Comparative advantages between international arbitration and the international chambers of commerce in Paris, the lawyer in international contract law in Paris answers

6 Oct 2022 update

The International Commercial Chambers in Paris (Commercial Court and Court of Appeal) settle international disputes; the production of documents and evidence may be in English, the decision is in French and English.


– double degree of jurisdiction;

– almost free of charge;

– judges and jurisdiction not chosen by the parties;

- duration similar to that of conventional arbitration;

– collaboration between magistrates/lawyers; cross-examination;

– public procedure and decisions but possible confidentiality of the deliberations in the chamber of councils of the commercial court, and possible confidentiality with the “business secret” legislation;

- note: advantage of classical arbitration over commercial courts: arbitral awards may be better enforced in the US than decisions of European state courts (exequatur);

(Can we have a dispute in France?: )

(For your IT contracts with French interests, read also:


International arbitration: advantages and disadvantages 

International arbitration is often presented as a fairer, more expeditious and more confidential method of dispute resolution, with the parties having a choice of jurisdiction and applicable law (although a national law may contain rules designating a foreign law).

But arbitration introduces serious hazards into the applicable procedural rules, with hidden costs, and an arbitration clause should provide for rules on summary proceedings, exequatur, appeal, choice of arbitrators, cost of arbitration, and the conditions of assumption of responsibility by the state courts in certain cases.

Indeed, arbitration is not only governed by the arbitration rules of the chosen forum, but also by the national procedural rules where the forum is located.


Presentation of the International Chambers of Commerce :


Case law:


Award clause:

“The parties agree to submit to the jurisdiction of the International Chamber of the Paris Commercial Court in first instance and the International Chamber of the Paris Court of Appeal on appeal. The parties irrevocably agree to protocols governing how cases will be considered and adjudicated before these chambers. »


For injunctions and interim measures read also:


For a complete update of the applicable French law (May 2022):

See also:

Litigation in Europe

Business secrets and litigation: what?

The new order for payment procedure – the opinion of the lawyer in contract law

When you are unable to recover a sum of money owed to you out of court, you can resort to an order for payment procedure. This is a “non-adversarial” procedure. As a result, the collection of the debt can be carried out by simple court order without having recourse to a hearing which would bring together the two parties.

The payment order is a particularly effective legal recovery. Indeed, it makes it possible to put pressure on a debtor for whom the invoice remains unpaid. This is a rather simple and inexpensive procedure.

However, decree no. 2021-1322 of October 11, 2021 modified the payment order procedure. What changes have been made to the order for payment procedure by this decree? The lawyer in intellectual property law in Paris answers you.

The payment order procedure

The payment order procedure is suitable for commercial claims and civil claims. Trade receivables are debts between two professionals. As for civil claims, these relate to relations for which one of the parties is formed by an individual (a company and a consumer for example).

Used as a last resort, the order for payment procedure must follow amicable collection attempts (telephone calls, reminder letters, formal notice).

What are the conditions for using the order for payment procedure?

In order to be able to use an order for payment procedure, the claim must be:
Contractual: it must follow a contract (rental contract, loan contract, etc.)
Determined by an amount: the amount of the debt must be specified
Due: the payment period should have expired
Recognized before the end of the limitation period. The limitation period for a purchase between a business and a consumer is 2 years. Between professionals, the period is 5 years.

The order for payment procedure makes it possible to obtain a court decision on the elements that the creditor can communicate. Thus, he must be able to compile his file with the following documents:
CERFA form no. 12948*06
Copies of unpaid invoices
Proof of customer commitment (purchase order, signed quote, etc.)
Copy of the formal notice and its acknowledgment of receipt
List of supporting documents

Also, the request must be able to mention the following information:
Last name and first names,
Date and place of birth
Name, legal form, SIRET, address (if it is a company)
Name and domicile of the person against whom the claim is made
Object of the request
Amount of the sum due with the breakdown of the various elements of the claim

The creditor must send his request to the court of law if his client is an individual or to the commercial court if his client is a company. The competent court is always that of the place of domicile or the registered office of the debtor.

The court's decision comes one to two weeks after the seizure.

For support on IT contracts:

The court decision orders the debtor to fully settle his debt

In this case, the court sends a payment order which mentions all the sums which must be paid by the debtor (amount of the invoice, interest on late payment, court costs).

As a result, the creditor must contact a bailiff to notify the debtor of the court's decision. The creditor has a period of 6 months to have the order served. The costs of recourse to a bailiff are at the expense of the creditor.

The judge issues an order of partial acceptance or partial rejection of the request

In this context, the judge issues an order injunction to pay part of the amount requested by the creditor. For example, for a request of €3,000, the judge can only grant an order for an amount of €800.

The creditor then has the possibility:
Not to accept the judge's decision and to pursue common law proceedings in order to recover the total amount of the sum owed by the debtor.
To accept the order and to collect only part of the sum requested.

See as well :
Can we have our foreign supplier judged in France? :

Court issues dismissal order

If the judge considers that the request is unfounded, he can reject the request for an order for payment.

No recourse is then possible for the creditor. He can then, if he wishes, pursue recovery by summons or in summary proceedings.

Application of the court decision

Following the judge's decision, the creditor has a period of 6 months to appeal to a bailiff who will bring the order to the attention of the debtor.

For his part, the debtor has a period of 1 month to contest the judge's order. This period allows the debtor and the creditor to present their arguments before a judge. The objection must be addressed to the court that issued the decision. This can be done by post by registered letter with acknowledgment of receipt or by going to court. For claims over €10,000, representation by a lawyer is mandatory. If the judgment is for an amount greater than €5,000, the judgment can be challenged before the Court of Appeal by the debtor, like the creditor.

The recovery of the debt can be carried out in two scenarios:
The debtor pays the full amount mentioned on the order, which allows the case to be closed,
The debtor does not pay his debt, in this case, the bailiff can be seized in order to proceed with a bailiff's seizure.

International Chambers of Commerce:

Order for payment procedure: what is the cost?

The order for payment procedure is free when it is of a civil nature. However, a seizure of the commercial court in the context of an injunction to pay a commercial debt is accredited with court costs of up to €35.21.

Are you a creditor and are you faced with an invoice that has remained unpaid by a debtor? Are you a debtor and do you want to contest a payment order? Pierre de Roquefeuil, a lawyer specializing in intellectual property law in Paris, accompanies you to advise you and defend your interests.

Order for payment procedure: changes made by decree no. 2021-1322 of October 11, 2021

Decree No. 2021-1322 of October 11, 2021 entered into force in order to modify the order for payment procedure.

The regulatory amendments allow the court to issue an enforceable order to the creditor. Consequently, the creditor will no longer have to request the judge again, as was the case before the modification of the procedure.

Thus, since the application of decree n°2021-1322 of October 11, 2021, of the decree of February 25, 2022 modifying the previous one, and the modification of article 1411 of the code of civil procedure, the texts provide that:
“A certified true copy of the request accompanied by the list of supporting documents and the order bearing the enforcement form is served, on the initiative of the creditor, on each of the debtors. The judicial officer provides the latter with the supporting documents electronically according to the procedures defined by order of the Keeper of the Seals, Minister of Justice.

If the supporting documents cannot be made available electronically for a reason unrelated to the bailiff, the latter attaches them to the copy of the request served.

The payment order is null and void if it has not been served within six months of its date. »

Thus, the legislative texts provide for the communication to the debtor of documents by electronic means. This from a secure web application "My pieces" (

In application of the latest measures relating to the order for payment, the judicial officer must ensure that the documents remain available at least one month after the notification of the request.

Order for payment procedure: the new provisions lack precision and completeness on certain points

The new provisions relating to the order for payment procedure lack precision and completeness.

Indeed, first of all, the decree of February 24, 2022 taken in application of article 1411 of the code of civil procedure does not provide for a formal extension of access to documents when service has not been made on the debtor. Consequently, "the opposition is admissible until the expiry of the period of one month following the first act served on the person or, failing that, following the first execution measure having the effect of rendering unavailable in whole or party to the property of the debtor" (Article 1416 of the Code of Civil Procedure, paragraph 2).

Then, no alternative is provided for the debtor who does not have the possibility of access to the computer tool. This omission contradicts the recent report published by the Defender of Rights on February 16, 2022. The aim of this report is to combat inequalities in access to rights caused by digitized procedures.

Would you like to be accompanied by a lawyer specializing in IT contract law in order to obtain advice in the context of unpaid bills? Pierre de Roquefeuil, a lawyer specializing in IT law in Paris, supports you to advise you and to ensure that your interests are respected.

Can we have our foreign supplier judged in France?


The judgment of the Paris court of May 31, 2021 n°11-19-007483 illustrates the questions of private international law confronted with the law of large and small disputes, which can arise when a French entrepreneur or (alleged) consumer decides to sue a foreign entrepreneur domiciled in a Member State of the European Union before the French courts.

See also: international chambers of commerce:

The French consumer (is he really?) who considers himself aggrieved by a lack of conformity of a product that he has ordered remotely from a foreign supplier can sue the said supplier before the French court and claim application of French consumer law.

Three types of private international law questions arise:

Are we really in the presence of a consumer, supposed "weak party" and deserving the application of derogatory and protective rules? What are the procedural consequences of this qualification?

Which court is actually competent territorially and according to the rate of the request? Is the call open? Is a prior attempt at conciliation necessary?

What is the applicable law? In this respect, is French consumer law applicable? To what extent?

In this case, the claimant presented himself as a consumer, and filed a claim for compensation of 4000 euros, which allowed him to seize the court

– by declaration to the registry (before the 2020 reform);

– without appointing a lawyer, in the context of oral proceedings;

– exempt the decision from the possibility of appeal; this impossibility of appeal must encourage the defendant to be extremely vigilant before a court whose competent body, the so-called “proximity” chamber or the “protection litigation” judge, pays particular attention to the weaker party;

– and obliged him to a prior conciliation (before the 2020 reform);

The recent civil procedure reform more or less replicates these threshold and rate rules (find out more:

The quality of consumer must be checked beforehand. 

This concept varies from one country to another, and in French law the criterion according to which a consumer can only be a natural person (criterion which seems to be the minimum criterion common to all the Member States of the EU and which appears to be included in Article L217-3, and in the introductory article, of the Consumer Code) seems insufficient to exclude legal persons from the protection regimes owed to the consumer: the court thus verified that the plaintiff company had a professional activity and that its purchase was part of this activity.

French law indeed refers to an intermediate notion, other than that of “consumer”, that of “non-professional”, which also attracts the application of the protective regimes of consumer law.

However, it can be noted that this notion of "non-professional" is a French notion which, according to the very provisions of the consumer code, only triggers certain sections of the said code, and does not apply to the sale of goods. and the guarantee of conformity as referred to in said code. Indeed, article L217-3 of the consumer code refers only to the quality of “consumer” and not to that of “non-professional”:

“The provisions of this chapter [“obligation of conformity with the contract”] are applicable to the contractual relations between the seller acting within the framework of his professional or commercial activity and the buyer acting as a consumer. »


But the “consumer” is not strictly speaking a “non-professional”.


Thus the introductory article of the consumer code distinguishes: “For the application of this code, the following terms are understood to mean: – consumer: any natural person who acts for purposes that do not fall within the scope of his commercial, industrial, artisanal, liberal or agricultural activity; – non-professional: any legal person who does not act for professional purposes; – professional: any natural or legal person, public or private, who acts for purposes falling within the scope of his commercial, industrial, artisanal, liberal or agricultural activity, including when he acts in the name or on behalf of a other professional. »


At European Union level, EUDs (European Union Directive) 2011-83 and 2019/771 and all directives incorporating the concept of consumer (see for example Directive 93/13/CEE of the Council of 5 April 1993 concerning unfair terms in contracts concluded with consumers, article 2) retain only the concept of consumer according to which the consumer is a natural person who does not act for professional, liberal or commercial purposes. It is this definition which is included in the introductory article of the French Consumer Code. EU law therefore does not recognize the concept of “non-professional” specific to French law. Under EU law, either you are a consumer or you are not. Consequently, the concept of “non-professional” is in principle unenforceable against a national of another Member State. Furthermore, if it is conceivable that the application of RUE (European Union Regulation) 1215/2012, article 7, allows referral to the French judge in relations between nationals of Member States, RUE 593/2008, article 4, 1), a) does provide for the application of the law of the place of habitual residence of the seller, except in the case where a consumer is involved (article 6)(in which case the law of the country of residence of the consumer would be applicable). The question is of interest because the guarantee of conformity provided for in article L217-4 of the consumer code only applies to consumers, and provides for a more extensive guarantee of conformity than that provided for by common law. (1641 and 1642 of the Civil Code or Vienna Convention on the International Sale of Goods of 1980): Article L217-5 of the Consumer Code:"The good complies with the contract: 1° If it is suitable for the use usually expected of a similar good and, where applicable: - if it corresponds to the description given by the seller and has the qualities that the - presented to the buyer in the form of a sample or model; – if it has the qualities that a buyer can legitimately expect given the public statements made by the seller, the producer or his representative, in particular in advertising or labeling; 2° Or if it has the characteristics defined by mutual agreement by the parties or is suitable for any special use sought by the buyer, brought to the seller's attention and which the latter has accepted. » Article L217-8 of the Consumer Code: “The buyer is entitled to demand that the goods conform to the contract. He cannot, however, contest conformity by invoking a defect which he knew or could not ignore when he contracted. The same applies when the defect has its origin in the materials supplied by him. »

In Union law, it is the "Rome I" regulation 593/2008 which applies to commercial relations to determine the applicable law, and which designates, with some exceptions, the law of the seller's country. In this case, Spanish law (Spanish private international law) referred to the Vienna International Convention on the International Sale of Goods of 11 April 1980, since Spain and France are parties to the said Vienna Convention.

Contact theThe Pierre de Roquefeuil law firm in Paris

See as well :

Unfair terms, what are they? how to punish them?

The new internet regulations in preparation

Remarks on the interpretation of the contract

Are the terms and conditions still useful?

The right of withdrawal


Update :

Ord. no. 2021-1734, 22 Dec. 2021, transposing the Directive 2019/2161 of the European Parliament and of the Council of November 27, 2019 and on better application and modernization of EU consumer protection rules: OJ 23 Dec. 2021, text n° 21 (electronic commerce contracts and contracts relating to digital content or digital services)
 I'ordinance n° 2021-1247 of September 29, 2021 “relating to the legal guarantee of conformity for goods, digital content and digital services” who transposed the directives 2019/770 and 2019/771 of May 20, 2019 relating, respectively, to certain aspects relating to contracts for the supply of digital content and digital services and to certain aspects relating to contracts for the sale of goods
 law n° 2021-1485 of November 15, 2021 “aiming to reduce the environmental footprint of digital technology in France”, (Reinforcement of the fight against the planned obsolescence of a product, extended to software obsolescence)
 European regulation of June 20, 2019, says “Platform to business” No. 2019/1150

Business secrets and litigation: what?


Business secrecy is protected by material and logical measures.

Can the legal tool, the agreement or the confidentiality clause, or even the law, in addition to its organizing function, be the last resort, and if we have the means to take legal action, be the instrument a sanction of business secrecy or coercive measures? Under what conditions?

