V ° ECONOMIC VIOLENCE   
  
 

The Court of Cassation, COMMERCIAL.

December 14, 1999. Decision No. 2050. Rejection.

Appeal No. 97-20304.

On the appeal of: 1 / Nicole Elléouët, appointed liquidator, remaining 9, rue de Neptune, 29603 Brest, acting in his capacity as liquidator in the liquidation of Mr. François Pers, 2 / Treguer Annie, wife pers, remaining 1, rue de Brest, 29290 Saint-Renan, to quash a decision of 27 June 1997 by the Court of Appeal of Paris (25th Civil Division, section B), for the benefit of BP France, limited company, whose headquarters are 8 Street Gemini, Cergy Saint-Christophe, Cergy Pontoise 95800, defendant to appeal;

The plaintiff relies in support of its appeal, the two products means by CPC Bore, Bore and Xavier, a lawyer for Ms. Tips Elléouët, ex officio,

FIRST SUBMISSION OF APPEALS

It is alleged that the decision to have partially reversed attacked ruled null and void all agreements with related parties;

the grounds that the provisions of Article 50 of the Ordinance of 30 June 1945 and Articles 7.8 and 9 of the Ordinance of 1 December 1986 relate to the economic order and that their ignorance vitiates the absolute conventions in question, that the application for revocation under this head formed by Master ELLEOUET is admissible, but that for the first of these, BP rightly argued that evidence of an action on its part or a dominant position which it occupied in the domestic market likely to distort the normal functioning of the market is not provided, the provisions of Article 7 of the second order is shown to imply that the existence of a concerted the reference market may affect the free play of competition that, even assuming defined the relevant market as that of petroleum products, categorically denies that the company BP, evidence of concerted action BP is not reported, the application of Article 8 of the order implies that the BP in the relevant market occupies a dominant position, which is not established or even seriously argued;

1 / so what prohibited the abuse of a dominant position in a substantial part of the internal market if it is intended or may result in the prevention, restriction of competition in a market that dominance in a market is determined by the ability to act without having to consider the competition, even alive, existing in this market and that, moreover, the burden of proof to set prices in accordance with the law requirements competition, rests with the recipient of a dominant position in this case, ELLEOUET Master, in his capacity, argued and established that the local market as fuel, however, throughout the national territory, the BP FRANCE fixed, as principal, the price of fuel sold in the service station owned by Mr. PERS at a level higher than that deliberately practiced by supermarkets that also supplied, which established the independence of behavior of the BP FRANCE on the fuel market vis-à-vis the competition that Master ELLEOUET added that the BP FRANCE used its dominant position in order to eliminate the market, Mr. PERS who suffered in result of the posted prices at the pump, a catastrophic decline litrage not offset by proceeds from the sale of lubricants, which in turn sold to Mr. PERS too expensive to allow it to compete effectively in the supermarkets, also supplied with lubricants the BP in the neighboring market of lubricants in stating that Master ELLEOUET did not establish or even seriously alleges an abuse of dominant position in the petroleum products market, while it placed the discussion under the main market of fuels, the Court of Appeal disregarded the terms of the dispute in violation of Article 4 of the NCPC;

2 / while (in the alternative), in not looking, and that she was invited by the conclusions of Appeal, which was the relevant market of fuel taken as reference and the company that BP had other opportunities, particularly with large surfaces and the notes, moreover, the Court of Appeal (Judgement, p. 8, paragraph 4), on the one hand, through the commission contract for the distribution of fuel, imposed on him retail prices higher than those of competition resulting in lower sales and, thus, a decrease of the commission to cover the cost of fuel distribution, in addition to his salary and, on the other hand, imposed on Mr PERS , on the neighboring market lubricants, wholesale prices for lubricants that prevented him from practicing in retail prices competitive and if this double behavior characteristic of the oil company ‘discriminatory practices’ with regard to lubricants or the ‘choice of an improper mode of distribution’ for fuels, such as to lead to asphyxiation of the dispenser and disposal and, thereby, reducing competition in the respective markets fuels and lubricants The Court of Appeal decision in private legal basis under Articles 50 of the Ordinance of 30 June 1945, as amended by the Act of July 2, 1963, and Article 8 paragraph 1 of the order December 1, 1986;

and on the grounds that the abuse by BP of the economic dependence of the operator can not be accepted when Mr. PERS that was linked to the oil by any exclusivity clause, has solutions equivalent to source, the BP did not engage in price discrimination relating to lubricants as has been said, that the mere fact that BP has sold at a higher price lubricants that Mr. PERS ‘to supermarkets is not sufficient to characterize a predatory pricing, and especially the clause supply lubricants, included in an agreement under the regime of the integrated distribution, covers a marginal activity;

3 / when the abuse of economic dependence may result from discriminatory pricing practices or other making it impossible to compete on the relevant market, a contractor does not have equivalent solution, that existence of an exclusivity clause deprives the contractor of equivalent alternative solution during the execution of a contract can not terminate it without prejudice, in this case, discarding the alleged abuse of economic dependence by stating that Mr. PERS was not related to BP by any exclusivity clause so that the existence of the exclusivity clause in the storage facility owned by BP, and distribution of branded fuels BP was constant, accepted by both parties, the BP merely argue that Mr. PERS could terminate his empire by the termination of the contract, the Court of Appeal disregarded the terms of the dispute in violation of Article 4 of NCPC;

4 / Moreover, while in stating that Mr. PERS could ‘supplies of lubricants from competing suppliers and, above all, the supply of lubricants was the subject of a marginal clause’ of the contract of commission on the fuel distribution, the Court of Appeal denatured by commission, the commission contract (special conditions), which contains no provision accessory supply and, thereby, violated Article 1134 of the Civil Code;

5 / while in not looking if the clause in the agreement to supply lubricants in 1983, it has itself noted the existence (Judgement, p. 8, paragraph 5) that Mr. PERS was required to meet annual quotas, on pain of termination to his wrongs upon payment of compensation, produced effects equivalent to those of an exclusivity clause by checking whether the quotas imposed cover and exceed the needs of the station service lubricants, the Court of Appeal denied his decision as a legal basis under Article 8-2 ° of the order of 1 December 1986.

SECOND grounds of appeal (SUBSIDIARY)

He is accused of having attacked the decision dismissed the action for damages for abuses in price fixing;

the grounds that to demonstrate the performance of its obligations of good faith by the oil, Me ELLEOUET official capacity claims that it abused its right in fixing the selling prices of lubricants unilaterally since selling these products more expensive, the operator, to compensate for its loss, was forced to sell these products to consumers at a higher price than that charged by supermarkets, which was likely to divert customers, but the mere fact that BP has sold the company at a price higher lubricants Mr. PERS and large surfaces is not sufficient to characterize a predatory pricing, that indeed it is true that the agreement stipulates that the lubricating grease are sold to the customer at the price resulting from the dealer price of BP at the date of delivery, any of the particulars of this contract provides for an exclusive supply clause, but only the obligation of the operator to purchase a agreed amount unless being confronted with the termination indemnity; so that the operator had the option to purchase from another tanker and that, above all, Me ELLEOUET, in his capacity, does not show what would be the reference price and ignores the significant costs taken into account by the oil to determine its price and marketing strategy adopted by him;

1 / when the lubricant supply contract, together with an exclusivity clause or allowances to cover the needs of the service station, to be executed in good faith by oil supplier, recipient of the clause, by fixing the selling prices of lubricants to gas station attendant at a level that allows it to keep prices competitive in the retail market, the Court of Appeal found that the BP lubricants sold to Mr. PERS a higher price than supermarkets but has ruled out the existence of an abuse in fixing the selling price the ground that the lack of exclusivity of supply, irrespective of whether the clause quota violation of which, as she is also exposed the dealer termination with compensation for his wrongs to his office, covered the needs of the service station and lubricants and produced effects equivalent to those of an exclusivity clause, the Court of Appeal denied his decision as a legal basis under the provisions of Articles 1134 and 1147 paragraph 2 of the Civil Code, and 36 of the Ordinance of 1 December 1986;

and the reasons that Mr. ELLEOUET, in his capacity, further complains that the BP of having reserved control of the selling price (fuel) without allowing the distributor to achieve a sufficient volume, having regard to the remuneration contractually agreed for load balancing operations incompressible, that the contract provides that the Committee commission sells a non-exclusive, on behalf of BP, retail fuel its brand on a commission basis on sales, but that setting the price at the pump is not enough to show that BP has abused the alleged economic dependence of the commission when it is established that the contracting parties had divergent interests and the remuneration of Mr. PERS, freely accepted, depends on the prices of nearby gas stations and customer behavior, in this state, the alleged abuse in fixing the sale price and not the resale price to customer of the operator, lubricants (sic) like fuel is not established, no more than the assertion taking the wrongful conduct of the company that BP would not give the operator the ability to charge prices competitive for a normally operating cost of the service station can not be inferred from the mere finding of results of operations, it is shown that the BP has set a price abnormally high compared to that charged, d On the one hand, the other stations in its network, on the other hand, other petroleum that this criticism only tends to undermine the economy of the contract freely accepted by the parties;

2 /, while the existence of the exclusivity clause storage and fuel distribution branded BP was constant between the parties, BP itself admits the existence of this clause by merely argue that Mr. PERS could put an end to his empire by the termination of the contract in denying its existence, admitted by both parties, the Court of Appeal disregarded the terms of the dispute submitted to it in violation of Article 4 of the NCPC;

3 / when the commission contract must be executed in good faith, particularly in regard to the pricing of incumbent service delivery to the alleged commission held an exclusive, it is undisputed that the oil company has set the amount of ‘commission’ based on a percentage of the price of fuel at the pump, itself determined by the oil company, and that it practiced the highest prices for fuel sold by the through the commission, from which it follows that in determining the amount of the fee by reference to fuel prices showed that unilaterally Oil Company has tainted the contract abuse in determining the price of the service and a breach of the duty of good faith in removing the fault of the BP FRANCE, the Court of Appeal violated by refusing to apply Articles 1134 and 1147 paragraph 2 Civil Code, and 36 of the Ordinance of 1 December 1986;

4 / so that the burden in any event at the oil company to show that fuel prices correspond to a true market price as proceeding from the competition and not a pricing strategy practiced for the benefit of powers within the integrated network which depended the commission, providing that the BP FRANCE of this evidence, the Court of Appeal violated Article 1315 paragraph 2 of the Civil Code and Article 1 of the Ordinance of 1 December 1986.

grounds of appeal annexed to this Order;

THE COURT, in the public hearing on November 4, 1999, attended by Mr. Dumas, President, Mouillard, Commissioner of rapporteur, MM. Leclercq, Poullain, Metivet, Ms. Garnier, Lardennois, counselors, MM.Huglo, Boinot, Ms. Champalaune, counselors referendum, Ms. Piniot, General Counsel, Madame Arnoux, Clerk of the Chamber;

Acknowledges Ms. Person’s withdrawal of appeal;

It is clear from the judgment (Paris, June 27, 1997) Mr. Person, who owns a gas station in Saint Renan (29), and BP France SA (BP) were, in the last statement their relationship, bound by a ‘convention lubrication’ for the sale of lubricants as of June 10, 1983, and a commission contract for the supply of fuel from 2 January 1984 that BP had also brought bail June 10, 1983, the repayment of two loans taken out by Mr. Persons, Mr. Persons has decided to terminate their contractual relationship, a statement of account showing a balance in its rate of 702 francs was 291.05 established in November 1987 that Mr. Persons was put in liquidation December 3, 1991, as claiming to have suffered from the BP price discrimination, he gave it to set aside contracts for abuse of dominant position , accusing further abuse in the pricing and execution of a bad faith that the liquidator, Ms. Elléouët, took over the proceedings;

The first plea, made its first branch:

Whereas Ms. Elléouët, ex officio, criticized the decision to have refused to cancel the agreements then, according to the appeal, what prohibited the abuse of a dominant position in a substantial part of the market, when it purpose or may have the effect of preventing, restricting the competition in a market, that the dominant position in a market is determined by the ability to act without having to consider the competition, even strong, existing this market and that, moreover, the burden of proof to set prices in accordance with the requirements of competition law rests with the recipient of a dominant position that in this case, Ms. Elléouët, ex officio, argued and established that the local market as fuel, d also on the entire national territory, BP fixed, as principal, the price of fuel sold at service station owned by Mr. Pers deliberately at a level higher than that prevailing by supermarkets that also supplied, which established the independent behavior of the BP on the fuel market vis-à-vis the competition, Ms. Elléouët BP added that the company used its dominant position for d out of the market that Mr. Pers suffered as a result of the posted prices at the pump, a catastrophic decline litrage not offset by proceeds from the sale of lubricants, which in turn sold to Mr. Pers too expensive to allow it to effective competition to supermarkets, also supplied with lubricants by BP on the neighboring market of lubricants that by stating that Ms. Elléouët n n established or not even seriously alleged abuse of dominant position in the petroleum products market, while it placed the discussion in relation to the main market of fuels, the court of appeals disregarded the terms of the dispute in violation of Article 4 of the new Code of Civil Procedure;

But thus expected that the decision points out, Ms. Elléouët, in the last statement of his writings served on January 16, 1997, accused the BP an abuse of dominant position in the market for petroleum products and not on the fuel , that the complaint has no factual basis;

The first plea, made its fifth branch and the second plea, made its first branch, meeting:

Whereas Ms. Elléouët, in his capacity, even at the stop criticism for refusing to cancel conventions and have dismissed his action for damages for breach in the pricing then, first, that no looking if the clause in the agreement to supply lubricants in 1983, it has itself noted the existence, that Mr. Person was required to meet annual quotas, on pain of termination to his wrongs upon payment of a compensation, produced effects equivalent to those of an exclusivity clause, by checking whether the quotas imposed cover and exceed the needs of the service station in lubricants, the Court of Appeals denied his decision as a legal basis under the Article 8-2 ° of the order of 1 December 1986, and then, secondly, that the contract to supply lubricants, matched to an exclusivity clause or a provision of allowances to cover the needs of the service station, must be performed in good faith by oil supplier, beneficiary of the clause, setting the selling price of lubricants to gas station attendant at a level that allows it to keep prices competitive in the retail market, the Court of Appeal, found that the BP lubricants sold to Mr. Pers a higher price that the supermarkets, but has ruled out the existence of abuse in fixing the selling price the ground that the absence of a clause exclusivity of supply, irrespective of whether the clause in which the quota violation, and that it is also exposing the dealer to termination with compensation for his wrongs to his office, covered the needs of the service station and produced lubricants and effects equivalent to those of an exclusivity clause, a private decision of a legal basis under the provisions of Articles 1134, paragraph 2, and 1147 of the Civil Code, and 36 of the Ordinance of 1 December 1986;

But whereas, without calling into question argued that the clause quota supply lubricants that bound to M. Pers BP cover the needs of its operations and should be treated as an exclusivity clause, Ms. Elléouët can not complain that the appellate court not to have conducted this research, which he was not sought, the complaint is unfounded;

The first plea, made its second, third and fourth branches, and the second plea in his last three branches, meeting:

Whereas Ms. Elléouët, in his capacity, is finally grievance to stop refusing to cancel conventions and have dismissed his action for damages for breach in the pricing then, first, that not looking, and that she was invited by the findings of call, what was the relevant market of fuel taken as reference and the company that BP had to other outlets, in particular, with large areas and be seen, d Moreover, the court of appeal, first, through the commission contract for the distribution of fuel, it imposed retail price higher than the competition resulting in lower sales and, thus, a reduction in commission to cover the cost of fuel distribution, in addition to his salary and, second, imposed on M. Pers, on the neighboring market lubricants, wholesale prices for lubricants which prevented the practice of retail prices competitive and if this double behavior characteristic of the oil company ‘discriminatory practices’ with regard to lubricants or ‘improper choice of a method of distribution’ for fuel, which would lead to the suffocation of the dispenser and disposal and, thereby, reducing competition in the respective markets fuels and lubricants, the Court of Appeals denied his decision as a legal basis under Articles 50 of the Order of June 30, 1945, as amended after of the Act of July 2, 1963, and the article 8, paragraph 1, of the order of 1 December 1986, while on the other hand, the abuse of economic dependence may result from discrimination in prices or other practices, putting in the inability to compete in the relevant market a counterparty does not have equivalent solution, that the existence of an exclusivity clause deprives the other party solution equivalent parts, during the execution of a contract that he can withdraw without prejudice, that in the present case, by removing the alleged abuse of economic dependence by stating that Mr. Pers n was related to BP by any exclusivity clause, while the existence of the exclusivity clause in the storage facilities , owned by BP, and distribution of branded fuels BP was consistently recognized by both parties, the BP merely argue that Mr. Pers could end his empire by the termination of the contract, the court Appeals disregarded the terms of the dispute in violation of Article 4 of the new Code of Civil Procedure then in addition, also stating that Mr. Persons was’ s supply lubricants from competing suppliers and, above all, the supply of lubricants was the subject of a marginal clause ‘of the contract of commission on the fuel distribution, the court of appeal has distorted the commission contract (special conditions), which contains no provision for accessory supply and thereby Similarly, violated Section 1134 of the Civil Code, so, moreover, that the existence of the exclusivity clause storage and fuel distribution branded BP was constant between the parties, BP itself admits the existence of this clause by merely supporting Mr. Pers could end his empire by the termination of the contract, that by denying its existence, admitted by both parties, the court of appeals disregarded the terms of the dispute submitted to it in violation Article 4 of the new Code of Civil Procedure, so, again, that the commission agreement must be executed in good faith, particularly in regard to the pricing of incumbent service delivery to the alleged agent, bound to a exclusive, that it is undisputed that the oil company has fixed the amount of ‘commission’ on the basis of a percentage of the price of fuel at the pump, itself determined by the oil company and that it practiced the prices higher for fuels sold by the intermediary of the commission, of which it follows that in fixing the amount of the fee by reference to fuel prices showed that it unilaterally, the oil company has marred the performance of the contract of an abuse the pricing of the service and a breach of the duty of good faith, that by removing the fault of the BP, the Court of Appeal violated by denial of application items 1134, paragraph 2, and 1147 of Civil Code, and 36 of the Ordinance of 1 December 1986, and then, finally, that the onus in any case to the oil company to show that fuel prices correspond to a true market price, as proceeding from the game competition and not to a pricing strategy practiced for the benefit of its powers, within the integrated network which depended the commission, by providing that the BP of this evidence, the Court of Appeal violated sections 1315 paragraph 2 of the Code Civil and first order of December 1, 1986;

But waiting has aving chosen the one hand, that for fuel, there is no evidence that BP has imposed M. Pers selling prices higher than that practiced in other stations in its network or to those charged by other oil and the other, as regards lubricants, M. Pers was not related to BP by an exclusivity clause of supply and its activity as such was only a marginal portion of its revenue, the Court of Appeal, for these reasons alone, apart from all others superfluous and without reverse the burden of proof, justified its decision and to consider that the BP had committed no abuse, or enjoying a dominant position or economic dependence of M. Pers, nor in the pricing of goods, the means can not be met;

FOR THESE REASONS:

Dismiss the appeal;

Ms. Elléouët condemns, in his capacity at the expense;

Having regard to Article 700 of the new Code of Civil Procedure, rejected the request of BP France.

On the report of Ms. Mouillard, Commissioner of the observations of SCP Bore, Bore and Xavier, counsel for Ms. Elléouët, ex officio, of Mr. White, counsel for BP France, the findings of Ms. Piniot, General Counsel, and After deliberating in accordance with the law, Mr. President Dumas.

Advertisements

Posted on ខែមករា 10, 2012, in យុត្តិសាស្រ្ត. Bookmark the permalink. បាន​បិទ​ការ​បញ្ចេញ​មតិ នៅ case 13.

ការ​បញ្ចេញ​មតិ​ត្រូវ​បាន​បិទ។

%d bloggers like this: