Abusive practices and the Commercial Code
The Commercial Code provides for the prohibition of abusive practices and in particular abuse in sales (predatory prices which are abnormally low prices, resale at a loss and sales with premiums ).
The violation of articles L 420-1, L 420-2, L 420-5 and L 442-6 engages the tort liability of their authors.
A third party can invoke, on the basis of tort liability , the sudden termination of a commercial relationship when this failure has caused him damage Cass. com. September 6, 2011
Termination of commercial relations
Article L. 442-6 I 5 of the Commercial Code, which provides that any producer, merchant, industrialist or person registered in the trades directory, who abruptly terminates an established commercial relationship, may be taken into account. or the legal status of the victim of the offending behavior. February 6, 2007
The fact that any producer, merchant, industrialist or person registered in the business register suddenly, even partially, terminates an established commercial relationship, without written notice taking into account the duration of the commercial relationship and respecting the minimum period of notice determined, in reference to commercial practices, through interprofessional agreements, engages the tort liability of its author. February 6, 2007
Articles L 442-6 define abusive practices involving the responsibility of their author. It is a question of ensuring on the market, and in particular in the relations between production and distribution, the respect of rules which one can consider as inherent in a fair and balanced market.
These practices are as follows
- Discriminatory practices of sale or purchase not justified by real counterparties (which may be penalized in the event of abuse of domination)
- obtaining an advantage without proportionate consideration
- abuse of dependence, buying or selling power
- obtaining an advantage derogating from the general conditions of sale under the threat of sudden termination of commercial relations, in particular of a delisting
- the sudden termination of established commercial relations
- the payment terms clearly abusive
The Commercial Code prohibits “rear margins”. Are void the clauses or contracts providing for a producer, a trader, an industrialist or a craftsman the possibility of retroactively benefiting from discounts, rebates or agreements of commercial cooperation. Payment obligations for a right of access to referencing are also prohibited prior to placing any order. Finally, it is prohibited to prohibit the contracting party from ceding to third parties the receivables that it holds against it (factoring).