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 sales representative must make every effort to take care of samples and collections entrusted by his employer. He commits serious misconduct that justifies his dismissal by allowing the theft of collections from an unattended car .
According to the Inter-professional agreement (ANI - Article 6), he has a duty to present the samples and collections to his employer at the latter's behest and to  …

Guardianship of samples and collections.

The VRP may work on behalf of one or more employers (Labor Code, Article L. 7311-3). Where he represents several employers, the sales representative is described as “acting for several undertakings (multicartes)”. Pursuant to Article L. 7313-6 of the Labor Code, the sales representative's contract may prevent him from representing specific undertakings or products for its duration. Otherwise, it must contain the list of “undertakings or products that the sales representative already represents and the commitment not to take new representation in the course of the contract without the employer's previous authorization” unless the parties expressly waive it.

Thus, the VRP agreement may prevent him from representing other companies which manufacture products that are identical to those of his employer and prohibit him from taking other representations without prior authorization . The breach of that obligation is an unlawful act that justifies the dismissal of the sales representative . Likewise, where the sales representative acting for several undertakings exceeds the authorization strictly given by the employer on representing other undertakings, he commits a serious fault . However, the representation of another undertaking in breach of the clause by which the sales representative may not act on behalf of third parties without the employer's authorization does not constitute a serious fault where the products in question are not competing . Likewise, a sales representative does not breach his obligation of loyalty when, during the notice period for termination, he enters into a contract with a competitor of his employer where that contract is effective only at the end of the notice period .

The registration of a trade mark and the presentation of products of that brand to customers  or the creation of an undertaking in competition with the employer  are breaches by the sales representative of his obligation of loyalty which justify his dismissal.

The employer may take action for liability against the sales representative for acts of unfair competition committed to his detriment, even if the company having benefited from them has already been prosecuted .

Cass. soc., 16 February 1987, LawLex200200006244JBJ.

Cass. soc., 3 March 1982, LawLex200200006152JBJ: unfair and dishonourable acts by a sales representative, who sells items which compete with those of his employer in the course of the contract, constitute gross misconduct; 20 January 1999, LawLex200200004465JBJ.

Cass. soc., 17 November 1988, LawLex200200006217JBJ.

Cass. soc., 18 July 1995, LawLex200200006096JBJ.

CA Paris, 27 January 2000, LawLex200200004248JBJ: a sales representative does not breach his obligation of loyalty by concluding, during the notice of termination, a contract with a competitor of his employer, where that contract is only effective at the end of the notice period.

Cass. soc., 9 April 1998, LawLex200200004474JBJ.

Cass. soc., 25 September 2002, LawLex200300000684JBJ.

Cass. soc., 19 June 2001, LawLex200200004410JBJ.

Loyalty.

As part of his managerial powers, the employer may unilaterally fix the sales representative's targets provided that they are attainable . The non-achievement of targets may constitute a real and serious cause for dismissal if it is established that these targets were realistic and that the failure is attributable to the VRP , and provided that such failure does not result from causes outside the sales representative's control . The trial courts have discretion in assessing the seriousness of the breach and whether it justifies a dismissal (Labor Code, Article L. 1235-1).

See, inter alia, Cass. soc., 22 May 2001, LawLex200200004443JBJ.

Cass. soc., 5 June 2002, LawLex200200004557JBJ; 6 November 2008, LawLex200800001925JBJ.

Cass. soc., 9 October 1990, LawLex200200004563JBJ: although the employer may unilaterally determine the targets imposed on the sales representative, provided that they are attainable, the mere fact of not meeting them does not justify dismissal where the sales representative's incompetence or the absence of external causes are not shown.

Targets.

The sales representative is in charge of visiting with the categories of customers stipulated under the terms of the contract (Labor Code, Article L. 7311-3). The size in number and value of the clientele brought, created or developed by him justifies the payment of a goodwill indemnity (indemnité de clientèle) at the end of the contract for the share that reverts to him personally, provided that the termination is not due to any serious breach on his part (Labor Code, Article L. 7313-13). The deficiency of a sales representative who has virtually ceased all canvassing activities is serious misconduct which results in the withdrawal of the goodwill indemnity , provided, however, that the facts are not time-barred .

Cass. soc., 4 March 1992, LawLex200200006083JBJ. See, however, Cass. soc., 26 February 2002, LawLex200200004552JBJ, which describes canvassing deficiency as a real and serious cause rather than gross misconduct.

Cass. soc., 11 June 2003, LawLex200300002464JBJ.

Canvassing.

The sales representative must make every effort to take care of samples and collections entrusted by his employer. He commits serious misconduct that justifies his dismissal by allowing the theft of collections from an unattended car .

According to the Inter-professional agreement (ANI - Article 6), he has a duty to present the samples and collections to his employer at the latter's behest and to restitute them at the end of the contract or if they are obsolete; the employer cannot require the VRP to purchase them. By contrast, theft insurance, insurance against the deterioration or destruction of samples and collections are borne by the employer.

Cass. soc., 24 March 1999, LawLex200200004463JBJ. See also Cass. soc., 3 June 1981, LawLex200200006259JBJ. Compare with Cass. soc., 8 February 1990, LawLex200200006151JBJ, which considers that the carelessness of a sales representative who leaves his car containing a collection of jewels locked in a special safe with an alarm in a dark place unattended, does not constitute serious misconduct but rather a real and serious cause of dismissal.

French Distribution Law

585. Guardianship of samples and collections.

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585. Guardianship of samples and collections.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise