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 principle of the autonomy of the will of the parties is not an obstacle to the exercise by the supplier, as network developer, of its management and organization powers . Thus, it may unilaterally change certain contractual terms, in particular its pricing policy and its commercial policy as long as such changes are not abusive . A distributor cannot require that the commercial policy of the n …

Unilateral change in the contract terms.

The principle of the autonomy of the will of the parties is not an obstacle to the exercise by the supplier, as network developer, of its management and organization powers . Thus, it may unilaterally change certain contractual terms, in particular its pricing policy and its commercial policy as long as such changes are not abusive . A distributor cannot require that the commercial policy of the network be static and object to changes made to the bonus system, unless the supplier drastically reduces all the financial terms of the contract and protects itself from an unfavorable evolution of the market . Likewise, the distributor's uncompromising refusal to accept new temporary commercial terms  or a new management planning system, useful to the proper operation of the undertaking , is wrongful. A distributor also cannot reproach the supplier with imposing the sale of low cost substitute products when the contract contains a clause according to which the list of products entrusted to the distributor may be increased or reduced . Finally, the imposition of a reduction of the contractual territory on all distributors as a result of the reorganization of the network is not wrongful when it has not had a negative impact on sales .

In certain cases, the distributor's conduct may be the source of the supplier's unilateral changes. A distributor cannot complain about the limitation of its rights where it has accepted the renewal of the fixed-term contract under the previous terms whereas the parties were fighting about the scope of the exclusivity clause . The distributor's outstanding sums may also lead the supplier to freeze supplies and to set up a system of cash payment .

The unilateral change must be devoid of abuse. The assessment of the legitimacy of such a change may sometimes lead the court to interfere in the management of undertakings, an interference which may be difficult to justify . The following have been held to be abusive: a supplier unilaterally increasing its distributor's purchase obligations , imposing new methods of handling after-sales services resulting in new responsibilities for the exclusive distributor , stopping the production of one of the items which constitute the main object of the agreement , unilaterally modifying sales targets whereas, in principle, their fixing must be jointly made , or the sales conditions of its products, where, in a difficult general context, it imposes heavy sacrifices on the distributor while giving significant dividends to its shareholders , or to trying to impose a change of brand on its distributor . A unilateral modification can take the form of a partial termination of an established commercial relationship. The Court of Cassation has held that this is the case where the supplier informs the distributor less than 15 days before its decision becomes effective that orders will henceforth be placed through an intermediary under less advantageous terms .

Lastly, the unilateral change in the contract terms by the supplier may constitute a manifestly unlawful disorder where it penalizes a breach for which the contract provides for other measures , or where the manufacturer decides to suppress credits outstanding . By contrast, this is not the case when resorting to the internet network to replace an outdated Minitel communication system .

CA Versailles, 18 November 2004, LawLex200500007478JBJ. 

CA Aix-en-Provence, 9 July 1991, LawLex200200005855JBJ: the termination of an exclusive distribution contract by the supplier is abusive where it is motivated by the distributor's refusal to accept a price revision which is not in line with the contract provisions. 

Cass. com., 19 December 1995, LawLex200200005519JBJ. 

CA Paris, 8 February 2017, LawLex201700000306JBJ.

Cass. com., 6 May 2008, LawLex200800000675JBJ. 

Cass. com., 28 April 2004, LawLex200400001111JBJ: the distributor's refusal to accept a new management system relying on sales targets unilaterally determined by the supplier where the contract provides for a fixing by joint agreement, does not constitute a fair cause of termination. 

Cass. com., 15 January 2002, LawLex200200005004JBJ. 

T. com. Paris, 24 September 1999, LawLex200200004623JBJ. 

Cass. com., 23 October 2012, LawLex201200002245JBJ. See also CA Paris, 29 September 2021, LawLex202100005455JBJ.

CA Pau, 1 July 1999, LawLex200200004204JBJ. 

T. com. Versailles, 29 December 2000, LawLex200400000225JBJ. 

CA Versailles, 19 June 2003, LawLex200300004300JBJ.

TGI Paris, 9 March 2004, LawLex200400000737JBJ, reminding that “only entitles to indemnification the abuse in changing the pricing policy or the commercial policy that the supplier would commit to the detriment of its distributors”; 25 November 2004, LawLex200500004026JBJ, considering that the grantor cannot be blamed for having not applied its bonus system where it is not established that this system is contractual. T. com. Paris, 22 October 2014, LawLex201400001130JBJ; CA Reims, 1 September 2015, LawLex201500001020JBJ: holding that, subject to compliance with reasonable notice, the unilateral withdrawal of a bonus by the supplier is not abusive, where the supplier has contractually reserved the right to periodically modify the special terms granted to the distributor in accordance with the objectives, needs, or constraints of the undertaking.

CA Paris, 3 December 1999, LawLex200200000027JBJ. 

CA Paris, 3 July 2002, LawLex200400002109JBJ. 

CA Paris, 7 February 2018, LawLex201800000268JBJ.

T. com. Paris, 22 October 2014, LawLex201400001130JBJ.

CA Lyon, 31 May 2001, LawLex200400001593JBJ, upheld by Cass. com., 12 May 2004, LawLex200400001204JBJ. 

Cass. com., 18 June 2002, LawLex200200004194JBJ; 28 September 2004, LawLex200400002202JBJ; CA Bordeaux, 7 September 2004, LawLex200400002136JBJ; CA Paris, 29 November 2017, LawLex201700002029JBJ.

See, inter alia, Cass. com., 15 January 2002, LawLex200200005004JBJ. In this decision, the Court of Cassation upheld the ruling of the trial court which found that a supplier had abused its right to unilaterally set its distributor's general sales terms and should therefore be sentenced make up for the shortfall in the latter's insufficient assets. To characterize the misconduct, the Paris Court of Appeal had found that, in a generally difficult context, the supplier had imposed heavy sacrifices on its distributors, whilst giving significant dividends to its shareholders. By so doing, the Court seems to validate an interference of the court in the management of undertakings which is difficult to justify. Obviously, seeking management misconduct is at the core of the action to make good deficiencies in the assets. But this requires that the misconduct be attributed to a senior manager, either in law or in fact. However, despite the strong integration of the distribution networks, in particular in the motor vehicle sector, the distributor remains an independent trader and a supplier can only be described as a de facto manager insofar as he exceeds his rights. Therefore, how can the determination of the general sales terms of products, which is an essential right of the supplier, in this case expressly provided for in the contract, be sufficient to characterize de facto management?

French Distribution Law

74. Unilateral change in the contract terms.

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

74. Unilateral change in the contract terms.

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