Category: Legal watch

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Cass. Civ. 1ère, 15 October 2025, n°23-23.167

IMPACT: By this decision, the French Supreme Court considers that the practice of “web scraping” can be sanctioned on the basis of the sui generis right.

It also reiterates the criteria for a database to benefit from sui generis protection and the evidence that must be provided to make stop data extraction, such as the risk of undermining the recovery of the database producer’s investments.

• The facts

The company GROUPE LA CENTRALE (“LA CENTRALE”) edits and operates the used-vehicle classified ads website www.lacentrale.fr, which features 320,000 listings. These ads are submitted by sellers (professionals or individuals) and then verified, completed, and harmonized by the company LA CENTRALE before being made available to the public via an internal search engine.

The company ADS4ALL publishes and operates a website also dedicated to the sale of used vehicles, available at www.leparking.fr. It lists ads published on other websites, including that of LA CENTRALE, obtained by extracting them from its website (a method known as “web scraping”).

After an unsuccessful formal notice letter, LA CENTRALE sued ADS4ALL on the grounds of infringement of its database producer’s rights under Articles L. 341-1 et seq. of the Intellectual Property Code (sui generis right).

In a ruling dated September 8, 2023[1], the Paris Court of Appeal ordered the company ADS4ALL to pay LA CENTRALE the sum of €100,000 in damages to compensate for the loss resulting from the infringement of the database producer’s rights.

The company ADS4ALL appealed to the Supreme Court which rejected its appeal on the following grounds.

• The requirement for investments to be made in the collection of data for the database and not in the creation of such data

To benefit from protection, the database producer must demonstrate that it has made a “substantial financial, material, or human investment” within the meaning of Article L. 341-1 of the Intellectual Property Code.

The Court of Cassation then points out that the concept of investment refers to “the resources devoted to searching for existing elements and compiling them in the database” and not those devoted to “the creation of the elements constituting a database” in accordance with the rulings of the CJEU[2].

The producer of the database must therefore “demonstrate an investment that is independent of that required for the creation of the data contained in the database”, according to the Court.

In this case, the Supreme Court holds that the Court of Appeal had indeed carried out this verification:

• The database of the company LA CENTRALE was “consisting of information relating to vehicles for sale and appearing in advertisements written for that purpose by advertisers providing that information”: the data had therefore “not been created by La Centrale before being collected in the database.”
• LA CENTRALE did indeed make investments to verify the pre-existing data collected:
  • acquisition of the SIVIN[3] database license;
  • deployment of an “Auto-Visa” service for the creation of historical reports on vehicles offered for sale;
  • existence of a contract for the provision of a database relating to the specifications of new vehicles, the information from which was processed by an employee;
  • use of anti-fraud software and software for the dissemination of car advertisements on the internet.

The website www.lacentrale.fr therefore constitutes a database within the meaning of Article L. 112-3 of the Intellectual Property Code, since the data were pre-existing and LA CENTRALE had made substantial investments in their verification.

After noting that the website www.lacentrale.fr was indeed eligible for protection as a database, the Supreme Court examined whether ADS4ALL’s extraction of data from the database infringed upon that protection.

• The prohibition on extracting and reusing the contents of a substantial part of a database, subject to a risk of damage to the investments of its producer

The Supreme Court first points out that Article L. 342-1 of the Intellectual Property Code prohibits the extraction and reuse, by making available to the public, of all or a substantial part of the contents of a database.

It then quotes two judgments of the CJEU to establish the criteria leading to the prohibition:

• Extraction and reuse of data from the database^[4] : this must be prohibited when a company puts online a meta-search engine that reuses all or a substantial part of the content of a protected database which:
  • provides the end user with a search form offering the same functionality as the database form;
  • translates end-user queries “in real time” into the search engine with which the database is equipped.
• the existence of a risk for the database producer of not being able to recoup its investment as a result of this re-use of data^[5].

In this case, the Court of Cassation upheld the reasoning adopted by the Court of Appeal to verify these two criteria.

It first notes that the website www.leparking.fr transferred the data comprising the advertisements from LA CENTRALE’s database to its own platform, making them available to internet users who had made a query on the Le Parking website.

This therefore constituted a substantial extraction.

The Court then notes that this extraction had the effect of “discouraging consumers from visiting the homepage of this site to search directly for vehicles for sale that met their criteria.”

This resulted in a significant loss of traffic on LA CENTRALE’s homepage and a decline in turnover.

The Court of Appeal therefore rightly held that “the massive appropriation of LA CENTRALE’s data was likely to undermine the substantial human, technical, and financial investments it had made in obtaining, verifying, or presenting the content of its database.“

Consequently, the Supreme Court considered that the Court of Appeal had legally justified its decision and therefore dismissed the appeal.

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[1] CA Paris, pôle 5, ch 2, 8 septembre 2023, n°21/15589

[2] CJCE, 9 novembre 2004, aff. C-203/02, C-46/02, C-338/02, C-444/02 (4 arrêts)

[3] Vehicle registration system relating to vehicle registration documents

[4] CJEU, December 19, 2013, case C-202/12, Innoweb BV v ICT Media BV, Weneger Mediaventions BV.

[5] CJEU, June 3, 2021, Case C-762/19, CV-Online Latvia SIA v. Melons SIA.

Paris Court of Appeal, Division 5, Chamber 1, 1 October 2025, No. 24/15621

IMPACT: In this ruling, the Paris Court of Appeal recalled that when a claim is based on copyright infringement, the mere allegation -under the heading of damages- of a risk of harm to image or reputation does not justify recharacterising the action as a defamation claim falling under the Press Act of 29 July 1881.

Regarding proof of originality at the summary proceedings stage, the court emphasised that it is for the claimant to establish the existence of a manifestly unlawful disturbance or an imminent harm, and to demonstrate, with the degree of obviousness required in summary proceedings, that the works relied upon are capable of copyright protection.

• The facts

In August 2024, the company JOURS DE PASSIONS, publisher of the magazine JOURS DE CHASSE, learned that the company LES ARÈNES was preparing to publish a book in the autumn entitled Les nouveaux seigneurs, which would reproduce, at least in part, four articles that had appeared in its magazine and for which it claimed copyright.

After an unsuccessful formal notice, JOURS DE PASSIONS brought hour-to-hour summary proceedings before the Paris Judicial Court seeking the suspension of the publication of the disputed book and compensation for its loss.

By an order dated 11 September 2024, the judge in summary proceedings dismissed all of JOURS DE PASSIONS’ claims, leading the company to lodge an appeal.

• The validity of the copyright infringement action despite the mention of reputational harm only at the damages stage

LES ARÈNES argued that the writ of summons was void, asserting that JOURS DE PASSIONS had failed to comply with the specific procedural rules of press law and the Act of 29 July 1881. According to LES ARÈNES, the copyright action in fact concealed grievances relating to harm to reputation and standing, which would fall exclusively within the scope of press law.

The Paris Court of Appeal upheld the lower court’s order and rejected this argument. It noted that JOURS DE PASSIONS expressly based its action on copyright infringement relating to the articles published in JOURS DE CHASSE. According to the court, “it is only for the purpose of assessing damages that it invokes a risk of harm to its image and reputation, so there is no reason to reclassify its action as a defamation claim under the 1881 Press Act.”

• The need to demonstrate originality at the summary proceedings stage when originality is contested

The court recalled that, in summary proceedings, a claimant relying on copyright law and seeking measures such as the suspension or cessation of the marketing of a work must demonstrate the existence of either an “imminent harm” that should be prevented, or a “manifestly unlawful disturbance” that must be brought to an end.

The court also stated that “it is settled law that, in assessing the reality of the alleged harm or disturbance, one must consider the circumstances as they stood on the day the first-instance judge delivered the decision.” Accordingly, “the existence of a manifestly unlawful disturbance [based on] the reproduction of articles […] presupposes that the works at issue appear, with the level of obviousness required in summary proceedings, to be capable of copyright protection.”

In this respect, the court reiterated the principle derived from Articles L.111-1 et seq. of the French Intellectual Property Code, according to which protection arises by the mere act of creation, provided that the work displays original form. Where originality is disputed, it is for the claimant to show that the work bears “a distinct appearance reflecting an aesthetic choice and the imprint of the author’s personality.”

However, according to the court, JOURS DE PASSIONS had failed, both at first instance and on appeal, to set out “the artistic choices or creative process underlying the drafting of these articles illustrated with photographs,” noting that a “brief and purely factual description” is insufficient to establish originality.

In the absence of sufficient evidence, the court found that the originality of the articles had not been established with the required obviousness, meaning that the alleged disturbance could not be characterised as “manifestly unlawful”.

The court further noted that LES ARÈNES had swiftly taken “the measures available to it” to prevent the book from being placed on the market, and that the new edition no longer contained the disputed reproductions. The court concluded that these “circumstances were such as to rule out the existence of such a disturbance.”

Given the failure to demonstrate originality and the corrective measures already implemented, the court confirmed that the claims brought by JOURS DE PASSIONS did not fall within the jurisdiction of the summary proceedings judge, and therefore upheld the order finding that summary proceedings were not appropriate.

Accordingly, in this type of dispute, the outcome of the case partly depends on the evidence provided by the rights holder to demonstrate the imprint of his or her personality on the work. Thus, in a judgment delivered on 11 July 2025, the 2nd Chamber of Division 5 of the Paris Court of Appeal held that the evidence submitted to the summary proceedings judge “clearly reflected the expression of the author’s free and creative choices and, at the very least, an appearance of originality,” and concluded that, “quite evidently, the work in dispute must be granted protection.”

Cass. com., 15 October 2025, No. 24-11.150, published in the Bulletin

IMPACT: By this ruling, the Court of Cassation held that information communicated by a copyright holder to third parties regarding the existence of a “possible infringement of its own products and acts likely to fall within the scope of unfair and parasitic competition” constitutes disparagement where it is not based on a prior court decision.

Accordingly, the Court of Cassation censured the sending of a cease-and-desist letter stating that the marketing of the disputed products was “liable to constitute an act of copyright infringement” or that such sales were “at the very least, likely to be characterised as acts of unfair and parasitic competition.”

• The facts

By an order dated 22 September 2022, served and enforced on 9 November 2022, the company KOSHI was authorised to carry out a copyright infringement seizure to the detriment of the company MANUFACTURE DU MARRONNIER, which had entrusted the company VBV INTERNATIONAL with the manufacture, storage and distribution of wooden wind chimes.

On 15 November 2022, KOSHI sent a cease-and-desist letter to several distributors of MANUFACTURE DU MARRONNIER and VBV INTERNATIONAL, demanding that they immediately cease offering these chimes for sale and promoting them on their website, and further requiring them to provide all related contractual documentation.

The letter stated in particular that the “Heola” range of chimes reproduced “the essential characteristics of KOSHI chimes”, which was “liable to constitute an act of copyright infringement”, and further asserted that such acts were “at the very least, likely to be characterised as acts of unfair and parasitic competition”.

The recipients were invited to “immediately cease offering [the products] for sale” and to “communicate all necessary information” in order to determine the quantities purchased, sold and in stock, failing which KOSHI and its director indicated that they would “regain full freedom of action, including by taking all necessary measures, in particular legal action”.

MANUFACTURE DU MARRONNIER and VBV INTERNATIONAL initiated summary proceedings against KOSHI seeking an order to cease the manifestly unlawful disturbance constituted by the sending of this letter and the payment, by way of an advance, of damages for disparagement of the products manufactured and marketed by their companies.

By a judgment dated 9 November 2023, the Montpellier Court of Appeal dismissed their claims, leading MANUFACTURE DU MARRONNIER and VBV INTERNATIONAL to lodge an appeal before the Court of Cassation.

• Disparagement arising from informing third parties of a “possible infringement”

On the basis of Article 1240 of the French Civil Code, the Court of Cassation reiterated that disparagement is established “where, in the absence of a judicial decision confirming the existence of acts of copyright infringement, the mere fact of informing third parties of a possible infringement of such rights amounts to disparagement of the products alleged to be infringing.”

Therefore, informing a third party to a legal proceedings of a “possible infringement” may therefore now constitute disparagement. 

In the present case, KOSHI sent a cease-and-desist notice to twelve retailers of MANUFACTURE DU MARRONNIER and VBV INTERNATIONAL. KOSHI set out what it presented as factual elements relating to the existence of its copyright and asserted that the sale of the products in question was “liable to constitute an act of copyright infringement”, or that such sales were “at the very least, likely to be characterised as acts of unfair and parasitic competition”.

It further informed them that it reserved the right to take any legal action against them to protect its rights and seek compensation for its loss.

The Court of Cassation held that, in ruling that these statements were measured and not coercive and therefore did not constitute disparagement, the Montpellier Court of Appeal had breached Article 1240 of the Civil Code.

Paris Court of Appeal, Division 5 Chamber 2, 13 June 2025, No. 23/02588

IMPACT: In this ruling, the Paris Court of Appeal addresses the practice of intermediate generalisation, which consists of extracting a specific feature by isolating it from an originally disclosed combination of features, subject to strict constraints.

The Court also penalises, on grounds of disparagement, the patent holder’s publication of an announcement on its website mentioning the filing of an infringement action, even though it was not based on sufficient factual grounds.

• The facts

The US company Intellectual Ventures LLC (IV), which specialises in the creation, development, acquisition and exploitation of inventions, is the holder of a European patent entitled “Organisation of data encryption in a wireless communications system,” designating France.

Considering that SFR’s “Auto Connect WiFi” service—which allows subscribers to automatically switch from the mobile network to the SFR WiFi Mobile network using EAP-SIM technology—implemented several claims of the patent, IV obtained, in October 2016, an order for an infringement seizure.

Following the execution of the seizure at SFR’s premises, IV brought infringement proceedings against SFR before the Paris Judicial Court in November 2016.

On 3 February 2017, a bailiff’s report recorded that IV had announced the filing of the infringement action in the “news” section of its website. SFR then filed a counterclaim for disparagement.

By a judgment dated 25 October 2022, the Court annulled the claims at issue on the grounds of added subject-matter, dismissed the infringement action and found IV liable for disparagement. The Court of Appeal upheld the judgment in its entirety.

• Invalidity of the patent for “intermediate generalisation”

The Court first recalled that, pursuant to Article L. 614-12 of the Intellectual Property Code, a European patent designating France may be revoked on one of the grounds set out in Article 138(1) EPC, in particular where the subject-matter of the granted patent extends beyond the content of the application as filed.

To determine whether the subject-matter of the claims extends beyond the content of the original application, the Court referred to the practice known as “intermediate generalisation”, which it defined as “the extraction of a characteristic in isolation from its specific context”, that is, detached from a specific embodiment and not closely linked to the other features of that embodiment.

Such a generalisation is justified only “in the absence of any clearly recognisable functional or structural relationship between the features of the specific combination” or “if the extracted feature is not inextricably linked” to those features.

More specifically, intermediate generalisation is admissible only “if the skilled person can recognise without any doubt, from the application as filed, that the features taken from a detailed embodiment are not closely linked to the other features of that embodiment and that they apply directly and unambiguously to the more general context.”

In this case, IV had isolated the feature according to which encryption was performed at the MAC layer of a wireless local area network, while deleting the original reference to the WEP protocol, even though, for the skilled person, these features are closely and functionally linked. The Court therefore found that dissociating them resulted in a claim extending beyond the content of the original application, and confirmed the invalidity of claims 1, 11 and 14 of the French part of the patent.

• Public disclosure of the infringement action constituting disparagement

On the basis of Article 1240 of the Civil Code, the Court reiterated that disparagement may be found “even in the absence of direct and effective competition,” where “information likely to cast discredit on a marketed product” or on an operator is disseminated without sufficient factual basis.

In this case, IV had published on its own website, on the very day the writ of summons was served, a notice announcing the filing of an infringement action against SFR before the Paris District Court, using the following wording (here translated into French): “Today, Intellectual Ventures has brought an infringement action against SFR before the court.”[1]

The Court emphasised that this publication:

• was accessible to the French public, including SFR’s customers;
• disclosed the existence of an infringement action;
• lacked a sufficient factual basis, as it was based solely on the writ of summons;
• did not relate to a matter of general interest.

Accordingly, the Court held that the publication in question constituted an act of disparagement harming SFR’s image and upheld the order requiring IV to pay €50,000 in damages, as awarded at first instance, without giving any further detail on how the damages were assessed.

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^{[1] _{In its original English version: “Today Intellectual Ventures filed a patent infringement complaint against Société Française du Radiotéléphone – SFR before the District Court. ”}}

Paris Judicial Court, 3^rd Chamber, 1^st section, July 3, 2025, No. 24/09326

IMPACT: In the context of a “référé-rétractation” procedure following a “saisie-contrefaçon”, the Paris Judicial Court conducted a detailed review to determine whether collection plans and purchase invoices could fall within the scope of trade secret protection under Article L.151-1 of the French Commercial Code.

As a result, a confidentiality ring was established in order to govern the disclosure and consultation of documents, some of which were redacted.

THE FACTS

Following a customs detention by the Belgian authorities of 4,932 pairs of shoes suspected of infringing their trademarks, Crocs companies obtained an order from the Paris Judicial Court authorizing them to carry out a “saisie-contrefaçon”, at the headquarters of the company importing the disputed shoes.

During the operation, some documents were seized, while others were subsequently transmitted to the judicial officer by email.

At the request of the seized party, some of these documents were kept confidential on the grounds that they contained information falling within the scope of the trade secret, namely:

– annual collection plans from 2020 to 2023, including:

• a table of references for the disputed products;
• their unit purchase price, stock, and purchase value;
• the balances at specific dates;

– purchase invoices from 2020 to 2024, detailing:

• the name of the supplier and,
• for each purchased reference, the quantity purchased, the unit purchase price, and the total price in U.S. dollars. 

In the context of a “référé-rétractation” procedure, the seized party requested that the confidentiality measures be maintained by the judge who had authorized the “saisie-contrefaçon”.

DETERMINATION OF PROTECTED DOCUMENTS

The judge begins by assessing whether the confidential documents seized constitute information falling within the scope of the trade secret within the meaning of Article L.151-1 of the French Commercial Code, meeting the following three cumulative conditions:

• they are not generally known or readily accessible to persons familiar with this type of information due to their professional sector; 
• they have commercial value by virtue of their confidential nature; and
• their legitimate holder has taken reasonable measures to maintain their secrecy.

The judge concludes that this is the case for documents containing sensitive data such as purchase volumes, gross sales prices, supplier files, and unit purchase prices, since they:

• “contain accounting and commercial information that has actual or potential intrinsic commercial value”;
• “are not known to or readily accessible by third parties, as they are stored on Sogema’s intranet”; and
• “ are subject to reasonable protection measures (…) accessible to a limited number of people (…) through dual authentication via individual passwords for computers and access rights for management software”, as evidenced by the submission of a certificate from the IT manager.

THE DISCLOSURE OF THE CONFIDENTIAL DOCUMENTS SEIZED AND THE ESTABLISHMENT OF A CONFIDENTIALITY CIRCLE

Although the company subject to the seizure demonstrates that it can benefit from trade secret protection, this does not prevent the disclosure of certain documents that are necessary for the resolution of the dispute. The judge notes that they “relate to the infringing products at the center of the infringement proceedings” and “are therefore necessary both for proving the case and for determining the scope of the alleged infringement against Sogema”.

The existence of a dispute over the validity of the trademarks on which the “saisie-contrefaçon” is based is not taken into account at this stage, according to the judge, who refers the matter to the trial court for assessment.

Consequently, the judge orders the disclosure of the annual collection plans in their full version, as well as the purchase invoices with the name of the supplier blacked out, as it is not necessary for the resolution of the dispute and could undermine trade secret protection.

The need for a preliminary sorting of documents is also dismissed, given the limited volume of the files and the parties’ agreement on their relevance to the disputed products, making such an operation unnecessary.

The judge then sets the terms and conditions for consulting these documents through a confidentiality circle, providing for the presence of:

• the lawyer of each party, with their collaborators and/or employees;
• a person representing each party, with consultation taking place only at their lawyer’s office and under a written commitment to use the materials solely for the proceedings and not to copy or reproduce them.

Paris Judicial Court, 4^th Chamber, 2^nd section, May 22, 2025, No. 23/00960

IMPACT: Contests may be considered as unlawful advertising when participation is conditioned upon the purchase of a significant quantity of alcoholic beverages — in this case, 12 bottles of beer — even in the absence of promotional imagery or valorizing terms.

• The facts

As part of its marketing operations, the company ITM ALIMENTAIRE INTERNATIONAL (ITM), responsible for the commercial policy of the INTERMARCHÉ network (French large retailers), published an advertisement in the form of a promotional contest on the chain’s website from May 3 to May 16, 2021.

The campaign offered participants a chance to have their groceries reimbursed, provided they purchased at least two products from the 1664 beer trademark — amounting to a minimum of 12 bottles of 25 cl.

The advertising banner displayed the following statements: “1 in 25 chance of winning. YOUR GROCERIES 100% REIMBURSED. Starting with 2 products purchased,” along with the mandatory disclaimer: “Alcohol abuse is dangerous for your health, consume in moderation.”

The French National Association for Prevention in Alcoholism and Addictology (ANPAA) initiated proceedings against the company ITM before the Paris Judicial Court on January 12, 2023, asserting that the contest constituted unlawful inducement to excessive alcohol consumption.

• Non-intrusive and non-interstitial nature of the online advertisement

In its ruling, the court recalled that advertising for alcoholic beverages is allowed on certain media, including online communication services, provided (1) the said services are not aimed at young people or associated with sports, and (2) the advertisement is neither intrusive nor interstitial.

The court defined “intrusive” as “a format that imposes itself on the screen, notably through techniques such as pop-ups or flash ads, covering part of a website or including sound, without always allowing the user to dismiss them.” Similarly, it defined “interstitial” ads as “those appearing while viewing a page and taking up all or part of the screen.”

In this case, the court noted that the ANPAA did not dispute the compliance of the platform used — specifically, whether the ad was aimed at youth or sports audiences, nor whether the banners were intrusive or interstitial.

• Excessive inducement to alcohol consumption

The court further emphasized that advertising for alcoholic beverages is only legal if it strictly adheres to the content authorized under Article L. 3323-4 of the French Public Health Code. Such content must remain objective and informative, covering elements such as alcohol level, origin, composition, production methods, manufacturer details, terms of sale, and sensory characteristics.

However, the court found that “requiring participation in a contest to be conditional on the purchase of at least two packs of six 25 cl bottles of beer — i.e., at least 12 bottles —” does not qualify as an authorised product description or sales condition. Rather, it constituted an inducement to purchase.

By tying contest entry to the purchase of a minimum of 12 beers, the advertisement inherently encourages excessive alcohol consumption. The court held that the absence of flattering language, promotional imagery, or the inclusion of the required health warning had no bearing on the assessment.

Accordingly, the mere fact that contest entry was subject to the purchase of a significant quantity of alcohol — specifically, two packs of beer — was sufficient to constitute unlawful encouragement of consumption in breach of Article L. 3323-4 of the Public Health Code.

• Assessment of ANPAA’s Moral Damages

To support its claim, ANPAA argued that the contest undermined its human and financial efforts to prevent alcohol-related risks and requested €50,000 in compensation.

The court ultimately awarded €20,000 in damages, taking into account “the importance and reach of the advertising campaign, as shown by the promotional contest participation conditions submitted by ITM,” and based on a bailiff’s report submitted by ANPAA.

• French Supreme Court, Criminal Chamber, 27 May 2025, Case No. 23-86.955

IMPACT : In the criminal courts, the judge may impose a criminal fine coupled with the confiscation of the profits and civil damages to the benefit of intellectual property rights holder who is a civil party to the proceedings. This is intended to compensate them for any harm suffered, and does not necessarily result in a disproportionate penalty.

The Court of Cassation thus upholds, in principle, sentences of up to 3 years’ imprisonment, a €400,000 fine, and over €600,000 in civil damages for quantities involving 315 counterfeit handbags.

• The facts

Three individuals and a company were prosecuted for organizing a network for the manufacture and sale of luxury handbags infringing both trademark and copyright. A total of 315 counterfeit crocodile leather bags were identified.

The offences charged notably include the possession, sale, import, and export, as part of an organized group, of goods bearing a counterfeit trademark, as well as the unlawful reproduction of copyrighted artworks.

On October 4, 2023, the Paris Court of Appeal sentenced the defendants to penalties of up to 3 years’ imprisonment (including 1 year suspended) and a €400,000 fine (including €200,000 suspended), as well as the confiscation of the profits made (€70,000).

They were also held jointly liable for the payment of damages in the following amounts:

An appeal was lodged before the Supreme Court by the defendants, which resulted in the quashing of the judgment, but confirmed the principle of the cumulative imposition of sanctions.

• The rights holder’s option between civil and criminal proceedings

The French Intellectual Property Code contains specific provisions prescribing prison sentences and fines, which may be up to 7 years’ imprisonment and €750,000 when the offences are committed by an organized group or via an online public communication network (Articles L.716-9 et seq. of the Code of Intellectual Property).

Rights holders therefore have the option to initiate proceedings either before the civil courts or the criminal courts. They generally opt for the civil jurisdiction, which is regarded as more favourable in terms of damages granted and, depending on the nature of the infringement, sometimes better at figuring out the reality of the counterfeiting.

• The aggregation of damages and criminal fines

In this case, the plaintiffs claimed that the Court of Appeal failed to ensure that the combination of damages, which they described as punitive, and the criminal fine complied with the principle of proportionality set out in the Charter of Fundamental Rights of the European Union[1].

However, the Court dismissed the argument, justifying the amount of damages awarded by Articles L. 331-1-3 and L. 716-4-10 of the Code of Intellectual Property, which expressly provides that the prejudice must be assessed by taking into account “in particular the profits made by the infringer or the counterfeiter, including savings on intellectual, material, and promotional investments generated by the counterfeiting ”

The Court therefore concluded that these amounts “are solely intended to ensure effective, proportionate, and dissuasive compensation for the harm caused by the offences (…) based on objective economic criteria, while taking into account the costs incurred by the rights holder.” As such, no punitive character may be ascribed to them.

These damages may therefore be combined, without any disproportion, with criminal fines, which remain subject to the principle of proportionality set out in the Charter of Fundamental Rights of the European Union.

It may also be recalled that Directive 2004/48 on the enforcement of intellectual property rights likewise establishes a principle of proportionality with regard to remedial measures.

• Joint and several liability for acts not personally attributed

The defendants also criticized the Court of Appeal for having held them jointly liable without establishing a causal link between the acts personally attributed to them and the harm suffered by the civil parties. However, the Supreme Court held that joint and several liability was justified by the connection and indivisibility of the offences respectively attributed to them, and found that “the fact that each of the co-perpetrators did not obtain the same benefits from the offences, between which a connection was sovereignly established, is not such as to break the causal link between the fault of each of them and the harm suffered by the civil party.”

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[1] Articles 49.3 and 50 of the Charter of Fundamental Rights of the European Union

General Court of the European Union, March 12, 2025, T-66/24

IMPACT: Disclosure prior to the registration of a design may compromise its novelty or distinctive character, unless it falls within the disclosure exception. This exception allows prior disclosure to be disregarded if it meets two conditions:

In this ruling, the court reaffirms that this exception may apply as soon as the previously disclosed design produces the same overall impression as the registered design, without requiring that they be strictly identical.

• The facts

The company LIQUILEDS LIGHTING CORP (LLC) is the owner of a community design registered on January 12, 2017, in class 26.04 for “Light bulbs with light-emitting diodes,” representing a decorative LED bulb.

On March 25, 2021, the company LIDL filed an application for invalidity of this design, claiming a lack of novelty and individual character, particularly with regard to prior rights.

The company LLC considered that this earlier design should be disregarded since it benefited from the disclosure exception (Article 7(2) of Regulation No. 6/2002), whereas the applicant considered that since the prior design was not identical to the registered design, the exception could not apply.

The Court rejects this restrictive interpretation. It justifies this position by taking into account both the wording of Article 7(2) of the aforementioned Regulation, the context of the provision, and the objective pursued by the text.

• Reminder regarding the burden of proof

In this judgment, the Court reaffirms that it is for the applicant to demonstrate that the contested design does not meet the conditions for protection.

It was therefore up to the applicant to prove that the design was preceded by a disclosure to the public, which, according to the Court, was proven.

It was only once this evidence had been provided that the holder of the DM had to demonstrate that it benefited from the disclosure exception set out in Article 7(2) of the Regulation.

• Prior disclosure of a design may benefit from the disclosure exception if it produces the same overall impression as the registered design

As a reminder, Article 7(2) of the Regulation establishes a 12-month grace period during which the creator, or any right holder or authorized third party, may disclose their design without being subject to a claim of lack of novelty or individual character.

In order to be registered, the design must:

In this particular case, the owner of the design demonstrated that the prior right had been invoked by him within the grace period, meaning that it could not be used against him to invalidate his design.

However, the company LIDL maintained that the disclosure exception could not apply since, in its view, the prior art was not identical to the registered design.

The Court decided to reject this interpretation of Article 7(2) of the Regulation, ruling that it is not necessary for the prior design invoked in the context of the disclosure defense to be identical to the registered design; it is sufficient that it produces the same overall impression.

The Court bases its reasoning in particular on the objective of the Regulation, which is to “encourages innovation and development of new products and investment in their production” (Recital 7).

Therefore, requiring strict identity between the disclosed design and the registered design would be contrary to this logic by preventing creators from testing their designs on the market and making adjustments if necessary before registering them.

This decision is upheld by the new Regulation No. 2024/2822, which came into force on May 1, and which states that ” A disclosure shall not be taken into consideration […] if the disclosed design, which is identical with or does not differ in its overall impression from the design for which protection is claimed under a registered EU design, has been made available to the public. ”

Paris Court of appeal, 5^th pole, 1^st chamber, April 9^th, 2025, no. 24/18170

IMPACT: In this ruling, the Paris Court of Appeal endorses a precedent established by the French Court of conflicts (“Tribunal des conflits”), stating that when an infringement of copyright is claimed as a result of alterations made to a public artwork, the Judicial Court has jurisdiction only to rule on the existence of a violation of moral rights and any potential damages.

However, the Administrative Court has jurisdiction to order work to be carried out on the artwork (repair, moving…).

• The facts

As part of an agreement with a local municipality, an artist created an artwork of art consisting of three columns ten metres high and one metre in diameter, entitled “Les Piliers de la République” (“The Pillars of the Republic”).

In June 2023, the artist’s right holders discovered that the artwork had been dismantled for restoration and moved to a neighbouring town.

After unsuccessful formal notices and the inauguration of the artwork in its new location, the rights holders brought proceedings against the city before the Paris Judicial Court to seek damages, as well as the reinstallation of the artwork in its original location.

As the pre-trial judge of the Paris Judicial Court declared that he had no jurisdiction to rule on the request for the work to be reinstalled, in favour of the administrative court, an appeal was lodged.

• Copyright versus principle of the intangibility of public works

On appeal, the rights holders argued in particular that:

On its side, the municipality considered that the artwork also falls within the the public domain property, as it is the owner thereof. It invokes the principle of the intangibility of public works, which prohibits the judicial court from ordering any measure likely to affect them.

• The Judicial Court’s principle jurisdiction in matter of infringement of moralrights by public entities versus public entities

First, the Court, relying on a case law of the Court of conflicts[1], points out that, because of the Judicial Court’s exclusive jurisdiction in matters of literary and artistic property (art. L.331-1 of the French Code of intellectual property), the Judicial Court has jurisdiction to hear contractual or tort liability claims brought against a public entity where an infringement of literary and artistic property, particularly of moral rights, is alleged.

The Court concludes that the Judicial Court has jurisdiction to rule on the existence of the alleged infringement and damages.

In the present case, it thus finds that the Judicial Court must rule on the rights holders’ claim for damages based on a violation of the artist’s moral rights.

• The exclusive jurisdiction of the Administrative Court over requests to alter a public work based on moral rights

Secondly, the Court reiterated the reasoning of another ruling handed down by the Court of conflicts[2], which stated that the Intellectual Property Code does not “ grant to the judicial court the authority to order any measure likely, in any way whatsoever, to affect the integrity of a public work“.

In this case, “Les Piliers de la République” is a public work, meaning that the rights holders who are requesting the relocation of the artwork as well as modifications must refer the matter to the Administrative Court.

The Court held that the limited jurisdiction of the Judicial Court “implies, solely, [if the claimant] intends to obtain, in addition to compensation for his loss, measures likely to affect the integrity of a public work, to refer precisely this point to the administrative courts“.

The Court of Appeal thus upholds the lower court’s ruling in its entirety.

Accordingly, jurisdiction is allocated as follows:

• The Judicial Court rules on the existence of an infringement of moral rights and any alleged damages but cannot order any modifications or relocation of the public work.
• If the Administrative Court is directly seized of a request to modify the public work based on an alleged infringement of moral rights, it may only rule once the Judicial Court has determined the existence of the infringement and the damages claimed.

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[1] Court of conflicts, July 7^th, 2014, n°C3954

[2] Court of conflicts , Sept. 5^th, 2016, n°4069, M. [N]. N. v. Association philharmonique de Paris

• High Court of Paris, 3rd chamber, 2nd section, 21 February 2025, no. 21/09261

IMPACT: In this ruling, the court makes an enlightening assessment of the evidence required to demonstrate substantial investment in a database, an essential condition for obtaining protection under the sui generis right.

Despite the successful demonstration of the investments made by the plaintiff for the recognition of the protection of its database, the Court ultimately ruled out any infringement on the grounds that the competing service contributes to a better structuring of the information and provides added value. The Court thus validated the competitor’s repeated and massive extraction of ads from the Leboncoin site.

1. The facts

The Company LBC FRANCE (“LBC”) operates the Leboncoin classified ads website, including a category dedicated to real estate listings, which is visited monthly by 14 million Internet users.

The Company DIRECTANNONCES is accused of selling, through a subscription system, a compilation of real estate listings accessible via its interface. Some of these listings are obtained by extracting them from the Leboncoin website using software, a method also known as “scraping”.

On June 15, 16 and 17, LBC had a seizure of counterfeit goods carried out on the premises of DIRECTANNONCES before filing a writ of summons before the Paris Judicial Court on July 2, 2021, in order to obtain, among other things, a halt to the extraction and use of the advertisements obtained through this method, on the basis of (i) the existence of unfair competition acts, (ii) infringement of its sui generis rights and (iii) breach of its Terms and Conditions of Use.

2. Details on the statute of limitations

After pointing out that the starting point for the statute of limitations is the day on which the facts came to light, even if they span over time[1] , the Court set the starting point as January 4, 2012, the date of LBC’s first formal notice.

It then makes a distinction according to the basis of the claims:

(i) Unfair competition: the facts consisted of the commercialization of the listings, which the Court said constituted a “single act spanning over time“, so that this claim has been time-barred since 4 January 2017.

(ii) the sui generis right: the judges consider that “the Leboncoin database is constantly being renewed (…) under these conditions, the alleged acts of extraction do not constitute a single act spanning over time but rather the reproduction at different dates of extractions of different content, so that each of them is a distinct event”: the LBC company is therefore not time-barred for extractions that occurred less than 5 years ago.

(iii) Infringement of the Terms and Conditions of Use: the same reasoning applies as for infringement of sui generis rights.

3. Protection by sui generis right: illustrations of evidence to be provided to demonstrate the substantial investment required by law

In order to benefit from protection under the sui generis right, the Court reiterated the requirement for “substantial financial, material or human investment” by the producer of the database[2] , which must relate to “the resources devoted to researching existing elements and assembling them in the said database, excluding the resources used to create the constituent elements” .[3]

The Court then conducts a meticulous assessment of the evidence provided to demonstrate these investments and highlights the nature of the documents supplied:

• several “certificates from the Director of Management Control” and the “Director of Administration and Finance” stating the overall amounts allocated to major expenditure items;
• an IT expert’s report describing and explaining the implementation of these amounts;
• a certificate from the auditor confirming the validity of the information provided.

The Court recognised the evidentiary value of these documents, considering that “the combination of these elements, emanating from three distinct persons, two of whom are independent of LBC France, sufficiently guarantees the sincerity of the elements internal to LBC France“, thus ruling out the need to obtain other accounting documents or to conduct an expert appraisal of the documents.

On this basis, the Court examined the amounts invested by LBC in the “ongoing renewal of the content and presentation of the database“, taking into account in particular the costs of storing advertisements, configuration, moderation and maintenance.

An appendix lists all the elements taken into account to demonstrate substantial investment, with the amounts allocated.

The Court also ruled on the existence of a “real estate” sub-database by estimating the amounts allocated specifically to this heading.

It then estimates that several hundred thousand euros are invested every six months specifically in real estate (see appendix) and considers that “such a level of investment in this area alone is quantitatively substantial”.

The Court therefore ruled that LBC was indeed entitled to protection of its “Leboncoin” database and its “real estate” sub-base on the basis of sui generis law.

4. The absence of any material act infringing the database

Once the protection of the database was recognised, the Court assesses whether DIRECTANNONCES has actually infringed this right.

First, it notes that the seizure of counterfeit goods carried out by LBC allowed for the identification of a computer program at DIRECTANNONCES that retrieved listings from Leboncoin several times a day, and that the extractions covered 89% of the listings in the ‘real estate’ category on the Leboncoin website.

The Court ruled that DIRECTANNONCES had “repeatedly and systematically extracted and re-used a qualitatively and quantitatively substantial part of the ‘real estate’ sub-database“.

In the end, however, the Court ruled out any infringement of the database.

To do this, it relies in particular on

• Recital 47 of Directive 96/9 : ” the sui generis right must not be afforded in such a way as to facilitate abuses of a dominant position, in particular as regards the creation and distribution of new products and services which have an intellectual, documentary, technical, economic or commercial added value “;
• the CV ONLINE judgment of the CJEU[4] : “it is necessary to strike a fair balance between, on the one hand, the legitimate interest of the makers of databases in being able to redeem their substantial investment and, on the other hand, that of users and competitors of those makers in having access to the information contained in those databases and the possibility of creating innovative products based on that information“.

The Court ruled that, in this case, the service offered by DIRECTANNONCES “[contributes] to better structuring of information and facilitating Internet searches, which provides added value” in that it enables its professional customers to avoid “carrying out these public data searches themselves“, emphasising DIRECTANNONCES’ investment of 1.5 million euros over four years.

The Court then dismissed one by one Leboncoin’s other pleas in law to demonstrate damage:

• “The number of ads on the site is growing constantly and strongly, as is the number of visitors, while the turnover of LBC France from 2017 to 2021 has risen from 189 to 281 million euros“. It therefore seems unlikely that advertisers will lose confidence in the site and that it will be hijacked.
• there are no documents “in support of advertisers’ complaints relating to the existence of the […] service operated by Directannonces, even though it is easy for LBC France to produce them“.
• no risk that “the investments in the Leboncoin database could not be amortised because of the activity […] of Directannonces“
• no evidence that “the existence of this service would be likely to divert real estate professionals from the site“.

For these reasons, the Court considers that the scraping carried out by DIRECTANNONCES does not infringe the sui generis rights of LBC and cannot therefore give rise to a conviction.

5. Breach of the General Terms and Conditions of Use (“GTCU”)

Finally, the Court examined the enforceability of the Terms and Conditions of Use of the “leboncoin” website against DIRECTANNONCES, which expressly prohibit “any extraction of elements from its database“.

In this case, the Court noted that for there to be a breach of contract, there must be a contract between the parties

It emphasises that no registration, authorisation or prior acceptance of the GTC is required to access the “Leboncoin” website. DIRECTANNONCES cannot therefore be held contractually liable on this basis.

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[1] Civ. 1. 15 Nov. 2023, no. 22.23-266 and Com. 15 Nov. 2023, no. 22.21-878

[2] Art. L.341-1 of the Intellectual Property Code

[3] CJEU judgments of 9 Nov. 2004 – C-203/02, C-46/02, C-338/02 and C-444/02.

[4] CJEU, 3 June 2021, C-762/19, CV online

Paris Court of Appeal, Division 5, Chamber 16, 29 October 2024, No. 23/02368

The Paris Court of Appeal recently clarified the status, within the international legal order, of the rule of the French Commercial Code sanctioning significant imbalance, in particular whether or not this rule forms part of international public policy and the consequences of such a qualification.

In a decision opposing the Danish company Søstrene Grene to its former distributor in France, SG Distribution France SAS (“SGDF”), the Paris Court of Appeal was required to rule on whether former Article L. 442-6, I, 2° of the French Commercial Code, relating to significant imbalance, forms part of French international public policy.

The dispute arose in the context of arbitration proceedings initiated in 2021 by Søstrene Grene following the termination of the distribution agreements binding it to SGDF and its subsidiaries, with a view to establishing its own distribution network in France. The arbitral award, rendered by a Danish arbitral tribunal on 11 August 2022, was granted enforcement (exequatur) by an order of the delegate of the President of the Paris Judicial Court on 8 December 2022. It is this enforcement order that SGDF and its subsidiaries challenged on appeal.

