France – Sudden termination of international contract

17 June 2024

  • France
  • Contracts

Article 442-1.II of the French Commercial Code (former Article L. 442-6.I.5 °) sanctions the termination by a trader of a written contract or an informal business relationship without giving sufficient written prior notice. Over the last twenty years, this article became the recurring legal basis for all compensation actions (up to 18 months of gross margin, plus other damages) when a commercial relationship or a contract ends (totally or even partially).

Therefore, a foreign trader who contracts with a French company should try not to fall under the aegis of this rule (part I) and, if it cannot, should understand and control its implementation (part II).

In a nutshell:

How can a foreign company avoid or control the risk linked to the “sudden termination of commercial relations” set by French law? Foreign companies doing business with a French counterpart should:

– enter, as soon as possible, into a written (frame) agreement with their French suppliers or customers, even for a very simple relation and;

– stipulate a clause in favour of foreign court or arbitration and foreign applicable law while, failing to choose it, they would rather be subject to French courts and laws;

How can a foreign company master the risk linked to the “sudden termination of commercial relations” set by French law? Foreign companies doing business with a French counterpart should:

  • know that this article applies to almost all type of commercial relationship or contracts, whether written or not, fixed-term or not;
  • check whether its relation/contract is sufficiently long, regular and significant and whether the other party has a legitimate belief in the continuation of this relation/contract;
  • give a written notice of termination or non-renewal (or even of a major modification), which length takes mainly into account the duration of the relation, irrespectively of the length of the contractual notice;
  • invoke, with cautiousness, force majeure and gross negligence of the party, to set aside “sudden termination”;
  • anticipate, in case of insufficient notice, a compensation which amount is the product of the average monthly gross margin per the length of non-granted prior notice.

How to avoid the application of the French “Sudden Termination” rule?

In international matters, a foreign company must anticipate whether its relationship will be subject or not to French law before terminating a contract or a business relationship and, in case of dispute, whether it will be brought before a French court or not.

What will be the law applicable to “Sudden Termination”?

It is quite difficult for a foreign company to correctly grasp the French legal framework of conflict of laws rules applicable to “sudden termination”. In a ruling of September 19, 2018 (RG 16/05579, DES/ Clarins), the Court of appeal of Paris made, by an implicit reference to the Granarolo EU ruling (07 14 16, N°C196/15) an extension of the contractual qualification to most of the business relationships which will improve foreseeability in order for a foreign company to try to exclude French law and its “sudden termination” rule.

Sudden termination of a written contract or of a “tacit contractual relationship”

According to Rome I Regulation (EC No 593/2008, June 17 2008) on the law applicable to contracts:

– In case of choice of a foreign law by the parties: The clause selecting a foreign applicable law will be valid and respected by French judges (subject to OMR, see below), provided that the choice of law by the parties is express or certain.

– In case of no choice by the parties: French law will likely to be declared applicable as it might be either the law of the country where is based the distributor/franchisee, etc. or the law of the country where the party who is to provide the service features of the contract has its domicile.

Sudden termination of a “non-tacit contractual relationship”

In case of informal relationship (i.e. orders placed from time to time), French judges would retain the tort qualification and will refer to the Rome II Regulation (No 864/2007, July 11 2007) on the law applicable to non-contractual obligations..

– In case of choice of a foreign law by the parties: a properly drafted choice of foreign law clause should be implemented by a French judge, provided that it expressly includes tort cases.

– In case of no choice of law by the parties: French law will likely to be declared applicable as it might be the law of the country where the damage occurs (regardless of the place of the causing event or that of the indirect consequences), which is the place of the head office where the French victim suffers the consequences of the termination.

“Sudden Termination” rule, a French Overriding Mandatory Rule?

The position of French courts is quite vague and unsatisfactory, and this has been the case for a long time. To make it short: the Commercial Court of Paris judges that “sudden termination” is not an OMR, the Court of appeal of Paris (sole French appellate court in charge of “sudden termination” cases) is also not in favour of the OMR qualification on the grounds that the text “protects purely private economic interests” (CA Paris, pôle 5, ch. 5, Feb 28. 2019, n° 17/16475 / CA Paris, pôle 5, ch. 5, Oct 8. 2020, n°17/19893). Recently, the Paris Court of Appeal reaffirmed that the rules on sudden termination of established commercial relations are not an OMR (Court of appeal Paris, March 11, 2021, n° 18/03112).

The French Supreme Court has never explicitly addressed the issue (OMR or not OMR). Indeed, the French Supreme Court ruled in the Expedia case (Cass. com., July 8, 2020, n°17-31.536) that the provisions of the former article L. 442-6, I, 2º and II, d), about “significant imbalance” (which is in the same set of rules than “Sudden termination”) are OMR. However, this qualification should be limited to the specific action brought by the Ministry of Finance and not be applicable to an action by a private party. Moreover, some courts may be tempted to invoke the provisions of French law n°2023-221 (March 30, 2023, aka Egalim III) to qualify Sudden termination rule as an OMR, however this text (article L 444-1.A Commercial code) does not quote expressly OMR and set no justification whatsoever to set such a qualification.

Consequently, if a claim for “sudden termination” is brought to a French court, there is still a  risk that the latter would exclude the applicable foreign law and replace it with the regime resulting from the “sudden termination” of Article L 442-1. II. However, to avoid this risk, a foreign company would better not only choose a foreign governing law but also stipulate that the dispute will be brought before a foreign judge or an arbitral tribunal.

How to avoid jurisdiction of French court over a “Sudden Termination” claim?

“Sudden Termination” claim and intra EU co-contractor

The ECJ ruling (Granarolo, July 14, 2016, N°C196/15) created a distinction between claims occurring from:

– written framework contract or tacit contractual relationship (existing only if the body of evidences listed by the ECJ are identified by national judges, i.e. length of relation and commitments recognized to each other, such as exclusivity, special price or terms of delivery or payment, non-competition, etc.): such claim has a contractual nature according to conflict of jurisdiction rules under Brussels I recast Regulation;

– informal relationship which is a non–tacit contractual relationship (i.e. orders placed from time to time): such a request has a tort nature under Brussels I recast ;

To be noted: the so-called Egalim III law has no impact on the EU rules on jurisdiction clauses.

(a) Who is the Judge of the “sudden termination” of a written contract or of a “tacit contractual relationship”?

– Jurisdiction clause for the benefit of a foreign court will be enforced by French courts, even though it is an asymmetrical clause (Court of cassation, October 7, 2015, Ebizcuss.com / Apple Sales International).

– In case of lack of choice of court clause, French courts are likely to have jurisdiction if the French claimant bringing a case based on “sudden termination» is the service provider, such as distributor, agent, etc. (see ECJ Corman Collins case, 19 12 13, C-9/12, and article 7.1.b.2 of Brussels I recast°).

(b) Who is the Judge of the “sudden termination” of a “non- tacit contractual relationship”?

– We believe that French courts may continue to give effect to a jurisdiction clause in tort case, especially when it expressly encompasses tort litigation (Court of cassation, 1° Ch. Civ., January 18, 2017, n° 15-26105, Riviera Motors / Aston Martin Lagonda Ltd).

– In case of lack of choice of court clause, French courts will have jurisdiction over a “sudden termination” claim as the judge of the place where the harmful event occurred (art. 7.3 of Brussels I recast), which is the place where the sudden termination has effect…i.e. in France if the French company is the victim.

“Sudden Termination” claim and Non-EU co-contractor

The Granarolo solution will not ipso facto apply if a French victim brings a claim to French courts, based on a “sudden termination” made by a non-EU company. In non-EU relations, French judges could continue to retain only the tort qualification. In such a case, French courts may keep their jurisdiction based on the place where the harmful event occurs.

Jurisdiction clause to a foreign court may be recognized in France (even for tort-based claims), provided that this jurisdiction clause is valid according to either a bilateral international convention or to the Hague Convention of 30 June 2005 on choice of court agreements. Otherwise, according to Egalim III law, imperative jurisdiction might be attributable to French courts.

 

“Sudden Termination” claim and arbitration

Stipulating an ad hoc or institutional arbitration clause is probably the safest solution to avoid the jurisdiction of French courts. Ideally, the clause will fix the seat of the arbitral tribunal outside France. According to the principle of competence-competence of the arbitrators, French courts declare themselves incompetent, unless the arbitration clause is manifestly void or manifestly inapplicable, regardless of contract or tort ground (see, in particular, Paris Court of Appeal, 5 September 2019, n°17/03703). The so-called “Egalim III” law has no impact on arbitration clauses.

Conclusion: Foreign companies should not leave open the Jurisdiction and governing Law issues. They must negotiate a safe harbour, otherwise a French victim of a termination will likely to be entitled to bring a “sudden termination” claim in front of French judges (see what happen below in Part 2)

How to master the “Sudden Termination” French rules?

When French law is applicable, the foreign company will face the legal regime of article L442 -1.II of the French Commercial Code sanctioning “sudden termination”. As a preliminary remark, it is important to know, above all, that the implementation of the liability for “sudden termination” is the consequence of the lack of a notice or a too short notice. Thus, this scheme does not lay down an automatic compensation rule. In other words, as soon as reasonable notice is given by the author of the termination, liability on that basis can be dismissed.

The prerequisite for “Sudden Termination”: an established commercial relationship

All contracts are covered by this legal regime, except for contracts whose regulations provide for a specific notice of termination, like commercial agency contracts and transport of goods by road subcontracts.

First, there must be a relationship that can be proven by a written contract or de facto, by behaviour of the parties. Article L.442-1 II of the French Commercial Code covers all “commercial” relationships and not only “contractual ones so that such relationship may be based on a succession of tacitly renewed contracts or a regular flow of business, materialized by multiple orders. This was recently recalled by the Supreme Court (Supreme Court, February 16, 2022, n° 20-18.844)

Second, this relationship must have an established character. There is no legal definition, but this notion has been defined year after year by case law which has established an objective criterion and a more subjective one.

(a) The objective criterion implies a sufficiently long, regular and significant relationship between the two parties. The duration of the relationship is the most important criterion. The relationship must also be regular, that is, it must not have been interrupted (too often or too long). The relationship must ultimately be meaningful and represent a serious flow of business between the parties, in volume or value.

(b) The subjective test focuses primarily on the legitimate belief of the victim of the rupture in the continuation of the contract / the relationship that is based on factual elements, such as investment requests, budgets over several years, etc. Conversely, it is on the basis of the finding of a lack of legitimate belief in a common future that the terminating party can prove the absence of a stable character when he has resorted, on several occasions, a call for tenders (unless it is a trick).

Anticipating a “Sudden Termination” claim

(a) The termination may be total or partial

The total rupture is materialized by a complete stop of the relations, for example ending the contract, stopping the sending of orders by the purchaser or the recording of orders by the supplier.

The Supreme Court recently recalled that a significant drop in sales with a partner must be considered as a partial rupture of the relationship (February 16, 2022, n° 20-18.844, cited above). But the most complicated situation to deal with is the so-called partial rupture that will be deduced from a modification of elements that partly impacts the relationship but does not reduce it to nothing (ex.: a price increase or decrease, a change in the terms of payment or delivery).

(b) The termination must be subject to a reasonable written prior notice

The notice must be notified in writing. The absence of written notice is already a breach in itself. The notification must clearly reflect the willingness of a party to sever the relationship in whole or in part, which must be clearly identified. The notification must also clearly identify the date on which the relationship will end.

Thus, an ambiguity on the notice period (e.g if the termination of an agreement is notified, whilst offering to maintain certain prices and payment terms, in the meantime) is considered as an insufficient termination notice (French Supreme Court, January 29, 2013, n° 11-23.676).

Parties must distinguish between the letter of formal notice for default and the subsequent notification of the breach, giving notice (if applicable). During the period of notice, parties must fully comply with all contractual conditions.

This principle also applies to distribution contracts subject to specific French rules imposing annual or multi-year negotiation obligations. In fact, the Court of cassation has ruled that “when the conditions of the commercial relationship established between the parties are subject to annual negotiation, modifications made during the notice period which are not so substantial as to undermine its effectiveness do not constitute a brutal breach of that relationship” (Cass. com., Dec. 7, 2022, n° 19-22.538).

However, it’s not necessary to mention the reasons why the commercial relationship is terminated is not a fault or breach of the relationship. In fact, French courts consider that “the fact that the given reason to terminate was false does not in any way present the terminating party from terminating the commercial relationship” (Versailles Court of Appeal, June 10, 1999).

The duration of the prior notice to be respected is not defined by French law which did not pose precise rule until the reform 2019. If several criteria are stated by case law, it should be noted that the most important criterion is the duration of the relationship. Judges also take into account the share of turnover achieved by the victim, the existence or not of a territorial exclusivity, the nature of the products and the sector of activity, the importance of the investments made by the victim especially to the relationship in question, and finally the state of economic dependence. Economic dependence is defined as the impossibility for a company to have a solution that is technically and economically equivalent to the contractual relations it has established with another company. Case law considers this to be an aggravating factor justifying a longer termination notice.

The minimum notice period must be notified at the time of notification of termination. As a consequence, events that affect the victim after the notification, both positively (conclusion of a new contract) and negatively (loss of another custome), will not be taken into account by the judge, at the time of ruling, when assessing the “brutality” of the termination.

The length of the notice given by the judges is very variable. The appreciation of notice is made on a case-by-case basis. It is very difficult to give a golden rule, even though roughly for each year of relationship, a month’s notice might be due (to modulate up or down depending on the other criteria in the relationship). But way of illustration, however, the following case law may be cited:

  • Paris Court of Appeal , Feb.9, 2022: 16-year relationship with 15 months’ notice;
  • Paris Court of Appeal, Jan.20, 2022: 12-year relationship with 8 months’ notice;
  • Paris Court of Appeal, Oct. 25, 2022: 16-year relationship with 18 months’ notice;
  • Paris Court of Appeal , Feb. 23, 2022: 17-year relationship with 11 months’ notice;
  • Paris Court of Appeal, Sept. 21, 2022: 5-year relationship with 14 months’ notice.

Since the Order of April 24, 2019, which limits the length of reasonable notice to a maximum of 18 months, if the notice period granted by a party is 18 months, it cannot be held liable for a sudden termination. However, much of the litigation remains uncertain, as only exceptionally long or particularly sensitive relationships led, prior to 019, to the award of more than 18 months’ notice. Ordinance of April 24, 2019, limits to 18 months the maximum period of notice reasonably due under Article L 442-1.II. But much of the litigation will remain uncertain since only relations of exceptional longevity or particularly sensitive, could have led to the allocation of a notice higher than 18 months.

Judges are not bound by the contractual notices stipulated in the contract. But if the author of the breach also violated the terms and conditions of termination provided for by contract, the victim may seek the responsibility of the author both on the tort basis of the sudden rupture and also on the basis of the breach of a contractual obligation.

Cases in which “Sudden Termination” is ruled out

The legal regime provides for two cases, and the case-law seems to have imposed others.

(a) The two legal exceptions are Force majeure (very rarely consecrated by the courts) and the fault of the victim of the termination, case-law having added that it must be a serious violation (“faute grave”) of a contractual commitment or a legal provision (such as non-respect of an exclusivity, a non-compete, a confidentiality or a change of control duty, or non-payment of amounts due contractually).

The judges consider themselves, of course, not bound by a termination clause defining what constitutes serious misconduct. In any case the party who terminates for serious misconduct must clearly notify it in its letter of termination. Above all, serious misconduct leads to a lack of notice, therefore, if the terminating party alleges serious misconduct but grants notice, whichever it may be, judges may conclude that the fault was not serious enough.

Thus, the seriousness of the misconduct must be motivated by judges in their rulings. Noting that the contract was breached after two formal notices is not sufficient (Cass. com., Feb 16. 2022, n° 20-18.844).

However, the Court of Cassation considers that “even in the case of serious misconduct justifying the immediate termination of the commercial relationship, the other party remains free to give the other party a notice” (Cass. Com., Oct. 14 2020, n°18-22.119).

(b) In recent years, case-law has added other cases of liability waiver. This is the case when the rupture is the consequence of a cause external to the author of the rupture, such as the economic crisis, the loss of its own customers or suppliers, upstream or downstream.

For example, in 2021 the Court of cassation has ruled that “the business partner is not entitled to an unchanged relationship and cannot refuse any adaptation required by economic changes” (Com, Dec 01, 2021, n°20-19.113). In fact, to be attributable to an economic player, a termination must be free and deliberate. This is not the case if termination is imposed by the economic situation.

However, adding a liability exemption clause in a contract, aimed at waiving destinated to escape the penalties of article L. 442-1, is without consequences on the judge’s appreciation.

Judges have also excluded “sudden termination” in the hypothesis of the end of the first period of a fixed-term contract, whatever its duration is: the first renewal of a contract, constitutes a foreseeable event for the victim of the rupture, which excludes the very notion of brutality; but once the contract has been renewed at least once, judges can subsequently characterize the victim’s legitimate belief in a new tacit renewal.

Compensation for “Sudden Termination”

Judges only compensate for the detrimental consequences of the brutality itself of the breach but do not compensate, at least in the context of article L442 -1.II, for the consequences of the breach itself.

The basic rule is very simple: it is necessary to determine the length of the notice which should have been granted, from which the notice actually granted is deducted. This net notice is multiplied by the average monthly gross margin of the victim, or more often the so called margin on variable costs (i.e. the turnover minus costs disappearing with non-performance of the contract/relation). Defendant should not hesitate to ask for the full accountancy evidences, especially to identify (lower) margin rates, or even for a judicial expertise on those accounting elements. In general, the base of the average monthly margin consists of the last 24 or 36 months.

The compensation calculated on the average margin is, in general, exclusive of any other compensation. However, the victim can prove that it has suffered other losses as a consequence of the brutality of the rupture. Such as dismissals directly caused by this brutality or the depreciation of investments made recently by the victim.

Some practical tips when considering to anticipate “Sudden Termination”

Even though the legal regime is still ambiguous and the case-law terribly casuistic which prevents to release strong guidelines, here are some practical tips when a company plans to terminate a relationship / contract:

  • in the case of a fixed-term contract renewable tacitly, the notification of non-renewal must be anticipated well in advance of the beginning of the contractual notice in order to avoid being in a situation where it is necessary to choose between not renewing the contract with a notice that is not sufficient or agree to see the contract renewed itself for a new term;
  • commercial teams must be made aware of the risk of partial sudden termination when they change the conditions of execution of a commercial relationship / contract too radically;
  • in some cases, it may be useful to send a pre-notice of termination with a “notice proposal” in order to try to validate this notice with the other party;
  • it may also be useful, in certain relationships, to notify the end of the relationship with different lengths of notice depending on the nature of the product lines;
  • Finally, the best way is to conclude an end-of-relation protocol, fixing the duration of the notice as well as, if necessary, the progressive decline of the orders, the whole within the framework of a settlement agreement which definitively waives any claim, including “sudden termination”.

Sudden termination regime shall be taken into consideration when entering into the final phase of a duration relationship: the way in which the contract (or de facto relationship) is terminated must be carefully planned, in order to manage the risk of causing damages to the counterparty and being sued for compensation.

PFAS are chemicals that have been used in industry for over 50 years. Between 4,000 and 5,000 varieties are used for various everyday consumer applications, and they are renowned for their non-stick, waterproofing, and heat-resistant properties. They have come under scrutiny in recent years, and are covered by European regulations, as they are in the USA, where the public authorities have imposed maximum use values, as well as reporting obligations. EU Regulation 2019/1021 (POP) restricts the production and use of certain categories of PFAS in specific industries or above certain values and their use with food products. France has gone further, regulating the levels of discharges into watercourses.

Scientific research suspects that PFAS cause illnesses such as cancer and reproductive disorders. Given the extent of contamination not only in everyday products but also in the environment, particularly waterways, the issue is likely to pose major public health problems in the years to come. This concern is more pressing given that PFASs are considered ‘eternal pollutants’, as there is currently no way of eliminating them from the environment.

The impact on companies’ and insurers’ liability is already significant. In the USA, more than 6,000 lawsuits have been filed since 2005. Three groups have already paid more than USD 1.2 billion in settlements due to contamination, and another group has paid more than USD 10 billion to end a class action.

In France, the Metropole of Lyon has brought a summary expert appraisal action against two chemical companies before considering bringing a liability action.  In addition, several criminal complaints have been lodged for endangering the lives of others and damaging the environment.

Under French law, companies and their insurers could be liable on various legal grounds. In addition to ordinary civil liability law – based on article 1240 of the Civil Code – the special system of liability for defective products could also serve as a basis for a liability action (articles 1245 et seq. of the Civil Code), with French law defining a defect as any product that does not offer the safety that can legitimately be expected.

Although it is currently difficult to identify a causal link with an identified disease, asbestos-related case law has shown in the past that victims can take action if they can demonstrate that they suffered anxiety-related harm as a result of their exposure to the product, even if they are not positively suffering from a disease at the time of their claim.

In addition, the reporting obligations imposed by the public authorities will undoubtedly facilitate the filing of liability actions by facilitating the identification of the emitters and users of these pollutants.

Insurers are directly affected by this phenomenon, which for them constitutes an “emerging” risk (“silent cover”) because, for the most part, this risk was not identified when the policy was taken out, which exposes them directly and is all the more problematic because insurance premiums have not been able to take such a risk into account.

Civil liability or professional indemnity insurance policies, especially if they are drafted with “all risks except” clauses (“tous risques sauf” in French legal vocabulary, i.e. covering all liability risks vis-à-vis third parties except those strictly listed), as well as those including clauses relating to environmental risks, are particularly targeted.

Lloyd’s has already published model exclusion clauses for the attention of insurers, although such clauses can obviously only cover future insurance contracts or endorsements:

https://www.lmalloyds.com/LMA_Bulletins/LMA23-039-SD.aspx

The clauses contained in insurance policies must be drafted with particular care, considering each country’s specific features. In France, for example, to be enforceable against the insured, clauses must be “formal and limited”, which means that the exclusion must be both clearly expressed and that it must be possible to determine its content perfectly.

For example, the Court of Cassation recently ruled that the use of the terms “such as” or “in particular” (“tells que” “en particulier”) in an exclusion clause led to confusion in the interpretation of the exclusion clause, rendering it invalid (Civ. 2e, 26 Nov. 2020, no. 19-16.435).  There was also a debate on the validity of an exclusion clause relating to bodily injury caused by asbestos, a risk which at the time had not been identified by insurers, who subsequently excluded it from most policies (Cass. 2e civ., 21 Sept. 2023, nos. 21-19801 and 21-19776). Similarly, policies should clearly indicate whether cover is provided based on a harmful event or based on a claim (i.e “base dommage” or “base reclamation”, which indicates if the risk is covered, depending on if the damage happened during the policy was valid, or if it depends on the moment when the risk was notified by the insured during such period).

One thing is sure: the risks associated with PFAS and claims are only just beginning to emerge in Europe, where the conditions for group actions have recently been extended with EU Directive 2020/1828, which came into force on 25 June 2023 and is currently the subject of a draft law under discussion in the French Parliament with a view to its transposition.

Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.

However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.

 

Key points to remember 

  • Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
  • This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
  • Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
  • Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
  • Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.

 

The law of June 9, 2023, regulating influencer activity  

The definition of influencer professions

The law of June 9, 2023, provides two essential definitions for influencer activities:

  • Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
  • The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.

 

The obligations imposed on commercial messages created by the influencer

The law sets forth obligations that influencers must adhere to regarding their publications: 

  • Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):

    – The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
    – The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).

  • Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:

    – health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
    – non-domestic animals, unless it concerns an establishment authorized to hold them;
    – financial: contracts, financial products, and services;
    – sports-related: subscriptions to sports advice or predictions;
    – crypto assets: if not from registered actors or have not received approval from the AMF;
    – gambling: their promotion prohibited for those under 18 years old and regulated by law;
    – professional training: their promotion is not prohibited but regulated.

 

The accountability of influencer behaviour

The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:

  • Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
  • Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).

 

The accountability of other actors in the commercial influence ecosystem

 

Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.

Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.

 

French regulation and international influencers

 

Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.

Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.

However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).

 

The other regulations governing the activity of influencers

 

The European regulations

The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.

The «soft law»

As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.

 

The special status of child influencers

The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.

 

The status and remuneration of influencers: uncertainty persists

 

Despite the diversity of regulations applicable to influencers, none address their status and remuneration.

The status of the influencer

In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.

The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:

  • In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
  • In the case of a service contract, the influencer will fall under the regime for self-employed workers.

 

The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.

 

The remuneration of the influencer

The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.

Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.

 

The influencers… in the spotlight

The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.

As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).

On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising. 

In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.

Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.

SUMMARY: In large-scale events such as the Paris Olympics certain companies will attempt to “wildly” associate their brand with the event through a practice called “ambush marketing”, defined by caselaw as “an advertising strategy implemented by a company in order to associate its commercial image with that of an event, and thus to benefit from the media impact of said event, without paying the related rights and without first obtaining the event organizer’s authorization” (Paris Court of Appeal, June 8, 2018, Case No 17/12912). A risky and punishable practice, that might sometimes yet be an option yet.

Key takeaways

  • Ambush marketing might be a punished practice but is not prohibited as such;
  • As a counterpart of their investment, sponsors and official partners benefit from an extensive legal protection against all forms of ambush marketing in the event concerned, through various general texts (counterfeiting, parasitism, intellectual property) or more specific ones (e.g. sport law);
  • The Olympics Games are subject to specific regulations that further strengthen this protection, particularly in terms of intellectual property.
  • But these rights are not absolute, and they are still thin opportunities for astute ambush marketing.

The protection offered to sponsors and official partners of sporting and cultural events from ambush marketing

With a budget of over 4 billion euros, the 2024 Olympic and Paralympic Games are financed mostly by various official partners and sponsors, who in return benefit from a right to use Olympic and Paralympic properties to be able to associate their own brand image and distinctive signs with these events.

Ambush marketing is not punishable as such under French law, but several scattered texts provide extensive protection against ambush marketing for sponsors and partners of sporting or cultural continental-wide or world-wide events. Indeed, sponsors are legitimately entitled to peacefully enjoy the rights offered to them in return for large-scale investments in events such as the FIFA or rugby World Cups, or the Olympic Games.

In particular, official sponsors and organizers of such events may invoke:

  • the “classic” protections offered by intellectual property law (trademark law and copyright) in the context of infringement actions based on the French Intellectual Property Code,
  • tort law (parasitism and unfair competition based on article 1240 of the French Civil Code);
  • consumer law (misleading commercial practices) based on the French Consumer Code,
  • but also more specific texts such as the protection of the exploitation rights of sports federations and sports event organizers derived from the events or competitions they organize, as set out in article L.333-1 of the French Sports Code, which gives sports event organizers an exploitation monopoly.

The following ambush marketing practices were sanctioned on the abovementioned grounds:

  • The use of a tennis competition name and of the trademark associated with it during the sporting event: The organization of online bets, by an online betting operator, on the Roland Garros tournament, using the protected sign and trademark Roland Garros to target the matches on which the bets were organized. The unlawful exploitation of the sporting event, was punished and 400 K€ were allowed as damages, based on article L. 333-1 of the French Sports Code, since only the French Tennis Federation (F.F.T.) owns the right to exploit Roland Garros. The use of the trademark was also punished as counterfeiting (with 300 K€ damages) and parasitism (with 500 K€ damages) (Paris Court of Appeal, Oct. 14, 2009, Case No 08/19179);
  • An advertising campaign taking place during a film festival and reproducing the event’s trademark: The organization, during the Cannes Film Festival, of a digital advertising campaign by a cosmetics brand through the publication on its social networks of videos showing the beauty makeovers of the brand’s muses, in some of which the official poster of the Cannes Film Festival was visible, one of which reproduced the registered trademark of the “Palme d’Or”, was punished on the grounds of copyright infringement and parasitism with a 50 K€ indemnity (Paris Judicial Court, Dec. 11, 2020, Case No19/08543);
  • An advertising campaign aimed at falsely claiming to be an official partner of an event: The use, during the Cannes Film Festival, of the slogan “official hairdresser for women” together with the expressions “Cannes” and “Cannes Festival”, and other publications falsely leading the public to believe that the hairdresser was an official partner, to the detriment of the only official hairdresser of the Cannes festival, was punished on the grounds of unfair competition and parasitism with a 50 K€ indemnity (Paris Court of Appeal, June 8, 2018, Case No 17/12912).

These financial penalties may be combined with injunctions to cease these behaviors, and/or publication in the press under penalty.

An even greater protection for the Paris 2024 Olympic Games

The Paris 2024 Olympic Games are also subject to specific regulations.

Firstly, Article L.141-5 of the French Sports Code, enacted for the benefit of the “Comité national olympique et sportif français” (CNOSF) and the “Comité de l’organisation des Jeux Olympiques et Paralympiques de Paris 2024” (COJOP), protects Olympic signs such as the national Olympic emblems, but also the emblems, the flag, motto and Olympic symbol, Olympic anthem, logo, mascot, slogan and posters of the Olympic Games, the year of the Olympic Games “city + year”, the terms “Jeux Olympiques”, “Olympisme”, “Olympiade”, “JO”, “olympique”, “olympien” and “olympienne”. Under no circumstances may these signs be reproduced or even imitated by third-party companies. The COJOP has also published a guide to the protection of the Olympic trademark, outlining the protected symbols, trademarks and signs, as well as the protection of the official partners of the Olympic Games.

Secondly, Law no. 2018-202 of March 26, 2018 on the organization of the 2024 Olympic and Paralympic Games adds even more specific prohibitions, such as the reservation for official sponsors of advertising space located near Olympic venues, or located on the Olympic and Paralympic torch route. This protection is unique in the context of the Olympic Games, but usually unregulated in the context of simple sporting events.

The following practices, for example, have already been sanctioned on the above-mentioned grounds:

  • Reproduction of a logo imitating the well-known “Olympic” trademark on a clothing collection: The marketing of a collection of clothing, during the 2016 Olympic Games, bearing a logo (five hearts in the colors of the 5 Olympic colors intersecting in the image of the Olympic logo) imitating the Olympic symbol in association with the words “RIO” and “RIO 2016”, was punished on the grounds of parasitism (10 K€ damages) and articles L. 141-5 of the French Sports Code (35 K€) and L. 713-1 of the French Intellectual Property Code (10 K€ damages) (Paris Judicial Court, June 7, 2018, Case No16/10605);
  • The organization of a contest on social networks using protected symbols: During the 2018 Olympic Games in PyeongChang, a car rental company organized an online game inviting Internet users to nominate the athletes they wanted to win a clock radio, associated with the hashtags “#JO2018” (“#OJ2018”), “#Jeuxolympiques” (“#Olympicsgame”) or “C’est parti pour les jeux Olympiques” (“let’s go for the Olympic Games”) without authorization from the CNOSF, owner of these distinctive signs under the 2018 law and article L.141-5 of the French Sport Code and punished on these grounds with 20 K€ damages and of 10 K€ damages for parasitism (Paris Judicial Court, May 29, 2020, n°18/14115).

These regulations offer official partners greater protection for their investments against ambush marketing practices from non-official sponsors.

Some marketing operations might be exempted

An analysis of case law and promotional practices nonetheless reveals the contours of certain advertising practices that could be authorized (i.e. not sanctioned by the above-mentioned texts), provided they are skillfully prepared and presented. Here are a few exemples :

  • Communication of information for advertising purposes: The use of the results of a rugby match and the announcement of a forthcoming match in a newspaper to promote a motor vehicle and its distinctive features was deemed lawful: “France 13 Angleterre 24 – the Fiat 500 congratulates England on its victory and looks forward to seeing the French team on March 9 for France-Italy” (France 13 Angleterre 24 – la Fiat 500 félicite l’Angleterre pour sa victoire et donne rendez-vous à l’équipe de France le 9 mars pour France-Italie) the judges having considered that this publication “merely reproduces a current sporting result, acquired and made public on the front page of the sports newspaper, and refers to a future match also known as already announced by the newspaper in a news article” (Court of cassation, May 20, 2014, Case No 13-12.102).
  • Sponsorship of athletes, including those taking part in Olympic competitions: Subject to compliance with the applicable regulatory framework, particularly as regards models, any company may enter into partnerships with athletes taking part in the Olympic Games, for example by donating clothing bearing the desired logo or brand, which they could wear during their participation in the various events. Athletes may also, under certain conditions, broadcast acknowledgements from their partner (even if unofficial). Rule 40 of the Olympic Charter governs the use of athletes’, coaches’ and officials’ images for advertising purposes during the Olympic Games.

The combined legal and marketing approach to the conception and preparation of the message of such a communication operation is essential to avoid legal proceedings, particularly on the grounds of parasitism; one might therefore legitimately contemplate advertising campaigns, particularly clever, or even malicious ones.

Under what conditions can company officers be dismissed in France?

This depends on the form of the company.

Let us take the most common forms of commercial companies in France.

The manager of a limited liability company (« société à responsabilité limitée », SARL) can only be dismissed for due reason, i.e. if he or she has committed a fault, or if his or her dismissal is necessary to protect the company’s interests.

In a public limited company (« société anonyme », SA), the members of the board of directors and the chairman of the board of directors can be dismissed “ad nutum”, i.e. at any time and without having to give any reason. This rule may not be departed from. The chief executive officer, on the other hand, can only be dismissed for due reason.

In simplified joint stock companies (« société par actions simplifiée », SAS), a company form created in 1994, officers are in principle be dismissed “ad nutum”, but the articles of association may derogate from this rule and provide that they may only be dismissed for due reason.

A recent decision of the Cour de cassation, the highest judicial court in France, is of particular interest.

It concerns simplified joint stock companies (“SAS”), the most successful company form in France: one in two newly created companies is an SAS.

In SASs, it is the articles of association that determine the conditions under which the company is managed, and in particular the conditions for the dismissal of the officers.

