This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

French Distribution Law

The distributor undertakes to obtain supplies exclusively from the supplier . He makes an exclusive purchase commitment to the supplier, but also to third parties designated by the latter . The fact that control of a third-party warehouse-keeper has been taken on by a competitor does not prevent the distributor from complying with his commitment as long as delivery of the contract products has not …

Rights and obligations of the distributor.

The distributor undertakes to obtain supplies exclusively from the supplier . He makes an exclusive purchase commitment to the supplier, but also to third parties designated by the latter . The fact that control of a third-party warehouse-keeper has been taken on by a competitor does not prevent the distributor from complying with his commitment as long as delivery of the contract products has not been refused to him . Similarly, the fact that the brewery designated by the other party to the contract has been acquired by a third party who refuses to grant the same off-contract discount as its predecessor does not give the distributor the freedom to turn to another supplier without implementing the contractual procedure for the designation of a new supply source .

Where the distributor benefits from a competing offer clause, he may contact other suppliers, provided that his supplier is unable to satisfy him . He cannot obtain supplies from a competitor of his supplier on the grounds that the latter is less competitive  or that the competing products ordered are made from a different material where this difference has no influence on either the properties or the use of the product in question . On the other hand, he can engage in the production of products competing with those referred to in the agreement .

The breach by the distributor of his exclusive purchase commitment may result in the termination of the agreement . Nevertheless, a clause that allows a brewer to terminate the contract in the event of a breach of the  obligations by the tenant cannot be interpreted as giving the former the right to unilaterally terminate the contract . The contractual liability of the  distributor in breach may also be incurred. The third party warehouse-keeper may initiate a direct and personal action in case of breach by distributors of their exclusive purchase commitment . However, actions initiated by the supplier and by the third party warehouse-keeper against the party in breach of an exclusive purchase clause cannot be combined where they are not intended to compensate separate damage . The damage of the third party warehouse-keeper may be assessed in view of contractual provisions binding him personally to the supplier . The supplier's harm is not the amount lost due to supplies purchased from competitors, but the loss of gross margin that it could have made on a similar quantity of purchases . 

The distributor may undertake to purchase a minimum amount from the supplier. The determination of quotas must take account of the prospects of changes in the market . The quotas must, in principle, correspond to the quantity usually required to operate that type of business . However, they can be greater if the distributors have freely agreed to them . In addition, they cannot be held to be excessive when the contract provides that if they are not reached during the contract, its duration may be extended for that purpose . The court is not required to assess the reasonable character of the clause fixed by mutual agreement between the parties . Like a breach of the exclusive purchase obligation, the non-achievement of the contractual purchase targets justifies the termination at the fault of the distributor . It can be notified even before the end of the current period when it is obvious that the quotas will not be reached in view of the amount of orders placed .

The distributor is subject to an obligation of result. The agreement will be terminated at his expense if he stops placing orders with the supplier . Specifically, if the third-party warehousekeeper is unable to deliver to the retailer, the latter is not freed from his exclusive purchase obligation and must go directly to the supplier . Furthermore, if he does not place a sufficient volume of orders, he may be liable for damages  or the penalty agreed under the contract . In effect, non-compliance with quotas fixed in an exclusive purchase agreement justifies the automatic application of the penalty clause . The burden of proof of the volume of purchases made by the distributor is on the supplier claiming non-compliance with his purchase commitment . Lastly, a distributor who violates the exclusivity clause to the benefit of the supplier by selling competing products, and who fails to comply with the minimum purchase undertaking binding it, commits breaches which are sufficiently serious to justify a termination of the contract without notice .

Even if the contract does not use the term "exclusive", the clause under which all supplies must be purchased from a third party for all liquids and beverages served on the premises, without the provision of any restriction, the violation of which is sanctioned by a lump sum payment, establishes a relationship of exclusivity between the parties: CA Douai, 24 January 2013, LawLex201300000154JBJ.

CA Douai, 8 November 2001, LawLex200500010292JBJ.

Cass. com., 23 May 1989, LawLex200200005747JBJ; 6 February 2007, LawLex200700000204JBJ.

CA Amiens, 10 April 2006, LawLex200600001841JBJ.

Cass. com., 20 February 2007, LawLex200700000286JBJ.

CA Paris, 4 May 2016, LawLex201600000889JBJ. See also, on failure to comply with minimum purchase obligation, same solution in CA Paris, 18 October 2017, LawLex201700001698JBJ. upheld in Cass. com., 4 December 2019, LawLex201900001504JBJ. 

Cass. com., 1 July 2003, LawLex200300004337JBJ.

CA Amiens, 25 January 2000, LawLex200300000874JBJ; Cass. com., 8 January 2002, LawLex200200004722JBJ.

Cass. com., 11 February 2003, LawLex200300000827JBJ.

CA Reims, 18 March 2019, LawLex201900000383JBJ.

Cass. com., 14 December 2004, LawLex200500003704JBJ.

CA Douai, 26 January 2017, LawLex201700000253JBJ.

Cass. com., 4 July 2006, LawLex200600001747JBJ.

CA Orléans, 20 December 2018, LawLex201900002098JBJ.

CA Lyon, 19 February 2004, LawLex200400001574JBJ; CA Montpellier, 23 October 2018, LawLex201800001639JBJ.

CA Douai, 10 January 2013, LawLex201300000094JBJ; CA Colmar, 17 June 2013, LawLex201300001046JBJ.

CA Versailles, 5 February 1998, LawLex200200005100JBJ.

CA Paris, 28 January 2000, LawLex200200005276JBJ.

CA Aix-en-Provence, 25 May 2001, LawLex200500004029JBJ.

Cass. com., 25 February 2004, LawLex200400000541JBJ.

CA Paris, 18 October 2017, LawLex201700001698JBJ, upheld by Cass. com., 4 December 2019, LawLex201900001504JBJ.

CA Montpellier, 3 January 2017, LawLex201700000090JBJ.

Cass. com., 3 December 1996, LawLex200200005621JBJ.

CA Toulouse, 19 February 2004, LawLex200400001954JBJ.

CA Orléans, 17 January 2013, LawLex201300000092JBJ.

CA Lyon, 5 January 2006, LawLex200600001757JBJ.

CA Agen, 6 April 1998, LawLex200200005120JBJ.

CA Paris, 19 October 2011, LawLex201100001740JBJ.

French Distribution Law

30. Rights and obligations of the distributor.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

30. Rights and obligations of the distributor.

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise