Unfair competition

This is where most files are won or lost. A copied website is changed within days, a page is unpublished in a minute, an employee deletes their mailbox. The evidence disappears faster than the loss.

The first 72 hours: what you can do on your own

1. Do not warn the person concerned. A formal notice sent too early makes the evidence disappear before it has been fixed.
2. Date the facts. Write down what you observed, when, and from whom you learned it.
3. Capture immediately the pages, advertisements, profiles and posts concerned — keeping the full address and the time, and without cropping the images.
4. Gather your internal documents: emails, quotes that came to nothing, cancelled orders, connection logs, turnover tables by customer.
5. Identify the customers who left and the date they left. It is that list that will quantify your loss.
6. Have a constat drawn up by a commissaire de justice — a formal record of findings made by the French enforcement officer, the profession that replaced the huissier de justice on 1 July 2022. A record of a website follows a technical protocol — cache emptied, proxy disabled, IP address noted: without it, it can be challenged.
7. Do not respond publicly. Hitting back on the same ground exposes you in turn to the charge of disparagement.

When the judge has to step in before the trial

Three routes exist, and they are not used in the same circumstances.

• The pre-trial evidential measure (art. 145 of the French Code of Civil Procedure): on an ex parte application, without the other side being warned, a commissaire de justice attends their premises to seize the relevant files. It is the decisive tool where the evidence is held by the competitor — and it requires a legitimate reason to be demonstrated.
• Référé proceedings, the French interim procedure, to stop the disturbance at once: taking down a page, stopping a canvassing campaign, an interim payment on account of damages.
• An unfair competition action on the merits, which alone makes good the whole of the loss.

The choice between those three routes depends on what you already hold. It is the first thing we look at during a first conversation.

Your long-standing customer or supplier ends the relationship with no notice, or with derisory notice. This is not a simple breach of contract: it is a restrictive practice, sanctioned by article L. 442-1 II of the French Commercial Code — the rupture brutale des relations commerciales établies — even where there is nothing in writing between you.

Three conditions are checked in this order:

• the relationship was established — stable, regular, and such as to make you reasonably expect the flow of business to continue;
• the termination was abrupt — with no written notice, or with manifestly insufficient notice;
• it is total or partial: an abrupt and significant fall in volume comes within the provision just as a complete stop does.

What the notice period should have been

There is no scale. Sufficient notice is assessed by reference to how long the relationship had lasted, the share of your turnover that partner represented, your economic dependence and the time you need to reorganise. The provision sets a single figure as a limit: whoever has given eighteen months of notice cannot be criticised for an insufficient period.

A notice period set out in the contract is not enough to protect the party terminating: it is set aside if it turns out to be shorter than what the actual relationship required. It is one of the points where what the contract provided for and what the judge decides most often diverge.

Quantifying your loss

The loss compensated is not the loss of the contract: it is the margin you would have made during the notice period you were not given. It is reconstructed from accounting records — turnover achieved with that partner, margin over variable costs, length of the missing notice period. To that are added, where applicable, investments made at that partner's request and now left idle.

No serious quantification can be done without your accounts: we ask for them at the first meeting.

Here we apply the same method as on every file, tightened by the urgency particular to competition disputes.

1. Classification. A first conversation, at the office or by video call, to say whether the facts are legally wrongful — and, if they are not, to say that too.
2. Securing the evidence. A constat, an application under article 145: that is the first step taken, before anything visible is done.
3. Choosing the route. Formal notice, référé, action on the merits or negotiation, with the timetable and the budget attached to each option, in writing.
4. Running the file. Your contact stays the same from the first meeting to the decision.

An unfair competition dispute is conducted under a written fee agreement, setting out the scope, the work planned and the billing arrangements. Nothing is billed outside that framework.

The items that recur from one file to the next — formal notice, constat, application to the court — are priced as a fixed fee. The amount is stated and accepted before the work begins, and the estimate of external costs (commissaire de justice, expert reports) is given to you at the same time.

We give no undertaking as to the outcome of proceedings: our professional rules forbid it, and nobody can seriously hold to it.

Me Jérôme Pujol was admitted to the Bar in 2000 and has practised business law ever since, at the Bars of Paris and of the Pyrénées-Orientales. He holds a master's degree from ESSEC and began his career with Gide Loyrette Nouel in Bucharest, before founding the firm.

Two things matter particularly on this kind of file:

• We also draft the clauses that avoid them. Shareholders' agreements, non-compete clauses, distribution agreements: handling the litigation and the drafting in the same firm means knowing which clause holds up in front of a judge. That is what our approach — anticipate rather than repair — amounts to.
• Fees are stated before you commit, which remains rare in the profession and is rarer still in litigation, where uncertainty too often serves as a justification for vagueness.

Competition disputes are heard by the tribunal de commerce, the French commercial court, for the place where the defendant is based — or, for abrupt termination, by one of the specially designated courts, with appeals reserved to the Paris Court of Appeal. Our offices follow that map.

From our office in the 7th arrondissement, we appear before the Paris courts, which concentrate most of the litigation on restrictive practices. From Perpignan, we handle the files of businesses in the Pyrénées-Orientales and in Occitanie, where poaching and the diversion of customers are often played out between businesses in the same local economy — and where speed in obtaining the constat makes the difference.

Our Catalan office, registered on Liste E with the Barcelona Bar, takes over where the competitor, the supplier or the customer is established on the other side of the border: jurisdiction and applicable law are then argued before the merits, and that argument is rarely lost for want of points to make — rather for want of time.

We also work remotely throughout France, by video call and electronic signature.