In the present case, an employee sought payment of the lump-sum indemnity for undeclared work based on facts that occurred prior to the automatic transfer of his employment contract. The Court of Appeal held that the claims were time-barred and, as such, could not be borne by the transferee.

In a decision dated 28 January 2026 (no. 24-18.999), the Social Chamber of the French Supreme Court (Cour de cassation) overturned the lower court’s ruling. It reiterated that the lump-sum indemnity for undeclared work is payable only upon termination of the employment contract. Consequently, the action for payment, which is subject to the two-year limitation period under Article L.1471-1 of the French Labour Code, runs from the date of termination of the contract and not from the date on which the unlawful acts were committed. Therefore, where the employment contract has been transferred and subsequently terminated by the new employer, the employee may bring a claim against the latter to obtain payment of the indemnity, even if the acts of undeclared work are attributable to the former employer and predate the transfer.

This case law highlights the importance for transferees of anticipating, during acquisition due diligence, the social risk associated with situations of undeclared work, which may materialise several years after the facts occurred.

Link to the decision: https://lnkd.in/ehcA76pc

The employee expressly refused the increase in the number of days worked compared to his initial individual agreement. However, the employer considered that the employee's working hours were now based on the APC agreement and no longer on his contract, so that the APC agreement was binding on him with or without his agreement.

The employee brought the case before the labour court to seek the judicial termination of his employment contract on the grounds of fault on the part of the employer, who had imposed a change to his employment contract.

The Court of Cassation first pointed out that an annual fixed-rate agreement in days must specify the number of days worked. It concluded that any change in the number of days worked constitutes a change in the employment contract, which cannot be imposed unilaterally by the employer without the express consent of the employee.

Consequently, the employee could legitimately refuse to apply the APC, insofar as it increased the number of days in his annual fixed rate.

Link to the judgment: https://lnkd.in/ePakNyeP

Learn more about the UIA https://www.uianet.org/

As a key new institution in the European patent landscape, the PMAC will play a central role in promoting efficient, confidential and balanced solutions for the resolution of disputes relating to European and Unitary Patents.

This accreditation, granted for a five-year term, reflects her recognised experience in alternative dispute resolution, as well as her long-standing commitment to mediation.

The only condition for granting a meal voucher to a teleworking employee is that the meal must be included in the employee's daily schedule. This decision puts an end to several years of legal uncertainty and confirms the position of the URSSAF.

This clarification comes at a time of changing teleworking policies. For several months now, large companies—Société Générale, JCDecaux, Iliad—have chosen to reduce the number of teleworking days, citing the need to strengthen cohesion, corporate culture, and informal interactions.

In two decisions dated October 1, 2025 (Nos. 23-17.765 and 24-14.997), the Court of Cassation specified that allowances corresponding to reimbursement of professional expenses do not have to be maintained as remuneration for delegation hours, since the employee representative did not have to bear such expenses.

1. In the first case, a postman, who held several positions, claimed payment of a meal allowance for his delegation hours. This allowance was intended to compensate for meal expenses incurred before his round, due to the constraints of his position.
2. The second case concerned an annual bonus and on-call and continuous service allowances provided for in a company agreement, compensating for specific constraints of the job.

The Court specifically ruled that “while a staff representative or union representative cannot be deprived, due to the exercise of their mandates, of the payment of an allowance compensating for a particular constraint of their job, which constitutes a supplement to their salary, they cannot, on the other hand, claim payment of sums corresponding to the reimbursement of professional expenses that they have not incurred.”

On the other hand, the Court also points out that an employee holding office cannot be deprived, because of the exercise of his office, of a social benefit attached to his job or compensating for a constraint inherent in his job. Thus, the suspension of the active service rate after four years in office constitutes prohibited discrimination, as it penalizes the employee because of his representative activity.

This European regulation mainly contains provisions aimed at encouraging the circulation of data (personal or otherwise) generated by Internet of Things (IoT) devices. Another section of the Regulation introduces new obligations for cloud service providers (SaaS, PaaS and IaaS).

The Data Act aims to simplify and secure the transition to a data processing service provider or on-site ICT infrastructure.
From that date onwards, contracts concluded by providers of these services (including terms and conditions) must comply with this text.

Under the Data Act, cloud service providers (including SaaS software publishers) must remove all 'pre-commercial, commercial, technical, contractual and organisational barriers that hinder customers' from their contracts, in order to facilitate termination, change of provider or data transfer.

The customer's rights and the provider's obligations in the event of termination of the contract must be clearly stated in writing.
Specific clauses must detail the steps the provider will take to organise and facilitate the customer's exit strategy, ensure the security and integrity of their data, and guarantee its transfer to a new provider or internally within the defined notice period.

The Data Act also provides for the phasing out of supplier switching fees.

From 12 January 2027 onwards, suppliers will no longer be permitted to charge their customers for the switching process (transitional provisions are planned until this date).

Penalties: Each Member State must establish a system of 'effective, proportionate and dissuasive' penalties for non-compliance and designate a national supervisory authority.

Note: the SREN law of 21 May 2024 in France anticipated this issue and already provides provisions governing the costs of switching providers and data transfers. ARCEP has been designated as the supervisory authority responsible for enforcing the SREN law provisions.

Questions about the Data Act and its implications? Our IP/IT lawyers are at your disposal.

The Court of Cassation's decision, which has shaken the business world, has provoked diametrically opposed reactions, depending on whether you side with the unions or the employers.

Read the interview with Amélie d'Heilly in Le Point magazine.

Three major changes are expected:

Change in the sectors of activity covered by the scheme

Six new sectors of activity are added to the seven currently covered:

• manufacture of food, beverages and tobacco products;
• water supply, sewerage, waste management and remediation activities;
• other specialized, scientific and technical activities;
• transportation and storage;
• accommodation and food services;
• manufacture of rubber and plastic products and other non-metallic mineral products.

Change to the list of contract terminations taken into account

Only employment contract terminations of less than three months will be taken into account.

In addition, the amendment provides for new cases of exclusion from the scheme. The following situations will no longer be taken into account when calculating the separation rate:

• the end of seasonal contracts;
• the end of employment contracts resulting from dismissal for non-professional reasons;
• the end of employment contracts resulting from dismissal for serious misconduct or gross negligence.

Refined sectoral comparison grid between companies

Currently, the adjusted rate is calculated at the level of an entire sector of activity. From March 1, 2026, employers will be compared at a more refined level within the same sector of activity using a subcategory of the NAF classification (another level of granularity in the nomenclature).

French Article available here 

Article available here 

"The swift and efficient recovery of outstanding debts over which no legal controversy exists is of paramount importance for economic operators in the European Union, as late payments constitute a major reason for insolvency threatening the survival of businesses, particularly small and medium-sized enterprises, and resulting in numerous job losses[1]."

This observation, made nearly twenty years ago, prompted the European legislator to provide creditors of the Member States with instruments to facilitate the recovery within the European Union of uncontested pecuniary claims that are due and payable.

From this concern emerged Regulation (EC) No 1896/2006 of 12 December 2006 creating a European order for payment procedure (the "EPO Regulation"), which entered into force on 12 December 2008, establishing a simplified, uniform, and swift procedure enabling creditors to recover their claims throughout the EU[2], while ensuring reduced processing times and lower costs associated with cross-border procedures.

Like the European Account Preservation Order (EAPO)[3], the European Order for Payment (EPO) aims to establish a harmonized procedural framework for cross-border debt recovery.

The purpose of the EPO Regulation[4] is twofold, as it aims to:

• On the one hand, simplify, speed up, and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims by establishing a European order for payment procedure; and

• On the other hand, permit the free circulation of European orders for payment throughout all Member States by laying down minimum standards, compliance with which renders unnecessary any intermediate proceedings in the Member State of enforcement prior to recognition and enforcement.

The purpose of this article is to present the legal framework and regime of the EPO, which, after almost 20 years, remains a relatively unknown and underused cross-border debt recovery instrument, available to European creditors.

Scope and Application

The EPO applies in civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal.

However, the Regulation excludes certain areas such as revenue, customs, or administrative matters, liability of the State for acts and omissions in the exercise of State authority, matrimonial property regimes, bankruptcy, social security, or claims arising from non-contractual obligations, unless they have been the subject of an agreement between the parties or an admission of debt or they relate to liquidated debts arising from the joint ownership of property[5].

The Regulation applies only in the context of a "cross-border case", defined as one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised of the EPO application[6].

The EPO is designed as an additional and optional means for the creditor, who remains free to use any other procedure to obtain an equivalent measure under national law[7].

Jurisdiction

Jurisdiction to issue an EPO is determined by Article 6 of the Regulation, which establishes the principle that jurisdiction is determined in accordance with the relevant rules of Community law, in particular Regulation (EU) No 1215/2012 (Brussels I bis Regulation).

By way of exception, if the defendant is a consumer, jurisdiction lies solely with the courts of the Member State where the defendant is domiciled[8].

In parallel, it is up to each State to determine which court has jurisdiction within its territory.

Claims Eligible for an EPO

To be eligible for an EPO, a claim must be both:

• Pecuniary, liquidated, and due at the date on which the application for the order is lodged: in other words, the Regulation does not apply to obligations to act or refrain from acting; and

• Uncontested by the debtor.

It should be noted, however, that the Regulation does not set a ceiling on the amount of the claim that may be the subject of an EPO, which may therefore be substantial.

Procedure

The application for an EPO is lodged by the creditor with the competent court by means of a unilateral and non-adversarial application (ex parte), using a standard form (set out in the Annex to the Regulation)[9].

Content of the Application

The application must contain a number of elements to precisely identify the claim and enable the defendant, if necessary, to oppose it. The following must therefore be specified[10]:

a) The names and addresses of the parties, and where applicable their representatives, as well as the court to which the application is made;

b) The amount of the claim, including the principal and, where applicable, interest, contractual penalties, and costs;

c) If interest on the claim is claimed, the interest rate and the period of time for which that interest is claimed, unless statutory interest is automatically added to the principal under the law of the Member State of origin;

d) The cause of the action, including a description of the circumstances invoked as the basis of the claim and, where applicable, the interest demanded;

e) A description of the evidence supporting the claim. However, the Regulation does not require the provision of the evidence of the claim itself, but only a description of that evidence.

f) The grounds for jurisdiction; and

g) The cross-border nature of the dispute.

Examination of the Application

To issue an EPO, the court examines the application "as soon as possible."[11]

The court verifies, on the basis of the information provided by the creditor in the application, that all the conditions laid down in the Regulation are met : i.e., cross-border dispute; pecuniary, liquidated, and due claim, civil or commercial; jurisdiction of the court seised, correctly completed form, etc[12].

If the aforementioned conditions are not all met, but the application is not manifestly unfounded or inadmissible either, the court may give the applicant the opportunity to rectify or complete the application, within a time limit set by the court[13].

The court may also make a proposal to amend the application if the requirements are met for only part of the claim[14]. In this case:

• If the claimant accepts the court's proposal, the EPO is issued and the procedure continues, but only for that part of the claim accepted by the claimant [15].

• On the other hand, if the claimant fails to send his reply within the time limit specified by the court or refuses the court’s proposal, the court shall reject the application for a EPO in its entirety[16].

If the conditions are met, the court issues the EPO "as soon as possible and normally within 30 days of the lodging of the application[17]" (excluding the time necessary to complete, rectify, or amend the application).

The court will, however, be required to reject the application in four cases[18]:

• If the application does not meet the required conditions.

• If the application is clearly unfounded.

• If the applicant has not responded to a request for additional information or rectification within the time limit set by the court.

• If the applicant has not responded to the court’s proposal for modification within the time limit set by the court or has rejected it.

No right of appeal lies against the decision rejecting the application[19].

However, the creditor will have the possibility to submit a new EPO application or to opt for any other procedure provided for by the law of a Member State[20].

Service of the EPO

To safeguard the rights of the defendant, the EPO must be served or notified in accordance with the national law of the Member State where service or notification is to be done.

The EPO is transmitted directly and as soon as possible between the entities of origin and the entities required, in one of the modes provided for by the Service Regulation[21], i.e., by means of a decentralized, secure, and reliable computer system.

Once in the required territory, the Regulation defines the possible methods of notification of the EPO, depending on whether it is accompanied, or not, by proof of receipt by the defendant.

Regarding the methods of service or notification with proof of receipt by the defendant[22], their use ensures that the defendant has knowledge of the document, or has refused it.

Regarding the methods of service or notification without proof of receipt by the defendant[23], to compensate for the lack of guarantee of actual receipt of the document by its addressee, the European legislator has provided an additional condition: their use is only possible if the defendant's address is certain.

In either case, service or notification may also be made to a representative of the defendant[24].

Opposition to the EPO

If the defendant disputes the debt claimed by the applicant, the defendant may lodge a statement of opposition to the EPO with the court that issued it[25], as long as the order is not yet enforceable, i.e., within a period of 30 days from its service or notification[26].

The debtor is not required to specify the reasons for the opposition; the debtor only needs to indicate that the claim is disputed[27].

The opposition is lodged using the means of communication accepted by the Member State of origin of the EPO (e.g., paper or electronic means)[28]. In France, for example, the opposition is lodged with the registry of the French court that issued the EPO, either by declaration against receipt or by registered letter[29].

The opposition has the effect of continuing the procedure before the competent courts of the Member State of origin of the EPO, in accordance with the rules of ordinary civil procedure[30].

However, if the applicant does not wish to risk incurring costs in the context of an ordinary procedure, the applicant may request, in the context of the initial EPO application, that in the event of opposition, the procedure is not automatically continued[31].

Review of the EPO

Once the 30-day period has expired without any opposition being lodged, the EPO becomes, in principle, final.

The European legislator has nevertheless provided for three exceptional cases in which the defendant, who has not been able to oppose the EPO within the prescribed period, may request a review before the competent court of the Member State of origin[32]:

• First case: if the EPO was notified without proof of its receipt by the defendant and within a period too short to enable the defendant to arrange for his defence, without any fault on his part[33].

• Second case: if the defendant was prevented from objecting to the claim by reason of force majeure or due to extraordinary circumstances, again without any fault on the defendant's part[34].

• Third case: if it is clear that the payment order was wrongly issued, having regard to the requirements set out in the Regulation or due to other exceptional circumstances[35].

In the event that the court rejects the defendant's request for review, the European order for payment remains valid and can therefore be enforced.

On the other hand, if the court considers that the review is justified, the European order for payment is null and void[36].

Enforcement

Unless the defendant opposes, the court that issued the EPO declares it enforceable "without delay[37]" after verifying the date on which the EPO was served or notified.

The court then sends the enforceable EPO to the applicant.

An EPO that has become enforceable in the Member State of origin is recognized and enforced in all other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition. In other words, the enforcement of the EPO in another Member State does not require an exequatur[38].

Under no circumstances may the EPO be reviewed as to its substance in the Member State of enforcement[39].

As a last resort, the defendant may request a refusal of enforcement of the EPO from the competent court in the Member State of enforcement in two situations:

• First situation: If the EPO is irreconcilable with an earlier decision or order previously issued in any Member State or third country, provided that the following three conditions are met: 

  1. The earlier decision or order was issued in a dispute concerning the same cause of action between the same parties, and

  2. The earlier decision or order fulfills the conditions necessary for its recognition in the Member State of enforcement, and

  3. The irreconcilability could not have been raised as an objection in the court proceedings in the Member State of origin.

• Second situation: if the defendant has already paid the claimant the amount awarded in the EPO.

Finally, the Regulation provides for the possibility of suspending or limiting the EPO in the event that the defendant has applied for a review in accordance with Article 20[40]. In this case, the defendant may request the competent court in the Member State to either:

• limit the enforcement procedure to protective measures, or

• make enforcement subject to the provision of security as determined by the court, or

• in exceptional circumstances, stay the enforcement proceedings.

An EPO which has become enforceable shall be enforced under the same conditions as an enforceable decision issued in the Member State of enforcement[41].

