THESIS PROPOSAL

 

 

Title:

The franchise: mirage or miracle?

 

 

Observations:

The franchises are increasing.

The franchise system is growing and getting more and more importance in most of the countries.

Studies give more and more positives figures about the franchise.

Franchise is established on our society as a real system to develop your business.

Some franchises on the French territory are not anymore created, did we passed the peak of the franchise system?

 

Hypothesis:

• With the debt crisis, is the franchise still a system with a future?
• The general society is less and less risks takers, how can the franchise decrease the risks to be more and more profitable for the entrepreneurs?

 

Problematic:

How to design performance and the extension of the franchise in front of the current socio-economic realities on the French market?

 

Methods:

Analyse of the definition of the franchise

Analyse the figures of the profitability of the franchise

Analyse of the contract franchise and the different types of franchises

Analyse on a legal way the opportunities for the future of the franchise system

Analyse on an economic and commercial way the future possible modifications of the franchise market

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STRUCTURE

 

 

INTRODUCTION

 

FIRST PART: THE FRANCHISE

 

1. What is a franchise?

 

1. Historical
2. Definition: The concept of franchising
3. Figures

3.1. Networks of signs: franchising, important form of organization of retail

3.2. Sectors of activity

3.3. The franchise: rising in Europe

 

4. The different types of franchises

 

1. Technical characteristics

 

1. Foundations of success of fast food

1.1. Increases of supply and demand

1.1.1. Changes in eating habits

1.1.2. Decrease in purchasing power

1.1.3. Free access to market professionals

 

1.2. Fast food chain

1.2.1. The concept of fast food

1.2.2. Operation in signs

 

1.3. Value creation

 

2. Means of exploitation: franchising
3. Perception of performance

3.1. Political success of fast food

3.1.1. Advertising: the primary attraction and stored

3.1.2. Diversification of products: the provocation of loyalty or   retention

3.1.3. Expansion of sales channels and control: the attraction of convenience

3.1.4. Action on commercial tools: visual attraction

3.2. Performance indicators

3.2.1. Economic performance

3.2.2. Social Performance

3.2.3. Organizational performance

 

SECOND PART: FRANCHISE AND LEGAL SYSTEM

 

1. The legal system

 

1. The legal environment

1.1. Texts framing the franchise

1.1.1. The franchise contract

1.1.1.1. Legal framework of the franchise agreement

1.1.1.2. Plan a franchise agreement

1.1.1.3. The clause

1.1.2. The “Doubin” law

1.1.3. Document pre-contractual information (DIP)

1.1.3.1. The Franchise Agreement and law

1.1.3.2. The contents of the Franchise Agreements

1.1.3.3. Regulation of the legal foundations of the franchise

1.2. The competent jurisdiction

2. Limits and evolutions of the legal system

 

1. The commercial system of the franchise

 

1. The limits

1.1. Vertical relationships and restraints

1.2. The exclusive supply

1.3. The consequences

1.4. Vertical restraints as barriers to unfair competition

 

2. The perspectives

 

CONCLUSION

 

BIBLIOGRAPHY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

INTRODUCTION

 

Social needs conveyed by globalization do not always correspond to the reality of life. The world’s population can no longer adapt to current trends in revenue. While the impact of the 2008 crisis has not yet seen reconstructed, other financial difficulties emerge. All economic sectors are affected. Indeed, the impact of the economic crisis affects all entities and consumers manage their portfolios in a limited way. In this social chaos came the fast food sector and, surprisingly, it is the only one to benefit from this crisis. This is actually a category of restaurants, according to its name, offering a fast service to consumers. Theoretically, many research focused on fast food have given its prosperity on the market. Practically, the fast food industry tends to grow even through major retailers, including the franchise.

In France the creation of companies is exploding since 2009. The crunch crisis and the debt crisis create more and more unemployment. This has made an increase of the creations of the companies. The French government had established in 2009 the status of “auto entrepreneur” which permit the creation of a company almost without taxes (until a certain turnover) and without administration papers. In fact the “auto entrepreneur” status is a harmonization of the creation of company.

The consequences are an increase of more than 2 times in one year for the creations of companies, future opportunities for the people and defensively a way to fight against the crisis. In the same way, the franchising has also increase. But this system was created before this entire crisis. And some new figures permit us to see a decrease of the profitability and the margins of the companies (franchisors and franchisees). For that, I wanted to research about this system how it works, what are the rules and how can we develop the system.

Then, this thesis is based on researches made for the French franchise system and a little bit expand on the international system. Nowadays, in terms of research just a few law books were written about this subject and most of them don’t really judge the franchise system. They just state a fact, a regulation system and a way to develop the market. This thesis was created to develop a bit more the researches on the opportunities of the franchise system in commercial terms. Of course this conclusion must be first analyse the regulation system of the franchise and then take the pro and the cons of this system.

How this system will be analysing? With which method will we established the conclusion?

This paper will analyse the franchise system in France how it’s defined from when and how it has changed in the last past years. From this evolution statement we will dress up some conclusions and establish some priorities of opportunities or threat for the system. Most of the conclusion state will be on a commercial way.

The main objective of this thesis is to show how the market is today and to have a critical point of view of the franchise in France and its future.

 

 

 

 

 

 

 

 

 

 

 

FIRST PART: THE FRANCHISE

 

Relatively young, franchise appears today as one of the sectors with a potential average annual growth of around 24 pc in terms of number of networks.

According to statistics from the Ministry of Commerce, Industry and upgrade the economy, the number of networks increased from 42 in 1997 to 308 in April 2006, plus an annual fifty new signs. The sector employs about 20,000 people in about 2,000 outlets.

 

1. What is a franchise?

 

Currently, the International Franchise Association considers Western Europe as one of the best areas for the international development of the franchise. And the largest global franchise nods Europe reported more revenue McDonald’s than any other region, including the United States. In 2007, McDonald’s won nearly $ 9 billion (6.8 billion Euros) in Europe, against less than $ 8 billion (6 billion Euros) in the United States. The company expects an increase of approximately 9% of European sales for 2008, more than twice the increase expected in the United States.

The future of franchising in Europe wants brilliant and varied as more and more companies recognize the value of the franchise concept, and contractors continue to look for opportunities to start their own business is supported by a well-known brand.

 

1. Historical

 

The franchise is, with the concentration of large distribution companies, one of the major phenomena of the evolution of trade for thirty years.

Although franchising is commonly mistaken for innovation of the twentieth century, the concept has its roots in the European feudal system of the Middle Ages. When landowners began to grant rights to farmers to use the land in return for a fee and a portion of the profits, they used a system that has evolved to the franchise.

The concept of franchising has matured in the nineteenth century when German brewers have allowed bars to use the name of the brewer to sell beer. The word “franchise” is of French origin, comes from the word free and means a right or privilege. It grants the franchisee the right or privilege to use the franchisor’s system, its products and its trademark.

Appeared under the name of franchising (the word is translated from French meaning “free of tax”) in the 1930s in the United States to overcome the deficiencies of a distribution system, the franchise was created around U.S. antitrust laws that prohibited automakers to sell their products directly to consumers.

We can trace the history of this marketing method into three major periods:

• From 1950 to 1970: invention of the first concepts and the first franchise networks (Phildar network in France is one of the first representatives),
• The decade of the 80s is the time of the explosion in the number of networks in a creative madness with sometimes unfortunate adventures,
• Since the late-80s concept maturity of the franchise:
• The candidates of franchise holder are better informed and professional real projects,
• Franchisors are offering viable solutions and structured.

The franchise is conceived in three different axes:

• The strategy of the franchise: most networks are based on a business concept to ensure a competitive advantage for franchisees,
• Individuals and the franchise network: this form of business structure involves rights and duties.
• The franchisee has the advantage of independence and spirit must have network,
• The franchisor has the advantage or a geographic coverage through the network and must generate a dynamic connection with network members.

About the know-how transmitted to franchisees:

• whether it should be applied in accordance with the foundation provided by the franchisor, the know-how must be adapted to the location of each unit of the network,
• the franchise players are faced daily at all of these characteristics.

The twenty-first century, the franchise has built a significant proportion of European economies. For example, in the United Kingdom, the franchise has grown twice as fast as the global economy in 2006, and increased by 44% over the last ten years, representing sales of 10.8 billion pounds (12,1 billion Euros) per year.

The franchise is often seen as the combination of independent shops to meet the actors supermarkets.

Seen from the side of franchisors, franchising is a development that provides a risk-sharing and wealth.

Seen from the side of the franchisee, the franchise mode is also a home business creation assisted by the experience of successful franchise concept[1].

 

2. Definition: The concept of franchising

 

The franchise is defined as a method of collaboration between, on the one hand the franchisor company and also one or more undertakings franchisees. Its purpose is to exploit a concept developed by the franchisor. There is no standard agreement on the matter, but the contract must take into account the specificity of each concept. However it is possible to identify a number of themes that are common to most contracts:

• Terms of execution of the franchise agreement,
• Obligations of the Franchisor,
• Franchisee’s obligations,
• Supply (for distributorships) financial arrangements,
• Image of the brand,
• Duration and termination clauses franchise.

In other way, franchising is a system of marketing products and / or services and / or technologies, based on a close and ongoing collaboration between legally and financially separate and independent, the franchisor and its franchisees.

The franchisor grants the right and imposes an obligation to carry on business in accordance with its concept. The right so granted shall authorize and require the franchisee, in exchange for a financial contribution directly or indirectly, to use the brand and / or trademark and / or service, know-how, business methods and technical procedures and other intellectual property rights. The franchisee is supported by a continuous supply of commercial support and / or technical, within and for the duration of a franchise agreement in writing between the parties to this effect.

The conception of the franchise based on the know-how: a set of information of non-patented practical deductible, resulting from experience and testing by the franchisor. It is secret, substantial and identified:

• “Secret” that the know-how, in whole or in precise configuration and assembly of its components is not generally known or easily accessible: it is not limited to the narrow sense that each individual component of the know-how should be totally unknown or unobtainable outside relationships with the franchisor,
• “Substantial” means that the know-how includes information of the franchise for the sales of products or services to end users and especially for the presentation of products for sale, product processing in conjunction with the provision of services, customer relations and administrative and financial know-how must be useful for the franchisee by being capable, at the date of conclusion of the agreement, of improving the competitive position of the franchisee, in particular by improving its results or helping to enter a new market,
• “Identified”, that the know-how must be described in a sufficiently comprehensive manner in order to verify that it fulfils the criteria of secrecy and substantiality; description of know-how can be made in the agreement franchise disclosure document in a separate deductible or any other suitable shape.

The franchisee is responsible for financial and human resources that it incurs and liable to third parties for acts performed in connection with the operation of the franchise. It has an obligation to cooperate loyally to the success of the network to which it has acceded.

The original concept is the combination of three elements:

• the ownership or right to use signs of rallying customers: trademark, trade and services, teaches, name, trade name, signs and symbols , logos;
• the use of an experience, know-how;
• a collection of products, services and / or technologies patented or not, he has designed, developed, licensed or acquired.

About know-how:

• The franchisor provides the franchisee with the enjoyment of this know-how it maintains and develops.
• The franchisor with information and training appropriate to the franchisee transmits and monitors implementation and compliance.
• The franchisor encourages regular feedback franchisees to improve skills.

In pre-contractual periods, contractual and post-contractual the franchisor uses and prevents any transmission of know-how, particularly with respect to competing networks could impair the franchise network[2].

 

3. Figures

 

In 2010, the franchise industry had 1,477 franchise systems (+ 5.8%) or 58 351 points of sale, 33 5000 employees and a turnover of more than 47.89 billion Euros. Europe’s leading franchise, France has seen its number of networks to double in ten years and is experiencing a steady increase in 8 to 11% for 5 years. The presence of franchisees also increases 5 to 10% each year. There is also the development of “small” networks of less than 20 franchises in recent years. The portrait of the entrepreneur franchise[3]:

• The average age is 46 years
• 40% of franchisees are women (as against 36% in 2009)
• Most were employed before opening their franchise, resulting in a true retraining
• The average turnover of the franchise is growing (€ 510,000 against € 431,000 in 2009) and its median monthly income (about € 2,800 against € 2,400 last year).

 

Table 3: Evolution of Franchise since 1991

 

	Franchisors	Number of franchisees	C.A. Billion Euros
2011	1569	62041	49,24
2010	1472	55871	47,88
2009	1369	51 619	47,72
2008	1234	49 094	47,7
2007	1141	45 996	47,7
2006	1037	43 680	45
2005	929	39 510	43
2004	835	36 773	41,76
2003	765	34 745	34,12
2002	719	33 268	33,71
2001	653	32 240	30,49
2000	571	31 781	32,62
1999	553	30 630	30
1998	530	29 673	29,8
1997	517	28 851	28,51
1996	485	27 357	26,53
1995	470	25 750	26,22
1994	450	25 700	28,31
1993	400	25 900	25,9
1992	430	21 300	26,6
1991	550	27 000

Sources: French Franchise Federation

 

3.1. Networks of signs: franchising, important form of organization of retail[4]

 

The retailing is organized as a network for group purchases, to advertise nationally, sharing fixed costs or development costs, to enjoy a brand recognized by consumers and all the benefits of a larger size. A network is usually identified by a commercial sign shared by all its members, developing own business strategies, these networks realize the majority of retail sales, leaving little room for shops completely independent.

These networks are characterized by hierarchical relationships or contracts between a unit called head end, and its members: for example, between a head office and its institutions branches, between a franchisor and its franchisees, between a cooperative of independent retailers and members. These relationships are often limited to contracts such as concession, commission-affiliation or trademark license.

Three forms of organization predominate in retail: integrated networks, where the head of the network has its own outlets, groups of independent and franchise networks.

When the outlets directly owned by the company head end or any of its subsidiaries, we speak stores chain stores, where integrated these stores are legally or financially dependent on the head end. This form of organization is comprised of 31% of the retail network and totals 52% of total sales networks.

Nearly 24% of outlets owned by independent companies that adhere to a group, these companies include most often in the form of cooperatives, around a central purchasing to take advantage of purchasing terms and services. They account for 33% of sales networks.

Finally, 16% of the outlets are franchised; they belong to independent firms that have particular expertise and teaching of the franchisor. They represent 9% of total turnover.

These three types of organization are covering most of the network activity (94% of total turnover). The remainder is contractual forms of low weight in terms of sales, but more importantly in number of stores: about 30% of stores are either licensed brand or dealer or affiliated with a central purchasing.

 

Table 4:

 

Link between the point of sale and head end	Nombre de points de vente	Turnover (EUR million)
Possessed in his own (integrated)	21 695	123 958
Group	16 625	78 737
Franchising	11 623	21 897
Trademark license	9 540	5 245
Concession	5 569	3 713
Affiliated to a central purchasing	3 515	1 583
Other forms of organization	1 562	2 082
Lease management	270	169
Commission-affiliation	228	1 306
Total	70 627	238 690

Source: INSEE, “retail network” 2006

 

3.2. Sectors of activity

 

Restoration services through real estate franchise covers a broad spectrum of industries. In 2010 the distribution networks in each sector has stabilized. The key sectors in 2010 are: food, personal equipment and hairdressing / beauty. The personal services confirm their good position, representing 11% of the total number of franchises.

Some business sectors are oriented in a preferred type of network and integrated networks dominate in terms of turnover in the development of housing, household equipment and personal equipment off clothing and footwear (leather goods, perfumes …) networks mainly included in other non-food shops. The group is dominant in large food stores, culture, recreation and sports, while strongly mixed networks are the first in franchise sales in other food shops. Finally, trade and automotive repair work with networks of brand licensing. In contrast, strongly mixed networks franchisees are present in all sectors.

This difference largely explains the implementation disparities in average revenue. For example, 78% of sales groups and 74% of revenues from franchised weakly mixed networks of networks hypermarkets. Similarly, networks concession focused on two areas: culture-leisure-sports (41% of turnover) and household equipment (33% of turnover). Networks of brand licensing realize the two-thirds of their turnover in the trade and repair of motor vehicles and household goods.

 

Table 5:

 

Sector of activities	No. of networks 2011	No. Of franchisees 2011	No. of networks 2010	No. Of franchisees 2010
Personal equipment	342	6 999	329	6 354
Features of the house	127	3 213	126	3 407
Alimentary	133	11 171	128	10 792
Various trade	153	7 505	156	7 397
Auto services	61	7 313	52	6 133
Building	39	1 396	35	1 173
Cleaning	18	403	21	487
Hairdressing Beauty	143	6 228	135	5 756
Business Services	82	1 749	71	1 415
Training	19	291	17	302
Hôtels	23	1 713	22	1 704
Fast-food	123	3 740	103	3 263
Theme restaurants	79	1 101	67	993
Immovable	56	4 010	50	4 081
Traveling	7	735	5	780
Total	1 405	57 567	1 317	54 037

Sources: Franchise Expo Paris and the French Franchise Federation

 

3.3. The franchise: rising in Europe

 

According to Article I of the European Code of Deontology, “Franchising is a system of marketing goods and / or services and / or technologies, based on the close and ongoing collaboration between legally and financially independent franchisor and its franchisees in which the franchisor grants the franchisee’s law and imposes an obligation to carry on business in accordance with the concept of the franchisor. The right so granted shall authorize and require the franchisee, in exchange for a financial contribution directly or indirectly, to use the brand and / or brand of products and / or services, know-how and other intellectual property rights supported by the continuous provision of commercial support and / or technical, within and for the duration of a contract Franchise written, between the parties to this effect”.

Franchising in Europe is on track to continue its positive growth. The 27 countries that comprise the European Union represent a market of over 490 million consumers. Although most franchises operating in Europe are of European origin, many U.S. companies are thinking about developing and implementing franchises in the EU in the near future. Consider the following statistics[5]:

• The franchise world No. 1 McDonald’s received more income in the EU and the United States last year and expects this trend to continue. The fast food chain expects sales up 9% in 2008 against the EU less than 4% for the United States. The network generates 55% of its revenue outside the United States.
• The franchise industry thriving in the UK, the number of units of franchises has increased by 44% over the past 10 years. The franchise represents a turnover of 10.8 billion pounds (12.1 billion Euros) a year.
• 48% of U.S. franchisors established in the EU ranked the UK as the best place to develop, Germany and France also have excellent growth prospects.

Among franchised developed and implemented in the EU, about 80% are from European Union countries.

• In 1972, a Code of Ethics of the European Franchising was created by the European Franchise Federation to serve as a guide for responsible practices in the business format franchises. This code, has since, been updated to reflect current business practices.

The European Federation comprises 17 member associations representing franchisors in different European countries. Franchisors belonging to these associations and affiliated to the ETF and adhere to the Code. Members of associations EFF gain credibility as a franchise with ethical practices of the system.

• The European Franchise Federation estimates that there are 8500 differents franchised established in 2500 by the EU against U.S. banners.

Nearly a third of U.S. franchisors consider that the future potential for expansion in the EU will be exceptional. According to research by International Franchise Center William Rosenberg at the University of New Hampshire, 66% of U.S. franchisors that are not located in Europe are developing in the EU.

• The Western Europe is ahead of the EU concerning sales and exceeds North America. Commercial revenues in the EU exceeded a trillion dollars (750 billion Euros) over the past 10 years.

 

4. The different types of franchises

 

Duty can differentiate between three types of contract forms[6]:

• Distributorship,
• Franchise service,
• Franchise production.

In the case of a distribution franchise, franchisees are limited to the marketing of products purchased from the franchisor under the banner of it. The franchisor may act in different ways here: either it is itself its own merchandise available to the franchisee, or it selects merchandise and passes control to the manufacturer. We can find the franchise distribution especially in the retail sector for the marketing of very different products such as furniture, cosmetics, sporting goods, pastry.

Under the Franchise service, the franchisee uses the franchisor’s know-how to offer under the brand name or under the franchisor’s trademark service benefits corresponding to the instructions of the latter. The brand represents the knowledge of the system and the particularity of the method used. Franchise system is not only a great success in traditional service providers such as hotels, food or car rentals, but it also grows more and more in newer areas.

In the context of a production Franchise, franchisees acquire the right to manufacture goods according to the instructions of the franchisor. And beverage manufacturers make available to their franchisees as appropriate raw material and know-how for bottling. In the case of an excess of production, the franchisee gets most of the time the right to sell the goods manufactured by him under the name or under the name of the franchisor’s trademark. This is a mixed form between a Franchise of production and distribution.

In practice, these different types often occur in a mixed form in which these types meet or overlap:

• Franchise corner: with a partial exemption that allows to sell a part of the franchisor’s goods store. A closely related concept of shop in shop but which is reflected in a different contract is not limited to the supply but also the communication point of sale, merchandising specific;
• Master Franchise: contract established between a franchisor and another cntractor, which allows it to operate a concept by becoming himself franchisor. The master franchise allows establishing a relationship between the franchisor and through franchisees, while distributing the power of the franchisor. The master franchise was born in the United States to solve problems of distance and dispersion franchisees. Since then she has continued to develop, especially for the installation of concepts abroad. Americans ahead of the Europeans on this type of development does not exclude, however, that there is dysfunction between the franchisor head end and the intermediate divergent policies, royalties, depending on the course, adapting concepts to selected countries;
• Mixed franchise: in general, the network head has only a few pilot units that correspond to the embryonic structure implementation in its infancy. It happens, however, that during the development of the network, the franchisor continues to invest and retains many of its own outlets;
• Multi-franchise: success in franchising may enable the franchisee to acquire other outlets of the same brand. The good clients allow a qualitative development of the network. Anyway, these big franchises can put pressure on the franchisor (price negotiation, threats start to the competition …);
• “Pluri-franchise”: This is for a franchisee to be “multi-signed”, which means having several outlets different brands. The dangers of this type of franchises are signs that the holder of a sector can put pressure on each of its franchise, or worse could create a monopoly in one place. For this example, one could imagine a large franchisee holds in its portfolio various competing brands of clothing, targeting each potential client on a different area. This powerful abstract is obviously a dominant position on the relevant territory;
• Franchise association: this is the entrance to the franchisor in the capital of the franchisee or vice versa. As the banker may show cautious for a loan, as the Inter-free confidence can be the engine of projects. The exclusivity agreement, which binds the actors, provides an additional guarantee for the proper deontology of investment phases:
• When a franchisor grants to the franchisee a loan, it may impose a non-compete or quantity forcing.
• Conversely when a franchisee loan to its franchisor, it may request a territorial area or any greater advantage allowing him to obtain, ultimately, a better sales.
• It can be a real springboard for small capital providers.
• This may allow the group to grow much faster than its equity.
• The relationship between the protagonists strengthens confidence sits but the pressure is higher.

To judge a franchise agreement, it must first ensure whether a franchise is good. The delimitation of the franchise compared to other forms of distribution is important for practical legal partners, since certain legal standards were valid so far as part of the Franchise. With the introduction of the new block exemption regulation in the European Union, the distinction between the franchise and other forms of business cooperation should tend to disappear more and more. Many networks called franchise actually use other forms of distribution. These other forms of commercial cooperation include the following forms:

• Trademark license:

An essential, but not sufficient, the franchise agreement, it is for the trade mark proprietor to grant a third party the right to exploit in whole or in part, that means  to market under that mark the products and services of their choice, or conventionally determined.

• Distributorship:

It is for a supplier to book the sale of its products to a dealer, so that it ensures, under the supervision of the distribution in a given territory. Territorial exclusivity is the only feature of this contract. It does not necessarily brand licensing, or technical assistance or sales by the licensor.

• Commission agent or affiliate:

The principal, the owner of the goods sold by the commission, of which he is the principal, may impose resale prices, prohibited practice within a franchise network.

• Partnership: no legal status.

 

• Technical characteristics

 

1. Foundations of success of fast food

 

The idea here is to make precise justifications regarding the blatant success of the fast food industry on the business market, with the franchise system.

 

1.1. Increases of supply and demand

 

That a company or an industry is efficient returns to see its development and awareness at all levels. Regarding the fast food industry, success is undeniable. It follows the evolution of eating habits and the decrease in purchasing power in respect of consumers and professionals free entry in the market.

 

1.1.1. Changes in eating habits

 

As the world progresses, habits and trends change. Globalization is felt at all stages of life. She has made a substantial change concerning lifestyle and thought, which highlights the fact that the influence of globalization is undeniable. It affects all ages but is predominant among youth and the general population. Each new trend causes social conversions. Globalization joints business with pleasure. Indeed, conveying new provisions, it also imposes a mutation affecting the way of life. It is especially true that the appearance of recent technologies has had the effect of significantly increasing job offers, but the same technology has ensured that all regions predisposing to business quickly settled to become very active. This has resulted in a highly mobile population. Now, there is a large distance between the workplace and the household: people are forced to move far enough from home to work, not favouring the maintenance of contact between his two worlds, and are found in the obligation to spend all day around the workplace. Consequences lunch does take more family and must be done elsewhere and especially in a fairly quick.

Indeed, the pace of life today is quite hectic for submitting the problem of lack of time. Said lunch is now shortened. And the distance between place of work to home workers is the main cause. Well actually, it does not allow employees to work quickly, the legal work to be respected, then we opt for limiting the lunch break.

The XERFI, in its investigation, discussed the factors of changing food consumption of French, including the reduction of the lunch break and time spent on meals in general figure. It stated in its report, the causes and solutions of this research saves time during the lunch break. These include the changing patterns of work and life to help reduce the time spent at lunch, the “use of the lunch break for other activities (shopping, sports, etc.), option of sandwiches, salads and box as a meal solution adapted to these constraints.  The so-called sandwiches, salads and box are preferred because being products quick and easy to eat. This contributes to increase the number of meals eaten outside resulting in the rise of nomadism and mobility, the growing number of assets lunch away from home, the multiplication of proposals for food service (network growth, the emergence of new concepts, etc.)[7].

In 2006, a French household spends on average 1,320 Euros a year, catering, against 5910 Euros annual food spending in general. This amount corresponds to 22.3% of their food budget[8] while in 2009 the rate was 1.8% compared to the year before, that is to say in 2008[9]. In 2009, the French spent a total of 33.5 billion Euros in restaurants. According to the NPD Group evaluation, this decrease comes from the pricing or the invention of attractive menus on the part of industry professionals. On the other hand, it is mainly due to portfolio management for consumers. In addition, in 2010, nearly three quarters of the visits are now in fast food. And sales, fast food, sandwich, cafeterias and supermarkets arrogate almost half the market.

By cons, in 2011, the attendance rate in the foodservice sector has increased by 0.6%[10]. The slight increase is mainly caused by the prosperity and decline of some other categories of restaurants. The fast food industry has shown 67% of visits in the first quarter of 2011, while that of the traditional restoration has not been 33%.

Table 1:

 

Attendance between 2009 to 2011
Change from previous year in%
Year	Variation	Comments
2008	base	Reference year as that year of crisis
2009	-1,2	Attendance in the restaurant was down 1.2% compared to 2008
2010	-0,5	Attendance in the restoration declined by 0.5% compared to 2009
2011	0,6	Attendance in the restaurant grew 0.6% compared to 2009

Source: Assembly Statistics Institute NPD market research group

 

Table 2:

 

VISIT restoration (rate in% in 2011)
by sector		by age group compared to 2010
Fast-food	67	adults	-5
Traditional food	33	youngs	6
Commercial catering	100	families	10

Source: Assembly Statistics Institute NPD market research group

The causes mentioned above were, therefore, transformed lifestyle of the population and contributed to the success of fast food restaurant from the seat. Food trends have changed. It is no longer the question lingering meal. Race against the clock and changing priorities given above require haste in making lunch. These situations have led to a change in eating habits of the population. Fast food is so biased by these very facts, explaining the considerable difference between the 34% attendance rates in both sectors of restaurants reported in the table above.

In addition, food in general, attracts, or more precisely, is required for the majority of the young and dynamic population, that is to say, that which is in the process of education or work, which gave an increase of 6% ​​in the rate of attendance in this age group compared to the year 2010. However, it has been noted that in 2011, the French mostly frequented the restaurant industry family. Indeed, compared to the year 2010, the group travel to restaurants increased to 10%.

Thus, citizens have changed their needs and therefore require the development of fast food sector compatible with the transformation of their lives, which increases the demand on the market and promotes, consequently, the success of fast food.

 

1.1.2. Decrease in purchasing power

 

The trend oriented fast food is also dictated by the decrease in purchasing power of the population. With regard to France and many countries in the rest of the world, 2008 was a year of crisis. The world has faced considerable financial difficulty. Citizens have been deeply affected by it. The unemployment rate has increased significantly everywhere and in all sectors. This caused a significant reduction in the purchasing power of consumers: households have therefore seen their budgets shrink and expenses in household consumption have been redecorated down to deal with the crisis experienced by the entire country.

According to an analysis by the National Institute of Statistics and Economic Studies (INSEE)[11], household consumption fell to 0.3% in 2008. The economic crisis has reduced the purchasing power of French with a difference of 2.8% in the space of a year. While the year 2007 was the most significant with purchasing power reaching 3.1%.

The effects of the crisis are still being felt today, even at low levels. Consumers manage and limit their spending so that the income is enough to survive. It is primarily intended for every French household spending restraint in food. The goal of everyone is to eat well, fairly and inexpensively. In 2010, the said household consumption was enhanced by 1.3% compared to 2009.

“For four years, the purchasing power continues to decline, except in 2009 (0.1%), which was, however, the year of the financial crisis”, said the INC in August 2011[12]. Indeed, the purchasing power per household ranged from 1.9% in 2007 to -0.5% in 2011. This means that in 2011 the purchasing power per household declined further by 0.5% compared to 2010. In addition, the purchasing power per person has not changed during the year 2011. This decrease is explained by the “price increases in the energy sector (…). Not surprisingly, soaring fuel prices and the rising cost of gas and electricity have rolled the purchasing power of households between June 2010 and June 2011”, says the INC.

 

 

 

 

 

Figure 1:

 

Source: Assembly of statistics INSEE (National Accounts – Base 2005)

 

 

Setbacks constant purchasing power is paradoxically one of the key factors in the success of fast food, households with the objective of restricting consumption in general and, in particular, spending on food. The characteristics of the fast food sector, which we will discuss later exactly, are so adapted to the financial difficulty of each population, each household. This increases the demand on the market.

 

1.1.3. Free access to market professionals

 

This time, it comes to analyze the success of fast food through increased supply on the market. This means that professionals are increasingly interested in this sector. Many of them invest or plan to invest in this area. We mean by professional traders who know and who engage in the business of restoration. It is a term opposite to the consumer, who is the customer of them. The so-called professionals are normally equipped with quality to produce or sell. So, to be clear, in our project, professionals are those who run a fast food restaurant.

The profit outlook in the medium term and profitability relatively comfortable (at least for networks) offered to professionals are the main reasons for this interest in fast food. Holds a sign (in Quick) testifies to the truth of these facts: “We get 60-70 cases on average per month, (…) candidates are informed professionals in their research, and they compared the franchises”. Meanwhile “La Boucherie” receives between 30 and 40 inquiries per month. Subway has recorded over 400 contacts this year’s Salon Franchise in Paris[13].

In 2006, the area of ​​commercial catering establishments already included 153,708. Among them, there were 28,133 players of fast food operators against 84 088 traditional restaurants.

The remains consist of areas of pubs and cafes tobacco.

Fast food posted 23,402 sales in this period. Fast food has 20% of companies and 20% of the turnover of the restaurant sector. Overall, the commercial catering sector realized 36 billion in sales and employed 563,000 people[14].

 

 

Figure 2 :

 

Source: INSEE, annual survey of business services in 2006

 

The illustrations and figures show the performance of multiplication and commercial catering, including the type fast. Currently, operators are increasingly numerous, either individually or through franchise. The new offerings continue to emerge while knowing that the market is still very developed.

The rise of fast food is also based on weak restrictions on the farm: there is little barrier. Access to the profession is so free and boundless as fast food is in a phase called “hyper-segmentation phase supply”. This means that the proposed fast food market is growing significantly. This prevented from accurately define the exact number of fast food today, ultimately, the population of institutions surveyed has nearly doubled between 1999 and 2009, which mechanically intensified competition within sector, which is why a number of 48 696 businesses in this sector in 2010 has been reached. Today, candidates for the operation of a fast food benefit of the Internet to provide a franchise offering. That is to say that the to get there are more facilities and simple[15].

 

1.2. Fast food chain

 

Performance of fast food is also based on the strong growth of food chains on the market.

 

1.2.1. The concept of fast food

 

The restaurant industry has seen a great evolution in terms of concept and organization. It is then necessary to determine the transformation.

The restaurant industry has adapted to the award of traditional to modern modes of supply. Indeed, habits have changed and professionals in this sector have been forced to alter their marketing strategy. So that traditional restaurants have seen aside from the aforementioned mutation and gave way to the kind of fast food restaurants. These two categories of food have in common the provision of food and the commercial nature of their activities. They are determined by a monetary goal.

Traditional restaurant should be remembered, is that of offering a sitting service to customers. It is still called the seated dining. Indeed, are covered by these category restoration activities for consumers table, that is to say those that allow customers to relax and take their time while eating. The traditional food is designed as a service to the population relaxation. The traditional food is then the establishment of restoration activity with table service or self-service (cafeteria-style) restaurant rail or sea themed restaurant, coffee shop involving the restoration and sales beverages.

In the style restaurants sitting, meals are served in a setting favouring relaxation of consumers, the aim being to provide the taste to stay and spend as much as possible in the restaurant. Various appointments and meetings with family or friends often occur in traditional restaurants. This means that they are made to pass the time. The professional benefit is that the customer tends to double commands as user-friendly as discussions. That explains the creation of menus meals accompanied by different owners.

Fast food, by cons, is designed to give prompt service to customers. It is made to help consumers get nutrition satiating but fast. It aims to satisfy customers hurry. Its aim is to help them in the race against the clock to which they are subjected. It is said to offer customers fast food facts and simple. So in a nutshell, fast food is the “establishment practicing counter service food, drinks and selling ice to eat in or take away, tea”.

Installing and setting do not resemble those of traditional restaurants. Cutlery is not standing on tables. Employs fast food packaging trays, plastic cutlery that can be washed away by clients brief, disposable utensils. Consumers rarely eat in fast food restaurants. And they consume on site, it will be a very short period of time. This is why fast food restaurant has been characterized « nomadic. » Besides the services and consumption take place above, it also offers the services called « drive-in » services and home delivery.

Despite its small numbers, compared to traditional restaurants, the fast food industry is more dynamic in terms of attendance. This helps to show important business figures in this field. There were 22,353 fast food restaurants in 2009. This sector is booming though still behind traditional food, this is the number. So there are many operators who engage in fast food. They are in the business, most of the time, using one or more signs of fast food, that is to say by wearing with permission we shall see, the existing kitchen brands and notorious, hence the choice of the industry for memory.

 

Figure 3 :

 

Source: data gathering above

 

In France, the fast food industry is immensely magnitude due to the mobility of persons, previously developed. It is present in all French regions.

In the space of 10 years (2000 to 2010) in the same country, the fast food industry beats record against other types of restaurants. Indeed, the fast food posted a growth rate of 74% during this time interval. All French departments have contributed directly or indirectly to the considerable increase of fast food.

1.2.2. Operation in signs

 

The brand is the hallmark of a company on the market and can also be the brand name used to identify a business. Most often, it is represented by a symbol. It contributes to the implementation of awareness activities of the said company. It is the business tool invented by the producers to integrate and distribute their products on the market. A sign is that which is known prestigious market, that is to say that enjoys commercial success or simply known by consumers. It is in fact known that this makes the success of a given company and that is what interested professionals. The sign is operating very well sought by traders, including fast food operators.

In terms of independent business, the sign designates a point of sale or the physical support for this identification. Organized in trade, the sign is common to a set of outlets. The sign may be different from the name and the brand name[16].

The entire operation of a sign by individual traders distributors form which is called the exploitation chain. One form of exploitation is the franchise chain.

 

1.3. Value creation

 

Value creation has a practical impact on the performance of fast food, which is designed to retain customers. And we said, the essential element of a company is this customer. It is for traders to make sense of its products to attract consumers. These form the potential customers of the company. It would then promote to them. This means that the value creation tends to allow customers the value of a product or a brand specific. The value is the amount that customers are willing to pay for the product that is offered. To do this, the merchant must perform certain operations. It is the “value-generating activities”[17]. These activities are addressing the customer approach. The objective is to convey to customers the cost of products or the brand. The value generating activities include:

– On the one hand, the infrastructure of the company, Human Resource Management, technology development and procurement. These business strategies are what Porter calls support activities.

– On the other hand, the internal and external logistics, production, marketing and sales and finally services. This is called the principal activities.

Together, these activities form the value chain. Companies strive to treat the customer as a priority the satisfaction of the latter is important because it is the source of value and the reason for the existence of a business. The customer is always there to say, an essential and indispensable for the survival of the latter.

Any company could adopt these managerial systems. Moreover, most is necessary, even indispensable for business. That is to say that it is usual in commercial practice. The technique is to master and practice them in a better way compared to its competitors. This is where customers value a particular sector. The latter option is the difference they perceive between competitors. Their decision to focus on a particular brand is dictated by the comparison between them will necessarily existing products on the market. This decision brings customer value to products and, consequently, to the sign. In other words, the aforementioned activities generate a sum of money more or less according to company policies. This money comes from a satisfied consumer will become a loyal customer of the brand, hence, the notion of value creation. Quality of service coupled with products that would be an asset for a sign given favourable. It is therefore for professionals to seek ways of efficiency. They must establish an internal organization as well as external organization.

2. Means of exploitation: franchising[18]

 

Any relationship is based on an exchange of consent. The meeting determinations stakeholders constitute the contract. The latter can be of different nature. His qualification depends on the cause of the relationship established by the contractors. To be clear, the name or title held by the parties’ agreement from its object. It is the desire to establish a business relationship, which is to say at least one of the parties, an act of commerce. It is therefore here to discuss the basis for the creation of a business trade. The operation of fast food sign immediately evokes the concept of franchising.

Firstly, it should be noted that the franchise belongs to the class distribution of commercial operations. This means that the franchisee is a distributor. Indeed, the distribution is the set of operations allowing producers to market their products. It has evolved over time from the traditional practice of the trade by trade network. In the first case, this has interested vendors and small traders.

In the second case, by cons, there has been a predominance of supermarkets. The latter is an important concept in networking. There are two types of networks in the distribution, sales networks seeking distribution. Some are responsible to require purchase wishes in the name and on behalf of manufacturers. Others, meanwhile, deciding to purchase from the said manufacturer, engaged in the retail sale of products within a defined area on agreed terms. This sale is associated with certain restrictions imposed by producers. This is a real commercial transaction that involves buying to resell the vendor’s products. Distribution is therefore subject to commercial law.