The decision of the Court of Cassation of 12 October 2022 (No. 21-15.382) establishes a principle: although extra-statutory acts may supplement the articles of association, they may not derogate from them.

In this case, the articles of association of an SAS provided that the chief executive officer could be dismissed at any time, and without any reason being necessary, by decision of the partners or the sole partner, and that the dismissal of the CEO would not entitle him to any compensation.

A chief executive officer had been appointed by the sole shareholder. On the same day, the sole shareholder sent a letter to the CEO stating that if he was dismissed without due reason, he would receive a lump-sum compensation equal to six months’ remuneration.

A few years later, the company dismissed the officer, who demanded payment of his indemnity. When the company refused to pay him, the former CEO sued for payment of the indemnity.

The Court of Appeal and then the Court of Cassation ruled in favour of the company: the former officer was not entitled to the indemnity. For the Court of Cassation, the articles of association set the terms of dismissal of the chief executive officer, and it is the articles of association that take precedence. Although extra-statutory acts may supplement these articles, they may not derogate from them. And even if the extra-statutory act comes from the sole partner, or if all the partners have agreed to it.

Our recommendation

One must carefully analyse the articles of association and the extra-statutory acts such as shareholders’ agreements or agreements with the officer in order not to take risks when dismissing the officer of an SAS.

Summary

Political, environmental or health crises (like the Covid-19 outbreak and the attack of Ukraine by the Russian army) can cause an increase in the price of raw materials and components and generalized inflation. Both suppliers and distributors find themselves faced with problems related to the often sudden and very substantial increase in the price of their own supplies. French law lays down specific rules in that regard.

Two main situations can be distinguished: where the parties have just established a simple flow of orders and where the parties have concluded a framework agreement fixing firm prices for a fixed term.

Price increase in a business relationship

The situation is as follows: the parties have not concluded a framework agreement, each sales contract concluded (each order) is governed by the General T&Cs of the supplier; the latter has not undertaken to maintain the prices for a minimum period and applies the prices of the current tariff.

In principle, the supplier can modify its prices at any time by sending a new tariff. However, it must give written and reasonable notice in accordance with the provisions of Article L. 442-1.II of the Commercial Code, before the price increase comes into effect. Failure to respect sufficient notice, it could be accused of a sudden “partial” termination of commercial relations (and subject to damages).

A sudden termination following a price increase would be characterized when the following conditions are met:

  • the commercial relationship must be established: broader concept than the simple contract, taking into account the duration but also the importance and the regularity of the exchanges between the parties;
  • the price increase must be assimilated to a rupture: it is mainly the size of the price increase (+1%, 10% or 25%?) that will lead a judge to determine whether the increase constitutes a “partial” termination (in the event of a substantial modification of the relationship which is nevertheless maintained) or a total termination (if the increase is such that it involves a termination of the relationship) or if it does not constitute a termination (if the increase is minimal);
  • the notice granted is insufficient by comparing the duration of the notice actually granted with that of the notice in accordance with Article L. 442-1.II, taking into account in particular the duration of the commercial relationship and the possible dependence of the victim of the termination with respect to the other party.

Article L. 442-1.II must be respected as soon as French law applies to the relation. In international business relations, to know how to deal with Article L.442-1.II and conflicts of laws and jurisdiction of competent courts, please see our previous article published on Legalmondo blog.

Price increase in a framework contract

If the parties have concluded a framework contract (such as supply, manufacturing, …) for several years and the supplier has committed to fixed prices, how, in this case, can it change these prices?

In addition to any indexation clause or renegotiation (hardship) clause which would be stipulated in the contract (and besides specific legal provisions applicable to special agreements as to their nature or economic sector), the supplier may seek to avail himself of the legal mechanism of “unforeseeability” provided for by article 1195 of the civil code.

Three prerequisites must be cumulatively met:

  • an unforeseeable change in circumstances at the time of the conclusion of the contract (i.e.: the parties could not reasonably anticipate this upheaval);
  • a performance of the contract that has become excessively onerous (i.e.: beyond the simple difficulty, the upheaval must cause a disproportionate imbalance);
  • the absence of acceptance of these risks by the debtor of the obligation when concluding the contract.

The implementation of this mechanism must stick to the following steps:

  • first, the party in difficulty must request the renegotiation of the contract from its co-contracting party;
  • then, in the event of failure of the negotiation or refusal to negotiate by the other party, the parties can (i) agree together on the termination of the contract, on the date and under the conditions that they determine, or (ii) ask together the competent judge to adapt it;
  • finally, in the absence of agreement between the parties on one of the two aforementioned options, within a reasonable time, the judge, seized by one of the parties, may revise the contract or terminate it, on the date and under the conditions that he will set.

The party wishing to implement this legal mechanism must also anticipate the following points:

  • article 1195 of the Civil Code only applies to contracts concluded on or after October 1, 2016 (or renewed after this date). Judges do not have the power to adapt or rebalance contracts concluded before this date;
  • this provision is not of public order. Therefore, the parties can exclude it or modify its conditions of application and/or implementation (the most common being the framework of the powers of the judge);
  • during the renegotiation, the supplier must continue to sell at the initial price because, unlike force majeure, unforeseen circumstances do not lead to the suspension of compliance with the obligations.

Key takeaways:

  • analyse carefully the framework of the commercial relationship before deciding to notify a price increase, in order to identify whether the prices are firm for a minimum period and the contractual levers for renegotiation;
  • correctly anticipate the length of notice that must be given to the partner before the entry into force of the new pricing conditions, depending on the length of the relationship and the degree of dependence;
  • document the causes of the price increase;
  • check if and how the legal mechanism of unforeseeability has been amended or excluded by the framework contract or the General T&Cs;
  • consider alternatives strategies, possibly based on stopping production/delivery justified by a force majeure event or on the significant imbalance of the contractual provisions.

Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party has to spontaneously inform his future partner of any information which he knows is decisive for his consent. In addition, for certain contracts – i.e franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory. Thus these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

General duty of disclosure for all contractors

What is the scope of this pre-contractual information?

This obligation is imposed on all co-contractors, to any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

(§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its co-contractor.

(§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

This obligation applies to all contracting parties for any type of contract.

Who must prove the compliance with such provision ?

The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

Special duty of disclosure for franchise and distribution agreements

Which contracts are subject to this special rule?

French law requires (art. L.330-3 French Commercial Code) communication of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

  • which grants another person the right to use a trade mark, trade name or sign,
  • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation).

Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met.

When the DIP must be provided?

DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

What information must be disclosed in the DIP?

Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

  • Franchisor (identity and experience of the managers, career path, etc.);
  • Franchisor’s business (in particular creation date, head office, bank accounts, historical of the development of the business, annual accounts, etc.);
  • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
  • Trademark licensed (date of registration, ownership and use);
  • General state of the market (about products or services covered by the contract)and local state of the market (about the planned area) and information relating to factors of competition and development perspective;
  • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
  • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

How to prove the disclosure of information?

The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

Sanction for breach of pre-contractual information duties

Criminal sanction

Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

Cancellation of the contract for deceit

The contract may be declared null and void in case of breach of either article 1112-1 or article L. 330-3. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. Where applicable, the parties must return to the state they were in before the contract.

Regarding deceit, Courts strictly assess its two conditions which are:

Damages

Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of chance of not contracting or contracting on more advantageous terms) and the causal link between the two.

French case law

Franchisee/distributor must demonstrate that he would not have actually entered into the contract if he had had the missing or correct information

Courts reject motion for cancellation of a franchise contract when the franchisee cannot prove that this deceit would have misled its consent or that it would not have entered into the contract if it had had such information (for instance: Versailles Court of Appeal, December 3, 2020, no. 19/01184).

The significant experience of the franchisee/distributor greatly mitigates the possible existence of a defect in consent.

In a ruling of January 20, 2021 (no. 19/03382) the Paris Court of Appeal rejected an application for cancellation of a franchise contract where the franchisor had submitted a DIP manifestly and deliberately deficient and an overly optimistic turnover forecast.

Thus, while the presentation of the national market was not updated and too vague and that of the local market was just missing, the Court rejected the legal qualification of the franchisee’s error or the franchisor’s willful misrepresentation, because the franchisee “had significant experience” for several years in the same sector (See another example for a Master franchisee)

Similarly, the Court reminds that “An error concerning the profitability of the concept of a franchise cannot lead to the nullity of the contract for lack of consent of the franchisee if it does not result from data established and communicated by the franchisor“, it does not accept the error resulting from the communication by the franchisor of a very optimistic turnover forecast tripling in three years. Indeed, according to the Court, “the franchisee’s knowledge of the local market was likely to enable it to put the franchisor’s exaggerations into perspective, at least in part. The franchisee was well aware that the forecast document provided by the franchisor had no contractual value and did not commit the franchisor to the announced results. It was in fact the franchisee’s responsibility to conduct its own market research, so that if the franchisee misunderstood the profitability of the operation at the business level, this error was not caused by information prepared and communicated by the franchisor“.

The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is him who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

Takeaways

  • The information required by the DIP must be fully completed and updated ;
  • The information not required by the DIP but communicated by the franchisor must be carefully selected and sincere;
  • Franchisee must be given the opportunity to request additional information from the franchisor;
  • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
  • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not). 

 

In an important and very reasoned judgment delivered by the Court of Cassation of France on September 30, 2020, relating to the enforceability of arbitration clauses in international consumer contracts, the Supreme Court judged that these clauses must be considered unfair and cannot be opposed to consumers.  

The Supreme Court traditionally insisted on the priority given to the arbitrator to decide on his own jurisdiction, laid down in Article 1448 of the Code of Civil Procedure (principle known as “competence-competence”, Jaguar, Civ. 1re, May 21, 1997, nos. 95-11.429 and 95-11.427). 

The ECJ expressed its hostility towards such clauses when they are opposed to consumers. In Mostaza Claro (C-168/05), it referred to the internal laws of member states, while considering that the procedural modalities offered by states should not “make it impossible in practice or excessively difficult to exercise the rights conferred by public order to consumers (“Directive 93/13, concerning unfair terms in consumer contracts, must be interpreted as meaning that a national court seized of an action for annulment of an arbitration award must determine whether the arbitration agreement is void and annul that award where that agreement contains an unfair term, even though the consumer has not pleaded that invalidity in the course of the arbitration proceedings, but only in that of the action for annulment”).  

It therefore referred to the national judge the right to implement its legislation on unfair terms, and therefore to decide, on a case-by-case basis, whether the arbitration clause should be considered unfair. This is what the Court of Cassation decided, ruling out the case-by-case method, and considering that in any event such a clause must be excluded in relations with consumers.  

The Court of Cassation adopted the same solution in international employment contracts, where it traditionally considers that arbitration clauses contained in international employment contracts are enforceable against employee (Soc. 16 Feb. 1999, n ° 96-40.643). 

The Supreme Court, although traditionally very favourable to arbitration, gradually builds up a set of specific exceptions to ensure the protection of the “weak” party.

Christophe Hery

Practice areas

  • Arbitration
  • Agency
  • Antitrust
  • Distribution
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    France – PFAS risks: impacts on professional liability for insurance sectors in France and Europe

    6 June 2024

    • France
    • Litigation

    Article 442-1.II of the French Commercial Code (former Article L. 442-6.I.5 °) sanctions the termination by a trader of a written contract or an informal business relationship without giving sufficient written prior notice. Over the last twenty years, this article became the recurring legal basis for all compensation actions (up to 18 months of gross margin, plus other damages) when a commercial relationship or a contract ends (totally or even partially).

    Therefore, a foreign trader who contracts with a French company should try not to fall under the aegis of this rule (part I) and, if it cannot, should understand and control its implementation (part II).

    In a nutshell:

    How can a foreign company avoid or control the risk linked to the “sudden termination of commercial relations” set by French law? Foreign companies doing business with a French counterpart should:

    – enter, as soon as possible, into a written (frame) agreement with their French suppliers or customers, even for a very simple relation and;

    – stipulate a clause in favour of foreign court or arbitration and foreign applicable law while, failing to choose it, they would rather be subject to French courts and laws;

    How can a foreign company master the risk linked to the “sudden termination of commercial relations” set by French law? Foreign companies doing business with a French counterpart should:

    • know that this article applies to almost all type of commercial relationship or contracts, whether written or not, fixed-term or not;
    • check whether its relation/contract is sufficiently long, regular and significant and whether the other party has a legitimate belief in the continuation of this relation/contract;
    • give a written notice of termination or non-renewal (or even of a major modification), which length takes mainly into account the duration of the relation, irrespectively of the length of the contractual notice;
    • invoke, with cautiousness, force majeure and gross negligence of the party, to set aside “sudden termination”;
    • anticipate, in case of insufficient notice, a compensation which amount is the product of the average monthly gross margin per the length of non-granted prior notice.

    How to avoid the application of the French “Sudden Termination” rule?

    In international matters, a foreign company must anticipate whether its relationship will be subject or not to French law before terminating a contract or a business relationship and, in case of dispute, whether it will be brought before a French court or not.

    What will be the law applicable to “Sudden Termination”?

    It is quite difficult for a foreign company to correctly grasp the French legal framework of conflict of laws rules applicable to “sudden termination”. In a ruling of September 19, 2018 (RG 16/05579, DES/ Clarins), the Court of appeal of Paris made, by an implicit reference to the Granarolo EU ruling (07 14 16, N°C196/15) an extension of the contractual qualification to most of the business relationships which will improve foreseeability in order for a foreign company to try to exclude French law and its “sudden termination” rule.

    Sudden termination of a written contract or of a “tacit contractual relationship”

    According to Rome I Regulation (EC No 593/2008, June 17 2008) on the law applicable to contracts:

    – In case of choice of a foreign law by the parties: The clause selecting a foreign applicable law will be valid and respected by French judges (subject to OMR, see below), provided that the choice of law by the parties is express or certain.

    – In case of no choice by the parties: French law will likely to be declared applicable as it might be either the law of the country where is based the distributor/franchisee, etc. or the law of the country where the party who is to provide the service features of the contract has its domicile.

    Sudden termination of a “non-tacit contractual relationship”

    In case of informal relationship (i.e. orders placed from time to time), French judges would retain the tort qualification and will refer to the Rome II Regulation (No 864/2007, July 11 2007) on the law applicable to non-contractual obligations..

    – In case of choice of a foreign law by the parties: a properly drafted choice of foreign law clause should be implemented by a French judge, provided that it expressly includes tort cases.

    – In case of no choice of law by the parties: French law will likely to be declared applicable as it might be the law of the country where the damage occurs (regardless of the place of the causing event or that of the indirect consequences), which is the place of the head office where the French victim suffers the consequences of the termination.

    “Sudden Termination” rule, a French Overriding Mandatory Rule?

    The position of French courts is quite vague and unsatisfactory, and this has been the case for a long time. To make it short: the Commercial Court of Paris judges that “sudden termination” is not an OMR, the Court of appeal of Paris (sole French appellate court in charge of “sudden termination” cases) is also not in favour of the OMR qualification on the grounds that the text “protects purely private economic interests” (CA Paris, pôle 5, ch. 5, Feb 28. 2019, n° 17/16475 / CA Paris, pôle 5, ch. 5, Oct 8. 2020, n°17/19893). Recently, the Paris Court of Appeal reaffirmed that the rules on sudden termination of established commercial relations are not an OMR (Court of appeal Paris, March 11, 2021, n° 18/03112).

    The French Supreme Court has never explicitly addressed the issue (OMR or not OMR). Indeed, the French Supreme Court ruled in the Expedia case (Cass. com., July 8, 2020, n°17-31.536) that the provisions of the former article L. 442-6, I, 2º and II, d), about “significant imbalance” (which is in the same set of rules than “Sudden termination”) are OMR. However, this qualification should be limited to the specific action brought by the Ministry of Finance and not be applicable to an action by a private party. Moreover, some courts may be tempted to invoke the provisions of French law n°2023-221 (March 30, 2023, aka Egalim III) to qualify Sudden termination rule as an OMR, however this text (article L 444-1.A Commercial code) does not quote expressly OMR and set no justification whatsoever to set such a qualification.

    Consequently, if a claim for “sudden termination” is brought to a French court, there is still a  risk that the latter would exclude the applicable foreign law and replace it with the regime resulting from the “sudden termination” of Article L 442-1. II. However, to avoid this risk, a foreign company would better not only choose a foreign governing law but also stipulate that the dispute will be brought before a foreign judge or an arbitral tribunal.

    How to avoid jurisdiction of French court over a “Sudden Termination” claim?

    “Sudden Termination” claim and intra EU co-contractor

    The ECJ ruling (Granarolo, July 14, 2016, N°C196/15) created a distinction between claims occurring from:

    – written framework contract or tacit contractual relationship (existing only if the body of evidences listed by the ECJ are identified by national judges, i.e. length of relation and commitments recognized to each other, such as exclusivity, special price or terms of delivery or payment, non-competition, etc.): such claim has a contractual nature according to conflict of jurisdiction rules under Brussels I recast Regulation;

    – informal relationship which is a non–tacit contractual relationship (i.e. orders placed from time to time): such a request has a tort nature under Brussels I recast ;

    To be noted: the so-called Egalim III law has no impact on the EU rules on jurisdiction clauses.

    (a) Who is the Judge of the “sudden termination” of a written contract or of a “tacit contractual relationship”?

    – Jurisdiction clause for the benefit of a foreign court will be enforced by French courts, even though it is an asymmetrical clause (Court of cassation, October 7, 2015, Ebizcuss.com / Apple Sales International).

    – In case of lack of choice of court clause, French courts are likely to have jurisdiction if the French claimant bringing a case based on “sudden termination» is the service provider, such as distributor, agent, etc. (see ECJ Corman Collins case, 19 12 13, C-9/12, and article 7.1.b.2 of Brussels I recast°).

    (b) Who is the Judge of the “sudden termination” of a “non- tacit contractual relationship”?

    – We believe that French courts may continue to give effect to a jurisdiction clause in tort case, especially when it expressly encompasses tort litigation (Court of cassation, 1° Ch. Civ., January 18, 2017, n° 15-26105, Riviera Motors / Aston Martin Lagonda Ltd).

    – In case of lack of choice of court clause, French courts will have jurisdiction over a “sudden termination” claim as the judge of the place where the harmful event occurred (art. 7.3 of Brussels I recast), which is the place where the sudden termination has effect…i.e. in France if the French company is the victim.

    “Sudden Termination” claim and Non-EU co-contractor

    The Granarolo solution will not ipso facto apply if a French victim brings a claim to French courts, based on a “sudden termination” made by a non-EU company. In non-EU relations, French judges could continue to retain only the tort qualification. In such a case, French courts may keep their jurisdiction based on the place where the harmful event occurs.

    Jurisdiction clause to a foreign court may be recognized in France (even for tort-based claims), provided that this jurisdiction clause is valid according to either a bilateral international convention or to the Hague Convention of 30 June 2005 on choice of court agreements. Otherwise, according to Egalim III law, imperative jurisdiction might be attributable to French courts.

     

    “Sudden Termination” claim and arbitration

    Stipulating an ad hoc or institutional arbitration clause is probably the safest solution to avoid the jurisdiction of French courts. Ideally, the clause will fix the seat of the arbitral tribunal outside France. According to the principle of competence-competence of the arbitrators, French courts declare themselves incompetent, unless the arbitration clause is manifestly void or manifestly inapplicable, regardless of contract or tort ground (see, in particular, Paris Court of Appeal, 5 September 2019, n°17/03703). The so-called “Egalim III” law has no impact on arbitration clauses.

    Conclusion: Foreign companies should not leave open the Jurisdiction and governing Law issues. They must negotiate a safe harbour, otherwise a French victim of a termination will likely to be entitled to bring a “sudden termination” claim in front of French judges (see what happen below in Part 2)

    How to master the “Sudden Termination” French rules?

    When French law is applicable, the foreign company will face the legal regime of article L442 -1.II of the French Commercial Code sanctioning “sudden termination”. As a preliminary remark, it is important to know, above all, that the implementation of the liability for “sudden termination” is the consequence of the lack of a notice or a too short notice. Thus, this scheme does not lay down an automatic compensation rule. In other words, as soon as reasonable notice is given by the author of the termination, liability on that basis can be dismissed.

    The prerequisite for “Sudden Termination”: an established commercial relationship

    All contracts are covered by this legal regime, except for contracts whose regulations provide for a specific notice of termination, like commercial agency contracts and transport of goods by road subcontracts.

    First, there must be a relationship that can be proven by a written contract or de facto, by behaviour of the parties. Article L.442-1 II of the French Commercial Code covers all “commercial” relationships and not only “contractual ones so that such relationship may be based on a succession of tacitly renewed contracts or a regular flow of business, materialized by multiple orders. This was recently recalled by the Supreme Court (Supreme Court, February 16, 2022, n° 20-18.844)

    Second, this relationship must have an established character. There is no legal definition, but this notion has been defined year after year by case law which has established an objective criterion and a more subjective one.

    (a) The objective criterion implies a sufficiently long, regular and significant relationship between the two parties. The duration of the relationship is the most important criterion. The relationship must also be regular, that is, it must not have been interrupted (too often or too long). The relationship must ultimately be meaningful and represent a serious flow of business between the parties, in volume or value.

    (b) The subjective test focuses primarily on the legitimate belief of the victim of the rupture in the continuation of the contract / the relationship that is based on factual elements, such as investment requests, budgets over several years, etc. Conversely, it is on the basis of the finding of a lack of legitimate belief in a common future that the terminating party can prove the absence of a stable character when he has resorted, on several occasions, a call for tenders (unless it is a trick).

    Anticipating a “Sudden Termination” claim

    (a) The termination may be total or partial

    The total rupture is materialized by a complete stop of the relations, for example ending the contract, stopping the sending of orders by the purchaser or the recording of orders by the supplier.

    The Supreme Court recently recalled that a significant drop in sales with a partner must be considered as a partial rupture of the relationship (February 16, 2022, n° 20-18.844, cited above). But the most complicated situation to deal with is the so-called partial rupture that will be deduced from a modification of elements that partly impacts the relationship but does not reduce it to nothing (ex.: a price increase or decrease, a change in the terms of payment or delivery).

    (b) The termination must be subject to a reasonable written prior notice

    The notice must be notified in writing. The absence of written notice is already a breach in itself. The notification must clearly reflect the willingness of a party to sever the relationship in whole or in part, which must be clearly identified. The notification must also clearly identify the date on which the relationship will end.

    Thus, an ambiguity on the notice period (e.g if the termination of an agreement is notified, whilst offering to maintain certain prices and payment terms, in the meantime) is considered as an insufficient termination notice (French Supreme Court, January 29, 2013, n° 11-23.676).

    Parties must distinguish between the letter of formal notice for default and the subsequent notification of the breach, giving notice (if applicable). During the period of notice, parties must fully comply with all contractual conditions.

    This principle also applies to distribution contracts subject to specific French rules imposing annual or multi-year negotiation obligations. In fact, the Court of cassation has ruled that “when the conditions of the commercial relationship established between the parties are subject to annual negotiation, modifications made during the notice period which are not so substantial as to undermine its effectiveness do not constitute a brutal breach of that relationship” (Cass. com., Dec. 7, 2022, n° 19-22.538).

    However, it’s not necessary to mention the reasons why the commercial relationship is terminated is not a fault or breach of the relationship. In fact, French courts consider that “the fact that the given reason to terminate was false does not in any way present the terminating party from terminating the commercial relationship” (Versailles Court of Appeal, June 10, 1999).

    The duration of the prior notice to be respected is not defined by French law which did not pose precise rule until the reform 2019. If several criteria are stated by case law, it should be noted that the most important criterion is the duration of the relationship. Judges also take into account the share of turnover achieved by the victim, the existence or not of a territorial exclusivity, the nature of the products and the sector of activity, the importance of the investments made by the victim especially to the relationship in question, and finally the state of economic dependence. Economic dependence is defined as the impossibility for a company to have a solution that is technically and economically equivalent to the contractual relations it has established with another company. Case law considers this to be an aggravating factor justifying a longer termination notice.

    The minimum notice period must be notified at the time of notification of termination. As a consequence, events that affect the victim after the notification, both positively (conclusion of a new contract) and negatively (loss of another custome), will not be taken into account by the judge, at the time of ruling, when assessing the “brutality” of the termination.

    The length of the notice given by the judges is very variable. The appreciation of notice is made on a case-by-case basis. It is very difficult to give a golden rule, even though roughly for each year of relationship, a month’s notice might be due (to modulate up or down depending on the other criteria in the relationship). But way of illustration, however, the following case law may be cited:

    • Paris Court of Appeal , Feb.9, 2022: 16-year relationship with 15 months’ notice;
    • Paris Court of Appeal, Jan.20, 2022: 12-year relationship with 8 months’ notice;
    • Paris Court of Appeal, Oct. 25, 2022: 16-year relationship with 18 months’ notice;
    • Paris Court of Appeal , Feb. 23, 2022: 17-year relationship with 11 months’ notice;
    • Paris Court of Appeal, Sept. 21, 2022: 5-year relationship with 14 months’ notice.

    Since the Order of April 24, 2019, which limits the length of reasonable notice to a maximum of 18 months, if the notice period granted by a party is 18 months, it cannot be held liable for a sudden termination. However, much of the litigation remains uncertain, as only exceptionally long or particularly sensitive relationships led, prior to 019, to the award of more than 18 months’ notice. Ordinance of April 24, 2019, limits to 18 months the maximum period of notice reasonably due under Article L 442-1.II. But much of the litigation will remain uncertain since only relations of exceptional longevity or particularly sensitive, could have led to the allocation of a notice higher than 18 months.

    Judges are not bound by the contractual notices stipulated in the contract. But if the author of the breach also violated the terms and conditions of termination provided for by contract, the victim may seek the responsibility of the author both on the tort basis of the sudden rupture and also on the basis of the breach of a contractual obligation.

    Cases in which “Sudden Termination” is ruled out

    The legal regime provides for two cases, and the case-law seems to have imposed others.

    (a) The two legal exceptions are Force majeure (very rarely consecrated by the courts) and the fault of the victim of the termination, case-law having added that it must be a serious violation (“faute grave”) of a contractual commitment or a legal provision (such as non-respect of an exclusivity, a non-compete, a confidentiality or a change of control duty, or non-payment of amounts due contractually).

    The judges consider themselves, of course, not bound by a termination clause defining what constitutes serious misconduct. In any case the party who terminates for serious misconduct must clearly notify it in its letter of termination. Above all, serious misconduct leads to a lack of notice, therefore, if the terminating party alleges serious misconduct but grants notice, whichever it may be, judges may conclude that the fault was not serious enough.

    Thus, the seriousness of the misconduct must be motivated by judges in their rulings. Noting that the contract was breached after two formal notices is not sufficient (Cass. com., Feb 16. 2022, n° 20-18.844).

    However, the Court of Cassation considers that “even in the case of serious misconduct justifying the immediate termination of the commercial relationship, the other party remains free to give the other party a notice” (Cass. Com., Oct. 14 2020, n°18-22.119).

    (b) In recent years, case-law has added other cases of liability waiver. This is the case when the rupture is the consequence of a cause external to the author of the rupture, such as the economic crisis, the loss of its own customers or suppliers, upstream or downstream.

    For example, in 2021 the Court of cassation has ruled that “the business partner is not entitled to an unchanged relationship and cannot refuse any adaptation required by economic changes” (Com, Dec 01, 2021, n°20-19.113). In fact, to be attributable to an economic player, a termination must be free and deliberate. This is not the case if termination is imposed by the economic situation.

    However, adding a liability exemption clause in a contract, aimed at waiving destinated to escape the penalties of article L. 442-1, is without consequences on the judge’s appreciation.

    Judges have also excluded “sudden termination” in the hypothesis of the end of the first period of a fixed-term contract, whatever its duration is: the first renewal of a contract, constitutes a foreseeable event for the victim of the rupture, which excludes the very notion of brutality; but once the contract has been renewed at least once, judges can subsequently characterize the victim’s legitimate belief in a new tacit renewal.

    Compensation for “Sudden Termination”

    Judges only compensate for the detrimental consequences of the brutality itself of the breach but do not compensate, at least in the context of article L442 -1.II, for the consequences of the breach itself.

    The basic rule is very simple: it is necessary to determine the length of the notice which should have been granted, from which the notice actually granted is deducted. This net notice is multiplied by the average monthly gross margin of the victim, or more often the so called margin on variable costs (i.e. the turnover minus costs disappearing with non-performance of the contract/relation). Defendant should not hesitate to ask for the full accountancy evidences, especially to identify (lower) margin rates, or even for a judicial expertise on those accounting elements. In general, the base of the average monthly margin consists of the last 24 or 36 months.

    The compensation calculated on the average margin is, in general, exclusive of any other compensation. However, the victim can prove that it has suffered other losses as a consequence of the brutality of the rupture. Such as dismissals directly caused by this brutality or the depreciation of investments made recently by the victim.

    Some practical tips when considering to anticipate “Sudden Termination”

    Even though the legal regime is still ambiguous and the case-law terribly casuistic which prevents to release strong guidelines, here are some practical tips when a company plans to terminate a relationship / contract:

    • in the case of a fixed-term contract renewable tacitly, the notification of non-renewal must be anticipated well in advance of the beginning of the contractual notice in order to avoid being in a situation where it is necessary to choose between not renewing the contract with a notice that is not sufficient or agree to see the contract renewed itself for a new term;
    • commercial teams must be made aware of the risk of partial sudden termination when they change the conditions of execution of a commercial relationship / contract too radically;
    • in some cases, it may be useful to send a pre-notice of termination with a “notice proposal” in order to try to validate this notice with the other party;
    • it may also be useful, in certain relationships, to notify the end of the relationship with different lengths of notice depending on the nature of the product lines;
    • Finally, the best way is to conclude an end-of-relation protocol, fixing the duration of the notice as well as, if necessary, the progressive decline of the orders, the whole within the framework of a settlement agreement which definitively waives any claim, including “sudden termination”.

    Sudden termination regime shall be taken into consideration when entering into the final phase of a duration relationship: the way in which the contract (or de facto relationship) is terminated must be carefully planned, in order to manage the risk of causing damages to the counterparty and being sued for compensation.

    PFAS are chemicals that have been used in industry for over 50 years. Between 4,000 and 5,000 varieties are used for various everyday consumer applications, and they are renowned for their non-stick, waterproofing, and heat-resistant properties. They have come under scrutiny in recent years, and are covered by European regulations, as they are in the USA, where the public authorities have imposed maximum use values, as well as reporting obligations. EU Regulation 2019/1021 (POP) restricts the production and use of certain categories of PFAS in specific industries or above certain values and their use with food products. France has gone further, regulating the levels of discharges into watercourses.

    Scientific research suspects that PFAS cause illnesses such as cancer and reproductive disorders. Given the extent of contamination not only in everyday products but also in the environment, particularly waterways, the issue is likely to pose major public health problems in the years to come. This concern is more pressing given that PFASs are considered ‘eternal pollutants’, as there is currently no way of eliminating them from the environment.

    The impact on companies’ and insurers’ liability is already significant. In the USA, more than 6,000 lawsuits have been filed since 2005. Three groups have already paid more than USD 1.2 billion in settlements due to contamination, and another group has paid more than USD 10 billion to end a class action.

    In France, the Metropole of Lyon has brought a summary expert appraisal action against two chemical companies before considering bringing a liability action.  In addition, several criminal complaints have been lodged for endangering the lives of others and damaging the environment.

    Under French law, companies and their insurers could be liable on various legal grounds. In addition to ordinary civil liability law – based on article 1240 of the Civil Code – the special system of liability for defective products could also serve as a basis for a liability action (articles 1245 et seq. of the Civil Code), with French law defining a defect as any product that does not offer the safety that can legitimately be expected.

    Although it is currently difficult to identify a causal link with an identified disease, asbestos-related case law has shown in the past that victims can take action if they can demonstrate that they suffered anxiety-related harm as a result of their exposure to the product, even if they are not positively suffering from a disease at the time of their claim.

    In addition, the reporting obligations imposed by the public authorities will undoubtedly facilitate the filing of liability actions by facilitating the identification of the emitters and users of these pollutants.

    Insurers are directly affected by this phenomenon, which for them constitutes an “emerging” risk (“silent cover”) because, for the most part, this risk was not identified when the policy was taken out, which exposes them directly and is all the more problematic because insurance premiums have not been able to take such a risk into account.

    Civil liability or professional indemnity insurance policies, especially if they are drafted with “all risks except” clauses (“tous risques sauf” in French legal vocabulary, i.e. covering all liability risks vis-à-vis third parties except those strictly listed), as well as those including clauses relating to environmental risks, are particularly targeted.

    Lloyd’s has already published model exclusion clauses for the attention of insurers, although such clauses can obviously only cover future insurance contracts or endorsements:

    https://www.lmalloyds.com/LMA_Bulletins/LMA23-039-SD.aspx

    The clauses contained in insurance policies must be drafted with particular care, considering each country’s specific features. In France, for example, to be enforceable against the insured, clauses must be “formal and limited”, which means that the exclusion must be both clearly expressed and that it must be possible to determine its content perfectly.

    For example, the Court of Cassation recently ruled that the use of the terms “such as” or “in particular” (“tells que” “en particulier”) in an exclusion clause led to confusion in the interpretation of the exclusion clause, rendering it invalid (Civ. 2e, 26 Nov. 2020, no. 19-16.435).  There was also a debate on the validity of an exclusion clause relating to bodily injury caused by asbestos, a risk which at the time had not been identified by insurers, who subsequently excluded it from most policies (Cass. 2e civ., 21 Sept. 2023, nos. 21-19801 and 21-19776). Similarly, policies should clearly indicate whether cover is provided based on a harmful event or based on a claim (i.e “base dommage” or “base reclamation”, which indicates if the risk is covered, depending on if the damage happened during the policy was valid, or if it depends on the moment when the risk was notified by the insured during such period).

    One thing is sure: the risks associated with PFAS and claims are only just beginning to emerge in Europe, where the conditions for group actions have recently been extended with EU Directive 2020/1828, which came into force on 25 June 2023 and is currently the subject of a draft law under discussion in the French Parliament with a view to its transposition.

    Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.

    However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.

     

    Key points to remember 

    • Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
    • This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
    • Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
    • Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
    • Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.

     

    The law of June 9, 2023, regulating influencer activity  

    The definition of influencer professions

    The law of June 9, 2023, provides two essential definitions for influencer activities:

    • Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
    • The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.

     

    The obligations imposed on commercial messages created by the influencer

    The law sets forth obligations that influencers must adhere to regarding their publications: 

    • Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):

      – The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
      – The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).

    • Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:

      – health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
      – non-domestic animals, unless it concerns an establishment authorized to hold them;
      – financial: contracts, financial products, and services;
      – sports-related: subscriptions to sports advice or predictions;
      – crypto assets: if not from registered actors or have not received approval from the AMF;
      – gambling: their promotion prohibited for those under 18 years old and regulated by law;
      – professional training: their promotion is not prohibited but regulated.

     

    The accountability of influencer behaviour

    The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:

    • Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
    • Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).

     

    The accountability of other actors in the commercial influence ecosystem

     

    Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.

    Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.

     

    French regulation and international influencers

     

    Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.

    Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.

    However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).

     

    The other regulations governing the activity of influencers

     

    The European regulations

    The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.

    The «soft law»

    As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.

     

    The special status of child influencers

    The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.

     

    The status and remuneration of influencers: uncertainty persists

     

    Despite the diversity of regulations applicable to influencers, none address their status and remuneration.

    The status of the influencer

    In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.

    The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:

    • In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
    • In the case of a service contract, the influencer will fall under the regime for self-employed workers.

     

    The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.

     

    The remuneration of the influencer

    The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.

    Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.

     

    The influencers… in the spotlight

    The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.

    As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).

    On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising. 

    In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.

    Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.

    SUMMARY: In large-scale events such as the Paris Olympics certain companies will attempt to “wildly” associate their brand with the event through a practice called “ambush marketing”, defined by caselaw as “an advertising strategy implemented by a company in order to associate its commercial image with that of an event, and thus to benefit from the media impact of said event, without paying the related rights and without first obtaining the event organizer’s authorization” (Paris Court of Appeal, June 8, 2018, Case No 17/12912). A risky and punishable practice, that might sometimes yet be an option yet.

    Key takeaways

    • Ambush marketing might be a punished practice but is not prohibited as such;
    • As a counterpart of their investment, sponsors and official partners benefit from an extensive legal protection against all forms of ambush marketing in the event concerned, through various general texts (counterfeiting, parasitism, intellectual property) or more specific ones (e.g. sport law);
    • The Olympics Games are subject to specific regulations that further strengthen this protection, particularly in terms of intellectual property.
    • But these rights are not absolute, and they are still thin opportunities for astute ambush marketing.

    The protection offered to sponsors and official partners of sporting and cultural events from ambush marketing

    With a budget of over 4 billion euros, the 2024 Olympic and Paralympic Games are financed mostly by various official partners and sponsors, who in return benefit from a right to use Olympic and Paralympic properties to be able to associate their own brand image and distinctive signs with these events.

    Ambush marketing is not punishable as such under French law, but several scattered texts provide extensive protection against ambush marketing for sponsors and partners of sporting or cultural continental-wide or world-wide events. Indeed, sponsors are legitimately entitled to peacefully enjoy the rights offered to them in return for large-scale investments in events such as the FIFA or rugby World Cups, or the Olympic Games.

    In particular, official sponsors and organizers of such events may invoke:

    • the “classic” protections offered by intellectual property law (trademark law and copyright) in the context of infringement actions based on the French Intellectual Property Code,
    • tort law (parasitism and unfair competition based on article 1240 of the French Civil Code);
    • consumer law (misleading commercial practices) based on the French Consumer Code,
    • but also more specific texts such as the protection of the exploitation rights of sports federations and sports event organizers derived from the events or competitions they organize, as set out in article L.333-1 of the French Sports Code, which gives sports event organizers an exploitation monopoly.

    The following ambush marketing practices were sanctioned on the abovementioned grounds:

    • The use of a tennis competition name and of the trademark associated with it during the sporting event: The organization of online bets, by an online betting operator, on the Roland Garros tournament, using the protected sign and trademark Roland Garros to target the matches on which the bets were organized. The unlawful exploitation of the sporting event, was punished and 400 K€ were allowed as damages, based on article L. 333-1 of the French Sports Code, since only the French Tennis Federation (F.F.T.) owns the right to exploit Roland Garros. The use of the trademark was also punished as counterfeiting (with 300 K€ damages) and parasitism (with 500 K€ damages) (Paris Court of Appeal, Oct. 14, 2009, Case No 08/19179);
    • An advertising campaign taking place during a film festival and reproducing the event’s trademark: The organization, during the Cannes Film Festival, of a digital advertising campaign by a cosmetics brand through the publication on its social networks of videos showing the beauty makeovers of the brand’s muses, in some of which the official poster of the Cannes Film Festival was visible, one of which reproduced the registered trademark of the “Palme d’Or”, was punished on the grounds of copyright infringement and parasitism with a 50 K€ indemnity (Paris Judicial Court, Dec. 11, 2020, Case No19/08543);
    • An advertising campaign aimed at falsely claiming to be an official partner of an event: The use, during the Cannes Film Festival, of the slogan “official hairdresser for women” together with the expressions “Cannes” and “Cannes Festival”, and other publications falsely leading the public to believe that the hairdresser was an official partner, to the detriment of the only official hairdresser of the Cannes festival, was punished on the grounds of unfair competition and parasitism with a 50 K€ indemnity (Paris Court of Appeal, June 8, 2018, Case No 17/12912).

    These financial penalties may be combined with injunctions to cease these behaviors, and/or publication in the press under penalty.

    An even greater protection for the Paris 2024 Olympic Games

    The Paris 2024 Olympic Games are also subject to specific regulations.

    Firstly, Article L.141-5 of the French Sports Code, enacted for the benefit of the “Comité national olympique et sportif français” (CNOSF) and the “Comité de l’organisation des Jeux Olympiques et Paralympiques de Paris 2024” (COJOP), protects Olympic signs such as the national Olympic emblems, but also the emblems, the flag, motto and Olympic symbol, Olympic anthem, logo, mascot, slogan and posters of the Olympic Games, the year of the Olympic Games “city + year”, the terms “Jeux Olympiques”, “Olympisme”, “Olympiade”, “JO”, “olympique”, “olympien” and “olympienne”. Under no circumstances may these signs be reproduced or even imitated by third-party companies. The COJOP has also published a guide to the protection of the Olympic trademark, outlining the protected symbols, trademarks and signs, as well as the protection of the official partners of the Olympic Games.

    Secondly, Law no. 2018-202 of March 26, 2018 on the organization of the 2024 Olympic and Paralympic Games adds even more specific prohibitions, such as the reservation for official sponsors of advertising space located near Olympic venues, or located on the Olympic and Paralympic torch route. This protection is unique in the context of the Olympic Games, but usually unregulated in the context of simple sporting events.

    The following practices, for example, have already been sanctioned on the above-mentioned grounds:

    • Reproduction of a logo imitating the well-known “Olympic” trademark on a clothing collection: The marketing of a collection of clothing, during the 2016 Olympic Games, bearing a logo (five hearts in the colors of the 5 Olympic colors intersecting in the image of the Olympic logo) imitating the Olympic symbol in association with the words “RIO” and “RIO 2016”, was punished on the grounds of parasitism (10 K€ damages) and articles L. 141-5 of the French Sports Code (35 K€) and L. 713-1 of the French Intellectual Property Code (10 K€ damages) (Paris Judicial Court, June 7, 2018, Case No16/10605);
    • The organization of a contest on social networks using protected symbols: During the 2018 Olympic Games in PyeongChang, a car rental company organized an online game inviting Internet users to nominate the athletes they wanted to win a clock radio, associated with the hashtags “#JO2018” (“#OJ2018”), “#Jeuxolympiques” (“#Olympicsgame”) or “C’est parti pour les jeux Olympiques” (“let’s go for the Olympic Games”) without authorization from the CNOSF, owner of these distinctive signs under the 2018 law and article L.141-5 of the French Sport Code and punished on these grounds with 20 K€ damages and of 10 K€ damages for parasitism (Paris Judicial Court, May 29, 2020, n°18/14115).

    These regulations offer official partners greater protection for their investments against ambush marketing practices from non-official sponsors.

    Some marketing operations might be exempted

    An analysis of case law and promotional practices nonetheless reveals the contours of certain advertising practices that could be authorized (i.e. not sanctioned by the above-mentioned texts), provided they are skillfully prepared and presented. Here are a few exemples :

    • Communication of information for advertising purposes: The use of the results of a rugby match and the announcement of a forthcoming match in a newspaper to promote a motor vehicle and its distinctive features was deemed lawful: “France 13 Angleterre 24 – the Fiat 500 congratulates England on its victory and looks forward to seeing the French team on March 9 for France-Italy” (France 13 Angleterre 24 – la Fiat 500 félicite l’Angleterre pour sa victoire et donne rendez-vous à l’équipe de France le 9 mars pour France-Italie) the judges having considered that this publication “merely reproduces a current sporting result, acquired and made public on the front page of the sports newspaper, and refers to a future match also known as already announced by the newspaper in a news article” (Court of cassation, May 20, 2014, Case No 13-12.102).
    • Sponsorship of athletes, including those taking part in Olympic competitions: Subject to compliance with the applicable regulatory framework, particularly as regards models, any company may enter into partnerships with athletes taking part in the Olympic Games, for example by donating clothing bearing the desired logo or brand, which they could wear during their participation in the various events. Athletes may also, under certain conditions, broadcast acknowledgements from their partner (even if unofficial). Rule 40 of the Olympic Charter governs the use of athletes’, coaches’ and officials’ images for advertising purposes during the Olympic Games.

    The combined legal and marketing approach to the conception and preparation of the message of such a communication operation is essential to avoid legal proceedings, particularly on the grounds of parasitism; one might therefore legitimately contemplate advertising campaigns, particularly clever, or even malicious ones.

    Under what conditions can company officers be dismissed in France?

    This depends on the form of the company.

    Let us take the most common forms of commercial companies in France.

    The manager of a limited liability company (« société à responsabilité limitée », SARL) can only be dismissed for due reason, i.e. if he or she has committed a fault, or if his or her dismissal is necessary to protect the company’s interests.

    In a public limited company (« société anonyme », SA), the members of the board of directors and the chairman of the board of directors can be dismissed “ad nutum”, i.e. at any time and without having to give any reason. This rule may not be departed from. The chief executive officer, on the other hand, can only be dismissed for due reason.

    In simplified joint stock companies (« société par actions simplifiée », SAS), a company form created in 1994, officers are in principle be dismissed “ad nutum”, but the articles of association may derogate from this rule and provide that they may only be dismissed for due reason.

    A recent decision of the Cour de cassation, the highest judicial court in France, is of particular interest.

    It concerns simplified joint stock companies (“SAS”), the most successful company form in France: one in two newly created companies is an SAS.