***

_{[1] EPO Regulation – Recital 6.}

_{[2] Except for Denmark and – prior to Brexit – the United Kingdom.}

_{[3] See B.Dors, Revisiting Cross-Border Debt Recovery Tools (Part 1): The European Account Preservation Order (EAPO): https://www.advant-altana.com/en/news/revisiting-cross-border-debt-recovery-tools-part-1-the-european-account-preservation-order}

_{[4] EPO Regulation – Article 1.}

_{[5] EPO Regulation – Article 2.}

_{[6] EPO Regulation – Article 3.}

_{[7] EPO Regulation – Recital 10.}

_{[8] EPO Regulation – Article 6 (2).}

_{[9] EPO Regulation – Article 7.}

_{[10] EPO Regulation – Article 7 (2).}

_{[11] EPO Regulation – Article 8.}

_{[12] EPO Regulation – Article 8.}

_{[13] EPO Regulation – Article 9.}

_{[14] EPO Regulation – Article 10(1).}

_{[15] EPO Regulation – Article 10(2).}

_{[16] EPO Regulation – Article 10(3).}

_{[17] EPO Regulation – Article 12(1).}

_{[18] EPO Regulation – Article 11.}

_{[19] EPO Regulation – Article 11 (2).}

_{[20] EPO Regulation – Article 11 (3).}

_{[21] Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (recast)}

_{[22] EPO Regulation – Article 13.}

_{[23] EPO Regulation – Article 14.}

_{[24] EPO Regulation – Article 15.}

_{[25] EPO Regulation – Article 16 (1).}

_{[26] EPO Regulation – Article 16 (2).}

_{[27] EPO Regulation – Article 16 (3).}

_{[28] EPO Regulation – Article 16 (4).}

_{[29] French Code of Civil Procedure – Article 1424-8.}

_{[30] EPO Regulation – Article 17.}

_{[31] EPO Regulation – Article 17.}

_{[32] EPO Regulation – Article 20.}

_{[33] EPO Regulation – Article 20 (1.a).}

_{[34] EPO Regulation – Article 20 (1.b).}

_{[35] EPO Regulation – Article 20(2).}

_{[36]EPO Regulation – Article 20(3).}

_{[37]EPO Regulation – Article 18.}

_{[38]EPO Regulation – Article 19.}

_{[39]EPO Regulation – Article 22.}

_{[40] EPO Regulation – Article 23.}

_{[41]EPO Regulation – Article 21.}

In times of geopolitical and economic uncertainty, which give rise to a constantly increasing number of cross-border disputes, it is more than ever crucial that European creditors can rely on clear, simple, and harmonized tools for recovering their claims across all Member states. 

One of these tools is the European Account Preservation Order (EAPO), which aims to facilitate the seizure of funds held in bank accounts located in the EU, thereby securing claims in civil and commercial matters. 

Despite its potential to streamline cross-border enforcement and to foster a more integrated European judicial system, the EAPO remains relatively unknown and underutilized more than a decade after its adoption. 

This article delves into the legal framework and procedural intricacies of this underrated tool, which could prove more useful to international litigators.

Background 

The EAPO was designed by the EU legislator to address the challenges posed by the fragmented nature of national procedures for obtaining protective measures, such as account preservation orders. 

Indeed, prior to its introduction, creditors faced significant hurdles in securing claims across borders, as national procedures varied widely in terms of conditions and efficiency. 

These efforts culminated in the adoption of Regulation 655/2014 on May 15, 2014 (the “EAPO Regulation”)^[1], effective since January 2017, which established a uniform procedure for the seizure of bank accounts in cross-border cases in the various member states of the European Union, except for Denmark.

Scope and Application

The EAPO applies to pecuniary claims in civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal concerned. 

The Regulation defines a "cross-border case" as one where the bank account to be preserved is maintained in a Member State different from that of the court handling the application or the creditor's domicile^[2].

However, the Regulation excludes certain areas such as rights in property arising out of a matrimonial relationship, wills and successions, insolvency proceedings, social security or arbitration^[3].

It should be noted that the EAPO is designed to be an additional and optional means for the creditor, who remains free to make use of any other procedure for obtaining an equivalent measure under national law. 

Jurisdiction

Jurisdiction to issue the EAPO is determined by Article 6 of the regulation, which distinguishes various situations: 

• If the creditor has not yet obtained a judgment, court settlement or authentic instrument, jurisdiction lies with the courts of the Member State which have jurisdiction to rule on the substance of the matter^[4]. 

• If the creditor has already obtained a judgment or court settlement, jurisdiction to issue an EAPO for the claim specified in the judgment or court settlement shall lie with the courts of the Member State in which the judgment was issued or the court settlement was approved or concluded^[5]. 

• For authentic instruments, jurisdiction lies with the courts designated by the law of the Member State where the instrument was drawn up^[6].

• If the debtor is a consumer, special protection is provided, as jurisdiction lies exclusively with the courts of the Member State where the consumer is domiciled^[7].

Conditions for issuing the EAPO

The EAPO procedure begins with the creditor lodging an ex parte application with the competent court. 

The conditions for issuing the EAPO vary, depending on whether the creditor has already obtained a judgment, court settlement or authentic instrument.

In any case, the creditor must submit sufficient evidence to satisfy the court that there is an urgent need for an EAPO, because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult^[8].

If the creditor has not yet obtained a judgment, he must also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor^[9].

The application must include detailed information about the creditor, debtor, and the bank account(s) to be preserved, as well as evidence supporting the claim and the need for the preservation order^[10]. 

The court assesses the application based on the evidence provided and may request additional information, if necessary^[11].

Where the creditor has applied for an EAPO before initiating proceedings on the substance of the matter, he must initiate such proceedings and provide proof of such initiation to the court within 30 days of the date on which he lodged the application or within 14 days of the date of the issue of the Order, whichever date is the later^[12].

Ex Parte Procedure

To ensure the element of surprise, which is crucial for the effectiveness of the EAPO, the debtor is not notified of the application or heard prior to the issuance of the order^[13]. 

This ex parte nature of the procedure is balanced by safeguards to prevent abuse (see below), including the requirement for the creditor to provide security to compensate the debtor for any potential damage. The court has discretion in determining the amount and form of security, which may be waived in exceptional circumstances^[14].

Procedure for the obtaining of account information

The EAPO Regulation allows the creditor, in certain circumstances, to obtain the information necessary to identify the debtor's bank accounts.

Where the creditor has obtained in a Member State an enforceable judgment, and has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the EAPO is lodged to order that the information authority of the Member State of enforcement obtain the information necessary to allow the debtor’s account(s) to be identified^[15]. 

For creditors who have a title which is not enforceable yet, the conditions are stricter. They must indeed demonstrate (i) that the amount to be preserved is substantial and (ii) that there is an urgent need for the account information because there is a risk that, without such information, the subsequent enforcement of the creditor’s claim against the debtor is likely to be jeopardized and that this could consequently lead to a substantial deterioration of the creditor’s financial situation. 

This distinction ensures that the procedure is not misused for speculative purposes.

Implementation and Enforcement

Once issued, the EAPO is recognized and enforceable in all Member States without the need for a declaration of enforceability^[16]. It shall be enforced in accordance with the procedures applicable to the enforcement of equivalent national orders in the Member State of enforcement^[17].

The bank must implement the order promptly, either by blocking the preserved amount or transferring it to a dedicated account^[18]. The bank is also required to declare the extent to which funds have been preserved^[19]. Any liability of the bank for failure to comply with its obligations under this Regulation shall be governed by the law of the Member State of enforcement^[20].

Once issued, the EAPO needs to be served on the debtor, using one of the various methods of service or notification set forth at Article 28 of the Regulation, within a short timeframe (within three working days following the day of receipt of the declaration made by the bank or by the entity responsible for enforcement indicating that the amounts have been subject to an attachment).

The EAPO has the same rank (if any) as an equivalent national order in the Member State of enforcement^[21].

Remedies and Safeguards

The EAPO Regulation includes several safeguards to protect the rights of the debtor, who can challenge both the order itself and/or the enforcement of the order.

The debtor can challenge the order on various grounds, set forth in Article 33 et seq., such as: non-compliance with the conditions or requirements set out in the Regulation, failure to serve the order within the prescribed timeframe, preserved amounts exceeding the amount of the order not released in due course, claim paid in full or in part, judgment on the substance dismissing the claim, etc. 

The enforcement of the EAPO may also be challenged, in accordance with the grounds set forth in Article 34 (e.g., if the account preserved is excluded from the scope of the Regulation, or is enforcement of the judgment which the creditor was seeking to secure by means of the EAPO has been refused in the Member State of enforcement or suspended in the Member State of origin).

Additionally, the debtor can request the release of preserved funds by providing security or an alternative assurance^[22].

The Regulation also provides for the liability of the creditor for any damage caused by the EAPO due to fault, with a presumption of fault in certain cases^[23].

Where the application is directed against the order per se, it is addressed to the competent court of the Member State of origin^[24]. On the other hand, where the appeal is directed against the enforcement of the order, it is addressed to the competent court (or the competent enforcement authority, if any) of the Member State of enforcement^[25].

Although underestimated, the EAPO represents an important step towards the harmonization of cross-border debt recovery between Member States. As the EU evolves, time will tell whether this tool will ultimately live up to the high expectations placed upon it and actually play a central role in promoting a more integrated and expedient legal environment for European creditors and debtors alike.

On 18 September 2024, the Supreme Court of the United Kingdom delivered a landmark ruling in UniCredit Bank GmbH v. RusChemAlliance LLC,¹ illustrating the importance of adopting a global judicial strategy when dealing with international disputes.

This case highlights the use of a procedural tool — the anti-suit injunction — which can prove crucial in preserving the integrity of arbitration, when one of the parties seeks to circumvent the jurisdiction of the arbitral tribunal by initiating parallel judicial proceedings before another jurisdiction.

Paradoxically, it was this UK equitable remedy, which could not be ordered by French courts, that ensured the arbitration could proceed as planned in Paris, by blocking parallel litigation in Russia, that would have conflicted with the arbitration clause.

What is an Anti-Suit Injunction?

An “anti-suit injunction” is an order, given by courts in some common law jurisdictions², to restrain a party from bringing foreign proceedings in breach of an arbitration agreement.

The rationale behind such order is that, without it, the claimant will be deprived of its contractual right to have disputes settled by arbitration, in a situation in which damages would be an inadequate remedy³.

Under English law, an anti-suit injunction may be granted against a foreign litigation if (a) the English forum has a sufficient interest in the matter, (b) the foreign proceeding causes sufficient prejudice to the applicant, and (c) the antisuit injunction would not unjustly deprive the claimant in the foreign court of a legitimate advantage⁴.

Anti-suit injunctions are intended to preclude litigation from proceeding in the foreign court, but are ordered in personam and directed against a party to a litigation (not the foreign court).

Failing to comply with the anti-suit injunction can amount to contempt of court, with serious legal consequences for the offending party. These can include fines, seizure of assets and even imprisonment⁵.

Antisuit injunctions can therefore be powerful tools for compelling compliance with an arbitration agreement.

Summary of the dispute 

In 2021, RusChem, a Russian company entered into two contracts with German companies (together referred to as “the Contractor”) for the construction of LNG plants in Russia. Under these contracts RusChem agreed to pay, in stages, circa. €10 billion, including advance payments of around €2 billion. RusChem made the advance payments to the Contractor. 

Performance of the Contractor’s obligations was guaranteed by bonds payable on demand, issued by UniCredit Bank GmbH, a German bank (hereafter referred to as “the Bank”). 

Each of the contracts contained in these bonds provided that the bond is governed by English law and that all disputes are to be settled by arbitration in Paris, France, under the rules of the International Chamber of Commerce (“ICC”). 

Following Russia’s invasion of Ukraine in February 2022, the European Union imposed sanctions on Russia and on designated Russian legal entities and individuals. Even though RusChem was not on the list of designated entities, in May 2022 the Contractor announced that, because of EU sanctions, it could not continue performing the contracts. 

As a result, RusChem terminated said contracts and requested the return of the advance payments. However, the Contractor, relying again on the EU sanctions, responded that it could not return the advance payments. 

In October 2022 and April 2023 RusChem made demands on the Bank for payment under the bonds. Like the Contractor, the Bank refused to pay, on the ground that payment was prohibited by EU sanctions⁶.

On 5 August 2023, RusChem, relying on article 248.1 of the Russian Arbitrazh Procedural Code, which purports to grant exclusive jurisdiction on Russian “Arbitrazh Courts” over disputes between Russian and foreign persons arising from foreign sanctions, issued proceedings in Russia against the Bank, claiming payment of €448 million under the bonds.

The Bank then applied to said Arbitrazh Court to dismiss RusChem’s claim, on the ground that the parties have agreed that all disputes arising out of the bonds are to be settled by arbitration in Paris under the rules of the ICC. 

Simultaneously, the Bank brought the matter before the London Commercial Court, and applied without notice for an interim injunction prohibiting RusChem from continuing the Russian proceedings until further order of the court, which was granted on 24 August 2023. 

A few days later, RusChem issued an application disputing the English court’s jurisdiction to hear UniCredit’s claim. 

The First instance Judge held that the English court did not have jurisdiction to hear the claim; but he nevertheless continued the interim anti-suit injunction until the process of appeal from his order had been exhausted.

This ruling was later overturned by the Court of Appeal which, on 29 January 2024, granted final relief including a mandatory injunction requiring RusChem to discontinue the Russian proceedings. 

RusChem was granted permission to appeal from the decision of the Court of Appeal, but only on the jurisdiction issue. 

On 23 April 2024, the UK Supreme Court unanimously dismissed the appeal, but the reasons for this dismissal were only formulated in the judgment issued on 18 September 2024.

The Jurisdiction Debate

A central issue in this case was the question of jurisdiction. RusChem disputed the competence of the UK courts, arguing that the arbitration clause specifying Paris as the seat of arbitration meant that the UK courts had no authority to issue an anti-suit injunction. 

The Supreme Court first observed that, in this matter, arbitration proceedings had not yet been initiated or proposed, which could have otherwise led to a different solution.⁷

According to RusChem, by choosing Paris as the seat of arbitration, the parties have chosen to be subject to the supervisory jurisdiction of the French courts, and it is therefore for the French courts to determine whether there was a breach of the arbitration agreements in the bonds and, if so, what relief to grant.⁸

The UK Supreme Court was not convinced by RusChem’s position. On the contrary, it held that exercise of coercive powers to enforce an arbitration agreement “is not a supervisory function which ought therefore to be left to the courts of the seat ⁹.” Indeed, “The role of the courts of the seat of arbitration is to supervise the arbitration itself. They are not the only courts that can prevent a party breaking his contract to arbitrate ¹⁰.”

This lead the UK Supreme Court to the conclusion that the mere fact that the parties have chosen to be subject to the supervisory jurisdiction of the French courts in relation to any arbitration which may in future be brought, “is not itself a reason why an English court cannot or should not uphold the parties’ bargain by restraining a breach of the arbitration agreement.¹¹” 

The Supreme Court was comforted in its opinion by observing that, in the matter at hand, the French courts would have been powerless to prevent RusChem from initiating legal proceedings in Russia: “[t]here is in fact no possibility that the French courts could be seized of the matter. Not only, as is agreed, do the French courts have no power to grant anti-suit injunctions, but uncontradicted evidence which was before the judge shows that the French courts would not have jurisdiction to determine a claim of any kind brought by UniCredit complaining of a breach by RusChem of the arbitration agreements in the bonds.”¹²

In addition, the Supreme Court ascertained that there would be no breach of comity as regards the French court, as France too is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). As such, French courts would have no objection to an English court taking steps to enforce the arbitration agreement in this case, even through the use of an anti-suit injunction by the English court.¹³

Brexit may have increased UK courts’ will to grant anti-suit injunctions 

The UniCredit v. RusChemAlliance decision is significant because, for the first time, the UK Supreme Court ruled that English courts could intervene to prevent actions in other jurisdictions that conflicted with an arbitration clause, even when the seat of the arbitration is located outside of England and Wales. 

This ruling highlights the will of the UK courts to extend their power to grant anti-suit injunctions, especially as, since Brexit, they are no longer restricted by ECJ case law which still largely prohibits the use of such procedural tool between EU Member States, considering that: “It is incompatible with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement”¹⁴.

Over time, the availability of anti-suit injunctions in presence of parallel litigation may prove to be a serious competitive advantage for UK courts in the hard-fought battle for attracting international disputes. Food for thought for EU jurisdictions?

[1] UniCredit Bank GmbH v. RusChem Alliance LLC [2024] UKSC 30.

[2] Most notably, the Courts of England and Wales (see e.g. Pena CopperMines Ltd. V. Rio Tinto Co.Ltd., (1911) 105 LT 846;  The Angelic Grace [1995] 1 Lloyd’s Rep. 87 (CA); Starlight Shipping Co. v Tai Ping Ins. Co. Ltd [2008] 1 Lloyd’s Rep. 230 (QB)) but also, although more sparingly, in the United States (see e.g., Paramedics Electro v.GE Medical Systems, 369 F. 3d 645 (2^nd Cir. 2004); Karaha Bodas Co. v. Perusahaan Pertambangan, 335 F.3d 357 (5^th Cir. 2003)) or in Singapore (see e.g. WSG Nimbus Pte Ltd. V. Board of Control for cricket in Sri Lanka [2002] 3 Sing. L.R. 603, 637).

[3] Aggeliki Charis Cia Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87, 96.

[4] G. Born, International Arbitration: Law and Practice (2012), 64.

[5] See e.g. Dell Emerging Markets (EMEA) Ltd v Systems Equipment Services SARL (2020) [2020] EWHC 1384 (Comm), the Court handed down sentences of between 9 and 18 months to the directors of one of Dell’s Lebanese distributors for procuring breaches of anti-suit injunctions.

[6] Article 11 of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine.

[7] Ibid., §98.

[8] Ibid., §94.

[9] Ibid., §98.

[10] Quoting from IPOC International Growth Fund Ltd v OAO CT-Mobile LV Finance Group [2007] CA (Bda) 2 Civ; [2007] Bda LR 43, a decision of the Court of Appeal for Bermuda. 

[11] UniCredit Bank GmbH v. RusChem Alliance LLC [2024] UKSC 30, §100.

[12] Ibid. § 101.

[13] Ibid. § 80.

[14] ECJ 10 February 2009 (C-185/07), Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc (“Front Comor”).

Read the full Q&A. 

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This press release is part of the Authority's desire to encourage companies to discuss matters with it as part of an 'open door' policy. However, companies are reminded that, before making such requests, they must use the self-assessment mechanism to determine the competition risk associated with their projects on the basis of French and European decision-making practice and case-law, as well as the legislation in force.

Read the article by Marie Hindré, Margaux Brunet and Delphine Laget on the Concurrences website.

THE BIBLE OF MARKET DEFINITION

While the revised Market Definition Notice may convey the impression of being a modest administrative document by the European Commission, it is in fact the bible of market definition across Europe. The original Notice had been a point of reference for authorities and courts both at the EU and at the national level since its publication in 1997. The revised Notice is the result of a close cooperation between the Commission and national competition authorities in the EU, and reflects input received from further stakeholders.

EVOLUTION, NOT REVOLUTION

It is therefore no surprise that the French Competition Authority used the revised Market Definition Notice less than three months after its publication when issuing a cartel fine decision against eleven companies on 21 May 2024. Regarding the pre-cast concrete products at stake, the Authority recalls that the relevant product market comprises all those products that customers regard as interchangeable or substitutable, and that the relevant geographic market comprises the geographic area in which, inter alia, the conditions of competition are sufficiently homogeneous. These basic principles remain largely unchanged in the revised Notice compared to the previous Notice.

PRICE ISN'T EVERYTHING

However, there are also significant changes compared to the previous version. Such a change is the recognition by the Commission of “extra-economic" competition parameters when defining the relevant product market. This is a real innovation as compared to the previous Notice which focused on price to define the market. Under the revised Market Definition Notice, the Commission considers non-price parameters such as the degree of innovation of the product, its quality, the image it conveys or even its sustainability are relevant parameters to define the market. Far from simply clarifying the concepts covered by the previous Notice, the revised Notice also provides additional guidance relating to specific types of markets:

NEW TOOLS FOR NEW MARKETS: PIPELINE PRODUCTS

The Commission notes that innovation and related R&D investment have become a key parameter in many sectors, such as high-tech and pharmaceuticals. To capture new product markets ahead of the marketing stage, the Commission now reserves the right to include “pipeline products” in its competition assessment among a new product market or a pre-existing one. This perception has major consequences, particularly for merger control, where merging companies will have to increasingly consider ongoing development projects as potential substitutes of existing products.

NEW TOOLS FOR NEW MARKETS: MULTI-SIDED PLATFORMS

The revised Market Definition Notice also addresses multi-sided platforms (such as online marketplaces and social media), where demand from one group of users can affect demand from one or more other groups (buyers, advertisers, for example), so-called “indirect network effects”. The revised Notice provides new guidance by explicitly stating that multi-sided markets can be defined either as a whole, thus encompassing the different groups of users concerned, or as separate markets, depending on the facts of the case.
These principles of the revised Notice were used by Advocate General Collins in its opinion of 6 June 2024 when defining the market on which Booking.com is active. In his opinion, he views Booking.com as a provider of online intermediation services to hotels, thereby assuming separate markets for the two sides of the market.

NEW TOOLS FOR NEW MARKETS: ECOSYSTEMS

The Commission also recognizes the specificities of after-markets, bundles and digital ecosystems, where the consumption of a primary product leads to the consumption of a secondary product. According to the revised Market Definition Notice, it is appropriate to define these markets either as a single market encompassing primary and secondary products, or as separate markets (multiple markets or dual markets).

The Commission applied these rules when authorizing the establishment of a joint venture for smart farming products on 25 March 2024. The Commission's investigation revealed significant substitutability between the individual products (displays, receivers etc.) on the one hand and guidance systems on the other hand. Namely, the individual components can be easily assembled to create a combined system, and several integrators are actively engaged in such bundling. The Commission hence assumed a single system market.

NEW MARKET SHARE METRICS

Another key contribution of the revised Market Definition Notice is the possibility explicitly offered by the European Commission to calculate companies' market shares based on metrics other than their sales revenues or sales volumes. From now on, the Commission may also use benchmarks such as the number of suppliers, the number of visits/views/downloads or even R&D expenditures to measure companies' market shares. This additional flexibility is particularly relevant for the digital sector, the pharma sector and nascent markets in general.

CONCLUSION

The revised Notice embraces the societal transformations induced by digitization and the increasing importance of sustainability factors. Furthermore, we can only welcome with satisfaction the Commission's advice on delineating the relevant market in settings such as two-sided markets or product bundles. The first use cases of the revised Notice already show that its innovations are very relevant for the decision-making practice of competition authorities.

However, one point raises concerns for legal certainty: The Commission emphasizes in its revised Notice that it will not be bound by its precedents. This statement raises fears that the Commission may overrule previous market definitions depending on alleged market developments or on the specific competition parameter concerned. As a result, the additional legal certainty that should be provided by a definition of relevant markets becomes dangerously fragile.

Still, the revised Market Definition Notice promises to be a milestone in the evolution of EU competition law over the coming years. It therefore deserves to be reviewed carefully.

Lucie Giret (ADVANT Altana)

Christoph Heinrich (ADVANT Beiten)

Francesco Mazzocchi (ADVANT Nctm)

Congratulations to our 31 lawyers who have been named “Best Lawyers” this year:

• Victoria Aquino (Recognized in Best Lawyers since 2023)
  • Construction Law
• Armand Aviges (Recognized in Best Lawyers since 2020)
  • Biotechnology and Life Sciences Practice
  • Intellectual Property Law
  • Product Liability Litigation
• Julien Balensi (Recognized in Best Lawyers since 2014)
  • Litigation
• Laura Beserman (Recognized in Best Lawyers since 2025)
  • Labor and Employment Law
• Paul Boutron (Recognized in Best Lawyers since 2023)
  • Litigation
• Mickael d’Allende (Recognized in Best Lawyers since 2021)
  • Labor and Employment Law
• Laetitia Daage (Recognized in Best Lawyers since 2025)
  • Criminal Defense
• Jean-Guy de Ruffray (Recognized in Best Lawyers since 2021)
  • Information Technology Law
  • Intellectual Property Law
• Philippe de Saint-Bauzel (Recognized in Best Lawyers since 2021)
  • Tax Law
• Louis des Cars (Recognized in Best Lawyers since 2018)
  • Construction Law
  • Public Law
• Benjamin Dors (Recognized in Best Lawyers since 2024)
  • Criminal Defense
• Caroline Frison-Roche (Recognized in Best Lawyers since 2023)
  • Construction Law
• Gilles Gaillard (Recognized in Best Lawyers since 2020)
  • Corporate Law
  • Insurance Law
  • Mergers and Acquisitions Law
• Lucie Giret (Recognized in Best Lawyers since 2023)
  • Competition / Antitrust Law
• Philippe Goossens (Recognized in Best Lawyers since 2010)
  • Corporate Governance and Compliance Practice
  • Criminal Defense
• Marie Hindré (Recognized in Best Lawyers since 2018)
  • Competition / Antitrust Law
• Michel Jockey (Recognized in Best Lawyers since 2019)
  • Corporate Law
  • Insolvency and Reorganization Law
• Valérie Lafarge-Sarkozy (Recognized in Best Lawyers since 2019)
  • Insurance Law
  • Litigation
  • Product Liability Litigation
• Delphine Lapillonne (Recognized in Best Lawyers since 2023)
  • Product Liability Litigation
• Christophe Lapp (Recognized in Best Lawyers since 2010)
  • Arbitration and Mediation
  • Construction Law
  • Litigation
  • Public Law
  • Real Estate Law
• Pierre Lubet (Recognized in Best Lawyers since 2020)
  • Information Technology Law
  • Intellectual Property Law
  • Privacy and Data Security Law
• Géraldine Malfait (Recognized in Best Lawyers since 2025)
  • Mergers and Acquisitions Law
• Frédéric Manin (Recognized in Best Lawyers since 2020)
  • Competition / Antitrust Law
  • Insurance Law
  • Litigation
• François Muller (Recognized in Best Lawyers since 2013)
  • Arbitration and Mediation
  • Construction Law
  • Public Law
• Bruno Nogueiro (Recognized in Best Lawyers since 2021)
  • Mergers and Acquisitions Law
• Pierre-Marie Ouchet (Recognized in Best Lawyers since 2017
• Real Estate Law
• Camille Raclet (Recognized in Best Lawyers since 2025)
  • Intellectual Property Law
• Mathieu Rambaud (Recognized in Best Lawyers since 2018)
  • Structured Finance Law
• Mana Rassouli (Recognized in Best Lawyers since 2020)
  • Insolvency and Reorganization Law
• Jean-Nicolas Soret (Recognized in Best Lawyers since 2020)
  • Biotechnology and Life Sciences Practice
  • Mergers and Acquisitions Law
• Pierre-Gilles Wogue (Recognized in Best Lawyers since 2020)
  • Insolvency and Reorganization Law

The aim of the transaction is to create a European player with commercial and industrial synergies that will strengthen the competitive position of the new entity while offering a broader and more diversified range of products.

ADVANT Altana advised the sellers, the Jeuland family who founded LUISINA, on this transaction with a team comprising Gilles Gaillard, Alexandra Ferrier and Agnès Millet on the corporate M&A aspects, Philippe de Saint Bauzel and Marie Darcq on the tax aspects, Pierre Lubet on the employment aspects, Marie Hindré on the competition aspects and Jean-Guy de Ruffray and Claire Borgel on the IP/IT aspects.

The aim of the transaction is to offer consumers healthy food accessible to all in supermarkets and hypermarkets.

ADVANT Altana advised Eureden Group on this transaction with a team consisting of Jean-Nicolas Soret, Géraldine Malfait and Christina Crenn on the corporate M&A aspects and Pierre Lubet on the social aspects.

This acquisition will enable Cogne Acciai Speciali, a 70% owned subsidiary of the Taiwanese Waslin Group based in Italy, to consolidate its position in Europe. Mannesmann Stainless Tubes GmbH employs nearly 1,000 people in its subsidiaries and plants in Germany, France, Italy and the United States.

The transaction is subject to the approval of the competition authorities.

Cogne Acciai Speciali was advised on this transaction by a cross-border team consisting of ADVANT Altana, ADVANT Nctm and ADVANT Beiten.

ADVANT Altana advised CAS on the French corporate M&A aspects with Bruno Nogueiro (partner), Arthur Boutemy (counsel) and Théodore Sabot. The ADVANT Altana team also included Marie Hindré (partner) and Delphine Laget on competition and economic law; Mickaël d'Allende (partner), Alexandre Véran and Anissa Froz on employment law; Cécile Ferouelle (partner) and Victor Pouget on real estate and planning; and Jean Guy de Ruffray (partner) and Etienne Nicolet on intellectual property.

In our new publication 'Company Directors Facing Financial Distress: A Cross-Border Perspective', Mana Rassouli, Heinrich Meyer and Fabio Marelli from the ADVANT-wide Restructuring and Insolvency team explore how company directors react to financial distress and risk.

In the publication, the team analyses the issue and wider business / regulatory landscape both from a cross-border perspective (with a focus on France, Germany and Italy) and within the context of the EU's Insolvency Directive.

Download the press release

• Genesis of the French compensation scale

Under French law, if a dismissal is without real and serious cause, the judges may either (i) propose the reinstatement of the employee in the company (very rare in practice), or (ii) allocate to the employee an compensation to be paid by the employer.Ordinances dated September 22, 2017 introduced a scale governing this compensation. This scale, known as the "Barème Macron", provides for minimum and maximum amounts expressed in months of salary, varying according to the employee's seniority and the size of the company.

• Confirmation by the French Supreme Court (“Court of Cassation”) of the legitimacy of the Scale

The question of its validity was quickly raised.Critics of the scale argued that it contradicted the provisions of the article 24 of the European Social Charter and the article 10 of Convention 158 of the International Labour Organization. These texts provide that any unjustified dismissal must be the object of an adequate or appropriate compensation for the prejudice suffered by the employee.In two decisions of May 11, 2022, the Court of Cassation put an end to the divergence of interpretation of the Courts of Appeal by deciding that:

• The provisions of the European Social Charter do not have a direct effect between individuals, so that its invocation before the judge, in the context of a dispute over a dismissal, cannot lead to the exclusion of the application of the scale;

• Article 10 of Convention 158 of the International Labour Organization does have a direct effect, but the scale is consistent with it.

According to these decisions, the provisions of the Labor Code reasonably allow for compensation for the unjustified loss of employment.The Court concludes that, in the event of dismissal without real and serious cause, it is only up to the judge to assess the concrete situation of the employee in order to determine the amount of compensation due between the minimum and maximum amounts determined by the Scale.

• A Scale deemed contrary to the European Social Charter by the European Committee of Social Rights (ECSR)

Believing that this scale does not comply with Article 24 of the European Social Charter ratified by France, insofar as it does not allow for adequate or appropriate compensation for the damage suffered by the employee, in disregard of this text, the unions filed a complaint with the ECSR.In a decision of March 23, 2022 the ECSR ruled in favor of the unions - the Committee considers that the right to adequate compensation or other appropriate remedy within the meaning of Article 24.b of the Charter is not guaranteed by this scale and that, consequently, there is a violation of this articleThe Committee considered that the ceilings resulting from the Ordinance of 2017 "are not high enough to repair the damage suffered by the victim and to be dissuasive for the employer".The Committee also emphasized that "the judge has only a narrow margin of maneuver in examining the individual circumstances of wrongful dismissals."However, this decision is not binding. The Court of Cassation had moreover reminded us in a press release accompanying these decisions that the decisions of the ECSR "will not produce any binding effect".

• An employee who believes he/she has been victim of a discrimination must only "present factual elements suggesting the existence of discrimination" in support of his/ her claim (article L. 1134-1§1 of the Labour Code).