Then, we must understand the subject through a precise definition of the concept of franchising.

The franchise or franchising is the agreement by which two persons, namely the franchisor and the franchisee agree to develop a commercial relationship. The franchisor is a professional job. It can be either a manufacturer or a designer. He holds a distinctive and expertise. It therefore has the competence required for the profession.

The franchisee may be a novice in the field. It may do not know much about the business or products of the franchisor. But it gives him the ability to become a trader in this field. The agreement tends to grant the franchisee the right to operate on the market brands or the franchisor. Note that even if the said franchise was not shopping, it becomes necessary after the conclusion of franchising. This means that the franchise agreement is a contract of commercial nature. It is an act of commerce. The said right of exploitation is always accompanied by a transfer of technical business and marketing assistance from the franchisor. In part against the franchisee owes an entrance fee and is required to comply with the standards required by the latter. But in any case, he practiced independently. Said the franchisee’s mission is to market the franchisor’s trade name by selling its products to the public.

Ultimately, franchise or franchising is that by which the franchisor holds a distinctive filed as a trademark or brand, concedes to use an independent trader with whom he assumes a function commercial advice and assistance, upon payment of a fee on turnover franchisee and its commitment to source all or in part by the franchisor or a specified party and meet a number of standards for both implantation and for the management of the sales outlet. So, unlike some commercial operations distribution, the franchisee is not required to purchase exclusively from the franchisor. It keeps some liberties with its provisions.

This means that when it comes to franchise agreement, there must be a company or brand. This is what characterizes franchising. The operation covers products of the brand. We just discussed this notion above.

This is a very liberal and flexible convention. Nations most preferred to give contractors a wide independence in determining their agreement. This is the case of France. There are not too many legal restrictions franchise apart from the provisions of the Doubin law and its implementing decree which tools work as well as the jurisprudence of the doctrine. However, the parties are subject to the general rules of contract, including the effectiveness of consent, civil and commercial capacity to conclude the legality of the object and the cause of the convention. In case of disagreement, the parties still have the option of referral to the judge. What matters is that franchise Doubin law, doctrine and jurisprudence are the only legal reference for practitioners.

In 2010, France had 1,477 franchised network is 58,351, representing 48 billion Euros of turnover[19]. However, the National Franchise gave statistic 55,870 franchisees in the same year. This figure is high by 4200 compared to 2009. Among franchisees, there were 8300 for restoration represents 123 retailers.

It is therefore to conduct a sale of a commercial product with a brand that already exists on the market. The consent of the franchisee is determined by the reputation of its brand. Here, it is about creating a business that is based on the concept of franchising. The reason is that the franchise already contains the essential element of which is a trade customer. This is explained by the fact that the reputation of the brand, the latter having already a customer before the new entrance to the franchisor. Indeed, the franchise agreement is not exclusive to a single trader. Anyone accepted by the producer can become a franchisee.

 

3. Perception of performance[20]

 

3.1. Political success of fast food

 

The objective of these policies is successfully attracting customers. It brings value to the retailer. Thus, it is advisable to know to attract and retain the. To do this, we should use some commercial operations such as: advertising, diversification of products, the expansion of sales channels and control and the action on the commercial tools.

 

3.1.1. Advertising: the primary attraction and stored

 

This is to promote marketed products. Traders do primarily through paper media or audio-visual. It speaks advertising campaigns conducted by the Communication Department of the company. Regarding the distribution, sometimes, often, it is the franchisor that takes care of the advertising business, benefiting distributors, including franchisees benefit 100%. Indeed, this method of communication is based on attracting customers. So that the customers surveyed by the owner of the sign, it also belongs to each franchisee in the jurisdiction where they are located geographically. This would greatly facilitate the marketing for franchisees. In terms of fast food, for example, it finds its success depends on the advertising effect produced by the owner of the sign. Note that advertising has a direct impact on consumers and should be made in both the first promotional products that over the life of the company. The goal is to save the brand and customer loyalty. There is currently developing advertising methods. Design evolves with time and technology.

 

3.1.2. Diversification of products: the provocation of loyalty or retention

 

Attract customers is one thing but to keep it is another. It is for this reason that fast food is trying to renew its products, to bring creativity in its range. To do this, managers teaches adapt their designs to the needs of consumers. They create new revenue over the social, medical, etc. It is the same for the recent appearance of dietary products and bios. This diversification of products contributes greatly to the success of fast food, and consequently, it serves to retain customers of the brand. The idea is to allow customers to find the same teaching in all varieties of kitchen products. This will avoid the many trips elsewhere, according to the desires and needs. But this technique also promotes the attraction of new customers. It is not in the interest of the sign be limited to existing customers. He would acquire a new one, and throughout its existence, otherwise it would stagnate and competition would be at ease.

To diversify products, it is necessary to use several brands. This means that operators, namely franchisees should adopt some types of cuisines. It is in this way that they could increase rapidly in the restaurant industry. Always remember the need to retain customers not to enjoy the competition. Moreover, the franchise agreement allows the non-exclusivity. This means that the franchisee may operate several brands at once. It can buy from different producers.

 

3.1.3. Expansion of sales channels and control: the attraction of convenience

 

Fast food has also known a great success due to the evaluation methods of sales and orders. The idea is to serve customers and assist them in managing their time; we talked about previously, the race against time imposed by the pace of life today. This policy of attracting customers and is greatly appreciated by consumers, hence its success. Fast food, then, offers to ease called consumers. This is, in particular, the possibility of ordering take-out or delivery at home. There are also areas that create automatic delivery station or drive-in. In addition, there is the multiplication of online ordering.

All these modes of selling and ordering are provided to the customer loyalty but also to provide some convenience. Indeed, even remotely, the customer is linked to the shopping through these new structures. This allows, in turn, said the trader to keep its customers even if social needs have changed. This technique overcomes the mobility of people incentive to a potential loss of customers. It thus gives consumers every possible comfort; the goal of any trader is to mutate ordinary consumers in the category of customers. Any idea of ​​customer attraction is useful, it would be ideal to clearly identify the new needs of the population and adapt policy success box them.

 

3.1.4. Action on commercial tools: visual attraction

 

This policy success of the fast food is very important at the moment. Indeed, globalization has completely changed the tastes and trends of the population. Consumers are the main victims. They are naturally attracted decor and arrangement modern and trendy. The goodwill who can play on eye contact consumers arrive quickly to raise their rates because the customer visual attraction opens in value fast food, relying on the previously pleasure. The idea is to attract customers to enter in the business before seduced by the service and the food. These are all value-generating activities. Fast food use facilities and furniture design to win customers, which justifies its real success compared to traditional catering.

 

 

3.2. Performance indicators

 

The question here is how to evaluate the performance of a business, including fast food. This section lets us know why it says that the sector is performing at the moment. Doctrine[21] raises three performance criteria namely: economic performance, social and organizational. It is therefore to raise the said criteria and verify their existence in fast food.

 

3.2.1. Economic performance

 

Fast food is a huge success because it operates a profitable market. Indeed, due to the high attendance rate fast food, this sector displays a considerable economic benefit, which, as seen above, favoured multiplication. The number of customers in the fast food significantly increases sales, and researchers agree unanimously that industry is economically efficient when winning, that is to say, it recorded a profit.

However, it is not only the rate of customers who promotes the economic performance of fast food, turnover figures are also for something. Indeed, it should be noted that the increase in turnover is not based solely on the customer, it is necessary also to consider the ability of fast food value these products. The increase in turnover, as mentioned previously, is undoubtedly a success factor of fast food.

 

3.2.2. Social Performance

 

Social performance is related to the result in relation to trade customers. It is, in this case, satisfaction and loyalty of the latter.

ARCAND[22] also talk about employee satisfaction and loyalty. Like any business, fast food has employees to perform the service.

Even the restoration works in a food chain, that is to say, a sign that operates in need. Moreover, the franchisee is completely independent on this point, which is to say in terms of personnel management. A mission is part of the value generating activities for the sector. Indeed, good human resource management contributes to the success of fast food.

When the staffs are satisfied, he can make big achievements in favour of fast food. It is therefore important to ensure that the working conditions of employees.

 

3.2.3. Organizational performance

 

Organizational performance includes, by the researchers identified above, productivity, quality, and innovation of the industry.

In the case of fast food, productivity is certain, it is all regarding the attendance of fast food and turnover recounted above. The rate of productivity and fast food is very high and continues to grow.

With regard to innovation, the fast food industry has focused on attracting customers, as seen above. To do this, it has continued to innovate strategies to approach customers said: it is the success of policies described above. She is able to bring this innovation in within industry.

 

 

 

SECOND PART: FRANCHISE AND LEGAL SYSTEM

 

• The legal system

 

Franchising is a business development based on a concept eminently legal organization of interrelationships between several independent companies.

 

1. The legal environment[23]

 

With the exception of countries such as China or Italy, no specific law on franchising comes impose any obligation on the franchisor – franchisee. France, rather pioneer franchise, is one of those countries that chose to let the market and jurisprudence. Two valuable documents are at the heart of actors’ behaviour and decisions of courts:

• Doubin law with its pre-contractual disclosure document (DIP),
• The Code of Ethics of the European Franchising: which is a whole other range, organized into 5 main sections:
• Definition of the franchise: the deductible is the meeting of two legally and financially independent, during which, one of them, the franchisor grants the right and imposes the obligation to another franchisee, to carry on business in accordance with the concept. This operation is done through the transfer of know-how that is secret, substantial and identified.
• The guiding principles: these principles require the franchisor to have exploited his concept for a sufficiently long time, to be the copyright holder signs of rallying the customer and provide the franchisees with training and support throughout the duration of the contract. About the franchisee, the guidelines required to devote his best efforts to the development of the network, to communicate to the franchisor and its figures not to disclose know-how to third parties during and after the contract. Both should ensure resolve their grievances with loyalty and goodwill.
• Recruitment and advertising: the recruitment advertising must be sincere. So that the franchisee can engage knowingly, the franchisor must give sufficient time before signing the contract, and complete information on the terms of the written contract and a copy of the Code of Deontology.
• The selection of franchisees: the franchisor must carefully select its future franchisees.
• The contract: the contract must be law-abiding and local community as well as the Code of Deontology. It must be balanced and accurately describe the obligations of the parties. The drafters of the Code of Ethics had the foresight to build a specific framework, described in terms that allow the parties to express all their peculiarities. This lack of specific legal framework gives full weight to the franchise agreement and forced the parties to define themselves exactly how they intend to organize their relationship. This is one of the reasons why the franchise agreement is an important document. This is also the reason why this is not just a passing legally binding, it is also, and especially, a catalyst for in-depth reflection on the content of the relationship and the nature of the mutual obligations. This is not the only advantage of the franchise: an economically very important, in which the parties are largely their own law in respect of regulations obvious general order, probably also explains the tremendous success of the franchise over the past 40 years.

Franchisor and franchisees are bound by mutual contractual obligations although the content is free, however, meet different legal regimes, including the law of contracts and obligations (Civil Code and the Commercial Code), the Unfair Competition (National and European), the law of intellectual property (trademarks, patents and copyrights). Legislative interventions have also brought in a particular setting franchise agreement, particularly at European level (Block Exemption Regulation) and the terms of the obligation to inform pre erected by the Doubin law.

An inappropriate essay of franchise agreement has a particularly unpleasant and compromising the development and sustainability of the system: invalidity of the contract, requalification employment contract or other formulas that result in the application of different contractual arrangements set of franchisor liability coverage of liabilities of failed franchisees, sanctions under anti-competitive clauses.

The contract cannot be established on the basis of a copy / paste, which is the prerogative of many writers who are not lawyers or practitioners Franchise Law, but mere “consultants” who do not defend their clients in court on the day J.

 

1.1. Texts framing the franchise

 

1.1.1. The franchise contract[24]

 

The franchise agreement is a contract by which a franchisor transfers on the one hand, an independent third party, the franchisee, its know-how to load it to make consistent use, other, offers signs of rallying the franchisor (including brand or the brand), and agrees in return for the rights to use, a technical and commercial assistance throughout the duration of the contract.

 

1.1.1.1. Legal framework of the franchise agreement

 

There is not, strictly speaking, franchise law. The modern distribution system obeys naturally contract law, commercial law, the law of competition, distribution law, trademark law, labor law, criminal law, etc.

Various legislative interventions have provided a legal framework for the franchise.

Firstly, concerning legislative interventions specific franchise, franchise agreements have been legislative action derived by the adoption on 30 November 1988 an exemption regulation (4087/88/CE) by the European Commission. The adoption of the European secondary legislation followed the judgment of the Court of Justice of the European Communities of 28 January 1986 Pronuptia said. Stop founder whose benefit the ECJ has considered the compatibility of the franchise agreement with Article 81 of the Treaty of Rome.

Similarly, during the adoption of the new Regulation Rome, it was adopted a default rule of conflict of laws in the absence of choice of law applicable to the contract by the parties in Article 4 specific contract franchise. In the absence of choice, the contract will be governed by the laws of the country of residence of the franchisee.

Second and legislative interventions for non-specific to the franchise, to meet some abuses reported during the years 1970 to 1980, the law was adopted Doubin.

It does not specifically franchise, but conditions for its application are large numbers and distribution networks or services are subject thereto.

 

 

 

1.1.1.2. Plan a franchise agreement

 

A franchise agreement must be structured, easy to read and is built on a clear plan. An example is given below:

• the preamble
• the object of the contract
• know-how related to the concept
• the contract
• financial conditions
• the general rules
• the contract duration and termination of the contract
• various provisions.

 

1.1.1.3. The clause

 

As seen before, franchising is a system of marketing goods and / or services and / or technologies, based on a close and ongoing collaboration between legally and financially separate and independent, the franchisor and its franchisees in which the franchisor grants its franchisees the right, and imposes the obligation to operate a business in accordance with the concept of the franchisor. The right so granted shall authorize and require the franchisee, in exchange for a financial contribution directly or indirectly, to use the brand and / or brand of products and / or services, and other intellectual property rights, supported by the continuous provision of commercial support and / or technical, within and for the duration of a franchise agreement in writing between the parties to this effect. This system is, of course, governed by clauses.

 

• The non-competition

 

The non-membership or non-competition can be regarded as inherent in the franchise, to the extent that they help protect know-how transferred, which should benefit the members of the network, and give the franchisor the time to reinstall a franchisee in the area of ​​exclusivity. These clauses must nevertheless remain proportionate to the objective[25], and assume the existence of a sufficient know-how consisting[26]. In addition, non-competition clauses must satisfy two conditions: they must be necessary stipulation to preserve the interests of a contractor, and they must not harm the general interest, particularly with regard to the right concurrence[27].

The Versailles Court of Appeal upheld the validity of the non-compete clause during the course of the franchise agreement or its termination, this extension is justified by the protection of the network in terms of intellectual property of the franchisor or common identity and reputation of network4. Thus, only the clause prohibiting the franchisee from competing products has been recognized valable[28] franchisor. However, the Supreme Court concluded that the nullity of the clause which prohibits the exercise of the franchise-like activity after the end of the contract, the clause giving an unfair advantage to the franchisor that is not related to the protection the goodwill associated with its services or the protection of its sign.

However, the Supreme Court has recognized the validity of a non-competition clause in the law of the EU[29], which imposed on the franchisee not to use for one year from the termination of a brand renowned national or regional, and not to offer related goods within five kilometers[30]. Trial judges have exercised control of proportionality, and showed that this clause was necessary to protect the intellectual property rights of the franchisor or to maintain the common identity and reputation of the network. Secondly, the Court of Appeal had found the limited nature of this clause, which applied only to prohibit the use of a sign of regional or national reputation, and not pursuing a similar business in another sign.

 

• The exclusive supply clause

 

The clause requires the franchisee to the franchisor to supply only products bearing its trademark or product authorized by him may, under certain conditions, be regarded as not constituting a restriction of competition. Thus, the Competition Council has recognized the validity of the exclusive supply clause intended to preserve the image of a network of franchise[31]. Indeed, the resolution of 30 November 1998 provides for the maintenance of the common identity or the reputation of the franchised network, the obligations imposed on the franchisee to sell or use in the context of services, products manufactured by the franchisor or by a third party designated by him, when it is not practicable due to the nature of the products which are the subject of the franchise, to apply objective specifications[32].

Thus, it is the franchisee who invokes an exclusive supply clause to demonstrate concretely how this clause is essential to preserve the identity and reputation of the network franchise[33]. In addition, the franchisor must limit the list of products exclusive supply those necessary to maintain the identity of Network. The Competition Council has validated an exclusive supply clause with suppliers referenced by the franchisor on the grounds that this clause did not entail any restriction of the freedom of franchisees to provide products of equivalent quality, especially when the franchise could ask referencing other suppliers[34].

 

• Territorial exclusivity clause

 

The Supreme Court stated that no law or regulation imposes a territorial exclusivity in favor of the franchisee, even in the presence of an exclusive supply clause which is debtor[35]. Thus, the franchisee may require territorial exclusivity if the know-how provided no justification and the absence of territorial exclusivity is not a cause of nullity of contract franchise[36].

If the territorial exclusivity is not the essence of the franchise agreement, respect for the exclusive benefit of the franchisee, when specified, is an essential requirement of franchisor[37]. However, the Supreme Court ruled that the presence of territorial exclusivity, sales in the wild territory of the franchisor does not constitute breaches of this exclusiveness[38]. In the absence of stipulation sufficiently precise, the territorial exclusivity clause must be construed favorably to the debtor and the Court of Cassation ruled sale on the Internet in the scope of the exclusivity granted in a geographic area determined[39].

 

1.1.2. The “Doubin law” and the franchise contract

 

In France, the franchisor is required to provide its prospective franchisees the information they need to make their decision knowingly. It is the role of Article 330-3 of the Commercial Code, which relays and transparency requirements already included in the Code of Ethics.

The franchisee is an independent contractor and responsible. Yet should he have all the information enabling it to make its decision knowingly. The French Franchise Federation did not wait a law is necessary since its members respect the Code of Deontology, have always understood that a pre-fair information was rigorously before signing a contract.

While preserving the confidentiality of elements within the know-how, the franchisor must comply with Article L 330-3 of the Commercial Code (formerly Article first Doubin law of 31 December 1989) and its implementing decree (April 4, 1991). This stage, called pre, is to allow each party to confirm its decision to collaborate. As the franchisor must provide genuine information and complete as possible. By providing any useful information to guarantee or ensure free and informed consent of the franchisee.

The law requires that the franchisee be disclosed, twenty days before signing the contract or before the payment of any money, certain information and documents whose content is set by decree.

Note that if the franchisor must comply with this law, other trading systems are also subject to (concession, cooperative, etc.). Therefore what passed, under the contract, a sign, a mark in exchange for a commitment of exclusivity or quasi-exclusivity. Only fake franchisors will be embarrassed by this law.

According to the Doubin law[40], “Any person, who provides another person’s trade name, trademark or brand, by demanding a commitment of exclusivity or quasi-exclusivity to exercise its activity, is required prior to signing any contract concluded in the interest of both parties to provide the other party a document containing information sincerely, which allows him to engage knowingly. This document, whose content is set by decree, states in the seniority and experience of the company, the state and development prospects of the relevant market, the importance of network operators, duration, conditions for renewal, termination and assignment of the contract and the scope of exclusivity. Where the payment of a sum is required prior to signing the contract mentioned above, especially for the booking area, the benefits provided in return for the sum specified in writing, as well as the obligations of the parties in case of cancellation. The document referred to in the first paragraph and the draft contract are communicated at least twenty days before the signing of the contract or, if applicable, before the payment of the sum mentioned in the preceding paragraph”.

Else, the franchisor undertakes to:

• own a brand and rallying signs relating thereto (sign, graphic, elements of visual identification …),
• have developed the know-how of its concept, having tested in one or more pilot sites, and making sure he was duplicable. This expertise must be secret (because the franchisee will pay for the know), substantial (to actually do save time and money the franchisee) and identified,
• provide products, services and / or technologies,
• provide training and technical assistance and trade throughout the contract,
• promote its brand,
• ensure the development of the concept and the sustainability of its network.

In exchange, the franchisee must:

• undertake the necessary financial resources for the successful completion of the project,
• have an entrepreneurial spirit, both legally and financially responsible,
• collaborate loyally to the success of the network,
• adhere to the spirit of the franchise[41].

There is no specific right to the franchise. The document, that reference, is the European code of deontology of the franchise. This code is a piece of good behavior, introduced by the French Federation of Franchising in 1971 and adopted by 17 European countries. It defines what professionals consider normal and balanced, and is now a reference to the courts.

In practice, it’s about:

• providing information to enable the franchisee to determine knowingly.
• protect against franchisee its possible tendency to decide without all the elements and require networks to provide this information in a sincere way.

Doubin law applies to franchises like other networks. For simplicity, we say that it applies when it is an operating network with an exclusivity obligation for total or partial exercise of activity referred to in the contract. The law tends to consider more networks must comply.

This law requires firms that develop a network (franchise, concession, affiliate commission and other forms of partnership) to provide a paper pre-contractual information (DIP) containing information such that:

• The identity of the company (legal information, bank ownership of the mark …),
• The nature of its activities,
• The names of the directors and their professional as well as all information necessary to assess the experience gained by the operator or by the leaders,
• A presentation of the general condition and local market products or services and its development prospects,
• A list of franchisees activity as well as those who left the network last 12 months.
• After receiving the DIP by the candidate to the franchise, the law imposes a period of 20 days to comply before signing the final contract.

Once the 20 days followed, and before signing the franchise agreement, the franchisor may ask the applicant for the payment of a sum of money, often in the context of a reservation contract area. This should clarify the benefits and obligations of the parties.

Thus, the purpose of the law is the imposition of a pre-contractual information codified. Under the law, which conveys a right to use a distinctive sign (sign, mark, trade name) in return for exclusivity or quasi-exclusivity must provide 20 days before signing any contract in common interest of the parties or handing over money, pre-contractual information about the company (name, bank references, financial statements …) and its leaders, the distribution network (number of outlets, location, number of relationships that ended in the last twelve months …), the market (local and national), development forecasts and contract.

 

 

 

 

 

 

1.1.3. Legislation and contracts: pre-contractual information document (DIP)[42]

 

Under the principle of autonomy, the franchise agreement is negotiated between the parties, but the conditions before signing were regulated in order to protect the franchisee candidates, presumed to be in a position of inferiority franchisors.

The Doubin law which is based on the “Full disclosure law” U.S. has a information document and the proposed pre-franchise agreement must be communicated to the franchisee at least 20 days before the signing of the contract, in order to allow him to engage knowingly.

With reference to U.S. law, the debtor and the creditor of the obligation are sometimes called respectively the “disclosant” and “Disclose”.

The adoption of the Doubin law was determined by the finding of many abuses the system lent itself to the franchise: the payment of substantial royalties from franchisees was sometimes lacking in question because of the absence of support or lack of know-how of the franchisor, not to mention where it conceded a license on a brand that he had neither property nor enjoyment.

However, if the DIP is essential and useful further reading, nothing replaces a personal investigation of the franchisee on the sector concerned and with other franchisees investigation proves to be a real obligation on the franchisee.

 

• Scope of the obligation

 

The duty of disclosure is charged to any person who provides another person’s trade name, trademark or brand, by demanding an exclusivity commitment or quasi-exclusively for the exercise of his activity.

It must be completed prior to the signing of any contract in the common interest of both parties.

The franchise is not the only form of commercial cooperation in which one person provides another distinctive sign, and it requires commitment of exclusivity or quasi-exclusivity: trademark licenses attached to supply exclusive or quasi-exclusive, some cooperatives and many contracts grouped under the concept of associated trade are also covered by this provision.

 

• Conditions embodiment of the disclosure requirement

 

The document must be written, clear and complete. As for the draft contract also wrote he should not receive any significant changes by unilateral disclosant the day of the signing of the final contract.

It is recommended that the franchisor to establish each document in two copies and keep a dated and signed, in which each page duly initiated by the parties.

In addition, the information is often confidential, it is advisable to provide the franchisor a duty of confidentiality to load franchisee, ensuring the secrecy obligation as the information provided in the disclosure document that the pre-draft contract.

A final specific agreement is expected in the event of a payment of a sum of money by Disclose prior to signing the contract. Article 1 and 3 of the Act of 31 December 1989 stipulates that must be specified in writing “benefits provided in return for this sum (…) as well as the obligations of the parties in the event of cancellation”, including the conditions for restitution of money paid by the franchisee.

This agreement will most often take the form of a reservation contract. It will add to or forward the delivery of the disclosure document and proposed contract.

 

• Limits within which the information obligation must be performed

 

Is required, at least 20 days prior to the payment of a sum of money, the delivery of the disclosure document and proposed contract, the specific agreement that accompanies the payment of a sum of money can n intervene on the day of the payment.

The law does not mention the specific case of renewal of the franchise agreement. It must be concluded that at least 20 days before the date of the conclusion of a contract renewal franchise – most often coincide with the expiry date of the first contract – the franchisor shall provide the franchisee the new draft contract and the document may be updated pre-contractual information.

In contrast, in the case of a tacit contract, the delivery of these documents is not necessary because there is no signing new contract.

 

• Content of the obligation

 

The minimum content of the document has been set by a decree of April 4, 1991 (No. 91-337). The information provided must be truthful and allow the candidate to engage knowingly. It is recommended to write the report based on the principle of full disclosure (full disclosure). More than the minimum requirement set by the decree must always be guided by the imperative laid down by the law, which is to inform sincerely all subjects required a commitment knowingly.

Disclosures may be grouped under the following headings: identity of the franchisor’s business, history of the company, presentation of market information network, information on the contract itself, nature and amount of expenses and specific investments.

 

1.1.3.1. The Franchise Agreement and law

 

The franchise agreement must be in accordance with national law, Community law and the Code of Ethics[43].

The contract reflects the interests of members of the franchise network, protecting the rights of industrial or intellectual property of the franchisor and maintaining the common identity and reputation of the franchise network.

Any contract or contractual agreement relations manager franchisor / franchisee is written or translated by a sworn translator in the language of the country where the franchisee is established, copies of the signed contract will be immediately delivered to the franchisee.

The franchise agreement clearly defines the obligations and responsibilities of each party and any other material terms of the collaboration.

Minimum essential points of the contract are as follows:

• the rights of the franchisor,
• the rights of the franchisee,
• goods and / or services provided to the franchisee,
• the obligations of the franchisor,
• obligations of the franchisee,
• financial conditions for the franchisee,
• the duration of the contract, set to allow the franchisee amortization of investments specific to the franchise,
• renewal terms, if any, of the contract,
• the conditions will be able to make the sale or transfer of rights under the contract and the conditions of pre-emption of the franchisor,
• conditions of use by the franchisee signs of rallying customer owned franchisor teaches, trademark, service mark, logo, and all distinctive,
• the franchisor’s right to change his concept of franchising,
• the termination provisions of the contract,
• clauses providing for the recovery by the franchisor of any tangible or intangible element belonging in the event of termination of the contract before the deadline[44].

The practice of the courts is essential to the relevance of the Board. A flaw in the contract, an error of assessment of the legal standard can prevent or penalize the sustainable development of an enterprise (for example, and excluding cases of transgression of the legal norm legal include the fact not be able to protect his copyright or know-how, not having surrounded the negotiation and conclusion of a contract).

Advisor is mainstream risk management and thus anticipating events and probable consequences that may arise. The lawyer practicing litigation is at the forefront to find, evaluate and preserve the consequences of risks taken by litigants.

This is why we can properly advise that having a perfect knowledge and regular practice of litigation, including franchise agreements before the Commercial Courts and Courts of Appeal.

Regarding the assessment of legal risk pure, there may be substantial nuances and sometimes a serious gap between the act, the text, and practice, including the usual interpretation that judges do, knowing that the same law knows evolutionary interpretations at different times, and often in different jurisdictions. The litigation practice common defence of court cases and court have a continuous watch on the law applied, give no other experience such expertise to the lawyer in the field of counselling.

This observation is particularly true in the area that affects the commercial and economic law as it stands at the crossroads of several branches of law (competition, contract, company, IP, …) and combines swathes left (again) the freedom of operators (contract law) with legal and regulatory environment increasingly restrictive (competition law, consumer). In this complexity, it is the consultant and writer acts to recommend the best strategy in the multiplicities of ways that may seem possible, but not all of which are to advise or to reproduce the effect of imitation (each situation is particular)

On the field of organized networks like franchise, it is not appropriate to think of the only pure legal risk. In reality, the risk must be understood in its multifaceted dimensions: legal, certainly, but also financial, business, competitive, managerial etc. The legal, contract, must be considered in order to increase organizational performance and therefore the company’s business, while avoiding the risks and without violating the act.

The development of contracts and contract arrangements to organize the optimal distribution of goods and services cannot be done by copying pasting standard forms or borrowed indiscriminately third market operator. The development of a virtuous enterprise requires the intervention of an expert in contract and legal organization of networks.

That is why it is important to entrust the writing of your franchise to a professional sworn law, lawyer, therefore, whose main activity franchise practice both as counsel for litigation.

 

1.1.3.2. The contents of the Franchise Agreements[45]

 

The franchise agreement is a trade agreement between two continuous support persons or entities legally independent, by which a person, the franchisor, grants one or more brands on which it has exclusive rights prior, communicates commercial know-how and / or standardized technical, original, previously experienced and constantly monitored and improved, providing assistance determining initial and continuing to another person, the franchisee, to allow it to manufacture and / or supply of products and / or services in accordance with applicable standards and quality, the foundation of the success of the franchisor in an operations manual prescribed in consideration of payment of an entrance fee and / or royalties.

the clauses determining the qualification of the franchise should be considered: a distinctive sign concession, transfer of know-how and initial and ongoing support from the franchisor, but also clauses which, although not characteristic of franchise, there are systematically meet as a necessary corollary of previous clauses with financial obligation of non-competition, confidentiality clause, and finally, the clauses that are frequently encountered, such as clause exclusive supply clause or territorial exclusivity.

Faced with few enduring abusive and tarnish the image of the franchise, it was proposed to use the mechanism of certification, which has been simplified and extended services by the Act of June 3, 1994 and its decree application of 30 March 1995.

Thus, the French Franchise Federation has developed a draft certification services offered by the franchise networks, to rehabilitate them both in the eyes of consumers in respect of potential franchisees.

Moreover, it is open to any franchise, in accordance with legislation above, to develop its own certification specific to the industry in which it operates. For this purpose, the franchisor will appoint a third party to the network, independent and impartial to ensure compliance with a quality charter, and to issue or withdraw, as appropriate, the quality label which entitles its respect

• Preamble Contract Franchise: contains a brief history of the network, a description of the franchise agreement, a detailed description of the concept developed and developed by the franchisor can characterize the expertise of the franchisor.
• Social form of parts: where the part is indifferent. If this is an individual, the franchisor and / or franchisee will be registered in the register of commerce and companies and / or in the trades. If it is a corporation, the franchisor and / or franchisee will be registered in the register of commerce and companies, it can be any form of commercial company (SARL or EURL, SA, CNS, limited partnership).
• Personality parts: the franchise agreement is concluded “in a personal”, into consideration, especially for the franchisor, the personality of the other party. This feature of the franchise often leads to obligations on the franchisee, rarely borne by the franchisor. The final choice of the individual franchisee’s successor will be up to the franchisor, which must nevertheless be determined according to specific criteria and motivate a refusal.
• Legal independence of the parts: the franchisee has the legal status of an independent trader, and is subject to all the obligations implied status. Because of its legal independence, the franchisee is free to lead and manage its funds, and set its price.
• Communication skills: all commercial and technical knowledge on the concept developed by the franchisor and forwarded by him to the franchisee, including a set of information relating to methods of manufacturing, marketing, management, and possibly financing products or services franchisees.
• Initial and continuing training: a modality of transmission of know-how of the franchisor to the franchisee. The training takes place before the opening of the essential selling point. It can be provided to the franchisee himself and / or his staff.
• Grant distinctive signs: the franchisor is required to grant the franchisee brand licensing and the right to use the brand. This implies, of course he is the holder of rights in a mark duly filed and recorded. The sign, support the trade name of the franchisor, is provided either on deposit or rent.
• Support initial and continuous assistance of the franchisor (which demonstrates its know-how) is essential for the duration of the operation of the business. Scope of freedom of contract is subject to the obligation for the franchisor, given his experience, inform or advise the franchisee, it cannot, however, be limited in time. Before opening the store, between the initial assistance may take the form of other assistance in the search for the most suitable location in the search for funds to finance the activity, as well as the property, if any, of the accounts forecast operating. The ongoing support occurs at the opening of the store where she usually takes the form of the physical presence of the franchisor or its delegates in the newly opened outlet and a promotional campaign the franchisor, or advice. It continues with installation assistance and arrangement of the outlet franchisee, as well as a commercial and technical assistance permanent. Sometimes, the franchisor provides for « assessment » that will allow, on the one hand, to ensure respect for the brand and the expertise of the network, on the other hand, advise the franchisee on possible corrections or modifications to intervene to benefit fully from the franchise.
• Granting territorial exclusivity: the franchisor allowed selling itself or authorizing another franchisee to sell the territory granted to the other party, products or services covered by the franchise.
• Obligations of the franchisee: the franchise is based on know-how and a distinctive protected. It also assumes uniformity and standardization of branding and customer service across the network. All obligations of the franchisee follow from the dual character. It shall in particular meet the standards set by the franchisor relating to the development and installation of the premises, as well as their evolution. Must attend training organized by the franchisor. Respect for the brand of the franchisor also requires commercial conform to this image: the franchisee will use the methods and products that meet the standards set by the franchisor, and adapt to changing standards. This obligation extends to the field of advertising and promotional campaigns which the franchisee is responsible. Finally, it should ensure that its personnel comply with the terms and obligations of the franchise agreement
• Exclusive supply clause: clause usual franchise. It requires the franchisee to buy the products covered by the franchise exclusively from the franchisor or a third party vendor, but approved by the franchisor.
• Admission: sum variable, the franchisee must pay the franchisor to join its network.
• Investments: the no-door or the right to lease, the cost of spatial point of sale and sometimes the equipment necessary for the franchise business are an important part of the initial investment.
• Fees: Promotional consideration for the services of the franchisor, and the training it provides to its franchisees. But this is not always the case, and these benefits may be a separate charge. The method of calculating the fees charged by the franchisor is very variable.
• Contract Period: there is no mandatory rule for the duration of the franchise agreement, but it is recognized that it must allow the franchisee to recoup his initial investment. Consequently, it is most often between 4 and 10 years. If the contract contains an exclusive supply clause, it cannot be longer than 10 years, under the Act of 14 October 1943 concerning the exclusivity clause and apply to the distribution and exclusive the franchise.
• Faculties of termination: this will most often favour the franchisor, in case of breach by the franchisee of its contractual obligations or some of them, but it can also be in favour of the franchisee, for example, breach by the franchisor’s territorial exclusivity. In any event, any provision having been decisive consent of the parties to act may result, at the end of judicial proceedings, termination of the contract.
• Non-compete obligation: for the duration of the contract, non-competition clause prohibits the franchisee from exercising the same activity with a name different from that which is granted by the franchisor. At the end of the contract, non-competition clause prohibits the franchisee to continue his activity, and a territory for a period determined, while the non-affiliation allows him to continue his activity, provided that it is not part of a commercial network competitor.
• Right customers – right to renew the lease: the right to renew commercial lease is governed by the provisions of the Decree of 30 September 1953, Article 4 provides: ‘The right to renew the lease cannot be invoked only by the owner of the land is used in places”.
• Out of contract in the event of invalidity of a clause: according to the disputed clause, the prescription will be 5 years (relative nullity), 30 years (absolute nullity) or indefinitely for the contract clauses that would not exist, and therefore the action for annulment imprescriptibly. Prescription business 10 years does not apply because it only plays for the obligations arising from trade, which means that the obligation is valid. The fate of the contract in case of nullity of a clause depends on the willingness of the parties. In general, they agree that the invalidity of a clause will cover the entire contract if the clause is essential and in its absence, the parties have not contracted. It is also the decisive nature of the clause in the parties’ commitment that seek the judge if he is called upon to rule on the validity of the contract, in the absence of a party to it.
• Spell-related contracts in case of nullity of the franchise agreement: in the presence of a contract framework with contract enforcement, plays the theory of indivisibility. When the franchise agreement, framework contract is cancelled, must also be different contracts its application, such as teaching tenancy agreement or agreements for the sale of goods. Will also be cancelled contracts accessories franchise, such as the guarantee commitment in favour of the franchisee.
• Applicable law – Jurisdiction: the parties are free to determine the law applicable to their contract and jurisdiction in the event of litigation, law and jurisdiction is not necessarily the same nationality. In the absence of an express provision of the parties, the judge will seek what was their common intention, using, where appropriate, the location of the contractual relationship: it depends on the place of performance of the contract.
• Language of the contract: the contract may be written in the language that the parties wish, subject to the provisions of Law n. 94-665 of 4 August 1994, and in particular Article 2: “In the designation, offer, presentation, user guide or user, the description of the scope and conditions of guarantee of a good, product or service, as well as in bills and receipts, the use of French is required (…)”. The provisions of this article shall not apply to the names of typical products and specialties of foreign origin known wider audience. The trademark legislation does not preclude the application of this Article to messages and recorded with the brand.

 

1.1.3.3. Regulation of the legal foundations of the franchise[46]

 

Franchise agreements have been 30 November 1988 of a Community regulation which, under certain conditions, exempt from the prohibition laid down by Article 85 of the Treaty of Rome.

All franchises are not affected by this text, but only the distribution franchises and franchise services.

Conditions that must adhere to a franchise agreement to be exempted will be examined in the context of the study of a franchise agreement.

This settlement is the result of the judgment of the ECJ Pronuptia, as well as a long decision-making practice of the Commission, which are useful for the interpretation of certain provisions.

It provides legal certainty: a franchise agreement which meets the requirements it poses (absence of clauses prohibited by Article 5 of the Regulation and the exclusive presence of clauses expressly exempted by Articles 2 and 3) will be automatically exempt and immune from a complaint to the Commission, without the need to notify the agreement to the Commission.

On 1 June 2010 a new EU regulation on vertical agreements and regulation exemption is in force.

In addition to formal legislation, the European Franchise Federation (EFF) has created and updated in 1972, the European code of deontology.

There are few laws or regulations French, which are specific to franchise agreements. These agreements must nevertheless comply with various provisions of our law. This is the law of obligations, consumer law and competition law. The validity of the franchise agreement is also subject to compliance with commercial law and especially the Doubin law on the development of commercial and craft enterprises and improving their economic, legal and social.

Finally, labour law is not applicable to the relationship between franchisor and franchisee, both of which are in principle independent traders. However, Article L. 781-1 of the Labour Code, on the basis of which some franchise contracts have been reclassified by the courts in employment contracts, worth quoting.

 

1.2. The competent juridictions

 

In terms of franchising, the courts are:

• The Commercial Court: in case of problems in the network, the court designated in general, is the seat of the Tribunal de Commerce of the franchisor. The benefit of choosing this instance lies in the fact that the franchisor and its legal representatives do not need to travel through France in the event assignment franchisees. The reverse is trickier because if the franchisor has committed a fault at the conclusion or execution of the contract, the error may be traced to several complaints from franchisees the exclusive jurisdiction chosen from the start and is the franchisor door overhang towards the judge.
• Arbitration: formula developed by the Arbitration Chamber of Paris under the guidance of the FFF, arbitration is a procedure that allows franchisors and franchisees to settle amicably, quickly and quietly (thanks to the specialized competence of arbitrators) disputes that may occur in their relationships.
• Mediation: parallel circuit Legal classic, French Franchise Federation has established a mediation room, which at the request of members of a network, calls franchisor and franchisees in order to find common ground and negotiate compromises. This approach aims to avoid lawsuits cumbersome and costly, and the media exaggerated the problems that can be feasted upon the press[47].

 

2. Limits and evolutions of the legal system

 

No law governing the franchisor / franchisee. The only rule that applies is that which is embodied by their mutual desires to work together, in other words, the franchise agreement. The contract is unique to each network; quality of writing varies with large disparities.

The following clauses are present in almost all of the franchise, but beware their editors can dramatically change the course of the contractual relationship. Networks are often unintended and unnecessary risk by not measuring enough scope clauses drafted:

• The contract: it must be long enough for the franchisee recovers its investment and short enough to stop collaboration chaotic. Attention, too short a time can weaken the stability of the network since the departure of franchisees is more frequent. In practice, we find the following periods 3, 5, 6, 7 and 9 years. 3 years correspond to a service activity, investment is often low. 5 and 7 correspond to an activity of restoration; the investment is large enough that the franchise following the period bank credit. 6 and 9 correspond to a distribution business, investment is significant and follows the contract of lease maturities 3/6/9.
• Area exclusivity: as for the duration, the area under concession must be large enough to ensure a proper turnover to the franchisee and it should be small enough to maximize the potential for implantation. In this spirit, an area of ​​200m radius, regardless of the location or the city will have no meaning. Similarly, let a city like Paris, Lyon or Marseille to one franchisee is a strategic error in development. It is making the competition, insofar as they can concentrate more outlets in the same area. The area of ​​exclusivity cannot be measured in meters as the crow flies or compass drawing a circle around a point of sale. To determine seriously, we must implement a geomarketing and operate a cutting surgical planning.
• Renewal: The tacit ban is for two reasons.
• First, the relationship between businesses, a contract of indefinite duration can be terminated at any time by either party. Franchise contracts are always concluded for a fixed term but adding a tacit renewal clause creating a permanent contract that can be terminated at any time after the first renewal. There is, at this time, a risk to the stability of the network.
• Second, who says tacit renewal said contract in the exact terms in which it was concluded. In other words, you lose the opportunity to renegotiate the contract or the dust or just add clauses arising from technological developments and know-how. The contract becomes a legal shot.

A contract reaches its maturity is buried, once and for all, to make room for a new contract which clearly shows the intention of the parties to continue.

• Non-competition: competition is good for consumers and the various powers that be have to legislate in favour of the consumer and, consequently, to freer competition and stronger. From this premise, we should not expect a franchise to severely restrict competition. The non-competition clause is in stark contrast to the values ​​desired by the legislator. To be valid, a non-competition clause must be limited in space and time. The Block Exemption Regulation 2010, Bill L340-1 or jurisprudence agrees that a non-competition clause must be limited to the goods and services specified in the contract for the premises occupied by the franchisee and for up to one year.

To enforce, a non-competition clause must be cut to be valid but must also prove prejudice. The burden of proof rests with the franchisor must demonstrate certain damage, direct and encrypted. Easier said than done, it is often necessary to respond to the issue of territoriality.

The non-compete clause has a limited scope; it must be valid and enforceable, which is rarely the case. In case of conflicts, poor arrangement will be preferable to a long and expensive trial the outcome more uncertain.

• The confidentiality clause: the purpose of a confidentiality clause may be laudable and justified; it is most often the protection of know-how and therefore economic interests arising therefore.

Unfortunately, its application is almost impossible. Must demonstrate that there has been a violation of the clause but above all must be aware of the transgression. It is impossible to know if a former franchisee discuss or transmit confidential information to a competitor, except in exceptional cases of flagrante offense.

Do not be fooled, a confidentiality clause is not a good tool for protection; it is too often unenforceable for lack of evidence, let, therefore, form in the contract, in case there is clear evidence of transgression.

Franchisor and you acknowledge that you described above in your franchise, good advice consult a lawyer of your franchise and dusted contractual framework. Legislation and jurisprudence evolve as made[48].

In addition, you can also raise the following constraints:

• Difficulties of delimitation: Through the only pre-contractual information, some conflicts can be avoided at the cost of having to reveal certain circumstances the franchisee for commercial reasons. In a competitive and contractual perspective, it is necessary to clarify the legal limits of the franchise agreement in order to avoid any kind of excess free business year under the guise of harmonization and rationalization of the network in favour of the franchisor of all franchisees and consumers.
• The limits of statute: compulsory registration of the franchisor to register specially created for this purpose by the Royal Decree 1485/1998 before the commencement of the activity of sale of franchise constitutes a legal limit to the contractual capacity of the franchisor.

Besides the description of the franchise, the other information contained in the Register of Franchisors are the same, although it may seem difficult to justify than those contained in other records.

It is therefore necessary to assess the risk of divergence of information between registers.

The content of the commercial register is transferred to the register franchisors in accordance with Article 7 of the Royal Decree, where the potential existence of reciprocal interference between these two registers. The fact that the information available to the registry franchisors are derived from the commercial register, only promote the legal effect of the first.

This trend registry franchisors exceed legal limits also extends to register trademarks, because of the complexity of the franchise agreement. Indeed, given that the franchise agreement extends to industrial property rights, they must be registered simultaneously registry franchisors and with the Spanish Patent and Trademark Office.

The holder of a trademark or trade name is not registered as franchisors cannot have its ownership of these two elements in case of transfer under a franchise agreement.

• Restrictions on business and limits: as a string of businesses, franchising is usually a common strategy that can affect competition in the market. Meanwhile, the franchise includes a set of distributors that can compete with each other. It is under these two perspectives, internal and external, it is necessary to analyze the impact of the franchise agreement on competition[49].

 

1. The commercial system of the franchise

 

1. The limits

 

1.1. Vertical relationships and restraints

 

The relationship between a supplier and its distributors is called vertical. Effectively in the organization of a distribution, the producer is at the head and importers, wholesalers, semi-wholesalers, distributors, are below the final consumer.

Franchising is a form of vertical relationships: there’s head end and franchisees below.

Vertical relationships are essential to the functioning of trade, which can:

• Ensure efficient distribution of products, because we must be aware that the producers do not necessarily have the qualifications necessary for the marketing of their products. While retailers can achieve economies of scale by selling various products (possibly from several producers). In new markets, it is because it is more interesting for a producer to trade with a dealer who has a good knowledge of the market (reducing the risk of failure).
• But they can also have adverse effects on trade if they are complemented by reducing competition agreements. As a system, requiring such agreements between its protagonists, the franchise is conceived as a vertical restraint[50].
• Vertical restraints as an obstacle to free competition: the laudable aim of the community is free competition which allows its inhabitants to enjoy its virtues. The traditional economic analysis identifies five necessary conditions for perfect game competition[51]:
• Atomicity agents: a large number of suppliers and buyers of small size, so as not to deregulate the market,
• The free entry: thus the absence of barriers to entry buyers or sellers in the market,
• The homogeneity of the products or services: the ability for a user to replace a product with another. As a result, competition among several brands on the market,
• The perfect information: all market players know all relevant information concerning the exchange market,
• The mobility of factors: the possibility of changes in supply.

 

1.2. The exclusive supply

 

Franchise agreements generally contain a provision requiring the franchisee to only buy exclusively or almost exclusively (75-80%) products produced by the franchisor or supplier that has referenced. As the BER of 1988, Ordinance No. 86-1243 of 01.12.1986 on freedom of competitive pricing opposes the exclusive supply obligation under the prohibition of cartels.

According to Article 7, the supply of franchisees in the franchisor is nevertheless exempt from these texts insofar as it is necessary to preserve the identity and reputation of the network.

Legal problems occur rather in determining the price of supplies and a franchisor cannot reasonably in advance, determine the prices it will sell the franchise five years later especially if in the meantime they disappear, the franchisor benefits unilaterally and improperly setting the price is the author of an abuse of economic dependence[52].

To punish all malfunctions and adverse effects in the pricing, Article 1591 of the Civil Code stipulated that any unilateral fixing of prices in a contract must be punished (the price must be determined and designated by the parties). The possibility of disproportionate sanctions, this article has simply been removed from the law applied to the franchise in a judgment of 1 December 1995, which states that the setting of exuberant prices does not lead to nullity of the franchise agreement, but the termination of sales contracts concerned.

Thus, to determinate if the market has a competitive behaviour, it is necessary to examine the distribution and types of contractual provisions made in these systems[53].

 

1.3. The consequences

 

• Limited distribution: than the mode of distribution, this is the distribution process must be understood. Actually the franchise can in the case where the franchisor or producer passes an exclusive agreement with a producer, using the network as a way of exclusive distribution.

In both cases, the manufacturer sells to only one or a limited number of buyers. Voluntarily or involuntarily, it restricts the number of buyers in a specific category or to a particular territory.

• The branding: in this case, the buyer is obliged to procure a single brand with a single supplier (exclusivity and non-competition).
• The sale price: there are several types of awards which are the resale prices (the prices at which the franchisee is expected to sell its products or services to customers), the maximum selling prices (the franchisee is free to sell at the prices he hears but they should not exceed the maximum prices are given), minimum prices (the franchisee is free to sell to price it means but they should not be lower than the minimum prices given), recommended prices (the franchisee should sell at these prices, or their surroundings).

As part of the franchise, are prohibited: resale prices, minimum prices, maximum prices, margins determined (this would be reflected automatically on the final price) or the minimum margins (prices already implicitly oriented). It is even less conceivable that the franchisor practice of retaliation for not applying recalcitrant prices prohibited. The price is stated imposed when the legislature can see the similarity of prices in several franchised outlets. Is strict, but only a thorough inspection of each point of sale could justify the practice of resale price maintenance. If we apply this vision to the letter legal, it is impossible for the network to be homogeneous in terms of prices, and thus bring about this promotional variable mix.

• Market segmentation: limiting buyers to purchase only one producer or supplier that elects its customers includes markets. The exclusive purchasing is directly targeted. Market segmentation may be the result of territorial restrictions, customer restrictions, prohibitions of resale and sales related. The major effect observed may be the reduction of intra-brand competition that promotes supplier.

 

1.4. Vertical restraints as barriers to unfair competition

 

Vertical restraints are not always the ugly ducklings of the market economy, they may paradoxically that we saw encouraging competitiveness in a market (cost-shared between the players so economies of scale repercussions to the final consumer, distribution easier because wider network …). They also allow curbing some ills affecting the proper functioning of commerce. When competition is fierce, it can open the door to the worst abuses among opponents. Unfair competition is not a healthy practice to acquire market share.

Reprehensible practices are identified by law and punishable under Article 1382 of the Civil Code: “Any act of man that causes damage to another obliges him by whose fault it happened to repair it”.

The repression of unfair competition aims acts or practices in the context of commercial or industrial activities are contrary to honest, in particular:

• parasitism: acts causing the weakening of the mark by a third or loss of distinctiveness. This may also include taking unfair advantage of the reputation or a business,
• imitation and counterfeiting: acts are likely to cause confusion with the products, services or business activities of a company,
• denigration: statements that could mislead the public into error, including the method of manufacture of a product or the quality, quantity or other characteristics of goods or services. These false allegations are likely to discredit the victim company,
• disruption: acts concerning the unlawful acquisition, disclosure or use of trade secrets.

 

2. The perspectives

 

There are two or three years, Internet did not mean much to the average listener; today not a day goes by that we hear about. News, newspaper, radio … all media develop com. And to the rise in the number of users, it is now the escalation of investments to be seen by this pioneer surfer (though now we could talk about early majority), richer than average, which could with a click of becoming the loyal customers.

But for some time now, virtual stores, online shops and other web shops popping up are all over the web. From the United States, then quickly relayed by major European retailers, they gradually invade our screens, overcoming technical difficulties, the economic wars and the reluctance of each. The advent of new information technologies puts everyone in commotion, including the actors of the franchise. But for the latter, the possibility of selling the world opposes their obstinacy territorial exclusivity.