  • Prove contractual fault, breach of confidentiality, resulting damage.

There may be difficulties in identifying information that should be considered confidential, and in tracing its movement.

If the contractual terms are too vague, the judge will be encouraged to interpret them in his own way. Conversely, additional precautions can render the terms of the confidentiality agreement impracticable.

We can set up a system for recording meetings, depositing them with a trusted third party, or more or less sophisticated marking of the documents or creations concerned, from the famous “confidential” stamp to geolocation and anti-copying techniques. .

With regard to the damage, how will it be assessed in the absence of an agreed fixed penalty? We can refer to the classic tools of economic theory (evaluation by costs, comparables, expected income, etc.).

The Directive (EU) 2016/943 of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, (transposed into the Commercial Code Articles L151-1 et seq.) mentions:

  » all appropriate factors such as negative economic consequences, including loss of profits, suffered by the injured party, unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the non-material damage caused to the trade secret holder as a result of the unlawful acquisition, use or disclosure of the trade secret. Alternatively, the competent judicial authorities may, in appropriate cases, fix a fixed amount of damages, on the basis of elements such as, at least, the amount of royalties or duties which would have been due if the offender had requested the permission to use the trade secret in question. »


  • Continue to protect secrecy in the context of litigation

To protect a business secret during legal proceedings, the aforementioned EU Directive 2016/943 provides that the judicial authorities may restrict access to the proceedings and to the proceedings, or deliver watered down versions of the documents concerned.

A preventive measure will most often consist of sequestering evidence, for example during an infringement seizure (on the basis of articles L615-5, R615-2, R615-4 of the Intellectual Property Code)(Tribunal High Court of Paris interim order of withdrawal issued on November 22, 2019 3rd chamber 3rd section No. RG 19/10783).

Thus paragraph 1 of Article R153-1 of the Commercial Code provides:

When seized on request on the basis of article 145 of the code of civil procedure or during a measure of instruction ordered on this basis, the judge may order ex officio the placement in provisional sequestration of the documents requested. in order to ensure the protection of trade secrets.


The commercial code then organizes a subtle procedure for the protection of secrecy and the limited disclosure of confidential information:

Article R153-2 of the Commercial Code:
When, pursuant to 1° of Article L. 153-1, the judge restricts access to the exhibit only to persons authorized to assist or represent the parties, he may also decide that these persons may not copy or reproduction, except with the agreement of the holder of the piece.

Article R153-2 of the Commercial Code:
When, pursuant to 1° of Article L. 153-1, the judge restricts access to the exhibit only to persons authorized to assist or represent the parties, he may also decide that these persons may not copy or reproduction, except with the agreement of the holder of the piece.

Article R153-3 of the Commercial Code:
On pain of inadmissibility, the party or third party to the proceedings who invokes the protection of business secrecy for a document whose communication or production is requested shall submit to the judge, within the time limit set by the latter:
1° The complete confidential version of this document;
2° A non-confidential version or a summary;
3° A memorandum specifying, for each piece of information or part of the document in question, the reasons which give it the character of a business secret.
The judge may hear separately the holder of the document, assisted or represented by any authorized person, and the party requesting the communication or production of this document.

Article R153-4 of the Commercial Code:
The judge decides, without a hearing, on the communication or production of the document and its terms.

Article R153-5 of the Commercial Code:
The judge refuses the communication or production of the document when it is not necessary for the resolution of the dispute.

Article R153-6 of the Commercial Code:
The judge orders the communication or production of the document in its entirety when it is necessary for the resolution of the dispute, even though it is likely to infringe business secrecy.
In the latter case, the judge designates the person or persons who may have access to the document in its integral version. When one of the parties is a legal person, he designates, after having obtained his opinion, the natural person or persons who may, in addition to the persons authorized to assist or represent the parties, have access to the document.

