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

Contracts referred to as gas station exploitations frequently contain an agency agreement for the distribution of hydrocarbons (see No 8.25 on management-agency) and a lease-management contract for the resale of lubricants and for the provisions of services.
The lease-management contract, which has been preferred over purely exclusive purchase contracts since the beginning of the 1980's, generally …

Lease-management of gas stations.

The lease-management contract must comply with the legal pre-contract information requirement where it includes an exclusive purchase commitment . According to Article L. 330-3 of the Commercial Code, that duty is imposed on “any person who provides to another person a corporate name, trademark or trade name, by requiring therefrom an exclusivity or quasi-exclusivity undertaking in order to carry out their activity” . A requirement that the lease-manager resort to the lessor's accounting department is not regarded as an exclusivity clause capable of causing the contract to fall within the scope of application of Article L. 330-3 of the Commercial Code . Likewise, the decision which establishes the existence of exclusivity within the meaning of Article L. 7321-2 of the Labor Code, which has no force of res judicata between the parties, cannot be used as grounds for the acknowledgement of an obligation to provide pre-contract information on the part of the lessor in the context of a lease-management contract . Recourse to an action for annulment of the lease-management contract for non-compliance with the pre-contract information obligation lapses after five years . According to settled case law, the contract will only be invalidated if the failure to comply with the obligation has vitiated the distributor's consent . This is not the case when information about the seniority and experience of the supplier are included in the contract and the lease-manager is a professional who does not need to be reminded what the market prospects are . On the other hand, the lessor who has not provided any documentation to the lease-manager prior to the signing of the contract, and in particular with respect to technical information on the distributed products, breaches the duty to provide pre-contract information . Likewise, the agreement must be voided where the projected trading figures provided to the lease-manager have not adequately brought his attention to the specificities of the business in particular regarding the necessity of making significant investments to combat shrinkage or to hire additional staff which is liable to increase the fixed costs and lower profit margins .

Cass. com., 10 February 1998, LawLex200200005103JBJ which confirms CA Paris, 7 July 1995, LawLex200200005485JBJ. See, also, CA Montpellier, 2 April 1998, LawLex200200005116JBJ: a lease-management contract related to a service-station that includes an exclusive supply commitment is subject to the pre-contract information duty set forth in Article L. 330-3 of the Commercial Code.

For the lack of communication of the preliminary draft of lease-management contract, see Cass. com., 27 February 2001, LawLex200200004970JBJ.

CA Paris, 9 January 2009, LawLex200900003600JBJ.

Cass. com., 17 March 2009, LawLex200900001119JBJ.

CA Paris, 20 September 2007, LawLex200800001251JBJ.

Cass. com., 10 February 1998, LawLex200200005103JBJ; CA Reims, 21 January 1998, LawLex200200005091JBJ; Cass. com., 16 December 2008, LawLex200900000123JBJ: a lessor breaches his pre-contract information duty and vitiates the lease-manager's consent where he does not draw the latter's attention on the fact that he owns the land on which the service-station is set up only in a precarious way, contrary to the provisions of the contract which set forth a performance of at least ten years.

Cass. com., 27 February 2001, LawLex200200004970JBJ.

CA Paris, 29 September 2000, LawLex200400000814JBJ; Cass. com., 4 February 2004, LawLex200400000425JBJ, for a lessor of a service-station who has prvided no documents to the lease-manager before the signing of the contract, and, specifically, no information about the technical fact of dilatation and contraction of hydrocarbons and on its financial consequences.

CA Nîmes, 18 April 2013, LawLex201300000746JBJ.

Pre-contract information.

Contracts referred to as gas station exploitations frequently contain an agency agreement for the distribution of hydrocarbons (see No 8.25 on management-agency) and a lease-management contract for the resale of lubricants and for the provisions of services.

The lease-management contract, which has been preferred over purely exclusive purchase contracts since the beginning of the 1980's, generally contains an exclusive purchase provision pursuant to which, for lubricants, the station attendant undertakes to obtain supplies exclusively from the oil company. Resorting to lease-management allows the exclusive supplier, in his capacity as lessor, to retain the ownership of the business operated by the lease-manager at the latter's own risks. In case of termination of the contract, the lessor will recover particularly the site and the clientele attached to the business. 

In the case of resale of lubricants, the lease-manager's exclusivity commitment is most often established “at the sale price in force on the day of supply”. Before the spectacular reversal made by the Court of Cassation in judgments of the Plenary Session ("Assemblée plénière") of 1st December 1995 , the clause of a master agreement stating the supplier's price in force on the day of the forthcoming purchase orders would affect the validity of the contract. The commercial chamber of the Court of Cassation now applies to lease-management contracts the case law of the Plenary Session on the non-determination of the price : fixing the price by reference to the supplier's price is valid even where the supplier benefits from an exclusive purchase clause. The purchase price may be a price cap fixed according to the competing offer . Abuse in fixing the price may however give rise to termination or compensation .

See, inter alia, regarding franchising, Cass. Ass. Plén., 1 December 1995, LawLex200200004345JBJ.

Cass. com., 3 December 1996, LawLex200200005622JBJ which quashes and annuls CA Paris, 27 October 1993, LawLex200200005342JBJ. See also CA Paris, 6 April 1998, LawLex200200005102JBJ.

Cass. com., 27 February 2001, LawLex200200004970JBJ which confirms CA Paris, 1 July 1998, LawLex200200004720JBJ.

See, inter alia, CA Metz, 21 January 1997, LawLex200200005628JBJ; Cass. com., 14 October 1997, LawLex200200005056JBJ which confirms CA Grenoble, 16 March 1995, LawLex200200005455JBJ; CA Montpellier, 2 April 1998, LawLex200200005116JBJ; Cass. com., 23 March 1999, LawLex200200005193JBJ, which quashes and cancels CA Bourges, 5 October 1994, LawLex200200005412JBJ.

French Distribution Law

542. Lease-management of gas stations.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

542. Lease-management of gas stations.

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