Capès Dolé water company v. SA West Indies Pack

10/02170; 13-24.255
September 18, 2009
Final judgment
France, Paris

Economic stakeholders
Capès Dolé Water Company
West Indies Pack
No description

Civil court
, Organochlorine, Chlordecone
Annul the judgment that Capès Dolé water company is engaging in acts of unfair competition.
Court of cassation of Paris, France

January 7, 2016
The court confirmed the judgment and ordered the complainant to sell and distribute its water bottles with the label "water made potable by treatment" and not the mention "spring water".

On January 7, 2016, the French Supreme Court overturned the decision of the Basse-Terre Court of Appeal of June 3, 2013, which had found the company des eaux thermales de Capès Dolé guilty of unfair competition for having sold bottled water under the name "spring water", even though the water had been treated for pesticide residues, in particular chlordecone, prior to sale.

On September 18, 2009, West Indies Pack sued eaux thermales de Capès Dolé for unfair competition, seeking compensation and the withdrawal from the market of their bottled water using the designation " source water ", on the grounds that by virtue of prefectoral decree n°2006-56, the designation " water made potable by treatment and with the addition of gas " was applicable. Société des eaux thermales de Capès Dolé argued that the chlordecone crisis in the West Indies had made it compulsory for all water suppliers to install activated carbon filtration, which does not alter the microbiological characteristics of the water, so that the water sold by this company was already potable before treatment.

In a ruling dated December 15, 2010, the Tribunal Mixte de Commerce de Basse Terre upheld West Indies Pack's claim and ordered La société des eaux thermales de Capès Dolé to sell its bottled water under the label "eau rendue potable par traitement".

After hearing an appeal against this decision, the Basse-Terre Court of Appeal, in a ruling dated June 3, 2013, upheld the judgment. Société des eaux thermales de Capès Dolé has appealed to the French Supreme Court.

At the same time, a direct action was brought against M.X., manager of the Capès Dolé thermal spring water company, accused by West Indies Pack of having committed an offence of deception by labelling its products as " source water ". Initially convicted of deception by the Basse Terre Criminal Court on June 27, 2003, the Criminal Division of the Cour de Cassation acquitted Mr. X in a ruling dated June 28, 2005, and the Fort-de-France Court of Appeal dismissed Mr. X's case in a ruling dated April 6, 2006.

This is why the Cour de cassation, in its ruling of January 7, 2016, overturned the decision previously handed down by the Basse-Terre Court of Appeal on June 3, 2013. The Cour de cassation noted that the ruling of April 6, 2006 dismissing M.X. from the case had held "that any modification of the microbiological characteristics of Capes Dolé spring water had not been established" and "[that] it had not been established that the water treatment by activated carbon filtration carried out by the Eaux de Capes Dolé company was prohibited by article R. 1321-85 of the public health code".

While the Eaux de Capes Dolé company was not found guilty of unfair competition, a subsequent ruling by the Criminal Division on November 22, 2016 confirmed the decision of the Basse-Terre Court of Appeal on October 13, 2015 to fine the company 50,000 euros for deception.

The latter ruling states that "[c]onstituting the offence of deception is the marketing, under the name 'spring water', of water taken from the natural environment that has received treatment intended to eliminate pesticides from human pollution, whereas the regulations adopted for the application of article R.1321-85 of the public health code concerning spring water only authorize treatments relating to the separation of unstable elements or undesirable constituents from such water".