Article R153-7 of the Commercial Code:
When only certain elements of the document are likely to infringe business secrecy without being necessary for the resolution of the dispute, the judge orders the communication or production of the document in a non-confidential version or in the form of a summary. , in accordance with the terms it sets.

Article R153-8
When it occurs before any trial on the merits, the decision ruling on the request for communication or production of the document is subject to appeal under the conditions provided for by Article 490 or Article 496 of the Code of Civil Procedure.
The appeal period and the appeal exercised within this period are suspensive when the decision grants the request for communication or production. Provisional execution cannot be ordered.

  • Get stress measurements

Provisional coercive measures may be decided by the judge, in particular with the cessation of exploitation of the "offending goods", "whose design or model, characteristics, operation, production process or marketing significantly benefit trade secrets obtained, used or disclosed unlawfully”.

These measures are revoked in the event of absence of action on the merits, and may be subject to a deposit.

See as well :

Protection of business secrets

Invention patents, employee inventions


Remarks on the interpretation of the contract

The interpretation of the contract answers the question of knowing what meaning should be given to a given provision of the contract, when it turns out to be unclear.
In French law:

I. Interpretation

The interpretation of the contract presupposes the prior research of the law applicable to the contract according to the rules of private international law of the State in which the contract may have connections.
These rules will designate the applicable national or regional law(s). The contract itself may make this designation, at least for part of the subject matter it deals with. Rules of public order may apply.
These principles can be retained of interpretation recalled by the French Civil Code in its wording resulting from the 2016 reform and enshrining the jurisprudential solutions acquired, and which reflect solutions accepted in continental law, Roman and Napoleonic law.

The usual interpretation:

Item 1104
Contracts must be negotiated, formed and performed in good faith.
This provision is of public order.

(Thus for example this principle, in the context of the health crisis induced by the SARS CoV-2 (or Covid 19) epidemic, has made it possible to revisit the law of commercial leases and the exception of non-performance.

Item 1119
The general conditions invoked by one party only have effect with regard to the other if they have been brought to the attention of the latter and if it has accepted them.
In case of discrepancy between the general conditions invoked by either party, the incompatible clauses are without effect.
In case of discrepancy between general conditions and special conditions, the latter take precedence over the former.

Item 1166
When the quality of the service is not determined or determinable by virtue of the contract, the debtor must offer a service of quality in accordance with the legitimate expectations of the parties in consideration of its nature, the uses and the amount of the consideration.

Item 1188
The contract is interpreted according to the common intention of the parties rather than stopping at the literal meaning of its terms.
When this intention cannot be detected, the contract is interpreted according to the meaning given to it by a reasonable person placed in the same situation.

Item 1189
All the clauses of a contract are interpreted in relation to each other, giving each the meaning that respects the coherence of the act as a whole.
When, with the common intention of the parties, several contracts contribute to the same operation, they are interpreted according to this operation.

Item 1190
In case of doubt, the contract by mutual agreement is interpreted against the creditor and in favor of the debtor, and the adhesion contract against the person who proposed it.

Item 1191
When a clause is capable of two meanings, the one which gives it an effect takes precedence over the one which does not cause it to produce any.

Item 1192
Clear and precise clauses cannot be interpreted on pain of distortion.

Item 1194
Contracts bind not only to what is expressed therein, but also to all the consequences given to them by equity, usage or the law.

Item 1195
If a change in circumstances unforeseeable at the time of the conclusion of the contract makes performance excessively onerous for a party who had not accepted to assume the risk, the latter may request a renegotiation of the contract from his co-contracting party. It continues to perform its obligations during the renegotiation.
In the event of refusal or failure of the renegotiation, the parties may agree to the termination of the contract, on the date and under the conditions that they determine, or request by mutual agreement the judge to proceed with its adaptation. Failing agreement within a reasonable time, the judge may, at the request of a party, revise the contract or terminate it, on the date and under the conditions that he sets.

Item 1210
Perpetual commitments are prohibited.
Each contracting party may terminate it under the conditions provided for the open-ended contract.

Item 1211
When the contract is concluded for an indefinite period, either party may terminate it at any time, subject to respecting the notice period contractually provided for or, failing that, a reasonable period.

Item 1212
When the contract is concluded for a fixed term, each party must perform it until its term.
No one can demand the renewal of the contract.

Item 1213
The contract may be extended if the contracting parties express their wish before its expiry. The extension may not infringe the rights of third parties.

Item 1214
The fixed-term contract may be renewed by operation of law or by agreement of the parties.
The renewal gives rise to a new contract whose content is identical to the previous one but whose duration is indefinite.

Item 1215
When, at the expiry of the term of a contract concluded for a fixed term, the contracting parties continue to perform their obligations, there is tacit renewal. This produces the same effects as the renewal of the contract.

Interpretation of the sales contract

Section 1602
The seller is required to clearly explain what he is obligated to do.
Any obscure or ambiguous pact is interpreted against the seller


Interpretation in consumer law

Consumer Code:

Article L211-1
The clauses of contracts offered by professionals to consumers must be presented and drafted in a clear and understandable manner.
They are interpreted in case of doubt in the sense most favorable to the consumer. The provisions of this paragraph are not, however, applicable to proceedings initiated on the basis of Article L. 621-8.
A Conseil d'Etat decree shall specify, with a view to ensuring consumer information, the terms and conditions for the presentation of the contracts mentioned in the first paragraph.

Contact theThe Pierre de Roquefeuil law firm in Paris

Articulation of competition law and intellectual property law, technological agreements

Community texts on competition law:


  • Articles 101 to 109 TFEU (former 81 to 89 of the TCE), relating to competition law.


  • Council Regulation (EEC) No. 4064/89 of December 21, 1989 on the control of concentrations between undertakings;
  • Council Regulation (EC) No. 1310/97 of June 30, 1997 (amending Regulation (EEC) No 4064/89 on the control of concentrations between undertakings);


  • COMMISSION REGULATION (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices;


  • Council Regulation (EC) No. 1/2003 of December 16, 2002 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty 101 and 102 currently);


  • Council Regulation (EC) No. 139/2004 of January 20, 2004 on the control of concentrations between undertakings;


Community texts relating to research and development:


  • Commission Regulation (EU) No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements development. “This regulation provides an exemption for certain categories of research and development agreements and, in doing so, aims to ensure effective protection of competition and to guarantee sufficient legal certainty for the parties to research and development agreements”.


  • COMMISSION REGULATION (EU) No 1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialization agreements


  1. The case of technology transfer agreements


A technology transfer agreement is an agreement by which one party authorizes another to use its technology (patent, know-how, software) for the production of new products.
This type of agreement is considered to be “pro-competitive”, since it stems from the sharing of intellectual property, which is considered a factor of economic growth.
Technology transfer agreements are governed by a regulation:
  • REGULATION (EU) Noh COMMISSION 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements (replaces Regulation (EU) No 772/2004 of April 27, 2004):


  • bilateral licensing agreements concluded between firms with limited market power are, under certain conditions, deemed not to have anti-competitive effects. This text has been widely criticized because it uses market shares as criteria. Thus, agreements between firms are considered lawful or not depending on whether or not they lead to the control of 20 % of the sector concerned (if the agreement is made between competing entities); and 30 % (if it concerns non-competitors). However, in the fields of technology and innovation, this criterion seems inefficient, due to the complexity of the products targeted and because we are rather in market shares which remain potential.
  • In order to avoid a violation of free competition rules, not all technology transfer agreements benefit from an exemption.
  • Research and development agreements will now only fall under this regulation if the block exemption regulations for R&D agreements (1217/10) and on specialization agreements (regulation 1218/2010) are not applicable.
  • Previously, the aforementioned regulation of 2004 provided for a possibility of exemption concerning the passive sales restrictions inserted in a technology transfer agreement between non-competitors (art. 4, §2, b, ii). From now on, this regulation aligning itself with regulation 330-2010 on vertical restraints, excludes the exemption in all cases of passive sales restrictions.
  1. Licenses
In this respect, the principle of compulsory licenses imposed by the competition authorities is central because it involves calling into question a property right.


The Court of Justice had moreover perfectly understood this in the Magill case (ECJ, 6 Apr. 1995, Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission of the European Communities, C-241/91 P and C-241/91 P).
It had underlined the exceptional circumstances of this case by imposing very strict conditions on the granting of compulsory licenses. In particular, the refusal of a license had to prevent the appearance of a new product corresponding to consumer demand.
In another judgment, the Volvo judgment (CJEC, 5.10.1988, Volvo/Veng, case 238/87), the Court recognizes that the refusal to grant a license thus allowing the licensees to compete directly with the holder of the property right intellectual property (by authorizing them to sell the same spare parts as those which it sells, in this case) cannot as such constitute an abuse of the dominant position which it may hold on the market for these spare parts.


It follows from the comparison between the Volvo and Magill judgments that when the application for a license does not allow the appearance of a new product, but simply to compete with the holder of the intellectual property right (by offering an identical good), the CJEU accepts that the holder of the intellectual property right refuses to license.
On the other hand, when the refusal to license aims to unjustifiably prevent the creation of a new product, which would compete with the products of the holder of the intellectual property, IThe refusal to dismiss constitutes an abuse of a dominant position.
But over time, these conditions have eased and there is now total uncertainty.
Since the Microsoft case (TPI, 17 September 2007, Microsoft Corp. v. Commission, T-201/04), it suffices that the license allows a “better” product for compulsory licenses to be possible.
It is to transform the competition authorities into evaluators of innovation and this is not their role.
  1. abuse of dominant position
Commits an abuse of a dominant position (sanctioned by all the national laws of the Member States and, in Community law, by Article 102 of the TFEU Treaty), a company in a dominant position on a market (monopoly or quasi-monopoly) which , possessing a skill that cannot be recreated, refuses access to it to a third party without a legitimate reason.
We can cite the example of a dominant company on a market thanks to the patents it holds, and which engages in predatory methods (predatory pricing for example) against a competitor.
The central point is to examine whether or not the company is dominant in a market, whether through a patent or through the effectiveness of its commercial communication.


The outline of a patent on an innovation is vague and subject to controversy. It is then that, in a context favorable to patent holders (as in the United States), companies can pass as infringers which in all good faith did not at all feel that they were infringing.
Let us add that the number of patents taken out by an inventor is counted by tens or even hundreds. Involuntary counterfeiting is then greatly multiplied.
In a AstraZeneca v. Commission judgment of 1er July 2010 (C-457/10 P), with regard to the concept of abuse of a dominant position, the General Court confirmed its case-law according to which, to constitute such an abuse, a behavior must not necessarily affect competition directly. He also insisted on the objective nature of this concept, which does not require the establishment of an intention to harm. In the present case, it therefore mattered little whether or not the impugned practices resulted from deliberate behavior on the part ofAstra Zeneca.
  1. Europe and intellectual property rights


The Court of Justice of the European Communities had previously had occasion to recall several principles:


  • In the absence of Community harmonization of intellectual property rights, it is up to each Member State to establish its own national legislation (Parke Davis judgment (29 February 1968, C-24/67)).


  • An intellectual property right does not necessarily confer a dominant position on a market. To apply competition law to the holder of an intellectual property right, it is necessary to carry out a case-by-case analysis of the market or markets and of the position of the holder of the intellectual property right in this or these markets (Deutsche Grammophon judgment (8 June 1971, C78/70)).

Breach of software license is not infringement

Patent law and employee inventions