse managed by the distributor, which is responsible for store-by-store supply, are not without consideration; CA Paris, 25 October 2023, LawLex202300012903JBJ, cited above, considering that serious and effective quid pro quos, which exclude the complaint of significant imbalance, include the fact that a supplier was able to benefit from a 3% price increase on references maintained over the course of a financial year, and the assurance of a renewal of commercial relations with prices maintained for the following year, as well as an increase in the scope of referencing.

See T. com. Meaux, 6 December 2011, LawLex201100001899JBJ: clause providing for the termination of the referencing agreement in the event the product under-performs whereas the results depend on the commercial action taken by the distributor; T. com. Meaux, 24 January 2012, LawLex201200000137JBJ: clause stipulating the systematic and undifferentiated transfer of the risk of unsold goods to the supplier, whereas the distributor is owner of the stock and responsible for the conditions of its marketing; CA Paris, 4 July 2013, LawLex201300001139JBJ: return of unsold stock clause requiring the supplier to bear the full burden of the failure of the product to sell and the costs of restitution whereas the distributor holds virtually all the leverage to take action in respect of the level of sales; CA Paris, 11 September 2013, LawLex201300001296JBJ: clause setting  a service rate of 98.5% implementation of which is solely subject to the will of the distributor; T. com. Paris, 2 September 2019, LawLex201900001011JBJ, sanctioning: i) a performance measurement system with imprecise criteria in addition to an algorithm the parameters of which are kept secret and which are liable to change at any time, giving a platform the possibility of arbitrarily discriminating between its sellers by denying them access to a key functionality on its site ii) a clause reserving the platform the right, at its sole discretion, to restrict access to its site to certain products of the other party without providing the reasons likely to justify such an exclusion, where the products of both parties compete with each other iii) a clause allowing one party to immediately and unilaterally apply any, even essential, modification of the contract without notice and without informing the other party ; iv) a clause reserving a service provider the right at any time and at its sole discretion to stop, without notice and without informing the other party, the supply of all or part of its services, without stating the legitimate reasons capable of justifying such a decision and v) a clause allowing the immediate termination or suspension of the contract, without referring to any other term containing the possible reasons for such a measure; CA Paris, 13 February 2020, LawLex202000000243JBJ; Cass. com., 24 June 2020, LawLex202000001641JBJ, supplier having tried to unilaterally impose on its client new tariff conditions not justified by the increase in the cost of raw materials; T. com. CA Paris, 22 February 2021, LawLex202100000705JBJ; CA Paris, 5 January 2022, LawLex202200000144JBJ; T. com. Paris, 28 March 2022, characterizing as imbalanced a clause granting a platform the right to unilaterally suspend the contract for reasons that are not clear; CA Paris, 19 December 2022, LawLex202200011318JBJ, considering that a clause offering the option to suspend, at the platform's discretion, the distribution of an application or access to its services, creates a significant imbalance, even if the developer can also suspend its application; CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ, cited above. , indicating that the unilateral and discretionary amending of annually negotiated agreements, for no other reason than the pursuit of a financial advantage devoid of objective justification and without regard for the idea of commercial cooperation, characterizes an imbalanced situation. Cf. CA Paris, 16 February 2021, LawLex202100000520JBJ, holding that a clause which provides for the possibility of terminating the contract if the distributor finds itself unable to continue its activity for reasons external to the parties and which do not depend on the will of the supplier is not imbalanced.

Cass. com., 4 September 2024, LawLex202400005885JBJ.

CA Paris, 18 September 2013, LawLex201300001527JBJ; 1 October 2014, LawLex201400000993JBJ; 29 October 2014, LawLex201400001187JBJ; CA Versailles, 23 June 2016, LawLex201600001281JBJ, holding that the absence of any significant impact of the proposed service on the business of the professional canvassed reflects the manifest disproportionality of the advantage obtained; CA Paris, 22 May 2019, LawLex201900000732JBJ, which considers that the obligation placed on the franchisee to manage certain aspects of the sales made by the franchisor on its website does not reflect any imbalanced or disproportionate obligations, since it leads to visits by customers likely to make additional purchases in its store; T. com. Paris, 2 September 2019, LawLex201900001011JBJ; CA Paris, 25 November 2020, LawLex202000003386JBJ, “conditional end-of-year discount” clause whose scale applies from the first EUR and not when a sales threshold is crossed; CA Angers, 12 March 2024, LawLex202400002277JBJ.

CA Paris, 12 April 2023, LawLex202400002277JBJ, ruling that clauses designed to penalize non-payment by suspending maintenance on all contracts, including those that have been paid in full, are disproportionate. See also, in the same case, Cass. com, 18 October 2023, LawLex202300012835JBJ.

CA Caen, 10 October 2024, LawLex202400007581JBJ, specifying that a clause relating to the calculation of interest on the basis of a calendar year (année lombarde) does not create a significant imbalance in the rights and obligations of the parties when the additional cost generated by its application is limited to the derisory amount of EUR 2,350.

CA Paris, 15 February 2019, LawLex201900000225JBJ, holding that an undertaking cannot, in order to demonstrate the disproportionality of its service provider's remuneration, simply produce another supplier's quotation without establishing that the latter offers a service that is comparable in every respect to that of its current partner; 25 May 2022, LawLex202200002680JBJ, holding that a commission rate below the usual upper limit for bank remuneration is not disproportionate; CA Bordeaux, 5 March 2024, LawLex202400002103JBJ; TJ Paris, 10 October 2024, LawLex202400008110JBJ, emphasizing that undertakings cannot rely on the disproportionate nature of the new tariff imposed by their service provider without providing evidence of the prices usually charged by other undertakings in the sector.TJ Paris, 10 October 2024, LawLex202400008110JBJ.

CA Paris, 9 October 2024, LawLex202400007683JBJ. Similarly, CA Paris, 26 April 2024, LawLex202400003496JBJ, holding that a service provider cannot claim to have been subjected to disproportionate constraints as a result of the ban on subcontracting, since subcontracting was only subject to the prior approval of the principal and the service provider itself maintained that it did not need to subcontract when it submitted its tender.

T. com. Paris, 23 November 2015, LawLex201500001514JBJ. Cf. rejecting the existence of an imbalance when the financial conditions allegedly imposed by the partner enable the party claiming them to achieve an acceptable margin, CA Paris, 14 December 2016, LawLex201700000032JBJ.

T. com. Paris, 7 May 2015, LawLex201500000573JBJ, upheld CA Paris, 21 June 2017, LawLex201700001094JBJ,

Cass. com., 15 March 2017, LawLex201700000523JBJ and LawLex201700000524JBJ.

CA Paris, 29 October 2024, LawLex202400008433JBJ.

Cass. com., 3 March 2015, LawLex201500000283JBJ and LawLex201500000284JBJ.

See T. com. Lille, 6 January 2010, LawLex201000000013JBJ: a clause requiring suppliers to pay a monthly deposit on deferred discounts whereas the distributor pays for its purchases 2 or 3 months after the payment of the deposit or a clause requiring suppliers to pay by bank transfer whereas the distributor may use other means of payment or even through offsetting the balance; T. com. Meaux, 6 December 2011, LawLex201100001899JBJ. See also T. com. Lille, 7 September 2011, LawLex201100001426JBJ, upheld by CA Paris, 11 September 2013, LawLex201300001296JBJ and T. com. Meaux, 24 January 2012, LawLex201200000137JBJ, upheld by CA Paris, 4 July 2013, LawLex201300001139JBJ: clauses requiring the supplier to lower its prices in the event of a drop in the price of raw materials, whereas the distributor is not allowed to raise its prices in the event of an increase of the cost price; CA Paris, 27 April 2011, LawLex201100000844JBJ: clauses in standard form distribution agreements in the press distribution sector which provide for the termination “ad nutum” (regardless of the duration of relations) of the contract with 48 hours' notice, whereas the newsagent may only terminate the contract in specific cases and with one month's notice; T. com. Bordeaux, 11 May 2012, LawLex201400002288JBJ: margin guarantee system that only benefits the distributor; CA Paris, 1 October 2014, LawLex201400000993JBJ; T. com. Paris, September 2, 2019, LawLex201900001011JBJ; CA Paris, 13 February 2020, LawLex202000000243JBJ; T. com. CA Rennes, 22 October 2019, LawLex202100000768JBJ, upheld by CA Paris, 5 January 2022, LawLex202200000144JBJ: intuitus personae clause and termination indemnity applicable only to the franchisee; T. com. CA Paris, 28 March 2022, LawLex202200001846JBJ; T. com. CA Paris, 19 December 2022, LawLex202200011318JBJ; T. com. Lyon, 1 February 2023, LawLex202300001991JBJ, for an imbalanced jurisdiction clause; CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ.

Recognizing that in certain circumstances the lack of reciprocity is not the only sources of imbalance, CA Paris, 19 September 2014, LawLex201400000944JBJ; 17 December 2014, LawLex201400001499JBJ; 2 April 2015, LawLex201500000458JBJ; 8 October 2015, LawLex201500001246JBJ; 14 December 2016, LawLex201700000017JBJ, upheld by Cass. com., 30 May 2018, LawLex201800000834JBJ. See also CA Paris, 6 February 2019, LawLex201900000191JBJ; 15 June 2020, LawLex202000000543JBJ ; 24 June 2020, LawLex202000001665JBJ ; Cass. com., 31 March 2021, LawLex202100000975JBJ, holding that the disparity in the terms of implementation of an early termination clause in a financial lease agreement, which imposes a compensatory indemnity on only one of the parties, does not reflect the existence of a significant imbalance since it results from the nature of the contract, which implies the need to protect the party that has borne the initial investments; CA Paris, 7 September 2022, LawLex202200006916JBJ; 17 January 2024, LawLex202400000497JBJ, emphasizing that the absence of reciprocity of certain prerogatives offered to the importer does not constitute a hallmark of a significant imbalance when it is justified by the different nature of the parties' obligations and the interests they derive from the performance of the contract; CA Besançon, 14 May 2024, LawLex202400003699JBJ, ruling that a subcontractor cannot invoke the existence of a significant imbalance resulting from the signing of a non- compete clause for a period of two years from the end of the contract, with no geographical limitation, since it is the only subcontractor to have received know-how that can be protected; CA Montpellier, 21 May 2024, LawLex202400003803JBJ, considering that the mere fact that, in a works contract, the time allowed for the contractor to notify his final statement of account is 15 days, whereas the time allowed for the client to make his observations known is 30 days, does not appear to constitute a significant imbalance, given the multiplicity of participants in the contract whose services the client must verify.

See notably CA Paris, 13 March 2024, LawLex202400002413JBJ and 17 January 2024, LawLex20240000000497JBJ; CA Bordeaux, 5 March 2024, LawLex202400002103JBJ.

CA Paris, 13 October 2022, LawLex202200008782JBJ; 17 May 2023, LawLex202300007162JBJ; 8 March 2024, LawLex202400002275JBJ.

CA Paris, 1 July 2015, LawLex201500000874JBJ, according to which a clause providing for a rebate at the end of the year must be accompanied by consideration provided by the distributor, upheld by Cass. com., 25 January 2017, LawLex201700000176JBJ; CA Paris, 16 May 2018, LawLex201800000727JBJ; 28 June 2023, LawLex202300008655JBJ, holding that the proposal of a business transaction does not constitute serious consideration for the request for a discount on sales when it is not quantifiable and imprecise and, for certain suppliers, corresponds to services already accepted and carried out; 25 October 2023, LawLex202300012903JBJ, considering that the mere guarantee of maintaining the relationship without calls for tender does not constitute sufficient consideration to justify repeated requests for credit notes of a substantial amount.

Concept of significant imbalance

Like Article L. 212-1 of the Consumer Code , Article L. 442-1, I, 2° of the Commercial Code which uses the plural “obligations creating an imbalance” seems to impose a general assessment  with regard to all the parties' respective obligations. Although most trial courts favored such an overall assessment , some preferred to make a clause by clause assessment , while others held that where a distributor wants the court to carry out an overall assessment of the balance of the contract, the existence of terms likely to compensate for the imbalance in the individual obligations complained of must be demonstrated . The Court of Cassation has now ruled on the question: the court must make a comprehensive and detailed analysis of the contract and assess whether the imbalanced terms of the contract are not able to be offset by other stipulations .

The courts have up to now always been stricter than cases under consumer law in respect of the issue of the applicability of Article L. 442-1, I, 2° to clauses which have not been implemented or which are no longer applied. Whereas for similar scenarios actions brought by consumer associations have been held to be inadmissible , an action brought by the Minister is admissible without reservation finding that Article L. 442-1 refers both to the commission and the attempted commission of the act . Furthermore, actions brought by the Minister concerning matters of economic policy cannot be equated to those brought by consumer associations which merely contribute, alongside the public authorities, in ensuring the respect of consumers' rights without being the guardians thereof . The Hamon Law of 17 March 2014 however brings closer together the rules governing the sanctioning of unfair terms between traders as it allows consumer protection associations to apply to the civil or criminal courts for a declaration that an unfair term is null and void in all identical contracts concluded between the defendant and consumers, including contracts that are no longer offered, and ordering them to inform the consumers concerned by all appropriate means.

Furthermore, the commercial court considers that the absence of any negative effect of the practices on the suppliers who claim to be victims of them does not preclude a finding of imbalance ,  even if certain rulings, which implicitly rely on the disproportion criterion, require on the contrary that the imbalance of a clause be truly significant in order to be sanctioned .

The article is increasingly invoked to challenge unilateral conduct rather than contractual provisions . Such claims do not appear to be excluded from the scope of application of Article L. 442-1, I, 2° which is not aimed specifically at imbalanced “clauses”, but at imbalanced “obligations”. However, such conduct must have the same characteristics as clauses which are deemed unfair. This is not the case with a supplier's reduction of work in progress due to a decline in business between the parties, and the requirement of cash payment for goods for as long as unpaid invoices persist . However, requests to renegotiate agreements during the year or the imposition, without the supplier's consent, of promotional codes on certain products of its brand as well as debit notes, which are practices subsequent to the conclusion of the single commercial agreement, have been held to be unfair . A new trend in case law, based on the rewording of Article L. 442-1, I, 2°, which has emphasized the contractual nature of the offense, adopts a more nuanced position: it considers that “review of the significant imbalance relates only to obligations likely to be negotiated in a contractual process, and not to legal facts, excluded, in theory, from any discussion by the parties and sanctioned by the implementation of the contractual or tortious liability of their perpetrator” .  A distinction must therefore be made between abusive behavior, which could fall under Article L. 442-1, and breaches of contract, which are not subject to the court's assessment. 

Consumer Code, Art. L. 212-1: “[...] the unfair nature of a term is assessed by referring, when the contract is concluded, to all the circumstances surrounding its conclusion, as well as to all the other contractual clauses. It is also evaluated in respect of those contained in another contract where the conclusion or performance of these two contracts are legally dependent upon one another”.

T. com. Evry, 6 February 2013, LawLex201300000165JBJ.

See esp. T. com. Paris, 31 May 2021, LawLex202100005075JBJ and LawLex202100005080JBJ.

CA Paris, 26 October 2016, LawLex201600001800JBJ.

CA Paris, 16 May 2018, LawLex201800000727JBJ; T. com. Paris, 31 May 2021, LawLex202100005075JBJ and LawLex202100005080JBJ; CA Paris, 15 March 2023, LawLex202300003980JBJ and LawLex202300004002JBJ.

CA Paris, 29 March 2018, LawLex201800000511JBJ, which considers that the imbalance must result from the terms of the contract and not from their failure to perform; 7 September 2022, LawLex202200006916JBJ; 17 May 2023, LawLex202300007168JBJ; 20 September 2023, LawLex202300012186JBJ; CA Paris, 13 March 2024, LawLex202400002413JBJ.

T. com. Lille, 7 September 2011, LawLex201100001426JBJ.

CA Paris, 11 September 2013, LawLex201300001296JBJ.

Cass. com., 3 March 2015, LawLex201500000283JBJ and LawLex201500000284JBJ; 29 Septembrer 2015, LawLex201500001194JBJ. Also see CA Paris, 5 September 2019, LawLex201900001022JBJ, finding that the obligation to give the distributor one year's notice and a termination indemnity corresponding to three years of margin is not unbalanced when the other terms are generally favorable to the supplier; 228 May 2020, LawLex202000000472JBJ, in the case of an agreement where an overall interpretation makes it possible to establish that each clause is part of a determination to ensure the economic equilibrium of the contract; T. com. Paris, 28 March 2022, LawLex202200001846JBJ; CA Paris, 13 March 2024, LawLex202400002418JBJ.

Cass. civ. 1re, 1 February 2005, LawLex200500004134JBJ.

CA Paris, 4 July 2013, LawLex201300001139JBJ.

CA Paris, 25 October 2023, LawLex202300012903JBJ. Also see CA Paris regarding the fact that suppliers' possible positive results do not influence the assessment of imbalance, CA Paris, 28 June 2023, LawLex202300008655JBJ.

CA Paris, 13 March 2020, LawLex202000000391JBJ; 17 January 2024, LawLex202400000497JBJ, holding that the imbalanced nature of a clause devoid of reciprocity in favor of the dealership is not significant insofar as it institutes, in the event of breaches of non-essential obligations or without intrinsic severity, a graduated sanction procedure accompanied by prior notification mechanisms and time-limits for compliance.

Court's assessment of imbalance

A significant imbalance in the rights and obligations of the parties may occur in a wide variety of contract clauses, e.g. relative to: price adjustments , parity clauses , transfers of risk , purchase exclusivity , payment deadlines , terms limiting or excluding liability , setting late payment penalties , sanctions for non-performance of a provision , setting a manifestly disproportionate level of remuneration for services of commercial cooperation   or providing for rebates contingent upon the implementation of services for which there is no specific consideration for the supplier , clauses imposing a waiver of claims for the restitution of sums resulting from a legal action , contract termination , requiring the supplier to bear the charge for the return of goods damaged by customers , clauses relative to the transfer of the contract  or to the choice of law . It has been held that the consumer law rules prohibiting terms purporting to reduce compensation to consumers can be applied to disputes relying on Article  L. 442-1, I, 2° of the Commercial Code but this is regarded as controversial . Other examples of unfair terms include those which provide that “each party undertakes to be joined to any proceedings or action brought by a third party to the contract, to assert its position over the latter as negotiated or concluded” which, by the general nature of its wording, absence of exceptions, limits or reservations for particular circumstances, undermine the right of access to justice . A clause which reverses the burden of proof that the distributor has performed its services, by establishing a presumption of performance of the service in the event of payment by the supplier  or which gives the contractor control over the only means of proving the non-performance of its own obligations which the contract deems admissible  is also imbalanced.

On the other hand, in cases not concerning relations between suppliers and large-scale retail distributors, those held not to be in themselves sources of imbalance include tacit renewal clauses , non-compete and exclusivity clauses , penalty clauses , those providing for the invoicing for the whole period in the event of a termination or non-payment of an invoice at its term  or termination  or arbitration clauses . Imbalance will only be found where no other clause in the contract is able to offset it . Likewise, as imbalance requires the absence of reciprocity, a termination clause in a distribution agreement cannot characterize a significant imbalance where it may be implemented by either of the parties . On the other hand, a clause in a financial lease agreement which, by linking servicing to the leasing of the equipment financed, has the effect of requiring the lessee to renew the contract indefinitely, on pain of incurring exorbitant charges , or which requires the lessee to give one year's notice of termination, whereas the lessor may terminate within eight days  , is imbalanced. Similarly, a clause providing for intuitus personae in a franchise agreement in favor of the franchisor alone is imbalanced if the conditions for its application are not clearly defined .  

T. com. Lille, 12 January 2012, LawLex201200000110JBJ; 7 September 2011, LawLex201100001426JBJ, upheld by CA Paris, 11 September 2013, LawLex201300001296JBJ.

T. com. Paris, 7 May 2015, LawLex201500000573JBJ: the clause by which an online booking platform obtains an automatic best price alignment with the prices charged by the hotels it references is imbalanced where there is no consideration of any particular risk or a minimum purchase undertaking; T. com. Paris, 2 September 2019, LawLex201900001011JBJ, holding that a clause whose ambiguous wording is likely to be understood as requiring the seller to guarantee, to a platform, price parity with the other distribution channels is imbalanced.

T. com. Paris, 22 November 2011, LawLex201100001827JBJ.

CA Paris, 27 April 2011, LawLex201100000844JBJ and 25 October 2013, LawLex201300001473JBJ.

CA Paris, 29 January 2015, LawLex201500000126JBJ: a clause under which the transfer of a contract is subject to an obligation of joint liability between the transferor and the transferee in order to guarantee the debts of the third contracting party does not create an imbalance to the benefit of the latter, as it responds to a legitimate concern to protect against default by its partner.

CA Paris, 13 February 2020, LawLex202000000243JBJ.

CA Paris, 18 September 2013, LawLex201300001527JBJ.

T. com. Paris, 20 May 2014, LawLex201400002146JBJ.

CA Paris, 20 December 2017, LawLex201700002134JBJ. Cf, for a clause posing a presumption of that invoices issued are correct, CA Rouen, 2 June 2020, LawLex202000000487JBJ.

CA Paris, 22 October 2020, LawLex202000002840JBJ; 7 January 2021, LawLex202100000030JBJ.

CA Versailles, 12 May 2011, LawLex201100001017JBJ; CA Montpellier, 17 September 2013, LawLex201300001359JBJ.

T. com. Meaux, 24 January 2012, LawLex201200000137JBJ upheld by CA Paris, 4 July 2013, LawLex201300001139JBJ; T. com. Bobigny, 29 May 2012, LawLex201200000796JBJ.

CA Paris, 12 September 2013, LawLex201300001332JBJ.

CA Paris, 3 April 2015, LawLex201500000437JBJ: the lack of reciprocity of a penalty clause is not a sign of a significant imbalance, insofar as such a stipulation is usual and is subject to the mitigating power of the courts; 5 July 2018, LawLex201800001043JBJ: the penalty clause, providing that in case of cancellation of an order the manufacturer may require the payment of an indemnity likely to amount to 100% of the amount of the order, is not imbalanced as long as it has a direct link with the damage suffered and the payment claimed is not devoid of consideration when the ordered materials have actually been delivered to the customer; 17 October 2019, LawLex201900001231JBJ; 15 November 2019, LawLex201900001384JBJ; CA Paris, 22 October 2021, LawLex202100005683JBJ; 5 November 2021, LawLex202100005807JBJ.

CA Nancy, 14 December 2011, LawLex201100002011JBJ.

CA Paris, 6 January 2017, LawLex201700000046JBJ; 17 October 2019, LawLex201900001231JBJ; 17 September 2021, LawLex202100005387JBJ.

CA Paris, 11 September 2018, LawLex201800001330JBJ.

CA Paris, 15 January 2014, LawLex201400000033JBJ.

CA Toulouse, 7 December 2016, LawLex201600002085JBJ; CA Paris, 10 November 2023, LawLex202300013674JBJ.

CA Orléans, 25 February 2016, LawLex201600000474JBJ.

Cass. com., 28 February 2024, LawLex202400001824JBJ.

CA Paris, 5 January 2022, LawLex202200000144JBJ.

T. com. Meaux, 6 December 2011, LawLex201100001899JBJ. Cass. com., 3 March 2015, LawLex201500000284JBJ; also see CA Paris, 1 July 2015, LawLex201500000874JBJ, declaring imbalanced a clause requiring suppliers to pay a monthly advance on an end-of-year discount even before the goods have been paid for by the distributor, insofar as this provides the latter with a cash advance.

T. com. Paris, 2 September 2019, LawLex201900001011JBJ; CA Paris, 13 February 2020, LawLex202000000243JBJ; T. com. Paris, 28 March 2022, LawLex202200001846JBJ, holding that a clause releasing a platform from all liability in the event of harm caused to the developer, by transferring to the latter the burden of all risks associated with the use of the service, is abusive; T. com. Paris, 19 December 2022, LawLex202200011318JBJ, holding that a clause exempting a platform from all guarantees and liability to third parties in respect of its products, certificates and services, creates a significant imbalance. Cf, CA Paris, 31 January 2020, LawLex202000000182JBJ, holding that the clause by which the undertaking which makes a premium rate telephone number available to another company is exempted from all liability in the event of non-payment by the users of the service is not imbalanced since it does not have control over the payments and that it is only remunerated if the local loop operator pays it its commission, after collection of the payment.

T. com. Lille, 6 January 2010, LawLex201000000013JBJ; CA Paris, 19 January 2011, LawLex201100000116JBJ.

Cancellation of an order, CA Bordeaux, 21 November 2011, LawLex201100001839JBJ; non-realization of performance rate, T. com. Lille, 7 September 2011, LawLex201100001426JBJ upheld by CA Paris, 11 September 2013, LawLex201300001296JBJ.

CA Paris, 19 January 2011, LawLex201100000115JBJ.

Cass. com., 3 March 2021, LawLex202100000682JBJ.

Types of clauses and behaviors

Can one party challenge a clause relating to the determination of the  price, for example a discount or a rebate obtained from a supplier, or  even the price itself, arguing that this clause or the agreed price  reflect a subjection to a significant imbalance between the rights and  obligations of the parties? In principle, the answer is no: the  assessment of significant imbalance should not be able to focus on the  adequacy of the price in relation to the goods or services supplied.

Of course, the law pertaining to unfair terms in consumer matters expressly excludes any review of the adequacy of the price to the benefit, except in the case of terms which are unclear. If the aim is to protect the functioning of the market and the freedom to set prices in relations between traders and consumers, this is all the more essential in business to business relations. The Conseil constitutionnel had only validated former Article L. 442-6, I, 2° of the Commercial Code in relation to the Constitution because this somewhat vague provision was consistent with the principle of legality and avoided any risk of arbitrary treatment in view of the fact that the legislator had “referred to the legal concept of significant imbalance between the rights and obligations of the parties set out in Article L. 212-1 of the Consumer Code”.

Whereas the Paris Commercial Court Paris has followed this line of reasoning and dismissed challenges against the discounts and rebates on the basis of significant imbalance , the Paris Court of Appeal has allowed the review of prices  or at least of terms relative to the setting of prices .

In its most recent case law, the Court of Cassation did not concern itself with the precautions taken by the Paris Court of Appeal to limit its review to clauses relating to the setting of prices and not on the price itself. It has clearly affirmed that former “Article L. 442-6, I, 2° of the Commercial Code permits a judicial review of price when the latter is not the result of an open negotiation and characterizes a significant imbalance in the rights and obligations of the parties” . The interference of the court in the determination of prices agreed between trading partners poses a problem. In a free market economy, judicial control of prices must remain exceptional. The possibility of the parties contesting a contract on such a decisive matter within the 5-year limitation period weakens contracts and creates significant legal uncertainty.

This case law should encourage parties to exercise greater caution in the justification of price and the components of that price, in particular discounts and rebates, especially as, in the same judgment, the Court of Cassation, requiring the existence of consideration for any price reduction, stated that  “the principle of free negotiability is not without limit and the absence of a consideration or justification for the obligations undertaken by the contracting parties, even when those obligations do not fall within the category of services of commercial cooperation, can be sanctioned under [former] Article L. 442-6, I, 2° of the Commercial Code, where it arises from the subjecting or attempting to subject [a trading partner to obligations creating a significant imbalance in their rights and obligations] and leads to a significant imbalance”.

Lastly, a priority preliminary ruling on a question of constitutionality by the Conseil constitutionnel has definitively validated the judicial review of prices finding it neither contrary to the principle that offenses and penalties must be defined by law nor to contractual freedom and the right of free enterprise . Even if some legal commentators have sought to limit or relativize the scope of the review by arguing that it concerned only the commercial agreement and within that context only price reductions, the wording of the case law remains ambiguous and in any event the reach of the commercial agreements is so wide that even a minimalist interpretation of the case-law still gives it a very broad scope. In addition, the decision of the Conseil constitutionnel of 30 November 2018 appears to endorse the judicial review of the price in all the relations falling within the scope of significant imbalance as sanctioned by the Commercial Code. Later rulings by the trial courts confirmed those fears: the control of the adequacy of the price for the service, on the basis of Article L. 442-1, I, 2°, applies in all areas . Evidence of an imbalance may not, however, be based on the price of a single service among all those performed   or on a comparison with a reference price which is not significantly lower than that charged by the partner . De même, une fixation unilatérale d'un taux de commission ne produit pas  de déséquilibre significatif lorsqu'elle est courante dans le négoce en  cause, et que la rémunération versée n'apparaît ni excessive, ni dénuée  de contrepartie .

This evolution in the case law is cause for concern. In practice, it will give rise to two reactions: a negotiation by net price if a net price will be more difficult to contest than a price resulting from the application of various rebates - which could each be individually reviewed, or, where the negotiation is not by net price, each price reduction will require consideration thus significantly increasing the transaction costs. The negotiating freedom the LME Law intended to institute is once again markedly regulated and restricted.

T. com. Paris, 24 September 2013, LawLex201300001405JBJ.

CA Paris, 23 May 2013, LawLex201300000862JBJ.

CA Paris, 1 July 2015, LawLex201500000874JBJ. Also see CA Paris, 2 June 2017, LawLex201700000955JBJ, holding as balanced the clause which allows the operator to change the price of the goods or services, but requires it to inform the client at least a month in advance with the possibility of terminating the agreement or which is based on a formula clearly taking account of external parameters beyond the control of the operator; Cass. com., 8 June 2017, LawLex201700001014JBJ, refusing to compare the cost of a leasing agreement with that of a purchase agreement or a standard credit agreement.

Cass. com., 25 January 2017, LawLex201700000176JBJ.

Cons. constit., 30 November 2018, LawLex201800001830JBJ.

CA Paris, 15 October 2020, LawLex202000002750JBJ; 28 juin 2023, LawLex202300008655JBJ, sanctionnant l'imposition d'une baisse  tarifaire qui visait à garantir la marge du distributeur. - V. cep. Cass. com., 16 mars, 2022, LawLex202200001723JBJ, retenant que le prix de vente d'un fonds de commerce, qui résulte de la libre négociation des parties, ne peut être apprécié au regard des dispositions relatives au déséquilibre significatif ; 28 septembre 2022, LawLex202200007698JBJ, estimant que la clause qui permet à un éditeur de chaînes de s'autodistribuer, parallèlement au droit de rediffusion consenti à un autre diffuseur, procède du droit  voisin conféré par l'article L. 216-1 du Code de la propriété intellectuelle qui lui laisse la possibilité de définir les conditions économiques de diffusion de ses chaînes et ne constitue dès lors pas un  déséquilibre significatif, bien qu'elle puisse remettre en cause le modèle économique du diffuseur.

CA Paris, 15 October 2020, LawLex202000002750JBJ.

CA Paris, 18 November 2020, LawLex202000003310JBJ.

T. com. Paris, 19 décembre 2022, LawLex202200011318JBJ. - Comp., T. com. Paris, 28 mars 2022, LawLex202200001846JBJ, lorsque la commission prélevée n'est pas justifiée quant à son adéquation au coût de la protection des développeurs contre le risque de fraude qu'elle est supposée rémunérer.

Judicial control of prices

A major innovation of the reform of the law of contracts brought by Ordinance No 2016-131 of 10 February 2016, a provision voiding unfair terms in the Civil Code raises the question of its relationship to Article L. 442-1, I, 2° of the Commercial Code. Under new Article 1171 of the Civil Code, “In a standard contract, any non-negotiable clause which is determined in advance by one of the parties that creates a significant imbalance between the rights and obligations of the parties to the contract is void ab initio [deemed unwritten]. Appraisal of the significant imbalance concerns neither the main purpose of the contract, nor the adequacy of the price to the service rendered”. Article 1171 is broader in scope than Article L. 442-1 because, unlike the latter, its application is not restricted to relationships between professionals. However, Article 1171 has a different perspective which is  more restrictive than Article L. 442-1 since it assumes the existence of a standard contract. Furthermore, contrary to Article L. 442-1, paragraph 2 of Article 1171 specifically excludes the review of the terms relating to the main subject matter of the contract or the adequacy of the price to the service . Finally, the sanctions laid down in the two provisions differ: while Article 1171 declares imbalanced clauses void ab initio, Article L. 442-1 provides for the liability of the the party responsible for the clause, although in some cases such clauses have been declared null and void . Do such differences justify the application of the “specialia generalibus derogant” adage (the specific derogates from the general), expressly enshrined in paragraph 3 of new Article 1105 of the Civil Code? We think not. In effect, the adage applies only if the provisions invoked are contradictory. However, in spite of the different conditions of implementation, Articles L. 442-1, I, 2° and 1171 pursue the same objective: the sanction of imbalanced contractual terms. Nothing therefore prevents both legal bases from being invoked either  alternatively, or cumulatively, in particular when claiming damages for harm caused by the inclusion in the contract of a clause which is void ab initio. Article 1171 could also be preferable to Article L. 442-1 to avoid the requirement of the jurisdiction of specialized courts imposed by Articles D. 442-2 and D. 442-3 of the Commercial Code, or the five-year limitation period for liability actions. However, it will be necessary in this case to establish the existence of a standard contract within the meaning of Article 1110 of the Civil Code and not to make reference in the claim to any clause defining the main subject matter of the contract or relating to the price.

The first decisions rendered on the question of the interaction of the two sets of rules confirm that either one can be applied when the conditions for the application of the other are not met. Thus, the inapplicability of Article L. 442-1, I, 2° to financial leases does not exclude the application of Article 1171 simply because the former is considered a special provision . The Court of Cassation, however, later adopted a more restrictive stance by holding that, while Article 1171 of the Civil Code can be applied to relations between professionals, this is only possible in situations which fall outside the scope of Article L. 442-1, I, 2°, such as terms agreed as part of credit transactions . The special law of Article L. 442-1, I, 2° thus overrides the ordinary civil law of Article 1171 .

Case law based on former Article L. 442-6, I, 2° has accepted a review of clauses setting prices, CA Paris, 1 July 2015, LawLex201500000874JBJ, 

 T. com. Paris, 20 May 2014, LawLex201400002146JBJ; CA Paris, 29 October 2014, LawLex201400001187JBJ; 25 November 2015, LawLex201500001607JBJ. See also CA Paris, 7 June  2013, LawLex201300000940JBJ, declaring the clause void ab initio.

CA Paris, 5 November 2021, LawLex202100005888JBJ; Cass. com., 26 January 2022, LawLex202200000629JBJ, quashing, on this point, CA Lyon, 27 February 2020, LawLex202000000281JBJ.

Cass. com., 26 January 2022, LawLex202200000629JBJ. See CA Paris, 17 March 2023, LawLex202300004376JBJ; CA Versailles, 19 October 2023, LawLex202300013515JBJ.

CA Douai, 19 October 2023, LawLex202300013411JBJ, holding that advertising promotion contracts between merchants fall under the provisions of Article L. 442-1, I, 2° and not those of Article 1171. See also CA Paris, 29 February 2024, LawLex202400002011JBJ, LawLex202400002032JBJ and LawLex202400002034JBJ. Similarly CA Paris, 26 June 2024, LawLex202400005516JBJ, holding that Article 1171 does not apply to a contract between distributor and supplier, which is covered by the provisions of Article L. 442-1, II.

Relationship to Article 1171 of Civil Code

Under former Article L. 442-6, I, 2°, it was held that an action based on that provision was intended to repair harm suffered but not to have the court declare an imbalanced term to be null and void . Before the entry into force of the Ordinance of 24 April 2019, only the Minister of the Economy could, under former Article L. 442-6, III of the Commercial Code, request the voiding of such a clause . It has thus been held that a significant imbalance in the rights and obligations of the parties cannot be sanctioned by the voiding of the contract or of the contested clauses, but only gives rise to the liability of the party having benefited from it . 

However in proceedings not initiated by the Minister, certain courts had adopted a solution - which was clearly contra legem - in direct opposition to those principles: according to them, the court could annul the clause  or require the parties to substitute the clause for another one, which it reformulated . When the matter was referred to it, the Court of Cassation approved this approach, justifying the sanction of invalidity, even in the absence of the Minister in the proceedings, on the grounds of the public policy nature of the breached provisions . New Article L. 442-4 resulting from the Ordinance of 24 April 2019 leaves no room for doubt since it now provides that the victim of the practices may have declared null and void any unlawful terms or contracts. Nullity is confined to disputed clauses where their removal restores the balance of the parties' rights and obligations .

Similarly, before the entry into force of the ordinance, the courts considered that disputes concerning significant imbalance fell outside the remit of the interim applications court . Henceforth, under the final paragraph of new Article L. 442-4, II, the court hearing the applications for interim measures may, if necessary subject to penalties, order the cessation of abusive practices or any other provisional measures.

CA Rouen, 30 January 2014, LawLex201400000239JBJ; CA Paris, 15 February 2019, LawLex201900000223JBJ; CA Besançon, 11 September 2019, LawLex201900001055JBJ; but see CA Paris, 7 June 2013, LawLex201300000940JBJ.

T. com. Paris, 20 May 2014, LawLex201400002146JBJ; CA Paris, 25 November 2015, LawLex201500001607JBJ.

CA Rennes, 28 January 2014, LawLex201400000222JBJ; CA Paris, 16 December 2015, LawLex201500001819JBJ; 18 May 2016, LawLex201600000972JBJ; 6 September 2016, LawLex201600001442JBJ; 30 October 2019, LawLex201900001305JBJ.

CA Paris, 22 February 2017, LawLex201700000379JBJ.

CA Paris, 29 October 2014, LawLex201400001187JBJ.

Cass. com., 30 September 2020, LawLex202000002221JBJ and LawLex202000002207JBJ. See also CA Paris, 15 October 2020, LawLex202000002750JBJ; 22 October 2020, LawLex202000002840JBJ; 7 September 2022, LawLex202200006916JBJ; 10 November 2023, LawLex202300013674JBJ; 11 January 2024, LawLex202400000412JBJ,.

CA Paris, 22 January 2015, LawLex201500000127JBJ; 22 February 2017, LawLex201700000379JB ; CA Chambéry, 20 June 2017, LawLex201700001147JBJ.

French Competition Law

185. Conditions for prohibition

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185. Conditions for prohibition

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