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 parties regain their full and entire business freedom only at the end of the contractual relationship. For the notice period, the contract still applies and the franchisor cannot canvass its franchisee's customers on behalf of a future distributor , divert his telephone line  or unduly take advantage of the franchisee's work by setting up a branch 80 meters from its shop and by refusing to sup …

Customer poaching/Client list.

The parties regain their full and entire business freedom only at the end of the contractual relationship. For the notice period, the contract still applies and the franchisor cannot canvass its franchisee's customers on behalf of a future distributor , divert his telephone line  or unduly take advantage of the franchisee's work by setting up a branch 80 meters from its shop and by refusing to supply the products marketed by it . From the end of the contract, and in the absence of a non-compete clause, the franchisor may rightly set up near its former franchisee's outlet . Nor is it manifestly unlawful to contact the lessors of a franchisee whose contract has been terminated for breach of his non-compete obligation in order to deter them from making their land available to the franchisee on pain of proceedings for complicity in acts of unfair competition and to encourage them to lease it to a new franchisee .

What will become of customers may be subject to specific provisions; it may thus be provided that the customer list set up by the franchisee will be kept by the franchisee and not revert to the franchisor. If such is the case, the franchisor who does not comply with the franchise agreement and takes possession of the list commits an unfair act by trying to poach customers . In the absence of a specific clause, the fate of the customer list and related rights is assessed in a way rather similar to that developed under the franchisee's goodwill ownership. Where it is found that the customers are “purely attached to the brand” of the franchisor, the file that lists such customers automatically reverts to the franchisor , which will enable it to direct such customers to new outlets where the former is closed . 

The debate on the use of customer files once the contract is terminated is far from over and the legal difficulties that it raises have not been completely resolved by the relatively few decisions in the matter. The issue of the customer file must take into account both the rules on personal data rights and distribution law and the reconciling of those two bodies of rules is not an easy task. It is in the interests of franchisors to be able provide evidence of being at the origin of financial, material and human investments for the creation of the file, including investments related to computer software and hardware, and to ensure that their contribution to the creation of the database is put into contractual form. They will also need to i) ensure that  the database is declared to the French data protection body, the CNIL ("Commission nationale de l'informatique et des libertés"), ii) require that franchisees meet the legal obligations in the event that they collect personal data from customers and iii) put on a contractual footing the rights of use reserved to themselves in the agreement. As, in practice, additions to the national file are for the most part made by the franchisor, either by the purchase of data from third parties, or from the fanchisor's website, while being partially supplemented by individual franchisees, it is important to clearly stipulate the rights of the parties over the course of the contract and once the contractual relationship is terminated.

It is advisable to adopt a contractual strategy that will not be contestable for imposition of imbalanced contractual obligations on the basis of Article L. 442-1, I, 2° of the Commercial Code or of the existence of an imbalance between the rights and obligations of the parties arising from a standard form contract ("contrat d'adhésion") within the meaning of the new law of contracts resulting from the reform of the Civil Code (new Article 1171). One possibility might be to confer ownership of the national file on the franchisor, to allow it to make use of the national file incorporating local data and to provide a copy at the end of the contract to the ex-franchisee at the latter's request provided that it has satisfied its obligations at the end of the contract.

Cass. com., 12 November 1996, LawLex200200005615JBJ, upholding CA Colmar, 8 June 1993, LawLex200200006008JBJ.

CA Rennes, 28 June 2011, LawLex201100001299JBJ.

CA Pau, 15 April 2010, LawLex201000000946JBJ.

CA Paris, 21 April 2000, LawLex200200000800JBJ, quashing T. com. Paris, 5 December 1997, LawLex200200001204JBJ. Contra, see CA Paris, 10 March 1994, LawLex200200001591JBJ.

CA Paris, 21 April 2023, LawLex202300006094JBJ and LawLex202300006095JBJ.

CA Paris, 24 January 2002, LawLex200200000560JBJ; 11 September 2008, LawLex200800001933JBJ.

See, inter alia, as regards files of customers who hold loyalty cards, CA Chambéry, 2 October 2007, LawLex200800000534JBJ.

T. com. Versailles, 19 March 2003, LawLex200300001874JBJ.

French Distribution Law

433. Customer poaching/Client list.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

433. Customer poaching/Client list.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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