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The firm regularly posts comments and legal notes on current topics related to the concerns of its clients.

 

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July 2018 | Newsletter 11

 

GENERAL DATA PROTECTION REGULATION

 

On 27, April 2016, the European Parliament and the European Council adopted a new legal regime for the protection of personal data in the form of the General Data Protection Regulation (GDPR). The rules in question, which are particularly innovative, will become applicable on 25 May 2018.

 

Their transposition into French Law provokes a major overhaul of the guarantees relating to the individual information that each of us is required to provide daily for the execution of many services. This seems even more necessary and urgent as the rise of the digital economy, through the proliferation of services offered on the internet, is constantly increasing the risks of infringement on the privacy of users, that is to say ours. But what are we talking about?

 

 

The new instrument applies to “controllers” (Article 4.7), i.e. those who define the terms and purposes of the data processing they are responsible for, with the support of “processors” where appropriate (4.8), as long as they are each established in the European Union (hereinafter referred to as the EU) and / or they each process data belonging to individuals who are on the territory of the EU in the course of their activities (Article 3).

 

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RECENT CASE LAW

Suicide occurring as a result of work but outside the workplace constitutes an accident at work that must be proven by the party representing the employee victim. In a Judgement of April 11, 2018 (n° 16/06201 - Lexbase : A7109XKI), the Cour d’Appel de Rouen clarified the regime of the accident at work in the context of an employee’s (Mr. Z) suicide that intervened as a result of his work, although outside his place of work. The widow of the victim (Mrs. Z) asked the company which employed her husband to declare his death as an accident at work.

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The dismissal for willful misconduct of the employee does not involve – not any more at least - the loss of pay in lieu of vacation, including for the proceedings running on March 2, 2016, date of which the French Conseil Constitutionnel declared as being unconstitutional the opposite solution that prevailed until then. An employee (Mr. X) had been dismissed for willful misconduct following a physical assault on his employer (Mr. Y).

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RECENT CASE LAW

 

The order dismissing an application to erase the registration in the Interior Ministry Automated Fingerprint File of a person accused of slanderous denunciation constitutes an excess of power for the President of the competent Instruction Chamber, as long as this decision is based on grounds not provided for in the applicable law, namely Article 7-1 III of Decree n° 87-249 enacted on April 8, 1987. The Criminal Chamber of the French Cour de cassation indicates in a judgment of April 10, 2018 (n° 17-84674-PB) that it belongs to the competent Judges :

 

  • to check whether the registration of fingerprints complies with the regulatory conditions in force;

     

  • and to assess the need for their retention according to the purpose of the file, which depends in particular on the circumstances of the offense and the personality of the person concerned.

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The fact that a maintenance agent did not use a delegation of authority to secure the work facilities and not to have committed in person (directly) the manslaughter of an agent « fatally wounded » by the explosion of a machine rendered insecure by abnormal conditions of use is not sufficient to exclude the criminal liability of the legal person concerned from the moment when the offense actually (even indirectly) takes place by an organ or a representative having acted on behalf of it. In this case, a maintenance operator died as a result of an accident during the repair of an oil extraction pump.

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RECENT CASE LAW

 

Only the liquidator has the power to act in fixing how much the partners of a company in liquidation contributed to its social loss according to Article 1832 paragraph 3 of the French Code civil. In a judgment of May 3, 2018 (n° 15-20348), the Commercial Chamber of the French Cour de cassation censored the admissibility on appeal of a request made by two partners on the basis of Article 1832 of the Civil Code, which was intended to condemn two other partners for their share of the social loss endured by a Société Civile d’Exploitation Agricole (civil farming company) – SCEA -  in liquidation.

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Trial Judges assess the amount for a condemnation of several managers, one of whom is the subject of a collective action in her personal capacity for the exercise of another professional activity, to the extent of their individual liability for insufficient assetsIn this case, the legal redress and liquidation of a transport company had resulted in the appointment of a liquidator, who had decided to sue this company managers, Mr. and Mrs. X, in liability for insufficiency of assets. Mrs. X being in legal redress for another professional activity, the liquidator assigned her legal representative in forced intervention.

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June 2018 | Newsletter 10

 

PUBLIC INTEREST JUDICIAL CONVENTION

 

Having in mind the anticorruption mechanisms of the Anglo-Saxons regime, especially those of the American Foreign Corrupt Practices Act of 1977, the French legislator introduced by Law No. 2016-1691 of December 9, 2016 (known as SAPIN II) a range of innovative legal mechanisms with the aim of improving the prevention and the repression of certain offenses involving dishonesty and moral turpitude of the economic agents.

 

 

This legislation “relating to transparency, the fight against corruption and the modernization of economic life” puts at the disposal of the public authorities a series of new and promising elements. Among them is the Public Interest Judicial Convention (PIJC), a transactional measure inspired by the Deferred Prosecution Agreement, which the US Department of Justice does not fail to use when it comes to impose formidable fines on corrupted operators.

 

The adaptation in French Law of this emblematic instrument is determined by the new article 41-1-2 of the French Code of Criminal Procedure. It is of a paramount importance for the concerned parties to ensure, through their legal advisers, that they are sufficiently aware about the new legal regime as long as the government is slow to lay down implementing decrees, circulars and general guidelines that would define it in a better way.

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RECENT CASE LAW

Unauthorized access of the employer to the Facebook account of an employee – The social chamber of the French Cour de cassation estimated in a judgement of December 20, 2017 (n° 16-19.609 F-D) that unauthorized access of the employer to information posted on the Facebook account of an employee, with whom he is opposed in the context of a labour law dispute, constitutes a disproportionate and unfair infringement of his private life.

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Compensation for home work in the absence of business premises – The employee obliged to perform his work at home in the absence of business premises must be compensated for the subjection he suffers because of this situation, which is left to the sovereign appraisal of the trial judges.

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RECENT CASE LAW

 

The refusal for one of the members of a management board to make the transition after a restructuring that does not meet his expectations of being appointed chairman of a French Société anonyme (SA) cannot serve as a valid reason for his dismissal – In this case, the individual in question was convinced to succeed sooner or later to the President of the defendant SA. Contrary to this individual ambition to preside over the company, the supervisory board began to merge with a competing company. Determined to leave the executive board following the total disappointment of his legitimate beliefs, the plaintiff refused the offer of an amicable departure which enjoined him to stay in place while restructuring the management of the company. His refusal would have motivated the decision of the members of the supervisory board to dismiss him on the spot.

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The triennial prescription of the action seeking responsibility of the corporate leader starts from the day of the harmful event, or from the day of its finding in case of dissimulation – The date of the placement in legal redress of a company seeking to engage the responsibility of a director for misconduct committed in the execution of its mandate as an administrator does not mark the default launching point of the limitation period for the action. This is the position the judges of the French Cour d’appel of Bourges held on May 7, 2015, before the commercial chamber of the Court of cassation censored them pursuant to articles L225-254 and L227-8 of the French Code of Commercial Law by a judgement of December 20, 2017 (n° 15-23.218).

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RECENT CASE LAW

 

The liquidation procedure does not in itself cause the termination of the contracts in force at the time of its lunch – The judges of cassation have recalled by a judgement of October 25, 2017 (n° 15-24.060) that the organs of the collective procedure did not have to request the continuation of the contractual engagements of a company on the verge to be liquidated, knowing that the opening judgement of the liquidation process remained as such without effect on their contractual effectiveness.

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Condemnation of a creditor for a characterized interference with the management of the debtor who is subject to a collective action – By an judgement – unreported – of January 10, 2018 (n° 16-10.824, FS-D), the commercial chamber of of the French Cour of cassation validated for the first time the appeal condemnation of a ruinous credit provider in application of article L650-1 of the French Code of Commercial Law. 

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