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Because the freedom of association includes the freedom not to associate, it is now accepted that the clause of a commercial lease requiring the lessee to join the merchants’ association and to maintain his membership for the duration of the lease is absolutely null. Until the judgment reported, the question of the effects that should be attached to this annulment divided the magistrates of the civil chambers.
Indeed if, naturally, the third and first civil chambers agreed on the retroactive nature of the cancellation, requiring the association to reimburse the lessee the amount of the contributions paid, their assessment diverged on the question of the payment, for the merchant, of a sum for the activities of the association (promotion, animation, etc.) from which he has benefited. The high magistrates of the third civil chamber showed themselves favorable to it. Conversely, in the name of the right to an effective remedy (and under the visa of art. 6, § 1, 11 and 13 of the Conv. EDH), their counterparts in the first civil chamber had censured a court of appeal having ordered the lessee to pay the association a sum equivalent to the amount of the contributions for unjust enrichment ( Civ. 1st, May 20, 2010, prev.).
However, by this decision of rejection of July 12, 2012, the first civil chamber breaks with its position of 2010, rallying to the doctrine defended by the magistrates of the third civil chamber. It unreservedly approves of the Court of Appeal for having “exactly retained”, since the retroactive nullity of the clause has the effect of returning the parties to their initial situation, that the lessee had to restore the value of the services from which he benefited. .
Grégory Damy Commercial Lawyer Nice
