Much has already been written about the reform of French contract law that became effective on October 1, 2016. Some legal writers complained that concepts that were specific and clearly defined by case-law have been replaced by vague and uncertain notions. To characterize the inspiration of these new provisions, a legal writer has used the term “tempered socialism”.
Several hundred articles have been completely redrafted following a window dressing public consultation process. Have the remains of the former Napoleonic Code been the victim of the spirit of the times?
In a decision dated November 29, 2016, the Commercial Chamber of the Cour de Cassation (French Supreme Court) further specified the conditions for the implementation of Article L.631-1§1 of the French Commercial Code that addresses the rules according to which credit reserves or moratoria granted to a debtor company should be taken into account in the assessment of said debtor company’s possible state of cessation of payments.
This decision provides the opportunity to recall applicable rules and to stress that particular attention should be paid, in particular within corporate groups, to advances made to financially distressed group entities.
The Finance Bill for 2017 n°2016-1917 dated December 29, 2016 introduces amendments to the tax and social regime applicable to free shares, and backtracks on some provisions laid down by the so-called “Macron” reform dated August 6, 2015.
This shift in policy provides the opportunity to review the legal, tax and social regime governing the allocation of free shares under French law.
Can legal privilege under US law prevent the enforcement of a preparatory inquiry in futurum (literally for the future) ordered in France?
Under French law, preparatory inquiries in futurum are designed to establish or preserve evidence, most of the time in connection with a future trial. Their implementation may be hindered by several barriers, including business secrecy, professional secrecy, employees’ right to privacy, or else the interference with the specific procedure called saisie-contrefaçon (i.e. search and seizure to document and establish infringements of IP rights).
In a decision issued on November 3, 2016, the Cour de Cassation (French Supreme Court) ruled on the tricky issue of how to accommodate the protection of professional secrecy and the right to evidence in an international context.
In today’s digital and “all-connected” world where 71% of French executive employees read work emails in the evening or on holiday , the “right to disconnect” has been officially introduced in the French Labor Code following its legislative recognition in the so-called “Work Law” of August 8, 2016.
Effective as from January 1, 2017, the mandatory annual negotiations on gender equality in the workplace and quality of life at work must also address “the conditions in which the employee can fully exercise his /her right to disconnect and the implementation by the company of mechanisms to regulate the use of digital tools”.
While the legislator’s laudable initiative to prompt employers to put in place regulation systems in order to protect the employees’ personal life and preserve their health is welcome, it is also perfectly understandable that companies working internationally and /or in an ultra-competitive environment that requires the highest level of responsiveness express concerns regarding the necessity to continue to rely on the reactivity of their autonomous executive employees.
Should we be pleased or concerned about the emergence of the right to disconnect? What are the boundaries of this right? Is it a realistic right or a right that is totally “disconnected” from business realities?
Adopted by the French Parliament on November 8, 2016, the Law on transparency, the fight against corruption and the modernization of the economy, commonly referred to as the “Sapin II Law” (the “Law”) “is intended [according to the French Government], more than 20 years after the Law no. 93- 122 of January 29, 1993 on the prevention of corruption and the transparency of business life and public procedures, to support further progress with regard to transparency and modernization of business life and the relationships between economic players and public decision-makers”.
This article focuses on measures that impact French corporate law.
No one can be expected to do the impossible.
By judgment dated September 7, 2015, provisionally enforceable, the Commercial Court of Lyon ordered one of our clients – an asset manager – to produce a number of accounting and financial documents to one of its former clients, subject to a daily penalty of 5,000 euros. Yet, the documents in question had been placed under seizure pursuant to a judicial order, pending a final decision of trial judges on what should be done with these documents.
The opposing counsels claimed that the order of the Commercial Court of Lyon implied for our client the obligation to authorize the lift of the seizure. As our client did not do so, the opponent sued it before the Enforcement Judge to seek the payment of the penalty – more than 1 million euros – and the removal from the list of cases of the appellate proceedings that we had initiated. The request filed by the opposing counsels was dismissed both by the Enforcement Judge and the Case Management Judge of the Court of Appeals of Lyon.
Adopted by the Parliament on November 8, 2016, the “Sapin II Law” is primarily designed to strengthen the French anti-corruption arsenal and introduces new measures to prevent and penalize corruption.
This Law also brings a number of changes to the legislation governing business relationships between economic operators, including with respect to practices that restrict competition, so-called “single commercial agreements” and payment terms.
In our October 2016 e-newsletter, we addressed forfait working time arrangements, an important element of the so-called “Work Law” of August 8, 2016 . This month, we will focus on an even more sensitive issue raised by said Law: Dismissals on economic grounds.
It is clear that through successive reforms, the French legislator, navigating by sight on troubled waters and finding himself in the middle of a power game between trade-unions and employers’ federations, has been trying to reach his goal to make French labor and employment law more secure while maintaining focus on employment protection and growth. In this spirit, the Work Law attempts to make dismissals on economic grounds more secure but, after so many compromises, it does not really recast the existing set of rules and even create additional uncertainties. As such, it seems that unfortunately the hopeful resolution to build a secured framework adapted to economic and financial constraints has not been yet fulfilled.
Law n°2011-103 of January 27, 2011 on balanced representation of men and women on boards of directors and supervisory boards and on gender equality in the workplace, also known as the “Copé-Zimmermann” Law, provides for the phased introduction of a greater gender diversity in boards of directors of large French companies.
The last stage of implementation of this Law will start on January 1, 2017. This provides an opportunity to make a status report on this legislation that has already inspired many other countries.
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