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

Offering products that have been unlawfully obtained for sale outside the network is a wrongdoing (faute). The obtaining of supplies is irregular, according to the Court of Cassation, when it is carried out with full knowledge of the situation, by resellers contractually tied by an agreement (combining exclusive and selective distribution) containing a prohibition on reselling to third party resel …

Constituent elements.

Offering products that have been unlawfully obtained for sale outside the network is a wrongdoing (faute). The obtaining of supplies is irregular, according to the Court of Cassation, when it is carried out with full knowledge of the situation, by resellers contractually tied by an agreement (combining exclusive and selective distribution) containing a prohibition on reselling to third party resellers . Where the supplies are obtained from a party outside the network - hire firms or garages for example -, this is legitimate  unless collusion is established in the breach of their obligations by the distributor  or the hire-firm . This is also true when products are purchased from rental firms acting as fronts or parties claiming to be agents . 

Moreover, third party collusion in an exclusive distributor's violation of a prohibition to resell to a non-network reseller is legally enshrined in Article L. 442-2 (former Article L. 442-6, I, 6º) of the Commercial Code, according to which any direct or indirect involvement in the violation of the prohibition on reselling outside the network renders the perpetrator liable where the prohibition is in compliance with the competition rules. This article only refers to those agreements which are lawful by virtue of a block exemption . The same rationale would also appear to apply to agreements which are lawful by virtue of a rule of reason or an individual exemption. Involvement in the distributor's violation of its obligations therefore incurs the liability of parallel importers .

Cass. com., 9 October 2001, LawLex200200000613JBJ.

Cass. com., 7 October 1997, LawLex200200001216JBJ; 11 July 2000, LawLex200200000752JBJ. See also, CA Chambéry, 11 October 1995, LawLex200200001419JBJ; CA Dijon, 30 November 1995, LawLex200200001404JBJ; CA Rennes, 23 October 1996, LawLex200200001320JBJ; CA Toulouse, 7 December 1998, LawLex200200001037JBJ. 

Restatement of the rule, Cass. com., 25 April 2001, LawLex200200000648JBJ: sourcing by an independent reseller from rental firms is not in itself unlawful where it has not been established that the supplier had prohibited them from selling to third parties and that the latter had knew of such prohibition.

Cass. com., 25 April 2001, LawLex200200000648JBJ, for a rental firm having contracted with a dealer in the network not to resell new vehicles.

CA Bordeaux, 26 October 1998, LawLex200200001075JBJ: supplies sourced from hire companies acting as figureheads for dealers and falsely claiming to be end users, or non-authorized resellers falsely claiming to be agents, are irregular.

For an example, see CA Paris, 13 October 2023, LawLex202300012625JBJ.

Similarly, upholding the action for third-party complicity brought against the transferee of the supplier's business, Cass. com., 19 October 2022, LawLex202200008791JBJ, and, on referral, opposing the solution adopted by the Court of Cassation, CA Paris, 22 February 2024, LawLex202400001784JBJ.

French Distribution Law

59. Constituent elements.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

59. Constituent elements.

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise