Cass. 1st civ., 2 April 2025, no. 23-11.456

In an important ruling on 2 April 2025, the First Civil Chamber of the Court of Cassation decided to suspend its decision in a dispute over the sudden termination of established commercial relations, in order to refer a preliminary question to the Court of Justice of the European Union (CJEU) on the nature – contractual or tortious – of this type of action under Union law.

A dispute on the boundaries of the contract

In 1995, the French company Héli-Union (now Sabena Technics Helicopters) had entered into a long-term commercial relationship with the Cypriot company Ofsets Limited, with a view to providing specialised aviation personnel. The contract referred to the law of the island of Jersey.

In 2020, Sabena Technics terminated the relationship. Ofsets then took it to the French courts, not on contractual grounds, but invoking Article L. 442-1, II of the Commercial Code, relating to the sudden termination of established commercial relations, a provision considered in French law as a tort law.

Applicable law: a European debate

The central question of the dispute lies in which law is applicable to this liability action: that of Jersey (chosen contractually), or that of France (place of performance of the relationship and where the French company is established)?

It all depends on the legal classification of the action: if it is contractual in nature, the law chosen by the parties applies (Rome I Regulation); if it is tortious in nature, it is the law of the place of the damage or of the place with the closest links to the situation (Rome II Regulation).

Contractual or tortious? The Court prefers to ask the question

The Court of Cassation notes that the case law of the CJEU is ambivalent.

European case law on this subject is currently marked by a tension between two key rulings: Granarolo (2016) and Wikingerhof (2020).

In the Granarolo case, the CJEU had opted for a contractual approach in the case of tacit established commercial relationships, where the behaviour of the parties, regular exchanges and good faith were decisive. This analysis was based on the need to interpret the commercial relationship to establish whether or not the termination was lawful.

However, with the Wikingerhof ruling, handed down by the Grand Chamber in 2020, the CJEU moved towards a tort classification. It considers that when a legal obligation independent of the contract is invoked – in this case, a competition law obligation – the action falls under the category of torts. The Court emphasises here the autonomous nature of the legal obligation on which the action is based, independently of the contractual stipulations.

The question is therefore whether the Wikingerhof ruling of 2020 constitutes a reversal of the Granarolo ruling of 2016 or whether these two decisions are complementary rather than contradictory.

To dispel this uncertainty, the Court of Cassation has put the following question to the CJEU:

Does an action based on a national legislative provision sanctioning a sudden termination of established commercial relations (in this case, Article L. 442-1, II) constitute a tort or contractual obligation within the meaning of Union law?

Pending the response of the CJEU, the proceedings before the Court of Cassation are suspended.

What lessons will be learnt?

We will therefore have to wait for the Court of Justice’s response to determine the applicable law in the event of sudden termination of commercial relations.

As the Court of Cassation rightly points out, the sudden termination of established commercial relations is a concept independent of the contract. The reasonable notice period does not depend on the contractually agreed notice period but on a concrete analysis of the commercial relationship (duration, concrete elements, etc.).

« National case law has specified that, in application of this text, the author of the termination incurs liability, not because of the termination itself, but because of the suddenness of the termination, which is assessed independently of compliance with the contractual notice period (Com., 6 March 2007, appeal no. 05-18.121). It is thus consistently held that ‘the existence of a contractual notice period does not exempt the judge, if required, from verifying whether the contractual notice period takes into account the duration of the commercial relations that existed between the parties and other circumstances’ (Com., 20 May 2014, appeal no. 13-16. 398; Bull. civ. IV, n° 89; Com., 28 June 2023, appeal no. 22-17.933).

According to equally consistent case law, the length of the notice period is sufficient when assessed at the end of a concrete analysis of the commercial relationship, taking into account its duration, the volume of business achieved and the reputation of the customer, the sector concerned as well as the seasonal nature of the product, the time needed to find another partner, respecting, in accordance with the law, the minimum notice period determined with reference to commercial practice, and the supplier’s state of economic dependence, this state being defined as the impossibility for the supplier to have a solution with another company that is technically and economically equivalent to the contractual relations that have been broken (Com., 26 April 2017, appeal no. 15-23. 078; Com., 24 October 2018, appeal no. 17-16.011).

It would therefore be logical to consider that such an action is a tort action because it does not require the interpretation of the contract.

It is in this sense that the Court of Cassation rules in national or international disputes.

In the context of a dispute between a French company and a company outside the European Union, it had indeed been ruled very recently that the action was a tort (1st Civ., 12 March 2025, appeal no. 23.22-051). The Court of Cassation had then upheld the tortious nature of the action.

This decision has already been commented on here (https://frenchlaw.blog/2025/03/13/sudden-termination-of-commercial-relations-french-international-jurisdiction-based-on-the-tortious-nature-of-the-action/ ).

It therefore remains to be seen whether we can arrive at the same classification in accordance with European texts.

The practical importance of this qualification

In practical terms, this will have a significant impact.

If the procedure is tortious, the applicable law will be that of the victim of the sudden termination. It will also be easier for the competent court to be the one where the victim of the termination is located.

In the presence of a contractual qualification in European law, the victim of the break-up will have to apply the law defined by the contract and also act before the court designated by the contract.

By Olivier VIBERT, Lawyer in Paris, partner in the firm KBESTAN (www.kbestan.fr)