NEWS

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16-04-2018

 

Only the specialized courts can grant a measure of investigation in futurum to the claimant relying on restrictive practices of competition

 

Under Article D. 442-3 of the Commercial Code, only 8 commercial courts have exclusive jurisdiction to hear in first instance the application of Article L.442-6 of the Commercial Code sanctioning the commission of practices that restrict competition such as the abrupt termination of established commercial relations, significant imbalance, etc. Similarly, only the Court of Appeal of Paris has jurisdiction to hear decisions rendered by these specialized commercial courts. The jurisdiction enacted by Article D.442-3 of the Commercial Code is of public order and its violation must in principle be raised automatically.

 

This rule of jurisdiction nevertheless poses practical difficulties which required clarification from the Court of Cassation.

 

In March 2017, the Court of Cassation thus ruled that the Court of Appeal, which is called upon to hear an appeal against a judgment of a non-specialized court having wrongly ruled on the application of Article L.442 -6 of the Commercial Code in violation of Article D.442-3 of the Commercial Code is itself devoid of any jurisdictional power to rule on this dispute and must pronounce the inadmissibility of the requests. (Cass. Com., March 29, 2017, appeals n°15-24.241 and n°15-17.659).

 

Practitioners wondered whether they should extend this solution to requests for investigative measures on the basis of article 145 of the Code of Civil Procedure. Indeed, it is traditionally accepted in this case that the plaintiff has the right to seize either the Court of the place where the measure must be executed or the Court normally competent to hear the merits of the dispute.

 

The Court of Cassation ruled in favor of the exclusive jurisdiction of the specialized courts in a judgment of January 17, 2018 (Cass. Com., January 17, 2018, appeal no. 17-10.360).

 

In this case, a franchisee had seized the President of the Commercial Court of Grenoble – a non-specialized court – with a request based on Article 145 of the Code of Civil Procedure in order to obtain authorization to practice measures of investigation at the headquarters of one of the members of the network. According to the terms of the request, which referred to Article L. 442-6, I, 2 of the Commercial Code, the franchisee was seeking to establish the existence of restrictive competition practices on the part of the franchisor.

 

The President of the Commercial Court of Grenoble having authorized the investigations requested by the franchisee, the franchisor and the member of the network concerned have filed an interim order against this authorization. Not having won their case, they then seized the Grenoble Court of Appeal, which retracted the order authorizing the investigations.

 

The franchisee then lodged an appeal in cassation which was rejected on the grounds that : "only the first degree courts specially designated by Articles D.442-3 and R.420-3 of the Code of Commerce are vested with the power to rule on disputes relating to the application of Article L.442-6 or in which the provisions of Article L.420-1 of the same code are invoked_cc781905-5cde-3194-bb3b- 136bad5cf58d_”.

 

The Court of Cassation recalls that " if the party requesting a measure on the basis of article 145 of the code of civil procedure has the choice of seizing either the president of the court called to hear the dispute that of the court of the place of execution of the measure of instruction, the seized president can however order such a measure only within the limits of the jurisdictional power of this court ”. However, by justifying in its request the need for the measures requested by the existence of practices contrary to article L.442-6 of the Commercial Code, the franchisee itself excluded the possibility for a non-specialized court to rule at his request.

 

The common law judge seized of a request for investigative measures on the basis of article 145 of the Code of Civil Procedure must therefore automatically raise his lack of jurisdiction when the provisions of article L.442-6 of the Commercial Code are referred to in the application.

 

 

Roland Rinaldo, Lawyer, Cabinet Artlex Nantes