Restrictive practices of competition: an important and welcome turnaround

The Court of Cassation, by a particularly didactic judgment, adopts a position more favourable to the parties who have not lodged their application before one of the specially competent courts.  

The restrictive practices of competition defined by Article L.442-1 of the Commercial Code (formerly L.442-6) include in particular the significant imbalance, the advantage without compensation or the sudden termination of established commercial relations. Actions between traders relating to these subjects may, pursuant to Articles L.442-4 III (formerly L.442-6 III) and D.442-2 of the Commercial Code, be brought only before eight specially competent courts, namely the commercial courts of Marseille, Bordeaux, Tourcoing, Fort de France, Lyon and Nancy and Paris. The only competent Court of Appeal is that of Paris. And this, whether the claims are made on a principal or counterclaim basis. 

In the event of claims made on these grounds before the wrong court, the Court of Cassation considered until now that the court seized was devoid of judicial power, which rendered the claim made before it inadmissible. In the event of inadmissibility, the party who made the requests had to reintroduce a new request before the competent court. But since an inadmissible application does not interrupt the statute of limitations, nor the time limits for appeal, the consequences could be heavy. Thus, if in the meantime the limitation period was acquired, the party concerned lost the possibility of submitting this question to the judge.  

It was this point that was disputed in the present case, the party filing the appeal in cassation seeking to have it recognized that it should be considered that the court seized was simply incompetent and not devoid of jurisdictional power.  

In addition to the turnaround on the merits, the decision of the Court of Cassation in this case is of a clarity and pedagogy that should be emphasized. It notes first of all that the position it has taken so far “does not correspond to the terminology” of the aforementioned articles. She adds that this position “leads to confused solutions and generates legal uncertainty for the parties” and notes that it results in “rigorous solutions for litigants who, following an error in the choice of court seized, may encounter that some of their claims are not examined”. Finally, it notes that it is complex to implement, does not allow for the proper administration of justice and is contrary to Article 33 of the Code of Civil Procedure. 

It concludes that it is necessary to amend its case law and that it must now be considered that this is an “exclusive jurisdiction rule and not a plea of inadmissibility”. It goes further and explains the consequences of this interpretation by indicating what the incompetent court must do, namely: either stay the proceedings until the competent court has ruled on the application concerning the restrictive practice of competition, or refer the entire case to the competent court.  

If the lack of jurisdiction, which must be raised in limine litis, that is to say before any defence to the merits, was not raised by one of the parties to the dispute, the court wrongly seised may ex officio raise its lack of jurisdiction, but without this being an obligation. If it decides despite its incompetence, the decision cannot be annulled for excess of power.  

This judgment thus provides a welcome and long-requested solution. The extreme rigour attached to the consequences of inadmissibility could indeed be a trap for good faith litigants, especially when the issue of restrictive practices was raised as a counterclaim. This could also be used dilatorily by the Defendants.

(Cass. com., October 18, 2023, No. 21-15.378)