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France
France – Ban of online sales for distributors
18 décembre 2018
- Distribution
Are arbitration and jurisdiction clauses contained in insurance contracts enforceable against a third party which is acting directly against the insurer in third party liability insurances?
Such direct action is admitted by French law in liability insurances, as defined in article 124-3 of the Insurance Code.
In just a few months two radically different approaches have been taken by the French Cour de cassation (Civ.1, 19 December 2018, n°17-28.951) and the ECJ in Assens Havn v. Navigator Management UK Ltd (13 July 2017, C-368/16) and KABEG v. MMA IARD (20 July 2017, C-340/16).
The case submitted to the Cour de cassation represented a third party exercising a direct right of action before French Courts against the insurer of a floating barge which had caused him a damage. The Supreme Court accepted that the insurer could validly oppose the arbitration clause, which was in the policy against the third party, and therefore judged that French Court had no jurisdiction to decide on the case. The Supreme Court applied the well-established principle of Compétence-Compétence – materialized in article 1448 of the French Code de Procédure Civile – to stay the case, considering that the arbitration clause could not be set aside. The Court therefore judged that the applicability of the arbitration clause should be determined by the arbitrators by priority.
A year before, the ECJ had ruled in the opposite direction in a case where a jurisdiction clause was applicable in the insurance policy. In Assens Havn v. Navigator Management UK Ltd, the ECJ stated that the clause could not be opposed to the third party acting directly against the insurer. According to the Court, the insurers’ liability towards the insured has a contractual nature when based on the policy, whereas it is extra-contractual when the liability is based on a direct action from a third party. In a previous ruling the Court had considered (Sté financière et industrielle du Peloux (12 May 2005, C-112/03) that the jurisdiction clause cannot be opposed to the beneficiary of an insurance policy if he is not the policyholder (for instance in a collective insurance).
One sees a clear difference in treatment between arbitration clause and jurisdiction clause when it comes to deciding on their opposability to the victim exercising a direct action against the insurer.
Article 2061 paragraph 2 of the Civil Code states that an arbitration cannot be opposed to a party which has not contracted for the purpose of its business activity. The French Cour de cassation grounded its decision on the fact that the clauses of the main contract could be opposed to the third party. If the latter was entitled to apply the insurance contract, it was therefore entitled to invoke article 2061 paragraph 2 of the Civil Code.
On February 14, 2019, the European Commission proudly announced in a press release that the night before, the European Parliament, the Council of the European Union and the European Commission reached a political deal on the first-ever rules aimed at creating a fair, transparent and predictable business environment for businesses and traders when using online platforms.
The new Regulation is part of the strategic plan of the European authorities to establish a digital single market and has its origin in the Commission Communication on Online Platforms of May 2016. As a result, in April 2018 the Commission presented the proposal of a new regulation.
The new rules will apply to companies such as Google AdSense, DoubleClick , eBay and Amazon Marketplace, Google and Bing Search , Facebook and YouTube, Google Play and App Store, Facebook Messenger, PayPal, Zalando and Uber.
After having conducted a series of studies, workshops and a large public consultation, the European Commission explained in its 2016 Communication the importance of creating in Europe a favorable environment for the development of new online platforms. Indeed, the statistics are very disappointing: only 4% of the world’s market capitalization is represented by online platforms created in Europe. The champions in the field are the United States and Asia.
On the basis of this observation, the Commission has drawn up a list of challenges for the European lawmaker as follows:
- Ensuring a level playing field for comparable digital services
- Ensuring that online platforms act responsibly
- Fostering trust, transparency and ensuring fairness
- Keeping markets open and non-discriminatory to foster a data-driven economy
- Safeguarding a fair and innovation-friendly business environment
2 years after the Communication of the Commission, the new Regulation was born.
First of all, what are the conditions for the application of the regulation?
- companies using online platforms must have their place of establishment or residence in the European Union and
- goods or services must be offered to consumers in the Union.
(the place of establishment or residence of the providers of these services is not relevant to the application of the Regulation).
A strengthened obligation of transparency
The Regulation makes online platforms subject to transparency by obliging them to ensure that their terms and conditions:
- are drafted in a clear and unambiguous manner;
- are easily available for business users at all stages of their commercial relationship with the provider of online intermediation services, including in the pre-contractual stage;
- set out the objective grounds for decisions to suspend or terminate, in whole or in part, the provision of their online intermediation services to business users.
Ranking
Online platforms will have to indicate in their terms and conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters
Where those main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by business users to the provider of online intermediation services concerned, that online platform shall also include in its terms and conditions a description of those possibilities and of the effects of such remuneration on ranking.
Differentiated treatment of goods or services
The online platform shall also include in their terms and conditions a description of any differential treatment they give on the one hand in relation to goods and services offered to consumers through these online intermediation services, either by the supplier himself or by any user enterprise controlled by that supplier and, secondly, in relation to other business users.
Access to data
The platforms will have to establish a description of the technical and contractual access, or lack of such access for business users, to any personal data or other data, or both, that user companies or the consumers transmit for the use of the online intermediation services concerned or which are generated through the provision of those services.
Prohibition of certain unfair practices
Prohibition of modification of the terms and conditions without notice
Any proposed amendment of terms and conditions shall be notified to users and the notice period shall be at least 15 days from the date on which the online platform notifies the business users concerned about the envisaged modifications.
Prohibition of suspension or termination without cause
Under Article 4 of the Regulation when intermediation service provider decides to suspend or terminate, in whole or in part, providing its services to a given user company, it shall provide the business user without undue delay, with the motivation for such a decision.
New avenues for dispute resolution
Internal complaint-handling system
Providers of online intermediation services will have to provide an internal complaint handling the complaints from user companies.
Mediation
The platforms shall identify in their terms and conditions one or more mediators with which they are willing to engage to attempt to reach an agreement with business users on the settlement, out of court, of any disputes between the provider and the business user arising in relation to the provision of the online intermediation services concerned, including complaints that could not be resolved by means of the internal complaint-handling system.
The Regulation specifies the conditions that mediators shall met in order to be able to carry out their mission.
Judicial proceedings by representative organizations or associations and by public bodies
Organisations and associations which have a legitimate interest in representing user undertakings or entities using a corporate website, as well as public bodies established in the Member States, shall have the right to bring an action before the national courts in the Union, in accordance with the rules of the law of the Member State in which the action is brought, with a view to putting an end to or prohibiting any infringement, by providers of online intermediation services or on-line search engines.
Coming into force
As it is announced by The European Commission, the new rules will apply 12 months after its adoption and publication, and will be subject to review within 18 months thereafter, in order to ensure that they keep pace with the rapidly developing market. The EU has also set up a dedicated Online Platform Observatory to monitor the evolution of the market and the effective implementation of the rules.
Online platforms regardless of your size, start drafting your new terms and conditions!
In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.
The ruling is considered by the AdlC as having « vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture ».
In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).
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The lawfulness of the selective distribution network
The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.
Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.
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The lawfulness of the ban on selling technical products on third-party platforms
The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.
In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.
First of all, the Authority notes that « prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned ».
Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.
Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.
This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.
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Prohibition of restrictions on resale of products on distributors’ websites
However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.
In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to « put in hand » the machine, including the oral communication of usage instructions and a demonstration.
The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.
The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.
On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this « put in hand » obligation.
The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.
In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:
- justifies the implementation of a selective distribution network;
- may be prohibited on third party platforms (if the selective distribution network is considered lawful);
- could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of « efficiency gain » in favor of consumers, according to a very (too?) strict position of the AdlC.
On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.
Geoblocking is a discriminatory practice preventing customers (mainly on-line customers) from accessing and/or purchasing products or services from a website located in another member State, because of the nationality of the customer or his place of residence or establishment.
The EU Regulation no. 2018/302 of 28 February 2018 on addressing unjustified geoblocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market will enter into force on 2 December 2018.
The current situation
The EU Commission carried out a « mystery shopping » survey on over 10 000 e-commerce websites in the EU. The geoblocking figures are quite high! 63% of the websites do not let shoppers to buy from another EU country (even 86% for electric household appliances and 79% for electronics and computer hardware).
The survey shows also that 92% of on-line retailers require customers to register on their website and to provide them with e-mail address, physical address and telephone number. The registration is denied most of the time because of a foreign delivery address for 27% of the websites. Almost half of the websites give no information about the place of delivery while shopping on the website although this information on delivery restrictions has to be provided in due time during the shopping process. At the end, according to this EC survey, only 37% of the websites truly allow e-shoppers to freely buy on-line from another EU country (without restriction as regards place of establishment, place of delivery and mean of payment).
On the other side, only 50% of European customers buy products from on-line shops based in another EU member State while the value and the volume of e-commerce, globally speaking increase thoroughly year after year, but only on a domestic scope not throughout Europe.
On 23 June 2017, the European Council asked for a real implementation of the Digital Single Market strategy in all its elements including cross border partial delivery, consumer protection and prohibition of undue geoblocking.
The lack of the current legal frameworks
The service directive (n°2006/123/CE) and article 101 of the TFUE address already the discrimination practices based on nationality or place or residence or establishment.
According to article 20 (2) of the service directive, the EU member States must ensure that professionals do not treat customers differently based on their place of residence or establishment or nationality (unless objective exception). On the other side, EU competition law on vertical restraints (article 101 TFUE and the block exemption regulation and its guidelines) considers restrictions on passive sales as hard core restrictions violating EU competition rules. However, both set of rules (service directive and competition law framework) appear not to be fully effective in practice.
With this respect, the recent report of the European commission about the competition enquiry in the e-commerce sector shows, among others, that geoblocking was used at a large scale within the European e-commerce sector.
The aim of the geoblocking regulation
The goal of the geoblocking regulation is to prevent professionals from implementing direct or indirect discrimination based on the nationality, the place of residence or the place of establishment of their customers when dealing with cross border e-commerce transactions.
The scope of the geoblocking regulations
The new Regulation will only apply to online sales between businesses and end-user consumers or businesses.
The new Regulation will apply to websites operated within the European Union or to websites operated outside the European Union but proposing goods or services to customers established throughout in the European Union.
What are the new rules of management of an e-commerce website?
As regards the access to the website
Under the Regulation, a business may neither block nor restrict, through the use of technological measures, access to their online interfaces for reasons related to nationality, place of residence or place of establishment of an internet user. However, businesses are authorized to redirect customers to a different website than the one they were trying to access provided the customer expressly agrees thereto and can still easily visit the website version they originally tried to access.
As regards the terms and conditions of sales of the website
The Regulation forbids businesses from applying different general conditions of access to goods or services according to a customer’s nationality or place of residence or place of establishment (as identified by their IP address in particular) in the following three cases:
- where the goods sold by the business are delivered in a different member state to which the business offers delivery (or where the goods are collected at a location jointly agreed upon by the business and the customer);
- where the business offers electronically supplied services such as cloud, data storage, hosting services etc. (but not services offering access to copyright-protected content such as streaming or online-gaming services);
- where the business supplies services received by the customer in a country in which the business also operates (such as car rental and hotel accommodation services or ticketing services for sporting or cultural events).
As regards the means of payment on the website
The Regulation forbids businesses from applying different conditions for payment transactions to accepted means of payment for reasons related to a customer’s nationality, place of residence or place of establishment, or to the location of the payment account or the place of establishment of the payment service provider (provided that authentication requirements are fulfilled and that payment transactions are made in a currency accepted by the business).
What are the impacts of this regulation on e-retailers?
Although formally excluded from the scope of the Regulation, relations between suppliers and distributors or wholesalers will still be impacted by it since provisions of agreements between businesses under which distributors undertake not to make passive sales (e.g., by blocking or restricting access to a website) for reasons related to a customer’s nationality, place of residence or place of establishment “shall be automatically void”.
The geoblocking regulation therefore impacts distributors twofold: first, directly in their relations with customers (end-user consumers or user-businesses), and second, indirectly in regard to their obligations under the exclusive distribution agreement.
The geoblocking regulation shall have to be coordinated with the existing competition law framework, especially the guidelines on vertical restraints which set up specific rules applying to on-line sales. On-line sales are likened to passive sales. The guidelines mention four examples of practices aiming to indirectly guarantee territorial protection which are prohibited when supplier and exclusive distributor agree:
- that the exclusive distributor shall prevent customers in another territory from visiting their website or shall automatically refer them to the supplier’s or other distributors’ websites,
- that the exclusive distributor shall terminate an online sale if the purchaser’s credit card data show that the purchaser is not from the exclusive distributor’s exclusive territory,
- to limit the share of sales made by the exclusive distributor through the internet (but the contract may provide for minimum offline targets in absolute terms and for online sales to remain coherent compared to offline sales).
- that the exclusive distributor shall pay a higher price for goods intended for sale on the internet than for goods intended for sale offline.
Manufacturers will have to decide whether they adopt a unique European gateway website or multiple local commercial offers, it being known that price differentiation is still possible per category of clients.
Indeed, the new Regulation does not oblige the e-retailers to harmonize their price policies, they must only allow EU consumers to access freely and easily to any version of their website. Likewise, this Regulation does not oblige e-retailers to ship products all over Europe, but just allow EU consumers to purchase goods from whichever website they want and to arrange the shipment themselves, if need be.
Finally on a more contractual level, it is not very clear yet how the new geoblocking rules could impact directly or indirectly the conflict of law rules applicable to consumer contracts, as per the Rome I regulation especially when the consumer will be allowed to handover the product purchased on a foreign website in the country of this website (which imply no specific delivery in the country where the consumer is established).
Therefore B2C general terms and conditions of websites would need to be reviewed and adapted on both marketing and legal sides.
France has for long been seen as a “social trap” by foreign investors… and it was often right.
The last few months have been dedicated to change this, in order to secure more employers, and allow more flexibility (in a negotiated framework) within companies.
On the 14th of February, the Senate has ratified what we call the “Macron” decrees that were issued at the end of September.
Below, a summary of what you need to know in 8 points.
1 – More flexibility in the motivation of dismissal letters
In France, dismissals must be justified. However, to reduce litigation and convictions of employers linked to lack of motives, it is now provided that:
- Before referring to the Judge, employees might ask their employer for more explanation on what the allegations against them are, this to defuse conflict and promote dialogue.
- If the employee did not ask for more explanations, the dismissal will not be judged unjustified for a lack of motives but only an irregularity of procedure might be retained (giving an entitlement to a maximum of 1 month salary as damages).
- The employer might, if asked by their employee or at their own initiative, explain more into details the reason for termination, and this explanation will be taken into account by the Judges in case of litigation (when before, only what was written in the dismissal letter was taken into account without any possibility to give any further explanation).
The time-limit to challenge a dismissal is moreover reduced to 12 months (vs 2 years before) with an aim to rapidly secure the situations.
2 – Some changes in redundancies
At last, a glimmer of hope for employers belonging to an International group: the perimeter of appreciation of the economic reason which is required to make someone redundant, is now restrained to the national territory (except for fraud).
It means that an investor abroad who has financial difficulties on the French territory can, from now on, decide redundancies even if the other companies of the group abroad make profit.
Also, the research for redeployment shall take place within the French territory only and not in the whole group outside France.
3 – Damages scales
In matter of dismissal without any substantial grounds, a compulsory statutory scale is included in the Labour Code.
These new provisions are applicable to any dismissal issued after the 25th of September.
The maximum allowance is set at 20 months of gross salary for someone having 29 years’ seniority or more when being unfairly dismissed.
4 – Termination Indemnity
For all the terminations decided by an employer or for any agreed termination concluded after the 25th of September, the legal indemnity is now:
- 1/4 of gross salary per year of presence for the 10 first years of seniority,
- 1/3 of gross salary per year of presence for more than 10 years of seniority.
Moreover, the minimum seniority required is lowered, from one year to eight months continuous seniority to be able to benefit from this legal termination indemnity.
5 – Home Working
Companies who want to organize work from home (other than occasional) must implement it by a collective agreement or a company charter, specifying the eligible positions to this work mode, the working conditions, etc. If telework is refused, the employer shall explain the reasons for refusal to the employee.
On the contrary, for an occasional work from home, only the parties’ agreement is required without any formality or financial compensation.
6 – Merger of staff representatives in a unique Social and Economic Committee
Until recently, French companies have had Workers’ Representatives (“Délégués du Personnel”), Work’s Council (“Comité d’Entreprise”), Health, Safety and Working Conditions Committee (“CHSCT”) depending on the company’s workforce. Sometimes, these Committees were linked one to another or sometimes just merged.
This implied a complexity and often an obligation for the employer to officially hold several meetings on the same topic with different representatives (no matter if those meetings had the same elected members or not).
Now this is simplified: as soon as companies reach the number of 11 employees on their payroll, they have to implement an Economic and Social Committee (CSE). Its missions and resources are more or less important depending if the threshold of 50 employees is reached or not.
A Company’s agreement might as well enforce the fact that this CSE will also have the power to negotiate agreements (instead of the Unions) and will from now on be named Company Council (inspired by Germany).
7 – Larger possibilities to negotiate Company’s own rules, even if these rules do not comply with Branch Agreements
The announced revolution took place: the Company’s Collective Agreements now prevail over the branch agreements as a general rule (even if some clauses of the Branch Collective Agreements should still be respected).
A brand new occasion for employers to grab this opportunity and to adapt and customize the rules of the game for the needs of their company and their employees, renegotiating for example bonuses (seniority bonus, vacation bonus, …) or some aspects of working time.
Specific working conditions can also be negotiated if they are necessary to the well-functioning of the company.
8 – Opening of company‘s negotiations to the small companies without staff representatives
In companies with less than 50 employees, possibilities to negotiate are now on larger, to allow the managers to negotiate with staff representatives or with employees if there is no Union in the company.
An agreement can be concluded directly with the employees who approve the agreement draft by referendum, especially, in companies with less than 20 employees and without any staff representatives.
Wide possibilities are therefore now open to companies in France, no matter the size, the absence of unions, or the branch of activity, as long as they are willing to negotiate with their personnel.
French law is known to be highly favorable to the enforcement of international arbitral awards (notably those rendered outside of France). This forum should accordingly be considered as a matter of priority if the opposing party holds assets in France.
Are presented below the necessary steps in order to enforce an international arbitral award in France. Please note that some of the steps described are only potential and depend upon the other party’s possible will to resist enforcement.
Step 1: Obtaining exequatur
The award is presented to the Presiding Judge of the Paris Civil Court (Tribunal de Grande Instance de Paris) ex parte who decides whether or not to grant exequatur. There are no briefs to file.
The time required for the Presiding Judge’s answer varies greatly according to the caseload of the Court and his availability. Nevertheless, in case of specific emergency, it is always possible to discuss with the clerk’s office to handle the matter on an urgent basis.
On a practical note, the following documents are required in order to proceed: an original version or certified copy of the award, a certified translation of the award, a copy of the arbitration agreement and a certified translation of the same and one additional copy of each of these documents.
Step 2: Defending exequatur (potentially)
If exequatur is granted or denied, the order may be appealed at the Paris Court of Appeal within one month starting from its service. Additional delay for distance may apply if the appealing party is domiciled or is registered abroad.
If exequatur is granted, it is often the case that the opposing party attempts to question the enforceability of the award in France on the limited grounds of article 1520 of the French Code of Civil Procedure (« CCP »):
- the arbitral tribunal wrongly upheld or declined jurisdiction,
- the arbitral tribunal was irregularly constituted,
- the arbitral tribunal ruled without complying with the mandate conferred upon it,
- the due process requirement was violated, or
- recognition or enforcement of the award would violate French international public policy.
Of interest in the current judicial environment, is new case law of the Paris Court of Appeal allowing limited revision of the fact findings of the arbitral tribunal in cases of alleged bribery (see AD newsflash on the matter).
After filing an appeal, the opposing party is required to file its complete submissions on the appeal within 3 months and the defendant has 3 months to answer from the notification date of the appellant’s submissions (new delay as per the reform of 6 May 2017 in force since September 2017).
Additional submissions may be filed, one additional set is common practice, and a single hearing is usually scheduled to take place around 18 months after the appellant’s initial declaration to the Court.
It is important to note that during such proceedings the award, whose exequatur has been granted, will remain enforceable in France and that accordingly there are no obstacles for the beneficiary of the award to proceed with any seizure unless the defendant makes a specific application to the Court to stay enforcement (Article 1526 CCP).
Step 3: Defending immediate enforceability of the award (potentially)
In order to take into account specific circumstances that would unjustly prejudice the party against whom a decision is enforced, the CCP reserves the possibility to request the Court of Appeal a stay of the enforcement of the award in exceptional circumstances.
In such case, the debtor would have to prove that enforcement would entail seriously detrimental consequences to his rights (Article 1526 §2). The criteria to meet are restrictive. When the beneficiary of the award is a foreign company, it is often requested as an alternative that the monies be put under escrow and not immediately transferred to the beneficiary on the basis that it will be difficult for the opposing party to recover the funds should it be successful in its appeal against the exequatur order.
These proceedings are usually expedited (hearing within one or two months). The opposing party files a request as soon as it has appealed the exequatur order. A brief in answer rapidly needs to be filed depending on the date of the hearing.
Step 4: Seizing assets
Seizing funds
Upon receipt of the exequatur order, a bailiff may be instructed to seize any funds held in bank accounts in France.
The process is that of a “saisie-attribution”, hereinafter referred to as a seizure. The bailiff is instructed to visit the relevant banks’ headquarters and notify that monies corresponding to the award are seized.
Please note that French bailiffs have access to a specific file called FICOBA which provides them with the names of all the banks where the debtor holds accounts.
As soon as a bailiff requests funds from a bank, the bank has an obligation to provide detailed information on the funds available. Most banks are organized to answer the bailiff’s request on the same day.
Once the bailiff has performed the seizure, the amounts are considered to be the creditor’s property and are rendered unavailable to the debtor. This can paralyze the business of the debtor so it is recommended to proceed with caution.
The seizure is then notified to the debtor within 8 days.
The funds remain frozen the time to allow potential challenges by the debtor (one month).
Seizing other kinds of assets
It is possible to seize a variety of other assets under French law of course (real property, company shares, debt obligations etc.). Seizing funds is usually the easiest.
Step 5: Challenge by the opposing party of the seizures (potentially)
The seized party will have a right to challenge the seizures before the Enforcement Judge (“Juge de l’exécution” or “JEX”) within a month of the notification of the seizure.
The arguments that can be raised by the opposing party usually concern the seizure itself and not the validity of the exequatur order as other proceedings are available for that purpose.
Several briefs are usually exchanged and a hearing is held before the JEX.
The JEX’s decision can be appealed. The appeal does not stay enforcement. However, there exist specific proceedings to request the Court of Appeals to stay enforcement under certain conditions (manifestly excessive consequences).
In conclusion, the process is rather straightforward even though there are legitimate recourses available to the debtor and the above may appear pretty technical. This is natural given the potential use of the public force once exequatur is obtained.
Please note that although French Courts are known not to be very generous in terms of awarding legal fees, there have been decisions in which significant amounts have been ordered in this field (for example EUR 600,000 in CA Paris, 26 sept. 2017, no 16/15338). Therefore, in case of success the costs of enforcement are borne by the debtor.
In case of absence of challenges, it usually takes between two to three months to obtain the wire of the funds in favor of the creditor (however as explained above, as soon as the seizure is performed the funds are immediately frozen until all potential recourses have expired).
The author of this post is Flore Poloni
If you want to develop your distribution network abroad, a network of commercial agents is the easiest way, and France is no exception. Before entering into an agency contract ruled by French law, it is nevertheless advisable to know its main features, which will be discussed in this post.
Definition
A commercial agent is a professional representative who negotiates and eventually concludes contracts in the name of and on behalf of his principal.
The French Commercial Code (Article L134-1) defines a commercial agent precisely as:
«L’agent commercial est défini comme un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d’achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d’industriels de commerçants ou d’autres agents commerciaux.»
«The commercial agent is an agent who, as an independent professional, without being bound by an employment contract, is in a permanent position to negotiate and eventually to enter into contracts for the sale, purchase, rent/hire or performance of service in the name and on behalf of manufacturers, industrialists, traders or other commercial agents.»
The definition shows that the agent is independent: he/she is free to organise his/her own employment activity and business (sole agency, limited company etc.). This notion is fundamental, because the more the agent will be present and active in the organisation of the principal activity, the more the contract will be at risk of being requalified as a VRP (employee contract of sales representative) contract by the courts.
In the spirit of the contractual relationship and in the drafting of the contract itself, one must be very careful not to confuse an agent with a VRP since, according to French law, the latter is considered an employee, with greater rights and compensation for termination of contract.
Requirements
The agent must be registered in the register of commercial agents at the Registry of the Commercial Court at his place of domicile.
Contract form
The written form is not mandatory but strongly recommended. Article L134-2 of the Commercial Code provides that each party may request both the contract and addenda to be in writing.
Execution of the contract – important clauses
- Duration: for a fixed period or indefinite.
- Fee: a commission freely defined between the parties.
- Territory: it is very important to define the territory with precision and avoid wide generic clauses such as “world”.
- Exclusive: the clause must specify whether the exclusivity is in relation to the territory and/or on the clientele in a precise manner and if the principal reserves the right to intervene.
- Notice of withdrawal (Article L134-11, paragraph 3 of the Commercial Code): 1 month for the first year, 2 months for the second year, 3 months thereafter.
Post-contract – important clauses
Post-contractual non-competition clauses (Article L134-14 of the Commercial Code) must be in written form and limited to a maximum of 2 years post-contract.
The non-competition clauses restriction (territory, customers, products) must not be so restrictive as to prohibit the agent from working after the end of the contract. Therefore customers and products included in the agreement must be competitors of the type of goods subject of the agency contract. Otherwise, the courts will consider the clause as null and non-existent, entitling the agent to claim compensation.
French law does not provide any compensation for compliance with this clause.
After termination of the contract, the agent is entitled to an indemnity for termination as compensation (Article L134-12 of the Commercial Code). It is a rule of public order, therefore, the clause that provides for an exemption of this entitlement will be considered null and non-existent.
The agent has one year to assert this right to severance indemnity.
There is no requirement of keeping it in writing, however, it is advisable to write a notice of receipt as proof of the termination.
The amount of the compensation is equal to two years of commissions (gross) received by the agent. This is to be seen as a maximum measure and it is up to the principal to prove the reason as to why the agent should be entitled to a lower compensation.
In the event of litigation, the courts will at their discretion evaluate the amount of the request of a maximum of two years.
Cases in which compensation is not due:
- Assignment of the contract to another agent;
- Termination of the contract by the agent;
- Serious non-fulfilment of the contract by the agent.
Serious breach of contract can result from the non-fulfilment of clauses that are defined in the contract as important or must be assessed from time to time with the advice of your lawyer.
Focus: the termination of contract due to retirement
The agent is entitled to the indemnity for termination as compensation also when he/she ceases the activity and retires.
French jurisprudence (in particular the jurisprudence of the Court of Cassation), however, requires a more specific check of the reason for the termination of the contract: the agent must not only claim to be entitled to the retirement pension, he should also assert he is not in physical conditions to be able to work anymore.
Which is the competent French court?
Even if the agent is a trading company, the nature of the contract is still civil. By virtue of this, the competent court varies according to the person who brings the claim.
If the agent is the claimant, he can choose between “tribunal de grande instance” and “tribunal de commerce”.
If, on the other hand, the principal is the claimant, he must also begin the claim before the “tribunal de grande instance”.
France is a great market for franchise networks where almost 2,000 networks are operated. It is one of the most successful scheme of developing business.
Franchisor must mainly respect French regulations on pre-disclosure information and French and EU competition regulations, among others rules. Although the control of the quality of its network and of its brand image is a very important and legitimate issue for franchisor, the latter cannot interfere too much in the day-to-day activity of the franchisees, since franchisees are independent businesses. Therefore relations between franchisors and franchisees are only based on commercial law and not on employment law. However, recent French rules will lead franchisors to implement some employment law rules with their franchisees and franchisees’ employees.
Foreign franchisors operating franchise networks in France must indeed know how to deal with the constraints incurred by the Employment Act (dated 08 August 2016) and its Decree (dated 04 May 2017), and effective as from May 07 2017, relating to the creation of an employee forum for the whole franchise network. Indeed this Social Dialogue Committee can impact deeply the organization of franchise networks.
First of all, only networks in which operators are bound by franchise agreements are concerned by the new social dialogue committee. Accordingly, trademark licensing and distribution contracts appear not to be included. Franchise agreements should be understood as sui generis contracts that are the sum of three separate agreements: a trademark licensing agreement, a know-how licensing agreement, and a commercial or technical assistance agreement. However, the Act of 08 august 2016 creates some confusion by stating that the franchise agreements concerned by this Social Dialogue Committee are the agreements “referred to in article L330-3 of the French Commercial Code”, although not only does that article not define what a franchise contract is, it may also apply to other contracts (exclusive distribution agreements) to determine whether the network fall into the scope of this Act.
Furthermore, according to the Act, only specific franchise agreements including “clauses that have an impact on work organisation and conditions in franchisee businesses” are concerned. The Act does not define such clauses although, on the one hand, whether a social dialogue committee is called for depends on identifying such clauses, and on the other hand, franchisees are in essence independent of the franchisor when organising and managing their business, including in employment matters. It will therefore be necessary to conduct an employment audit of all franchise agreements (for instance, what happens if a clause sets opening hours or defines a dress code?) to determine whether the network fall into the scope of this Act.
Finally, a Social Dialogue Committee is only called for in franchise networks employing at least 300 staff working (full-time) in France. It would seem that this does not include the franchisor’s employees or the employees of operators that are not bound to the network’s head by a franchise agreement (e.g., operators bound by a trademark licensing contract).
An implementation implying a long negotiation
Even where the legal requirements are met, franchisors are under no obligation to set up a Social Dialogue Committee spontaneously. However, once a trade union has called for an Social Dialogue Committee to be set up, the franchisor does have an obligation to take part actively in the negotiations initiated by that trade, to check with all the franchisees whether the number of employees in its network reaches the 300 threshold, and then to set up a “negotiation forum” made of representatives of employees (trade unions) and of employers (franchisor and franchisees) to negotiate an agreement creating and organizing the future Social Dialogue Committee.
The negotiations with trade unions and franchisees will end, within six months, in an agreement subject to the consent of franchisor, trade union(s) and at least of 30% of the franchisees (representing 30 % of the employees of the network). This agreement shall define the Social Dialogue Committee’s composition, how its members are designated, their term of office, the frequency of meetings, if and how many hours employees may dedicate to the committee, the material or financial means required for the committee to fulfill its purpose, and how running and meeting costs and representatives’ travel and subsistence expenses are handled, among other things. This last issue could be a major concern not only for franchisor but also for franchisees-employers. Failing to reach such agreement, the Decree imposes the creation of the Social Dialogue Committee with several strict and minimum provisions which could create unreasonable burden for the franchisor.
Once set up, internal rules define precisely how the Social Dialogue Committee is to function (required majorities, notices of meeting and referral, publication of debates, etc.).
Much ado about nothing?
The Social Dialogue Committee does not have the authority to investigate cases or to issue binding rulings, but the Social Dialogue Committee must be kept informed of franchisees joining or leaving the network and “of the franchisor’s decisions liable to impact the volume and structure of staff, working time, or the employment, work, and vocational training conditions of the franchisees’ employees”.
The Social Dialogue Committee may also make suggestions for improving such conditions throughout the network.
The impact of the Social Dialogue Committee is eventually rather limited, but franchisors have to master and control seriously the implementation of the rules in order to avoid loss of times and energy by their own franchisees and a disorganisation of its network.
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France | Arbitration clauses in international contracts with consumers are not enforceable
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France | Arbitration clauses in international contracts with consumers are not enforceable
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Écrire à France – Direct action against the insurer and enforceability of arbitration clause
EU geoblocking ban – New strategy for e-commerce websites
14 juin 2018
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Europe -
France
- Antitrust
- Distribution
- e-Commerce
Are arbitration and jurisdiction clauses contained in insurance contracts enforceable against a third party which is acting directly against the insurer in third party liability insurances?
Such direct action is admitted by French law in liability insurances, as defined in article 124-3 of the Insurance Code.
In just a few months two radically different approaches have been taken by the French Cour de cassation (Civ.1, 19 December 2018, n°17-28.951) and the ECJ in Assens Havn v. Navigator Management UK Ltd (13 July 2017, C-368/16) and KABEG v. MMA IARD (20 July 2017, C-340/16).
The case submitted to the Cour de cassation represented a third party exercising a direct right of action before French Courts against the insurer of a floating barge which had caused him a damage. The Supreme Court accepted that the insurer could validly oppose the arbitration clause, which was in the policy against the third party, and therefore judged that French Court had no jurisdiction to decide on the case. The Supreme Court applied the well-established principle of Compétence-Compétence – materialized in article 1448 of the French Code de Procédure Civile – to stay the case, considering that the arbitration clause could not be set aside. The Court therefore judged that the applicability of the arbitration clause should be determined by the arbitrators by priority.
A year before, the ECJ had ruled in the opposite direction in a case where a jurisdiction clause was applicable in the insurance policy. In Assens Havn v. Navigator Management UK Ltd, the ECJ stated that the clause could not be opposed to the third party acting directly against the insurer. According to the Court, the insurers’ liability towards the insured has a contractual nature when based on the policy, whereas it is extra-contractual when the liability is based on a direct action from a third party. In a previous ruling the Court had considered (Sté financière et industrielle du Peloux (12 May 2005, C-112/03) that the jurisdiction clause cannot be opposed to the beneficiary of an insurance policy if he is not the policyholder (for instance in a collective insurance).
One sees a clear difference in treatment between arbitration clause and jurisdiction clause when it comes to deciding on their opposability to the victim exercising a direct action against the insurer.
Article 2061 paragraph 2 of the Civil Code states that an arbitration cannot be opposed to a party which has not contracted for the purpose of its business activity. The French Cour de cassation grounded its decision on the fact that the clauses of the main contract could be opposed to the third party. If the latter was entitled to apply the insurance contract, it was therefore entitled to invoke article 2061 paragraph 2 of the Civil Code.
On February 14, 2019, the European Commission proudly announced in a press release that the night before, the European Parliament, the Council of the European Union and the European Commission reached a political deal on the first-ever rules aimed at creating a fair, transparent and predictable business environment for businesses and traders when using online platforms.
The new Regulation is part of the strategic plan of the European authorities to establish a digital single market and has its origin in the Commission Communication on Online Platforms of May 2016. As a result, in April 2018 the Commission presented the proposal of a new regulation.
The new rules will apply to companies such as Google AdSense, DoubleClick , eBay and Amazon Marketplace, Google and Bing Search , Facebook and YouTube, Google Play and App Store, Facebook Messenger, PayPal, Zalando and Uber.
After having conducted a series of studies, workshops and a large public consultation, the European Commission explained in its 2016 Communication the importance of creating in Europe a favorable environment for the development of new online platforms. Indeed, the statistics are very disappointing: only 4% of the world’s market capitalization is represented by online platforms created in Europe. The champions in the field are the United States and Asia.
On the basis of this observation, the Commission has drawn up a list of challenges for the European lawmaker as follows:
- Ensuring a level playing field for comparable digital services
- Ensuring that online platforms act responsibly
- Fostering trust, transparency and ensuring fairness
- Keeping markets open and non-discriminatory to foster a data-driven economy
- Safeguarding a fair and innovation-friendly business environment
2 years after the Communication of the Commission, the new Regulation was born.
First of all, what are the conditions for the application of the regulation?
- companies using online platforms must have their place of establishment or residence in the European Union and
- goods or services must be offered to consumers in the Union.
(the place of establishment or residence of the providers of these services is not relevant to the application of the Regulation).
A strengthened obligation of transparency
The Regulation makes online platforms subject to transparency by obliging them to ensure that their terms and conditions:
- are drafted in a clear and unambiguous manner;
- are easily available for business users at all stages of their commercial relationship with the provider of online intermediation services, including in the pre-contractual stage;
- set out the objective grounds for decisions to suspend or terminate, in whole or in part, the provision of their online intermediation services to business users.
Ranking
Online platforms will have to indicate in their terms and conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters
Where those main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by business users to the provider of online intermediation services concerned, that online platform shall also include in its terms and conditions a description of those possibilities and of the effects of such remuneration on ranking.
Differentiated treatment of goods or services
The online platform shall also include in their terms and conditions a description of any differential treatment they give on the one hand in relation to goods and services offered to consumers through these online intermediation services, either by the supplier himself or by any user enterprise controlled by that supplier and, secondly, in relation to other business users.
Access to data
The platforms will have to establish a description of the technical and contractual access, or lack of such access for business users, to any personal data or other data, or both, that user companies or the consumers transmit for the use of the online intermediation services concerned or which are generated through the provision of those services.
Prohibition of certain unfair practices
Prohibition of modification of the terms and conditions without notice
Any proposed amendment of terms and conditions shall be notified to users and the notice period shall be at least 15 days from the date on which the online platform notifies the business users concerned about the envisaged modifications.
Prohibition of suspension or termination without cause
Under Article 4 of the Regulation when intermediation service provider decides to suspend or terminate, in whole or in part, providing its services to a given user company, it shall provide the business user without undue delay, with the motivation for such a decision.
New avenues for dispute resolution
Internal complaint-handling system
Providers of online intermediation services will have to provide an internal complaint handling the complaints from user companies.
Mediation
The platforms shall identify in their terms and conditions one or more mediators with which they are willing to engage to attempt to reach an agreement with business users on the settlement, out of court, of any disputes between the provider and the business user arising in relation to the provision of the online intermediation services concerned, including complaints that could not be resolved by means of the internal complaint-handling system.
The Regulation specifies the conditions that mediators shall met in order to be able to carry out their mission.
Judicial proceedings by representative organizations or associations and by public bodies
Organisations and associations which have a legitimate interest in representing user undertakings or entities using a corporate website, as well as public bodies established in the Member States, shall have the right to bring an action before the national courts in the Union, in accordance with the rules of the law of the Member State in which the action is brought, with a view to putting an end to or prohibiting any infringement, by providers of online intermediation services or on-line search engines.
Coming into force
As it is announced by The European Commission, the new rules will apply 12 months after its adoption and publication, and will be subject to review within 18 months thereafter, in order to ensure that they keep pace with the rapidly developing market. The EU has also set up a dedicated Online Platform Observatory to monitor the evolution of the market and the effective implementation of the rules.
Online platforms regardless of your size, start drafting your new terms and conditions!
In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.
The ruling is considered by the AdlC as having « vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture ».
In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).
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The lawfulness of the selective distribution network
The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.
Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.
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The lawfulness of the ban on selling technical products on third-party platforms
The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.
In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.
First of all, the Authority notes that « prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned ».
Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.
Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.
This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.
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Prohibition of restrictions on resale of products on distributors’ websites
However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.
In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to « put in hand » the machine, including the oral communication of usage instructions and a demonstration.
The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.
The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.
On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this « put in hand » obligation.
The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.
In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:
- justifies the implementation of a selective distribution network;
- may be prohibited on third party platforms (if the selective distribution network is considered lawful);
- could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of « efficiency gain » in favor of consumers, according to a very (too?) strict position of the AdlC.
On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.
Geoblocking is a discriminatory practice preventing customers (mainly on-line customers) from accessing and/or purchasing products or services from a website located in another member State, because of the nationality of the customer or his place of residence or establishment.
The EU Regulation no. 2018/302 of 28 February 2018 on addressing unjustified geoblocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market will enter into force on 2 December 2018.
The current situation
The EU Commission carried out a « mystery shopping » survey on over 10 000 e-commerce websites in the EU. The geoblocking figures are quite high! 63% of the websites do not let shoppers to buy from another EU country (even 86% for electric household appliances and 79% for electronics and computer hardware).
The survey shows also that 92% of on-line retailers require customers to register on their website and to provide them with e-mail address, physical address and telephone number. The registration is denied most of the time because of a foreign delivery address for 27% of the websites. Almost half of the websites give no information about the place of delivery while shopping on the website although this information on delivery restrictions has to be provided in due time during the shopping process. At the end, according to this EC survey, only 37% of the websites truly allow e-shoppers to freely buy on-line from another EU country (without restriction as regards place of establishment, place of delivery and mean of payment).
On the other side, only 50% of European customers buy products from on-line shops based in another EU member State while the value and the volume of e-commerce, globally speaking increase thoroughly year after year, but only on a domestic scope not throughout Europe.
On 23 June 2017, the European Council asked for a real implementation of the Digital Single Market strategy in all its elements including cross border partial delivery, consumer protection and prohibition of undue geoblocking.
The lack of the current legal frameworks
The service directive (n°2006/123/CE) and article 101 of the TFUE address already the discrimination practices based on nationality or place or residence or establishment.
According to article 20 (2) of the service directive, the EU member States must ensure that professionals do not treat customers differently based on their place of residence or establishment or nationality (unless objective exception). On the other side, EU competition law on vertical restraints (article 101 TFUE and the block exemption regulation and its guidelines) considers restrictions on passive sales as hard core restrictions violating EU competition rules. However, both set of rules (service directive and competition law framework) appear not to be fully effective in practice.
With this respect, the recent report of the European commission about the competition enquiry in the e-commerce sector shows, among others, that geoblocking was used at a large scale within the European e-commerce sector.
The aim of the geoblocking regulation
The goal of the geoblocking regulation is to prevent professionals from implementing direct or indirect discrimination based on the nationality, the place of residence or the place of establishment of their customers when dealing with cross border e-commerce transactions.
The scope of the geoblocking regulations
The new Regulation will only apply to online sales between businesses and end-user consumers or businesses.
The new Regulation will apply to websites operated within the European Union or to websites operated outside the European Union but proposing goods or services to customers established throughout in the European Union.
What are the new rules of management of an e-commerce website?
As regards the access to the website
Under the Regulation, a business may neither block nor restrict, through the use of technological measures, access to their online interfaces for reasons related to nationality, place of residence or place of establishment of an internet user. However, businesses are authorized to redirect customers to a different website than the one they were trying to access provided the customer expressly agrees thereto and can still easily visit the website version they originally tried to access.
As regards the terms and conditions of sales of the website
The Regulation forbids businesses from applying different general conditions of access to goods or services according to a customer’s nationality or place of residence or place of establishment (as identified by their IP address in particular) in the following three cases:
- where the goods sold by the business are delivered in a different member state to which the business offers delivery (or where the goods are collected at a location jointly agreed upon by the business and the customer);
- where the business offers electronically supplied services such as cloud, data storage, hosting services etc. (but not services offering access to copyright-protected content such as streaming or online-gaming services);
- where the business supplies services received by the customer in a country in which the business also operates (such as car rental and hotel accommodation services or ticketing services for sporting or cultural events).
As regards the means of payment on the website
The Regulation forbids businesses from applying different conditions for payment transactions to accepted means of payment for reasons related to a customer’s nationality, place of residence or place of establishment, or to the location of the payment account or the place of establishment of the payment service provider (provided that authentication requirements are fulfilled and that payment transactions are made in a currency accepted by the business).
What are the impacts of this regulation on e-retailers?
Although formally excluded from the scope of the Regulation, relations between suppliers and distributors or wholesalers will still be impacted by it since provisions of agreements between businesses under which distributors undertake not to make passive sales (e.g., by blocking or restricting access to a website) for reasons related to a customer’s nationality, place of residence or place of establishment “shall be automatically void”.
The geoblocking regulation therefore impacts distributors twofold: first, directly in their relations with customers (end-user consumers or user-businesses), and second, indirectly in regard to their obligations under the exclusive distribution agreement.
The geoblocking regulation shall have to be coordinated with the existing competition law framework, especially the guidelines on vertical restraints which set up specific rules applying to on-line sales. On-line sales are likened to passive sales. The guidelines mention four examples of practices aiming to indirectly guarantee territorial protection which are prohibited when supplier and exclusive distributor agree:
- that the exclusive distributor shall prevent customers in another territory from visiting their website or shall automatically refer them to the supplier’s or other distributors’ websites,
- that the exclusive distributor shall terminate an online sale if the purchaser’s credit card data show that the purchaser is not from the exclusive distributor’s exclusive territory,
- to limit the share of sales made by the exclusive distributor through the internet (but the contract may provide for minimum offline targets in absolute terms and for online sales to remain coherent compared to offline sales).
- that the exclusive distributor shall pay a higher price for goods intended for sale on the internet than for goods intended for sale offline.
Manufacturers will have to decide whether they adopt a unique European gateway website or multiple local commercial offers, it being known that price differentiation is still possible per category of clients.
Indeed, the new Regulation does not oblige the e-retailers to harmonize their price policies, they must only allow EU consumers to access freely and easily to any version of their website. Likewise, this Regulation does not oblige e-retailers to ship products all over Europe, but just allow EU consumers to purchase goods from whichever website they want and to arrange the shipment themselves, if need be.
Finally on a more contractual level, it is not very clear yet how the new geoblocking rules could impact directly or indirectly the conflict of law rules applicable to consumer contracts, as per the Rome I regulation especially when the consumer will be allowed to handover the product purchased on a foreign website in the country of this website (which imply no specific delivery in the country where the consumer is established).
Therefore B2C general terms and conditions of websites would need to be reviewed and adapted on both marketing and legal sides.
France has for long been seen as a “social trap” by foreign investors… and it was often right.
The last few months have been dedicated to change this, in order to secure more employers, and allow more flexibility (in a negotiated framework) within companies.
On the 14th of February, the Senate has ratified what we call the “Macron” decrees that were issued at the end of September.
Below, a summary of what you need to know in 8 points.
1 – More flexibility in the motivation of dismissal letters
In France, dismissals must be justified. However, to reduce litigation and convictions of employers linked to lack of motives, it is now provided that:
- Before referring to the Judge, employees might ask their employer for more explanation on what the allegations against them are, this to defuse conflict and promote dialogue.
- If the employee did not ask for more explanations, the dismissal will not be judged unjustified for a lack of motives but only an irregularity of procedure might be retained (giving an entitlement to a maximum of 1 month salary as damages).
- The employer might, if asked by their employee or at their own initiative, explain more into details the reason for termination, and this explanation will be taken into account by the Judges in case of litigation (when before, only what was written in the dismissal letter was taken into account without any possibility to give any further explanation).
The time-limit to challenge a dismissal is moreover reduced to 12 months (vs 2 years before) with an aim to rapidly secure the situations.
2 – Some changes in redundancies
At last, a glimmer of hope for employers belonging to an International group: the perimeter of appreciation of the economic reason which is required to make someone redundant, is now restrained to the national territory (except for fraud).
It means that an investor abroad who has financial difficulties on the French territory can, from now on, decide redundancies even if the other companies of the group abroad make profit.
Also, the research for redeployment shall take place within the French territory only and not in the whole group outside France.
3 – Damages scales
In matter of dismissal without any substantial grounds, a compulsory statutory scale is included in the Labour Code.
These new provisions are applicable to any dismissal issued after the 25th of September.
The maximum allowance is set at 20 months of gross salary for someone having 29 years’ seniority or more when being unfairly dismissed.
4 – Termination Indemnity
For all the terminations decided by an employer or for any agreed termination concluded after the 25th of September, the legal indemnity is now:
- 1/4 of gross salary per year of presence for the 10 first years of seniority,
- 1/3 of gross salary per year of presence for more than 10 years of seniority.
Moreover, the minimum seniority required is lowered, from one year to eight months continuous seniority to be able to benefit from this legal termination indemnity.
5 – Home Working
Companies who want to organize work from home (other than occasional) must implement it by a collective agreement or a company charter, specifying the eligible positions to this work mode, the working conditions, etc. If telework is refused, the employer shall explain the reasons for refusal to the employee.
On the contrary, for an occasional work from home, only the parties’ agreement is required without any formality or financial compensation.
6 – Merger of staff representatives in a unique Social and Economic Committee
Until recently, French companies have had Workers’ Representatives (“Délégués du Personnel”), Work’s Council (“Comité d’Entreprise”), Health, Safety and Working Conditions Committee (“CHSCT”) depending on the company’s workforce. Sometimes, these Committees were linked one to another or sometimes just merged.
This implied a complexity and often an obligation for the employer to officially hold several meetings on the same topic with different representatives (no matter if those meetings had the same elected members or not).
Now this is simplified: as soon as companies reach the number of 11 employees on their payroll, they have to implement an Economic and Social Committee (CSE). Its missions and resources are more or less important depending if the threshold of 50 employees is reached or not.
A Company’s agreement might as well enforce the fact that this CSE will also have the power to negotiate agreements (instead of the Unions) and will from now on be named Company Council (inspired by Germany).
7 – Larger possibilities to negotiate Company’s own rules, even if these rules do not comply with Branch Agreements
The announced revolution took place: the Company’s Collective Agreements now prevail over the branch agreements as a general rule (even if some clauses of the Branch Collective Agreements should still be respected).
A brand new occasion for employers to grab this opportunity and to adapt and customize the rules of the game for the needs of their company and their employees, renegotiating for example bonuses (seniority bonus, vacation bonus, …) or some aspects of working time.
Specific working conditions can also be negotiated if they are necessary to the well-functioning of the company.
8 – Opening of company‘s negotiations to the small companies without staff representatives
In companies with less than 50 employees, possibilities to negotiate are now on larger, to allow the managers to negotiate with staff representatives or with employees if there is no Union in the company.
An agreement can be concluded directly with the employees who approve the agreement draft by referendum, especially, in companies with less than 20 employees and without any staff representatives.
Wide possibilities are therefore now open to companies in France, no matter the size, the absence of unions, or the branch of activity, as long as they are willing to negotiate with their personnel.
French law is known to be highly favorable to the enforcement of international arbitral awards (notably those rendered outside of France). This forum should accordingly be considered as a matter of priority if the opposing party holds assets in France.
Are presented below the necessary steps in order to enforce an international arbitral award in France. Please note that some of the steps described are only potential and depend upon the other party’s possible will to resist enforcement.
Step 1: Obtaining exequatur
The award is presented to the Presiding Judge of the Paris Civil Court (Tribunal de Grande Instance de Paris) ex parte who decides whether or not to grant exequatur. There are no briefs to file.
The time required for the Presiding Judge’s answer varies greatly according to the caseload of the Court and his availability. Nevertheless, in case of specific emergency, it is always possible to discuss with the clerk’s office to handle the matter on an urgent basis.
On a practical note, the following documents are required in order to proceed: an original version or certified copy of the award, a certified translation of the award, a copy of the arbitration agreement and a certified translation of the same and one additional copy of each of these documents.
Step 2: Defending exequatur (potentially)
If exequatur is granted or denied, the order may be appealed at the Paris Court of Appeal within one month starting from its service. Additional delay for distance may apply if the appealing party is domiciled or is registered abroad.
If exequatur is granted, it is often the case that the opposing party attempts to question the enforceability of the award in France on the limited grounds of article 1520 of the French Code of Civil Procedure (« CCP »):
- the arbitral tribunal wrongly upheld or declined jurisdiction,
- the arbitral tribunal was irregularly constituted,
- the arbitral tribunal ruled without complying with the mandate conferred upon it,
- the due process requirement was violated, or
- recognition or enforcement of the award would violate French international public policy.
Of interest in the current judicial environment, is new case law of the Paris Court of Appeal allowing limited revision of the fact findings of the arbitral tribunal in cases of alleged bribery (see AD newsflash on the matter).
After filing an appeal, the opposing party is required to file its complete submissions on the appeal within 3 months and the defendant has 3 months to answer from the notification date of the appellant’s submissions (new delay as per the reform of 6 May 2017 in force since September 2017).
Additional submissions may be filed, one additional set is common practice, and a single hearing is usually scheduled to take place around 18 months after the appellant’s initial declaration to the Court.
It is important to note that during such proceedings the award, whose exequatur has been granted, will remain enforceable in France and that accordingly there are no obstacles for the beneficiary of the award to proceed with any seizure unless the defendant makes a specific application to the Court to stay enforcement (Article 1526 CCP).
Step 3: Defending immediate enforceability of the award (potentially)
In order to take into account specific circumstances that would unjustly prejudice the party against whom a decision is enforced, the CCP reserves the possibility to request the Court of Appeal a stay of the enforcement of the award in exceptional circumstances.
In such case, the debtor would have to prove that enforcement would entail seriously detrimental consequences to his rights (Article 1526 §2). The criteria to meet are restrictive. When the beneficiary of the award is a foreign company, it is often requested as an alternative that the monies be put under escrow and not immediately transferred to the beneficiary on the basis that it will be difficult for the opposing party to recover the funds should it be successful in its appeal against the exequatur order.
These proceedings are usually expedited (hearing within one or two months). The opposing party files a request as soon as it has appealed the exequatur order. A brief in answer rapidly needs to be filed depending on the date of the hearing.
Step 4: Seizing assets
Seizing funds
Upon receipt of the exequatur order, a bailiff may be instructed to seize any funds held in bank accounts in France.
The process is that of a “saisie-attribution”, hereinafter referred to as a seizure. The bailiff is instructed to visit the relevant banks’ headquarters and notify that monies corresponding to the award are seized.
Please note that French bailiffs have access to a specific file called FICOBA which provides them with the names of all the banks where the debtor holds accounts.
As soon as a bailiff requests funds from a bank, the bank has an obligation to provide detailed information on the funds available. Most banks are organized to answer the bailiff’s request on the same day.
Once the bailiff has performed the seizure, the amounts are considered to be the creditor’s property and are rendered unavailable to the debtor. This can paralyze the business of the debtor so it is recommended to proceed with caution.
The seizure is then notified to the debtor within 8 days.
The funds remain frozen the time to allow potential challenges by the debtor (one month).
Seizing other kinds of assets
It is possible to seize a variety of other assets under French law of course (real property, company shares, debt obligations etc.). Seizing funds is usually the easiest.
Step 5: Challenge by the opposing party of the seizures (potentially)
The seized party will have a right to challenge the seizures before the Enforcement Judge (“Juge de l’exécution” or “JEX”) within a month of the notification of the seizure.
The arguments that can be raised by the opposing party usually concern the seizure itself and not the validity of the exequatur order as other proceedings are available for that purpose.
Several briefs are usually exchanged and a hearing is held before the JEX.
The JEX’s decision can be appealed. The appeal does not stay enforcement. However, there exist specific proceedings to request the Court of Appeals to stay enforcement under certain conditions (manifestly excessive consequences).
In conclusion, the process is rather straightforward even though there are legitimate recourses available to the debtor and the above may appear pretty technical. This is natural given the potential use of the public force once exequatur is obtained.
Please note that although French Courts are known not to be very generous in terms of awarding legal fees, there have been decisions in which significant amounts have been ordered in this field (for example EUR 600,000 in CA Paris, 26 sept. 2017, no 16/15338). Therefore, in case of success the costs of enforcement are borne by the debtor.
In case of absence of challenges, it usually takes between two to three months to obtain the wire of the funds in favor of the creditor (however as explained above, as soon as the seizure is performed the funds are immediately frozen until all potential recourses have expired).
The author of this post is Flore Poloni
If you want to develop your distribution network abroad, a network of commercial agents is the easiest way, and France is no exception. Before entering into an agency contract ruled by French law, it is nevertheless advisable to know its main features, which will be discussed in this post.
Definition
A commercial agent is a professional representative who negotiates and eventually concludes contracts in the name of and on behalf of his principal.
The French Commercial Code (Article L134-1) defines a commercial agent precisely as:
«L’agent commercial est défini comme un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d’achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d’industriels de commerçants ou d’autres agents commerciaux.»
«The commercial agent is an agent who, as an independent professional, without being bound by an employment contract, is in a permanent position to negotiate and eventually to enter into contracts for the sale, purchase, rent/hire or performance of service in the name and on behalf of manufacturers, industrialists, traders or other commercial agents.»
The definition shows that the agent is independent: he/she is free to organise his/her own employment activity and business (sole agency, limited company etc.). This notion is fundamental, because the more the agent will be present and active in the organisation of the principal activity, the more the contract will be at risk of being requalified as a VRP (employee contract of sales representative) contract by the courts.
In the spirit of the contractual relationship and in the drafting of the contract itself, one must be very careful not to confuse an agent with a VRP since, according to French law, the latter is considered an employee, with greater rights and compensation for termination of contract.
Requirements
The agent must be registered in the register of commercial agents at the Registry of the Commercial Court at his place of domicile.
Contract form
The written form is not mandatory but strongly recommended. Article L134-2 of the Commercial Code provides that each party may request both the contract and addenda to be in writing.
Execution of the contract – important clauses
- Duration: for a fixed period or indefinite.
- Fee: a commission freely defined between the parties.
- Territory: it is very important to define the territory with precision and avoid wide generic clauses such as “world”.
- Exclusive: the clause must specify whether the exclusivity is in relation to the territory and/or on the clientele in a precise manner and if the principal reserves the right to intervene.
- Notice of withdrawal (Article L134-11, paragraph 3 of the Commercial Code): 1 month for the first year, 2 months for the second year, 3 months thereafter.
Post-contract – important clauses
Post-contractual non-competition clauses (Article L134-14 of the Commercial Code) must be in written form and limited to a maximum of 2 years post-contract.
The non-competition clauses restriction (territory, customers, products) must not be so restrictive as to prohibit the agent from working after the end of the contract. Therefore customers and products included in the agreement must be competitors of the type of goods subject of the agency contract. Otherwise, the courts will consider the clause as null and non-existent, entitling the agent to claim compensation.
French law does not provide any compensation for compliance with this clause.
After termination of the contract, the agent is entitled to an indemnity for termination as compensation (Article L134-12 of the Commercial Code). It is a rule of public order, therefore, the clause that provides for an exemption of this entitlement will be considered null and non-existent.
The agent has one year to assert this right to severance indemnity.
There is no requirement of keeping it in writing, however, it is advisable to write a notice of receipt as proof of the termination.
The amount of the compensation is equal to two years of commissions (gross) received by the agent. This is to be seen as a maximum measure and it is up to the principal to prove the reason as to why the agent should be entitled to a lower compensation.
In the event of litigation, the courts will at their discretion evaluate the amount of the request of a maximum of two years.
Cases in which compensation is not due:
- Assignment of the contract to another agent;
- Termination of the contract by the agent;
- Serious non-fulfilment of the contract by the agent.
Serious breach of contract can result from the non-fulfilment of clauses that are defined in the contract as important or must be assessed from time to time with the advice of your lawyer.
Focus: the termination of contract due to retirement
The agent is entitled to the indemnity for termination as compensation also when he/she ceases the activity and retires.
French jurisprudence (in particular the jurisprudence of the Court of Cassation), however, requires a more specific check of the reason for the termination of the contract: the agent must not only claim to be entitled to the retirement pension, he should also assert he is not in physical conditions to be able to work anymore.
Which is the competent French court?
Even if the agent is a trading company, the nature of the contract is still civil. By virtue of this, the competent court varies according to the person who brings the claim.
If the agent is the claimant, he can choose between “tribunal de grande instance” and “tribunal de commerce”.
If, on the other hand, the principal is the claimant, he must also begin the claim before the “tribunal de grande instance”.
France is a great market for franchise networks where almost 2,000 networks are operated. It is one of the most successful scheme of developing business.
Franchisor must mainly respect French regulations on pre-disclosure information and French and EU competition regulations, among others rules. Although the control of the quality of its network and of its brand image is a very important and legitimate issue for franchisor, the latter cannot interfere too much in the day-to-day activity of the franchisees, since franchisees are independent businesses. Therefore relations between franchisors and franchisees are only based on commercial law and not on employment law. However, recent French rules will lead franchisors to implement some employment law rules with their franchisees and franchisees’ employees.
Foreign franchisors operating franchise networks in France must indeed know how to deal with the constraints incurred by the Employment Act (dated 08 August 2016) and its Decree (dated 04 May 2017), and effective as from May 07 2017, relating to the creation of an employee forum for the whole franchise network. Indeed this Social Dialogue Committee can impact deeply the organization of franchise networks.
First of all, only networks in which operators are bound by franchise agreements are concerned by the new social dialogue committee. Accordingly, trademark licensing and distribution contracts appear not to be included. Franchise agreements should be understood as sui generis contracts that are the sum of three separate agreements: a trademark licensing agreement, a know-how licensing agreement, and a commercial or technical assistance agreement. However, the Act of 08 august 2016 creates some confusion by stating that the franchise agreements concerned by this Social Dialogue Committee are the agreements “referred to in article L330-3 of the French Commercial Code”, although not only does that article not define what a franchise contract is, it may also apply to other contracts (exclusive distribution agreements) to determine whether the network fall into the scope of this Act.
Furthermore, according to the Act, only specific franchise agreements including “clauses that have an impact on work organisation and conditions in franchisee businesses” are concerned. The Act does not define such clauses although, on the one hand, whether a social dialogue committee is called for depends on identifying such clauses, and on the other hand, franchisees are in essence independent of the franchisor when organising and managing their business, including in employment matters. It will therefore be necessary to conduct an employment audit of all franchise agreements (for instance, what happens if a clause sets opening hours or defines a dress code?) to determine whether the network fall into the scope of this Act.
Finally, a Social Dialogue Committee is only called for in franchise networks employing at least 300 staff working (full-time) in France. It would seem that this does not include the franchisor’s employees or the employees of operators that are not bound to the network’s head by a franchise agreement (e.g., operators bound by a trademark licensing contract).
An implementation implying a long negotiation
Even where the legal requirements are met, franchisors are under no obligation to set up a Social Dialogue Committee spontaneously. However, once a trade union has called for an Social Dialogue Committee to be set up, the franchisor does have an obligation to take part actively in the negotiations initiated by that trade, to check with all the franchisees whether the number of employees in its network reaches the 300 threshold, and then to set up a “negotiation forum” made of representatives of employees (trade unions) and of employers (franchisor and franchisees) to negotiate an agreement creating and organizing the future Social Dialogue Committee.
The negotiations with trade unions and franchisees will end, within six months, in an agreement subject to the consent of franchisor, trade union(s) and at least of 30% of the franchisees (representing 30 % of the employees of the network). This agreement shall define the Social Dialogue Committee’s composition, how its members are designated, their term of office, the frequency of meetings, if and how many hours employees may dedicate to the committee, the material or financial means required for the committee to fulfill its purpose, and how running and meeting costs and representatives’ travel and subsistence expenses are handled, among other things. This last issue could be a major concern not only for franchisor but also for franchisees-employers. Failing to reach such agreement, the Decree imposes the creation of the Social Dialogue Committee with several strict and minimum provisions which could create unreasonable burden for the franchisor.
Once set up, internal rules define precisely how the Social Dialogue Committee is to function (required majorities, notices of meeting and referral, publication of debates, etc.).
Much ado about nothing?
The Social Dialogue Committee does not have the authority to investigate cases or to issue binding rulings, but the Social Dialogue Committee must be kept informed of franchisees joining or leaving the network and “of the franchisor’s decisions liable to impact the volume and structure of staff, working time, or the employment, work, and vocational training conditions of the franchisees’ employees”.
The Social Dialogue Committee may also make suggestions for improving such conditions throughout the network.
The impact of the Social Dialogue Committee is eventually rather limited, but franchisors have to master and control seriously the implementation of the rules in order to avoid loss of times and energy by their own franchisees and a disorganisation of its network.