This arrangement is guided by the requirement of equality of arms; each party must be able to present its case and, more specifically, its evidence under equal conditions with the other party.

• In the second step, it will be up to the employer to demonstrate either (i) that the elements invoked by the employee are insufficient to assume that discrimination has occurred, or (ii) that the measure is justified by objective elements unrelated to any discrimination (article L. 1134-1§2 of the Labour Code).
• The judge forms his conviction after having ordered, if necessary, all the measures of inquiry that he considers useful (article L. 1134-1§3 of the Labour Code).

He/ she may therefore also have a role in the proof. The civil judge may also have a role upstream of any referral to the Labour Court. 

1. Notion of “factual elements suggesting the existence of discrimination”

This system of proof does not exempt the alleged victim from having to prove anything. If the employee does not have to prove that there is discrimination per se, he/she must at least present material elements showing that there is a disparity of treatment.As an example, the recruitment of another person for the position for which the employee applied does not constitute an element of fact suggesting the existence of discrimination (Cass. soc., July 3, 2012, no. 11-11.059).All means of proof are admitted. These factual elements can be pay slips, memos, or testimonies, for example.

2. The role of the employer

If the employee provides sufficient evidence, the employer must then justify its decision by objective elements unrelated to any discrimination. In practice, the employer must demonstrate that the employees are not in an identical situation.The alleged difference in treatment must be justified by legitimate reasons, i.e. by criteria of a strictly professional nature.Otherwise, the decision may be considered discriminatory.

3. Investigative measures ordered by the judge: articulation between the evidentiary regime provided for by the Labor Code and the Civil Procedure Code

The Labor Code expressly provides that the judge shall form his opinion after having ordered all the investigative measures she/he deems useful.The French Supreme Court (Court de cassation) considered that the existence of the specific evidentiary mechanism of the Labor Code could not exclude the procedure provided for by article 145 of the Code of Civil Procedure (Cass. soc., sept. 22, 2021, n° 19-26.144 F-B, n° 19-26.145, n° 19-26.146, n° 19-26.147, n° 19-26.148, n° 19-26.149).Under the terms of this article, any person may ask for an order (on request or in summary proceedings) for "legally admissible measures of investigation" "if there is a legitimate reason to preserve or establish, before any trial, proof of facts on which the solution of a dispute may depend".For an employee, it is the possibility to access evidence exclusively held by the company and to evaluate the chances of success of his future action.According to the Supreme Court, it is therefore appropriate to combine the two provisions and an employee cannot be reproached for trying to gather evidence with a view to a future dispute.

• Juridical act setting up this bonus

The bonus must be provided for:

• by company or group collective agreement according to the same terms as a profit-sharing agreement (i.e. for a period of 1 to 5 years in particular) ;
• by unilateral decision of the employer (after prior consultation of the social and economic Committee if it exists).

• Employee beneficiaries

In principle, all employees with an employment contract with the company are eligible.However, the payment of this bonus may be reserved for certain employees in consideration of a maximum level of remuneration. This maximum level of remuneration must be defined in the juridical act.Temporary employees who are seconded to a company that introduces the bonus may also benefit from it. In this case, the temporary work company must be informed of the terms and conditions for the payment of the bonus.

• Amount

The maximum amount of the bonus is not set by law. It can be adjusted according to the employee's wage, classification level, the length of time spent in the company during the previous year (parental leave (maternity, paternity, adoption, education are considered as periods of actual presence), the length of time worked under the contract, or seniority in the company.Nevertheless, the exemption limit is €3,000 per beneficiary and per calendar year.This amount can be increased to €6,000 per beneficiary and per calendar year under certain conditions (for example, if the employer is an association or a foundation recognized as being of public utility or general interest and authorized to receive donations giving rise to a tax deduction).

• Payment

The bonus may be paid in one or more instalments, up to a maximum of once per quarter during a calendar year.This bonus cannot replace any element of remuneration paid by the employer. It may not replace any increase in remuneration or bonuses provided for by a wage agreement, by the employment contract or by the practices in force in the company

• Exemptions

The tax and social benefits vary depending on when the bonus is paid.Bonuses paid until December 31, 2023 are exempt from:

• (i) All employee and employer social security charges, regardless of the employee's level of remuneration;
• (ii) the social contributions (CSG and CRDS) for employees who received remuneration of less than three times the annual value of the SMIC during the 12 months preceding the payment (i.e. €47,829.60) and (iii) the fixed social security contribution (“forfait social”) in companies with more than 250 employees for employees who received remuneration of less than three times the annual value of the French minimum wage (i.e. €47.829.60);
• (iii) social security contributions in companies with more than 250 employees for employees having received a remuneration lower than three times the annual value of the French minimum wage (i.e. 47,829.60) during the 12 months preceding the payment.

Bonuses paid from January 1, 2024 will only be exempt from all employee and employer social security contributions, regardless of the employee's level of remuneration and the date of payment. However, bonuses will be subject to the CSG and CRDS, income tax and social security contributions (“forfait social”) – if applicable.

1. Expansion of the information to be given to the employee on hiring

The 1991 Directive provided for the communication of essential elements of the employment relationship such as the identity of the parties, the place of work, the job title, grade, quality or category of employment, the hiring date, the duration of paid leave, the length of notice period, the remuneration and the mention of applicable collective bargaining agreements.The new Directive adds additional items of information to this list, some of which are also included in the list.This now also includes information in the following areas (Article 4):

• Working hours;

The information to be provided differs depending on whether the working time is predictable or not. If the working time is predictable, this will be the normal daily or weekly working time, but also the arrangements for overtime and its payment. If the duration of the work is unpredictable, this will include information on the reference hours and days during which the worker may be called upon to work; the minimum notice period to which the worker is entitled before the start of a task; the time limit for cancelling the task, etc.;

• In case of temporary work, the identity of the client companies, where known and as soon as it is known;
• The trial period (duration and conditions);
• The right to training granted by the employer;
• The full procedure of termination of employment contract. On this point, the Directive specifies that this information includes the formal requirements and the periods of notice, or, if the length of the periods of notice cannot be indicated at the time the information is given, the way in which these periods of notice are determined.
• The identity of social security bodies collecting social security contributions and social protection provided by the employer (including coverage by supplementary schemes).

2. New modalities related to the communication of these information

The Directive specifies that the support of transmission of this information is on paper. If the employer can communicate this information in electronic form, it is only on the condition that (i) the employee can access it, (ii) the information can be recorded and printed. In this case, too, the employer should keep a record of the transmission and receipt (Article 3).It should be noted that, under French law, most of this information is already mentioned in certain documents such as the employment contract or the pay slip.The Directive also specifies the time limit for transmission depending on the information provided (Article 5):

• at the latest within seven calendar days from the first day of work for the following information: identity of the parties, place of work, title, grade, quality or category of employment, date of hiring, remuneration, duration of work, temporary employment contract, trial period;
• at the latest within one month from the first effective day of work for other information.

In addition, any change in any of the information provided to the worker must also be communicated to him/her as soon as possible and at the latest on the date on which it takes effect.***The Directive provided for a period of three years for Member States to take the necessary measures to comply with its provisions. As French legislation is essentially in line with the Directive, no transposition law has been passed.

• Construction
• Industry focus: Healthcare and life sciences
• Insurance
• Intellectual property: Trademarks and designs
• Data privacy and data protection
• Dispute resolution: Commercial litigation
• Dispute resolution: White-collar crime
• Employment
• EU, competition and distribution
• Intellectual property: Copyright
• Industry focus: IT and internet
• Insolvency
• Intellectual property: Patents
• Mergers and acquisitions
• Real estate (Firm to watch)

We are thankful to our clients for their trust and congratulations to the teams for their commitment and results!➡ See all rankings: Here

1. Trade unions and employers invited to discuss ecological transition in the context of negotiations on the management of jobs and career paths (“Gestion des emplois et des parcours professionnels” or “GEPP”)

In companies with one or more trade union sections, the employer is required to negotiate periodically on certain topics. In companies or groups of companies with at least 300 employees or with a community dimension (and at least one establishment or company with at least 150 employees in France), the employer must enter into negotiations on the management of jobs and career paths (“GEPP”).From now on, the supplementary provisions relating to the periodic compulsory branch and company negotiations on PPIM are completed so that these discussions take into account the "challenges of the ecological transition".

2. The Economic and Social Committee: a new actor in the ecological transition at the heart of the company

The Economic and Social Committee’s prerogatives in environmental matters have been extended (i) and it has new means to ensure their effectiveness (ii).(i.) In companies with at least 50 employees, the ESC has the following tasks:

• Ad-hoc consultations: under the terms of the French Labour Code, the ESC is now "informed and consulted on the environmental consequences of measures" affecting the organisation, management and running of the company ( trav. Art. L.2312-8);

• recurrent consultations: under the terms of the French Labour Code, the ESC must be informed of the environmental consequences of the company's activity (C. trav. Art. L.2312-17 et L.2312-22).

(ii.) To ensure the effectiveness of these new attributions, the legislator has adapted the existing resources of the Economic and Social Committee to these new competences:

• the Economic and Social Database (“Base de données économiques et sociales ” or "BDES") is renamed economic, social and environmental database (Base de données économiques, sociales et environnementales or "BDESE")

This document collects information on the company's major economic and social policies. It includes compulsory information that varies according to the size of the company.A new topic entitled "environmental consequences of the company's activity" has been added to the new "BDESE".Refusal to provide environmental information in the context of recurrent and ad hoc consultations of the CSE could expose the employer to the infraction of obstructing the committee.

• the mission of the ESC's chartered accountant is extended to the environmental consequences of the company's activity

For certain consultations, the ESC may request the support of a chartered accountant.From now on, his mission also covers "all the economic, financial, social or environmental elements necessary for understanding" the subject of the consultation (C. trav. Art. L.2315-87-1, L.2315-89 and L.2315-91-1).

• French employees posted to the UK before 1 January 2021

The rights acquired before and during the transitional period continue to apply after 1^st January 2021.Thus, if the employee was seconded to the United Kingdom before 1^st January 2021, the secondment will continue until the date of the end of the assignment indicated on the Certificate A1 (i.e. certificate concerning the social security legislation applicable to the holder) and, if necessary, this form may be extended to cover the total initial duration of the mission.The rules applicable to the secondment continue to apply (e.g. continuity of social security coverage) if the employee's situation does not change and continues without interruption.It should be noted that French employees lawfully resident in the UK before 1er January 2021 were required to apply online for UK residency status before 1 July 2021. Obtaining this status allows the French resident to stay and work in the UK at the end of the transitional period and retain their rights.

• French employees seconded to the UK after 1^st January 2021

With the Brexit, the free movement of workers between the UK and the EU ended, resulting in significant changes for professional mobility effective from 1^st January 2021.French employees residing in the UK since 1 January 2021 must obtain a long-term work visa, which will depend on the duration of the employment contract, the level of qualification, the sector of employment or the nature of the job and a job offer.The agreement of 30 December 2020 also provides for the continuation of the secondment regime with the UK as long as (i) the secondment operation does not exceed 24 months and (ii) the person concerned is not sent to replace another seconded person.The current rules on posting are maintained, with the exception of the extension of the posting, now strictly limited to 24 months.2. British employees seconded to France

• British employees seconded to France before 1^st January 2021

British employees working in France before 1^st January 2021 and continuing to reside there after that date should have applied for a residence permit before 1^st July 2021. Pending the decision, the applicant continued to benefit from the right to reside and exercise the professional activity of their choice.Since 1^st October 2021, a valid passport and a residence permit bearing the words "agreement on the withdrawal of the United Kingdom from the European Union" or a travel document will be required to enter in France.However, no work permit for the period until the end of the secondment in France is required.

• British employees seconded to France after 1^st January 2021

British employees seconded to France after 1^st January 2021 are considered as third country nationals.Consequently, they are subject to the provisions of article L. 5221-2 of the French Labour Code which provides that, in order to enter France to work, the foreign employee must present (i) a regular residence permit and (ii) an employment contract approved by the administrative authority or a work permit.The work permit required by the French Labour Code is constituted by the presentation of the following residence permits: (i) "Article 50 TEU/Article 18 (1) Agreement on the Withdrawal of the United Kingdom from the EU" or (ii) "Permanent residence - Article 50 TEU/Article 18 (1) Agreement on the Withdrawal of the United Kingdom from the EU" or the movement document bearing the mention "Article 50 TEU - Frontier worker/Agreement on the Withdrawal of the United Kingdom from the EU - Non-resident".France has chosen to maintain the secondment regime for British workers. Thus, the European rules on seconded workers do apply.

• Ensure the identity of the employee

If the employer has "reasonable doubts" about the identity of the requestor, he can ask him/her to attach any document that would prove his/her identity.However, it is not possible to ask for supporting documents that would be "abusive, irrelevant and disproportionate". It may be sufficient to exercise one's rights from a space where the person has authenticated himself or herself (via the company's e-mail or intranet).

• Reproduce the data

The right of access relates only to personal data and not to documents.However, it is not forbidden to disclose the documents rather than the data alone if this is more convenient.

• Check that the request does not concern a third party

The application of the right of access to one's personal data cannot infringe on the rights of others.The French data protection authority points out that "respect for the right to privacy, business secrecy and the secrecy of correspondence are regularly invoked by employers to refuse to respond favourably to employees". In practice, this can lead, for example, to hiding the identity of employees or elements that indirectly allow them to be identified.What emails can be provided to the employee?In the event of a request from an employee to access his/her professional e-mails, the employer must distinguish between two situations depending on whether the requestor is:-  Either (i) the sender or the recipient of the e-mails;-  Or (ii) only mentioned in the content of the e-mails.(i.) Professional e-mails of the employee sender or recipientWhen the employee is the sender or recipient of the e-mails for which he or she is requesting a copy, he or she is presumed to have knowledge of the information contained in the messages. The employer cannot therefore oppose a request on the basis of respect for the rights of third parties.In exceptional cases, even though the e-mails are known to the requestor, if there is a risk to the rights of third parties or a risk of breaching a secret, the data should be deleted or anonymised, or the request for access should be rejected, stating the reasons (This is the case, for example, when the e-mails contain information that would infringe national security or an industrial secret).(ii.) Professional e-mails referring to the employeeIn order to respond to such a request, the employer must first check that the measures to be used to identify the requested e-mails do not lead to a disproportionate infringement of the employees' rights. Thus, when the request concerns all of the employees' e-mail accounts, the applicant must be asked to specify his request.If, the information provided by the applicant makes it possible to identify the e-mails requested, the employer must then study their content and assess the extent to which their disclosure would infringe the rights of third parties. For example, an employer may refuse to comply with a request to disclose e-mails relating to a disciplinary investigation, the content of which could identify the persons concerned.(iii.) The special case of personal e-mailsWhere emails are identified as personal or where their content is private, the employer is not entitled to access them. The employer will therefore have to provide them as they are, but only if the requesting employee is the sender or the recipient.Can the employer refuse the transmission of personal data?The employer is not always obliged to respond to employees' requests, particularly when:-   the data are no longer kept or have been deleted;-   or when the requests are clearly unfounded or excessive, especially when they are multiple and close together.In principle, the employer has a maximum of one month to respond to a right of access request for a “simple request” and up to three months for a “complex request”.The French data protection authority reminds that the right of access should not be confused with other rules on the communication of documents or evidence in the context of legal proceedings.Thus, even if the employer refuses to comply with an employee's request for access, the employee may still obtain from a judge the production of the disputed e-mails in the context of a dispute, provided that such production is necessary and that the infringement is proportionate to the aim pursued. THE FRENCH DATA PROTECTION AUTHORITY: LA CNILThe “Commission Nationale de l’Informatique et des Libertés” (CNIL) was created by the Data Protection Act of 6 January 1978.The CNIL is an independent administrative authority, i.e. a public body that acts on behalf of the State, without being placed under the authority of the government or a ministerIt is responsible for ensuring the protection of personal data contained in electronic or paper files and processing, both public and private.It is responsible for ensuring that information technology is at the service of the citizen and that it does not infringe on human identity, human rights, privacy or individual or public freedoms.It is made up of 18 elected or appointed members (parliamentarians, representatives of high courts, etc.) and is supported by departments (for example: European and International Affairs department, Social and human resources affairs department, State and local government affairs department, etc.).This body has a role of alert, advice and information for all publics but also has the power to control and sanction.

• Mutares was represented by Altana with Fabien Pouchot, Partner, Vincent Guilaine and Eléonore Vucher-Bondet (M&A), Jean-Guy de Ruffray, Partner, and Camille Raclet (IP), and Mickaël d’Allende, associé (Employment), Bentam with Guillaume Ansaloni, Partner (Financing), and Sekri Valentin Zerrouk with Thomas Verdeil, Partner, and Mathieu Michno (Tax);

Reno de Medici was represented by Jones Day with Audrey Bontemps, Partner, and Adrien Starck (M&A), Jean-Michel Bobillo, Partner (Employment), Armelle Sandrin-Deforge, of counsel (Regulatory/Environment), Eileen Lagathu, counsel, and Victor Viaud (Competition), Emmanuel de La Rochethulon, Partner, and Stéphane Raison (Tax), and Sophie Chevallier, Partner, and Edouard Montesinos Petit (Capital Markets).

• Bruno Nogueiro (Partner), Arthur Boutemy (Associate) & Olivier Carmès (Associate) on matters of Company Law
• Jean-Guy de Ruffray (Partner) & Elsa Chetrit (Associate) on matters of Copyright and Privacy Law
• Louis des Cars (Partner), Sharmila Joseph (Associate) & Manon Lefebvre (Associate) on matters of Administrative Law and Regulations
• Marie Hindré (Partner) & Olivier Bonnevie (Associate) on matters of Economic Law

The law firm of Cazals Manzo Pichot Saint Quentin advised Europ Assistance on the fiscal aspects of the operation with Thomas Cazals (Partner) et Morgan Anfray (Associate).The law firm of Dentons advised the founders of PROSENIORS with Pascal Chadenet (Partner), Hugo Casasnovas (Associate) & Perrine Maillet (Associate).Press Contacts : Dominique Gillet : dgillet@altanalaw.com | +33 1 79 97 90 01 – 06 79 89 10 29

• Terre d'Avenir was advised by ALTANA, with Jean-Nicolas Soret, partner, and Géraldine Malfait, associate, on the Corporate/M&A aspects and by ARSENE, with Roland Schneider, partner, and Romain Daguzan, lawyer, on the tax aspects of the case.
• Eiffage was advised by CMS Francis Lefebvre Avocats, with Alexandra Rohmert, partner, Geoffroy Loncle de Forville and Marie Semaan, associates, on the Corporate/M&A aspects, Christophe Barthélémy, associate, and Aurore-Emmanuelle Rubio, counsel, on the energy and environmental law aspects, and Christophe Frionnet and Cathy Goarant-Moraglia, associates, on the tax law aspects.
• The notarial aspects were carried out for Eiffage by the Cheuvreux law firm, with Geoffroy Padovani, of the Bordeaux office, and for Terre d'Avenir by Lapotre-Rouzade.
• Financial advice: Envinergy, with Antoine Guibert and Clémence Contréras.

Press contacts:Dominique Gillet: dgillet@altanalaw.com - +33 1 79 97 90 01 / 06 79 89 10 29Louise Henry: louise.henry@lesroismages.fr - +33 1 41 10 08 03 / 06 84 34 55 35

• Legal advisors for Cheek: ALTANA, Julie Rolet, counsel, et Olivier Carmès, associate
• Legal advisors for the Mazarine Group: VEIL JOURDE, Laurent Jobert, partner, et Marina Demeure, associate

Press contacts:Dominique Gillet: dgillet@altanalaw.com - +33 1 85 60 90 01 / 06 79 89 10 29Louise Henry: louise.henry@lesroismages.fr - +33 1 41 10 08 03 / 06 84 34 55 35

• Legal advisers to SANCARE: ALTANA’s cross-functional team comprising Gilles Gaillard (partner) and Aurore Lacroix (associate) on the corporate M&A aspects, Frank Valentin (partner) and Chloé Aldebert (associate) on IP & digital issues, and Pierre Lubet (partner) and Laura Beserman (associate) on the labour law aspects
• Legal advisers to ELAIA PARTNERS: JONES DAY (Jean-Gabriel Griboul, partner, and Anne Kerneur), CHAMMAS & MARCHETEAU (Camille Hurel, partner)

 Press Contact: Dominique Gillet: dgillet@altanalaw.com - +33 1 85 60 90 01 / 06 79 89 10 29Louise Henry: louise.henry@lesroismages.fr - +33 1 41 10 08 03 / 06 84 34 55 35 

• Legal advisers to TUTÉLAIRE: ALTANA (Gilles Gaillard, partner, Julie Rolet, counsel, Olivier Carmès, attorney)
• Legal advisers to the management of SOLUCIA PJ: UGGC (Stephan Alamowitch, partner, Mathilde Monot)
• Legal advisers to APRIL: KALLOPE (Tanguy d’Everlange, partner; Grégory Russo)
• Financial advisers: NEMROD FINANCE (Pierre Albouy, Cyrille de Montgolfier), SELENIS (Olivier Arroua)

Press Contact:Dominique Gillet: dgillet@altanalaw.com - +33 1 85 60 90 01 / 06 79 89 10 29Louise Henry: louise.henry@lesroismages.fr - +33 1 41 10 08 03 / 06 84 34 55 35

• Legal adviser to the SANKEN SANGYO Group: Altana, with a transversal team: Jean-Nicolas Soret, Vincent Guilaine (M&A) and Tami Chida (Japan Desk), as well as Mana Rassouli and Margaux Chaumien (Restructuring).
• Legal counsel to the S.E.R.E.S. Group: CMS Francis Lefebvre Avocats, with Jean-Robert Bousquet, Romain Boyet and Noëlle Boualem, as well as Guillaume Bouté.
• Financial advice: Grant Thornton, with Nicolas Verrier
• Legal advice to the company: Leclère et Louvier Lawyers, with Josquin Louvier

Altana advised the d'aucy Group in the acquisition of the main assets of La Fraicherie, the third French leader in cut fresh fruits and vegetables.

With a plant based in Clisson (Loire-Atlantique), Altor Industrie annually produces more than 15,000 units destined for numerous actors in the health, hotel, student and social housing and rail and maritime transportation sectors. Altor Industrie employs 130 people and generates a turnover of 20 million euros in France and Europe.

With this acquisition, PartGroup, specialist in high-end prefabricated solutions for buildings, housing and the navy, and currently mainly based in Scandinavia, expands into continental Europe and the United Kingdom while acquiring a production plant in France. PartGroup employs 500 people and generates 87 million euros in turnover.

Legal and financial advisors :

• Legal advisor to the purchaser: Altana, with Jean-Nicolas Soret, Géraldine Malfait and Vincent Guilaine in corporate and Mana Rassouli in restructuring.
• Financial advisor to the purchaser: Grant Thornton, with Nicolas Verrier
• Legal advisor to the sellers: Daniel & Stokes, with Alexandre Daniel-Thézard, Sophie Miglianico, Antoine Le Roux, Manon Fournier, Brendan Pilon
• Financial advisor to the sellers: Ernst & Young Corporate Finance, with Matthieu Carlier and Thomas Meurisse
• Legal advisor to the company: PLM with Fabienne Goubault and Anna Talanova

Cogéni Finance, holding company of Frédéric Jamin, founder of Synova, was advised by Altana on the entirety of the transaction, with a team composed of Gilles Gaillard, Partner, and Julie Rolet, Counsel, in collaboration with Pascal Lesné, independent lawyer, the accounting firm Roullois and Blaise-Philippe Chaumont of Aristide Law on tax aspects.

From recycled plastics, Synova produces 20,000 tons per year of polypropylene that meets the high quality standards of automobile and automobile parts manufacturers. The plastics notably improve vehicles’ energy performance by making them lighter, and thus reducing their CO₂ emissions.

Altana confirms through this transaction its expertise in the plastic recycling market, whose development has major economic, social and environmental stakes.

The financial aspects of the transaction remain confidential.

Total was advised by Gide, with a team composed of Christophe Eck, Partner, and Alexandre Heydel.

Engie has acquired Vol-V Biomasse, the French leader in biomethane present on the entire value chain: origination, development, construction oversight and exploitation.

Altana’s teams advised Engie on the transaction in its entirety:

• with a team led by Jean-Nicolas Soret, Partner, and Géraldine Malfait, on M&A and transactional aspects,
• with a team led by Louis des Cars, Partner, Cécile Panien-Ferouelle and Sharmila Joseph, on public law and urban planning issues,

With this acquisition, Engie becomes the leading producer of biomethane in France, one of the essential building blocks of the future energy mix, and confirms its position as the leader in renewable energy.

The financial aspects of the transaction remain confidential.

 

By Philippe Goossens and David Charles

On February 20, 2019 the Government presented to the Council of Ministers a decree [1] transposing the Directive (EU) 2018/957 concerning the secondment of workers in the framework of the provision of services. The legal and practical mechanisms are complex.

The amendment of the rules on the secodment of workers responds to the necessity "to safeguard the freedom to provide, in both the short and the long term, services on a fair basis [2]".

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[1] Decree n° 2019-116 of February 20,2019 transposing Directive (EU) 2018/957 of the European Parliament and Council of  June 28, 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services

[2] Explanatory statement of the la Directive (EU) 2018/957 concerning the posting of workers in the framework of the provision of services

[3] Report to the President of the Republic concerning Decree 2019-116

[4] Report to the President of the Republic concerning Decree 2019-116

The firm pursues its growth strategy focused on transactional activities and complex operations and confirms the strength of its domestic and international position in 2019, the year that marks 10 years since its creation.

Fabien Pouchot practices in the M&A-Private Equity team.

With solid experience in M&A and capital investment operations, he accompanies French and international clients, particularly in the energy, new technology, biotechnology, luxury, media and agriculture sectors.

Member of both the Paris and New York Bars, he holds a Bilingual French-American Master’s degree in Business Law and an LL.M.

Before joining Altana in 2010, Fabien Pouchot practiced at the firms Orrick and Reed Smith.  He also practiced a year and a half in the M&A - Private Equity department of the firm Morrison & Foerster in New York (2017-2018).

“The promotion of Fabien strengthens our Private Equity activity. His international experience is perfectly coherent with our cross-border activities.” emphasizes Jean-Nicolas Soret, Partner.

Mana Rassouli practices in the Restructuring and Distressed M&A team.  She joined Altana in 2014.

Specialist in the prevention of corporate difficulties and insolvency procedures, she also advises companies in internal and external growth operations, and in civil and commercial litigation.

Member of the Paris Bar since 2010, Mana Rassouli holds a specialized Master’s degree in Law and International Management from HEC (2011) as well as a Master’s in Common Law Systems from the University of Paris II – Panthéon-Assas (2008).

Mana Rassouli began her career at Bird & Bird before joining Wragge & Co, then Racine in 2013.

The team, led by Michel Jockey and Pierre-Gilles Wogue and regularly distinguished on the market, thus continues its development. “We are proud of Mana’s association, and of these two promotions that characterize our commitment to promoting our talent.” states Michel Jockey, Partner.

A new decree dated 29 November 2018 widened the scope of foreign investments which will be subject to prior authorization by the French Ministry of Economy to new sectors including artificial intelligence, digital data storage, semi-conductors and the space industry.

This acquisition is part of Evergaz's vision to build a specialized skills platform in the holding and management of biogas centers in France and in Europe. With these acquisitions, Evergaz's French portfolio now includes 9 methansiation plants, including one under construction. Adding Germany and Belgium, Evergaz now holds and operates 14 biogas plants, for 28 MWe, representing 7 000 Nm3/h of biomethane and 626 GWh PCS produced each year.

For Albioma, this divestment responds to the group's desire to concentrate its activities on solar and thermal energies.

Advisors:

For Albioma :

Legal : Altana (Jean-Nicolas Soret, Partner, Géraldine Malfait)

Tax : Arsène (Mirouna Verban, Partner, Yoann Chemama)

Financial : Rothschild Transaction R (Martin Volatier, Partner, Romain Golven)

For BMP :

Legal : K&L Gates (Nicola Di Giovanni, Partner, Sidney Rosenberg, Julia Brochet)

Tax : Ernst & Young (Etienne Durieux)

Financial : Ernst & Young (Pierre-Guillaume Fayet)

Par Philippe Goossens et Judith Fleuret

After almost a century of the Budget Ministry's monopoly on tax fraud prosecution, the "Bercy lock" was partially removed by the Joint Committee.

The new text now forces the tax authority to notify the public prosecutor of the facts it examined under its audit and which led, on claims of more than 100,000 Euros for both legal and natural persons, to a penalty increase of 100% (opposing a tax audit) or 80% (abuse of rights or corrupt practices), or if the taxpayer was recurrently subject to a penalty of 40% during the course of the last 6 years (willful default).

This amount is brought down to 50,000 Euros for certain elected officials such as deputies, members of the Government, members of ministerial offices or the President's staff.

For the other cases, the original "Bercy lock" procedure remains unchanged: complaint by the tax authorities then assent by the Commission on Tax Offences.

Additionally, as is the case with the right to make a mistake for the URSSAF, the new text provides a repentance for the taxpayer since this provision would not apply when the taxpayer would have spontaneously submitted a corrective statement.

This new penalization of tax fraud, which could lead to the referral to the public prosecutor of almost 1,000 to 2,000 cases per year, will notably apply to legal persons who will risk up to €2,500,000 in fines, or even €15,000,000 in certain cases.

Anticipation of the potential impact merger control constraints may have on M&A: A key factor for the launching of a successful transaction

In an article published in this month's The American Lawyer, partners Marie Hindré (Competition Law) and Gilles Gaillard (Corporate Law) demonstrate how competition law can be a decisive factor that may influence the decision to sell or acquire companies or assets. "At the end of the day, sellers, interested bidders and the final acquirer all come together on a common concern: defining an optimal timetable for the transaction. Anticipation allows the parties to move into the notification process with greater comfort."

Read the full article here.

Pour la première fois, la Cour de cassation s’est prononcée sur l’application dans le temps de l’ordonnance du 10 février 2016, consacrant le « nouveau » droit des contrats.

Le 19 septembre 2018, la première chambre civile a cassé la décision d’une juridiction de proximité qui avait appliqué le « nouveau » droit des contrats à un contrat conclu antérieurement au 1^er octobre 2016 (date d’entrée en vigueur de l’ordonnance).

En l’espèce, le juge de proximité avait fait application de l’article 1186 nouveau, relatif à la caducité, pour déclarer caduc un contrat de maintenance (l’accès au matériel à entretenir ayant disparu, de sorte que l’entretien devenait impossible).

La Cour de cassation censure en ces termes : « en faisant ainsi application de l’article 1186 du Code civil dans sa rédaction issue de l’ordonnance n° 2016-131 du 10 février 2016 à un contrat dont il ressortait de des propres constatations qu’il avait été conclu avant le 1^er octobre 2016, la juridiction de proximité a violé le texte susvisé [l’article 9 de l’ordonnance, relatif aux dispositions transitoires] ».

L’arrêt est important.

Il est aussi surprenant. En effet, la jurisprudence antérieure de la Cour de cassation appliquait fréquemment le droit nouveau à des contrats anciens, sous couvert d’appliquer le droit ancien « à la lumière » du droit nouveau, en invoquant les « effets légaux » du contrat ou encore les dispositions d’ordre public (voir notamment Cass. civ. 1^ère, 8 novembre 2017, n° 16-18859 ; Cass. civ. 3^e, 9 février 2017, n° 16-10350 ; Cass. ch. mixte, 24 février 2017, n° 15-20411 ; Cass. soc., 21 septembre 2017, n° 16-20103).

La décision du 19 septembre paraît contraire à cette pratique, à telle enseigne qu’on pourrait croire la Cour de cassation inspirée par la loi de ratification du 20 avril 2018, qui affirme que les contrats conclus avant le 1^er octobre 2016 échappent aux textes issus de l’ordonnance, même pour les effets légaux et l’ordre public. En ce sens, on pourrait estimer que la Cour de cassation réinstaure une frontière étanche entre les contrats antérieurs au 1^er octobre 2016 et les contrats postérieurs.

La portée de la décision pourrait, à l’inverse, être minimisé, si l’on considère qu’il ne s’agit que de censurer une application frontale du droit nouveau à un contrat ancien. Il n’est en effet pas ici question d’effets légaux, d’ordre public ou d’interprétation « à la lumière » du droit nouveau. Le juge de proximité avait, violant directement le texte de l’ordonnance, appliqué celle-ci à un contrat antérieur. La censure était inévitable, sauf pour la Cour de cassation à opérer une substitution de motifs et à remplacer l’article 1186 nouveau (sur la caducité) par le visa de l’article 1131 ancien (théorie de la cause), qui servait de fondement à la théorie de la caducité.

La censure, quasi-disciplinaire, n’est sans doute pas innocente. Reste à voir ce que donneront les prochains arrêts en la matière, notamment lorsque seront soumis à la Cour des arrêts d’appel ayant appliqué le nouveau droit de manière indirecte. La question demeure épineuse ! (sur ce point, on pourra consulter l’article de J.-Ch. Roda, « Loi de ratification du 20 avril 2018 : Aspects de droit transitoire », au sein du dossier spécial « Réforme de la réforme », sous la direction scientifique des professeurs Andreu et Thibierge, AJ Contrat 2018, p. 303).

Lien vers l’arrêt

Avocat chez Altana, Louis Thibierge est Agrégé des Facultés de Droit, Professeur à l’Université Aix-Marseille et Membre du Centre de Droit Economique de l’Université Aix-Marseille.

Insurance groups have entered into a wide variety of agreements with competitors over the past years. The expiry of the EU Block Exemption 267/2010 has an impact on these agreements and should therefore be taken seriously by insurers. Frédéric Manin and Lucie Giret analyze the potential risks in that context in an article published this month in American Lawyer, “EU Law and agreements between insurance companies”.

Read the article

Six years after its spin-off from DCM Group and its acquisition by Azulis Capital and its co-investors BNP Paribas Développement and Unigrains, Holweg Weber, the global leader in the conception, development and assembly of paper packaging solutions, has been acquired by Motion Equity Partners.

Altana advised Azulis Capital and its co-investors in this Franco-American sale, accompanied by Morrison & Foerster LLP for the American aspects. Additionally, this transaction, financed by the debt fund LGT European Capital Limited, constitutes a new MBO for certain managers of the group.

Advisors to Azulis Capital

On corporate aspects:

Altana with Gilles Gaillard (Partner) and Julie Rolet (Counsel) and Pierre Lubet (Partner) for employment law.

Morrison & Foerster (New York, NY) with Jonathan Melmed (Partner) and Fabien Pouchot (Counsel at Altana currently on a 15-month secondment to Morrison & Foerster LLP’s M&A department in New York.).

On tax aspects:

Aristide Law with Blaise-Philippe Chaumont (Partner)

Advisors to Motion Equity Partners

BGB & Associés with Alexandre Gaudin and Virginie Couvrat

Mayer Brown with Elodie Deschamps, Alexandre Chagneau and Pierre-Guillaume Sagnol

Gide with Thomas Binet and Anne Moriceau

Advisors to the Managers

Lamartine Conseil with Maxime Dequesne and Pierre Lagresle

Advisors to LGT European Capital Limited

Ashurst avec Pierre Roux, Anne Reffay and Emmanuelle Pontnau-Faure

L’ordonnance devait, pour acquérir valeur législative, être ratifiée par le Parlement. L’élaboration de la loi de ratification a été l’occasion de clarifier certains points demeurés obscurs et de rectifier quelques erreurs de rédaction. De manière plus surprenante, certains parlementaires se sont saisi du processus législatif pour tenter d’opérer des modifications de fond, prenant parfois le contrepied du texte de l’ordonnance.

Députés et sénateurs ont, au fil des mois, opéré un rapprochement de leurs positions, les projets adoptés en décembre 2017 par chacune des assemblées étant encore assez éloignés. Une commission mixte paritaire a été nécessaire pour aplanir les dernières difficultés (on songe notamment à la révision judiciaire pour imprévision, qui a cristallisé les oppositions).

Finalement, le Palais Bourbon a adopté le texte le 22 mars, le Luxembourg le 11 avril. La richesse du travail en commission a démontré s’il en était besoin que, foin d’une ratification sèche, le Parlement n’est point chambre d’enregistrement.

Quels sont les principales innovations ?

Il est bien difficile de prétendre à l’exhaustivité. Les changements opérés par la loi de ratification sont au nombre de 25. On s’en tiendra donc aux plus importants.

Le contrat d’adhésion est redéfini. Alors que l’article 1110 ancien (si l’on ose dire, celui de 2016) faisait du contrat d’adhésion celui « dont les conditions générales, soustraites à la négociation, sont déterminées à l'avance par l'une des parties », le nouveau texte voit dans le contrat d’adhésion celui « qui comporte un ensemble de clauses non négociables, déterminées à l'avance par l'une des parties ». Exit le critère des conditions générales. Exit également la proposition des députés de cantonner le contrat d’adhésion aux contrats de masse. La définition nouvelle du contrat d’adhésion paraît encore bien large.

On se rassurera peut-être en observant que le champ de l’article 1171 est considérablement restreint. Dans un contrat d’adhésion, seule peut être désormais réputée non-écrite la clause non négociable, déterminée à l'avance par l'une des parties, qui crée un déséquilibre significatif. Le seul fait d’appartenir à la famille des contrats d’adhésion ne fait donc plus peser un risque de neutralisation sur toutes les clauses.

La révision judiciaire pour imprévision est maintenue, en dépit de l’opposition du Sénat, mais les opérations sur titres et contrats financiers échappent désormais, même à titre supplétif, aux dispositions de l’article 1195 du Code civil.

Le champ de la réticence dolosive est opportunément restreint. L’ambiguïté résultant de la comparaison des articles 1112-1 (devoir d’information précontractuelle) et 1137 (dol) est surmontée. Que l’on prenne le problème sous l’angle de l’information précontractuelle ou du dol, la jurisprudence Baldus est sauvée : aucune information n’est due sur l’estimation de la valeur de la prestation. On a le droit de faire de bonnes affaires.

Le domaine de la violence par abus de dépendance est considérablement réduit. Si la proposition sénatoriale de la cantonner à la dépendance économique a été écartée, la restriction est tangible. Seule pourra désormais être prise en considération la dépendance à l’égard du cocontractant (article 1143). La dépendance se distingue ainsi de la vulnérabilité.

Concernant les personnes morales, on notera la neutralisation de l’article 1145 sur leur capacité, texte désormais privé de tout intérêt significatif puisqu’il ne fait que renvoyer aux textes spéciaux, mais surtout la désactivation de l’article 1161 sur la double représentation. La prohibition de la double représentation est désormais limitée aux personnes physiques.

On relèvera également la prise en compte de la bonne foi du débiteur en matière d’exécution forcée en nature (article 1221). Désormais, seul le débiteur de bonne foi pourra prétendre échapper à l’exécution forcée eu égard à la disproportion existant entre le coût d’exécution et l’intérêt pour le créancier.

Le régime de la réduction de prix est précisé (article 1223), sans que l’on saisisse nécessairement si cette sanction demeure bien unilatérale, dès lors qu’il est question, soit d’un « accord » du débiteur, soit d’une décision judiciaire.

Sont encore à pointer des modifications, pour l’essentiel dans un but de clarification, relatives au sort des sûretés en cas de cession, à la déchéance du terme, à la renonciation pendente conditione, aux restitutions dues par le mineur non-émancipé ou à la monnaie de paiement.

Faut-il connaître trois droits ?

Oui. La loi du 20 avril 2018 distingue trois droits applicables :

• Pour les contrats conclus avant le 1^er octobre 2016, seul le droit des contrats issu du Code de 1804 devrait s’appliquer.
• Pour les contrats conclus entre le 1^er octobre 2016 et le 1^er octobre 2018, c’est l’ordonnance du 10 février 2016 qui s’applique.
• Pour les contrats conclus après le 1^er octobre 2018, c’est le droit issu de la loi de ratification qui s’applique.

Il conviendra donc d’agir avec la plus grande des prudences.

D’autant que différents facteurs de complication s’ajoutent à ce rythme ternaire :

• L’article 16 de la loi du 20 avril qualifie certaines modifications d’interprétatives, ce qui emporte qu’elles soient rétroactives. Seraient donc applicables aux contrats conclus depuis le 1^er octobre 2016 les modifications apportées aux articles :
  • 1112 (indemnisation du préjudice résultant d’une faute dans les négotiations) ;
  • 1143 (abus de dépendance) ;
  • 1216-3 (cession de contrat) ;
  • 1217 (liste des sanctions de l’inexécution) ;
  • 1221 (exécution forcée en nature) ;
  • 1304-4 (renonciation à condition suspensive) ;
  • 1305-5 (déchéance du terme) ;

• Ordre public et effets légaux du contrat : la jurisprudence a à plusieurs reprises appliqué à un contrat antérieur des dispositions issues d’une loi postérieure, au motif que celle-ci serait d’ordre public, ou qu’elle concernerait les effets légaux du contrat, lesquels échappent à la volonté des parties. L’article 16 de la loi de ratification modifie les dispositions transitoires de l’ordonnance de 2016, celle-ci prévoyant désormais qu’elle ne s’applique pas aux contrats antérieurs au 1^er octobre 2016, fût-ce pour des motifs d’ordre public ou d’effets légaux du contrat ;

• Liberté du juge : même enserrée par les dispositions de la loi de ratification, la liberté du juge demeure grande. L’empêchera-t-on de poursuivre avec sa récente pratique consistant à appliquer les textes anciens à la lumière des textes nouveaux, ce qui revient peu ou prou à appliquer immédiatement la loi nouvelle à des contrats en cours ?

Au final, la loi de ratification consolide l’édifice et offre, sinon une totale certitude, du moins des raisons de se réjouir de l’affirmation d’un droit des contrats efficace, cohérent et conquérant.

In an article published in the "Am Law 100" issue of American Lawyer (May 2018), Jean-Nicolas Soret and Géraldine Malfait analyze the difficult balance the French government will have to strike between protecting French flagship companies with strategic technologies from the greed of aggressive foreign investors and preserving the attractiveness and openness of the French economy called for by the French President in his “Choose France” campaign.

The article, entitled "Foreign Direct Investment Under Greater European and French Scrutiny" can be consulted here.

Frédéric Manin analyzes the consequences of the expiration of  Règlement 267/2101 in an article,« Assurances et autorités de concurrence : changement de perspective ?  (Insurance and competition authorities: A change of persepective? )» that was  published today on les Echos.

Read the article on the les Echos website 

• the obligatory application of the complementary sentence of publication and distribution of tax fraud convictions, which today is optional. Thus, ‘the jurisdiction can rule’ would be replaced by ‘the jurisdiction rules’, except in the event of a specifically motivated decision to the contrary to ensure the conformity of this provision with the Constitution;

• the creation of a complementary administrative sanction to the existing financial sanctions, consisting of making tax assessments and the administrative financial penalties accompanying them public, once they have become definitive. Publication would be on the tax administration’s web site following consultation with a special commission;

• the creation of an administrative sanction applicable to persons who intentionally contribute through their services to fraudulent or abusive schemes. Thus, if the taxpayer is sanctioned for such a scheme by a tax surcharge of 80%, the service provider would incur a 10,000-euro fine, or, if the amount is greater, a fine of the amount of 50% of the revenue generated by the service provided to the taxpayer;

• the intensification of the criminal prosecution of tax fraud crimes of article 1741 of the General Tax Code, by providing that the amount of fines could be brought to twice the product of the infraction for natural persons or multiplied for legal entities;

N.B. the crime of tax fraud is today sanctioned by five years in prison and a fine of 500,000 euros for natural persons and 2,500,000 euros for legal entities, and, in aggravated cases, seven years of prison and a fine of 3,000,000 euros for natural persons and a fine of 15,000,000 for legal entities.

It should be noted that some of these sanctions were already reinforced by the law of 30 December 2017.

• the capacity of the Public Prosecutor to have recourse to appearance procedure upon previous recognition of guilt for tax fraud, a procedure that is today impossible for crimes ‘for which the conduct of the prosecution is provided by a special law’[4];

• the reinforcement of applicable customs sanctions in case of abuse, mistreatment or disturbance of the exercise of the functions of customs agents as well as in the case of a refusal to communicate requested documents.

The minimum amount of the monetary penalty imposed by the judicial authority in case of a refusal to communicate documents would be increased from 1.50 euro per day to 150 euros per day.

Altana is pleased to announce the promotion of Jean-Guy de Ruffray to partner. He joins Pierre Lubet, Frank Valentin and Armand Aviges as partner in the firm's IP/IT practice, which now counts 11 attorneys.

The firm affirms its determination to encourage the professional development of its best associates and to reinforce its expertise in the issues arising from the digital transformation of the economy.

Member of the Paris bar since 2007, Jean-Guy started his career at Freshfields Bruckhaus Deringer LLP  in Paris, before joining Altana upon its creation in 2009. He holds Master's degrees in contract law from Université de Paris XI and in industrial property from Université de Paris II. In addition to his intellectual property practice, he is very active in matters related to the digitization of companies and personal data protection.

Jean-Guy teaches numerous training in cybersecurity and personal data protection. He also regularly publishes articles on these subjects in professional journals.

Le Professeur Thibierge nous livre son analyse.

Où en sommes-nous du processus législatif ?

Le cheminement du texte fut long et laborieux. Le Gouvernement avait obtenu de la précédente législature l’autorisation de procéder par voie d’ordonnances, pour gagner un temps précieux. Dans la pratique, plus de deux ans se seront écoulés entre l’adoption de l’ordonnance et sa ratification.

Il est vrai que la plupart des commentateurs escomptait une ratification sèche du texte, tandis que les parlementaires ont vu l’occasion de se saisir d’un texte qui leur avait jusque lors échappé.

Adopté en première lecture par le Sénat le 17 octobre 2017, le texte a été soumis à l’Assemblée nationale le 11 décembre 2017. Le 12 décembre, le projet amendé par l’Assemblée était renvoyé au Sénat.

Celui-ci vient de se prononcer, en vue notamment d’un rapport du sénateur François Pillet, enregistré le 24 janvier 2017.

Le 1^er février 2018, le Sénat a adopté un projet de loi de ratification en deuxième lecture.

Le texte témoigne de certains rapprochements avec l’Assemblée nationale, mais aussi de véritables pommes de discorde.

La commission des lois de l’Assemblée nationale doit désormais se réunir. Les dates des 7 et 15 février prochains ont été retenues pour débattre du projet de loi de ratification.

On peut espérer que la loi de ratification soit adoptée courant mars 2018.

Quels sont les points de convergence des parlementaires ?

Les sénateurs ont rejoint les députés sur de nombreux points.

On en mentionnera trois.

La réticence dolosive. En première lecture, le Sénat avait modifié l’article 1137 du Code civil pour subordonner la nullité à l’existence d’une obligation légale d’information préalable. Ce faisant, le Sénat boutait hors du champ de la réticence dolosive le silence gardé par l’acquéreur sur la valeur de la chose vendue (jurisprudence Baldus). L’Assemblée n’a pas retenu la proposition du Sénat mais a, par un autre biais, consacré une solution similaire. Si elle ne lie pas obligation d’information et réticence dolosive, elle exclut expressément du champ du dol le « fait pour une partie de ne pas révéler à son cocontractant son estimation de la valeur de la prestation ». Dans un esprit de compromis, le Sénat se range à l’avis de l’Assemblée ;

La réduction du prix. Le Sénat estime que la rédaction proposée par l’Assemblée nationale améliore substantiellement la compréhension du dispositif. Le texte de l’article 1223 remanié précise désormais que le débiteur doit accepter par écrit la décision de réduction, et que le créancier qui a déjà payé le prix peut demander au juge une réduction judiciaire de celui-ci.

Les délais raisonnables. En première lecture, le Sénat avait proposé d’encadrer le délai dans lequel le bénéficiaire d’un pacte de préférence doit répondre à une action interrogatoire. En l’état, l’article 1123 du Code civil évoque un délai raisonnable. Le Sénat suggérait de fixer ce délai à deux mois. En deuxième lecture, le Sénat se range à l’avis de l’Assemblée nationale : le délai restera « raisonnable ».

Quels sont les points de désaccord ?

Quatre points cristallisent l’opposition des sénateurs et des députés.

La caducité de l’offre en cas de décès du bénéficiaire. En l’état, l’article 1117 du Code civil prévoit que l’offre devient caduque en cas de décès de l’offrant. En première lecture, les sénateurs ont modifié le texte. Estimant que l’offre ne se transmet pas aux héritiers, elle deviendrait également caduque en cas de décès du bénéficiaire. L’Assemblée nationale n’a pas retenu cette proposition, Sacha Houlié jugeant que « les héritiers peuvent avoir intérêt à conclure cette offre lorsque son destinataire est malheureusement décédé ». Le Sénat fait de la résistance, et maintient sa proposition.

La définition du contrat d’adhésion. La définition du contrat d’adhésion suit un chemin long et tortueux. Au gré des lectures et sous l’influence du Gouvernement, on étudie à ce jour une troisième définition. De lege lata, l’article 1110 du Code dispose : « Le contrat d'adhésion est celui dont les conditions générales, soustraites à la négociation, sont déterminées à l'avance par l'une des parties ». En première lecture, le Sénat avait proposé d’abandonner le critère des « conditions générales », pour faire du contrat d’adhésion celui qui « comporte des clauses non négociables déterminées à l’avance par l’une  des parties ». On avait alors objecté au Palais-Bourbon que la définition serait trop large : dès lors que le contrat, fût-il un pacte d’actionnaires renfermant une clause compromissoire, contient une clause non-négociable, le régime dérogatoire de l’article 1171 s’appliquerait. L’Assemblée nationale avait alors proposé de définir le contrat d’adhésion comme celui « qui comporte des conditions générales au sens de l’article 1119 », lequel prévoirait que les « conditions générales sont un ensemble de stipulations non négociable, déterminé à l’avance par l’une des parties et destiné à s’appliquer à une multitude de personnes ou de contrats ». De nouveau, l’on s’est ému : à partir de combien forme-t-on une « multitude » ? D’où une nouvelle proposition du Sénat, sous l’impulsion du Gouvernement : le contrat d’adhésion serait défini comme celui « qui comporte un ensemble de clauses non négociables, déterminées à l’avance par l’une des parties ».

L’abus de dépendance. N’y a-t-il de dépendance qu’économique ? La question continue d’agiter la navette parlementaire. Dans sa version originelle, l’article 1143 du Code civil rattache au vice de violence l’exploitation abusive de « l’état de dépendance dans lequel se trouve son cocontractant ». Rien ne définit l’état de dépendance, condition déterminante de l’application de l’article 1143. En première lecture, le Sénat avait entendu restreindre la dépendance à un critère économique, rejoignant en cela la jurisprudence de la Cour de cassation, découlant notamment de son arrêt Larousse Bordas. La commission des lois de l’Assemblée nationale se montrait plus fidèle à l’esprit du texte de 2016, et rejetait la proposition sénatoriale. La dépendance peut, pensent les députés, être tout aussi bien économique que psychologique, affective, familiale… Il n’est pas certain qu’on doive la cantonner à la seule dépendance économique. Le Sénat avance en deuxième lecture une proposition médiane. Il renonce au critère économique, mais ajoute une précision à l’article 1143 : la dépendance doit s’apprécier à l’égard du cocontractant. Ainsi, la dépendance s’entendrait strictement, dans la relation contractuelle de Primus  à Secondus, et non dans l’absolu. Elle se distinguerait de la vulnérabilité.

La révision judiciaire pour imprévision. Le point est sensible. Le Sénat refuse coûte que coûte la révision judiciaire du contrat pour cause d’imprévision. S’il a abandonné l’idée de s’opposer à une renégociation du contrat en cas d’imprévision, le Sénat ne veut pas laisser le juge refaire la chose des parties. Son pouvoir serait cantonné à prononcer la résiliation du contrat. Pour le rapporteur Pillet, « contraindre l’une des parties à poursuivre l’exécution d’un contrat selon des termes qui auraient été profondément modifiés contre sa volonté – conséquence mécanique de la révision judiciaire telle que prévue par l’article 1195 du code civil – est éminemment discutable ». L’Assemblée nationale ne partage pas cette opinion, pourtant non dénuée de sens (v. également L. Thibierge, Le contrat face à l’imprévu). Elle a rétabli le pouvoir de révision judiciaire, que le Sénat vient en deuxième lecture de supprimer.

Il serait temps que ce casus belli soit tranché. La deuxième lecture à l’Assemblée nationale, voire la réunion d’une commission mixte paritaire, sera sans doute l’occasion d’aplanir ces quelques difficultés et de promouvoir un nouveau droit des contrats qui, enfin, remplisse l’objectif de sécurité juridique qu’on lui a assigné.

Agrégé des Facultés de Droit, Louis Thibierge est Professeur à l’Université Aix-Marseille et Membre du Centre de Droit Economique de l’Université Aix-Marseille.

Marie Hindré, Partner at ADVANT Altana and specialist in competition law, comments the judgement in an article published on January 29, 2018 by the Lettre des Juristes d'Affaires.

Read the article (in French)

The partners of Altana are very pleased to announce the promotion to Counsel of Caroline Diot, Charlotte Hébert-Salomon and Stéphanie Smatt Pinelli.

Altana announces the promotion to Counsel of Caroline Diot (Criminal Business Law), Charlotte Hébert-Salomon (IP/IT) and Stéphanie Smatt Pinelli (Construction Law and Arbitration)

These promotions demonstrate the firm's commitment to cultivating the talent and fostering the professional development of its best associates.

Caroline Diot's practice extends across all domains of criminal  business law,  in both advisory and litigation matters. She also provides numerous trainings on risk prevention and compliance.

Member of the Paris bar since 2008, Caroline holds an advanced post-graduate studies diploma in European Criminal Law and Policy (University of Paris I Panthéon-Sorbonne) and was law clerk to the Prosecutor at the Paris High Court “Tribunal de Grande Instance”. Caroline also audited business intelligence at IHEDN (Institute for Higher National Defence Studies) and then audited the 20th National Specialised Session of the INHESJ (National Institute of Higher Studies in Security and Justice), upon completion of  which she was awarded the title of Expert in Business Protection and Intelligence.

Charlotte Hébert-Salomon specializes in IT and new technologies law, intellectual property and commercial law.

Member of the Paris bar since 2009, Charlotte holds a postgraduate degree in Innovation, Communication and Culture Law – Specialization in Copyright on Digital Works (Paris-XI University) and a Master’s degree in Business Law (Paris-II University).

Stéphanie Smatt Pinelli specializes in Arbitration and business litigation, particularly in the construction and telecommunication sectors. Stéphanie also advises large groups in the management of complex projects and accompanies businesses in their digital transformation.

Member of the Paris bar since 2008, Stéphanie holds a post-graduate certificate of advanced specialised studies in International Commercial Law and Arbitration (University of Versailles Saint-Quentin) and is an ESSEC graduate.

Altana is an independent, Paris-based business law firm of eighty lawyers.  These promotions are in keeping with the founding principle of Altana, the double practice of advice and conflict resolution for businesses.

The business world is rapidly changing. Companies are equipped with highly performant internal resources. Law firms need to position themselves at the forefront.

• Pilotage : on confie aux juridictions dites « suprêmes » (Cour de cassation et Conseil d’Etat) le pilotage des dispositifs de collecte automatisée des décisions de leur ordre de juridiction respectif, y compris celles des tribunaux de commerce pour l’ordre judiciaire, et la gestion des bases de données ainsi constituées (Recommandation n° 1) ;
• Pseudonymisation : le rapport invite à définir un socle de règles essentielles de « pseudonymisation » des décisions par décret en Conseil d’Etat pris après avis de la CNIL. Il est d’ores et déjà acté que la seule suppression des noms et adresses des parties ne suffit pas (Recommandation n° 2). Il est prévu que la pseudonymisation ne porte pas seulement sur les parties et témoins au litige (Recommandation n° 5). La commission n’a pas tranché la question de l’anonymisation du nom des magistrats à l’origine de la décision. Il est enfin prévu que ce « socle » puisse être par la suite enrichi au gré des contributions de la CNIL, notamment eu égard au risque de réidentification (Recommandation n° 3).
• Tribunaux de commerce : il est rappelé aux Tribunaux de commerce qu’ils sont également soumis aux règles de pseudonymisation et d’analyse du risque de réidentification (Recommandation n° 6) et qu’ils relèvent du pilotage de la Cour de cassation (Recommandation n° 1).
• Justice prédictive : la commission entend réguler le recours aux nouveaux outils de justice dite prédictive, notamment par l’édiction d’une obligation de transparence des algorithmes, la mise en œuvre d’un contrôle (dit « souple ») par la puissance publique et l’adoption d’un dispositif de certification de qualité par un organisme indépendant (Recommandation n° 20).

 Agrégé des Facultés de Droit, Louis Thibierge est Professeur à l’Université Aix-Marseille et Membre du Centre de Droit Economique de l’Université Aix-Marseille.

Read the article

In one of the first cases of its kind, US Chapter 15 was used to recognize a French sale process in the cross-border acquisition of Viadeo, a French / US based social networking platform, by the Figaro Group.

Pierre-Gilles Wogue and Julien Balensi advised the Figaro Group in the Viadeo transaction. They analyzed the added value of combining French and US laws in this matter in an article published by Corporate Counsel (Focus Restructuring, Winter 2017), entitled “Innovative play between French and US laws: the cross-border acquisition of Viadeo a French/US-based social networking platform”.

Read the article

Wednesday, 13 December 2017, a conference on the creation of a commercial court for international disputes was held at the Paris Court of Appeal.

The conference, organized by the Paris Place du Droit Association, gave the floor to economists, legal directors, lawyers, presidents of the court, and think-tanks.

Held in the presence of the Bâtonnier de Paris, President Canivet, and President Louvel, this conference concluded with a presentation by the Minister of Justice, Ms. Nicole Belloubet.

Why?

Various factors have given rise to the idea of creating a commercial court for international disputes in Paris.

First, a contextual element: the announced Brexit will necessarily have an impact on the European legal landscape. Even though, today, nearly 90% of the litigation relating to financial contracts is located in London and 40% of international arbitrations are subject to English law, this situation could soon evolve. By leaving the European Union, London will certainly gain freedom, but it will lose an essential instrument of its attractiveness: European judicial cooperation in civil and commercial matters. In other words, decisions in London will have to be enforced in each European State only after having obtained an exequatur, with all the additional time and costs this generates.

In fact, the plausible decline of London leads to the emergence of other legal and financial centers. Frankfurt, Dublin or Paris are on the line. Paris has great assets to become the legal base of reference (our language, our legal system that shines, our efficient and inexpensive courts, our universities and colleges, the headquarters of major multinational companies, our infrastructure ...).

Next, an economic element: the legal market is a determining issue. France currently generates around 31 billion euros in this area, nearly 2% of GDP. By comparison, in 2016, commercial litigation yielded £ 25 billion to the UK Treasury. The law is a decisive economic asset. It is also a vector of attractiveness for finance. Paris will become the continental center of finance only if it is, first of all, the continental center of law. The law becomes a market, an instrument of the economic attractiveness of France.

Moreover, the consensus recognized that our commercial courts have thus far a moderate international attractiveness, and that drafters of international contracts sometimes have trouble convincing their counterparts to choose Paris as the competent jurisdiction. Their fears - right or wrong - essentially concern the obligation to use the French language, the inadequacy of our rules of evidence, the overcrowding of courts and the unpredictability of judgments. Hence the more frequent use of mediation or international arbitration.

Finally, an element of comparative law: many States have established specialized courts to deal with international commercial disputes, particularly in Doha, Singapore and Dubai. Germany and Belgium are also considering this option. Paris cannot remain indifferent to this growing demand.

Also, President Canivet, author of a report submitted to the Garde des Sceaux last March, proposed the creation of chambers, in Paris, specialized in the handling of international commercial disputes.

The High Legal Committee of the Paris Financial Center (Le Haut Comité Juridique de la Place Financière de Paris) also supported this perspective.

What?

A certain terminological ambiguity has emerged. It is sometimes a question of creating a specialized court, endowed with its own means and particular premises. Other times, it is more modestly referred to as specialized chambers within the Paris Commercial Court and the Paris Court of Appeal.

The High Legal Committee of the Paris Financial Center (Le Haut Comité Juridique de la Place Financière de Paris) spoke of the need to create a specialized court: the international commercial chamber.

The Canivet Report referred to specialized judicial chambers for the settlement of transnational business law disputes.

At the conference on December 13th, the two terms, court and chambers, were used interchangeably. It seems at this stage, and the signing of the protocols by the Minister of Justice will bring the required clarity, that it is more about creating specialized chambers within the Paris Commercial Court and the Court of Appeal of Paris rather than creating an autonomous court.

It was noted that since 1995 the Paris Commercial Court has had specialized chambers in this area. It has been suggested to build upon the existing model and to take it a step further, notably by modifying the procedural rules.

What are the characteristics of these specialized chambers?

Specialized chambers would demonstrate their international openness through different aspects.

First, by the use of the English language.

This is a delicate issue given that the ordinance of Villers-Cotterêts imposes the use of the French language for all acts of justice and the Constitution states that French is the official language.

In order to not obstruct these prescripts, Ms. Belloubet proposed that one should consider a solution based on compromise.

Thus, it was suggested that the parties and their lawyers could speak English in front of the specialized chamber and communicate all their evidence in English. The judge may, nonetheless, require a French translation of the evidence.

The judge however, should speak in French since he represents the State and accordingly render his judgment in French, accompanied by a translation if necessary. In practice, this means that the judge would speak French to litigants who speak English. The viability of this process is questionable.

It has been envisaged to use a system of translation booths (but the cost is particularly high) or automatic translation software (whose reliability is not yet assured).

Next, the international openness of the specialized chambers would be demonstrated by modified rules of evidence.

The debate developed around the opportunity to import the discovery procedure before the specialized chambers, but by limiting the scope to avoid inflating the budget and time-consumption.

It has been proposed that communication in English without translation should be permitted, as well as adversarial discussions of the evidence, hearing of the experts, parties appearances in person ... Many practices that are often the case today in international arbitration.

A protocol has been concluded between the Commercial Court, the Court of Appeal and the Ministry of Justice. It has not yet been signed.

On the merits of the law, no change is to be noted: the specialized chambers will judge according to the law applicable to the substance of the dispute, which will make it possible to hear, in France, litigation subject to English law.

The Challenges

The creation of these specialized chambers, we are next told, poses significant challenges, including:

• The recruitment of bilingual judges trained in Common lawpractices;
• The recruitment of bilingual clerks / assistants;
• The training of judges and assistants to new issues (discovery, process requirements…);
• The publicity of these new chambers must be widely ensured, at national and international levels. Legal directors who negotiate contracts do not wish to have to ‘sell’ the jurisdiction of the Paris courts;
• The financing of this new public service of justice, which is necessarily more expensive (translation, interpreting, length of hearings ...).

  Agrégé des Facultés de Droit, Louis Thibierge is Professor at the University of Aix-Marseille and Member of the  Centre de Droit Economique de l’Université Aix-Marseille.

• Apnéa Médical and Cardair, located in eastern France,
• Human’air, based in the east of the Ile-de-France and
• Air Médial Santé, established in the southeast.

They generate annual revenues of almost €6 Million and accompany close to 7,000 patients. The Bastide Le Confort Médical group now follows more than 47,000 patients, confirming its position as a key player in the market.Furthermore, the group finalized the acquisition of Sphère Santé, leader in the online sale of products for urinary disorders, with more than 280,000 clients served since its founding. Sphère Santé generates close to €10 Million in annual revenues.It should also be noted that the group has become the majority shareholder in Ulimed, a company specialized in enterostomal therapy, with a 51% stake (previously 26%). This company generates €8 Million in annual revenuesWith these five acquisitions, the Bastide Le Confort Médical group consolidates more than €23 Million in additional annual revenues. All five transaction were financed by the Group’s new syndicated credit facility announced last July.Counsel to Bastide Le Confort MédicalAltana: Arnaud Fayolle and Marie-Renée MbockCounsel to Apnéa MédicalACD: Philippe SesterCounsel to CardairFrédérique MoehrelCounsel to Human’airOratio Avocats: Julien PineauCounsel to Air Médial SantéClaude DauriacCounsel to Sphère SantéGrégoire Finance and Vincent Pellier About AltanaAltana is an independent Paris-based business law firm of 80 lawyers with multi-disciplinary teams offering a combination of transactional and litigation expertise in the following areas:Arbitration/Mediation, Competition/Distribution, Construction & Real Estate Law, Corporate/M&A, Criminal Law, Employment, Insurance, Intellectual and Digital Property Law, Litigation, Public Economic Law and Restructuring.All 80 lawyers, including 22 partners, share the common values of entrepreneurial spirit, independence, commitment, international perspective, lasting and privileged client relations, effective involvement by the partners in each case, pragmatic and innovative solutions. Press Contacts

Gilles Gaillard (Corporate and Insurance), Valérie Lafarge-Sarkozy (Litigation), Frédéric Manin (Competition), Frank Valentin (Intellectual and Digital Property) and their respective teams join Altana, which now has 80 lawyers, including 22 partners.

Altana, which has tripled in size since its creation in 2009, confirms its success and position. The firm reinforces its capacity to treat emblematic and complex matters for a clientele of institutions and international and family groups. It strengthens its already well-recognized expertise and multiplies the strong synergies between its practice areas.

“We have known Altana and its partners for many years. A strong affiliation exists between our teams, personally as much as professionally. Our merger seemed natural to us given our common values and the strong synergies between our practices and our clients”, emphasized Valérie Lafarge-Sarkozy and Frank Valentin.

“Beyond the pleasure that we have in welcoming our new partners and their teams, reasoning as a business, this merger will allow us to expand our capacity to invest in large-scale projects”, add Christophe Lapp and Philippe Goossens, two of Altana’s founding partners.

● Corporate & Insurance ●

Gilles Gaillard, Partner and member of the Paris bar since 1993, has developed over more than twenty years of solid expertise in corporate finance and business law and insurance law, particularly in public and private mergers and acquisitions, capital investment and corporate restructuring for French and international clients, with particularly extensive experience in the finance, insurance, pension funds and life science sectors.

●

Julie Rolet, Counsel, specializes in business law, mergers and acquisitions and stock market law. Member of the Paris bar since 2007, Julie holds a Postgraduate degree (DESS) in Business Law and Taxation (Paris-II University) and a Master’s degree in Business Law (Paris-II University).

● Litigation ●

Valérie Lafarge-Sarkozy, Partner, specializes in business litigation and pre-litigation. Member of the Paris bar since 1985, Valérie advises a French and international clientele made up of insurance companies, banks, industrial groups, accounting firms and auditing firms. More specifically, her areas of expertise are: complex or group litigation, class actions, emerging risks (cyber risks) and the management of the often-related crises, be it shareholder disputes, product liability, or executive and bank liability.

●

Gautier Barat, Associate, specializes in business litigation. Member of the Paris bar since 2011, Gautier holds a Master’s degree in International Business Law and Management (ESSEC Business School), a Diploma in Legal Studies (University of Oxford (United Kingdom)), a Master’s II DJCE in Business Law (Paris-II University) and a Master’s I in Business Law (Paris-II University).

●

Célia Hamouda, Associate, specializes in commercial and stock market litigation and in arbitration. Member of the Paris bar since 2014, Célia holds a Master’s II in Business Law (Paris Dauphine University) and a Master’s I in Business Law (Paris-II University).

● Competition ●

Frédéric Manin, Partner and member of the Paris bar since 1996, specializes in Competition/Anti-trust law, under European and French law, for large French companies and foreign operators active in the aerospace, insurance, air transport, service (computer, financial), energy, health, defense and construction sectors. He has been designated an Expert within the ICN (International Competition Network).

● Intellectual and Digital Property ●

Frank Valentin, Partner and member of the Paris bar since 1998, has developed almost 20 years of experience in Trademark and Copyright crisis litigation, particularly in the internet and motion picture sectors. He also manages patent litigation for important players in the fields of information technology and life sciences. Besides his skills in complex litigation, he has acquired significant expertise in the strategizing of anti-counterfeiting campaigns for IT and software companies. Frank and his team have developed a global Trademark offer, from portfolio management to anti-counterfeiting programs, and he also assists IT companies in the implementation of their data privacy and digital programs.

●

Charlotte Hébert-Salomon, Associate, specializes in IT and New Technologies law, Intellectual Property and Commercial law. Member of the Paris bar since 2009, Charlotte holds a postgraduate degree in Innovation, Communication and Culture Law – Specialization in Copyright on Digital Works (Paris-XI University) and a Master’s degree in Business Law (Paris-II University).

●

Marina Gau, Associate, specializes in Intellectual Property and New Technologies law. Member of the Paris bar since 2013, Marina holds a postgraduate degree in Innovation, Culture and Communication – Specialization in Technological Innovation Law (Paris-XI University), a diploma (ESSEC) and a Master’s degree in Business Law (Paris-I University).

●

Alix Moreau, Jurist, specializes in intellectual property. She is in charge of the management of trademarks portfolios, their protection and their defense.

Click here to read the article (in French)

More than 400 M&A lawyers from all over the world attended this Conference.

The firm will contribute its experience to the development of measures that promote the emergence and growth of companies in France.

Click here to visit CroissancePlus website

For its third consecutive participation, Altana renews its commitment to “Tête en l’air”, who has worked for 15 years on behalf of children who have undergone neuro-surgery and their families.

Red2Green is a financial advisory firm specializing in M&A transactions and restructuring that was founded in 2006 by Christophe Alquier. Mr. Alquier, along with Nicolas Verrier, becomes a partner at Grant Thornton through this transaction.

With this transaction, ALTANA further establishes its expertise in advising restructuring sector professionals, as the team has also advised Special Debt Situations Ltd. and Jean-François Cizain, previously at Lazard, when he joined Messier Maris & Associés in 2015.

The Fight Against Fraud and Corruption . . . Internal Inquiries!

Dealing with Pleasant and Unpleasant Surprises

Litigation and Pre-Litigation: Making the Expert Appraisal a Weapon and Knowing How to Use it As Such. What do judges expect? What are the latest forms of appraisal and innovative practices ?

Discover the 2016 program

a variety of apt themes and inspiring presenters.

• Contracts and business relationships to which English law could apply need to be identified.

The content of English law will be affected by the disappearance of the direct applicability of, in particular, the European regulations that apply without national transposition. The content of the law applicable to contracts could therefore be significantly amended.

• Identify the contracts likely to be affected by a potential economic imbalance

Existing contracts therefore need to be examined to know if they contain a hardship clause. Contracts currently under negotiation that will be signed from 1 October 2016 on (the effective date of the Order on contract law reform) need to be negotiated taking into account the new provisions of French contract law regarding unforeseeability.

Future financial dealings between British companies and companies from European Union Member States risk, at the very least, being subject to customs duties and an exchange rate much more instable than those of today.

• Activities in regulated sectors need to be identified

Some of these activities are only possible, in fact, due to the existence of a “European passport” or an authorization or approval issued under European law and must also be identified. The end of the validity of such passports / authorizations / approvals could render the exercise of the activity in question impossible or necessitate the request of specific authorizations.

Marie Davy and Guillaume Forbin

• Julien Balensi Best lawyer in Litigation
• Guillaume Forbin Best lawyer in corporate law, litigation-commercial
• Marianne Franjou  Best lawyer in Labor and Employment Law - Labor & Employment
• Philippe Goossens Best lawyer in White-Collar Criminal Defense
• Christophe Lapp Best lawyer and Lawyer of the year in  Arbitration and Mediation, Construction Law, Public Law, Real Estate Law
• François Muller Best lawyer in Construction Law - Construction, Urbanization, Public Law

Corruption and influence peddling are already heavily penalized under our Law. The Sapin II Bill proposes that companies self-regulate . . . or be penalized, and this even in the absence of any acts of corruption or influence peddling. It is thus proposed that we dig a tunnel under the legal Channel . . . and change the paradigm.

• A code of conduct;
• An internal alert system
• Regularly updated risk mapping targeted at the identification, analysis and prioritization of external exposure and solicitation risks;
• Client, supplier and intermediary evaluation procedures;
• Accounting audit procedures, internal and external
• A training program for managers and personnel with the highest exposure;
• A disciplinary penalty system

A new Prevention Agency will be able to investigate and sanctionThe audits shall be carried out by the new National Agency for the Prevention and Detection of Corruption at its own initiative or upon request from the Justice or Budget Minister (Article 4 and 8). The Agency, which will take over the services of the previous Central Service of Corruption Prevention (Service Central de Prévention de la Corruption) and whose financial and human resources will be increased, will be able to:

• request any professional document from the company’s representatives and make a copy thereof
• conduct on-site audits of the accuracy of the information provided
• meet, confidentially, with any person whose cooperation seems necessary.

Upon the audit’s completion, a report containing the observations regarding the quality of the system and recommendations for its improvement shall be established and transmitted to the Minister and to the company.In case of a breach, and after formal notification, the matter shall be referred to a sanction commission who may impose a fine of €200,000 for natural persons and up to €1 million for legal persons. It may also order the publication, diffusion or display of the decision.The disclosure and repression of corruption will be facilitatedThe Sapin 2 draft bill extends whistleblower protection to the financial sector as for market abuse (Article 7). In continuation of previous laws on whistleblower rights, it also entrusts the new Agency with a mission to receive, direct and protect whistleblowers (Article 6).After verification; the agency may even adopt the alerts to its own behalf and transfer the information to the Justice, thus anonymizing the original disclosure.In case of conviction for acts of corruption or influence peddling, the draft bill creates a supplementary compliance penalty, executed under the control of the public prosecutor, which includes the obligation for the convicted person to implement a monitoring system (Article 9). The non-compliance with the penalty will constitute a new criminal offense.The monitoring shall not exceed 5 years and the enforcement judge may end it earlier upon request from the public prosecutor.Acts committed abroad shall be sanctionedThe draft legislation provides for the extension of the territorial application of French criminal law. It also creates the offense of influence peddling of a foreign official and provides the possibility to convict foreigners residing regularly in France for acts of corruption and influence peddling committed abroad (Article 12).Some essential points for effectively fighting corruption are missingWhile expectations were high in the economic and legal world, we nevertheless regret that:

• following the Council of State’s 24 March 2016 opinion, the draft legislation no longer contains the elements on the creation of a form of penal transaction called the Public Interest Compensation Agreement, considered in light of work with representatives from the corporate world;
• no reflection was undertaken to modernize the criminal procedure for economic and financial matters, with regards to, for example, the current guilty plea;[i]
• the rights of defense or the place of the judge, guardian of freedom, are not really broached even though the administrative body is granted new investigative and sanctioning powers;
• efficacious compliance systems are not more highly valued in the event of detection of isolated acts;
• nothing has been envisioned in terms of modulation of the gravity and the type of penalty imposed, of conditions related to a legal person’s recidivism or the removal of the automatic exclusion from public procurements.

The Draft Bill on Transparency, Anti-corruption and Economic Modernization constitutes a risk and a challenge to which French companies are going to have to continue to pay attention during the parliamentary debates.Caroline Diot[i]On this point, see the article “Corruption: France Finally Responds!” by Caroline Diot and Fabien Pouchot http://www.advant-altana.com/en/medias/corruption-la-france-reagit-enfin

• Make prevention an obligation

The bill will formalize the obligation to take measures for detecting the commission, in France or abroad, of corruption. The objective is to obligate companies to implement effective systems of governance and compliance.The envisioned compliance programs would be monitored by a new National Agency of Corruption Prevention and Detection to monitor and enforce the implementation of these procedures through the publication of guidelines, the systems audit capacities and, finally, sanctioning powers. Beyond even the prevention and in case of sentencing, the new Agency would also participate in the implementation of an additional penalty known as prevention system “compliance”.If the system is inspired by the “monitorship” integrated in the FCPA, practical questions are posed with regard to cultural differences and the fear of experiencing the National Agency’s action as an intrusion, which could limit the measure’s incentive effect and its effectiveness.

• A real power of sanction by a service of the State

The anti-corruption programs must not remain declarative. In case of difficulty in the implementation, the new Agency could put the companies on notice and impose penalties, including against natural persons, and of which the amount could reach up to €1 000 000 for companies.What should, then, these programs contain? The main themes to be followed would likely be set based on the guidelines of the current Central Service of Corruption Prevention, namely the commitment of leaders at the highest levels, the evaluation of risks and the establishment of reference, procedural and control documents.

• What companies would be affected?

Companies employing more than 500 employees and with more than €100 million in turnover would be affected. Debates will take place on the question of these thresholds because they do not, as is, meet any known definition in the SME or mid-cap company categories.

• Evaluate the compliance system in the face of criminal risk

Even if the majority of companies with activity abroad have already integrated the risks associated with the Bribery Act or the FCPA, the scope of application and the question of timing imposed on companies to comply with the new obligations will be debated.If one wants to ensure that the “compliance” systems are effective and that fraud is reported, it will be necessary to ponder the positive impact that these systems will have and to imagine how the criminal liability of the legal entity would not necessarily be incurred when the acts have been committed by an executive in isolation and in violation of internal rules. But also how to modulate the gravity and the type of penalty incurred, modify the conditions of recidivism and reflect on the means of avoiding the automatic exclusion from public procurements.

• Necessity of an upstream and/or downstream audit of an M&A transaction

Companies should be even more vigilant regarding the detection of corrupt practices in their due diligence prior to their external growth transactions. An a posteriori audit could prove to be very useful in avoiding heavy financial sanctions and penalties related to the acquisition of a target not in compliance with the new legal obligations regarding corruption. The importance of a criminal audit combined with an upstream/downstream M&A audit for an acquisition would thus prove indispensable.

• Develop the penal process

But would it be necessary to limit these reflections to only this field? Shouldn’t improvement of the combat against fraud and the competitiveness of French companies come from an evolution of the penal process? Our current process of pleading guilty, carried out by financial prosecutors and examining judges “in their sleep”, is disparate and results in a public conviction which carries the consequence of the automatic exclusion from public procurements.Experience has shown, however, that through confidential negotiations with the Anglo-Saxon prosecutors, solutions could be found rapidly, within acceptable financial proportions and without the companies having to fear excessive media coverage or an exclusion from foreign public procurements.Firmer and more rapid solutions such as the public interest netting agreement are foreseen under the “Sapin 2 Bill”. The fine could reach 30% of the average turnover over the last three years. An upheaval of French law which joins the introduction under the “Sapin 2” law of the ending of accumulation of prosecutions and sanctions in administrative and criminal matters.The relationships between the Public Prosecutors, judges and economic actors should therefore be reconsidered and, in our estimation, it seems essential that these new procedures give precedence to the role of the judge in order to better protect the rights of the defense.The undertaking is vast but it is an important component of the economic war waged against French and European companies. A different – and broader – undertaking is that of the reform and harmonization of the French and European tax systems. France should not react but act to finally rise to the international economic standards and make Paris a place of competitive law. Caroline DIOT & Fabien POUCHOT

Paris, 12 January 2016

Women’s Forum President Clara Gaymard and Executive Director Jacqueline Franjou with the Tunisian delegation.