Competition law and contract law

Back to the main page Law and Society COMPETITION LAW AND CONTRACT LAW Outline INTRODUCTION PART ONE: THE INTRUSION OF COMPETITION LAW INTO CONTRACT LAW CHAPTER I. THE INFLUENCE OF COMPETITION LAW ON CONTRACTUAL FREEDOM Section 1. Transparency of the offer Section 2. Non-discrimination and discriminatory practice Section 3. Non-discrimination and the ambivalence of refusal to sell Section 4. The indeterminacy of price in framework distribution contracts CHAPTER II. THE INFLUENCE OF COMPETITION LAW ON THE BINDING FORCE OF THE CONTRACT Section 1. The application of cartel law to commercial distribution contracts Section 2. The control of non-competition clauses CHAPTER III. THE INFLUENCE OF COMPETITION ON THE RELATIVE EFFECT OF CONTRACTS Section 1. The limitation of relative effect by contractual practice in domestic law Section 2. The limitation of relative effect by Community competition law PART TWO - THE RESISTANCE OF CONTRACT LAW CHAPTER I. THE FINDING OF A RESISTANCE Section 1. Abuse of economic dependence Section 2. The failure to recognise a right to renewal of the fixed-term exclusive concession contract CHAPTER II. ELEMENTS OF EXPLANATION OF THE PHENOMENON OF RESISTANCE Section 1. The heterogeneity of legal systems Section 2. Two laws in conflict of "legitimacy"? CONCLUSION BIBLIOGRAPHY INTRODUCTION According to the thinker Adam Smith, in order to found the freedom of individuals, one can prove that society does not need an absolute power to maintain order. There would in fact exist an "invisible hand" that guides individual passions towards the good of all. This hand would be nothing other than the expression of our common aspirations. This conception was in line with that expressed, among others, in a somewhat different manner but in substance relatively similarly, by Montesquieu in The Spirit of the Laws. In that work, the French political thinker held that, guided by profit and by the impression that it was preferable to do business than to make war, individuals left to themselves would very certainly organise themselves, guided by the reason of laws, into a community governed by pecuniary but also human interests. The Enlightenment philosophers having a preponderant influence, the Civil Code of 1804 was the reflection of a society living through a veritable liberal revelation. Nevertheless, the social context of 1804 continued its evolution all the same, and now bears hardly any resemblance to the one we know today. New needs have emerged, others have disappeared. Among these, that of maintaining certain balances between economic partners has become increasingly acute, to the point of calling into question certain principles of contract law that were believed to be immutable. It is therefore appropriate to consider a few reasons why history caused competition law to emerge alongside contract law. 1. The decline of contractual liberalism and the emergence of economic dirigisme The Civil Code, inspired by the principles of the Revolution (liberty, equality, secularism), marks the triumph of liberal individualism. The principle of contractual freedom is constantly affirmed in it, in particular by article 1134, according to which the contract is law between the parties. It must also be reconciled with the principles of contractual justice, good faith, and legal certainty. The three rules that governed contractual relations were as follows: - The contract is the legal form of freedom par excellence. - The contract is sacred, because it results from two wills presumed to be equal. - The State must refrain from intervening in contractual matters. In practice, however, this freedom amplified social imbalances that were more damaging to it than supportive of it. This phenomenon led to a considerable tempering of the ideology of economic liberalism. First, for reasons of social protection and, subsequently, owing to contingent circumstances linked to the war of 1914, the economic crisis of the 1930s, the war and post-war of 1939, the shortages of the occupation, and the needs of reconstruction. It was thus little by little that the need for economic regulation by public intervention came to light. It was in 1945 that, in the hope of curbing rising inflation, a system of administered prices was established. It is therefore the ordinances of 30 June 1945 (instituting the price freeze) that will constitute the basic text of competition law. Subsequently, amendments were made by the decree of 9 August 1953 on the prohibition of cartels, the law of 2 July 1963 on abuses of dominant position, and finally the law of 19 July 1977 on the control of concentrations. It was only forty years later that it was decided to return to a system of price freedom by the ordinance of 1 December 1986. The emergence of competition law and its subsequent evolution have brought to light a new economic approach to contractual relations. The correlation between competition law and contract law, although it proceeds from a normal process, does not, however, always appear easy to grasp. For example, it is difficult to define how far contractual freedom should be allowed its full expression, within the limits of the requirements of competition law. Indeed, the latter has created new mechanisms whose effects are difficult to grasp, owing to its interaction with those arising from freedom of competition. 2. The coexistence of the principles of contractual freedom and freedom of competition. The principle of the autonomy of consent which predominates in the Civil Code has as its essential corollaries the principles of contractual freedom, binding force and relative effect of agreements. Enshrined in articles 1134 and 1165 of the Civil Code, they constitute the essential fabric of contracts. The principle of contractual freedom presupposes the choice of one's contracting party, the determination of the content of the contract, the arrangements for performing obligations, etc... Yet it cannot be absolute insofar as it must be combined with other major principles of law, such as free competition. They indeed have in common that they rest on the same fiction: a certain equality of the parties. The latter are in fact envisaged as average, honest individuals possessing a standard behavioural ideology. As regards our study, one can therefore accept that contractual freedom and freedom of competition do coexist; the reason is that, a priori, freedom of competition goes hand in hand with the conclusion of civil and/or commercial contracts. 3. The principle of freedom of competition The principle of freedom of trade and industry was proclaimed by the law of 2-17 March 1791, known as the Allarde decree, which provides in its article 7: "that from the 1st of April next, it shall be free for any person to engage in any trade or to practise any profession, art or craft, as they see fit". This principle was reaffirmed by article 1, paragraph 1, of the orientation law on trade and industry (known as the Royer law), which provides: "freedom and the will to undertake are the foundations of commercial and craft activities". The question of the constitutional value of this principle has not been settled. Indeed, neither the constitution of 1946 nor the constitution of 1958 refers to it. However, the preamble of 1958 refers back to that of 1946, which reaffirms the fundamental principles recognised by the laws of the republic. It is accepted that freedom of trade and industry is one of the fundamental principles of the regime of civil and commercial obligations and consequently falls within legislative competence. Nevertheless, even if its constitutional value is not clearly established, it remains certain that only statute may impose restrictions on it. This text constitutes a major foundation of which freedom of competition is an application. The principle of freedom of competition is affirmed by article 1 of the ordinance of 1 December 1986 on freedom of prices and competition, which achieves the autonomy of competition law. Thus the ordinance, imbued with "a well-tempered liberalism tainted with a few remnants of the past", repeals direct infringements of free competition and maintains the provisions intended to ensure the competitive functioning of the market. However, the system of competition law has evolved. Indeed, that prior to 1986 rested on a precise principle of prohibition, accompanied by exceptions, which reflects the classic scheme we know in law. Yet, since the ordinance of 1 December 1986, the system of competition law is founded on contractual freedom, attaching to it only a control of abuse. Competition law is an instrument for regulating economic policy which aims to ensure the competitive functioning of the market. The directive economic public order is directly involved. 4. The notion of economic public order The general interest prevails over the particular interest; this is what article 6, reinforced by article 1133 of the Civil Code, expresses: "one may not derogate, by private agreements, from the laws which concern public order and morality". A preliminary question concerns the content of the notion. In a classic sense and according to Planiol's definition, a provision is of public order: "whenever it is inspired by a consideration of general interest which would be compromised if private individuals were free to prevent the application of the law". In economic matters, the notion of public order legitimises, in a way, public intervention, in the name of the general interest, in economic activities, and more precisely in the exchange of goods and services. Starting from the notion of economic public order identified by Mr Ripert, Mr Carbonnier makes a now traditional distinction between directive public order and protective public order. Some authors maintain that in reality, owing to economic evolution, a new economic public order is emerging. Public order can therefore be considered as a point of articulation between the general theory of contracts and competition law, since any contract concluded in disregard of domestic or Community rules is liable to be annulled by application of article 6 of the Civil Code. Article 9 of the ordinance of 1 December 1986 recalls this by clearly stating "that any undertaking, agreement or contractual clause relating to a practice prohibited by articles 7 and 8 is null and void". In concrete terms, competition law assumes a role of limiting contractual freedom in the same way as economic public order. Indeed, if the objective of competition law is indeed to ensure "the effectiveness of competition on the market", its justification being based on its maintenance through the protection of the market and of economic freedom. It is even deduced that, according to the classic scheme, contractual freedom finds one of its limits in the existence and exercise of another freedom, that of free competition. It should be specified that this study will deal only with commercial contracts, and most particularly with commercial distribution contracts, which constitute the epicentre of the subject. The intrusion of competition law into the general theory of contract manifests itself from the very birth of the legal act creating obligations. Contractual freedom (the expression of individual will) deduced from the principle (or dogma) of the autonomy of will may clash with principles whose sources lie in the general interest. It is therefore appropriate to examine the phenomenon of intrusion through its specific manifestations (first part); a relative intrusion since it meets with resistance within contract law (second part). PART ONE: THE INTRUSION OF COMPETITION LAW INTO CONTRACT LAW This intrusion can be observed at different stages of the contractual process. For the sake of coherence, it is appropriate to examine it according to the traditional civil-law scheme: formation, content, and effects of the contract. This leads to considering its influence on contractual freedom (Chapter ), the binding force of contracts (Chapter ) and their relative effect (Chapter ). Chapter I. The influence of competition law on contractual freedom In order to remedy the possible impairment of competition that could result from anticompetitive behaviour, the public authorities, considering that transparency is the corollary of the principle of freedom of competition and more precisely of freedom of prices, have intervened by determining a specific regime for the formation of contracts between professionals. They have favoured competition between suppliers, which presupposes perfect transparency of the offer (Section 1) and non-discrimination (Section 2). Section 1. Transparency of the offer § 1) The textual basis Since the law of 27 December 1973, known as the Royer law, buyers' knowledge of suppliers' tariffs by professional buyers has been facilitated by compliance with a certain formalism and by the existence of public-order provisions. This principle was enshrined by articles 31 and 33 of the ordinance of 1 December 1986. More precisely, article 33 of the same ordinance contains provisions relating to the pre-contractual phase. Indeed, under the terms of this article: "any producer, service provider, wholesaler or importer is required to communicate to any buyer of a product or requester of services for a professional activity who so requests, its price scale and its conditions of sale (...) the communication is made by any means in keeping with the customs of the profession". The principle of transparency in commercial transactions ensures the free setting of prices through the interplay of competition (that is to say of supply and demand), in accordance with the provisions of article 1 of the ordinance of 1 December 1986. § 2) The content of the principle By transparency of the offer is meant the fact that "any offeror on the market must make known to all potential contracting parties the conditions on which it proposes to commit itself". "The principle is to provide customer firms with pre-contractual information and to enable them to choose the suppliers who offer them the best quality-price ratio." This principle aims to protect buyers from possible discriminatory treatment. For by favouring opacity in commercial relations, one can only impair the competitive functioning of the market. Consequently, it is accepted that transparency is a necessary condition of the free play of competition. At the stage of contract formation, transparency materialises as an obligation to communicate the general conditions of sale and of provision of services. More precisely, this text imposes an obligation of disclosure on professionals, suppliers or distributors, towards any reseller (excluding service providers). § 3) The effects on contractual freedom at the time of formation of the contract I - A necessary transparency Is the principle of vertical transparency, that is to say relating to agents located at different stages of economic activity, a necessary condition for free and effective competition? It can be observed that there is no unanimity in this matter. Indeed, according to some, the obligation to communicate the general conditions of sale or of provision of services would lead to a normalisation, and even a standardisation, of commercial relations. From this perspective, one would be moving towards the idea that "excess transparency kills competition", owing to the absence of any individual negotiation. Others, on the other hand, have seen in it the assurance of better conditions for the exercise of competition through the circulation of information. II - The scope of the obligation It must be specified that the pre-contractual obligation to provide information, more than the expression of a certain formalism, reinforces the obligation of non-discrimination. Indeed, as Mrs Dreiffuss-Netter points out, "non-discrimination is the negation of intuitus personae, felt as a sacrifice of individual freedom to that of competition". It is certain that the principle of transparency excludes taking arbitrary and personal elements into consideration. Moreover, the commercial chamber of the Court of Cassation affirmed in a judgment of 18 January 1994 the kinship between articles 36 and 33 of the ordinance of 1 December 1986, seeing in the legal obligation of communication "an indispensable prerequisite for an objective knowledge of the conditions offered, in the absence of which the absence of wrongful discrimination cannot be demonstrated". Thus, in the name of free competition, the exercise of contractual freedom at the time of contract formation is, in a way, framed by the establishment of pre-contractual information obligations, intended to ensure clarity in commercial relations. If, in consumer law, the pre-contractual obligation of information is justified by the requirements of protective public order, in competition law it is the link with the notion of directive public order that has inspired these provisions. Conclusion Consequently, the obligation of communication, although beneficial to equality of competition, nevertheless constitutes a more or less appreciable limitation on the taking into account of intuitus personae at the time of formation of the contract. Section 2. Non-discrimination and discriminatory practice § 1) The principle of non-discrimination The notion of equality in competition is the counterpart of that of freedom of competition. Obviously, it is not absolute in the sense that "it consists only in treating competitors in an equal situation equally". This de facto equality remains necessary for the development of competition, and this is the reason why the ordinance of 1 December 1986 prohibits discrimination. This principle is set out in article 36-1 and 36-2 of the ordinance of 1 December 1986, which provides: "the liability of its author is engaged and he is bound to compensate for the harm caused by any producer, trader, industrialist or craftsman: 1. Who practises, with regard to an economic partner, or obtains from him, discriminatory prices, payment periods, conditions of sale or terms of sale or purchase not justified by real consideration, thereby creating for that partner a disadvantage or an advantage in competition. This principle of non-discrimination had already been enshrined by articles 38 of the law of 27 December 1973 and 37-1 of the ordinance of 30 June 1945, aimed respectively at unlawful discrimination and refusal to sell. Article 36 of the ordinance of 1 December 1986 decriminalised discriminatory practices (discrimination and refusal to sell), which now fall under a civil liability regime. It will be noted that these texts do not lay down absolute prohibitions; only abuses are prohibited. Moreover, "if discrimination can be a form of refusal to sell, conversely, refusal to sell can be the manifestation of discrimination". Thus, the principle underlying non-discrimination is that of equality of competition, and more specifically the "break in equality of opportunity". § 2) The discriminatory practice The field of application of article 36-1 of the ordinance of 1 December 1986 is broad and reflects the legislator's wish to capture all wrongful discrimination because it affects either the competitive capacity of an economic operator, or the competitive functioning of the market as a whole. What is sanctioned here is not discrimination in itself but its unlawful character, insofar as there will be found, on the one hand, an unjustified difference in treatment and, on the other hand, a disruptive effect on competition. I - Unjustified treatment consists in the absence of real consideration. Article 37-1 of the law of 27 December 1973 referred to "discriminatory prices or conditions of sale which are not justified by corresponding differences in the cost price of the supply or service". This justification, removed by the law of 30 December 1985, was reintroduced by the ordinance of 1986. By real consideration is meant all commercial elements capable of founding an economic, objective and effective justification. In this hypothesis, the discrimination will confer an advantage or a disadvantage. Its essentially economic character would, according to some, be of great importance insofar as "it constitutes an advance of the theory of lesion compared with ordinary law". II - The disruptive effect on competition. Moreover, the assessment of the unlawfulness of the practice is inseparable from the impairment of the free play of competition. A global approach will justify the intervention of the competition council, guarantor of the competitive functioning of the market. Conclusion It can be seen that these are so many restrictions placed on the principle of the autonomy of will and its corollary, contractual freedom. In this sense there would be a pre-established shaping of contractual relations. Section 3. Non-discrimination and the ambivalence of refusal to sell Refusal to sell constitutes the practice most damaging to the competitive functioning of the market. Article 36-2 of the ordinance of 1 December 1986 provides that refusal to sell is the act of "refusing to meet the requests of buyers of products or requests for services, when these requests are not abnormal in nature, are made in good faith and the refusal is not justified by the provisions of article 10". Thus, the characterisation as refusal to sell applies to abusive refusal to contract and no longer sanctions the mere refusal to enter into commercial relations, as under the Fontanet circular of 31 March 1960. However, the question of refusal to sell, as regards assessing the influence of competition law on contract law, is ambivalent. Indeed, it can be viewed either from the angle of a limitation, or from that of a genuine recognition of the right not to contract. § 1) The classic civil-law analysis I - The classic analysis of contract formation A - The guiding principles Traditionally, consent is considered to express the voluntary nature of the contract and is analysed as an offer accepted by its addressee; the contract being the result of the coincidence of offer and acceptance. The offer must have specific characteristics. It must be firm, precise and unequivocal in order to determine the elements that will be the subject of acceptance. Yet the determination of the respective authors of the offer and of the acceptance is fundamental. On the one hand, because it makes it possible to distinguish the pre-contractual (negotiations) and contractual phases, and on the other hand because "the author of the offer, which will form the contract, is not necessarily the one who took the initiative of the first proposal". The offer that forms the contract is the one that is the subject of a pure and simple acceptance. While a supplier is entitled to refuse to contract when the request is abnormal in nature, it is certain that the sale is deemed complete only at the moment of the coincidence of offer and acceptance, and, under the terms of article 1583 of the Civil Code, of an agreement of the parties on the thing and the price, as well as on the general conditions of sale. Failing that, if one considers that the general conditions of sale constitute a determining element of the contract, they prevent the conclusion of the contract, the supplier being able to be compelled to sell only on the conditions that he himself has determined. B - The effects. In these conditions, the principal effect of the "accepted" offer is to give birth to the contract as soon as there has been a meeting of consents and, as a result, agreement on the essential elements of the contract. The consequence is important insofar as, from that moment, the contract is deemed complete and capable of producing all its effects. In particular, if the author of the accepted offer wished to withdraw, there would be non-performance of the contract and he would incur contractual liability on the basis of article 1147 of the Civil Code. II - The application of the civil-law analysis to competition law. Civil law clearly distinguishes the pre-contractual and contractual phases, most often in chronological order, but not systematically. Indeed, if one set aside "the theory according to which professionals are in a state of permanent offer", one would be returning to the classic process of contract formation. Yet the distinction made between the pre-contractual and contractual phases is essential insofar as it conditions the nature of the liability that will be incurred. Starting from a judgment delivered by the criminal chamber of the Court of Cassation on 16 March 1987, Mrs Dreiffuss-Netter develops an a contrario reasoning according to which "the supplier's approval of the customer's request, unlike the mere supply of information, binds both parties. It can therefore be deduced that refusal to contract is a refusal of acceptance and not a refusal of offer. Consequently, the offeror is the customer and not the supplier". The reasoning seems remarkably logical, insofar as the supplier cannot simultaneously be offeror and author of the acceptance. § 2) The implicit recognition of a right not to contract by competition law. The advantages conferred on those who refuse to sell by competition law are undeniable, and in two respects. On the one hand, only unjustified abuses (abnormal request, bad faith) are liable to fall under article 36 of the ordinance of 1 December 1986. Yet, in the classic conception of civil law, there is no possibility of justifying non-performance apart from the exceptional case of force majeure. On the other hand, the civil sanction for refusal to sell in competition law is tortious in nature, whereas ordinary law recognises contractual liability in this case; consequently, it is for the "refused" party to bear the burden of proving the elements necessary for establishing the liability of the "refuser". Competition law, under cover of an offence aimed at limiting abuses of the freedom not to contract, in a concern to ensure the competitive functioning of the market, has implicitly recognised "the right to refuse a sale which ordinary law would not authorise". § 3) The scope of article 36-2 The question is whether, although they were decriminalised by the ordinance of 1 December 1986, the restrictive practices referred to in article 36 remain prohibited a priori. The stakes are high insofar as it is the a priori prohibition that will determine a possible violation of public order. Indeed, according to Mr Brill, if there were no violation of public order, it would follow that "contracts in which restrictive practices are inserted could no longer be annulled except by invoking freedom of trade and industry". Indeed, the practices referred to in article 36 of the ordinance of 1 December 1986 are wrongful because they are contrary to public order. § 4) The forced contract It should be specified that an isolated refusal to sell falls within the jurisdiction of the ordinary courts, guarantor of individual freedom (in this case the freedom to undertake). It follows that the abusive character will be assessed in abstracto, independently of its anticompetitive effect on the market. Moreover, the Competition Council may issue injunctions aimed at compelling the supplier, for example to perform. Can the same type of sanction imposed by the courts of the judicial order be envisaged? Indeed, article 1382 of the Civil Code provides that "any act whatsoever of man which causes damage to another obliges the person by whose fault it occurred to make reparation for it". Therefore, if the refused customer manages to demonstrate the conditions necessary for establishing liability, he may obtain compensation for the harm suffered, but by what means? A priori, the award of damages is beyond doubt, but what of reparation in kind, which would consist in the conclusion of a forced contract? Mrs Dreiffuss-Netter accepts that "the technique of liability does not exclude it provided one considers that reparation can be made in kind", and that "performance in kind, in tort as well as in contract, rather enjoys the favour of legal scholarship and case law, which refuses it only for obligations with a strong personal colouring". It therefore seems possible to accept the imposition of a contract on a contracting party who has not given his consent to the agreement. However, it would be necessary to qualify this, because this legal obligation to contract would stem on the one hand from a text of a public-order nature and on the other hand, above all, from a judicial decision aimed at sanctioning the breach. Conclusion The interest of the civil liability mechanism lies in the fact that one could arrive at the conclusion of a forced contract, which would illustrate not only the penetration of competition law into contract law, but also its autonomy. Section 4. The indeterminacy of price in framework distribution contracts § 1) The complexity of traditional decisions The requirement of price determination in framework contracts in the field of distribution has given rise, and still gives rise, to abundant controversy. Most often, the content of framework distribution contracts is limited to contractual stipulations and covers various combinations (supply contract, provision contract, etc.). In the absence of a determined legal status, their regime falls under the ordinary law of obligations. Traditionally, in order to declare an agreement null on the ground that the price was undetermined or indeterminable, the Court of Cassation based its decisions on article 1591 of the Civil Code (a text specific to sale), which assimilates the exclusive supply contract to the sale contract; from 1978, the Court of Cassation extended its field of intervention by relying on article 1129 of the Civil Code, which belongs to the general theory of obligations and requires determination of the object of the contract: "the obligation must have as its object a thing at least determined as to its kind. The quantity of the thing may be uncertain, provided that it can be determined". Subsequently, from 1987, the Court's case law evolved, making a distinction between distribution contracts imposing an obligation to give and those imposing an obligation to do, the latter escaping nullity for indeterminacy of price. Mr Malaurie notes "that there are practically no contracts that give rise to obligations to give since the Civil Code provides that the contract entails an instantaneous transfer of ownership (articles 1138 and 1583 of the Civil Code)". Thus, distribution contracts, systematically comprising an obligation to do, would have had their clauses relating to determination always upheld. Moreover, in 1991 the Court accepted that the validity of certain distribution contracts was no longer subordinate to the determination or determinability of the price of future products as soon as it could be "freely discussed and accepted" by the parties at the time of each sale. The distinction between framework contracts presenting an obligation to give or to do is not entirely satisfactory. However, the Advocate General Mr Jéol, in his submissions delivered in the Ouest abri case, clarifies the distinction between the two types of agreements: "The former have as their object the exclusive supply of a trader with specified products (...). Closely bound up with the successive sales that they announce, these agreements fall under the obligation to give (...). The latter agreements have a broader object than the strict supply of a trader. They tend to organise fully the distribution of generally more elaborate products (...). The undertakings of the parties are akin to obligations to do or not to do". This distinction has been criticised by legal scholarship, which objects that according to whether one considers "exclusivity operating in one direction (exclusivity of supply) or in another (exclusivity of provision), the agreement would sometimes be bound up with the successive sales, sometimes could be more easily detached, this being supposed to explain why article 1129 should sometimes apply, sometimes not". It will be agreed that the case law developed by the Court of Cassation is complex. All the more so as the absence of price determination, that is to say of the object of the contract, must be sanctioned by absolute nullity, which constitutes an additional factor of legal uncertainty. It is now appropriate to examine what solutions competition law might provide. § 2) The possible recourse to competition law From the foregoing, it is clearly understood that the judge-made rule demands a great deal of pragmatism. The ordinance of 1 December 1986 enshrines the principle of freedom of prices in its first article. In the matter of vertical agreements, more than the indeterminacy of price, it is the imposition of a minimum resale price that is sanctioned. And this in several respects: it is clearly prohibited by article 34 of the ordinance of 1 December 1986, but it may also constitute an anticompetitive practice within the meaning of articles 7 and 8 of the same ordinance because it constitutes an obstacle to the free setting of prices by the market alone. The prohibition laid down in article 34 of the ordinance of 1 December 1986 consists in "the fact of imposing, directly or indirectly, a minimum character on the resale price of a product or good, on the price of a service or on a commercial margin". It is certain that the essential corollary of economic freedom falls under a principle of autonomy of economic agents in setting prices. Reference to a method of determining the price of goods based on "serious, precise and objective" elements, independent of the sole and unique will of the supplier, is lawful. In the matter of franchise contracts, the Court of Cassation, having taken a new path towards assessing the arbitrary character of the prices proposed by the franchisor to the franchisee (debtor of an exclusive supply obligation), accepts the unilateral setting of the price (would this not be the manifestation of an imposed price?) by the franchisor on the ground that the price appears objective, or that the franchisor issued an annual tariff known to the franchisee from the conclusion of the contract. It is therefore appropriate to establish a possible link between the provisions of article 1129 of the Civil Code and those of the ordinance of 1 December 1986, more precisely articles 7 and 8 relating to cartels and abuses of dominant position. The provisions of article 34 of the ordinance of 1 December 1986 being of narrow interpretation, the boundary between recommended prices and imposed prices is not always obvious, in particular where there is a pricing policy intended to ensure the best marketing of products within a distribution network. Competition law might be able to bring about an evolution in the delicate problem of price determination. Indeed, the commercial chamber of the Court of Cassation recently sanctioned, in a judgment of 1 June 1993, a clause by which a franchisee undertook towards his franchisor "to respect as far as possible the profit margins decided by the franchisor", which is unlawful because it is assimilable to an imposed-price clause. Indeed, the Court held that the clause in question "did have the effect of dissuading the firms belonging to the network set up by the franchisor from setting their prices autonomously and that it therefore fell foul of article 7-1 of the ordinance of 1 December 1986". Two remarks should be made about this case law. On the one hand, why did the Court of Cassation base its decision on article 7 of the ordinance of 1 December 1986, excluding articles 8 and 34 of the same ordinance, which would have been better suited to found the decision? And on the other hand, why does the Court sanction the unlawfulness of the clause by the nullity of the whole contract? Moreover, the Court of Cassation applies the same reasoning in the matter of selective distribution. A link between the articles sanctioning indeterminacy of price in the Civil Code and the ordinance of 1 December 1986 should be considered. Indeed, as Mr Malaurie points out, "the solution consisting in drawing inspiration from the ordinance would be a great step forward" in resolving the problems linked to the sanction of indeterminacy of price, notably in concession contracts. Mr Bézard, President of the commercial chamber of the Court of Cassation, declared in this connection that "case law has not yet reached its definitive point of equilibrium". Conclusion It is certain that, however attractive this solution for resolving the conflict may be, it would nonetheless present drawbacks. The lack of price determination, which falls under the general theory of obligations, would come to be sanctioned by the rules of competition law. In that case, would there not be a risk of drift towards widening still further the scope of application of the provisions of the ordinance? That said, it is possible to think that what would be witnessed would be not the bending of contract law under pressure from competition law, but its enrichment. There would then be application of the principle that special rules prevail over general rules. It is almost impossible to know whether the conceptual coherence of the legal system will benefit from it. Nevertheless, it will be noted that legal certainty could find more stability in it. The limitations placed on contractual freedom stem more from the requirements of directive public order than from a genuine readjustment carried out by competition law. Indeed, the latter is concerned more with post-contractual effects than with the conditions of validity of the contract. The result is a far more marked intrusion at the level of control of the content of the contract. Chapter II. The influence of competition law on the binding force of the contract A civil or commercial contract may prove contrary to the rules of competition law. Indeed, the latter controls the purpose of the contract in order to detect in it a possible impairment of the play of competition, which would justify its annulment in application of article 9 of the ordinance of 1 December 1986. The assessment of the validity of contractual techniques and stipulations in the light of competition law can be considered in terms of cartel law (section I) and the control of non-competition clauses (section II). Section 1. The application of cartel law to commercial distribution contracts Under the terms of article 7 of the ordinance of 1 December 1986, three conditions must be met for an unlawful cartel to be constituted: concerted action between firms, an obstruction of the normal play of competition on a market, and the attributability of this obstruction to the cartel. Thus, "a contract, even a lawful one (in the light of other aspects of the law), cannot cause to escape the application of article 50 of the ordinance of 30 June 1945 anticompetitive practices for which it would serve as a framework or support". In reality, impairment of the market and the affecting of competition are indispensable elements for assessing the lawfulness of the contractual practice in question, and this in the light of the competitive functioning of the market. Commercial distribution contracts (selective distribution, exclusive distribution, franchise...) raise a question of lawfulness in the light of the requirements of competition law owing to the compartmentalisation they are capable of achieving. These contracts are not intrinsically unlawful although they contain clauses restrictive of competition. It is therefore appropriate to establish what conditions are necessary for the validity of such contracts and to assess their effects in terms of restrictions placed on the play of competition. Difficulties between ordinary law and competition law will thus be seen to emerge. § 1) The conditional lawfulness of commercial distribution agreements in the light of article 7 of the ordinance of 1 December 1986 As a preliminary matter, it must be established whether the characterisation as an unlawful cartel is applicable to vertical agreements (suppliers-distributors). For it to be constituted, there must be concerted action between the economic operators concerned and the impairment of the market must result from it. This is a conditional lawfulness, which may be called into question as soon as the provisions of the contract impair competition. I - The concerted action The Competition Council adopts a broad interpretation of the notion of cartel. Indeed, "the general conditions of sale and the undertakings presented to its customers by the company Philips are accepted explicitly or tacitly by resellers when placing orders and constitute as such, between the supplier and the members of its distribution network, agreements capable of affecting the play of competition on the market in question and of falling within the scope of the law". These documents are therefore not analysed in terms of an offer to contract, but indeed as conventional acts, thus allowing the application of article 7 of the ordinance of 1 December 1986. It would seem that one is closer to a notion of adhesion contract than to that of a contract freely negotiated between the parties. II - The impairment of the market The notion of the market being affected is fundamental, and is of twofold interest. First, it represents the determining objective criterion of impairment of the competitive functioning of the market, which allows the implementation of the provisions aimed at sanctioning its harmful effects on the free play of competition. Second, it constitutes the factor revealing a dichotomy in the approach to the contract, which is henceforth carried out pragmatically, in consideration of exogenous elements. It is observed that the contract is no longer apprehended in itself, but in consideration of its potential effects on the market. In fact, it is its purpose that is examined. The impairment of the market must therefore be the subject of a global assessment (proceeding from a macroeconomic analysis, tending towards the safeguarding of competition), in the light of practicable competition. Moreover, the mechanism instituted by article 7 of the ordinance of 1 December 1986 operates a system of cross-reference to article 10 of the same ordinance, which allows justification on the basis of a legislative or regulatory text or else of the contribution to economic progress. In fact, a cartel will be unlawful only in the absence of any justification, which confirms that the 1986 ordinance is founded on a system of contractual freedom accompanied by a control of abuse. In reality, the question of the validity of contracts in the light of competition law rests on an economic approach to contractual relations. It is the contractual reach of agreements, otherwise lawful in the light of ordinary law, that will be assessed. A topical example is provided by exclusive supply contracts. § 2) The application of cartel law to the exclusive supply contract The problem of the return in kind of tanks gave rise to abundant litigation in which the duality - if there is one - between competition law and contract law was illustrated. Several oil companies had inserted in their exclusive supply contract a clause under which, on expiry of the contract (of a maximum duration of ten years), and for whatever reason, the retailer had to return the fuel storage tanks. This obligation on the retailer had heavy consequences insofar as the retailer found himself obliged not only to incur considerable costs, the amount of which was disproportionate to the value of the equipment, but also, and above all, to demolish almost the entire forecourt of the service station in order to recover the tanks. Considered abusive by branded service-station operators, conflicts developed and an inter-professional agreement (between the professional organisations of service-station operators and the oil companies) was reached on 4 October 1982. Under its terms, the oil companies undertook to substitute for the clause of return in kind of the tanks a transfer of the equipment against compensation. However, two oil companies (Total and Esso), relying on the banking law of 24 January 1984, which contained a provision reserving the lease-purchase mechanism to banking institutions, decided to revert to the earlier system. In 1985, the Fédération nationale du commerce et de l'artisanat automobile lodged a complaint with the Competition Commission on the ground that this clause, by making retailers bear substantial costs, prevented them from changing network, which was liable to limit competition. The Competition Council, in a decision of 29 September 1987, established that the clause of return in kind "constitutes an agreement that may have the effect of restricting the play of competition on the market for petroleum products and that it falls under the provisions of article 50 of the ordinance of 30 June 1945 (article 7 of the ordinance of 1 December 1986)". The solution accepted by the Competition Council breaks with case law, which is why it is appropriate to examine the lawfulness of the clause in the light of ordinary law () and competition law () in order to question the implications of this new approach to contractual relations (). I - The lawfulness of the disputed clause in the light of ordinary law: the civil-law analysis Until the decision of the Competition Council delivered on 29 September 1987, the ordinary courts held the clause of return in kind of the tanks to be lawful. Several grounds supported this solution. A - The binding force of the contract Under article 1134 of the Civil Code, "agreements lawfully formed have the force of law for those who have made them". Consequently, in application of ordinary law, the oil companies are legally entitled to request performance of the disputed contractual stipulation. Thus the Commercial Chamber of the Court of Cassation, in a judgment dated 6 January 1987, approved a Court of Appeal for having rejected the claim of a service-station operator on the ground that the supplier "was requesting performance of a perfectly clear contractual provision not open to interpretation". 