Sales without authorisation: what does the 1906 law and your rights say?

Imagine yourself, a trader in Kingersheim, preparing your January sales for weeks. You have ordered stock, recruited temporary staff, printed posters. And then, a disgruntled competitor seizes the interim relief judge to have your sale prohibited, arguing that the sales period set by the town hall does not comply with the 1906 law. What to do? This decision of the Court of Cassation of 28 June 1982 answers this crucial question: can the interim relief judge prohibit sales when the legality of the municipal orders is contested?

The question every shop owner asks: am I safe from an interim injunction if I respect the sales periods set by my municipality? The answer is nuanced. The law of 30 December 1906 prohibits sales of new goods in the form of sales without special authorisation from the mayor. But an implementing decree of 1962 provides for exceptions. The Court of Cassation has ruled: if the judge finds that the sales in question fall within these exceptions, he cannot prohibit them in interim proceedings, because the challenge to the legality of the municipal orders is serious.

In practical terms, this decision protects traders against abusive legal actions, but it does not give a free pass. It recalls that the interim relief judge, a judge of urgency, cannot decide complex substantive issues. If you are a trader in Colmar, know that your sales must comply with the 1906 law, the 1962 decree and municipal orders. An error on any of these texts and you could find yourself before a judge.

The facts: a story that happens every day

We are in Strasbourg, in January 1981. The company Bouchara Frères operates a fabric shop. It organises sales on new goods, in accordance with a municipal order setting the dates of sales in the city. But the Association of Traders of Strasbourg and surroundings disagrees. It considers that these sales are illegal because they do not comply with the law of 30 December 1906, which requires special authorisation from the mayor for any sale of new goods in sale.

The Association then seizes the interim relief judge to obtain an immediate prohibition of the sale. Before the court, the company Bouchara defends itself by invoking the decree of 26 November 1962, which specifies that the prohibition of the 1906 law does not concern certain categories of sales. The first instance judges must therefore examine whether the sales in question fall within these categories.

The Court of Appeal, seised, finds that the disputed sales fall within the exceptions provided for by the 1962 decree. It deduces that the question of the legality of the municipal orders setting the sales periods constitutes a serious challenge. However, the interim relief judge cannot rule on a serious challenge: his role is to take interim measures in case of urgency, not to decide substantive issues. The Court of Appeal therefore declares the application inadmissible. The company Bouchara can continue its sales.

The Association appeals to the Court of Cassation. It argues that the application was admissible because the 1906 law is clear. But the Court of Cassation dismisses the appeal: it confirms the reasoning of the Court of Appeal. The interim relief judge has no jurisdiction to rule on a serious challenge, and the question of the validity of the municipal orders is one. Thus, the decision rendered in Strasbourg has implications for any trader in Kingersheim, Colmar or elsewhere.

The reasoning of the court — dissected

The Court of Cassation relies on two fundamental texts. First, the law of 30 December 1906, which prohibits sales of new goods in the form of sales without special authorisation from the mayor. Secondly, the decree of 26 November 1962, which specifies this law by listing the categories of sales that are not affected by the prohibition. The decree thus creates exceptions: for example, end-of-season sales, sales due to cessation of activity, or sales authorised by municipal order.

The reasoning is as follows: the interim relief judge is a judge of urgency. He can take interim measures (such as a prohibition) provided that there is no serious challenge on the merits. In other words, if the legal question is complex or uncertain, the interim relief judge must declare himself incompetent and refer the parties to the substantive judge (the commercial court or the judicial court).

In this case, the Court of Appeal found that the sales of the company Bouchara fell within the categories provided for by the 1962 decree. Therefore, the question of whether the municipal orders setting the sales periods were legal became a serious challenge. Why serious? Because the 1906 law and the 1962 decree can be interpreted differently, and the validity of the municipal orders depends on their compliance with these texts. However, the interim relief judge does not have the power to decide this question.

The Court of Cassation validates this reasoning. It recalls that the interim relief judge cannot rule on a serious challenge, and that the application for prohibition was therefore inadmissible. This decision confirms constant case law: interim proceedings are not the place to debate complex legal questions. It is a protection for traders, but also a reminder to associations that would use interim proceedings as a competitive weapon.

What this changes for you — concretely

If you are a trader in Colmar, this decision reassures you: as long as your sales comply with the exceptions of the 1962 decree (for example, end-of-season sales or sales authorised by municipal order), a competitor cannot obtain an interim injunction prohibiting your sale, even if he contests the validity of the municipal order. In practice, this means that you can organise your sales without fearing immediate legal action. But beware: this protection is only provisional. If your adversary seises the substantive judge (for example, the commercial court), the case can be decided on the merits, and you risk a definitive prohibition if your sales are indeed illegal.

For a landlord in Kingersheim who rents out commercial premises, this decision has an indirect impact: your trader tenants are protected against abusive interim applications, which secures their activity and therefore the payment of your rents. On the other hand, if you are yourself a trader and you rent your business, you must ensure that your sales comply with local regulations. A municipal order that sets sales dates not in conformity with the 1962 decree could be challenged, and you would then be exposed to an action on the merits.

Let's take a concrete example: imagine a trader in Mulhouse who generates €50,000 in turnover during the winter sales. If a competitor obtains an interim injunction, it's a disaster: the trader loses his sales, must sell off his stock at a loss, and may even have to compensate his competitor for unfair competition. Thanks to this decision, this scenario is avoided as long as the challenge is serious. But the trader must still prove that his sales fall within the exceptions of the 1962 decree.

If you are in this situation, you must: 1) check that your sales correspond to one of the categories of the 1962 decree (end-of-season sales, sales for cessation of activity, etc.); 2) keep all supporting documents (purchase invoices, dates of putting on sale, etc.); 3) if an interim application is brought against you, ask the judge to note the existence of a serious challenge to have the application declared inadmissible. If in doubt, consult a lawyer specialised in commercial law.

Four tips to avoid this type of dispute

• Check your municipal order: before launching your sales, make sure that the period set by the town hall complies with the 1962 decree. If not, you could be vulnerable. Contact the commerce department of your town hall to obtain written confirmation.
• Classify your sales into a category of the decree: the 1962 decree provides for several exceptions (end-of-season sales, liquidation, etc.). Identify which one corresponds to your operation and document it (for example, start date of season, unsold stock).
• Anticipate interim applications: if you know that a competitor is unhappy, prepare your defence. Gather evidence that your sales are compliant (municipal order, invoices, photos). In case of an interim application, you will be able to immediately demonstrate the existence of a serious challenge.
• Consult a lawyer before any sensitive operation: if you are planning significant sales or if the competitive context is tense, a lawyer specialised in commercial law can help you secure your operation. In Colmar as in Kingersheim, prevention is better than cure.

Further reading: related case law and developments

This 1982 decision is part of a consistent line of case law. Already, a decision of the Court of Cassation of 14 March 1972 (No. 70-14.123) had established the principle that the interim relief judge cannot decide a serious challenge relating to the validity of a municipal order. The 1982 decision confirms and applies this principle to sales. Since then, the 1906 law has been amended several times, notably by the Macron law of 2015 which liberalised sales by setting national periods. But the principle remains: in case of a serious challenge, interim proceedings are not the appropriate route.

A recent development: case law tends to consider that the serious challenge must be 'serious' in the sense that it is not manifestly unfounded. If the illegality is obvious, the interim relief judge can intervene. For example, if a trader organises sales outside the authorised periods without any basis, interim proceedings are possible. But as soon as there is doubt about the interpretation of the texts, the interim relief judge must declare himself incompetent.

For the future, this decision remains a reference for all commercial disputes where the validity of local regulations is at issue. It recalls that the interim relief judge is not a substantive judge, and that traders cannot be held hostage by hasty legal actions.

What you absolutely must remember

FAQ:

• Can I organise sales without authorisation from the mayor? No, the 1906 law requires authorisation, but the 1962 decree provides for exceptions. Check that your sales fall within an exception (end of season, liquidation, etc.).
• Can a competitor have my sales prohibited in interim proceedings? Yes, if there is no serious challenge. But if your sales comply with the decree, the interim relief judge will declare the application inadmissible.
• What should I do if I receive an interim summons? Contact a lawyer immediately. You will need to demonstrate that the challenge is serious (for example, by producing the municipal order and supporting documents for your sales).
• What are the risks if my sales are illegal? You may be ordered to pay damages for unfair competition, and the substantive judge may prohibit your sales. The amounts can reach several thousand euros.
• Does this decision still apply today? Yes, the principle remains valid: the interim relief judge cannot decide a serious challenge. However, the 1906 law has been amended, so the substantive rules have changed. Consult a lawyer for an updated application.

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