Extract
[...] This visa is indeed not insignificant and reinforces the role desired by the judges of cassation of the judges of the lower courts in the assessment in concrete of economic dependence. A simple situation of economic weakness or temporary difficulty cannot justify a state of economic dependence and, a fortiori, cannot justify an abuse of a potential dominant position. The fact that the STP company is unable to find a location in the port of Le Havre and new repair orders from other companies is not enough to determine the abuse of dominant position of the Somaba company. [...]
[...] However, in this case, what was to be sanctioned, for the appellate judges, was more precisely the abuse of economic dependence, that is to say, the maneuver implemented by the Somaba company against the STP company, a victim unable to find an equivalent alternative solution. This reasoning is broken by the cassation judges. In fact, according to these latter, the evidence was not sufficient to justify such an absence of alternatives. Firstly, in fact, the parties were not bound by an exclusivity link, being therefore free to enter into commercial relations with whom they wished. [...]
[...] Article L 420-2 of the Commercial Code provides that abuse of dominant position is characterized by the fact that three conditions are met: the existence of an economic dependence situation, abusive exploitation of this weakness situation, and market impact by this practice. However, in this case, the appellate judges having limited themselves to specifying that the STP company was unable to find another location and new orders, the dominant orders of the Somaba company, they had deduced an economic dependence state. [...]
[...] It estimated, under Article 1382 of the Civil Code, that after confirming that the contracting parties were not very bound by an exclusive contract, the Court of Appeal, on the one hand, deprived its decision of a legal basis, when it should have searched if the company STP was, by the fact of the company Somaba, in theimpossibilitis to find other outlets on the local competitive market for container repair or if it had notgligit is to ensure substitute solutions» and it did not, on the other hand, provide a legal justification for its decision because it did not specify in concrete, « what factual elements allowed it to affirm that the Somaba company had acted with the intention of excluding the STP company or, at the very least, with blameworthy negligence, by not allowing the latter to have a useful period to organize its defensewe differentiate our commercial activities». To better understand this decision, it will be interesting to dwell first on the notion of abuse of dominant position and then on that of economic dependence abuse (II). [...]
[...] They consider that the Court of Appeal should have first checked of faithon concreteisyou are the societyété STP was, by the fact of the society Somaba, in theimpossibilityis to find other outlets on the local competitive market of container repair or if it had notgligis to ensure substitute solutions, has not given a legal basis for sa dit iscision » ; and that she would have had to, having noticed that no contractual link of exclusivity existed between the two companies, justify concretely the elements allowing to say that the applicant in the appeal had acted with the intention of ousting STP or, at the very least, with a blameworthy lightness, by not allowing the latter to dispose of alai useful for organizing thewe differentiate our commercial activities», in the sole purpose of excluding the subcontracting company to install in its place», two other companies with which it had commercial relationsindisputable ». This position of the Court of Cassation is far from being surprising. [...]
