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  1. Point Cardinal 30
    General Data Protection Regulation (GDPR): the big day has arrived

    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 (…)

    May 2017

  2. Point Cardinal 29
    Macron Ordinance: revaluation of legal severance pay.

    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:

    • one quarter of a month’s salary per year of seniority for the first ten years;
    • one third of a month’s salary per year of seniority for the years after ten. (…)

    October 2017

  3. Point Cardinal 28
    Anti-corruption: get ready for the effective date of the Sapin Law in June 2017

    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 (…)

    January 2017

  4. Point Cardinal 27
    Reform of the law of contracts - Other remarks

    Binding force: Article 1134 becomes Article 1103, in the introductory provisions, the term contract replacing 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) (…)

    January 2017

  5. Point Cardinal 26
    Reform of the law of contracts - Formation of the contract (5/5)

    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.

    This new 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 (…)

    January 2017

  6. Point Cardinal 25
    Reform of the law of contracts - Formation of the contract (4/5)

    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 (…)

    January 2017

  7. Point Cardinal 24
    Reform of the law of contracts - Formation of the contract (3/5)

    Pre-contractual: unilateral promise and preferential agreement: several new points or important clarifications
    Unilateral promise (Article 1124)
    Definition: 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 (…)

    January 2017

  8. Point Cardinal 23
    Reform of the law of contracts (2/5)

    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(…)

    January 2017

  9. Point Cardinal 22
    Reform of the law of contracts (1/5)

    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 (…)

    January 2017

  10. Point Cardinal 21
    Reform of the law of contracts - The 5 possible sanctions for non-performance (2/2)

    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 (…)

    January 2017

  11. Point Cardinal 20
    Reform of the law of contracts - The 5 possible sanctions for non-performance (1/2)

    The most important innovations are shown in red, and the 3 unilateral notifications already mentioned are underlined.

    Diagram (…)

    January 2017

  12. Point Cardinal 19
    Reform of the law of contracts - New mechanisms (4/4)

    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)

    January 2017

  13. Point Cardinal 18
    Reform of the law of contracts - new mechanisms (3/4)

    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 (…)

    January 2017

  14. Point Cardinal 17
    Reform of the law of contracts - New mechanisms (2/4)

    Unilateral notifications
    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.

    January 2017

  15. Point Cardinal 16
    Reform of the law of contracts - New mechanisms (1/4)

    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.

    January 2017

  16. Point Cardinal 15
    Reform of the law of contracts

    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.

    General evaluation
    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 (…)

    January 2017

  17. Point Cardinal 14
    A third party may use it to seek liability of one of the contracting parties

    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 (…)

    December 2016

  18. Point Cardinal 13
    The absence of discussions prior to contractual termination leads to the termination of the agreement

    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 (…)

    December 2016

  19. Point Cardinal 12
    Indicative baseline for damages following redundancies without actual and serious basis

    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 (…)

    December 2016

  20. Point Cardinal 11
    Overruling: taking into consideration the unfit employee’s wishes in seeking redeployment (Supreme Court Cass. Soc. 23 novembre 2016, n°15-18.092 et n°14-26.398)

    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 (…)

    December 2016

  21. Point Cardinal 10
    Overruling: doing away with mandatory injury in 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 (…)

    April 2016

  22. Point Cardinal 9
    Good news concerning the liability of a company providing credit to another company which is then subject to collective insolvency proceedings

    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 (…)

    January 2016

  23. Point Cardinal 8
    Mechanism to be put in place so that consumers can have recourse to an Ombudsman to settle consumer disputes: consider amending your terms and conditions of sale and your website

    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 (…)

    November 2015

  24. Point Cardinal 7
    Do terminate but give notice! Point Cardinal on the sudden termination of established business relations, fixed-term contracts and forced resumption of relations

    Article L442-6.5 ° of the Commercial Code provides that a company becomes liable if it suddenly terminates 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 (…)

    September 2015

  25. Point Cardinal 6
    How well do you know Article 145?

    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):

    • a court officer to be sent, without notice, where necessary assisted by an IT expert and the police,
    • the collection of evidence, to which the plaintiff does not have access or is likely to be destroyed, and relating (…)

    Jully 2015

  26. Point Cardinal 5
    Payment fraud: watch out for forgery (chairman, banker, financier, supplier, etc.)!

    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 (…)

    June 2015

  27. Point Cardinal 4
    (Legal) personality disorder: when the parent pays for the child

    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 (…)

    May 2015

  28. Point Cardinal 3
    Amicable settlement

    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 (…)

    April 2015

  29. Point Cardinal 2
    Contractual termination and maternity leave

    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 (…)

    March 2015

  30. Point Cardinal 1
    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 (…)

    February 2015

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