Deutsch
Français Deutsch English

News

2.11.2015

Recent case law on competition and distribution: Sudden termination of business relations and determination of the duration of the notice period

Decision of the commercial division of the French Court of Cassation rendered on 15 September 2015, N°14-17964

The commercial division of the French Court of Cassation has once again specified its case law pertaining to the sudden termination of business relations on the basis of article L. 442-6, I, 5° of the French Commercial Code.

In French law, contractual stipulations of the parties with regard to the termination of contractual and commercial relations can prove insufficient, even if they were strictly observed. Legal requirements, in particular those of the above mentioned article, also have to be complied with.

This article prescribes (i) a written notification of the termination and the notice period as well as (ii) the observance of an appropriate notice period in proportion to the duration of the hitherto existing commercial relationship, whereas previous commercial relationships can be taken into account for the determination of this duration, depending on the applications of this article by case law.

In a decision of 15 September 2015, the commercial division explicitly ruled out that the contractual and commercial relationship established prior to a transfer of business is taken into account for the calculation of the duration of the commercial relationship between the purchaser of the business and a service provider, and thus for the determination of the « appropriate » notice period in the sense of article L. 442-6, I, 5° of the Commercial Code.

In the case at hand, on 14 April 2006, the purchaser of a business had terminated his contractual and commercial relationship initially established in 1998 by the former owner of the business with a transportation provider, giving him a four months’ notice.

This termination took place two weeks after the transfer of business, whereas the new purchaser had been operating the business for five months on a lease contract basis.

The commercial division decides that the transfer of business alone does not suffice to establish that the purchaser of the business had the intention of continuing the contractual and commercial relationship initially created by the former owner of the business with service providers. Thus, the previous commercial relationships cannot be systematically taken into account to determine the « appropriate » notice period (within the meaning of article L.442-6,I, 5° of the Commercial Code).

The commercial division is of course unlikely to exclude, in a definite way and for all circumstances, the continuation of commercial relationships from the criteria for the determination of a sufficient notice period (within the meaning of article L.442-6,I, 5° of the Commercial Code), and the impact of this decision should thus not be overestimated.

However, it significantly limits the obligation of taking into account the continuation of the commercial relationship in cases where one wishes to terminate it.

Solène Marais

zurück