Week of 7 to 13 September 2026
Legislative, regulatory and case-law review
I. Unauthorised payments: the burden of proof lies on the payment service provider
In a judgment of 9 September 2026, published in the Bulletin, the commercial chamber quashed a decision that had placed on the customer the burden of proving that a payment was authorised. It follows from Article 1353 of the Civil Code and the first paragraphs of Articles L. 133-6 and L. 133-7 of the Monetary and Financial Code that the burden of proving the authorisation of a payment initiated by the payer, given to the payment service provider in the form agreed between them, lies on the provider.
The ruling is of primary interest to businesses that fall victim to transfer fraud. It is not for the debited business to show that it did not authorise the transaction, but for the provider to show that it was authorised in the contractually agreed manner. The diligence and traceability of the challenge, however, remain the customer’s responsibility.
II. Insufficiency of assets: conditions for the action open to controlling creditors
In a judgment of the same day, also published in the Bulletin, the commercial chamber recalls that, in liability actions for insufficiency of assets, the court may be seized by the liquidator, by the public prosecutor or by the majority of the creditors appointed as controllers where the liquidator has not brought the action after a formal notice that went unanswered.
The action open to controlling creditors is therefore subsidiary and conditional. The prior formal notice to the liquidator, and the lack of any response to it, are its necessary precondition and determine whether the claim is admissible.
III. Abuse of dominance: the concept of economic activity under Article 102 TFEU
In a judgment of 10 September 2026, the First Chamber of the Court of Justice of the European Union ruled on the concept of economic activity as applied to a municipality’s award of the right to provide municipal waste management services, the provider being partly owned by the local authority. At issue was the distinction between a decision taken in the exercise of public powers and the conduct of an undertaking capable of falling under Article 102 TFEU.
The question goes beyond the waste sector. It concerns any business dealing with a public authority that both has the power to award and is present on the market concerned, since the characterisation of the act determines the available remedy.
IV. Financial regulation
Commission Delegated Regulation (EU) 2026/1221 of 4 June 2026, published in the Official Journal of the European Union on 11 September 2026, amends Regulation (EU) No 575/2013 as regards temporary and targeted operational relief measures and targeted multipliers for calculating own funds requirements for market risk.
The firm advises on French business law, including commercial relationships and competition disputes.
Previous edition: Weekly Digest: Business Law (31 August-6 September 2026)
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