1 - Fraud on the law and control of the purpose of the clause of return If the loan of the tanks constitutes, economically and legally, the counterpart of the exclusive supply obligation, the purpose of the clause of return in kind lies in the maintenance of this obligation. Would it not therefore tend to circumvent the mandatory provisions of the law of 14 October 1943 limiting to ten years the duration of exclusive supply clauses? It would seem that fraud on the law was never invoked by the service-station operators. Perhaps this is because of the difficulty there would be in proving the intention to defraud, the clause of return in kind being inherent in the contract. 2 - Abuse of right According to the reasoning of the service-station operators, who offered a return in value or by equivalent of the tanks, the refusal opposed by the oil companies would be abusive because it could have no other basis than the intention to harm them. In an isolated decision, the Paris Court of Appeal accepted that the uselessness of recovering the tanks, combined with the considerable harm resulting for the retailer, demonstrated the intention to harm and characterised abuse of right. But this is only an isolated decision: abuse of right is generally not upheld because the oil companies have a legitimate interest "in preventing their equipment from being used by a trader tied to a competing brand". In reality, the difficulty the service-station operators have in obtaining recognition from the ordinary courts relates to the characterisation of the contract. B - The right of ownership By characterising the contract as a loan for use (art. 1875 of the Civil Code), which presupposes on its expiry the return in kind of the object (here the fuel tanks), by virtue of the principle of restoring things to their prior state, the ordinary courts were making a strict application of the law of obligations (absolute application of the right of ownership). This characterisation as commodatum has been criticised by Mr Malaurie, according to whom commodatum is an essentially gratuitous act, and since gratuitousness is not of the essence of business relations, these would be false gratuities justifying recharacterisation. In reality, the civil-law reasoning is based on the fact that in individual relations, the enrichment, even unjust, of one contracting party relative to the other finds "a sufficient cause" in the agreement of wills, embodied in the clause of return in kind. II - The unlawfulness of the clause in the light of competition law A - The existence of the right of ownership cannot stand in the way of the application of competition law The principle laid down by the Commission technique des ententes et des positions dominantes in its Nylon thread opinion of 22 June 1962 is eloquent: "no agreement, even one founded on industrial property rights and even on the application of the right of ownership in general, can escape the application of provisions of public order". Consequently the exercise of the right of ownership does not exclude unlawful practices. B - The objective approach of the Competition Council 1 - The decision of the Competition Council In its decision of 29 September 1987, the Competition Council relies on a purely economic reasoning to declare the clause of return in kind unlawful in the light of article 50 of the ordinance of 30 June 1945 and article 7 of the ordinance of 1 December 1986. To assess the validity of the said clause, the Competition Council placed itself in a perspective very different from that of the ordinary courts, that of the obstruction of competition. This obstruction of competition resulted from the impairment of "market fluidity"; in the sense that on expiry of the contract it brings about a de facto attachment to the supplier by dissuading retailers from changing economic partner "without economic counterpart", on account of the considerable costs they would have to bear. The clause is therefore placed back in its economic context. What the Competition Council examines is the possibility of an anticompetitive effect. Indeed "the agreement may have the effect of restricting the play of competition on the market for petroleum products". However, a much-noted commentary by Mrs Perochon establishes that the decision would seem to be oriented "towards the recognition of an anticompetitive object as well as of an actual anticompetitive effect". One may wonder about the possibility of an exemption from which the agreement might have benefited under Community law, the redemption of the cartel set out in article 51 of the ordinance of 30 June 1945 (article 10 of the ordinance of 1 December 1986) not having been invoked. 2 - The benefit of the exemption under Community law invoked by the parties Exclusive supply contracts are not in themselves anticompetitive. The Commission of the Communities considers that these agreements "generally lead to an improvement in distribution, that they enable the supplier to plan the sale of products more accurately..., ensure the reseller a regular supply and that they stimulate competition between the products of different manufacturers". However, the clause of return in kind is not expressly referred to by the regulation and is not inherent in the contract; it follows that it is not covered by the exemption and proves consequently liable to fall foul of the articles sanctioning anticompetitive practices. Had the clause been judged favourable under Community law, it would have been "purged" of its defects and could have been recognised as lawful under domestic law. This was not the case. A judgment of the Paris Court of Appeal dated 5 May 1988, breaking with the traditional case law of the ordinary courts, affirmed the predominance of competition law over ordinary law in the name of public order. III - The predominance of competition law over ordinary law More than an intrusion of competition law into ordinary law, this is the affirmation of its superiority. A - The judgment of the Paris Court of Appeal of 5 May 1988 By this decision, the Paris Court confirms and elucidates the decision of the Competition Council. First, whereas the Competition Council had been content to observe that 8 to 10% of service stations were affected by the clause, the Paris Court demonstrates the reality of the appreciable anticompetitive effect on the market by observing that approximately 9,000 contracts contained this clause. Second, the Paris Court holds that this clause was not strictly necessary to the objective pursued by the contract (in the sense that it is disproportionate to the function it fulfils), whether exclusivity or protection against unfair competition; indeed "return in specie is not the indispensable complement of exclusive purchase and commission contracts, other arrangements being possible to maintain the contractual balance and respect for the parties' interests". Lastly, it holds that although article 1875 of the Civil Code constitutes a statutory textual basis, "the obligation of return in specie does not result from the necessary application of a legislative or regulatory text falling under a mandatory public order", whereas, by contrast, the texts applicable to cartels do fall under a mandatory public order. The predominance of competition law over ordinary law in the name of public order is therefore established. B - Assessment of the relations between competition law and contract law Besides the essential lesson drawn from the explicit affirmation that the notion of public order may limit contractual freedom when the latter impairs the market, it will be noted, from a civil-law perspective, that the link existing between competition law and the ordinary law of contracts lies in the application of article 6 of the Civil Code, non-compliance with the requirements of competition law constituting a genuine ground of nullity. By contrast, from a "pro-competitive" perspective, one could also consider that the other textual basis for the nullity of a contractual clause having an anticompetitive object or effect now rests on article 9 of the ordinance of 1 December 1986, sanctioning by nullity the clauses or agreements referred to by articles 7 and 8 of the same ordinance. Can it therefore be considered that the difference in approach to one and the same contractual clause reveals the autonomy of competition law in relation to ordinary law.. Yet does the opposition of the two logics of reasoning, strictly legal on the one hand as regards the decisions of the ordinary courts prior to 1988 (the obligation of return in kind flows from the expiry of the loan for use contract) and purely economic on the other (the clause of return may have the effect of limiting market fluidity), truly reflect a conflict between the two branches of law? It should be specified that in the decision of 29 September 1987, the Competition Council had to apply the rules prior to 1986, which might explain why the case was examined from the angle of cartel law and not from that of the abusive exploitation of a state of economic dependence (article 8 of the ordinance of 1 December 1986). According to Mr Mestre, recourse to article 8-2 of the ordinance of 1 December 1986 would have been conceivable. In support of his hypothesis, he recalls Mr Novella's observations concerning the judgment delivered by the commercial chamber of the Court of Cassation dated 6 January 1987: "clauses of return in kind certainly contribute to placing the distributor in a state of economic dependence vis-à-vis his supplier, by depriving him of an equivalent solution, given the expenses he would have to incur at the end of the contract. It remains to be shown that the situation thus created was abusively exploited". This notion would rather be akin to that of an unfair clause or of economic dependence understood in the civil-law sense of the term. Conclusion To this end, and with a view to tempering, it will be noted that the Paris Court, in a judgment of 25 January 1990, recalls that the clause of return in kind remains lawful in the event of early termination of the exclusive supply contract attributable to the distributor and without fault on the part of the supplier. Thus, the service-station operator is ordered to return the tanks and even to pay damages for abusive resistance if he does not comply. Section 2. The control of non-competition clauses The non-competition obligation of contractual origin lies, in a way, on the border between contract law and competition law. Indeed, if one understands, according to Mr Serra, by the generic term non-competition obligation the obligation "which prohibits a person (debtor of non-competition) from carrying on a specified economic or professional activity in competition with that developed by another person (creditor of non-competition)", the principled lawfulness of clauses restrictive of competition cannot be absolute. Indeed, if the recognition of non-competition clauses presupposes compliance with the conditions of validity necessary for any agreement (article 1108 of the Civil Code), the fact remains that the influence of competition law has been marked in this matter. Depending on the nature of the contract considered, the criteria used to assess the lawfulness of a post-contractual non-competition clause are more or less strict. Contractual freedom, through the operation of the non-competition clause, thus limits and restricts the economic freedom of one of the parties to the contract. § 1) The conditions of validity In contract law, it will be noted that there is a twofold condition of validity, one relating to the cause of the agreement and the other to its object. I - The cause of the agreement. It can be said that the cause lies in the existence of a legitimate interest on the part of the creditor of the non-competition obligation. The legitimate interest lies "in the concern to protect, directly or indirectly, the clientele or the attractive elements of the clientele of the creditor of non-competition". The lawfulness of the cause is therefore subordinate to the existence of a legitimate interest. II - The object of the agreement. The lawfulness of the object is assessed in the light of the "excessive impact" on the economic freedom of the debtor of the non-competition obligation and meets the requirement of a twofold limitation, one relating to the limitation of the prohibited activity and the other to a limitation in time or in space (alternative criterion). The idea being that the non-competition obligation must be relative. § 2) Recent developments in case law and the contribution of competition law I - Recent developments in case law In a judgment of the social chamber of the Court of Cassation dated 13 October 1988, the Court, relying on the principle of the binding force of the contract laid down in article 1134 of the Civil Code, had held "that a non-competition clause inserted in an employment contract is lawful if it does not infringe freedom to work by reason of its extent in time and space, taking into account the nature of the employee's activity, and is unlawful only to the extent that it does so". By determining thus, the Court makes a strict application of the criterion of the normal exercise of the profession. It relieves the lower courts of the need to seek a legitimate interest of the employer. The consequences of such case law are significant, since the non-competition clause may be declared lawful without any reservation as to the function performed by the employee in the firm. Fortunately, the judgment of the same chamber of the Court of Cassation dated 14 May 1992 gave rise to a reversal of case law. Indeed, although the underlying problem was similar, the Court holds legitimate interest to be a condition of validity of the non-competition clause and declares "that, having brought out that by reason of the employee's duties, the non-competition clause was not indispensable to the protection of the firm's legitimate interests, the Court of Appeal was entitled to decide that the employer could not rely on this clause". From now on, the lower courts will have to examine whether the limitation placed on an employee's economic freedom is commensurate with the existence of a real danger for the firm. However, the influence of competition law in this matter is definitively marked by the judgment of the commercial chamber of the Court of Cassation of 4 January 1994. Indeed, the Court quashes a judgment of the Versailles Court of Appeal which, relying on article 1134 of the Civil Code, had held "that agreements lawfully formed have the force of law for those who have made them, that in this case, the contested clause is limited in time and space, and that the lawfulness of the restrictions on individual freedoms that it stipulates is recognised". The Court of Cassation sets aside the Court of Appeal's judgment (for lack of legal