Maître Bénédicte RAJOT - Avocate au Barreau de Lyon
Droit International et Droit de l'Union européenne
➡ European and international law :
→ Intercountry adoption :
The Court of cassation (the highest court in the French judiciary) asserted, in a decision of March 18th, 2020 (n°19-50.031), that the procedure and the mechanisms provided by the Hague Adoption Convention of May 29th, 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, had to be checked, even if the legal conditions for adoption were met and this latter was in the best interests of the child.
In the present case, the Point-à-Pitre court had not checked whether the central authorities of the respective countries of the adopters and the adopted had intervened ahead of the procedure, in accordance with that convention, which provides that « […] where a child habitually resident in one Contracting State ("the State of origin") […] is to be moved to another Contracting State ("the receiving State") […] » (article 2.1), « the competent authorities of the State of origin [must establish] that the child is adoptable [and determine] that an intercountry adoption is in the child's best interests » (article 4). Furthermore, « the competent authorities of the receiving State [must determine] that the prospective adoptive parents are eligible and suited to adopt » (article 5). Finally, « a Contracting State [must designate] a Central Authority to discharge the duties which are imposed by the Convention upon such authorities » (article 6.1).
→ Residence right for the same sex partner of an EU citizen :
On June 5th 2018 (C‑673/16), the CJEU held that member states, while they retain the right to allow or not same-sex marriage, cannot oppose the recognition of such marriage validly celebrated in another member state which gives the partner without a European citizenship the right to permanent residence in the European Union.
→ Access by grandparents :
According to the European Court of Justice (ECJ, C-335/17, Valcheva vs/ Babanarakis), the notion of right of access (Brussels IIa Regulation) does not only refer to the right of access of parents to their child, but also to the one of other people with whom it is important for the child to maintain a personal relationship, among others the child’s grandparents.
→ Establishment of parentage in an international context :
A French decision (Civ. 1re, 24 mai 2018, n° 16-21.163) stated that the Judge cannot order a biological examination in the context of a paternity dispute without having first determined the applicable law, since the mother is of foreign nationality. The mother, born in Algeria, had the nationality of this country, so that, as it was inalienable rights, she had to apply the Algerian law.
→ Children's regular residence :
On June 28th 2018 (C-512/17), the CJEU clarified the concept of a child's "regular residence". On the basis of the article 8 of Brussells II bis regulation, to be « regular resident » of a State, a child has to be physically present in the State concerned. Whatever are the circumstances of the childbirth, if the mother lives in the child’s birth country, whether or not forced by the father to do so; the violation of the mother and the child’s fundamental rights doesn’t affect the establishment of the child’s regular residence. It is up to the national jurisdiction to determine the child’s regular residence, in light of the situation.
→ Illegal moving of children :
A French decision (January 17th 2019; n°18-23.849) reminded the application’s terms of The Hague’s convention of October 4th 1980. The situation is: a separated couple, with two children, the father lives in DRC with his two children, DRC is the principal residence of the children; the mother lives in France. Due to signs of child abuse, the mother wishes to take the children to France. According to The Hague Convention of October 4th 1980, the moving of children is legal in case of child abuse is legal. However, as for he French Supreme Court, the DRC isn’t part of The Hague Convention of October 4th 1980. Therefore, this convention doesn’t apply to the case. Moreover, the French jurisdiction can’t take care of this case, because the DRC isn’t part of the EU and its legislative dispositions.
→ Residence permit :
(CJEU, KA affaire C-82/16 - May 8th 2018)
The European Court of Justice declares that the national of a nonmember country, member of European citizen’s family, can’t have his request of residence permit being automatically refused, on the basis that he had had an interdiction to enter the EU.
→ Recognition of refugee status :
According to the article 33 of the convention of July 28th, 1951 relating to the status of refugees and the articles L. 721-2 et L. 511-1 of the French Code of entry and residence of foreigner and the right of asylum, the Court of cassation asserted, in a decision of March 11th, 2020 (n°19-81.541), that the administrative authority couldn’t force a foreigner to leave French territory when he had obtained a refugee status.
In the present case, a man had received retroactively to an order for escort to the border, the status of refugee. Consequently, the offense of evading the order was devoid of any legal basis.
Data & Protection
→ Data Protection (GDPR) :
On May 25th, 2018 came into force the new European Data Protection Regulation (Regulation 679/2016) which obliges all companies to clearly inform individuals of how they use their personal information. They are now able to retrieve their data free of charge and they will have to be immediately informed in the event of a data leak. Finally, if their personal information is abused, they can bring collective actions and obtain compensation (up to € 20 million or 4% of the turnover of the offending company).
Data concerned: any information relating to an identified or identifiable individual by a name, a number or a functional identification or any attempt to attribute him data. They concern private as well as work life, social relations, living and consumption habits, personal opinions.
→ Electronic signature :
Decree No. 2017-1416 of September 28th 2017 specifies the technical characteristics of the procedure provided for in Article 1367 of the Civil Code and considers that the reliability of the electronic signature created is presumed, until proven otherwise, when this method implements a qualified electronic signature namely advanced, in accordance with the Regulation of the European Union of 23 July 2014 (910/2014) relating to the electronic identification.
Exequatur and clauses conferring jurisdiction
Burkinabè Court’s decisions convicting a french company couldn’t be executed in France, because a clause conferred jurisdiction to French jurisdictions in the general terms and conditions of the contract, accepted by the burkinabese society. This decision was taken by the Court of Cassation on May 15th 2018 (Cass. 1re civ., 15 May 2018, No. 17-17.546).
CEDH advisory opinion
→ Entry into force of Protocol No. 16 to the European Convention on Human Rights :
Following its ratification by France on April 12th 2018, the Council of State, the Court of Cassation and the Constitutional Council may, as soon as it enters in force on August 1st 2018, to submit requests for advisory opinions to the European Court of Human Rights on questions of principle concerning the interpretation or application of the rights and freedoms defined by the Convention or its protocols. All this will take place in the context of cases brought before those courts and the opinion given by the ECHR will be reasoned and not binding.
→ Right of withdrawal in credit contracts :
The Court of Justice of the European Union (CJEU) asserted, in the case JC v Kreissparkasse Saarlouis (C-66/19) of March 26th, 2020, that the calculation methods for the withdrawal period had to appear, in the consumer credit agreements, clearly and concisely.
Indeed, the article 10, paragraph 2 of the directive 2008/48/EC of the European Parliament and of the Council of April 23rd 2008 provides that « the credit agreement shall specify in a clear and concise manner : […] p) the existence or absence of a right of withdrawal, the period during which that right may be exercised and other conditions governing the exercise thereof […] ». The article 14, paragraph 1, subparagraph 2 of this same directive adds that « that period of withdrawal shall begin (a) either from the day of the conclusion of the credit agreement, or (b) from the day on which the consumer receives the contractual terms and conditions and information in accordance with Article 10, if that day is later than the date referred to in point (a) of this subparagraph. ».
Furthermore, the CJEU added that a credit agreement shouldn’t make, as regards the information referred in the article 10 of the directive, reference to a national provision which would refer itself to other legislative provisions of the member State in question.
→ Contract about both property for occupational use and personal property :
(CJUE, SCHEMES c/ Facebook- C-498/16 - January 25th 2018)
Someone who concluded a contract about a property destined to a professional aim but also to a non-professional aim, hasn’t the right to benefit of the specific competences’ rules written in the Brussels Convention. This, except if the professional use is negligible, to the point its role is negligible in the context of the operation.
→ Social security :
Applying the principles of uniqueness of affiliation and attachment of the worker to the legislation of the Member State with which he carries on business, the Court of Cassation ruled, in a judgment rendered on March 18th 2018 (No. 17-21.991), that a person residing in France and affiliated to the compulsory health insurance in Switzerland in respect of the activity which he carries on in that State could not be affiliated to the French social security scheme or should be removed from it as soon as she asks for it, regardless of the priority of her affiliation to the French regime.
→ Weekly day of rest :
On November 9th 2017 (C-306/16), the CJEU attested that the weekly rest’s day must not necessarily be granted after every 6 consecutive working days’ period, but must be granted inside a 7 days’ period. Therefore the employee will be able to benefit of 2 rest days in the end of the 7 days’ period. The CJEU adds that any State might initiate a more favorable regime for the employee.
→ Illegal discrimination :
(CJEU, September 11th 2018, n° C-68/17)
The European Court of Justice declares that the dismissal of a chief doctor by a German catholic hospital because of his divorce and his remarriage, constitutes an illegal discrimination based on religion.
→ Consequences of dual nationality in case of “renvoi” :
The EU Regulation on international successions of July 4th 2012, provides that the law of the usual residence of the deceased will apply to the whole succession. The French judge that heard a case about a deceased woman of French and Spanish nationality owning properties in France and Spain, declined competence for the goods located in Spain, because the Spanish law applicable for the real estates located in Spain provides that the succession is governed by the national law of the deceased and when a person holds dual citizenship, French nationality shall prevail, engendering the acceptation of the reference made by the Spanish law. The Court of Cassation cancelled this decision which took precedence over the French law with regard to bi-nationals, whereas in the meaning of the Spanish civil code, the national legislation of connection, should have been determined according to the Spanish legislation (Civ. 1re, May 15th 2018, No 17-11.571).
→ Environmental Damages :
In Costa Rica v. Nicaragua, rendered on February 2nd 2018, the International Court of Justice (the principal jurisdictional body of the United Nations), recognizes the compensability of environmental damages, due to the material damage that Nicaragua has caused by illegal activities in Costa Rica.
→ European arrest warrant :
In the present case, the judicial authorities had issued a European arrest warrant against a Franco-Algerian residing in Spain for a prison sentence pronounced by the Court of Appeal of Rome. The person concerned invoked his French nationality (Article 695-24 2nd of the Code of Criminal Procedure).The French judges argued that the cases of non-delivery provided by the article of the Criminal Procedure Code in question were optional and it would be easier for his wife and daughter residing in southern Spain to visit him in Italy. The French Court of Cassation overturns the judgment and explains that the decision of the judges should have stated an answer before anything of the prosecutor of the Republic on the question of whether he intended to recognize the Italian decision of conviction as enforceable in the territory pursuant to Article 728-42 of the Code of Criminal Procedure.
➡ French law :
→ Fraudulent acknowledgements of paternity or motherhood :
The Asylum and Immigration Act introduced two new measures to combat fraudulent paternity or maternity recognitions before an act of recognition is established: the obligation for any person wishing to establish a relationship of parentage by recognition to present proof of identity and domicile and the possibility for the prosecutor of the Republic to suspend or oppose recognition.
A circular from the Department of Justice states that these provisions aim to strengthen the fight against various cases of fraud such as the recognition of a foreign national’s minor child by a French national (recognition allows the child to be granted French nationality and a residence permit as a parent of a French child) and also, recognition may be made so that a mother or father can receive social benefits, for themselves and/or for the child.
→ Transcription of the civil status of birth certificates :
The 20th of March 2019, in two cases (Cass. 1ère civ., 20 mars 2019, n°18-11.815, n°18-50.006 et Cass. 1ère civ., 20 mars 2019, n°18-14.751, n°18-50.007), a question of parent of intention was asked. These questions follow up on the Mennesson case, in which the Plenary Assembly of the Court of Cassation referred to the new Protocol number 16 at the European Convention of Human Rights to address a request for an advisory opinion on 3 questions relating to the “maternity of intent”.
In both cases, the first civil chamber held that, despite the fact that the questions asked by the appeals were not identical, since the transcriptions on the registers of the civil status were requested, a birth certificate designating a man as a “parent of intention” in the first case, and foreign birth certificates of children conceived by medical assistance in procreation and not after a surrogacy in the second case, they, nevertheless, have a “sufficiently close link with the issue of “intention motherhood” to justify of proceedings pretending the opinion of the European Court of Human Rights and the decision of the plenary assembly to intervene”.
→ Civil registration of a child born by surrogate motherhood :
On October 5th 2018 (n°10-19.053), the French Supreme Court confirmed that the birth certificate of a French child born abroad, elaborated in a foreign country, and transcribed on the civil registrar; is legal to the extent that it reflects the reality of the situation. This ruling is based on article 47 of the French Civil Code; article 7 of the August 3rd 1962 decree; article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
→ Adoption of a child born by surrogate motherhood :
The evolution of the case law today makes it possible to recognize a status for children born of surrogacy abroad. On this issue, a new procedure for the review of court decisions on the status of persons is instituted following a conviction of France by the European Court of Human Rights. This appeal will make it possible to benefit all the children born of surrogacy abroad, whatever their date of birth, evolutions of the jurisprudence of the Court of Cassation (Cass, 1re civ, July 5th 2017, No. 15 28 597). The same judgment recognizes that a child born abroad as a result of surrogacy may be adopted by the biological father's spouse. It follows from this case law that the simple adoption of a child born as a result of surrogacy by the spouse of the biological parent is now possible. Full adoption remains uncertain.
On October 1st 2016, the law obligations' reform came into force.
→ Punitive Damages Reform :
The practice of punitive damages is currently prohibited in French law. The judge cannot therefore increase the amount of the damages in view of the seriousness of the fault. This solution may be subject to change since some of the draft laws of the law provide for the introduction of punitive damages in French law, particularly in the so-called "lucrative fault" hypotheses. The last project presented by the Chancery in March 2017 turned to the technique of civil fines, provided for in Article 1266-1, which states that "In extracontractual matters, when the person who committed the damage deliberately committed failure to obtain a gain or an economy, the judge may condemn, at the request of the victim or the public prosecutor and by a specially motivated decision, the payment of a civil fine”.
→ IDD Directive :
Ordinance No. 2018-361 on the distribution of insurance, published in the Official Journal of May 17th, initiates, in French law, the transposition of Directive (EU) 2016/97 of the European Parliament and of the Council of January 20th 2016 on the insurance distribution, known as the "IDD" directive. The ordinance transposes the IDD Directive and will enter into force on October 1st 2018, with the exception of the provisions on continuing education for insurance and reinsurance intermediaries, which will enter into force on February 23rd 2019. Based on the principles of the IDD Directive, the ordinance is made up of three chapters, the first relating to the amendments to the Insurance Code, the second to amendments to other codes (Consumer Code, Monetary and Financial Code, Code of Mutuality and Social Security Code) and the third concerning the final provisions.
→ Labour law’s reform :
According to the government, this reform aims at giving more equality, freedom and safety to employees and executives, by a reinforcement of the social dialogue. This reform implies several subjects: compensations in labour lawsuit; resignation’s compensation; personnel representatives; drudgery; teleworking; resignation; unemployment; etc.
This reform is based on 5 ordinances.
→ Employment contract :
A French decision (Civ. 1re, November 28th 2018, n°17-20079) stated that someone who works as a delivery man for « Take eat easy », shouldn’t work anymore as a self-employed person, but as an employee. There is a subordinate relationship between the delivery man and the company, which applies to the qualification of a contract of employment.
→ Severance pay's scale :
Two French decisions (December 21st 2018; January 7th 2019) of Lyon industrial tribunal stated that, according to the European Social Charter, and the article 10 of the ILO’s convention 158, the severance pay’s scale introduced in 2017 is unconventional.
Other decisions of the same kind lately appeared in France. For example, in Troyes (13 décembre 2018) and Amiens (19 décembre 2018).