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

Article L. 420-2 of the Commercial Code contains provisions against abuses committed by one or more undertakings in exploiting a dominant position. As for restrictive agreements, whether or not the agent is subject to the provision will depend on its level of economic autonomy. According to the Court of Cassation, a commercial agent in a monopoly situation with considerable autonomy of action with …

Abuse of dominant position.

In order to be subject to the provisions of Article L. 420-1 of the Commercial Code which prohibits restrictive agreements which are or may be intended to prevent, limit or distort competition, the agreement must have been entered into between two undertakings. In order to be defined as an undertaking within the meaning of competition law, an entity must have an economic autonomy: it must have the power to define its own industrial and commercial strategy without being subject to the directives and controls of another undertaking to behave in an independent manner on the market . As part of a vertical relationship between a supplier and a distributor, the competition regulator must thus guarantee, before finding a restrictive agreement, that the two operators, even if legally independent, do not form one and the same economic entity. However, the commercial agent acts in the name and on behalf of its principal. It enters into contracts either in its own name, or on behalf of the principal. Referring to the Guidelines on Vertical Restraints, the Competition Authority notes that the definition as an undertaking depends on the burden of risks of the activity. Where the agent bears the commercial and financial risk in relation to the activities for which it has been appointed, it is subject to the competition rules . In order to determine the applicability of competition rules, it is therefore necessary, according to the Authority, to verify whether the partner who is a distributor is able (a) to decide its commercial strategy independently of its supplier and (b) to establish whether the risks assumed by the distributor constitute “significant economic risks” linked to sales of products or “market-specific investments”. If such is not the case, the provisions of Articles 101 TFEU and L. 420-1 of the Commercial Code do not apply .

CA Paris, 13 May 2016, LawLex201600000954JBJ: a commercial agent cannot be guilty of a boycott in concertation with his principal in the absence of any commercial autonomy from the latter.

European Commission Information No 2010/C 130/01, Guidelines on Vertical Restraints, OJEU C130 of 19 May 2010, par. 13 et seq.

Competition Authority Decision No 09-D-23 of 30 June 2009, LawLex200900002619JBJ.

Restrictive agreements.

Article L. 420-2 of the Commercial Code contains provisions against abuses committed by one or more undertakings in exploiting a dominant position. As for restrictive agreements, whether or not the agent is subject to the provision will depend on its level of economic autonomy. According to the Court of Cassation, a commercial agent in a monopoly situation with considerable autonomy of action with respect to its principals, is likely to hold a dominant position . It abuses of its position where it requires its principals to include an exclusivity clause in a master agreement drafted in its favor .

Cass. com., 12 January 1999, LawLex200200003125JBJ. See, also, on the dominant position of an exclusive agent, CA Paris, 27 January 1995, LawLex200200003171JBJ.

Cass. com., 12 January 1999, LawLex200200003125JBJ.

French Distribution Law

447. Abuse of dominant position.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

447. Abuse of dominant position.

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