basis), on the basis of article 50 of the ordinance of 30 June 1945, on the ground "that in determining thus, without examining, as it was asked to do, whether the disputed clause, even though limited in time and space, was not disproportionate in relation to the object of the contract". II - The contribution of competition law. Thus, if the legitimacy of the non-competition clause is an essential criterion in contract law, notably in employment contracts, the lawfulness of the non-competition clause is henceforth subordinate to a new criterion of proportionality. Competition law retains, on the one hand, the criteria necessary to the economy of the contract (accessory and necessary character) and the triple limitation of the clause (prohibited activity, time and space), and on the other hand that of the strict proportionality of the clause to the function it fulfils, recognised in Community law as established for escaping the prohibition of article 85-1 of the Treaty of Rome. The criterion of strict proportionality to the function of the non-competition clause proceeds from a meticulous examination aimed at determining the competition-restricting effect on the market. It will be noted that the Court of Cassation expressly refers to article 50 of the ordinance of 30 June 1945, which became article 7 of the 1986 ordinance, and this by reason of the date on which the clause was stipulated (before December 1986). According to Mr Mestre, "articles 7, 8 or 9 of the 1986 ordinance are capable tomorrow of founding the solution given in the same way". Indeed, if the applicability of article 7 of the 1986 ordinance, prohibiting cartels, to a non-competition clause does not seem to pose a problem, the same is not true as regards the assessment of its impact on the market. The question is whether exceeding a sensitivity threshold of effect on the market is necessary for article 7 of the 1986 ordinance to be applied. The commercial chamber of the Court of Cassation, in a judgment of 4 May 199362, not only confirmed the application of the criterion of strict proportionality to non-competition clauses falling under cartel law, but also the requirement of an appreciable impairment of the play of competition. It is deduced that the non-competition clause will be subject to the application of article 7 of the 1986 ordinance only to the extent that it brings about a notable impairment of the market in question. One may therefore ask whether this sensitivity threshold requirement was indeed applied in the judgment of the commercial chamber of the Court of Cassation of 4 January 1994. Once again, contractual freedom bears limitations. Conclusion Be that as it may, this judgment highlights the various inflections that competition law may have on contract law. However, one might fear harmful effects for legal certainty, the conditions of validity of a non-competition clause seeming to tend towards greater severity. Nevertheless, the contribution could undoubtedly be beneficial if the control by the ordinary courts depended on strict adequacy between the assessment of a real competition genuinely prejudicial to the creditor of the non-competition obligation, and the minimum limitation of the economic freedom of the debtor of the non-competition obligation. In such conditions, not only would contractual freedom and its corollary, binding force, be ensured, but the principle of freedom of competition would be safeguarded. Chapter III. The influence of competition on the relative effect of contracts The principle of autonomy of will has as its third corollary that of the relative effect of contracts, expressed in articles 1134 and 1165 of the Civil Code: "agreements have effect only between the contracting parties", they can neither harm nor benefit third parties, for the latter cannot be subjected to legal effects they have not wished. If relative effect in domestic law is inflected through contractual practice (section ), at Community level it is so by competition law (section ). Section 1. The limitation of relative effect by contractual practice in domestic law Thus, competition law, by apprehending the contract from the aspects of its effects and its globality, does seem to be in a position to modify this principle. Indeed, the economic reasoning it carries out requires taking into account paracontractual situations in order to assess the impact of the agreement on the market. Owing to the complexity of contractual relations, "contracts may, as social facts, be set up against third parties by the parties, and even by third parties against the parties". The relative effect of contracts would undergo attenuations that do not result from legal obligation but from contractual practice. One of the manifestations of the attenuation of relative effect resulting from the intrusion of competition law into contract law could stem from the very nature of the contracts in question. Thus, in the field of distribution, the question of the scope of reciprocal exclusivity clauses has posed a problem. Indeed, should an effect with regard to third parties be recognised for these contractual stipulations? Case law has accepted their relative enforceability, aiming to sanction "unfair violations committed, not only with knowledge of the contractual exclusivity, but also with the aim of disorganising the beneficiary's business". However, the question has arisen more recently in connection with selective distribution, which this time does not contain exclusivity clauses. The issue was whether unauthorised distributors who put on sale products covered by selective distribution incur liability for disregarding the distribution contract. In reality, the fact that this distributor is a third party to the distribution contract should relieve it of all liability having regard to the provisions of articles 1134 and 1165 of the Civil Code. Yet it is held that if the selective distribution contract is not enforceable "as a legal act", it is so "as a legal fact". Consequently, the mechanisms of unfair competition will be brought into play because, "insofar as they are not prohibited, clauses limiting commercial freedom also impose themselves on the respect of third parties". However, the principle of freedom of competition opposes suppliers restricting access to the market. This is why the burden of proving the lawfulness of the network falls on the distributor. Section 2. The limitation of relative effect by Community competition law Community competition law diverges from national law as to the method of assessing the anticompetitive effect of a contract. Indeed, the Court of Justice of the European Communities adopts the theory of cumulative effect, which consists in taking into consideration all similar contracts in order to determine the anticompetitive effect of the contract submitted to it. Indeed, the Court of Justice of the European Communities, in a judgment of 28 February 1991 concerning the Delimitis case, holds that "the existence of similar contracts is a circumstance which, together with others, may form a set constituting the economic and legal context in which the contract must be assessed". While the solution may shock in that it obliges the parties to take exogenous elements into account, it fits perfectly into the logic of Community competition law. For, on the one hand, the entire system is founded on the rivalry of competitors, and on the other hand, the single market has requirements of balance of its own. It was studied in the first part how competition law intrudes into contract law, notably through the inflexions brought to the principles of contractual freedom, binding force, and relative effect of contracts. The aim is not to systematise: this intrusion is specific but in any event sufficiently consequential. However, if competition law influences contract law, the latter reacts by resisting. It is this resistance, studied notably through an analysis of legal systems, that constitutes the subject of the second part. PART TWO - THE RESISTANCE OF CONTRACT LAW "Imperceptibly and beyond political developments, the tentacular law of competition never ceases to strengthen its hold on the general theory of contract." Mr Mestre's opening observation reflects the reality of the contractual situation subordinated to the constraints imposed by competition law. If competition law can be a factor of evolution of contract law, it can also be a disruptive element. However, contract law holds possibilities to "resist", where appropriate, the inflexions of competition law. This resistance will be studied in two stages: the finding of the phenomenon (chapter ) and the elements explaining it (chapter ). Chapter I. The finding of a resistance The finding of a resistance of contract law is remarkable in two respects: economic dependence (section ) and the failure to recognise a right to renewal of the concession contract (section ). Section 1. Abuse of economic dependence The notion of economic dependence is a controversial notion which has so far received little echo. However, it is capable of illustrating the resistance of ordinary law to the intrusion of competition law into the contractual sphere. § 1) The notion of economic dependence I - In contract law Contractual relations between professionals and particularly between producers and distributors reveal a situation of inequality of the parties to the contract. The most striking illustration is provided by so-called dependency contracts. Used in the two major sectors of economic activity, production and distribution, these agreements are, by their very nature, capable of bringing to light a situation of economic dependence. Mr Virassamy defines them as "contracts governing a professional activity in which one of the partners, the subordinate party, finds himself dependent for his existence or survival on the regular privileged or exclusive relationship that he has established with his contracting party, the privileged partner, which has the effect of placing him in his economic dependence and under his domination". These contracts, which include commercial distribution contracts, are for the most part established on the basis of an exclusivity of supply, provision or territory. In practice, a certain significant economic subordination results. In support of this finding, case law avant la lettre tried to remedy the inequality resulting from the situation of one party's economic dependence on the other. Thus, a judgment of the commercial chamber of the Court of Cassation dated 20 May 1980 quashes a very promising judgment of the Paris Court dated 27 September 1977, which stated "that the two partners to the car sales concession contract are not placed on an equal footing owing to the economic subjection of the concessionaire towards the concedent, who is currently deprived in our positive law of any legal protection; that the first judges rightly characterised such an agreement as an adhesion contract between a powerful firm and an incomparably weaker concessionaire". II - In competition law (textual basis) Whereas since the law of 2 July 1963, abuses of dominant position have been assimilated to cartels, it was necessary to wait for the law of 30 December 1985 improving competition and thereby amending article 37 of the ordinance of 30 June 1945 on prices, for the notion of economic dependence to be mentioned. It will be noted that the state of economic dependence entered French positive law as an aggravating circumstance (the sanctions of article 41 being more severe) of a pre-existing offence, that of article 37 of the ordinance of 30 June 1945. Henceforth, the ordinance of 1 December 1986 has definitively achieved the introduction of this new notion. Article 8-2 prohibits, on the same conditions as cartels, "the abusive exploitation, by a firm or group of firms, of the state of economic dependence in which a customer or supplier firm finds itself in relation to it, which does not have an equivalent solution". Moreover, it specifies that, as for the abusive exploitation of a dominant position, this abuse may "notably consist in refusal to sell, in tied sales or in discriminatory conditions of sale as well as in the breaking off of established commercial relations, for the sole reason that the partner refuses to submit to unjustified commercial conditions". § 2) The conditions necessary for characterisation as a state of economic dependence I - The state of economic dependence The criteria of economic dependence were identified by the Competition Council in a decision dated 2 May 1989, relating to anticompetitive practices alleged by the company Chaptal S.A. against the company Mercedes Benz France. "Considering that the situation of a state of economic dependence within the meaning of article 8, paragraph 2, is assessed taking into account the importance of the supplier's share in the reseller's turnover, the reputation of the supplier's brand, the importance of the supplier's market share, the impossibility for the distributor to obtain equivalent products from other suppliers; that these criteria must be simultaneously present to lead to this characterisation." Thus, to be upheld, the characterisation as a state of economic dependence requires several elements to be brought together: - The share that the supplier's products represent in the reseller's turnover: applied mathematically, the greater it is, the more likely it is to reveal a strong relationship of dependence. - The reputation of the supplier's brand: the particularity of a product of a well-known brand influences the possibilities of obtaining substitutable products. - The supplier's market share: this is the criterion revealing the possible domination (relative or absolute) of the supplier on a given market. - The absence of an equivalent solution: constitutes the essential characteristic of abuse of economic dependence and concerns the existence of alternative solutions. Interest is taken in the degree of substitutability of the product (Cons.conc., 21 November 1989, Toy wholesalers / Trivial Pursuit case (B.O.C.C.R.F. 13 December 1989, p.319), and notably in the possibility of acquiring products from other suppliers (cons.conc., 6 December 1988, B.O.C.C.R.F. 14 July 1989). Mr Pedamon analyses the legal requirement in these terms: "the notion is subject to the combination of the following two constituent elements: there must on the one hand be no sufficient alternative, and on the other hand no bearable alternative. The first element is assessed objectively and the second subjectively". It remains to be seen whether these criteria can be transposed indifferently to each type of dependence envisaged (by reason of product range, business relations, etc... II - The abusive exploitation According to Mr Chaput, "mere expectations of abuse are in principle not repressed. The firm must engage in an abusive exploitation of the situation". Thus, the mere hypothesis of the existence of a state of dependence is not sufficient; the excess must be characterised. To this end, attention is paid firstly to the behaviour of the dominant agent and secondly to the obstruction or impairment of competition. In general, to characterise the wrongful behaviour of the dominant economic agent, the classic notions of abuse of right or bad faith are used as a template. The finding of abuse rests essentially on the notion of impairment of competition. 1. The impairment of competition must be duly established for the abuse to be characterised. This requirement results from an express cross-reference to article 7 of the ordinance of 1 December 1986 on anticompetitive practices, which provides that abuse is prohibited when it has "the object or effect of preventing, restricting or distorting the play of competition on a market". The assessment of the affecting of competition proceeds from a macroeconomic, global analysis. The linking of the notions of abuse of economic dependence and impairment of the play of competition is particularly original, on the one hand having regard to its purely economic character and on the other by its evolving character. Indeed, the evolution of the market is marked by a multitude of cyclical elements. Consequently, "the assessment of the lawfulness of a contract or a clause in the light of competition law depends in part on elements external to the contract, not necessarily known to the contracting parties and above all variable over time". Moderate, the Paris Court reserves its analysis for agreements whose sole object would be to distort the normal play of competition. It thus intends to limit the scope of application of article 8-2 of the ordinance of 1 December 1986, maintaining the prevalence of legal reasoning over economic reasoning. In reality, the affecting of competition risks having repercussions on the balance of the market, all the more so as the protection aimed at is not that of firms but of the market, for which an attempt should be made to give a definition. 2. The definition of market poses no difficulties. In general, market is understood to mean the set of products or services offered by firms. By contrast, that of relevant or reference market is much more delicate to pin down. For it must be modulated according to the specificity of the economic activity carried on by each firm. So that the notion of relevant market proves necessarily more restrictive and applies to the products and services offered by a firm and to the products and services that would be substitutable for them. 3. The effects of adopting a broad or restrictive conception of the notion with regard to article 8-2 of the ordinance of 1 December 1986 are significant. Indeed the broad conception of the market applies to "the domestic market or a substantial part of it"; in that case, there is a risk of seeing the scope of article 8-2 shrink proportionally, because few firms will cover the market concerned. Going further, and looking at the potential beneficiaries of the action, some authors claim that "adopting too broad an assessment of the market gives a reduced scope to article 8-2, allowing only firms holding a representative market share to bring it into play". Conversely, the restrictive notion, understood as the catchment area or the exclusive territory of a concessionaire, would make it possible to capture, perhaps excessively, too great a majority of firms and, more seriously, to allow a generalisation of the application of article 8-2, prejudicial to the whole of the economy. Having examined the characteristics of abuse of economic dependence, it is appropriate to consider the transposability of this notion into contract law and the consequences that would result from it. § 3) Abuse of economic dependence: a new instrument of contractual justice? It is appropriate to determine whether article 8-2 of the ordinance of 1 December 1986 makes it possible to repress abuses of contractual power. I - The theory of defects of consent The question of the possible rapprochement of the notions of defects of consent (specifically that of duress) and abuse of economic dependence raises keen questions. The issue is to determine whether the abusive exploitation of a state of economic dependence constitutes an infringement of contractual freedom and more particularly of freedom of consent. Some authors have thought they could detect in the letter of article 8-2 of the ordinance of 1 December 1986 "the official recognition of a certain form of economic duress". By adopting a classic definition of duress as "constraint exercised on a person's will to bring him to give his consent", it will easily be brought closer to the partner's refusal to submit to unjustified commercial conditions. In support of this hypothesis are a few decisions of the ordinary courts in the field of commercial distribution contracts; notably, in the matter of franchise, the lower courts have on several occasions accepted the abusive exploitation of a state of economic dependence in order to facilitate the termination of the contractual bond by the "subordinate" contracting party. In this case, the Paris Court stresses the franchisees' lack of initiative, which placed them "in a situation of economic dependence incompatible with the very nature of the contract in which the franchisee remains an independent trader". In this judgment, the Court insists not only on the fact that the situation of dependence is not inherent in the highly integrated contract, but above all that it is in itself incompatible with the very nature of the contract in question. II - The conflict between two conceptions "Despite the identity of terminology, it is not certain that the economic dependence found by the civil judges is the one that is set out in art. 8-2, notably as interpreted and applied by the competition council and the Paris Court of Appeal". This would perfectly reflect the opposition existing between the two currents of thought. A - The conception of abuse of right. In the absence of case law, the question of abuse of economic dependence remains very controversial. Most often, it is assimilated to the notion of abuse of right. Abuse of contractual power may manifest itself through contractual modifications, understood in the legal text as unjustified commercial conditions. In this hypothesis, it can be considered that there is a reprehensible abusive practice under article 8-2. Nevertheless, the solution will have to be modulated according to the perceptible effect on the market. In this connection, some authors have wondered about the possibility of a control of the grounds for termination. In this case, case law remains firm and consistently holds that these, as long as they are not fraudulent or abusive, do not constitute a condition of the validity of termination. This conception of abuse of economic dependence would constitute, according to some, a so-called social approach, which would be akin to the treatment of unfair clauses. In the sense that article 8-2 would have as its main objective the protection of the weakest competitors. In all logic, this hypothesis hardly seems capable of being accepted, insofar as the aim sought is the existence and maintenance of free competition and, beyond it, of the market economy. Indeed, the essential objective of competition law "is to protect the market or free competition between contracting parties". B - The conception of an instrument for regulating the market. Competition law becomes an instrument in the service of economic policy. Economic policy and more specifically competition policy "must promote the conditions of free competition". In this sense, article 8-2 would serve to repress certain harmful effects on competition. Prudent, the Paris Court expresses its will to keep abuse of economic dependence within the framework of anticompetitive practices. Thus, it avoids transforming this notion into an instrument for restoring balance within contractual relations. Conclusion This notion of abuse of economic dependence, although it presents numerous advantages, must nevertheless be used with caution, knowing that the judge could restore the balance of the contract. This is why its conditions of implementation are very restrictive. Section 2. The failure to recognise a right to renewal of the fixed-term exclusive concession contract § 1) The lawfulness of non-renewal in the light of contract law I - A legal limit In the absence of a legal status, the concession contract is necessarily marked by contractual freedom. It follows that its content is limited to the contractual stipulations. However, there is a legal limit imposed by the law of 14 October 1943, which provides in its article 1: "the maximum period of validity of any exclusivity clause by which the buyer, transferee or lessee of movable goods undertakes towards his seller, transferor or lessor not to use similar or complementary objects originating from another supplier is limited to ten years". These provisions are of public order and tend, beyond the limited validity of an exclusive supply clause, to avoid the perpetuation of contractual commitments. II - The recognition of the exercise of a contractual right The setting of a term therefore enables the concedent (and even the concessionaire) to terminate or cancel the contract on its expiry. Thus, the exclusive concession contract concluded for a fixed period comes to an end on the arrival of the term without the concedent being obliged to renew it. A judgment of the commercial chamber of the Court of Cassation, dated 21 October 1970, clearly states that "the non-renewal of an expired concession contract is a right for the concedent, who incurs liability only in the event of abuse in the exercise of this right". It is therefore the exercise of a contractual right contained in the initial agreement and not an abuse of right, which explains why the Court of Cassation considers that the concedent is not required to justify himself. However, while non-renewal in itself does not constitute abuse, the conditions in which it takes place may be abusive, where the concedent's behaviour proves contrary notably to commercial usage and good faith. By way of example, "a concedent who falsely led the concessionaire to believe that he would renew the contract by making him carry out substantial investments in that prospect" would commit a fault that would engage his tortious liability. Nevertheless, it would seem, according to some authors, including Messrs Collart and Dutilleul, that recent case law tends to require the concedent to justify his acts. Indeed, although the existence of a ground for termination can in no case be considered a "condition of validity of the decision, it would help to rule out, after the event, an abuse characterised either by an intention to harm, or by a diversion of the right of termination from its purpose". It follows that even if the concedent does not have to justify himself, the concessionaire who manages to prove that the grounds for termination are illegitimate could claim damages for wrongful termination. Thus, even if this slight inflexion in favour of concessionaires is observed, abuse of right continues to be recognised on the same conditions as in ordinary law. This is why concessionaires ousted from their distribution network owing to the dissolution of the contractual bond have taken the route of competition law. § 2) The vain assimilation of refusal to renew to refusal to sell Most often, ex-concessionaires continue to ask their former concedent to supply them, despite the expiry of the contract. In such a case, does the refusal to supply the ex-concessionaire constitute a refusal to sell within the meaning of article 36-2 of the ordinance of 1 December 1986? The commercial chamber of the Court of Cassation, in a judgment dated 10 June 1986, affirms that "refusal to renew cannot in itself constitute a refusal to sell". There can be no assimilation to a refusal to sell where the non-renewal or termination of the contract is neither wrongful nor abusive. However, this principle undergoes an attenuation. Indeed, the Paris Court of Appeal, in a judgment of 22 April 1992, considers that the concedent opposes a wrongful refusal to sell to his ex-concessionaire when he refuses to meet the latter's requests while he is not yet bound by contract with a new concessionaire in the area in question. Indeed, the lower courts hold that "the concedent could have treated his former concessionaire as a mere reseller as long as his orders did not run up against a legal unavailability stemming from the obligation to respect exclusivity". Two lessons could be drawn from this. On the one hand, the fact that the concedent has chosen another beneficiary of the exclusivity for the sector in question deprives the ex-concessionaire of the possibility of effectively invoking refusal to sell. On the other hand, this decision does not found an implicit recognition of the right to renewal, since the Court specifies "as a mere reseller". This guards against the danger of perpetuating contractual commitments. Conclusion Thus, if competition law sometimes manifests itself brutally to ratify the effects of a contract or a contractual stipulation, even if only virtually damaging to the competitive functioning of the market, its application may nevertheless be curbed by contract law. Having illustrated the phenomenon of resistance of contract law, it is appropriate to attempt to explain it. Chapter II. Elements explaining the phenomenon of resistance Two series of explanatory elements can be considered: one relates to the structural characteristics of the systems (), whereas the other, external, is directly connected with a more socio-political context (). This globalist approach will make it possible to better grasp what may separate but also unite these two branches of law. Section 1. The heterogeneity of legal systems In order to assess the differences that may set competition law against contract law, it is appropriate to make a distinction based on their respective organisation. To that end, use will be made of a classic distinction contrasting the theoretical schemes of a so-called "case-law" law (§) with a so-called "codified" law (§), which will make it possible to compare these two branches of law in practice. § 1) A law of case-law inspiration Numerous features make competition law an original branch of law. It is partially codified, but possesses many characteristics of case-law law. One may cite its place among the branches of law (), its guiding principles () and the means it gives itself to achieve its ends (). These particularities present advantages () but also drawbacks (). I - The classification of competition law Competition law poses difficulties of classification. Indeed, assigning it a classification according to the nature of the rules it contains is quite difficult. This is due notably to the fact that it encompasses provisions of a civil, criminal and administrative nature. It follows that competition law, like consumer law moreover, has a particular nature. Its specificity makes it a so-called "transversal" branch of law. Indeed, according to Mr Calais-Auloy, "the traditional classification, based on the nature of the rules, must be combined with a more recent transversal classification, dictated by the function of legal rules". However, while one may hesitate over its exact nature, it hardly seems contestable that it is a law with an economic vocation. Indeed, as Mr Chaput points out, "everyone will admit that competition law concerns those who have an economic activity, to simplify, firms". However, it must be specified that the particularism of competition law lies as much in its object, "the existence and maintenance of a regulated competition", as in the means at its disposal to achieve it (of public order). In reality, competition law is an instrument for regulating economic policy, which gives it a broad field of application. II - A global inspiration Competition law has the particularity of possessing original guiding principles, which draw their definition from a global and pragmatic reality. Firstly, competition law has many lines of reasoning based on an in concreto assessment of the effect of an act on the market as a whole. The very existence of competition law is indeed justified by that of protecting the market. If one considers that "all the rules of competition law apply to economic operators in competitive activity so that competition is sufficient while not being excessive", one necessarily highlights the raison d'être of this discipline. This is why, beyond the economic criterion of the competitive functioning of the market, which underlies the entire 1986 ordinance, "the market economy" is targeted. In fact, it is "the law of the market" that governs competition law. This approach is original, and sits at the margin of the classic current of reasoning in civil law, by adding a new a posteriori control of the contractual process. As a result, the field of action extends considerably, to the point of constituting a genuine instrument of economic regulation. It is therefore possible to say that competition law occupies a post-contractual place, but also a quasi-"extracontractual" one. The link that enables it thus to associate global effect and particular agreement is constituted by an analysis of the effects of the latter. This approach proceeds from a current of thought of Community inspiration in general and Anglo-Saxon in particular. The English and Americans readily analyse legal situations from their effects, which means that a contract can be called into question, independently of its validity. This mode of thought has been described as resulting from the fact that these countries are largely focused on judicial decision. The result is a law with an eminently pragmatic connotation, which gives itself the means of its efficacy. III - Means intended to be effective Competition law has powerful means of action, in addition to the power conferred on it by its position vis-à-vis the contract. Its mode of drafting contributes to this. Two main means can be cited: the use of vagueness (), and the phenomenon of the emergence of principles (). A - Vagueness One speaks of "safety-valve concepts", "rubber paragraphs", "notions with variable content". Competition law is no exception: according to Messrs Malaurie and Aynès, "...there has appeared for some time an 'economic law' (consumer law and competition law), which does not constitute a coherent body, has terminology that is at times imprecise and is often in contradiction with traditional rules, by reason of its social and economic objectives". Vagueness is a mode of adaptation of the law. The imprecision of certain terms of competition law represents a guarantee of its multiple possibilities of application. Indeed, most of the sibylline terms that dot the ordinance of 1 December 1986 require interpretation by the Competition Council and the ordinary courts. The causes are multiple. The mode of thought of competition law is essentially economic. The indeterminacy (as opposed to indeterminability) of certain terms: "abuse of domination", "manifestly abnormal situation", "substantial part of the market", and "impairment of competition", as heavy with meaning as they may be, permits a flexible law, depending on few written rules, highly adaptable and consequently entirely effective in keeping with the objective pursued: the restoration of the competitive functioning of the market. However, competition law could be an unstable law because, by its economic nature, it is necessarily linked to the economic situation. But it must be acknowledged that vague notions are indispensable to a law required to "embrace the uncertainties of life". A comparison can also be made between competition law and administrative law, thanks to the phenomenon of emergence, even if competition law can be described as partially codified. B - Emergence Recourse to emergence stems not so much from a will as from a relatively accomplished fact. The phenomenon has long been observed in administrative law: principles are drawn out by case law from situations: this is factual emergence, or else they proceed from a constant line of case law: this is jurisprudential emergence. The latter phenomenon is spread over a longer time, and therefore more stable. The particularity of these processes is to make wide recourse to the implicit. Indeed, a line of case law re-employs, in a more or less descriptive form, modes and currents of thought that are not always clearly expressed, either in legal texts or in individual decisions. The judge will then often play a role of revealer. As in administrative law, the question will then arise of where these principles are drawn from. From immanent principles, from practical reason, or from a political will? Different schools clash among civilists, publicists and legal theorists. It is not for us to decide, especially as no model has a truly universal character. It is moreover quite possible that competition law draws a little on all these sources. This confers on it certain advantages, essential to its vocation of efficacy. IV - Qualities Like all laws of emergence, competition law responds to real and contemporary needs. It is a law of the present, easily linked to its context, and therefore of easy interpretation. This makes it a highly adaptive law. This quality is an essential criterion of effectiveness, especially for an economic law. Indeed, the business world is an environment in which information circulates with great speed, which makes it an environment particularly sensitive to legal change. An overly rigid norm is quickly circumvented by litigants who are often extremely imaginative. Effectiveness is further reinforced by the "effects-oriented" aspect of competition law. Reference to the effects of practices allows a substantial saving of articles and laws. It is then enough to draft them in sufficiently vague terms to leave the competent authorities a wide power of decision. This power of interpretation allows them immediate reactions. It will be particularly easy for them, by combining the vagueness of the texts and their globality, to characterise rapidly this or that practice as anticompetitive or not. This speed makes it possible to match that of litigants, giving the law its effectiveness. V - Weaknesses Competition law suffers, like all laws of case-law inspiration, from a tendency that could be described as followism. Indeed, in the absence of global and anticipatory reflection, this law is part of a resolutely co-evolutionary process, developing and adapting constantly to its environment. This characteristic tends to make it a relatively "lagging" law, engaged in a perpetual competition with elusive practices that are in perpetual mutation. On the other hand, constituting rules of law "case by case" would not only be liable to generate conceptual incoherence, but perhaps also a weakening of the rule in favour of the decision. Indeed, in competition matters, the Court of Cassation does not assume its traditional role of unifying the law because, in the absence of precise legislation, it falls most often to the Competition Council to develop structures for assessing the validity of the practices submitted to it. Vagueness is for its part a double-edged weapon: if it allows the judge to interpret, it also authorises this interpretation by litigants. Competition being a fragile balance that everyone has an interest in distorting, it is inevitable that any "breach" will be immediately exploited. The precision of the terms of judicial decisions changes nothing: practice also knows how to play with overly precise norms, and numerous techniques (contractual, drafting, statutory...) make it possible to play on the terms or to invent scenarios not yet envisaged in order to defeat the regulation. From an ideological point of view, vagueness confers on the judge such a power of interpretation that he becomes a creator of law. The fears of government by judges then resurface. From a political point of view, the power conferred by competition law on magistrates may be felt by those in power as an intrusion into their functions of economic direction. One may also insist on the instability resulting from the speed of the law. This capacity for mutation is indeed contrary to the traditional desire for legal certainty. It may however be objected that a law can be changing without being unstable, its guiding principles, its "reason", remaining immutable. It is precisely on this notion of immutability that a codified law rests. § 2) ... is contrasted with a largely codified law Even though it has undergone many legislative and regulatory adjustments, contract law has remained largely codified and draws on modes of reasoning issuing directly from this type of norm. The same structure as previously will be adopted. It emerges that contract law and, more broadly, the ordinary law of obligations find their essential foundation in the Civil Code. The very structure of the Civil Code is as strong as it is axiomatised. Indeed, principles are laid down a priori and require no demonstration. Moreover, it operates autonomously on the basis of predefined concepts, which ensures it considerable conceptual coherence. I - Traditional sources As previously mentioned, contract law draws its sources largely from the Civil Code. Although many subsequent adjustments have taken place, they have not fundamentally called into question the initial structure of the code or its principles. The adjustments have indeed consisted of small touch-ups. Technically, it is a matter of refining the principles by the introduction of exceptions. The content of the general rule is therefore inflected, without being altered in substance. As presented nowadays, contract law therefore remains a law of codified inspiration, since it is based on that of the Civil Code, of which it is in fact an emanation. This filiation shows itself particularly in terms of "guiding spirit". II - An individualist inspiration The notion of individualism must here be understood as opposed to that of globality. It should be said that contract law directs its protection primarily towards the parties or third parties. The primary rationale of civil law lies in their protection; it is the law of the parties that is the rule. Yet, beyond this first rationale, would it not be the social order that is targeted? The general interest is little assessed outside the concepts of public order or morality at the formation of the contract. The consequences of this primary concern are necessarily a clear orientation of civil law upstream of the contract, and, on the other hand, the aspiration to security and individual guarantees. A clear distinction is therefore observed between the different "ideologies" of these two branches of law; competition law is interested in "the law of the market" and contract law in "the law of the parties". But is this really a source of irreducible conflict or the expression of a quasi-mutual enrichment? This possibility will be raised in the conclusion. This finding has enabled many authors to describe the Civil Code as a defender of individual liberties. Many principles indeed have no other purpose than to protect individuals against themselves or against a group (majority, relative effect, autonomy of will, right of ownership, etc...). The notion of public order will therefore generally be tinged with the connotation of protection. It is to ensure this protection that the code has equipped itself with the appropriate means: a very well-defined syntax and logic. III - Means intended to be reliable In an omnipresent spirit of legal certainty, the Civil Code was designed in a manner intended to ensure both its universality and its durability. The method of the codifiers of 1804 therefore consisted in creating intangible principles (), the axioms, linked together by a deductive method: the syllogism (). A - The principles In civil law, as in any axiomatised law, there are intangible guidelines, which therefore have the value of axioms: these are the principles, to which all lower rules must in theory submit. From a drafting point of view, principles call, instead of vagueness, on the property of generality. General terms are not necessarily vague, and their interpretive plasticity is much lesser. These concepts are therefore often precise instruments. Contract law remains very largely subject to the axioms of the Civil Code. It even takes up its logic, refining it from civil law. The term logic must here be understood in the sense of internal philosophy. Implicit references from contract law to civil law are frequent: it positions itself either as an extension or as an exception to the basic principles. But contract law also takes up another logic of civil law: the syllogism. B - The syllogism At the time the code was drafted, it was understood that only the Aristotelian syllogism, adapted to law by a formula similar to this one: "All thieves must be punished, X is a thief, therefore X must be punished". The codifiers, following the ideology of the Enlightenment and supported by the school of exegesis, had set the syllogism as the sole and definitive means of ensuring universal and equitable justice. The Law being the same for all and no one being presumed to ignore it, the deductive syllogism, fruit of logic, and therefore of reason, presented itself as the supreme expression of the beam of the scales. The exclusive application of the syllogism, although it constituted a clear progress compared with the Ancien Régime, and despite its theoretical purity, soon proved to be unworkable in practice. The law was postulated to be perfect, that is to say clear, complete and coherent. In fact, and despite the drafting quality of the code, no text of the period possessed all these qualities. A return to a certain legal orthodoxy was therefore witnessed, leaving more room for argumentation. Nowadays, and despite the scepticism of many authors, it can nevertheless be maintained that the syllogism and logic remain the cornerstone of a specially codified legal system. Moreover, it does not seem plausible either that a law, even an uncodified one, would not be based on applications calling on logical reasoning. IV - Qualities Any axiomatised law has the quality of making explicit most of its principles a priori, which makes it an extremely predictable tool. This quality underpins the security of the system. Indeed, the principles were laid down with a view to durability. Any subsequent modification is therefore only a by-product of the principle: the exception. This stability over time gives axiomatised law the capacity of a true instrument of social direction. In other words, only a sufficiently axiomatised law allows a lasting inflexion of individual behaviour. V - Weaknesses Firstly, it can be deduced from the foregoing what the weakest point of an axiomatised law is: rigidity. The fact is that, its context being in perpetual mutation, the law is condemned to adapt or disappear. Technically, codification is an additional factor of rigidity. Case law soon proved to be the only tool of normative production capable of giving the code the flexibility it lacked. The result was a mixture of rigidity and flexibility: rigidity "at the top", at the level of principles, and flexibility "at the bottom", at the level of application. Secondly, one of the main drawbacks of a codified system lies in the time and work of synthesis and analysis necessary to produce a few rules of general scope. Conclusion It emerges from the brief account above that competition law and contract law harbour, internally as well as externally, certain elements of heterogeneity but also convergences. Is this nonetheless a reason for incompatibility? This is not so certain. It was shown in the first part that there was interpenetration. Nevertheless, elements of resistance on the part of contract law, which finds itself "infiltrated", can be noted (this opinion shows through in the views of certain civilists). This crisis is therefore not only structural. There are other points of conflict. Some, like A.-J. Arnaud, will see in it "a conflict of identity arising from the theory of grafts". Section 2. Two laws in conflict of "legitimacy"? After having explained the phenomenon of penetration (), it can be shown how the conflict of two laws may generate internal () or external () conflicts. § 1) The process of penetration I - The theory of grafts In his Critique de la raison juridique, A.-J. Arnaud presents a description of the way in which two antagonistic systems confront each other. In the event of too strong an incompatibility, "these confrontations are normally resolved by the generally brutal eclipse of one reason in favour of the other". Reason is here understood as the general philosophy of the system. A scenario closer to that of competition law is constituted by the second path of the theory of grafts: vaccination. This terminology with a biological connotation compares the stronger reason to a body, which the other seeks to colonise. There is then "vaccination of the stronger reason, which immunises itself by absorbing in small doses elements of the competing reason". II - Practical analysis of the process of penetration Would contract law become unsuited to contemporary problems? If this assertion were upheld, the existence and raison d'être of competition law (a special law), understood as a law of progress, would be justified. The intrusion of competition law into contract law occurs almost in an "impressionist" manner, that is to say by successive touches which do not completely overturn the body of civil-law rules, at least not yet. However, owing to the isolated manifestations, it is arduous to assess the real scope of these inflexions on contract law and, more broadly, on the general theory. Nevertheless, competition law is concerned with the potentially anticompetitive effects of the contract. This amounts to favouring a finalist analysis in harmony with its intended aim, by placing its action a posteriori and assessing them in the light of a globality (the market). Yet contract law places itself more naturally at the stage of formation and determination of the content of the contract. There would therefore be a "retro" effect produced on the usual contractual process. III - Consequences of the phenomenon The essential unfavourable consequence of the phenomenon of infiltration of competition law into contract law could well lie in the absence of true cohesion between the two legal systems. Indeed, in the absence of coherence between the different concepts of the two branches of law, one could witness either a sort of denaturation, with the creation of multiple exceptions, or a genuine inflexion of the general theory in favour of competition law. Conceptually, competition law should prevail over contract law, its "reason" being superior to the latter's. But would the resistance put up by contract law reflect the emergence of a new reason that is higher still? § 2) The conflict of reasons I - Efficiency versus security Schematically, it can be asserted that contract law has set itself the vocation of being stable whereas that of competition seeks to be efficient. The latter thus stands in opposition to, but perhaps also as a complement of, a more rigid and more axiomatised law. In support of this strategy (assuming that anyone took this kind of option), the reasons mentioned previously concerning the particular needs of the business world can be cited. It follows that competition law is intimately linked to notions of efficiency, security, textual drafting and mobilisable means. All these factors interacting with one another. It can be thought that competition law today has these characteristics. If this were the case, it would be due to practical necessities. II - Economic logic versus legal logic While guarding against any partisan consideration, it may be remarked that beyond legal systems, there are two different modes of reasoning. One reasons in "law by law", the other reasons in "law by economics". Competition law may indeed be presented as a law in the service of competition. In this case, and insofar as competition is presented as the ideological support of the market economy, its law is also connoted with ideology. This new mode of reasoning, which brings in elements exogenous to the law, which normally suffices unto itself, perhaps constitutes one of the main factors of potential disorder when the two systems cross. § 3) The conflict of power: protective public order versus directive public order These two concepts are more than instruments of power. Their study also reveals certain power relations between the law and its environment. They will be briefly mentioned. Competition law, an economic law, is felt by many jurists to be an instrumentum used by economists to convey precepts external to legal reason. The means by which have been mentioned supra. Competition law therefore presents itself conceptually as a bridge between contract law and the direct influences of economic-political systems. It will therefore hardly be surprising to witness resistance from contract law. However, this may not be as significant as all that, if the penetration by competition law takes place in response to needs that civil law, by its inertia, is not in a position to satisfy. Conclusion Towards a law of the future: antagonism or harmony? A common rationality Competition law and contract law are not so far apart. Indeed, each has its own mode of operation but both possess common guiding principles and a common rationality. The result is that each branch of law is liable to draw inspiration from, or borrow elements of theory from, the other. Indeed, it should be recalled that competition law sanctions impairments of the integrity of consent, and even makes it a condition of applicability of cartel law. Conversely, contract law rediscovers notions that already pre-existed (the proportionality criterion in matters of non-competition clauses). Towards a prospect of harmonisation? In reality, the question of how to ensure the coherence of the positive system remains open. Should one envisage the parallel and watertight evolution of each branch of law, or should one rely on multiple interactions between each? Should general principles be regarded as liable to undergo major inflexions under the influence of rules of special law, or should one note the affirmation of general rules indispensable to the interpretation of special rules? According to Mr Malaurie-Vignal, "there are two ways of settling a conflict: either by the ousting of one law in favour of the other, or by the absorption of one law by the other". The ousting of civil law by competition law This setting aside of contract law could result not only from the principle that special rules take precedence over general rules but also from the strong public-order connotation of competition law. Yet the ousting of a general rule in favour of a special one very often manifests the pre-eminence of public order, justified by the protection of the general interest. In this hypothesis, "the special law of competition would constitute a new, autonomous economic public order, which would be added to the traditional public order". But this is not the only possibility. The absorption of competition law by civil law This process of integration would give rise to a twofold finding. There would be an inflexion of the rules of ordinary law, and a substitution of the traditional public order in favour of an economic public order, the common ground of the two branches of law. This state of affairs could then favour the emergence of "an economic civil law", in Mr Mestre's expression. Pragmatically, it can be postulated that, alternately and retroactively, exchanges take place and will take place between the two bodies of rules. Common points result from this. A civil-law inspiration, and complementarities Contrary to what might emerge from reading the preceding paragraphs, not everything in fact sets competition law and contract law against each other. To begin with, historically, competition law is of private-law inspiration, and this "paternity" has not been without influence. The heterogeneity that was said to present a danger because of the phenomenon of emergence would in fact be only a false alarm, experience showing that competition law remains imbued with a strong civil-law connotation, and that it inflects ordinary law only by explicitly laying down exceptions. Competition law would then present itself in this aspect as an extension of contract law, an extension all the more beneficial in that it would be highly adaptive, while continuing to convey the guiding principles laid down by the earlier law. Lastly, this panorama would not be complete if mention were not made of the prospects offered by European law, which may one day establish itself as the ultimate coordinator of disparate principles, reconciling the irreconcilable in a supranational harmony, as, to quote Mrs Delmas-Marty, "so many clouds carried by the same breath (which) would gradually fall into order while keeping their own rhythm, their own forms"... Bibliography List of works ARNAUD A.-J., Critique de la raison juridique, Paris, L.G.D.J., 1981 AZEMA J., Le droit français de la concurrence, Paris, PUF, 1981 CARBONNIER J., Droit civil, T. 1, 7th ed., Paris, PUF, 1967 CHAPUT Y., Le droit de la concurrence, Paris, PUF, 1988 DELMAS-MARTY M., Pour un droit commun, Paris, Seuil, 1994 FERRIER D., Le droit de la distribution, Montpellier, Fasc. Université Montpellier I, Course 1993-1994 GHESTIN J., Traité de droit civil - les obligation le contrat : formation, Paris, L.G.D.J., 1988 GHESTIN J., Traité de droit civil - les obligations - le contrat, Paris, L.G.D.J., 1980 GHESTIN J./DESCHE B., Traité des contrats - la vente, Paris, L.G.D.J., 1990 GUYON Y., Droit des affaires, Paris, Economica, 1990 MALAURIE P./AYNES L., Les contrats spéciaux, Paris, Cujas, 1991 MOUSSERON J.-M., Technique contractuelle, Paris, Francis Lefebvre, 1988 MOUSSERON J.-M./SELINSKY V., Le droit français nouveau de la concurrence, Paris, Litec, 1987 PIZZIO J.P./LAMBERT J./BAUDOIN DE LA VILLEON, Droit du marché, Paris, Dalloz, 1993 SERRA Y., La non-concurrence, Paris, Dalloz, 1991 SERRA Y., Le droit français de la concurrence, Paris, Dalloz, 1993 SERRA Y./CALAIS-AULOY J., Concurrence et consommation, Paris, Dalloz, 1994 VOGEL L. & J., Le droit européen des affaires, Paris, Dalloz, 1992 List of articles AMADIO M., Les contrats de franchise à l'épreuve de l'ordonnance du 1er décembre 1986, Rev. conc. conso., no. 40, 1987, p. 8 AMIEL-DONAT, La légitimité de la clause de non-concurrence, Cont., conc., conso., July 1992, p. 1 ARHEL P., Les pratiques discriminatoires, Rev. conc. conso., no. 70, 1992, p. 29 AYNES L., Indétermination du prix dans les contrats de distribution : comment sortir de l'impasse, D. 93, chron. p. 25 BARBUSIAUX C., Le nouveau dispositif en matière de concurrence et ses conséquences pour les contrats de franchise, Rev. conc. conso., no. 39, 1987, p. 4 BARBUSIAUX C., Le nouveau droit des relations contractuelles, Rev. conc. conso., no. 38, 1957 BRILL J.-P., Les sanctions civiles de l'ordonnance du 1er décembre 1986, Gaz. Pal. 1 Dec. 1987, p. 775 DE LA LAURENCIE J.-P., Le droit économique et le droit contractuel, Rev. conc. conso., no. 49, 1987, p. 8 DESCOTTE R., Les contrats de distribution et le nouveau droit de la concurrence, Rev. conc. conso., no. 40, 1987, p. 12 DREIFFUSS-NETTER F., Droit de la concurrence et droit des obligations, R.T.D.Civ, 1989, p. 369 DURAND P., La rupture des contrats de concession exclusive au regard de l'art. 8 de l'ordonnance du 1er déc. 1986, Cah. dr. ent., 1957-6, p; 21 FERRIER D., L'impact du droit de la concurrence dans les rapports contractuels avec les concédants, Rev. conc. conso., no. 49, 1988, p.5 GUILLON C., Application de l'art. 36 : une jurisprudence prometteuse pour le traitement des relations verticales, Rev. conc. conso., no. 83, 1995, p. 96 GUYON Y., Développer la concurrence, Cah. dr. ent., 1995-2, p. 19 KRIMMER, La gestion de la concurrence par la Cour d'appel de Paris : un nouvel ordre juridictionnel ?, J.C.P. éd. E, 1991, no. 41, chron. p. 82 La distribution sélective, Workshop of 8 Sept. 1994, Rev. conc. conso., no. 82, 1994, p. 31 LEPAGE M., La théorie économique de la franchise, Rev. conc. conso., no. 38, 1957, p. 4 LEVENEUR L., Des contrat-cadres en matière de distribution et l'exigence de la détermination du prix : le reflux et ses limites, Cont., conc., conso., May 1992, p. 1 LEVENEUR L., Les conséquences de la nullité pour indétermination du prix dans les contrat-cadres de distribution, Cont., conc., conso., Nov. 1992, p. 1 MALAURIE P., L'indétermination du prix dans les contrats de concession, Rev. conc. conso., 1995, no. 83, p. 64 MALAURIE P., La notion d'ordre public économique, Rev. conc. conso., no. 83, 1995, p. 48 MALAURIE-VIGNAL, Droit de la concurrence et droit des contrats, D; 95, chron. p. 51 MOUSSERON J.-M., Un principe de départ : la liberté contractuelle, Cah. dr. ent., 1995-2, p. 5 PEROCHON F., "L'adieu aux cuves", Cah. dr. ent., 1987-2, p. 4 PICOD Y., L'obligation de non-concurrence de plein droit et les contrats n'emportant pas transfert de clientèle, J.C.P. éd. E, 1994, no. 14-15, p. 195 RENAUDIN N., Droit d'user et droit d'abuser : un refus de vente peut en cacher un autre, Rev. conc. conso., no. 79, 1994, p. 5 SELINSKY V., La spécificité des accords verticaux au regard du droit de la concurrence, D. 92, chron. p. 41 TARGA A., La notion de discrimination abusive, Rev. conc. conso., no. 83, 1995, p. 54 VIRASSAMY G./LE TOURNEAU P., Détermination du prix dans les contrat-cadres de fourniture, Cont., conc., conso., Dec. 1993, p. 1 VOGEL, Interview : la Cour de cassation, juge de la concurrence, Cont, conc., conso., Feb. 1993, p. 1 Back to contents Back to the RED&S Home Page