    In SASs, it is the articles of association that determine the conditions under which the company is managed, and in particular the conditions for the dismissal of the officers.

    The decision of the Court of Cassation of 12 October 2022 (No. 21-15.382) establishes a principle: although extra-statutory acts may supplement the articles of association, they may not derogate from them.

    In this case, the articles of association of an SAS provided that the chief executive officer could be dismissed at any time, and without any reason being necessary, by decision of the partners or the sole partner, and that the dismissal of the CEO would not entitle him to any compensation.

    A chief executive officer had been appointed by the sole shareholder. On the same day, the sole shareholder sent a letter to the CEO stating that if he was dismissed without due reason, he would receive a lump-sum compensation equal to six months’ remuneration.

    A few years later, the company dismissed the officer, who demanded payment of his indemnity. When the company refused to pay him, the former CEO sued for payment of the indemnity.

    The Court of Appeal and then the Court of Cassation ruled in favour of the company: the former officer was not entitled to the indemnity. For the Court of Cassation, the articles of association set the terms of dismissal of the chief executive officer, and it is the articles of association that take precedence. Although extra-statutory acts may supplement these articles, they may not derogate from them. And even if the extra-statutory act comes from the sole partner, or if all the partners have agreed to it.

    Our recommendation

    One must carefully analyse the articles of association and the extra-statutory acts such as shareholders’ agreements or agreements with the officer in order not to take risks when dismissing the officer of an SAS.

    Summary

    Political, environmental or health crises (like the Covid-19 outbreak and the attack of Ukraine by the Russian army) can cause an increase in the price of raw materials and components and generalized inflation. Both suppliers and distributors find themselves faced with problems related to the often sudden and very substantial increase in the price of their own supplies. French law lays down specific rules in that regard.

    Two main situations can be distinguished: where the parties have just established a simple flow of orders and where the parties have concluded a framework agreement fixing firm prices for a fixed term.

    Price increase in a business relationship

    The situation is as follows: the parties have not concluded a framework agreement, each sales contract concluded (each order) is governed by the General T&Cs of the supplier; the latter has not undertaken to maintain the prices for a minimum period and applies the prices of the current tariff.

    In principle, the supplier can modify its prices at any time by sending a new tariff. However, it must give written and reasonable notice in accordance with the provisions of Article L. 442-1.II of the Commercial Code, before the price increase comes into effect. Failure to respect sufficient notice, it could be accused of a sudden “partial” termination of commercial relations (and subject to damages).

    A sudden termination following a price increase would be characterized when the following conditions are met:

    • the commercial relationship must be established: broader concept than the simple contract, taking into account the duration but also the importance and the regularity of the exchanges between the parties;
    • the price increase must be assimilated to a rupture: it is mainly the size of the price increase (+1%, 10% or 25%?) that will lead a judge to determine whether the increase constitutes a “partial” termination (in the event of a substantial modification of the relationship which is nevertheless maintained) or a total termination (if the increase is such that it involves a termination of the relationship) or if it does not constitute a termination (if the increase is minimal);
    • the notice granted is insufficient by comparing the duration of the notice actually granted with that of the notice in accordance with Article L. 442-1.II, taking into account in particular the duration of the commercial relationship and the possible dependence of the victim of the termination with respect to the other party.

    Article L. 442-1.II must be respected as soon as French law applies to the relation. In international business relations, to know how to deal with Article L.442-1.II and conflicts of laws and jurisdiction of competent courts, please see our previous article published on Legalmondo blog.

    Price increase in a framework contract

    If the parties have concluded a framework contract (such as supply, manufacturing, …) for several years and the supplier has committed to fixed prices, how, in this case, can it change these prices?

    In addition to any indexation clause or renegotiation (hardship) clause which would be stipulated in the contract (and besides specific legal provisions applicable to special agreements as to their nature or economic sector), the supplier may seek to avail himself of the legal mechanism of “unforeseeability” provided for by article 1195 of the civil code.

    Three prerequisites must be cumulatively met:

    • an unforeseeable change in circumstances at the time of the conclusion of the contract (i.e.: the parties could not reasonably anticipate this upheaval);
    • a performance of the contract that has become excessively onerous (i.e.: beyond the simple difficulty, the upheaval must cause a disproportionate imbalance);
    • the absence of acceptance of these risks by the debtor of the obligation when concluding the contract.

    The implementation of this mechanism must stick to the following steps:

    • first, the party in difficulty must request the renegotiation of the contract from its co-contracting party;
    • then, in the event of failure of the negotiation or refusal to negotiate by the other party, the parties can (i) agree together on the termination of the contract, on the date and under the conditions that they determine, or (ii) ask together the competent judge to adapt it;
    • finally, in the absence of agreement between the parties on one of the two aforementioned options, within a reasonable time, the judge, seized by one of the parties, may revise the contract or terminate it, on the date and under the conditions that he will set.

    The party wishing to implement this legal mechanism must also anticipate the following points:

    • article 1195 of the Civil Code only applies to contracts concluded on or after October 1, 2016 (or renewed after this date). Judges do not have the power to adapt or rebalance contracts concluded before this date;
    • this provision is not of public order. Therefore, the parties can exclude it or modify its conditions of application and/or implementation (the most common being the framework of the powers of the judge);
    • during the renegotiation, the supplier must continue to sell at the initial price because, unlike force majeure, unforeseen circumstances do not lead to the suspension of compliance with the obligations.

    Key takeaways:

    • analyse carefully the framework of the commercial relationship before deciding to notify a price increase, in order to identify whether the prices are firm for a minimum period and the contractual levers for renegotiation;
    • correctly anticipate the length of notice that must be given to the partner before the entry into force of the new pricing conditions, depending on the length of the relationship and the degree of dependence;
    • document the causes of the price increase;
    • check if and how the legal mechanism of unforeseeability has been amended or excluded by the framework contract or the General T&Cs;
    • consider alternatives strategies, possibly based on stopping production/delivery justified by a force majeure event or on the significant imbalance of the contractual provisions.

    Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party has to spontaneously inform his future partner of any information which he knows is decisive for his consent. In addition, for certain contracts – i.e franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory. Thus these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

    General duty of disclosure for all contractors

    What is the scope of this pre-contractual information?

    This obligation is imposed on all co-contractors, to any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

    (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its co-contractor.

    (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

    This obligation applies to all contracting parties for any type of contract.

    Who must prove the compliance with such provision ?

    The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

    Special duty of disclosure for franchise and distribution agreements

    Which contracts are subject to this special rule?

    French law requires (art. L.330-3 French Commercial Code) communication of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

    • which grants another person the right to use a trade mark, trade name or sign,
    • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation).

    Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met.

    When the DIP must be provided?

    DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

    What information must be disclosed in the DIP?

    Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

    • Franchisor (identity and experience of the managers, career path, etc.);
    • Franchisor’s business (in particular creation date, head office, bank accounts, historical of the development of the business, annual accounts, etc.);
    • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
    • Trademark licensed (date of registration, ownership and use);
    • General state of the market (about products or services covered by the contract)and local state of the market (about the planned area) and information relating to factors of competition and development perspective;
    • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
    • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

    How to prove the disclosure of information?

    The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

    The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

    Sanction for breach of pre-contractual information duties

    Criminal sanction

    Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

    Cancellation of the contract for deceit

    The contract may be declared null and void in case of breach of either article 1112-1 or article L. 330-3. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. Where applicable, the parties must return to the state they were in before the contract.

    Regarding deceit, Courts strictly assess its two conditions which are:

    Damages

    Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of chance of not contracting or contracting on more advantageous terms) and the causal link between the two.

    French case law

    Franchisee/distributor must demonstrate that he would not have actually entered into the contract if he had had the missing or correct information

    Courts reject motion for cancellation of a franchise contract when the franchisee cannot prove that this deceit would have misled its consent or that it would not have entered into the contract if it had had such information (for instance: Versailles Court of Appeal, December 3, 2020, no. 19/01184).

    The significant experience of the franchisee/distributor greatly mitigates the possible existence of a defect in consent.

    In a ruling of January 20, 2021 (no. 19/03382) the Paris Court of Appeal rejected an application for cancellation of a franchise contract where the franchisor had submitted a DIP manifestly and deliberately deficient and an overly optimistic turnover forecast.

    Thus, while the presentation of the national market was not updated and too vague and that of the local market was just missing, the Court rejected the legal qualification of the franchisee’s error or the franchisor’s willful misrepresentation, because the franchisee “had significant experience” for several years in the same sector (See another example for a Master franchisee)

    Similarly, the Court reminds that “An error concerning the profitability of the concept of a franchise cannot lead to the nullity of the contract for lack of consent of the franchisee if it does not result from data established and communicated by the franchisor“, it does not accept the error resulting from the communication by the franchisor of a very optimistic turnover forecast tripling in three years. Indeed, according to the Court, “the franchisee’s knowledge of the local market was likely to enable it to put the franchisor’s exaggerations into perspective, at least in part. The franchisee was well aware that the forecast document provided by the franchisor had no contractual value and did not commit the franchisor to the announced results. It was in fact the franchisee’s responsibility to conduct its own market research, so that if the franchisee misunderstood the profitability of the operation at the business level, this error was not caused by information prepared and communicated by the franchisor“.

    The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is him who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

    Takeaways

    • The information required by the DIP must be fully completed and updated ;
    • The information not required by the DIP but communicated by the franchisor must be carefully selected and sincere;
    • Franchisee must be given the opportunity to request additional information from the franchisor;
    • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
    • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not). 

     

    In an important and very reasoned judgment delivered by the Court of Cassation of France on September 30, 2020, relating to the enforceability of arbitration clauses in international consumer contracts, the Supreme Court judged that these clauses must be considered unfair and cannot be opposed to consumers.  

    The Supreme Court traditionally insisted on the priority given to the arbitrator to decide on his own jurisdiction, laid down in Article 1448 of the Code of Civil Procedure (principle known as “competence-competence”, Jaguar, Civ. 1re, May 21, 1997, nos. 95-11.429 and 95-11.427). 

    The ECJ expressed its hostility towards such clauses when they are opposed to consumers. In Mostaza Claro (C-168/05), it referred to the internal laws of member states, while considering that the procedural modalities offered by states should not “make it impossible in practice or excessively difficult to exercise the rights conferred by public order to consumers (“Directive 93/13, concerning unfair terms in consumer contracts, must be interpreted as meaning that a national court seized of an action for annulment of an arbitration award must determine whether the arbitration agreement is void and annul that award where that agreement contains an unfair term, even though the consumer has not pleaded that invalidity in the course of the arbitration proceedings, but only in that of the action for annulment”).  

    It therefore referred to the national judge the right to implement its legislation on unfair terms, and therefore to decide, on a case-by-case basis, whether the arbitration clause should be considered unfair. This is what the Court of Cassation decided, ruling out the case-by-case method, and considering that in any event such a clause must be excluded in relations with consumers.  

    The Court of Cassation adopted the same solution in international employment contracts, where it traditionally considers that arbitration clauses contained in international employment contracts are enforceable against employee (Soc. 16 Feb. 1999, n ° 96-40.643). 

    The Supreme Court, although traditionally very favourable to arbitration, gradually builds up a set of specific exceptions to ensure the protection of the “weak” party.

    Alexandre Malan

    Practice areas

    • Arbitration
    • Distribution
    • Insurance
    • International trade
    • Litigation
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