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 former Article L. 442-6, III, only the Minister of the Economy and the Public Prosecutor could “declare contract terms or contracts null and void and demand the recovery of sums unduly paid”. The Ordinance of 24 April 2019 now allows the victim to bring the same claims  (Art. L. 442-4, paragraph 2).
Contrary to liability actions or applications for injunctions which are open to any person wi …

Action for annulment 

Actions involving liability or the invalidity of practices, clauses or contracts set out in Articles L. 442-1, L. 442-2, L. 442-3, L. 442-7 and L. 442-8 can be brought before the civil or commercial courts. The appropriate jurisdiction depends on the parties: an action between two traders is brought before the commercial courts. In cases where a non-trader files a complaint against a trader, the non-trader chooses whether to bring it before the civil or commercial courts, but where the non-trader is the defendant, only the civil courts have jurisdiction. According to case law, the rules  pertaining to allocation of jurisdiction between traders are not public order provisions and two commercial companies may validly confer jurisdiction on the “Tribunal judiciaire”, formerly “Tribunal de grande instance” (TGI) in matters concerning disputes relating to Articles L. 442-1 et seq. when the TGI designated is also a specialized court. Clauses conferring jurisdiction on the TGI in Paris contained in a fairly large number of distribution agreements have been validated on several occasions by the courts .

Territorial jurisdiction is defined in Article 46 of the Code of Civil Procedure. Liability actions are considered in internal law as  matters relating to a tort or delict  and therefore the claimant has the choice between the court of the place where the defendant resides, the place where the harmful event occurred or the place where the damage was sustained . Those rules must then be read together with Articles D. 442-2 and D. 442-3 of the Commercial Code which provide a list of the specialized courts having exclusive jurisdiction to hear cases based on Article L. 442-1. Once the court designated by Article 46 of the Code of Civil Procedure has been determined, if it does not appear in the list in Articles D. 442-2 and D. 442-3, a competent court must be sought in the jurisdiction of the designated court of appeal. 

When the products or services in question are intended to be marketed on French territory, new Article L. 444-1-A of the Commercial Code, introduced by the EGalim 3 Law , stipulates that all disputes concerning the application of the rules laid down in the Commercial Code relating to price transparency and restrictive practices fall within the exclusive jurisdiction of the French courts, subject to compliance with EU law and international treaties ratified or upheld by France, and without prejudice to the right of recourse to arbitration. These provisions are designed to combat attempts at legal evasion by certain supermarket chains, which have relocated their contractual negotiations, in particular by setting up their central purchasing units in other European countries, in order to benefit from more favorable legal provisions that are less protective of French farmers and suppliers. Article L. 444-1 A should make it easier for the DGCCRF to enforce the provisions of Title IV of Book IV of the Commercial Code before the French courts against GAFAM or supermarket chains based abroad but buying and marketing products in France. By combining the new rules resulting from the EGalim 3 Law with the position taken by the Court of Justice in the Eurelec case , a distinction must be made between two possible scenarios: either the Minister acts before the French Courts and under French law on the basis of the Brussels I bis Regulation to obtain the cessation of the practices, the invalidity of the unfair terms and/or the recovery of undue payments, as a private operator could do, and, as a third party to the contracts at issue and exercising an autonomous action of his own with a view to upholding the public interest, thanks to the new provisions he will not be bound by the jurisdiction clauses they contain; or the Minister acts on the strength of his investigative powers and/or to seek the imposition of a civil fine, and, in application of the Eurelec judgment, the rules of jurisdiction will not depend on the Brussels I bis Regulation, but solely on the public policy rules laid down by the EGalim 3 Law, and in this case his action will be subject without any possible dispute to French law and the French courts, in strict compliance with European law.

Where products are not destined to be marketed in France, previous case law continue to apply.

In international contracts where there is no jurisdiction clause, the courts for a long time considered that actions based on Article L. 442-1, II, concerning matters relating to tort or delict, fell exclusively within the purview of Article 7(2) of Regulation No 1215/2012 (former Article 5(3) Regulation No 44/2001), which allows the applicant to sue in the courts for the place where the harmful event occurred or may occur . In this context, the Court of Cassation clarified that, pursuant to Article L. 442-1, II of the Commercial Code and Article 46 of the Code of Civil Procedure, a claim for damages based on sudden termination falls within the scope of tort in international law, and lies outside the scope of application of EU law . The Paris Court of Appeal has nevertheless referred the matter before the Court of Justice for a preliminary ruling on the question of whether an action for damages for the sudden termination of an established business relationship consisting in the provision of goods for several years to a distributor without a framework contract or an exclusivity agreement is a matter relating to tort or delict within the meaning of Article 7(2) of Regulation 1215/2012 . In EU law, the concepts “matters relating to a contract” and “matters relating to tort, delict or quasi-delict” are interpreted independently of their classifications under national laws . Taking a view opposite to that of the French courts, the Court of Justice thus found that an action for damages based on the termination of an established commercial relationship is not a matter relating to tort, delict or quasi-delict where the parties maintained a tacit contractual relationship of that kind based on evidence such as the existence of a long-standing business relationship, good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and  correspondence exchanged . This solution, which is not particularly convincing as in France liability finds its source in legislation not in a failure to perform a contractual obligation, is based primarily on a concern for harmonization: indeed the Court stresses that, “in a significant proportion of the Member States long-standing business relationships which have formed without a contract in writing may, in principle, be regarded as falling within a tacit contractual relationship, breach of which is liable to give rise to contractual liability” (pt. 23). The Court of Cassation, however, immediately aligned itself with the solution for disputes involving a foreign element . The contractual nature of the action implies the competence of the judge of the place of supply of the services .

The question has also arisen as to the applicability of jurisdiction clauses derogating from territorial jurisdiction. After having ruled out the application of such clauses, the Court of Cassation and the trial courts are now adopting a more flexible approach, and in general  consider that their wording encompasses disputes covered by Article L. 442-1, II . Such clauses may even confer jurisdiction on the Judicial Court, provided that the parties are merchants (commercants) . 

In international disputes, the Court of Cassation considers that the public policy character of Articles L. 442-1 et seq. may not interfere with the application of jurisdiction clauses: the court designated by the clause is fully competent, and must where applicable apply the French provision . The Court of Cassation has also pointed out that a clause conferring jurisdiction in accordance with Article 25 of Regulation No 1215/2012 (formerly Article 23 of Regulation No 44/2001), in respect of any dispute arising from the termination of contractual relations between the parties, is applicable even in the case of an action based on Article L. 442-1, II of the Commercial Code , except in the case where one of the parties waives the clause by suing a distributor for  payment of invoices in the French courts . Similarly, a clause conferring jurisdiction on the courts of the State of California for any dispute, but reserving to one of the parties the possibility of applying to the court of its choice for injunctive relief, must be interpreted as also allowing the other party to bring a dispute based on the provisions of Article L. 442-4 of the Commercial Code before the French courts  or as being unenforceable against the other party due to its potestative nature .

In application of the theory that liability under Articles L. 442-1, L. 442-2, L. 442-3, L. 442-7 and L. 442-8 is in the nature of a tort or delict  , the courts had concluded that French law should apply when the harmful event was incurred in France  or when the event giving rise to the damage originated in France .  Conversely, by virtue of Article 4 of the Rome II Regulation on the law applicable to non-contractual obligations, Article L. 442-1, II of the Commercial Code has been ruled inapplicable to an action committed by the victim of a termination of an established commercial relationship whose registered office and place of business was in the Dominican Republic , by a Greek service provider who performed his obligations in Greece and claimed compensation for harm suffered in Greece , or by an operator carrying on business in the Cypriot market. On the other hand, whereas the Court of Cassation has expressly enshrined the mandatory public policy nature of Articles L. 442-6, II, d) [now Article L. 442-3, b)], and L. 442-6, I, 2° [now Article L. 442-1, I, 2°] in cases brought by the Minister of the Economy ,  or against GAFAMs , the Paris Court of Appeal now refuses to recognize this value to the provisions of Article L. 442-1, II in cases between private operators, considering that they are mainly aimed at safeguarding the private interests of one party  .  In addition, in order for these provisions to be applied to an international dispute, the case law requires that the dispute have a sufficient connection with France . New Article L. 444-1 A of the Commercial Code, introduced by the EGalim 3 Law, partially challenges these approaches. In effect, when the products or services in question are marketed on French territory, it automatically declares applicable all the provisions of the French Commercial Code relating to price transparency or restrictive practices, specifying that these are provisions of public policy. It is not certain, however, that this clarification will dissuade litigants from arguing that these provisions are classified as public policy provisions (lois de police) in the international order.

After some hesitation, the courts have accepted that actions based on Articles L. 442-1 et seq. of the Commercial Code can be settled in arbitration. The Court of Cassation held that a dispute relating to the termination of an exclusive distribution contract is subject to the arbitration clause in it which refers to any litigation or dispute arising from the contract or in connection with it, even where the public policy provisions in Article L. 442-1, II of the Commercial Code are applicable to the merits of the dispute . In effect, the Court has asserted, an action for damages for the harm resulting from the termination of an established commercial relationship is not among those which can only be heard in the French courts . The Paris Court of Appeal, after having rejected the application of the arbitration clause in the event of an action based on Article L. 442-1, II, on the grounds that it is a tort action independent of the stipulations of the contract , now appears to have reversed its position, holding in effect that the tort liability established by Article L. 442-1, II of the Commercial Code cannot defeat a clear and precise arbitration clause purporting to cover any litigation or disputes arising between the parties . The arbitration clause cannot be disapplied, according to the Court, on the grounds that the public policy provisions of Article L. 442-1, II of the Commercial Code apply to the merits of the case  or that one of the parties is unable to meet the cost of arbitration . Arbitration clauses are autonomous and remain applicable even after the expiry of the contract to any informal commercial relations which ensue . Article L. 444-1 A of the Commercial Code, added by the EGalim 3 Law, expressly recognizes the right of parties to have recourse to arbitration, even for products and services marketed in France.

Finally, the courts are not hostile to the application of mediation clauses prior to litigation, as long as, like jurisdiction clauses, they expressly make reference to termination of established commercial relations  and do not prohibit the exercising of the action but only delay it . Thus, an amicable dispute resolution clause in a contract concluded in the later years of an already long-standing relationship and which concerns disputes related to the interpretation or the performance of that agreement does not apply to the party intending to sue on the basis of Article L. 442-1, II of the  Commercial Code . In addition, a prior mediation clause does not prevent the interim relief court from taking the necessary measures to put an end to a manifestly unlawful disturbance .

Liability actions are subject to a limitation period of five years under the terms of Article L. 110-4 of the Commercial Code, even if the parties are bound by a contract of carriage of goods . The Paris Court of Appeal has ruled that there can be no interruption of the limitation period due to the introduction of a claim relating to facts arising after those denounced  or an application to an incompetent court, declared inadmissible by an irrevocable decision . An action based on significant imbalance of a contractual term must be brought within five years of the conclusion of the contract , even if in certain decisions it has been incorrectly held that under Article L. 442-1, II, 2° it is possible to ask the court to declare the clause “unwritten” and consequently the action not subject to any statute of limitations . This is only the case when the facts stem from practices implemented during the performance of contract  or when the action is brought by the Minister for the Economy, a third party to the contract . An action for sudden termination of an established commercial relationship must be brought within five years of the victim's specific knowledge of the cessation of the flow of trade, and not of the date on which he was able to quantify his loss  or on which the imputability of the fault that justified the termination was determined .  Under no circumstances can it be subject to the shortened statute of limitations provided for, where pertinent, in the general terms and conditions of sale of the party responsible for the termination . Finally, where the action seeks the reimbursement of unduly paid sums for fictitious commercial cooperation services, the claim may not be made more than five years after the collection of these sums  .

T. com. Paris, 21 February 2013, LawLex201300000226JBJ; 7 February 2017, LawLex201700000277JBJ.

Cass. com., 22 September 2021, LawLex202100005410JBJ. Also see CA Paris, 19 January 2018, LawLex201800000171JBJ and 15 September 2021, LawLex202100005374JBJ, which held that the Granarolo case law of the Court of Justice, which classifies actions for sudden termination of established commercial relationships in contractual matters, does not apply to disputes containing no cross-border element.

Cass. com., 13 September 2017, LawLex201700001446JBJ; 20 September 2017, LawLex201700001463JBJ; also see  CA Paris, 7 November 2018, LawLex201800001690JBJ; 9 January 2019, LawLex201900000010JBJ; 5 September 2019, LawLex201900001016JBJ; 6 November 2019, LawLex201900001339JBJ; 29 January 2020, LawLex202000000180JBJ ; 5 May 2021, LawLex202100002654JBJ. Also see CA Paris, 13 November 2024, LawLex202400008845JBJ, which held that where a long-standing commercial relationship exists, evidenced by a series of sales accompanied by general terms and conditions, allowing the characterization of a contractual relationship, even if tacit, the rules on jurisdiction applicable are those governing matters relating to contracts under Regulation No 1215/2012. Cf. CA Paris, 7 July 2020, LawLex202000001730JBJ, which held that the action is of a tortious nature where it concerns a Georgian supplier and a French distributor.

CA Paris, 2 November 2020,  LawLex202000003064JBJ.

But see CA Paris, 29 January 2016, LawLex201600000265JBJ, holding that the clause which refers only to “the application, interpretation and performance of this contract” is not applicable to litigation based on the sudden termination of established commercial relations; 7 July 2020, LawLex202000001730JBJ; 16 December 2020, LawLex202000003791JBJ.

Cass. com, 5 July 2017, LawLex201700001193JBJ, holding that a jurisdiction clause covering all disputes arising from the contractual relationship applies to an action for sudden termination of established commercial relations; CA Paris, 4 May 2011, LawLex201100001026JBJ ; CA Aix-en-Provence, 8 February 2012, LawLex201200000377JBJ; CA Paris, 20 September 2017, LawLex201700001516JBJ, specifying that the clause is not enforceable against the manager of the terminated company acting on the basis of the former Article L. 442-6, I, 5° of the Commercial Code in damages for personal harm; 4 December 2017, LawLex201800000004JBJ; 4 July 2019, LawLex201900000892JBJ; 6 October 2021, LawLex202100005518JBJ; 13 novembre 2024, LawLex202400008845JBJ ; Cass. com., 18 décembre 2024, LawLex202400009816JBJ.

T. com. Paris, 21 February 2013, LawLex201300000226JBJ ; 7 February 2017, LawLex201700000277JBJ.

Cass. 1re civ., 22 October 2008, LawLex200800001850JBJ; Cass. com., 24 November 2015, LawLex201500001618JBJ; Cass. 1re civ., 18 January 2017, LawLex201700000148JBJ. Also see CA Aix-en-Provence, 15 June 2011, LawLex201100001342JBJ; CA Paris, 23 February 2016, LawLex201600000448JBJ; 4 July 2018, LawLex201800001039JBJ.

Cass. 1re civ., 6 March 2007, LawLex200700000349JBJ; Cass. com., 20 March 2012, LawLex201200000495JBJ; CA Lyon, 8 June 2010, LawLex201000001065JBJ; CA Aix-en-Provence, 12 January 2011, LawLex201100000118JBJ; CA Paris, 3 July 2012, LawLex201200001294JBJ; 19 March 2013, LawLex201300000449JBJ; 17 December 2013, LawLex201300001882JBJ; 3 April 2014, LawLex201400001828JBJ, for a clause referring to “any dispute that may arise”; 21 October 2014, LawLex201400001165JBJ; 20 January 2015, LawLex201500000086JBJ; 19 January 2016, LawLex201600000169JBJ ; Cass. com., 24 June 2020, LawLex202000001643JBJ.

CA Paris, 15 December 2015, LawLex201500001826JBJ.

T. com. Paris, 20 June 2016, LawLex201600001138JBJ.

CA Paris, 8 February 2018, LawLex201800000290JBJ. Contra, CA Paris, 26 September 2018, LawLex201800001428JBJ, holding that a clause conferring jurisdiction on a foreign court that covers any dispute relating to differences connected with the contract or the conditions of its implementation applies to claims based on former Article L. 442-6, I, 5° of the Commercial Code, even if it offers one of the parties the option of choosing between several courts.

See CA Versailles, 26 October 1995, LawLex200200000069JBJ; Cass. com., 15 September 2009, LawLex200900003271JBJ, applying the same rule in international matters (Art. 5, Reg. 44/2001); CA Rennes, 3 November 2009, LawLex201000000551JBJ; CA Paris, 11 December 2012, LawLex201200002454JBJ.

CA Versailles, 29 October 2013, LawLex201300001574JBJ, dismissing the application of the Rome Convention of 19 June 1980 and the Hague Convention of 15 June 1955 due to the tortious nature of the action based on former Article L. 442-6, I, 5°.

Cass. com. 2008 October 21, LawLex200800001881JBJ; 2014 May 20, LawLex201400000700JBJ; CA Rennes 4 January 2011, LawLex201100000040JBJ; CA Paris 2015 October 8, LawLex201500001245JBJ; 22 September 2016, LawLex201600001549JBJ; 30 September 2016, LawLex201600001597JBJ.

Cass. com. 25 March 2014, LawLex201400000530JBJ: former Article L. 442-6, I, 5° of the Commercial Code applies even to damage suffered in Chile, when, in the case of an action for extra-contractual liability, the law of the country with which the harmful event is most closely connected is French law. See e.g., CA Montpellier, 21 June 2011, LawLex201100001454JBJ. Cf. CA Paris, 7 September 2017, LawLex201700001453JBJ, deeming that former article L. 442-6, I, 5° does not apply to the severance of established commercial relations between two Thai companies operating exclusively in Thailand, even if their respective shareholders and parent companies are French.

CA Paris, 5 December 2016, LawLex201600002025JBJ.

CA Paris, 2 June 2021, LawLex202100003473JBJ. See also, for a victim established in Russia, CA Paris, 3 March 2021, LawLex202100000712JBJ.

Cass. com, 8 July 2020, LawLex202000001734JBJ. - See also CA Paris, 5 July 2017, LawLex201700001256JBJ; T. com. CA Paris, 19 December 2022, LawLex202200011318JBJ

T. com. Paris, 10 May 2022, LawLex202200002418JBJ.

Against classification as a public policy provision: CA Paris, 28 February 2019, LawLex201900000299JBJ; 3 June 2020, LawLex202000000495JBJ; 8 October 2020, LawLex202000002675JBJ; 11 March 2011, LawLex202100000719JBJ; 2 July 2024, LawLex202400005520JBJ. See, extending the remedy to Article L. 442-1, I, 2°, CA Paris, 20 January 20, 2023, LawLex202300001405JBJ. Contra, CA Paris, 28 June 2023, LawLex202300008656JBJ and previously, CA Paris, 19 September 2018, LawLex201800001367JBJ; 7 November 2018, LawLex201800001690JBJ; 9 January 2019, LawLex201900000010JBJ; 2 July 2024, LawLex202400005520JBJ.

CA Paris, 12 December 2018, LawLex201800002008JBJ; 12 June 2019, LawLex201900000804JBJ; T. com. CA Paris, 2 September 2019, LawLex201900001011JBJ.

Cass. com., 8 July 2010, LawLex201000000840JBJ; Cass. 1re civ., 21 October 2015, LawLex201500001349JBJ, holding that the arbitration clause on “disputes that may arise relative to the validity, interpretation, performance or non-performance, the interruption or termination of this contract” is sufficiently broad to encompass an action based on the sudden termination breakdown of an established commercial relationship.

Law 2023-221 of 30 March 2023 aimed at strengthening the balance in commercial relations between suppliers and distributors, OJ 31 March 2023.

Cass. 1re civ., 21 October 2015, LawLex201500001349JBJ. Also see CA Paris, 28 September 2022, LawLex202200008162JBJ,.

CA Paris, 7 April 2011, LawLex201100000819JBJ; 7 March 2013, LawLex201300000346JBJ.

CA Paris, 5 March 2013, LawLex201300000341JBJ; 17 June 2016, LawLex201600001168JBJ.

CA Paris, 18 March 2014, LawLex201400001726JBJ; 7 April 2015, LawLex201500000491JBJ. 

Cass. 1re civ., 13 July 2016, LawLex201600001322JBJ.

CA Paris, 21 September 2018, LawLex201800001366JBJ.

Cass. com., 12 June 2012, LawLex201200000904JBJ; CA Paris, 8 February 2017, LawLex201700000291JBJ. But, giving full effect to a clause not expressly referring to termination, see CA Paris, 18 June 2015, LawLex201500000810JBJ.

CA Paris, 13 March 2024, LawLex202400002411JBJ.

CA Paris, 3 May 2017, LawLex201700000792JBJ; CA Paris, 28 October 2019, LawLex201900001293JBJ.

CA Paris, 12 February 2020, LawLex202000000241JBJ.

CJEU Case C-98/22 Eurelec Trading, Judgment of 22 December 2022,.

Cass. com., 11 May 2010, LawLex201000000613JBJ; 21 September 2010, LawLex201000001058JBJ; 1 October 2013, LawLex201300001469JBJ, considering that the action for sudden termination of established business relations, regardless of whether they arose out of a transportation agreement, is not subject to the one-year limitation period of Article L. 133-6 of the Commercial Code; 18 October 2016, LawLex201600001724JBJ; CA Grenoble, 19 March 2015, LawLex201500000416JBJ; CA Paris, 2 March 2017, LawLex201700000423JBJ

CA Paris, 15 February 2017, LawLex201700000340JBJ. Cf. CA Paris, 7 September 2022, LawLex202200006919JBJ, holding that an action brought before one court has the effect of interrupting the statute of limitations on an action for breach of an established commercial relationship brought before another court, provided that both have the same purpose. 

CA Paris, 24 September 2024, LawLex202400006986JBJ.

