On January 15, 2020, the commercial section of the French Court of Cassation (claim no 18-10.512) gives its broad vision of the relationship between commercial partner under former Article L442-6 2° of French commercial code (now and revised in Article L442-1).

A service provider had made agreements wit clients for the subcription and the license to use designed websites. These agreements were then transferred to a finance company and then another.

The Paris Court of Appeal had turned down the claim from clients made on the forme Article L442-6 2 ° of the commercial code by indicating that these contracts constituted lease agreements.

On the one hand, as the financial entity has been authorized by the Prudential Supervisory and Resolution Authority, the Court indicates that Article L. 511-4 of the Monetary and Financial Code only provides that Articles L. 420-1 to L. 420- 4 of the French Commercial Code on anti-competion practices apply to credit institutions and finance companies for their banking and related operations defined in Article L. 311-2 of the same code. Consequently, the legislator did not extend to credit institutions and financial companies the application of the texts relating to restrictive competition practices.

On the other hand, the Court of Cassation considers that the Appeals Court could not rule out the application of the text of Article L442-6 2 ° relating to the liability of the author (service provider) of the significant imbalance or of the attempt to impose it by considering that the contracts of subscription and license « did not imply a common and reciprocal intent to carry out acts together in production, distribution or service activities », because, such added to the legal provisions some conditions relating to the duration and reciprocity of relations between the contracting parties which it does not contain.

In any event, the credit or financing companies escapes the application of the text on significant imbalance.

Frédéric Fournier
Partner