On 5 July 2017, the French Supreme Court ruled, in accordance with European Law, that French courts have jurisdiction to hear claims of damages incurred in France as a result of the infringement by websites operated and directed in other Member States of the prohibition on resale outside a selective distribution network.
The decision involved Concurrence, a French retailer of consumer electronics products based in Paris which had entered into a selective distribution agreement with Samsung for the distribution of Samsung’s high-end range called "Elites". Despite the prohibition in the distribution agreement to sell the Elites products online, Concurrence put them on sale on its website. As a result, Samsung terminated the selective distribution agreement for infringement of the prohibition on resale outside the selective distribution network.
In response, Concurrence challenged the validity of that prohibition before the French Commercial Courts and joined Amazon in the proceedings, alleging that Amazon, a Luxembourg company, sold the Elites products on its French, German, English, Spanish and Italian websites despite the same contractual prohibition not to do so. Concurrence argued that it suffered damage due to the offers on the various Amazon websites, all of which were accessible from France, thus diverting customers away from Concurrence.
In the first instance judgement and on appeal, the French Courts ruled that they did not have jurisdiction to rule regarding the Amazon websites operated outside of France as such sites did not specifically target French consumers. Concurrence then lodged an appeal to the French Supreme Court, which referred the question to the ECJ. In its decision dated 21 December 2016, the ECJ acknowledged the jurisdiction of the French Courts in this matter.
Thus, the French Supreme Court followed the ECJ's rationale and ruled that the fact that the websites on which the offers for the products covered by the selective distribution prohibition appear are operated from Member States other than the State of the court seized is irrelevant, as long as the events which occurred in those Member States resulted in or may result in the alleged damage in the jurisdiction, i.e. in this case, the reduction in the volume of Concurrence’s sales resulting from Amazon's sales made in breach of the conditions of the selective network.
The case was thus remanded to the Court of Appeals, to rule on the merits of the Concurrence damage claim.
Decision: French Supreme Court Commercial Section, July 5, 2017, decision no. 14