CA Paris, 5 April 2018, LawLex201800000581JBJ; 23 January 2019, LawLex201900000120JBJ; 3 April 2019, LawLex201900000475JBJ; 11 March 2021, LawLex202100000720JBJ; 5 avril 2024, LawLex202400003068JBJ ; 20 juin 2024, LawLex202400004793JBJ. Contra, CA Paris, 15 March 2023, LawLex202300004094JBJ, holding that the starting point of the limitation period for an action based on Article L. 442-1, I, 2° of the Commercial Code, seeking to have a loan prepayment clause deemed unwritten, must be set not at the date of conclusion of the contract, as the damage is then only contingent, but at the date of liquidation of the prepayment indemnity and its claim against the borrower.

CA Paris, 24 May 2019, LawLex201900000706JBJ.

CA Paris, 1 September 2021, LawLex202100005086JBJ.

T. com. Rennes, 22 October 2019, LawLex202100000768JBJ.

CA Paris, 21 October 2020, LawLex202000002811JBJ; 21 septembre 2021, LawLex202100005400JBJ ; 29 mai 2024, LawLex202400004008JBJ. - Contra, Paris, 17 décembre 2020, LawLex202000003772JBJ..

Cass. com., 8 July 2020, LawLex202000001733JBJ.

CA Paris, 3 April 2024, LawLex202400002918JBJ.

Cass. com., 15 September 2009, LawLex200900003271JBJ; 18 January 2011, LawLex201100000083JBJ; Cass. 1re civ., 19 December 2012, LawLex201200002504JBJ; CA Paris, 21 November 2014, LawLex201400001316JBJ. 

CA Paris, 22 March 2019, LawLex201900000402JBJ.

Cass. 1re civ., 12 March 2025, LawLex202500001527JBJ.

CA Paris, 7 April 2015, LawLex201500000484JBJ.

Case C-548/12 Marc Brogsitter v Fabrication de Montres Normandes EURL, Judgment of 13 March 2014, LawLex201400001656JBJ.

Case C-196/15 Granarolo SpA, Judgment of 14 July 2016, LawLex201600001361JBJ; CA Paris, 15 December 2015, LawLex201500001826JBJ.

Jurisdiction

The LME Law confers jurisdiction for litigation relative to Article L. 442-1  to a limited number of specialized courts the location and jurisdiction of which are fixed by Articles D. 442-2 and D. 442-3 of the Commercial Code, like the rules pertaining to the specialized courts for cases based on the competition law provisions. The Ordinance of 24 April 2019 has preserved those provisions (Art. L. 442-4, III). The competent commercial and judicial courts are located in Marseille, Bordeaux, Lille, Fort-de-France, Lyon, Nancy, Paris and Rennes. Called upon to rule on an appeal on the grounds of ultra vires of the 2009 Decree, the Council of State considered that the remoteness for certain litigants resulting from the removal of the jurisdiction of certain first instance and appeal courts to hear disputes relating to restrictive practices does not infringe the principle of equality between users of the public justice system or the right of access to a tribunal as guaranteed by Article 6 ECHR .

After an initial period of compliance with the rules of public order laid down in Articles D. 442-2 and D. 442-3, a large number of non-specialized courts rendered judgments based on the provisions of Article L. 442-1, without automatically raising an objection of inadmissibility. Hearing objections against judgments rendered by non-specialized courts, the Court of Appeal of Paris held itself competent. However, other courts of appeal held that the exclusive jurisdiction of the Paris Court of Appeal concerned only judgments rendered by specialized courts. To remedy this situation, the Court of Cassation had laid down a rule of conduct: appeals against judgments of specialized courts must be brought before the Paris Court of Appeal and appeals against judgments of non-specialized courts before the competent courts of appeal. Nevertheless, in the latter case, the courts of appeal in question had to declare the appeal admissible, but raise ex officio the ultra vires committed by the court of first instance and dismiss its judgment, before itself ruling within the limits of its jurisdiction . However, this relatively complex solution led to a number of unintended consequences: litigants who had chosen the wrong court often found that some of their claims could not be examined, either because the statute of limitations had run out, or because the deadline for appeal had expired. The Court of Cassation has finally reversed its position, and now considers that the provisions of Article L. 442-1 of the Commercial Code, which designate the only specialized courts to hear claims, establish a rule of exclusive jurisdiction, rather than a bar to proceedings (fin de non-recevoir) . Consequently, when a defendant to an action based on ordinary civil law presents a counterclaim invoking the provisions of Article L. 442-1, the court seized, if it is not a court designated by Article D. 442-2, must, if its lack of jurisdiction is raised, depending on the circumstances and the interdependence of the claims, either declare that it lacks jurisdiction in favor of the court designated by that article and stay the proceedings until the specialized court has ruled on the claim , or refer the case in its entirety to said specialized court . As the trial courts have pointed out, partial referral to the Paris Court of Appeal is only possible when claims based on the provisions of Article L. 442-1, II of the Commercial Code are raised as counterclaims by a defendant to the proceedings, and not by the plaintiff itself .

The application of the rules laid down in Articles D. 442-2 and D. 442-3, which are mandatory provisions of public policy , raises a number of questions.  

How should the attribution of jurisdiction between the eight specialized courts be reconciled with contractual jurisdiction clauses provided for by the parties? According to case law, the mandatory public policy nature of Articles D. 442-2 and D. 442-3 rules out the application of those jurisdiction clauses . In order to determine the competent jurisdiction, it is therefore necessary to apply the ordinary rules of jurisdiction before defining which court of appeal has jurisdiction and finally identifying the specialized court located in the area of jurisdiction of that court . Where the jurisdiction clause in a contract designates one of the eight courts competent to apply Article L. 442-1 or to apply competition law, it would seem logical and legitimate to apply it even if the place where the harmful event occurred is in the area of jurisdiction of another specialized court insofar as the requirement to use the specialized courts has been respected . In effect, the intention of the parties should, as far as is possible, be preserved and have its place alongside the proper administration of justice. The position of the courts appears to have evolved with respect to arbitration clauses. The Court of Cassation has held that the implementation of an arbitration clause which designates a court other than the specialized court is not excluded by the mere fact of the applicability to the dispute of the mandatory provisions under Article L. 442-1, II of the Commercial Code . In other words, arbitration is still possible to settle disputes concerning the application of Article L. 442-1, II.

Do the rules also apply in case of summary applications? If a local court seized is not competent, its lack of jurisdiction must apply to all its configurations whether the interim relief court or the trial court. This is the interpretation favored by the case law .  The rule also applies to applications for expert appraisals: a non-specialized court is not competent to order an investigative measure pursuant to Article 145 of the Code of Civil Procedure in litigation based on Article L.442-1, II of the Commercial Code, even if the findings must be made within the jurisdiction of that court .

Do the specialized courts also have jurisdiction when Article L. 442-1 is relied on in defense? In the context of a dispute concerning anticompetitive practices, the Versailles Court of Appeal rejected a claim of lack of jurisdiction under Article L. 420-7 of the Commercial Code, a provision similar to Article D. 442-2, as the compliance with the competition rules was merely relied on as a defense and not in support of a legal claim or counterclaim. According to the Court in that case any other ruling would amount to allowing a party to choose his/her court by raising a plea relating to anticompetitive practices . In another case, the Court of Cassation considered that the case should be brought before the specialized courts where the writ initiating the proceedings refers to Article L. 420-2 of the Commercial Code and the defense has raised a question on the application of Article L. 420-1 . Was the Court of Cassation implying that the applicability of specialized jurisdiction could derive both from a plea in support of a claim or in defense? This is how the Montpellier Court of Appeal interpreted it in a later case where it deemed that there is no need to make a distinction where the law does not do so . Marking the latest stage in this development, the Court of Appeal in Douai extended the solution to pleas based on restrictive practices  holding that the mandatory provisions on jurisdiction of Article D. 442-2 of the Commercial Code apply even if Article L. 442-1 is not invoked or is merely relied on in the alternative . Finally, putting to rest the argument based on the reliance on Article L. 442-1 being used as a delaying tactic, the Court of Cassation stressed that the jurisdiction of the specialized courts is independent of the merits of the claim . It specifies, however, that this plea in defense cannot be raised for the first time at the appellate level . Some recent decisions go further: it has been held that even when not invoked by the parties, Article L. 442-1, which is a mandatory public policy provision, applies to the dispute relating to the sudden termination of an established commercial relationship, which therefore falls within the competence of the specialized courts . The Court of Cassation, which was initially inclined to take this approach   has now reversed its stance: it now considers that a non-specialized court hearing a claim for damages based solely on Article 1104 of the Civil Code cannot be declared incompetent to hear the case simply because the relationship in question is an established one .

Finally, what happens in the event of a conflict of jurisdiction between courts specializing in unfair practices and certain courts with exclusive jurisdiction over specific matters (commercial leases, intellectual property rights, etc.)? This issue has arisen in connection with claims brought before the same court invoking both Article L. 442-1, I, 2° and the rules on commercial leases, and was resolved by assigning jurisdiction to the Judicial Court  .  The latter can in effect hear two claims, one relating to the status of commercial leases and the other to Article L. 442-1, I, 2° of the Commercial Code, since resolving the dispute involves assessing the status of commercial leases, which falls within the exclusive jurisdiction of the Judicial Court, and Article L. 442-4, I recognizes the jurisdiction of both the civil and commercial courts to hear disputes relating to that provision. The Judicial Court in Paris is also competent to hear disputes relating to the application of Article L. 442-1 of the Commercial Code, when it concerns private practice firms (sociétés libérales) and non-trading individuals .

The specialized courts may refer to the Commission for the examination of commercial practices (CEPC) on any unfair practices that they find in actions brought before them . The decision to do so is not subject to appeal. The CEPC gives its opinion within four months of the date of the referral. The court must suspend the proceedings on the merits until receipt of the opinion of the CEPC or failing that, until expiry of the four-month period. However, urgent interim or protective measures can be taken. The opinion rendered by the CEPC is not binding on the court. In practice, the principal cases relate to disputes on terminations of established commercial relations.

The rules of specialization do not apply to litigation based on the former Article L. 441-3 of the Commercial Code: Cass. com., 20 September 2017, LawLex201700001503JBJ. See also. CA Paris, 29 October 2013, LawLex201300001480JBJ, holding that when the summons initiating proceedings refers in its operative part to the former Article L. 443-1 of the Commercial Code (now Art. L. 441-11) and Article 1382 (now Art. 1240) of the Civil Code, the rules governing the jurisdiction of specialized courts are not applicable; CA Lyon, 28 March 2024, LawLex202400002827JBJ, holding that it is not necessary to refer to a specialized court a dispute relating to a financial lease agreement, which is not covered by the provisions of Article L. 442-1 of the Commercial Code; CA Aix-en-Provence, 16 October 2024, LawLex202400007972JBJ, not applicable to an action for unfair competition. Cf. for an extension of specialization to disputes relating to the application of Article L. 442-2, CA Aix-en-Provence, 30 January 2020, LawLex202000000189JBJ and T. com. Chambéry, 9 October 2024, LawLex202400008221JBJ.

Cons. d'Et., 10 June 2011, LawLex201100001174JBJ.

For applications see CA Paris, 8 November 2017, LawLex201700001838JBJ; 25 October 2023, LawLex202300012894JBJ. But see CA Paris, 5 September 2019, LawLex201900001018JBJ, considering that a jurisdiction clause which designates a specialized court but not the one with territorial jurisdiction with regard to the place of performance of the services, is not applicable when it only relates to the interpretation and performance of the contract and not the conditions of its termination.

Cass. com., 1 March 2017, LawLex201700000387JBJ; see also CA Paris, 5 September 2019, LawLex201900001016JBJ.

T. com., Albi, 28 October 2009, LawLex200900003286JBJ. See also CA Douai, 27 November 2012, LawLex201200002456JBJ; T. com. Mont-de-Marsan, 21 January 2011, LawLex201100000839JBJ; CA Rennes, 25 March 2014, LawLex201400001813JBJ. CA Paris, 5 June 2014, LawLex201400002064JBJ; CA Aix-en-Provence, 26 June 2014, LawLex201400002230JBJ; CA Versailles, 23 March 2017, LawLex201700000642JBJ, holding that a court lacking jurisdiction on the merits to hear cases involving anticompetitive practices and restrictions of competition cannot be seized on application to order investigative measures aimed at establishing proof of such practices; CA Aix-en-Provence, 30 January 2020, LawLex202000000189JBJ.

Cass. com., 17 January 2018, LawLex201800000094JBJ; CA Paris, 23 March 2018, LawLex201800000481JBJ; 26 November 2019, LawLex201900001458JBJ; Cass. com., 20 November 2019, LawLex201900001422JBJ; Cass. com., 20 November 2019, LawLex201900001422JBJ. But see CA Paris, 25 January 2024, LawLex202400000723JBJ.

CA Versailles, 24 May 2007, LawLex200700001334JBJ.

Cass. com., 9 November 2010, LawLex201000001248JBJ.

CA Montpellier, 14 March 2011, LawLex201100000838JBJ; see also CA Rennes, 6 January 2009, LawLex201200000690JBJ.

CA Douai, 4 April 2012, LawLex201200000585JBJ; see also CA Paris, 22 February 2017, LawLex201700000379JBJ.

CA Douai, 3 April 2013, LawLex201300000522JBJ; CA Paris, 18 June 2020, LawLex202000000556JBJ. See also CA Versailles, 9 September 2014, LawLex201400000910JBJ; CA Paris, 17 September 2015, LawLex201500001132JBJ, holding that the rules relating to the jurisdiction of specialized courts apply when a party invokes Article L. 442-1 of the Commercial Code, both as a defense on the merits and as a counterclaim.

Cass. com., 26 March 2013, LawLex201300000481JBJ; CA Paris, 22 May 2014, LawLex201400002019JBJ; 18 January 2017, LawLex201700000134JBJ; 31 January 2024, LawLex202400000829JBJ.

Cass com., 29 March 2017, 3 rulings, LawLex201700000597JBJ, LawLex201700000598JBJ and LawLex201700000621JBJ; 17 January 2018, LawLex201800000094JBJ.

Cass. com., 1 March 2017, LawLex201700000412JBJ.

CA Lyon, 9 October 2014, LawLex201400001159JBJ; 23 October 2014, LawLex201400001190JBJ; CA Paris, 9 April 2015, LawLex201500000481JBJ; CA Bordeaux, 13 November 2015, LawLex201500001502JBJ; CA Versailles, 12 January 2016, LawLex201500001707JBJ; CA Montpellier, 11 October 2016, LawLex201600001698JBJ; CA Nîmes, 10 November 2016, LawLex201600001910JBJ; Cass. com., 6 November 2019, LawLex201900001352JBJ.

Cass. com., 6 November 2019, LawLex201900001352JBJ.

Cass. com, 29 January 2020, LawLex202000000151JBJ; 27 May 2021, LawLex202100003274JBJ.

Similarly, CA Aix-en-Provence, 11 July 2024, LawLex202400005462JBJ; 16 October 2024, LawLex202400007972JBJ; CA Nîmes, 6 December 2024, LawLex202400009690JBJ.

Cass. com., 18 October 2016, LawLex201600001697JBJ; Cass. 3e civ., 15 February 2018, LawLex201800000287JBJ.

Cass. com., 29 March 2017, LawLex201700000599JBJ.

On the optional aspect of this referral, see Cass. com., 15 November 2023, LawLex202300013618JBJ.

Cass. com., 18 October 2023, LawLex202300012489JBJ,  ; 16 October 2024, LawLex202400007853JBJ. See, for initial applications, CA Aix-en-Provence, 23 November 2023, LawLex202300014041JBJ; CA Paris, 7 March 2024, LawLex202400002207JBJ. Cf., for an initial deviation arising from this solution, CA Grenoble, 14 March 2024, LawLex202400002461JBJ, retaining its jurisdiction to apply Article L. 442-1 on the grounds that no objection of lack of jurisdiction had been raised before it to rule on the appeal against a judgment handed down by a non-specialized court.

CA Douai, 10 June 2013, LawLex201300000976JBJ, advocating for a fragmentation of the dispute by holding that a specialized court cannot, under the pretext of connectedness, rule on a claim that does not fall within its competence, and that the claim concerning the sudden termination of established commercial relationships must therefore be severed from the claim relating to copyright infringement. Also see CA Montpellier, 18 June 2013, LawLex201300001004JBJ and CA Lyon, 8 October 2013, LawLex201300001516JBJ, holding that the Paris Court of Appeal, in its capacity as a specialized court, is not necessarily competent to hear a claim—even if it is related to one it is already adjudicating—when such claim is not covered by former Article L. 442-6 of the Commercial Code and has been ruled upon by a non-specialized court seized in April 2009.

See, for an earlier ruling, CA Versailles, 20 March 2012, LawLex201200000588JBJ and 4 June 2013, LawLex201300000925JBJ, recognizing, under the rule that the accessory follows the principal, that only the specialized court has jurisdiction to adjudicate the entire dispute involving related claims for payment of invoices and compensation for the abrupt termination of established commercial relationships. Also see Cass. com., 24 September 2013, LawLex201300001420JBJ; 1 December 2021, LawLex202100006101JBJ and LawLex202100006177JBJ, holding that in the absence of a request for severance, the Paris Court of Appeal alone has jurisdiction to hear the appeal against a judgment rendered in a dispute based both on the rules concerning abuse of dependence under the Commercial Code and on other provisions. – And, where the dispute is indivisible, CA Versailles, 1 December 2015, LawLex201500001707JBJ; 15 September 2015, LawLex201500001149JBJ: such is notably the case when one party’s claim for payment cannot be adjudicated without assessing the validity of the contract, which the other party challenges on the basis of former Article L. 442-6, I, 2° of the Commercial Code; CA Aix-en-Provence, 5 February 2025, LawLex202500000974JBJ.

CA Nancy, 2 July 2024, LawLex202400005034JBJ; CA Rennes, 20 August 2024, LawLex202400005733JBJ.

CA Nancy, 25 January 2012, LawLex201200000209JBJ; CA Douai, 4 April 2012, LawLex201200000585JBJ.

Cass. com, 1 March 2017, LawLex201700000387JBJ; 1 June 2017, LawLex201700000878JBJ; 1 June 2022, LawLex202200003032JBJ. See also CA Versailles, 31 January 2011, LawLex201100000773JBJ; CA Nancy, 25 January 2012, LawLex201200000209JBJ; CA Douai, 4 April 2012, LawLex201200000585JBJ; CA Paris, 9 July 2013, LawLex201300001152JBJ; CA Versailles, 14 November 2013, LawLex201300001637JBJ, even if after the summons the plaintiff waived application of the former article L. 442-6; CA Nancy, 4 February 2015, LawLex201500000209JBJ; CA Paris, 22 February 2017, LawLex201700000379JBJ; 17 January 2018, LawLex201800000115JBJ.

CA Douai, 4 April 2012, LawLex201200000585JBJ. See also CA Paris, 11 December 2012, LawLex201200002454JBJ; 10 February 2015, LawLex201500000200JBJ ; May 21, 2015, LawLex201500000660JBJ; 25 October 2016, LawLex201600001795JBJ; 25 January 2018, LawLex201800000164JBJ and, in international matters, CA Lyon, 16 September 2011, LawLex201100001490JBJ. In contrast see, CA Paris, 26 September 2017, LawLex201700001548JBJ, where it is held that where a contract contains a jurisdiction clause, the victim of a sudden termination of commercial relations may not bring the matter before the specialized court for the place where the harm was suffered, but must bring the matter before the court having jurisdiction over the court designated by the contractual clause.

Specialized courts

New Article L. 442-4, I, paragraph 2, in its wording arising from the Ordinance of 24 April  2019, provides for the possibility for any person able to justify standing to apply to the civil or commercial court for an injunction for the cessation of the practices covered by Articles L. 442-1, L. 442-2, L. 442-3, L. 442-7 and L. 442-8. Compensation for the damage suffered may be claimed at the same time. The action is therefore not limited to only direct victims i.e. the other party to the contract .

The concept of a person justifying an interest (standing) requires clarification. Does this mean that a third party to the contract could ask the court to order the cessation of the abusive practice and claim compensation for harm suffered as a result of that practice? The courts have already allowed actions by third parties but have been somewhat strict in terms of the conditions of admissibility. It has been held that an indirect victim of the termination of an established commercial relationship cannot sue for damages if the terminating party's co-contractor does not do so . Similarly, the majority shareholder of the undertaking victim of the termination cannot, where it has no commercial relationship with the client, seek compensation for alleged loss as a result of that termination . On the other hand, the Court of Appeal has held that a distributor who suddenly terminates an established commercial relationship with its supplier causes a prejudice to the latter's own suppliers .

TGI Paris, 23 June 2016, LawLex201600001146JBJ: The action for liability incurred on the basis of Article L. 442-6, I, 2° (now Article L. 441-2, I, 2°) of the Commercial Code is not reserved for the sole commercial partner directly victim of the act criticized but open to any third party to the contract which justifies injury caused by this act.

 T. com. Paris, 26 February 2018, LawLex201800000334JBJ.

CA Paris, 24 October 2016 , LawLex201600001899JBJ.

CA Paris, 30 May 2018, LawLex201800000845JBJ.

Action for injunction

Under former Article L. 442-6, III, only the Minister of the Economy and the Public Prosecutor could “declare contract terms or contracts null and void and demand the recovery of sums unduly paid”. The Ordinance of 24 April 2019 now allows the victim to bring the same claims  (Art. L. 442-4, paragraph 2).

Contrary to liability actions or applications for injunctions which are open to any person with the requisite standing, the action for annulment is open only to the victim who may also request the recovery of undue payments/benefits. Like the new provisions of the Civil Code in matters of undue payments (Article 1302 et seq.), the Commercial Code retains the concept of restitution, which is also one of the effects of the nullity of the contract now provided in the Civil Code in a separate chapter on restitution.

French Competition Law

220. Action for annulment

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Les notions juridiques connexes

220. Action for annulment

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Les notions juridiques connexes

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