Your competitor has copied your concept, your visual identity and your layout—to the extent that their outlets bear a striking resemblance to yours. Before taking legal action, you want to secure evidence on site, before it disappears or is altered. Article 145 of the Code of Civil Procedure provides this avenue: it allows for an investigative order to be obtained on a competitor’s premises, prior to any trial, provided there is a legitimate reason.
It was on this legitimate ground that Maisons du Monde has just lost its case definitively, on 16 April 2026, before the Court of Cassation (Civ. 2, 16 Apr. 2026, No. 25-14.297). The retailer had obtained an order authorising an investigation on the premises of Groupe Cargo, which was suspected of free-riding on its shop concept. The order was revoked. All findings made were annulled. And Maisons du Monde was prohibited, subject to a periodic penalty payment, from using the report in any legal proceedings, both in France and abroad.
This ruling clarifies a rule that many underestimate: to obtain an investigative order, you must first demonstrate that you have something sufficiently specific to protect.
When a retailer seeks to seize evidence before taking legal action
In July 2022, Maisons du Monde filed an application with the president of a commercial court. Its aim: to organise an investigation on the premises of the companies in the Cargo Group, which it suspected of free-riding on its shop concept — its shop layout, its communication codes, and its way of presenting product ranges.
The judge authorised the measure. The investigation was carried out. The targeted companies immediately sought to have the order set aside. The judge hearing the application for interim relief refused their request. They appealed.
In 2023, the Court of Appeal sets aside the order. The Court of Cassation quashes this judgment in October 2023 (Civ. 2, 5 October 2023, No. 23-11.744) and refers the case back to Toulouse. On 4 March 2025, the Court of Appeal to which the case was referred revoked the order once again — and went further: it annulled all the findings made and prohibited Maisons du Monde from using the report in any proceedings, in France or abroad, subject to a penalty payment.
It is this latest decision by the Toulouse Court of Appeal that forms the subject of the Court of Cassation’s dismissal ruling of 16 April 2026. Nearly four years of proceedings, resulting in the revocation of the order and a prohibition on using the evidence obtained following its execution.
Key takeaway: an investigative measure ordered on application may be revoked even after it has been carried out. The evidence initially obtained may then no longer be used by the applicant.
What the judge may review without ruling on the merits
Maisons du Monde put forward a classic and legally sound argument: Article 145 of the Code of Civil Procedure does not require the claimant to establish the merits of their future action. The very purpose of the order is to gather evidence — requiring them to produce evidence of the merits of their future action would be absurd.
The Court of Cassation reiterates this principle. It expressly notes that the Court of Appeal “did not require the applicant to produce evidence that the measure sought was specifically intended to gather”. The Court of Appeal, quite rightly, did not require Maisons du Monde to prove its allegations of parasitism.
However, the applicant must nevertheless demonstrate the existence of a legitimate reason for obtaining the investigative measure. The Court of Cassation draws a clear line here: the judge exceeds his powers if he demands proof that the competitor has actually copied — that is precisely the purpose of the measure.
On the other hand, the judge remains within their remit if they find that the applicant has not identified, with sufficient precision, what their competitor has allegedly copied.
The distinction is subtle but crucial. The judge does not rule on the outcome of the future trial. He verifies that the application describes a sufficiently defined subject matter to justify the investigation. A vague concept, undocumented investments, generic characteristics — and the legitimate grounds evaporate, without the judge having thereby ruled on the merits.
Case law also notes that a pre-trial investigation must be refused where the future action is “manifestly doomed to failure” — for example, due to the statute of limitations. This was not the case here, but the mechanism illustrates that the judge assesses the full context of the potential dispute.
Please note: the assessment of legitimate grounds falls within the judge’s discretionary power, which is in principle not subject to review by the Court of Cassation.
Further reading: How to challenge a pre-trial investigation order?
What your application must demonstrate
The Toulouse Court of Appeal identified three shortcomings in Maisons du Monde’s application. Each corresponds to a practical requirement that any application based on parasitism must address.
First shortcoming: the failure to formalise the concept. Maisons du Monde had not produced any document establishing that it had devised a standard layout for its retail outlets that its shops were required to follow — such as a fit-out guide, specifications or a visual identity charter. Without such a document, it is impossible to establish that a distinctive concept existed prior to the alleged free-riding.
Second shortcoming: the lack of a definition of the investment. The action for free-riding is based on the idea that a competitor benefits without spending a penny from an investment made by another. If the application does not specify the nature and extent of this investment — in terms of value, in kind, or in terms of prior existence — it does not define the scope of protection and does not justify the investigation.
Third shortcoming: the generic nature of the alleged characteristics. The eight elements presented by Maisons du Monde — relating to layout and communication codes — were described by the judges as “ordinary” and “in vogue”. Practices common to an entire sector cannot constitute free-riding. The claim requires an identified and individualised economic value, not a sector-wide trend.
In practice, the temptation is to file a request quickly to secure evidence before it disappears. It is precisely this reflex that leaves one open to a retraction: the request is put together in haste, based on screenshots and visual comparisons, without the internal documents that prove prior use and investment.
The documents that make the difference are often already within the company: specifications, site reports, contracts with designers, board presentations, and expense reports relating to the concept’s roll-out.
It is these documents that enable the scope of the alleged free-riding to be precisely defined — provided they are identified and submitted in support of the application.
Key point: the application must describe the identified and individualised economic value that the applicant seeks to protect — not merely the similarities they have observed. Filing an application under Article 145 without first documenting one’s concept exposes the applicant to a withdrawal of the application and the permanent loss of the seized evidence.
Further reading: Guide to obtaining an in futurum order.
The practical cost of a withdrawn order
The outcome of the Maisons du Monde dispute illustrates the gap between what many anticipate and what actually happens in the event of a withdrawal. The report is annulled: the findings made no longer have any probative value, regardless of their technical quality or accuracy.
A prohibition on use is imposed, subject to a penalty payment: Maisons du Monde can no longer rely on the report in any legal proceedings, in France or abroad. This is not merely lost evidence — it is evidence whose future use may be penalised.
Legal costs have accumulated over four years—first instance, appeal, first appeal to the Court of Cassation, referral, second appeal to the Court of Cassation—to which are added the penalties awarded to the opposing parties under Article 700 of the Code of Civil Procedure at the conclusion of each instance.
And in the meantime, the proceedings on the merits remain in abeyance. The company that suspected parasitism finds itself without usable evidence, without a trial on the merits, and barred from using what it had thought it had seized.
The right approach is not “do I have good grounds to suspect this competitor?” but “have I, even before filing the application, formalised and documented the economic value I am seeking to protect?”
If you suspect a competitor of free-riding on your concept, the window for action is narrow and the preparation of the application determines the outcome. Waiting risks the loss of evidence; acting without preparation risks its invalidation.
The limitation period runs from the day on which you became aware, or ought to have become aware, of the facts, pursuant to Article 2224 of the Civil Code — regardless of the duration of the free-riding. An initial consultation allows us to assess whether your documentation is sufficient to justify an in futurum investigation and to identify the evidence to be gathered before bringing the matter before the court.
Frequently Asked Questions
What constitutes a legitimate ground within the meaning of Article 145 of the Code of Civil Procedure?
A legitimate ground is one of the conditions laid down in Article 145 of the Code of Civil Procedure for obtaining a pre-trial investigation order. It requires the applicant to demonstrate that a future dispute is plausible and that the measure sought is necessary for its resolution. The claimant is not required to establish the merits of their future claim, but must precisely identify the facts they seek to establish and the subject matter they intend to protect. The assessment of legitimate ground falls within the discretion of the trial judge.
With regard to parasitism, what must an application under Article 145 of the Code of Civil Procedure contain in order to be upheld?
The application must enable the court to identify a specific, individualised economic value that the claimant is seeking to protect. In practical terms: a concept set out in internal documents (specifications, design charter, implementation guide), a specific investment, and distinctive features that do not form part of standard industry practice. Visual similarities and generic characteristics, without supporting evidence, do not constitute a legitimate ground.
What happens if an order made on application under Article 145 of the Code of Civil Procedure is revoked?
Withdrawal results in the annulment of all findings made. The report loses its probative value. The judges may also prohibit the claimant from using the report in any legal proceedings, in France or abroad, subject to a daily penalty payment — as illustrated by the judgment of 16 April 2026 in the case of Maisons du Monde v Groupe Cargo.
How soon should action be taken if a competitor is suspected of free-riding?
The action for parasitism, being a tort, is subject to a limitation period of five years from the date on which the victim became aware, or ought to have become aware, of the facts enabling them to bring the action, in accordance with Article 2224 of the Civil Code. The limitation period begins to run from the date on which the facts become known, regardless of their duration. This time limit must not obscure the practical urgency: evidence may disappear quickly, and Article 145 of the Code of Civil Procedure is applicable only prior to any proceedings on the merits concerning the same dispute.
Is it necessary to notify the competitor first before filing an application under Article 145 of the Code of Civil Procedure?
No. The application is filed without the opposing party being notified — that is the very nature of the application procedure. Notifying the competitor before filing the application risks allowing them to remove the items that the order is intended to seize. It is also the surest way to have the order set aside, as the waiver of the adversarial principle is no longer justified if the opposing party has been notified. The decision to enter into negotiations or to proceed to the merits of the case must be taken after the evidence obtained has been assessed, not before.