Month: February 2023

From July 26^th to August 11^th 2024 for the Olympic Games and from August 28^th to September 8^th 2024 for the Paralympic Games, Paris will host 15 000 athletes. The organisation has been discussed in Parliament since 2017.

Indeed, after the 26^th March 2018 law on the organisation of the 2024 Olympic and Paralympic Games, the Minister for Sport tabled a new bill on December 22^nd 2022 to adapt French law in view of hosting the event.

Placed under the accelerated procedure, the bill will be subject to a single reading in each chamber before a possible joint committee.

Adopted on 31 January by the Senate, the law will be examined by the National Assembly on 21 March 2023.

Although this bill intends to take into account issues related to the health of athletes (1.), it is mainly about ensuring safety during the event. The most important measure in this text concerns the use of intelligent cameras (2.), the security aspect being completed by other provisions (3.). At this stage, the questions concerning the management by the police and the courts of the increase in judicial activity have not yet been answered (4.).

The Olympic games are an amazing event – from a legal perspective they are  a challenge we need to take on!

1. Measures relating to athletes’ health

Health centre – The bill aims to adapt the system for providing care and first aid to athletes through a health centre in the Olympic and Paralympic Village.

It should be noted that health professionals who are not usually able to practice in France will be able to practice there and take care of the delegations at the competition sites.

Doping – In compliance with the requirements of the International Olympic Committee (IOC), the text provides for the temporary authorisation of new analysis techniques.

These include the examination of genetic characteristics in order to search for a genetic mutation of a gene involved in performance leading to the endogenous production of a prohibited substance, the administration of homologous blood, and genetic manipulation likely to modify somatic characteristics in order to improve performance (Article 4 of the bill).

The French anti-doping laboratory will thus be able to carry out tests to detect non-coding and coding markers from samples taken from athletes (Pierre Januel, Une loi pour adapter le droit aux Jeux olympiques, Dalloz actualité, January 27^th 2023).

This will facilitate exchanges between the Tracfin intelligence service (Intelligence processing and action against clandestine financial circuits – intelligence service under the authority of the Ministry of Economy and Finance) and the French Anti-Doping Agency.

The desire to improve exchanges between the State’s anti-doping services is also reflected in the coordination of the security forces.

The creation of the operational security coordination centre (CCOS), which was recently inaugurated within the Paris police prefecture, responds to this approach. It should be noted in this respect that the police prefect is presented as being solely responsible for public order in the Ile-de-France during the Olympic Games.

The bill also provides for the introduction of a video surveillance system enhanced by artificial intelligence, intended to support the security forces.

2. The adoption of smart cameras

Artificial intelligence – The bill focuses on the development of a video protection system deployed on the public highway, the processing of which is carried out by artificial intelligence.

This system is experimental and aims in particular to ensure the security of sporting events. The installation of these augmented cameras, whose image processing is carried out by artificial intelligence, will make it possible to detect predetermined situations in real time in the places hosting these events or in their vicinity.

Due to their size and circumstances, the Olympic Games are particularly prone to the threat of terrorist attacks or serious security incidents. 

Usually, drone and video protection images are viewed by specially designated agents. Since it is impossible for humans to process all the images captured in real time, the implementation of video protection using artificial intelligence would meet an operational need for law enforcement officers (Fabrice MATTALIA, JCP n°4, January 30th 2023, Expérimentation de caméras intelligentes pour les JO de 2024 : quel encadrement juridique ?).

The processing of these images would also make it possible to draw up statistical analyses and improve the management of high-density areas.

This technology would make it possible to report situations that are a threat to public order to the authorised agents, who would then take over and decide what action to take. The latter would then take over and decide what action to take.

Control by the CNIL – The Commission Nationale de l’Informatique et des Libertés (CNIL) considers that it is essential that the implementation of such a system be carried out initially in the form of an experiment, given the new and substantial issues it raises in terms of privacy.

Processing using artificial intelligence will first require authorisation by decree issued after the CNIL has given its opinion. Subsequently, they will be subject to a prefectural order for each event where such use is being considered.

The “intelligent” system will not be able to generate any personal decision or prosecution on the basis of the images. Furthermore, no biometric data will be used in order to avoid facial recognition techniques.

As part of its supervisory powers, the CNIL will check the legality of the devices and supervise their deployment. It also recommends that an impact analysis be carried out on data protection, pseudonymisation or blurring of images, and that the use of third-party service providers be supervised (CNIL, deliberation n° 2022-118, Ddécember 8th. 2022, opinion on a draft law on the 2024 Olympic and Paralympic Games).

Finally, the CNIL notes that all rights of opposition, access, rectification and deletion will apply.

Validation by the Council of State – On 15 December 2022, the Council of State considered that this system was subject to spatial and temporal limits and a legal framework designed to ensure a balance between the security imperative of these large-scale events and the preservation of fundamental rights and freedoms (Counsil of State, opinion, December 15^th 2022, n° 406383).

The Council of State also recalled the need for continuous supervision by the CNIL during the implementation of the system, both upstream through an opinion prior to the decree establishing the general framework, and downstream by exercising control throughout the duration of the experimentation

Beyond this major provision, other measures complete the security aspect of the Olympic bill.

3. Strengthening security in sports venues

Tickets – In order to avoid a repetition of the incidents that took place during the Champions League football final at the Stade de France in May 2022, the senators are calling for the issuance of nominative, dematerialised and forgery-proof tickets by organisers for the most important sporting events.

Security checks – In addition to tightening controls for delegations and service providers accessing competition and celebration sites, the bill provides that security checks in sports venues may be carried out by body scanners.

Body scanners will only be used with the consent of the persons being checked, who will be subject to another control device if they refuse.

Trespassing at grounds – More severe penalties have been introduced in this area. Thus, more systematic use of judicial stadium bans is foreseen, as well as an increase in the fine to 3,750 euros in case of intrusion into sports venues.

These various provisions will have to be accompanied by an increase in the resources allocated to the recruitment of security agents, law enforcement officers and magistrates.

4. The recruitment challenge of hosting the Olympic Games

Security agents – According to the prefecture, the body scanners mentioned above are a way of making checks, usually carried out by means of security palpations, more efficient and reliable. The private security sector is experiencing major recruitment difficulties.

On 11 January 2023, the Court of Auditors made several recommendations on budgetary matters, including on the security aspect. It stressed the need to finalise the overall security plan for the Games and to plan the use of the internal security forces (Semaine Juridique Administrations et Collectivités territoriales n°2, January 16th 2023, act. 42 – Court of Auditors, press release, January 11^th 2023).

It must be noted that the executive has not, at this stage, resolved all the questions concerning the recruitment of additional police and magistrates for the organisation of the Olympic Games.

Police – With the Olympic Games approaching, police activity in the department of Seine-Saint-Denis is already intense, particularly due to the “zero delinquency” plan. During the games, an increase in procedures is to be expected, and therefore an adjustment of the resources allocated, particularly in terms of daily delinquency of opportunity due to the context of the event.

Last October, the Minister of the Interior announced that “30,000 police and gendarmes” would be mobilised “per day” to ensure security throughout the sporting event.

Magistrates – On the judicial front, we must wait for the measures that will be taken to deal with the need to process complaints and provide a criminal response. The president of the Bobigny court stated in January that: ” Clearly, we are not in a position today to deal with the possible influx of additional legal proceedings “. Alongside an increase in the number of staff at the public prosecutor’s office, he would like to “create a jurisdictional council dedicated to the judicial implementation of the Olympic Games” which would serve as an “observatory of the evolution of jurisdictional activity linked to this event” (Bobigny : le tribunal “pas en état” de gérer le surcroît d’activité entraîné par les JO-2024 – BFM TV, January 17^th 2023).

The Chancellery has announced an increase in the number of magistrates to absorb the activity linked to the Olympic Games, without revealing the exact details so far.

Security agents – According to the prefecture, the body scanners mentioned above are a way of making checks, usually carried out by means of security palpations, more efficient and reliable. The private security sector is experiencing major recruitment difficulties.

On 11 January 2023, the Court of Auditors made several recommendations on budgetary matters, including on the security aspect. It stressed the need to finalise the overall security plan for the Games and to plan the use of the internal security forces (Semaine Juridique Administrations et Collectivités territoriales n°2, January 16th 2023, act. 42 – Court of Auditors, press release, January 11^th 2023).

It must be noted that the executive has not, at this stage, resolved all the questions concerning the recruitment of additional police and magistrates for the organisation of the Olympic Games.

Police – With the Olympic Games approaching, police activity in the department of Seine-Saint-Denis is already intense, particularly due to the “zero delinquency” plan. During the games, an increase in procedures is to be expected, and therefore an adjustment of the resources allocated, particularly in terms of daily delinquency of opportunity due to the context of the event.

Last October, the Minister of the Interior announced that “30,000 police and gendarmes” would be mobilised “per day” to ensure security throughout the sporting event.

Magistrates – On the judicial front, we must wait for the measures that will be taken to deal with the need to process complaints and provide a criminal response. The president of the Bobigny court stated in January that: ” Clearly, we are not in a position today to deal with the possible influx of additional legal proceedings “. Alongside an increase in the number of staff at the public prosecutor’s office, he would like to “create a jurisdictional council dedicated to the judicial implementation of the Olympic Games” which would serve as an “observatory of the evolution of jurisdictional activity linked to this event” (Bobigny : le tribunal “pas en état” de gérer le surcroît d’activité entraîné par les JO-2024 – BFM TV, January 17^th 2023).

The Chancellery has announced an increase in the number of magistrates to absorb the activity linked to the Olympic Games, without revealing the exact details so far.

Tickets – In order to avoid a repetition of the incidents that took place during the Champions League football final at the Stade de France in May 2022, the senators are calling for the issuance of nominative, dematerialised and forgery-proof tickets by organisers for the most important sporting events.

Security checks – In addition to tightening controls for delegations and service providers accessing competition and celebration sites, the bill provides that security checks in sports venues may be carried out by body scanners.

Body scanners will only be used with the consent of the persons being checked, who will be subject to another control device if they refuse.

Trespassing at grounds – More severe penalties have been introduced in this area. Thus, more systematic use of judicial stadium bans is foreseen, as well as an increase in the fine to 3,750 euros in case of intrusion into sports venues.

These various provisions will have to be accompanied by an increase in the resources allocated to the recruitment of security agents, law enforcement officers and magistrates.

Artificial intelligence – The bill focuses on the development of a video protection system deployed on the public highway, the processing of which is carried out by artificial intelligence.

This system is experimental and aims in particular to ensure the security of sporting events. The installation of these augmented cameras, whose image processing is carried out by artificial intelligence, will make it possible to detect predetermined situations in real time in the places hosting these events or in their vicinity.

Due to their size and circumstances, the Olympic Games are particularly prone to the threat of terrorist attacks or serious security incidents. 

Usually, drone and video protection images are viewed by specially designated agents. Since it is impossible for humans to process all the images captured in real time, the implementation of video protection using artificial intelligence would meet an operational need for law enforcement officers (Fabrice MATTALIA, JCP n°4, January 30th 2023, Expérimentation de caméras intelligentes pour les JO de 2024 : quel encadrement juridique ?).

The processing of these images would also make it possible to draw up statistical analyses and improve the management of high-density areas.

This technology would make it possible to report situations that are a threat to public order to the authorised agents, who would then take over and decide what action to take. The latter would then take over and decide what action to take.

Control by the CNIL – The Commission Nationale de l’Informatique et des Libertés (CNIL) considers that it is essential that the implementation of such a system be carried out initially in the form of an experiment, given the new and substantial issues it raises in terms of privacy.

Processing using artificial intelligence will first require authorisation by decree issued after the CNIL has given its opinion. Subsequently, they will be subject to a prefectural order for each event where such use is being considered.

The “intelligent” system will not be able to generate any personal decision or prosecution on the basis of the images. Furthermore, no biometric data will be used in order to avoid facial recognition techniques.

As part of its supervisory powers, the CNIL will check the legality of the devices and supervise their deployment. It also recommends that an impact analysis be carried out on data protection, pseudonymisation or blurring of images, and that the use of third-party service providers be supervised (CNIL, deliberation n° 2022-118, Ddécember 8th. 2022, opinion on a draft law on the 2024 Olympic and Paralympic Games).

Finally, the CNIL notes that all rights of opposition, access, rectification and deletion will apply.

Validation by the Council of State – On 15 December 2022, the Council of State considered that this system was subject to spatial and temporal limits and a legal framework designed to ensure a balance between the security imperative of these large-scale events and the preservation of fundamental rights and freedoms (Counsil of State, opinion, December 15^th 2022, n° 406383).

The Council of State also recalled the need for continuous supervision by the CNIL during the implementation of the system, both upstream through an opinion prior to the decree establishing the general framework, and downstream by exercising control throughout the duration of the experimentation

Beyond this major provision, other measures complete the security aspect of the Olympic bill.

Health centre – The bill aims to adapt the system for providing care and first aid to athletes through a health centre in the Olympic and Paralympic Village.

It should be noted that health professionals who are not usually able to practice in France will be able to practice there and take care of the delegations at the competition sites.

Doping – In compliance with the requirements of the International Olympic Committee (IOC), the text provides for the temporary authorisation of new analysis techniques.

These include the examination of genetic characteristics in order to search for a genetic mutation of a gene involved in performance leading to the endogenous production of a prohibited substance, the administration of homologous blood, and genetic manipulation likely to modify somatic characteristics in order to improve performance (Article 4 of the bill).

The French anti-doping laboratory will thus be able to carry out tests to detect non-coding and coding markers from samples taken from athletes (Pierre Januel, Une loi pour adapter le droit aux Jeux olympiques, Dalloz actualité, January 27^th 2023).

This will facilitate exchanges between the Tracfin intelligence service (Intelligence processing and action against clandestine financial circuits – intelligence service under the authority of the Ministry of Economy and Finance) and the French Anti-Doping Agency.

The desire to improve exchanges between the State’s anti-doping services is also reflected in the coordination of the security forces.

The creation of the operational security coordination centre (CCOS), which was recently inaugurated within the Paris police prefecture, responds to this approach. It should be noted in this respect that the police prefect is presented as being solely responsible for public order in the Ile-de-France during the Olympic Games.

The bill also provides for the introduction of a video surveillance system enhanced by artificial intelligence, intended to support the security forces.

CJEU, Grand Chamber, 22 Dec. 2022, C-148/21 and C-184/21. In response to two preliminary questions from the Luxembourg and Belgian courts, the Court of Justice of the European Union (CJEU) considers that the operator of an online marketplace such as Amazon can be held directly liable for the infringement of a trademark owner’s rights resulting from an advertisement by a third-party seller on its marketplace.

In this case, Mr. Christian Louboutin, a designer of pumps famous for their red outsole, noticed that Amazon, a distributor, and operator of an online marketplace, was overflowed with third-party seller ads for red-soled shoes.

He also noticed that Amazon not only published ads on its platform but also handled the storage, shipment, and delivery of these products. However, Mr. Christian Louboutin never gave his consent to the release of such products.

Considering that Amazon had illegally used a sign identical to his trademark, Mr. Louboutin brought an infringement action against Amazon based on Article 9§2.a), of Regulation 2017/1001, before the Luxembourg and Belgian courts.

These two courts then asked the CJEU about the interpretation of this article, in particular, whether the operator of an online marketplace could be held liable for infringement of a trademark owner’s rights resulting from an advertisement by a third-party seller on its online marketplace.

In a judgment of December 22, 2022, the CJEU, sitting as a Grand Chamber, answered positively on the condition that “a reasonably well-informed and reasonably attentive user [….] establishes a link between the services of [the platform] and the sign in question“, i.e. when he has the impression that it is the operator of the said platform who “markets, in his own name and on his own behalf, the goods“.

The CJEU then provides details on how this link can be established by the user between the platform and the trademark at issue. The mere fact of “creating the technical conditions necessary for the use of a sign and being remunerated for that service” is not sufficient to demonstrate the use of the trademark by the operator.

It must be shown that the operator uses the mark in the context of its own commercial communication, which must be understood as “all forms of communication intended for third parties, with the objective of promoting its activity, its goods and services or indicating the exercise of such an activity“.

In this respect, it can be taken into account according to the CJEU:

• How the offers published on the platform are presented: a display showing at the same time the platform operator’s ads and those of third-party sellers, with its logo both on its website and on all of these ads, is “likely to create a link, in the eyes of these users, between this sign and the services provided by this same operator.”

• the nature and extent of the services provided by the platform operator: the processing of users’ questions, the storage, the shipping of the products, or the management of returns are “such as to make the user believe that these products are marketed by the site operator in its name and on its behalf“.

It will then be up to the national courts to analyze in detail and practice the commercial communication of the platform to see if it leads the user to establish a link between it and the product in question.