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Selective distribution between competitors, consumption and communication – Enterprise

Does the presentation of an off-network distributor’s web site in a tv program have interaction the joint and a number of other legal responsibility of the tv channel? This is among the important questions that arose earlier than the Court docket of Cassation within the dispute between the Coty firm and the France Télévisions firm. Surprisingly, the case opens an attention-grabbing debate revealing the interactions, even a sure relationship of dependence between competitors legislation, distribution legislation, client legislation and even communication legislation.

The details in dispute involved the broadcasting by France Télévisions of a program wherein was introduced an internet site which provided merchandise from a selective distribution community with out having acquired approval. The corporate Coty France, on the head of this community, had due to this fact assigned France Télévisions and the writer of the location for restore.

The case just isn’t new; the details date again to February 2010. Certainly, the judgment introduced right here comes after a call of Chamber 5-4 of the Paris Court docket of Attraction (Paris, June 9, 2021, No. 18/17379) rendered on referral after cassation (Com. Might 16, 2018, No. 16-18.174 P, Dalloz information, June 5, 2018, obs. L. Constantin; D. 2018. 1068 ; AJ contract 2018. 286, obs. F. Purchase and Jean-Christophe Roda ; censoring Paris, 5, 4, 25 Might 2016, n° 14/03918, D. 2017. 881, obs. D.Ferrier ).

Do not forget that initially, a banal presentation of an internet site in a tv program was in query. Having seen that this web site practiced off-network gross sales of a few of its merchandise, the Coty firm thought-about that this exercise in addition to the promotion of the location in a tv program broken their model picture. Collectively, they might represent acts of parasitism, unfair competitors and deceptive promoting for which the broadcaster and the writer of the location can be collectively and severally liable. Of their defence, the latter known as into query the very legality of the selective distribution community and, on this method, contested all of the grievances in opposition to them. In a primary judgment rendered in 2016, the Court docket of Attraction discovered the illegality of the Coty firm community (Paris, Might 25, 2016, No. 14/03918, prec.), judging that the presence of clauses constituting severe restrictions within the selective distribution contract excluded the advantage of exemption throughout the which means of Article 4 of Regulation No. 2790/1999 relevant to the alleged details (this textual content is changed by Regulation No. 330/2010 of April 20, 2010). The Court docket of Attraction deduced from this that the existence of those “black” clauses dominated out de facto the conformity of the community with Article 101, § 1, of the Treaty on the Functioning of the European Union (TFEU).

Seized of the case, the Court docket of Cassation, in a really seen judgment (Com. Might 16, 2018, n° 16-18.174, prec.), censured the Court docket of Attraction for violation of articles 101 of the TFEU and L. 420 -1 of the industrial code. It recalled an elementary rule, “however usually misunderstood or forgotten” (AJ contracts 2018. 286, obs. F. Purchase and J.-C. Roda) in accordance with which the existence of a hardcore restriction throughout the which means of a regulation of The block exemption doesn’t essentially entail an illegal restriction of competitors throughout the which means of Article 101, § 1, of the TFEU (see, in the identical sense, Com. Might 16, 2018, nº 16-20.040; CJEU 6 Dec 2017, case C-230/16, Dalloz actualité, 17 Jan. 2018, obs. L. Constantin; D. 2018. 150 notes C. Grimaldi ; ibid. 865, obs. D.Ferrier ; ibid. 2270, obs. J. Larrieu, C. Le Stanc and P. Tréfigny ; AJ contract 2018. 34 , obs. F. Purchase and J.-C. Roda ; Dalloz IP/IT 2018. 317, obs. C. Marshal ; RTD eur. 2018. 808, ob. L.Idot ).

Thus, aside from the remark that the presence of “black clauses” in a selective distribution contract doesn’t essentially indicate the illegality of the community throughout the which means of Article 101 of the TFEU, the Court docket of Cassation didn’t present another clarification to the referring court docket, not even that of figuring out whether or not the disputed clauses constituted hardcore restrictions. The questions requested due to this fact got here again fully earlier than the Paris Court docket of Attraction. Nonetheless, in observe, it’s clear that the legality of the act of communication of the corporate France Télévisions, might rely on the legality of the exercise of the disputed web site which, itself, relied on that of the community. ..

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