The franchise, like any other distribution channel has several interests to trade on the internet. The media permit[54]:

• To have access to a wider market, even global, at a reduced cost,
• Reduce costs:
• extremely fast data transmission,
• Reduced inventory (concept of immediately available),
• Reduced distribution costs (fewer intermediaries),
• Interactivity with the customer (direct marketing).
• To optimize the commercial offer to infinity, without storage constraints and adjusting prices in direct,
• To have a permanent customer service (crucial for jet lag but positive for domestic customers, a service provided 24H/24)
• To develop relationship marketing (information gathered enables optimal personalization …).

But franchisors franchisees are as cautious towards the net. The new tool certainly offers great opportunities for flow of goods, but the exclusivity clauses linking does not allow access to customers outside the catchment area assigned. Conversely, the fact that the media does not happen by the tangibility of a stall, does not detract from its ability to compete: the threat is more than five hundred meters, it is everywhere.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONCLUSION

 

 

Through our work, we can conclude that despite the fact that the franchise is a business investment size in relation to other forms of acquisition of companies, we must first and foremost be able to properly analyze the risks, constraints, inconveniences which incumbent on both parties involved in franchising.

In fact, it starts the franchise, currently, to grow around the world, especially in France.

And so far, the system has adapted as it should on the legal and economic

The case study shows that the strict legal framework has been able to adapt to changes in the environment:

• Laws were created to restore the tensions between franchisors and franchisees,
• Structures and exemptions have been legally established to preserve competition, innovative concepts, falsified and protected from plagiarism and copying,
• Theses and economic theories, parliamentary reports, community have changed attitudes and conversely cases brought to justice have produced texts to regulate, in the sense of vertical restraints were seen as barriers to competition.

However, battles are expected, certainly in the short term commercially.

Situations and current positions can be crippling if the thoughts and treatments are not implemented quickly about:

• Distribution giants that threaten the city center and close entries to new franchisors and franchisees,
• Franchisors for some time, become prey sought by large investors seeking acquisitions,
• Of inaction and rigor obstinate and administrative, some members of the franchise face old demons (legal decisions not decided, organization …) or progress.

These findings weaken the system and can discredit the medium and long term to encourage avoidance of their choice in favour of other forms of trade, of course.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BIBLIOGRAPHY

 

1. Collectif, La franchise en Europe, 2011.
2. HUBERT, Définition de la franchise, 2008.
3. Franchise : quelques chiffres, www.franchise-france.net.
4. INSEE, Les réseaux d’enseignes, très présents dans le commerce, www.insee.fr, 2006.
5. Les statistiques de la franchise pour l’Union Européenne, www.eff-franchise.com.
6. PAMIER J-Pierre, THIRIEZ Gilles, Guide pratique de la franchise, Edition d’organisation, 1999.
7. Institut XERFI, les défis de l’alimentation : études et prévisions de XERFI, www.xerfi.fr, page 103.
8. INSEE, Conditions de vie-société : la consommation alimentaire, 2006.
9. Institut d’étude NPD, Franchise 2011, Le Figaro, http://www.lefigaro.fr.economie, 2011.
10. Institut d’études NPD, Le journal des restaurants Hôtels Cafés : actualité, emploi, fonds de commerce, Société d’études marketing, http://www.lhotellerie-restauration.fr, 2007.
11. INSEE, Consommation des ménages et des administrations, Les comptes de la Nation – Base 2005, 2012.
12. INC, Les prix à la consommation, http://www.20minutes.fr, 2011.
13. PERRI Bertrand, Restauration rapide, Etude de l’Institut XERFI, 2011
14. INSEE, Enquête annuelle d’entreprise dans les services 200, repris par FICHES THÉMATIQUE, Approche sectorielle, 2008.
15. INSEE, Démographie des entreprises et des établissements 2010 : champ marchand non agricole, stocks d’entreprises, 2010.
16. Définition: enseigne, www.definitions-marketing.com, 2012.
17. PORTER Michael, Competitive Advantage, New York, the Free Press, 1985.
18. Le TOURNEAU P, Le franchisage, Edition Economica, 1994.
19. Franchise, fr.wikipedia.org, 2012.
20. XERFI, Le marché de la restauration rapide, www.xerfi.fr, 2009.
21. LIOUVILLE et BAYAD, Stratégie de gestion des ressources humaines et performances dans les PME : résultats d’une recherche exploratoire, gestion 2000, Vol.1, p.159 à 179.
22. ARCAND et al., l’effet des pratiques de gestion des ressources humaines sur l’efficacité organisationnelle, Annals of Public and Cooperative Economics, Vol.73, N°2, p.215 à 240.
23. BENSOUSSAN Hubert, Le droit de la franchise, Edition Apogée, 1999.
24. BESSIS Philippe, Le contrat de franchisage, Edition LGDJ, 1992.
25. Le contrôle des pratiques anticoncurrentielles, 28 mai 1996, déc. n°96-D-36.
26. Commission européenne, 14 novembre 1995, n°93-16299.
27. Droit de la concurrence, Le contrôle des pratiques anticoncurrentielles, 4 juin 1997, n°97-D-51.
28. Clause de non-concurrence, Cours d’Appel Paris, 6 mars 1987.
29. Droit de l’Union Européenne, Règlement d’exemption n°2790-99 du 22 décembre 1999.
30. Enseigne, Commission européenne, 22 février 2000, Communiqué n°97-15560.
31. Autorité de la concurrence, 24 mai 1994, déc. n°96-D-31  et96-D-32 ; 28 mai 1996, déc. n°96-D-36.
32. Règlement de l’Union européenne n°4087/88 du 30 novembre 1988.
33. PHILDAR, L’exécution du contrat de franchise, Commission européenne, 10 janvier 1995, Communiqué n°92-17892.
34. AFFLELOU Alain, La franchise, Commission européenne, 11 avril 2000, déc. n°00-D-10.
35. Commission européenne, 19 novembre 2002, Communiqué n°01-13492.
36. Le contrat de franchise, Commission européenne, 9 novembre 1993, Communiqué n°91-20382, Bull. civ. IV n°403.
37. Commission européenne, 9 mars 1993, Communiqué n°91-11479.
38. Commission européenne, 14 janvier 2003, Communiqué n°00-11253.
39. Commission européenne, 14 mars 2006, n°03-14639, Bull. civ. IV n°65.
40. GAST, Le guide pratique de la loi de DOUBIN, GAST, 1991.
41. SAMPER, Lois et contrats : La loi Doubin, http://www.ac-franchise.com, 2011.
42. GAST, Législation & contrats : Le Document d’Informations Précontractuelles (D.I.P), www.franchisekey.com.
43. Le contrat de franchise, Code de déontologie européen, www.franchise-fff.com.
44. Rapport 1992, OECD, Competition policy and restraints: franchising agreements.
45. Le contenu du contrat de franchise, www.franchise-eff.com.
46. GAST, Les procédures européennes du droit de la concurrence et de la franchise, 1989.
47. MAROT Yves, Mémento pratique du droit de la franchise, Edition FFF, 1999.
48. HABI H., Les 5 points critiques d’un contrat de franchise, 2012.
49. Collectif, Les limites juridiques du contrat de franchise, 2011.
50. HADFIELD Gillian K., Credible spatial pre-emption through Franchising, 22 Rand Journal of Economics 531 -1991.
51. GENEREUX Jacques, Introduction to Economics, Threshold, 1990.
52. Green Book, Vertical restraints in EU competition policy, February 1997.
53. AGHION Philippe and BOLTON Patrick, Contracts as a Barrier to Entry, American Economic Review, 388 -1989.
54. International PIC, Virtual shop the price of a doorstep, 2000.

 

[1]Collectif,  La franchise en Europe, 2011.

[2] P. HUBERT, Définition de la franchise, 2008.

[3] Franchise : quelques chiffres, www.franchise-france.net.

[4] INSEE, Les réseaux d’enseignes, très présents dans le commerce, www.insee.fr, 2006.

 

[5] Les statistiques de la franchise pour l’Union Européenne, www.eff-franchise.com.

[6] PAMIER J-Pierre, THIRIEZ Gilles, Guide pratique de la franchise, Edition d’organisation, 1999.

[7] Institut XERFI, les défis de l’alimentation : études et prévisions de  XERFI, www.xerfi.fr, page 103

[8] INSEE, Conditions de vie-société : la consommation alimentaire, 2006.

[9] Institut d’étude NPD, Franchise 2011, Le Figaro, http://www.lefigaro.fr.economie, 2011.

[10] Institut d’études NPD, Le journal des restaurants Hôtels Cafés : actualité, emploi, fonds de commerce, Société d’études marketing, http://www.lhotellerie-restauration.fr, 2007.

 

[11] INSEE, Consommation des ménages et des administrations, Les comptes de la Nation – Base 2005, 2012.

[12] INC, Les prix à la consommation, http://www.20minutes.fr, 2011.

[13] PERRI Bertrand, Restauration rapide, Etude de l’Institut XERFI, 2011

[14] INSEE, Enquête annuelle d’entreprise dans les services 200, repris par FICHES THÉMATIQUE, Approche sectorielle, 2008.

.

[15] INSEE, Démographie des entreprises et des établissements 2010 : champ marchand non agricole, stocks d’entreprises, 2010.

[16] Definition: enseigne, www.definitions-marketing.com, 2012.

[17] PORTER Michael, Competitive Advantage, New York, the Free Press, 1985.

[18] Le TOURNEAU P, Le franchisage, Edition Economica, 1994.

[19] Franchise, fr.wikipedia.org, 2012.

[20] XERFI, Le marché de la restauration rapide, www.xerfi.fr, 2009.

[21] LIOUVILLE et BAYAD, Stratégie de gestion des ressources humaines et performances dans les PME : résultats d’une recherche exploratoire, gestion 2000, Vol.1, p.159 à 179.

[22] ARCAND et al., l’effet des pratiques de gestion des ressources humaines sur l’efficacité organisationnelle, Annals of Public and Cooperative Economics, Vol.73, N°2, p.215 à 240.

[23] BENSOUSSAN Hubert, Le droit de la franchise, Edition Apogée, 1999.

[24] BESSIS Philippe, Le contrat de franchisage, Edition LGDJ, 1992.

[25] Le contrôle des pratiques anticoncurrentielles, 28 mai 1996, déc. n°96-D-36.

[26] Commission européenne, 14 novembre 1995, n°93-16299.

[27] Droit  de la concurrence, Le contrôle des pratiques anticoncurrentielles, 4 juin 1997, n°97-D-51.

[28] Clause de non-concurrence, Cours d’Appel Paris, 6 mars 1987.

[29] Droit de l’Union Européenne, Règlement d’exemption n°2790-99 du 22 décembre 1999.

[30] Enseigne, Commission européenne, 22 février 2000, Communiqué n°97-15560.

[31] Autorité de la concurrence, 24 mai 1994, déc. n°96-D-31  et 96-D-32 ; 28 mai 1996, déc. n°96-D-36.

[32] Règlement de l’Union européenne n°4087/88 du 30 novembre 1988.

[33] PHILDAR, L’exécution du contrat de franchise, Commission européenne, 10 janvier 1995, Communiqué n°92-17892.

[34] Alain AFFLELOU, La franchise, Commission européenne, 11 avril 2000, déc. n°00-D-10.

[35] Commission européenne, 19 novembre 2002, Communiqué n°01-13492.

[36] Le contrat de franchise, Commission européenne, 9 novembre 1993, Communiqué n°91-20382, Bull. civ. IV n°403.

[37] Commission européenne, 9 mars 1993, Communiqué n°91-11479.

[38] Commission européenne, 14 janvier 2003, Communiqué n°00-11253.

[39] Commission européenne, 14 mars 2006, n°03-14639, Bull. civ. IV n°65.

[40] O. GAST, Le guide pratique de la loi de DOUBIN, GAST, 1991.

 

[41] J. SAMPER, Lois et contrats : La loi Doubin, http://www.ac-franchise.com, 2011.

[42] O. GAST, Législation & contrats : Le Document d’Informations Précontractuelles (D.I.P), www.franchisekey.com.

 

[43] Le contrat de franchise, Code de déontologie européen, www.franchise-fff.com.

[44] Rapport 1992, OECD, Competition policy and restraints: franchising agreements.

[45] Le contenu du contrat de franchise, www.franchise-eff.com.

[46] O. GAST, Les procédures européennes du droit de la concurrence et de la franchise, 1989.

[47] MAROT Yves, Mémento pratique du droit de la franchise, Edition FFF, 1999.

[48] HABI H., Les 5 points critiques d’un contrat de franchise, 2012.

[49] Collectif, Les limites juridiques du contrat de franchise, 2011.

[50] HADFIELD Gillian K., Credible spatial pre-emption through Franchising, 22 Rand Journal of Economics 531 -1991.

[51] GENEREUX Jacques, Introduction to Economics, Threshold, 1990.

[52] Green Book, Vertical restraints in EU competition policy, February 1997.

[53] AGHION Philippe and BOLTON Patrick, Contracts as a Barrier to Entry, American Economic Review, 388 -1989.

 

[54] International PIC, Virtual shop the price of a doorstep, 2000.