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By a judgment dated April 1, the Court of Cassation has just clarified the scope of competence of the marie in matters of waste.
Indeed, in principle, it is the mayor who has the special waste police. it is therefore competent, in particular, to manage illegal dumping of waste (the tragedy of the death of the mayor of Signes in August 2019 is there to remind us of this…)
It is therefore the mayor who is competent to take with regard to the producer (…)
For any clarification: moc.stacovaueilehcir@tcatnoc
Two recent decisions of the social chamber of the Court of Cassation have clarified the question of the proof of overtime.
Proof of overtime is not the sole responsibility of either party. Article L.3171-4 of the Labor Code provides that in the event of a dispute, the employer provides the judge
with the elements likely to justify the hours actually worked by the employee, then the judge. form his conviction
in view of these elements and those provided by (…)
For any clarification: moc.stacovaueilehcir@tcatnoc
When a company commits a breach which could be the subject of criminal, judicial or administrative sanctions, before being absorbed by another company and being dissolved, can the acquiring company be condemned for the breaches previously committed by the absorbed?
The answer is yes. Put another way, in a group of companies, the dissolution-absorption of a subsidiary does not make it possible to erase the consequences of prohibited behavior.
This was judged for several types of faults, and the exception that existed in criminal matters has just disappeared since a judgment of 25 November 2020 by the criminal chamber of the court of cassation (…)
For any clarification: moc.stacovaueilehcir@tcatnoc
In view of the containment measures taken within the framework of the state of health emergency declared by law n° 2020-290 of March 23, 2020, the Government has, by two ordinances of March 25, 2020 n° 2020-318 and 2020 -321, adapted the rules relating to the methods of closing and approving the annual accounts and those concerning the methods of meeting and deliberation of general meetings and management bodies of companies.
Special provisions relating to the methods of closing, approving and publishing the annual accounts
Ordinance No. 2020-318 provides for an extension by three months of the legal deadline for closing accounts (which should normally take place within three months from (…)
For any clarification: moc.stacovaueilehcir@tcatnoc
After the first emergency announcements, the Government clarified the measures put in place to limit the current health crisis and help financially impacted companies in order to preserve jobs and avoid defaults.
On the closure of certain establishments open to the public
Category L: Audition, conference, meeting, performance or multipurpose rooms
Category M: Sales outlets and Centers (…)
For any clarification: moc.stacovaueilehcir@tcatnoc
Faced with the consequences of the health crisis, the following contractual subjects should be studied by your company (beyond questions of cash flow, loans and partial unemployment).
1. suspension for force majeure. Either your company needs to invoke it against a co-contractor to suspend the performance of your obligations, or one of your service providers invokes it against you to justify a non-performance. Even if the state has declared to admit it in public procurement, we must first (…)
2. renegotiation request for unforeseen circumstances. The health crisis can have the effect of making the execution of a contract
excessively onerous for you or for one of your co-contractors. Unless expressly waived in the contract (to be verified), renegotiation may be requested with the visa of Article 1195 of the Civil Code. Keeping in mind that: - during the negotiations, the parties must continue to fulfill their obligations, - the consequences of a refusal or failure of the negotiations are not trivial (…)
3. sharp drop in orders: termination of relations without notice and without liability. A sharp drop in orders is in principle equivalent to a termination of commercial relations and implies respecting a prior notice when these relations are
established. However, according to relatively extensive case law, a company does not engage its responsibility if it imposes, without written notice, (…)
4. insurance. Remember to analyze your insurance policies to see if your possible operating losses can be compensated (…) Also remember to reread the methods of calculating your insurance premiums, (…)
For any clarification: moc.stacovaueilehcir@sniluomed
Ordinance No. 2020-460 of April 22, 2020, published on April 23 in the Official Journal, changed several important points of the partial activity regime that you may have wondered about since the outbreak of the health crisis.
1. Social scheme for additional indemnities paid by the employer. From 1 May 2020, if the accumulation of the partial activity indemnity with the additional indemnity paid by the employer, in application of an agreement collective or unilateral decision, exceeds 70% of 4.5 times the value of the minimum wage, the part of the additional allowance paid in excess of this amount will be treated as salary and subject to social contributions (see article 5 amending article 11 of ordinance n° 2020-346 of March 27, 2020). (…)
2. Integration of usual overtime. (…)
3. Individualization of partial activity. (…)
For any clarification: moc.stacovaueilehcir@elliverped
The Plenary Assembly of the Court of Cassation has just confirmed its 2006 case law (AP January 13, 2020, n° 17-19.963) by reaffirming the principle according to which
the third party to a contract can invoke, on the basis of the tort liability, a breach of contract since this breach has caused him damage.
Concretely, this means, as the Court of Cassation explains (with its new way of drafting and justifying its decisions) that:
20. The breach by a contractor of a contractual obligation is such as to constitute a wrongful act against a third party to the contract when it causes him damage. 21. It is important not to impede compensation for this damage. 22. Therefore, the third party to the contract who establishes a causal link between a breach of contract and the damage he suffers is not required to demonstrate a tort or quasi-tort distinct from this breach.
Thus, the third party to the contract is not required to characterize the breach towards him of a general duty of care and diligence, or of the general duty not to harm others, and he only has to prove.
(…) LEARN MORE
Since 2014, several laws have modified the system of maximum payment terms (Articles L.441-10 et seq. Of the Commercial Code) by giving State officials rather formidable powers of investigation, injunction and especially sanction to ensure compliance.
Procedure: investigation and brief adversarial phase (articles L.450-1 and s. C.com)
In order to determine the overruns of your company’s payment deadlines, officials authorized by the Minister of the Economy (DGCCAFC or RDECCLE agents) can visit the company, ask questions and demand the delivery of documents (articles L.450-1 and sccom.). The investigations give rise to the establishment of reports, then to the notification of breaches and the sanction that the administration intends to pronounce. You then have 60 days to make your observations known in writing or orally, by having access to the documents referred to by the administration. After this period, the administration imposes sanctions, if necessary.
Sanctions: decriminalization and strengthening of administrative sanctions
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In line with our previous Cardinal Points on the subject of anti-corruption measures, we would like to draw your attention to two new features (see the hypertext links below).
Judicial Convention of Public Interest (JCPI)
The FAA and the Financial Prosecutor have recently put online the
guidelines on the implementation of the judicial convention of public interest, which allows a legal person prosecuted for corruption to avoid heavy penalties that can be pronounced by a criminal court (after years of proceedings). Proposed by the Public Prosecutor’s Office but can be suggested by the company concerned, it does not imply recognition of guilt, and does not lead to exclusion from French or even international public contracts.
The guidelines detail its implementation, and insist on the behavior expected of society, which is very different from the
defense-resistance usually deployed in France in criminal matters: self-denunciation, cooperation, internal investigation, enforcement. spontaneous place of a compliance program, etc.
1st decision of the sanctions commission
On July 10, the first decision of the FAA Sanctions Committee (dated July 4) was released. Seized by the director of the FAA in order to request an adaptation by a company of its compliance procedures, the commission did not pronounce either injunction or financial penalty against the company by noting that, on the date on which it ruled, none of the breaches invoked by the director had been noted by it.
The company had in fact implemented a long process of improving and fine-tuning its corruption risk mapping after the FAA’s audit.
This decision therefore confirms that the commission assesses the reality of the breaches when it rules.
(…) LEARN MORE
The Court of Cassation has just validated today (Wednesday, July 17, 2019) the ceiling for industrial compensation for unfair dismissal set by Article L.1235-3 of the Labor Code. This cap was the flagship measure of the reform of the labor code put in place by Emmanuel Macron.
In its opinion, the Court of Cassation ruled that the operative part of this
Macron scale was compatible with Article 10 of Convention No. 158 of the International Labor Organization (ILO). On compatibility with Article 24 of the European Social Charter, the Court of Cassation recalled that these provisions have no direct effect in domestic law in a dispute between individuals.
If this is only a non-
binding opinion from the Court of Cassation, it is a safe bet that it will be followed by most courts of appeal. The Paris Court of Appeal is due to rule on the issue on September 25. We will follow with interest the decisions of the appeal courts.
We are of course at your entire disposal to answer any questions you may have.
The Richelieu lawyers social team
(…) LEARN MORE
After several attempts, and following EU Directive 2016/943, the legal protection of
business secrets was established by law n° 2018-670 of July 30, 2018 supplemented by decree n° 2018-1126 of December 11, 2018 (creating new articles L 151-1 et seq., R 151-1 et seq. In the Commercial Code, amended by the laws of March 23 and May 22, 2019: see Attachment).
Like any legislative clarification, this sets out rules, the application of which will give rise to discussions and case law… Thus, information is protected under business secrecy if (art. L151-1 of the Commercial Code):
(…) LEARN MORE
During a previous Point Cardinal (below), we informed you about the need to respect sufficient notice before terminating (even partially) any commercial relationship when it presents a certain stability, except serious breach of the part undergoing the rupture (or force majeure).
(…) However, the Government has just amended by ordinance Article L442-6 of the Commercial Code with the intention of restricting the litigation arising from this text (the
excesses of which have had negative effects to the detriment of competition and of consumers), now the new article L442-1 of the Commercial Code (applicable from April 26, 2019), with the major innovation being that henceforth
the responsibility of the author of the breach cannot be incurred from chief of insufficient duration once he has complied with a notice period of eighteen months.
In other words, (…)
Warrants make it possible to subscribe for shares in proportions, a price and a duration fixed in advance, and they are not subject to a tax regime or to a specific social regime, unlike warrants. for the subscription of shares of company founders (BSCPE), free shares and stock options which are reserved for employee profit-sharing.
The fire had been smoldering for several months with the stops of some (…)
Regulation 2016/679/EU of the European Parliament and of the Council of 27 April 2016 on the protection of personal data (GDPR) takes effect today, the 25th of May 2018.
From today onwards, your company is required to comply with the obligations of the GDPR and thus provide sufficient, appropriate safeguards protecting the personal data in its possession (data concerning employees, customers, suppliers and partners, etc.), failing which penalties may be imposed (…)
By Decree No.2017-1398 of 27 September 2017, applicable to terminations, retirements and collective layoffs, legal severance pay must now be no less than:
Following the preceding Points Cardinaux on this subject, we draw your attention to the fact that the Sapin Law 2 was promulgated and that its provisions on combatting corruption will come into force on 9 June 2017. Its implementing decrees are expected next February or March.
It creates new obligations for executives of companies employing at least 500 employees and with a turnover of at least€100M (and any company belonging to a group with a parent company with a corporate headquarters in France and employing at least (…)
Binding force: Article 1134 becomes Article 1103, in the introductory provisions, the term
conventions in this article as in many others,
Double sale of movable assets:
whoever has first taken possession of this asset has priority, even if his right is subsequent, provided that it is in good faith (Article 1193, para 1) (…)
Significant disparity (Article 1171)
In an adhesion contract, any clause which creates a significant disparity between the rights and obligations of the parties to the contract is deemed null and void. Evaluation of the significant disparity concerns neither the main purpose of the contract nor the adequacy of the consideration.
abusive clause seems to have only a limited reach:
it applies only to an adhesion contract, which is defined in Article 1110 as
one with general, non-negotiable conditions, set in advance by (…)
Confirmation of fraudulent non-disclosure,
the intentional non-disclosure by one of the contracting parties of information which it knows is a determinant factor for the other party. According to this definition, fraud may be found even in the absence of a precontractual obligation to inform, contrary to the jurisprudential trend until now, because it is only necessary to hide information which one knows to be a determinant factor for the other,
Confirmation of taking into account fraud arising from a third party acting for the contracting party:
representative, business manager, agent or contract guarantor and
complicit third party,
other confirmations: mistake caused by fraud is still excusable, and the mistake (…)
Pre-contractual: unilateral promise and preferential agreement: several new points or important clarifications
Unilateral promise (Article 1124)
contract in which one party, the promisor, grants to the other, the beneficiary, the right to conclude a contract whose essential elements are set and the formation of which requires only the consent of the beneficiary
Binding nature confirmed (final abandonment of the 1993 Godard case law): the beneficiary of the promise may exercise the option (during its term) and obtain the existence of the resulting contract, even if the promisor has previously (…)
Caractère obligatoire consacré (abandon définitif de la jurisprudence Godard de 1993): le bénéficiaire de la promesse peut lever l’option (pendant sa durée) et faire constater la conclusion du contrat en résultant, même si le promettant a préalablement (…)
Legal regime of the offer: several new points or important clarifications
Revocation of the offer (Articles 1115 and 1116)
The rule is now clear:
- the offer may be withdrawn so long as it has not reached its recipient,
- once it has reached its recipient, it may
not be withdrawn prior to the expiration
of the time set by its offeror or, if none, at the end of a reasonable time,
The withdrawal of the offer in breach of this restriction will prevent the conclusion of the contract
- but such a withdrawal will give rise only to damages (not to specific enforcement as in the case of a unilateral promise(…)
We should observe the very didactic and pedagogical nature of these new texts: articles in
chronological order (conclusion - negotiations, offer, pre-contractual, etc., validity, form, approval) and numerous definitions (offer, acceptance, promise and preferential agreement, etc.)
Regime of pre-contractual negotiations: confirmations and clarifications
Freedom and good faith (Article 1112, para 1)
Article 1112, para. 1 confirms the principles of freedom and the obligation of good faith during negotiations:
The parties are free to open, conduct and end pre-contractual negotiations. They must comply with the requirements of good faith (…)
Several remarks on the 5 sanctions presented yesterday in a summary diagram.
5.2 The main innovations are:
- reduction of the price, which often raises the question: must it be requested from the judge? It would then be a matter of judicial revision of the price upon request of the creditor.
But then how would one read Para 2 concerning notification by the creditor of his decision to reduce? Can the parties themselves, in the contract, give such a right to the creditor without reference to the judge? What would be the effect of its implementation on the rights of the (…)
The most important innovations are shown in red, and the 3 unilateral notifications already mentioned are underlined.
The original debtor (not released) and the substituted debtor may raise with the creditor both inherent objections to the debt, as well as their personal objections (Article 1328)
Revision of the contract by the judge in case of unforeseen circumstances
Until now (except in case of a revision clause, of course) if a contract is unfavourable to one party, the judge would refuse to modify it (Canal de Craponne decision) and the
victim may find its only recourse to be a request for a grace period (Article 124461), the law of collective procedures, or the possibility of unilateral termination, especially for unlimited term contracts.
Article 1195 introduced the possibility of after-the-fact revision of the contract, first between the parties and, if not possible, by the judge, under certain conditions. It may be (…)
Unilateral notifications to complete the contract
To present these unilateral notifications provided in 2 specific cases, here is how they would take place in time.
3 articles provide the possibility of posing written questions requesting a response or action within a certain time period, subject to having the question decided in favour of the one posing the question.
In an ordonnance of 10 February 2016, the Government reformed the law of contracts by modifying the Civil Code.
Entry into force
The new provisions apply only to contracts concluded since 1 October 2016, except for the interrogation mechanisms (see §4.1) applicable since this date to contracts concluded previously.
In the opinion of the authors,
the ordonnance essentially clarifies, but does not revolutionize. Beyond the confirmation or the tidying up of numerous jurisprudential solutions, some of the new points are nevertheless (…)
A contracting party who defaults in performance of the said contract may be tortiously liable to a third party.
In other words, third party X may, with respect to a contract between Y and Z, hold Y tortiously liable on the basis of a violation by Y of his contractual obligations to Z, if this violation damaged X.
This principle is longstanding (Supreme Court decision Cass. ass. plén. 6 octobre 2006 n° 05-13.255) and results from the principle according to which a third party may invoke for its benefit the situation created by a contract as a legal fact, without disregarding the relative effect of the contracts (…)
In a decision dated 1 December 2016, the Chamber for Social and Labour Matters of the Supreme Court (Cour de Cassation) decided that the absence of discussions prior to signature of the contractual termination necessarily leads to the termination of the contract. (Cass.soc.,1er décembre 2016, n°15-21.609 FS-PBRI).
While Article L.1237-12 of the Labour Code provides this obligation for parties to meet during one or more discussions prior to the conclusion of the contract, this is the first time that the Supreme Court has expressed itself on the sanction of non-compliance with (…)
The indicative baseline for damages due for unjustified redundancies, provided by the Macron Law and anticipated by professionals, was just set by a decree in the Official Journal of 25 November 2016, and became effective on 26 November 2016.
The labour law judge may thus take into account this indicative baseline to set the damages for redundancies without actual and serious basis, without prejudice to legal or conventional damages for redundancies. This scale is optional, unless (…)
The Chamber for Social and Labour Matters of the Supreme Court (Cour de Cassation) continued its salutary return to civil law and taking into account actual commitments with the elimination of
requisite damages (Cass. soc. 13 avril 2016, n°14-28.293) and the easing of the obligation of security results (Cass. soc. 1er juin 2016, n°14-19.702: the employer may be exonerated from liability in case of moral harassment if it makes provisions to (…)
injuryin employment matters (Cass. soc. 13 April 2016, N° 14-28.293)
By way of an order intended to be widely publicised, the Chamber for Social and Labour Matters of the Supreme Court adopted a conventional view of the rules on civil liability which require trial judges to first establish the existence of an injury before independently assessing its amount.
Over the last twenty years or so, the Chamber for Social and Labour Matters had ruled that some breaches by the employer
automatically caused an injury to the employee, leaving to trial judges the extraordinary task of assessing and compensating for this mandatory injury, even where it was (…)
Article L650-1 of the Commercial Code limits the liability of credit providers in connection with collective insolvency proceedings.
It provides that:
Where safeguarding, judicial restructuring or judicial liquidation proceedings have commenced, creditors may not be held liable for harm suffered due to credits granted, except in cases of fraud, indisputable interference in the management of the debtor or if the guarantees obtained in return for the loans or credits are out of proportion to (…)
Businesses have up to 1st January 2016 to put in place a mechanism whereby consumers can have recourse to an Ombudsman to settle consumer disputes. This is pursuant to an order dated 20 August 2015 transposing European Directive 2013/11/EU of 21 May 2013 and Decree 2015-1382 of 30 October 2015, creating new articles of the Consumer Code Cons. C. Art. L 151-1 to L 156-4 and Cons. C. Art. R 152-1 to R 156-2 (measure effective on 1st (…)
Article L442-6.5° of the Commercial Code provides that a company becomes liable if it
established business relations, i.e. without giving sufficient prior notice to allow the other party to compensate the termination of business relations. The adequacy of the prior notice period is decided by the courts, based on a number of criteria, the main ones of which include the length of the relations, expenses incurred by the victim for the purposes of the relations, the size of the turnover generated by the latter from the party which took the termination decision (excluding multi-sector agreements on this (…)
Article 145* of the Code of Civil Procedure is a powerful evidentiary weapon, not only in your hands but also in the hands of your potential opponents.
It allows, following authorisation from a judge obtained ex parte (following a petition):
Companies are increasingly subject to attempts at fraudulent payments through bank transfer.
Several methods are used. There are ways to counter these attempts, through anticipation or very quick reaction (…)
In spite of the principle of independence of legal persons, there are cases where a parent company has to pay for its subsidiary. Recent case law provides some examples, which call for vigilance when directors or employees of parent companies intervene in the running of their (…)
Since 1st April 2015, any summons (or petition) must
specify the efforts made to reach an amicable settlement to a dispute,
unless it is justified on legitimate grounds which take into account the urgency of the situation or the matter under consideration, in particular where it is a matter of public policy. Failing this,
the judge may propose a conciliation measure or (…)
The Supreme Court has just recognised that a contractual termination may be signed during periods of suspension of employment to which the employee is entitled by virtue of the latter’s maternity leave, and for the four weeks following these periods (Cass. soc. 25 March 2015, No.14.10-149). This stand is contrary to the circular from the General Labour Directorate dated 17 March 2014 which ruled out this (…)
Forfait jours(remuneration based on a set number of days per year) basis applied in Chartered Accountancy and Audit firms
The two sides of industry had initiated negotiations following the order of the Supreme Court of 14 May 2014 which had declared null and void individual
forfait jours agreements signed on the basis of amendment 24 to the collective agreement of Chartered Accountancy and Audit firms, in the absence of sufficient guarantees to protect the health and safety of the concerned employees. On 18 February 2015, they signed a new amendment (…)