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. 134-4 of the Commercial Code provides that, “The relationships between commercial agents and principals shall be governed by an obligation of loyalty and a reciprocal duty of information”.  Regardless of whether an exclusive territory has been granted, the principal must refrain from canvassing his agent's potential customers , including during the notice period , without prior express  …

Canvassing and direct sales.

Article L. 134-4 of the Commercial Code provides that, “The relationships between commercial agents and principals shall be governed by an obligation of loyalty and a reciprocal duty of information”.  Regardless of whether an exclusive territory has been granted, the principal must refrain from canvassing his agent's potential customers , including during the notice period , without prior express authorization from that agent  or at least informing him . The principal may not, through a third-party company with the same registered office and managed by a member of their family, sell products similar to those covered by the exclusivity granted to the agent .

Likewise, he fails to comply with his obligation of loyalty by selling directly to the customers of his commercial agent at prices that are lower for those customers .

However, a principal who has not granted the agent any territorial exclusivity and has reserved a client base for himself cannot be blamed for direct sales made in the agent’s area . Conversely, a commercial agent who has consistently refused to sign the contract proposed by the principal, which included an exclusivity clause, cannot claim the benefit of that stipulation or reproach the latter for having delivered directly to certain clients . He does not commit any fault by agreeing to fulfill orders placed by third parties outside the exclusive representation area granted to the commercial agent or by contacting stores with a view to proposing direct sales, provided that no transaction was ultimately concluded . By the same score, an agent who has refused to distribute one of the principal's product ranges cannot subsequently blame him for selling those products on his own territory, especially when he had been mandated to do so . Likewise, the fact that the agent has a defined territory, is assigned monetary targets and receives a commission on all sales made on that territory does not mean that he holds an exclusivity which would render sales made by the principal on that territory unlawful . He may also intervene in the agent's business where the sole purpose of such interventions is to remedy the agent's deficiency  and prevent the loss of customers . Lastly, where the principal markets his products online, he does not fail to fulfill his obligation of loyalty even in the case where the online prices are lower than those offered by the agent, where the agent's turnover is maintained at the same level . The same applies for orders for products made on a website accessible from the agent’s exclusive territory when the principal supplied the goods in question on an area not covered by the exclusivity clause  or to a clientele he was not responsible for canvassing .  

In an isolated judgment, the Court of Cassation extrapolated from the principal's duty of loyalty an obligation to take measures to allow his contracting party to charge competitive prices . This is not the opinion of the Court of Appeal of Paris which, by contrast, held that the principal does not fail to comply with the obligation of loyalty merely because he charges prices that the agent does not regard as competitive where in his relations with his representative, the principal remains free to establish his own commercial policy .

CA Rennes, 1 December 1993, LawLex200200005356JBJ: the hiring of a leading prescribing agent (animateur prescripteur) for the geographic sector granted to its commercial agent is a breach by the principal ofits obligation of loyalty; CA Paris, 17 January 1995, LawLex200200005434JBJ; CA Nîmes, 18 January 1996, LawLex200200005527JBJ: a principal fails to comply with its obligation of loyalty where it carries out direct sales to customers of its commercial agent at cheaper prices for those customers.

CA Colmar, 19 August 2020, LawLex202000001985JBJ.

CA Amiens, 21 February 2019, LawLex201900000276JBJ.

CA Pau, 23 August 2018, LawLex201800001210JBJ.

CA Paris, 5 September 2013, LawLex201300001267JBJ.

CA Agen, 9 September 2013, LawLex201400001690JBJ.

CA Angers, 20 November 2018, LawLex201800001834JBJ; but see CA Paris, 24 September 2024, LawLex202400006951JBJ, recognizing the commercial agent’s right to be paid commission for online sales made by a private sales website on behalf of the principal within the agent’s exclusive territory.

Cass. com., 31 March 2021, LawLex202100000973JBJ.

Cass. com., 24 November 1998, LawLex200200005154JBJ: the scope of that judgment is however limited. Firstly, it was issued as part of a particular contractual relationship: mandate. Then, the Court of Cassation seems to have wanted to confine its judgment to the circumstances of the case insofar as it did not publish that judgment at the “Bulletin civil”. Lastly, one may legitimately wonder whether the solution is well-grounded. The principal did not have any means to object to parallel imports on its agent's territory. Furthermore, the price level is necessarily different depending on the markets. Following the reasoning adopted in this case would require uniformity at world price levels, which is strictly impossible. See however, to the same effect, CA Toulouse, 28 February 2018, LawLex201800000370JBJ.

CA Paris, 9 February 2005, LawLex200500005669JBJ.

CA Paris, 17 January 1995, LawLex200200005434JBJ: the principal's obligation of loyalty prevents it, without the agent's express consent, from canvassing that agent's potential customers; 11 October 2012, LawLex201200002185JBJ.

CA Lyon, 21 February 2019, LawLex201900000247JBJ: even in the absence of any exclusivity, the principal cannot, without violating the obligation of loyalty to the agent,  solicit customers from the sector without his knowledger or refuse to inform him of the results of the visits made. 

CA Aix-en-Provence, 17 November 2022, LawLex202200010647JBJ.

CA Nîmes, 18 June 1996, LawLex200200005527JBJ; CA Lyon, 31 January 2019, LawLex201900000157JBJ: the principal, who, without informing the agent, grants central purchasing agencies and wholesalers established in his territory discounts higher than his, thereby reducing the basis of his indirect commissions, breaches the obligation of loyalty and information by which he is bound, regardless of the potentially favorable commercial fallout from such a policy; CA  Dijon, 28 March 2019, LawLex201900000452JBJ.

CA Dijon, 3 March 2022, LawLex202200001319JBJ.

CA Rennes, 15 October 2024, LawLex202400007832JBJ.

CA Paris, 5 July 1996, LawLex200200005591JBJ; CA Agen, 9 September 2013, LawLex201400001690JBJ.

CA Paris, 7 January 2009, LawLex200900001624JBJ.

French Distribution Law

476. Canvassing and direct sales.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

476. Canvassing and direct sales.

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