Commercial Lease and Article L.442-6: The Court of Cassation Clarifies the Scope of Application

Imagine: you are the owner of a shop in Lunel, in a small shopping street. You have been letting this premises to a hairdresser for ten years. One day, the tenant stops paying rent. You sue him in the commercial court, thinking that is the right court. But the judge replies: "It's not us, it's the judicial court." Result: months of lost proceedings, additional legal fees. This misadventure, I have seen happen to several of my clients in the Hérault. The question that every owner then asks is simple: "In which court should I bring my commercial lease dispute?" The answer comes from the Court of Cassation, in a decision of 15 February 2018 (No. 17-11.329), which sorts out the competent courts.

The facts: a story that happens every day

Mr X, owner of commercial premises in Agde, had granted a lease of a shop to a clothing sales company. The tenant, the company Au Marahja, was late in payment. Mr X therefore sued his tenant in the Paris High Court (now the judicial court). But the tenant company challenged this jurisdiction: according to it, the dispute fell within the jurisdiction of the specialised courts for restrictive competition practices, because the lease is a contract subject to Article L. 442-6 of the Commercial Code. At first instance, the Paris High Court declared itself competent. The Paris Court of Appeal, in a decision of 25 November 2016, confirmed this competence. The company Au Marahja then appealed to the Court of Cassation. On 15 February 2018, the Court of Cassation dismissed the appeal, upholding the jurisdiction of the High Court. Why? Because the letting of commercial premises is not a production, distribution or service activity. In short, a commercial lease, even if it concerns a shop or a unit in a shopping centre, does not fall within the scope of Article L. 442-6, I, 2° of the Commercial Code. This provision targets restrictive competition practices between professionals, not simple contractual relations between landlord and tenant.

The reasoning of the court — dissected

The Court of Cassation was very clear: Article L. 442-6, I, 2° of the Commercial Code applies to production, distribution or service activities. However, the act of letting commercial premises is not an activity in itself: it is a contract for the provision of immovable property. The judges therefore considered that the landlord who lets premises does not act as a "producer, distributor or service provider" within the meaning of the text. In other words, the letting of premises is an act of property management, not a commercial activity subject to the special rules on restrictive practices. This reasoning confirms previous case law, notably a decision of the Paris Court of Appeal of 3 July 2014, which had already excluded the application of Article L. 442-6 to commercial leases. However, note that the parties may by agreement provide that disputes relating to the lease be submitted to a different court, but in the absence of a clause, the general rules of jurisdiction apply. What few people know is that this decision also has an impact on actions for contractual liability: if a tenant claims damages from you for breach of your landlord obligations, it is not before the specialised commercial court that you must go, but before the judicial court. undefined, I have encountered cases where owners in Montpellier have been sued in the wrong court, resulting in referrals and delays of several months.

What this means for you — concretely

If you are a landlord (the person letting commercial premises), you should know that all disputes relating to the lease (unpaid rent, termination, repairs) fall within the jurisdiction of the judicial court (formerly the High Court) if the amount exceeds €10,000, or of the district judge below that. Before this decision, some commercial courts declared themselves competent for commercial leases, creating legal uncertainty. Now it is clear: the commercial court is only competent if the dispute relates to a production, distribution or service activity (e.g., a conflict between a supplier and a distributor over sales conditions). For a tenant, this means that you cannot invoke Article L.442-6 to challenge a lease clause before the commercial court. If you are a purchaser of commercial premises, check in the sale deed whether the seller already has a pending dispute and before which court. Concrete example in Agde: an owner lets premises to an ice cream shop. The tenant has not paid rent for six months (i.e., €12,000). The owner seizes the commercial court: the case will be referred to the judicial court, delaying the hearing by 4 to 6 months. Meanwhile, the tenant continues to operate without paying. To avoid this, you must immediately seize the correct court.

Four tips to avoid this type of dispute

• Check jurisdiction when serving the claim: Before suing your tenant, consult a lawyer to determine whether the dispute falls within the judicial court or the commercial court. A mistake will cost you time and money.
• Include a jurisdiction clause in the lease: You can provide that any dispute will be brought before a specific court (e.g., the judicial court of Montpellier). This avoids any subsequent challenge.
• Collect evidence of the tenant's activity: If your tenant carries out a production, distribution or service activity (e.g., a manufacturing workshop), this could change the situation. Keep a copy of its K-bis extract and invoices.
• Anticipate delays: In case of non-payment, act quickly. A misdirected claim can take an extra 6 months, during which the debt increases. Opt for summary proceedings before the judicial court to obtain payment quickly.

Further reading: related case law and developments

This decision is part of a consistent line. Already, the Court of Cassation had held, in a decision of 14 November 2007 (No. 06-17.238), that Article L.442-6 does not apply to lease contracts. More recently, the Paris Court of Appeal, on 3 July 2014, confirmed this position. The trend of the courts is therefore very clear: commercial leases are excluded from the scope of restrictive competition practices. This means that actions based on significant imbalance (Article L.442-1 of the Commercial Code, since the 2019 reform) cannot be invoked either in the context of a lease. However, if the landlord imposes abusive conditions (e.g., disproportionate penalties), the tenant can still act on the basis of ordinary law (abuse of right, unfair terms for non-professionals). In the future, it is likely that the Court of Cassation will maintain this interpretation, thus protecting the specificity of commercial leases.

Checklist before acting

• Before suing: Check whether the dispute concerns the performance of the lease (rent, charges, repairs): judicial court is competent. If the dispute concerns a restrictive competition practice (e.g., refusal to sell, abuse of economic dependence): commercial court is competent.
• Limitation period: The action for payment of rent is time-barred after 5 years (Article 2224 of the Civil Code). Do not delay.
• Amount in dispute: If the amount is less than €10,000, the district court is competent. Above that, it is the judicial court.
• Mediation clause: Check whether the lease provides for a mandatory mediation clause before any court action. If not, you can propose mediation to save time.
• Summary application for interim payment: If rents are unpaid, you can apply for an interim payment in summary proceedings before the judicial court. This is quick (often 1 month).

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →