They are interested in more readily to the execution of the contract i

Better attack his franchisor for lack of assistance for non-consisting of know-how.

The existence in the execution of the franchise agreement

Over the years, the judges mainly focused on formation and rupture of the franchise agreement conditions. They are interested in more readily to the execution of the contract, i.e. the way in which the two parties assume their reciprocal obligations: transmit expertise, ensuring support to the franchisees and animate the network for the franchisor; respect the business concept and its financial obligations to the franchisee. The reality of expertise held by the franchisor and the means by which it implements to pass it on to its franchisees are sometimes questionable. What the judges still seem to ignore. It is better to attack the franchisor on the lack of assistance: the case law is more robust.

The concept of expertise remains floue

The concept of know-how is not recognized in French law. Case law is therefore referred to a Community regulation which expired in the spring: it has been renewed on 20 April (for entry into force June 1). It defines the know-how of the franchisor as "a secret, substantial and identified practical information set non-patented, resulting from the experience of the supplier and tested by". The notion of secrecy is innovative: it means that to claim expertise, the franchisor must be able to show that it is not easily accessible and it gives the franchisee a significant competitive advantage. This new regulation is clearly marked by the legal drama of the "Ribeïrou mess": a sign of bakery which the know-how in bread, but of business management, has been recognized as real and meet the Community requirements (Court of appeal of Besançon, April 9, 2010). What will be the impact of this new community, more protective regulation for franchisees Difficult to pronounce. However, it should bring a little more demanding to be judges for the reality of expertise held by franchisors. Because if it refers to some recent decisions, it cannot be said that they have set the bar very high. The tribunal de commerce de Rouen thus considered, September 29, 2008, that the know-how of the franchisor must not necessarily be "original or specific". His reality must be assessed according to his "anticipation" and the "success of the network. Two years before, the Court of appeal of Paris, had already found (June 7, 2006) that "the simplicity of the concept" is not such as to call in question the existence of the know-how.

Transmission obligation

Regardless of the definition of expertise remains fuzzy, the franchisor is required to all be implemented to transmit it to its franchisees for the duration of the contract. This transmission may occur through different channels: training of the franchisee and its employees, development of a "bible" of the sign, guidelines concerning the arrangement of the point of sale and presentation of the products, implementation of computer process of interacting January 7, 2009, the Court of appeal of Paris estimated that by delivering a "bible" to franchisees and guiding them in the management of their point of sale, the franchisor was indeed fulfilled its obligations.

File, with the assistance of Charlotte Bellet and Catherine Kalopissis (cabinet Threard, Bud, Méresse & Associates), Monique Ben Soussen and Nicolas Dissaux (cabinet BSM lawyers), Olivier Deschamps (DMD lawyers Office) and François-Luc Simon (Simon associates Office).