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

The Ordinance of 24 April 2019 has reduced the list of black clauses. Henceforth, Article L. 442-3 only declares void the possibility of benefiting from discounts, rebates or commercial cooperation agreements or automatically benefiting from the better terms available to competing companies by the other party. However, the DDADUE Law of 3 December 2020 reinstated the voiding of terms prohibiting t …

Hardcore restrictions (black clauses)

The Ordinance of 24 April 2019 has reduced the list of black clauses. Henceforth, Article L. 442-3 only declares void the possibility of benefiting from discounts, rebates or commercial cooperation agreements or automatically benefiting from the better terms available to competing companies by the other party. However, the DDADUE Law of 3 December 2020 reinstated the voiding of terms prohibiting the transfer of claims against the contracting party to a third party, which had been repealed by the ordinance. The scope of new Article L. 442-3 is wider than that of former Article L. 442-6, II since the new text applies to all persons engaged in production, distribution or service activities, and no longer refers to producers, distributors, industrialists and artisans.

Clauses or contracts which allow retroactive rebates, reductions or commercial cooperation agreements are also considered null and void. The goal of this provision is to prohibit practices of the “wedding basket” (corbeille de la mariée) type, where distributors renegotiate contract terms with suppliers and impose new conditions in addition to those previously accepted . This usually happens when one distributor merges with another . The law should not be interpreted as banning all rebates calculated on previous sales or services . Such an interpretation would be contrary to its spirit and would cast doubt on the regularity of end of year rebates. According to Article L. 442-3(a) a commercial cooperation agreement is automatically null and void if it was entered into after the services have been rendered . The fact that the services were actually rendered or were truly specific services is irrelevant if they were performed prior to the signing of the contract . The provision also allows the sanctioning of parity clauses whereby an online booking platform automatically obtains the most favorable terms granted by the hotelier compared to other distribution channels and competitors .

CA Paris, 5 March 1996, LawLex200200002796JBJ; Cass. com., 7 April 1998, LawLex200200002723JBJ. 

The name "wedding basket", which alludes to the fact that the newly imposed trading terms, represent the supplier's gift to the newly "married" distributors. 

CA Paris, 9 April 2015, LawLex201500000487JBJ: a contract by which the parties agree, for the future, to grant discounts calculated on the turnover achieved does not fall under the prohibition of retroactive discounts, rebates or commercial cooperation agreements; 25 November 2020, LawLex202000003386JBJ:  the "end-of-year conditional rebate" clause which takes effect when the contract is signed, the amount of which is calculated on the turnover achieved over the current year and payment of which is made during the first half of the following year, does not contravene the provisions of Article L. 442-3.

T. com Nanterre, 20 July 2006, LawLex200600002477JBJ. 

T. com. Angers, 15 February 2006, LawLex200600001297JBJ; Cf. when services have been rendered prior to the signing of the contract, CA Paris, 19 April 2017, LawLex201700000726JBJ.

T. com. Paris, 29 November 2016, LawLex201600002014JBJ; CA Paris, 21 June 2017, LawLex201700001094JBJ.

Retroactive rebates, reductions or commercial cooperation agreements

Article L. 442-3(b) of the Commercial Code prohibits any provision purporting to allow a party to automatically benefit from the more favorable terms granted to competing undertakings by the co-contracting party is void. Prohibiting most favored nation (MFN) clauses prevents the automatic alignment with the more favorable conditions obtained by competitors.

Insofar as the law only sanctions cases of automatic alignment, in order to avoid their contracts being voided, operators have included equity clauses which impose a general, non-automatic non-discrimination obligation on one of the trading partners. So far, the provision prohibiting MFN clauses has been used to challenge parity provisions in contracts for hotel bookings, which have also been contested in some countries under competition law . Under such clauses the internet host undertakes to guarantee that the operator of the booking site will benefit from equal or more advantageous rates than the rates and conditions available from the host, directly or via its website or its call centers, and also from equal or more advantageous prices than any competitor of the booking center (parity of rates and conditions). According to the Commission for the examination of commercial practices (CEPC), such clauses are void insofar as they provide for automatic alignment with the most advantageous terms accorded to competitors . The Paris Commercial Court ruling on the lawfulness of clauses of this kind annulled them but on the basis of the significant imbalance that they create in the rights and obligations of the parties . The Paris Court of Appeal  and subsequently the Court of Cassation  subsequently ruled that such clauses also fell within the scope of Article L. 442-3.

The Macron Law of 6 August 2015  has enshrined this approach by introducing specific provisions to the Tourism Code  expressly prohibiting parity clauses in contracts between hotels and online booking platforms. Under Article L. 311-5-4 of the Tourism Code, even contracts concluded before the publication of the law cease to produce their effects on its entry into force.

However, such clauses can also be found in sectors other than the hotel industry, where platforms are used to connect customers with service providers, and where they are subject to the same strict rules .

OFT Investigation into the hotel online booking sector, Case CE/9320/10; BKA, Press release of 25/07/2013, HRS; COMCO, Press release of 12/12/2012.

CEPC, Opinion No 13-10 of 16 September 2013, on commercial relations of hoteliers with undertakings operating the main hotel booking websites, LawLex201300000052JBA.

T. com. Paris, 7 May 2015, LawLex201500000573JBJ.

CA Paris, 21 June 1997, LawLex201700001094JBJ.

Cass. com., 8 July 2020, LawLex202000001734JBJ.

Law No 2015-990 of 6 August 2015 for growth, activity and equality of economic opportunities, OJ of 7 August 2015, 13537.

CA Paris, 8 March 2024, LawLex202400002276JBJ.

French Competition Law

213. Hardcore restrictions (black clauses)

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Les notions juridiques connexes

213. Hardcore restrictions (black clauses)

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Les notions juridiques connexes

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