This judgment of the Court of Cassation of September 28, 2022 rules on an important question, more perhaps for its theoretical dimension than for its practical impact: can the damage caused by a vertical agreement be presumed?
The facts were of those which give rise to abundant litigation but less visible than that resulting from the commission of cartels or abuse of a dominant position. A licensor in the industrial carpentry sector is sued by two dealers for nullity of a clause fixing a minimum resale price and for compensation for the damage resulting from the application of this clause.
By a first judgment of July 31, 2019, the Paris Court of Appeal had seen in this clause the support of a vertical agreement and pronounced its nullity, in accordance with settled case law which prohibits this type of clause because of the harm they cause to price competition. In general, such clauses are even qualified as “restrictions by object” (see latest, Aut. conc. 3 Dec. 2020, no. 20-D-20 relating to practices implemented in the high tea sector range, pt 264). Ruling a second time by the contested judgment (Paris, ch. 5-4, June 9, 2021, Mr. Yvon L. and SARL L. Chalons c/ SAS Establishment Lorillard, No. 17/19208), the Paris Court of Appeal then repaired the damage suffered by the two dealers as a result of the application of the canceled clause. We learn from reading this second appeal judgment that the two dealers would have lost several contracts because of the “prohibitive” prices that this clause required them to practice. From this flowed their loss, assessed on the basis of the missed margin on these lost markets.
So far the judgment under appeal has offered little leverage to the means of the licensor, plaintiff on appeal.
The application of a null clause, constituting a vertical agreement, may be a harmful event likely to give rise to the right to compensation for the prejudice of the injured party.
Moreover, a first plea which maintained “that no damage might result from the cancellation of a clause judged…