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

After having considered for a long time that the burden of proof of the unlawfulness of supplies to a third party outside the network was on the dealers , case law has aligned itself to the position adopted regarding selective distribution. It is now for the reseller to bring evidence of the lawfulness of its supply . Although there is no presumption of unlawfulness of its supplies on the reseller …

Evidence.

Although the sale outside the network of goods covered by a motor vehicle distribution network, even when in full knowledge of the facts, does not constitute unfair competition per se, third party resellers must have obtained those supplies lawfully . 

The supply to a third party outside the network is unlawful where it is carried out by members of the motor vehicle distribution network. In effect, those members are usually prohibited from reselling to third parties outside the network. However, the complicity of a non-network third party in a network member's breach must be established . In particular, an authorized repairer who has been part of a network for several years cannot be unaware that, by sourcing new vehicles from Spanish and Italian dealers, he is participating in the violation of a ban on out-of-network resales within the meaning of Article L. 442-2 of the Commercial Code . The third party outside the network, whose complicity in the breach of its commitments by a network member has been established, cannot then complain about the latter's refusal to deliver, following a warning from the manufacturer .

By contrast, obtaining supplies from professional rental companies , independent dealers , or even branches of the manufacturer , is lawful. However, a rental company may have promised a dealer in the network not to resell new motor vehicles. It is therefore possible that the purchase from a rental company might constitute third party complicity in the breach of a contractual obligation . Moreover, where it has obtained supplies from fake intermediaries, a third party outside the network incurs liability only if it is an established fact that it was aware of the fraud committed .

Cass. com., 13 January 1998, LawLex200200001195JBJ and LawLex200200001580JBJ: which may imply a lack of third party complicity when a dealer breaches its obligation not to sell to unauthorized resellers.

Cass. com., 9 October 2001, LawLex200200000613JBJ, approving CA Poitiers, 23 February 1999, LawLex200200000998JBJ.

Cass. com., 25 April 2001, LawLex200200000648JBJ.

CA Paris, 12 January 2022, LawLex202200000255JBJ.

CA Colmar, 31 October 2012, LawLex201200002276JBJ.

Cass. com., 7 October 1997, LawLex200200001216JBJ, approving CA Chambéry, 11 October 1995, LawLex200200001419JBJ; Cass. com., 11 July 2000, LawLex200200000752JBJ.

Cass. com., 11 July 2000, LawLex200200000752JBJ.

CA Toulouse, 7 December 1998, LawLex200200001037JBJ.

Constituent elements.

After having considered for a long time that the burden of proof of the unlawfulness of supplies to a third party outside the network was on the dealers , case law has aligned itself to the position adopted regarding selective distribution. It is now for the reseller to bring evidence of the lawfulness of its supply . Although there is no presumption of unlawfulness of its supplies on the reseller, a refusal to disclose the supply source incurs its liability .

By contrast, a third-party reseller is not required to establish the lawfulness of the supply of its own supplier: this evidence falls to the dealers . The parallel importer is therefore not required to collaborate in the investigation of leaks that challenge the imperviousness of official networks. Requiring a reseller to trace the channel of successive purchasers of vehicles it has sold would amount to the imposition of an impossible standard of proof.

These rules were laid down under Regulation No 123/85 and No 1475/95, which allowed the supplier to prohibit distributors from reselling to third parties outside the network regardless of the distribution method chosen. Like Regulation No 1400/2002 and 330/2010, the current Regulation No 2022/720 and no longer exempts contracts that prohibit the sale of motor vehicles to third parties outside the network, except for selective distribution systems . Purchases made from exclusive distributors in such a system are therefore fully lawful. In practice, the ban on resale outside the network remains the rule since virtually all branded motor vehicle distribution networks have become selective networks.

CA Dijon, 30 November 1995, LawLex200200001404JBJ; TGI Thionville, 4 April 1996, LawLex200200004703JBJ; CA Rennes, 23 October 1996, LawLex200200001320JBJ and LawLex200200001321JBJ; 25 June 1997, LawLex200200001242JBJ; Cass. com., 7 October 1997, LawLex200200001216JBJ; CA Riom, 22 April 1998, LawLex200200001136JBJ; CA Bordeaux, 26 October 1998, LawLex200200001075JBJ; CA Metz, 5 November 1998, LawLex200200001065JBJ; Cass. com., 1 December 1998, LawLex200200001044JBJ; CA Toulouse, 7 December 1998, LawLex200200001037JBJ; CA Poitiers, 23 February 1999, LawLex200200000997JBJ.

Cass. com., 26 January 1999, LawLex200200001015JBJ; CA Poitiers, 23 February 1999, LawLex200200000998JBJ and LawLex200200000993JBJ; Cass. com., 19 October 1999, LawLex200200000898JBJ; 11 July 2000, LawLex200200000752JBJ; 25 April 2001, LawLex200200000648JBJ; 9 October 2001, LawLex200200000613JBJ; 4 December 2001, LawLex200200000586JBJ; CA Metz, 12 March 2003, LawLex200300004142JBJ.

Cass. com., 25 January 2000, LawLex200200000851JBJ.

Cass. com., 7 October 1997, LawLex200200001216JBJ; 19 October 1999, LawLex200200000898JBJ; 25 April 2001, LawLex200200000648JBJ. See also CA Poitiers, 23 February 1999, LawLex200200000993JBJ and LawLex200200000998JBJ; CA Limoges, 11 April 2001, LawLex200200000650JBJ.

Regulation No 2022/720 of 10 May 2022, Art. 4(c)(i)(2).

French Distribution Law

258. Evidence.

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Les notions juridiques connexes

258. Evidence.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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