In their appeal, SGDF and its subsidiaries sought the reversal of the order rendered on 8 December 2022 and requested the Court of Appeal to refuse enforcement of the arbitral award of 11 August 2022, invoking four legal grounds, all of which were dismissed by the Court of Appeal: breach of the adversarial principle, breach of the principles of contractual freedom and the binding force of contracts, breach of the rules governing insolvency proceedings, and finally—and most importantly—the Court ruled on whether the provisions of Article L. 442-6, I, 2° of the Commercial Code relating to significant imbalance, and Article 101 of the Treaty on the Functioning of the European Union (TFEU) relating to the prohibition of anti-competitive agreements, form part of international public policy.

It is this last point that is of particular interest here. The Court of Appeal first recalled, referring to recent case law of the French Supreme Court (Cass. 1st Civ., 17 May 2023, No. M 21-24.106), that when ruling on an application to set aside an arbitral award, the court assesses only the effects of the award on international public policy, and not whether the reasoning adopted by the arbitral tribunal to reach that award complies with international public policy. The Court then examined the classification of the various provisions relied upon by the appellants.

In order to reject the classification of Article L. 442-6, I, 2° of the Commercial Code as a component of international public policy, the Court of Appeal noted that “while the provisions of Article L. 442-6, I, 2° of the Commercial Code constitute a domestic mandatory rule, their violation cannot, as such, be regarded as infringing the French conception of international public policy.” While the Court could have confined itself to stating this principle, it went on to specify that “in the present case, the appellants’ reliance on these provisions forms part of a strategy aimed at protecting their private interests.”

This clarification suggests that, had the action been brought by the Minister for the Economy, as permitted by the Commercial Code, the Court of Appeal might have considered that a breach of this provision would have been contrary to international public policy. This reasoning appears to follow in the footsteps of the French Supreme Court, which, in its much-commented Expedia decision (Cass. Com., 8 July 2020, No. 17-31.536), recognised that these same provisions constituted a mandatory rule, insofar as compliance with them could be ensured by the Minister for the Economy.

In the present case, such a situation would be highly hypothetical, as the solution adopted by the Court of Appeal and the importance of qualifying a rule as a component of international public policy are relevant in an arbitral dispute, which seems incompatible with an action brought by the Minister under former Article L. 442-6, I, 2° of the Commercial Code.

Nevertheless, case law thus appears to persist in its assessment of the status of former Article L. 442-6, I, 2°, now Article L. 442-1, 2° of the Commercial Code, within the international legal order. This trend is open to criticism insofar as it varies depending on whether the action is brought by a private party or a public authority, to the detriment of legal certainty and clarity in French private international law, and therefore of its attractiveness.

By contrast, the Court of Appeal held that a violation of Article 101 TFEU, relating to the prohibition of anti-competitive agreements, would be contrary to international public policy, relying on the Eco Swiss judgment of the Court of Justice of the European Communities (CJEC, 1 June 1999, Case C-126/97).

After noting that these breaches had not been raised before the arbitral tribunal, the Court nevertheless examined them, ultimately concluding that no violation of European competition law had been established in the present case. In support of this conclusion, it emphasised in particular that the practices complained of “do not constitute one of the anti-competitive practices listed in the aforementioned articles,” a statement that raises some questions, given that the list set out in Article 101 TFEU is not exhaustive.

Through this decision, the Paris Court of Appeal appears to limit the grounds on which enforcement of arbitral awards may be refused due to the specific features of French economic law, while reaffirming the importance of European provisions in this field, particularly competition law.

On 6 November 2024, order n°2024-978 (the Order) amended Law n°2023-451 of 9June 2023 aimed at regulating commercial influence and combating abuses by influencers on social networks (the Influencers Law).

The aim of this law^[1] was to prevent certain abuses related to commercial influence on social networks and to better regulate practices by establishing a stricter legal framework.

Following its entry into force, the European Commission sent France a letter of observations on 14 August 2023, highlighting several breaches of European regulations resulting from this legislation.

It identified several incompatibilities with European Union law.

Thus, the Order under review clarifies certain points and complies with the Commission’s observations.

1. The maintenance of the definition of commercial influence

The Influencer Law states that any person or entity who, “for a fee, uses their reputation among their audience to communicate content to the public by electronic means with a view to promoting, directly or indirectly, goods, services, or any cause whatsoever”, is considered to be engaged in commercial influence activity by electronic means.

This definition applies to both natural and legal persons.

2. Restriction of the territorial scope of the Influencer Law

The Influencer Law was intended to apply to all influencers targeting an audience established on French territory, regardless of their place of residence and without making any distinction among the Member States of the European Economic Area (EEA).

The European Commission challenged this approach, arguing that influencers should be subject to the “e-commerce” and “AVMS”^[2] directives, which provide that the applicable law is that of the Member State in which they are established (“country of origin” principle).

Therefore, the Order complies with the Commission’s interpretation and narrows the territorial scope of the Influencer Law by stating that several of its provisions do not apply to influencers established in an EEA Member State other than France ^[3], subject to exceptions laid down in these directives. For instance, the Influencer Law would therefore not apply to an influencer established in Germany, even if he were addressing to the French Public.

3. Clarifications regarding the promotion of certain goods and services in the healthcare sector

The Order clarifies that the prohibition on the promotion of aesthetic procedures and methods applies only to those “which may present risks to people’s health” (Art.1 of the Order), thus revising the initially proposed general prohibition.

The aim here is to comply with the proportionality requirement set out in the “e-commerce” directive ^[4].

4. More flexible compulsory indication for images modified or generated by Artificial Intelligence (AI)

The Order confirms the obligation to display the indication “Retouched Image” and “Virtual Images” for visuals that have been modified or generated by AI and that depict a silhouette or a face.

However, it eases this requirement by allowing the indication to be replaced “with any equivalent indication adapted to the characteristics of the influencer activity and the format of the communication medium used”.

Here again, the aim is to comply with the principle of proportionality and to “ensure the longevity of the provision, in the context of rapid developments in technology and legal standards in this area (notably AI regulation)”.

5. The easing of the assessment of commercial intent as a misleading commercial practice

The Order upholds that the absence of disclosure of the commercial intent by an influencer constitutes a misleading commercial practice by omission within the meaning of Article L.121-3 of the French Consumer Code, but only when this intent “is not already apparent from the context” ^[5], thereby tempering this obligation.

Commercial intent may be indicated by using the indications “advertising” or “commercial collaboration”, which must be “clear, legible and understandable”.

Like the easing for images modified or generated by AI, this indication may be replaced by “any equivalent indication adapted to the characteristics of the Influencer activity and the format of the communication medium used”.

* * *

The draft Order was already notified to the European Commission on 3 July 2024 which has not made any comment.

The Order was published in the Official Bulletin on 6 November 2024 and came into force the following day.

A ratification bill must be voted by the Parliament within three months of the publication of the Order ^[6], i.e. before the 7 February 2025. Failing this, it will automatically cease to apply. 

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[1] See our previous Focus IP : Influencers – Analysis of the French regulations and the recent bill of law aiming to frame their activity.

[2] See Directive 2000/31/CE « e-commerce » Directive 2018/1808 modifying Directive 2010/13/UE on Audiovisual Media Services (“AVMS”).

[3] See article 5-1 of the Order.

[4] See Rapport au Président de la République relatif à l’ordonnance n° 2024-978 du 6 novembre 2024

[5] See art. 5-2 of the Order.

[6] See article 3 of Law No. 2024-364 22April 2024.

Cass. Com., 26 June 2024, n° 23-13.535 : Maisons du Monde c./ Auchan ;

Cass. Com., 26 June 2024, n° 22-17.647 et 22-21.497 :  Decathlon c./ Intersport

IMPACT: In two rulings delivered on the same day, the Court of Cassation reaffirmed that in parasitism cases, the claimant must demonstrate both the individualized economic value they invoke and the defendant’s intent to follow in their footsteps.

Furthermore, it clarified the contours of individualized economic value, emphasizing that “seeking cost savings to the detriment of a competitor is not inherently wrongful,” thereby increasing the evidentiary burden for the claimant.

1. Facts of the cases

In the case Maisons du Monde v. Auchan, the latter had marketed cups and bowls featuring “vintage” images designed by contracted companies. Maisons du Monde (MDM) sued Auchan for unfair competition and parasitism, claiming that these products reproduced a design similar to its Pub 50’s board, created in 2010 by its style research department. Following the rejection of its claims by the Rennes Court of Appeal—already on remand after cassation—a further appeal was filed..

In the case Decathlon v Intersport, Decathlon marketed the “Easybreath” snorkeling mask, protected by a community design, while Intersport sold a similar mask under the Tecnopro brand, supplied by the German company Phoenix Group.

The Court of Cassation reviewed these cases to reaffirm the criteria for parasitism, ultimately upholding the ruling in the Decathlon case while rejecting the claims in the Maisons du Monde case..

The Court aimed to give these rulings broad visibility as they are published in the Bulletin and will be discussed in the Court of Cassation’s Annual Activity Report. This aligns with a broader judicial trend to better define the concept of parasitism, as indicated by the Paris Court of Appeal’s January 2024 publication on compensating parasitism-related damages.

2. Reaffirming the criteria for parasitism

In both rulings, the Court of Cassation reiterated several principles:

• the principle of free trade, stressing that “ideas are free to be used, and merely adopting and adapting a concept implemented by a competitor does not, in itself, constitute an act of parasitism”.¹
• the traditional definition of parasitism which is “a form of unfairness, constitutive of fault under Article 1240 of the Civil Code, whereby an economic operator seeks to benefit unduly from another’s efforts, expertise, acquired reputation, or investments”².
• the evidence burden for the claimant: “identifying the individualized economic value he is claiming” and “the willingness of a third party to placing himself in the wake of another ”³.
• the notion of individualized economic value, which “cannot be inferred solely from the product’s longevity and commercial success.”⁴.

The Court added a clarification in the Decathlon case, noting that “seeking cost savings at a competitor’s expense is not inherently wrongful but is part of free trade and competition, provided it respects fair commercial practices”. This clarification reinforces the claimant’s evidentiary burden, ruling out reliance solely on demonstrating cost savings resulting from the defendant’s adoption of an idea or concept.

3. The application of parasitism criteria by the Supreme Court to the cases

After reaffirming the principles of parasitism, the Court of Cassation undertook a highly fact-specific analysis of the cases to ensure proper application of the principles, offering various examples of evidence necessary to establish individualized economic value.

In Maisons du Monde v. Auchan, MDM argued that its Pub 50’s board represented a unique combination of visual elements evoking the 1950s, supported by promotional efforts.

However, the Court of Cassation dismissed the appeal, citing insufficient proof of an identified and individualized economic value based on several indicators it detailed at length :

• the absence of slavish copy by Auchan of the Pub 50’s board created by MDM, as the images used were “composed of various royalty-free photos available online.”
• The limited sales period of the Pub 50’s board, which was “never prominently featured as emblematic of the ‘vintage’ collection.”
• The reuse of a style that the plaintiff was neither uniquely exploiting nor characteristic of its brand.
• The plaintiff’s lack of intellectual property rights over the design elements in question, surprising given parasitism’s distinct legal basis.
• The absence of any adaptation of the Pub 50’s board to other products.
• The mundane combination of preexisting images freely accessible online, which was never promoted as emblematic of the brand’s universe.

The Supreme Court thus provides numerous examples of how to characterize an individualized economic value which, in their absence, are indicators that should lead to the exclusion of the existence of parasitism.

In Decathlon v. Intersport, the Court rejected Decathlon’s claims of design infringement, noting that the mask’s features were dictated by technical requirements, and its claims of unfair competition due to lack of consumer confusion.

However, parasitism allowed Decathlon to prevail, with the Court identifying several factors proving individualized economic value:

• The significant renown of the Easybreath mask, supported by over €3 million in advertising investments and €73 million in sales between 2014 and 2018.
• Three years of design and development work costing €350,000.
• The innovative nature of Decathlon’s approach, with no evidence that “equivalent products existed in the French market when the Easybreath mask was launched.”

The Court also considered the defendant’s perspective, highlighting that Intersport and its economic partner:

• “Provided no evidence of product development efforts or associated costs.”
• Launched their mask “during a period when Decathlon was still airing advertising campaigns.”

The Court further noted that the intent to follow in a competitor’s footsteps was evident from “the striking resemblance of the Decathlon mask,” the “link between the two masks due to their overall appearance,” and the timing of Intersport’s product launch coinciding with Decathlon’s advertising efforts.

As a result, Intersport and Phoenix were jointly ordered to pay Decathlon €100,000 in damages. However, no injunction was issued given the Easybreath mask’s three-year market presence without competing versions being introduced.

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1. 1re Civ., 22 June 2017, pourvoi n° 14-20.310 ↩︎
2. Com., 16 February 2022, pourvoi n° 20-13.542 ; Com., 10 July 2018, pourvoi n° 16-23.694 ; Com., 27 June 1995, pourvoi n° 93-18.601 ↩︎
3. Com., 26 June 2024, pourvoi n° 23-13.535 ; Com., 20 September 2016, pourvoi n° 14-25.1316 ; Com., 3 July 2001, pourvoi n° 98-23.236, 99-10.406 ↩︎
4. Com., 5 July 2016, pourvoi n° 14-10.108 ↩︎

The issue of fairness in evidence has recently come under the spotlight following two judgements issued on December 22, 2023 by the plenary session of the French Supreme Court (Cour de cassation). After a proportionality check, the Court now authorizes the production of evidence obtained unfairly. However, when it comes to intellectual property, judges are more inclined to reinforce the fairness of debates, which is not necessarily contradictory.

The principle of fair proof is established in article 9 of the Code of Civil Proceedings, which provides that everyone must prove their claims “in accordance with the law“.

According to the courts, this article implied a requirement of fairness in obtaining evidence, which should lead to the rejection of evidence obtained unfairly. For example, the recording of a conversation without a person’s consent was considered to be an unfair evidence, particularly prejudicial to the right to privacy [1].

In two particularly well-grounded rulings, the Supreme Court now considers that “it is now appropriate to consider that, in civil proceedings, unlawfulness or unfairness in obtaining or producing a means of proof does not necessarily lead to its exclusion from the proceedings“[2] .

According to the Court, this reversal is intended to avoid “depriving a party of any means of proving its rights” and is based on the principle of equality of arms during the trial.

While disloyalty between the parties in obtaining evidence now seems to be accepted (1.), loyalty is still required in presenting evidence to the Judge, particularly in intellectual property matters (2.).

1. The admission of disloyalty between parties in obtaining evidence

In criminal cases, the courts have for many years recognized the unfairness of evidence in favor of the parties. Persistent and long-standing case law accept all evidence produced by litigants, even if it has been obtained illegally or unfairly[3] . In this case, judges give primacy to the rights of the defense in order to ensure that the truth is revealed. However, this right to “disloyalty” applies only to those subject to trial, and not to public officials, who remain subject to an obligation of loyalty[4] .

One direct consequence of this difference in approach between civil and criminal matters in terms of assessing the right to evidence was to lead litigants to prefer the criminal track to the civil track, in order to benefit from a more favorable probatory regime.

In some cases, the same fact can be classified as criminal or civil, so the claimant benefits from an option an may select the one most favorable to, as in the case of “forum shopping”. For example, the unlawful reproduction of a trademark may give rise to an action before the judicial court, but also to the filing of a criminal complaint on the basis of article L716-9 of the French Intellectual Property Code, which provides for 4 years’ imprisonment and a fine of 400,000 euros.

It was this “risk that the criminal track could be used to circumvent the more restrictive evidence regime in civil track” that led the Cour de cassation, at least in part, to its reversal in its two rulings of December 2023.

From now on, evidence considered unfair because of the way it was obtained by one party from the other may be admitted before the judge, provided that its production is “indispensable to the exercise [of the right to evidence] and that the infringement is strictly proportionate to the aim pursued“.

In one of its two rulings of 2023, the French Supreme Court accepted the production of surreptitious recordings of a person during an interview.

This solution will certainly influence future case law, but it must be balanced with other recent cases which also deal with loyalty.

2. Loyalty to judge in intellectual property matter

The question of fairness in obtaining evidence must be distinguished from the obligation of fairness towards the judge in the presentation of the facts. This fair presentation is particularly debated in the field of intellectual property, where evidence is regularly at the center of debates, notably because of the existence of specific legal provisions.  

In this respect, Article 3 of Directive 2004/48 on the enforcement of intellectual property rights expressly states that “measures, procedures and remedies must be fair and equitable“.

Judges are therefore particularly vigilant about the presentation of facts made by the claimant, regularly referring in their decisions[5] to Directive 2004/48, as well as Article 10 of the Civil Code, from which they deduce an obligation for the parties to produce the elements in their possession likely to influence their opinion[6] .

The Court of Cassation has ruled that “the applicant for an infringement seizure measure must demonstrate loyalty in the presentation of the facts in support of his request for infringement seizure“[7] . More specifically, this loyalty expressed for example in the obligation to communicate to the judge any intellectual property titles held by the opposing party, as well as relevant decisions handed down by intellectual property offices.

Another area in which loyalty is regularly invoked is when a third party carries out a purchase report. In a decision dated January 25, 2017, the Cour de cassation put an end to the usual practice of having a purchase recorded in a store in the presence of a bailiff, using a student lawyer who worked in the plaintiff’s law firm[8]. This was based on article 9 of the French Civil Code and on the principle of fair proof. Some recent rulings still seek to determine whether there is a “stratagem or unfair procedure” to assess the validity of the report, and to verify the identity of the third party performing the purchase to ensure his independence[9] .

In this respect, it is questionable whether the two rulings handed down by the plenary assembly in 2023 do not challenge the requirement for a finding to be made by an independent third party since the requirement of fairness of the evidence, which in this case concerns the obtention of evidence and not its presentation to the judge, is no longer required.  That said, given the particular requirements of loyalty in the field of intellectual property, it is likely that this practice will continue as a precautionary measure.

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[1] Cass. 2nd civ., Oct. 7, 2004, no. 03-12.653

[2] Cass. Ass. Plén., December 22, 2023, 20-20.648 and 21-11.330

[3] Cass. Crim. June 15, 1993, n°92-82.509

[4] Cass. ass. plen., Dec. 9, 2019, no. 18-86.767

[5] E.g. TJ Paris, 3e ch. 2e sect., Feb. 9, 2024, no. 23/10348; Cass. Com. December 6, 2023, no. 22-11.071

[6] Cass. Com. December 6, 2023, no. 22-11.071,

[7] TJ Paris, 3rd Ch. 2nd Section, Feb. 2, 2024, no. 23/12720

[8] Civ. 1. January 25, 2017, 15-25.210

[9] CA Paris, Pôle 5 Ch. 1, March 8, 2023, no. 21/09769.

Cass. Com., 18 oct. 2023, n° 20-20.055: the French Supreme Court has clarified the criteria for establishing infringement when a third party reproduces a competitor’s trademark as part of a paid search engine listing.

It also held that such reproduction in the source code of a website – and therefore not visible by the consumer – constitutes an infringement, contrary to several judgments handed down by the lower courts.

Search Engine Optimization (SEO) is a key factor in the marketing of products and services. The courts have come to regulate the use of a third party’s trademark in this context, as such use may be authorized subject to compliance with certain criteria.

SEO refers to all practices designed to ensure that a website appears in the first results of a search on a search engine such as Google or Bing.

The following distinctions are made in particular:

• Natural referencing: it includes all the criteria taken into account by search engine algorithms to identify the most relevant sites in a search, such as the frequency with which sites are consulted, the presence of hypertext links in the site’s content, or its source code.
• Paid referencing: a third party buys a keyword from a search engine, such as a competitor’s trademark, in order to make its own website appear as the first result when a consumer searches for that keyword.

For example, the keyword “Google Ads” on www.google.com displays an advertisement composed of a title, a URL link and a description:

Example of an advertisement – paid referencing

• Facts of the case

The companies AQUARELLE, operators of a website specializing in the sale of flowers, initiated an infringement action against the company SCT, on the grounds that the latter was using their trademark “AQUARELLE” as a keyword for natural and paid referencing purposes. 

More specifically, company SCT had:

• purchased the keyword “AQUARELLE” from Google. In a search, a link entitled “Bouquets Toutes Occasions – lebouquetdefleurs.com” appeared in 1^st with the URL address www.lebouquetdefleurs.com belonging to the company SCT and a description of the flower delivery business (“livraison, bouquet, fleurs, fraîches, France…”). The words “official site” were also present in the ad;

• reproduces the AQUARELLE trademark in the source code of its website, thus improving its ranking in search results (not visible by the consumer from the search engine).

The Court of Appeal rejected the existence of infringement on these two grounds, following which the AQUARELLE companies appealed before the French Supreme Court. 

• The French Supreme Court’s criteria for establishing infringement

On the basis of Article 9 of Regulation (EU) no. 207/2009 and Article 713-2 of the French Intellectual Property Code, the French Supreme Court dismissed the appeal lodged by the companie AQUARELLE, and clarified the criteria that must be met in order to establish infringement, particularly with regard to the reproduction of a trademark in the source code.

• Regarding paid referencing, the criterion of reproduction of the trademark in the advertisement has been replaced by the criterion of risk of confusion.

The French Supreme Court upheld the decision of the Court of Appeal, which had ruled out the risk of confusion.

Above all, it validates the fact that the Court of Appeal “did not limit itself to analysis the absence of use of the AQUARELLE sign in the advertisement” to rule out infringement.

In other words, the simple fact of not reproducing the trademark in the advertisement may not be enough to rule out infringement, which until now has been the main criteria used by the lower courts to decide whether or not to sanction the adversiment.

It is now necessary to ensure that there is “no risk of confusion due to the use of the sign AQUARELLE (…) as a keyword in the Adwords referencing system“.

This is the case here, since the Supreme Court notes that the appeal judges emphasized that :

• “The [disputed] advertisement was immediately followed by the “Aquarelle.com” advertisement;
• “no use is made of the sign “AQUARELLE”, either in the advertisement itself, or in the link, or in the URL address”.
• “The advertisement uses common terms to describe the business of delivering flowers ordered online.
• “[it] expressly displays the name of the site [https://lebouquetdefleurs.com/]”.

According to the Supreme Court, these clues ensured that there was no risk of confusion for Internet users as a result of SCT’s use of the AQUARELLE sign.

The risk of confusion in terms of referencing will therefore be assessed on a case-by-case basis, taking into account not only the advertisement itself, but also its context.

However, the judges do not specify whether, a contrario, the reproduction of a trademark within the advertisement is sufficient in itself to characterize the risk of confusion.

• Regarding the reproduction of the trademark in source code, the criterion of trademark visibility is replaced by the criterion of likelihood of confusion

In the past, the Courts have been reluctant to characterize infringement when a trademark was used in the source code of a third-party website.

For example, in 2023, the Paris Court of Appeal ruled out infringement on the grounds that the source code “is invisible to the consumer (…) who, when consulting a website, does not go to this page relating to the computer content of the source code, which is unrelated to the products and services marketed on the said website“^[1] .

In this case, the Court of Appeal had rejected the infringement claimed by the companies AQUARELLE on the grounds that “as the sign is not visible to the public, it is not used in the source code to designate products and services“.

The French Supreme Courtupheld the rejection, but corrected the Court of Appeal’s motivation, holding that “the trademark owner may prohibit the use of a sign by a third party in the source code of its website, even if it is not visible to the public”.

The French Supreme Court therefore rejected the criterion of public visibility of the trademark.

Instead, it substitutes the likelihood of confusion criterion, indicating that it is necessary to consider whether the search result “does not allow, or allows only with difficulty, the average Internet user to know whether the goods or services targeted by the natural referencing originate from the trademark owner or from a company economically linked to the owner or, on the contrary, from a third party“.

In this case, the Court of Appeal found that “the average Internet user was informed about the origin of the site (…), thus demonstrating the absence of any risk of confusion about the origin of the products and services offered“, so that there were no grounds for cassation.

In opting for this new criterion of likelihood of confusion, the French Supreme Courtis moving closer to the interpretation of the Court of Justice of the European Union set out in the case “Google” ruling, which dealt with paid referencing.

The European judges ruled that the use of a third party’s trademark as a keyword could constitute an infringement if “the advertisement does not enable, or enables only with difficulty, the normally informed and reasonably attentive Internet user to ascertain whether the goods or services referred to in the advertisement originate from the trademark owner or an undertaking economically linked to it or, on the contrary, from a third party“^[2] .

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[1] CA Paris, April 19, 2023, no. 21/17661

[2] CJEU, March 23, 2010, Google, C-236/08

Cass. Com. 18^th October 2023, no. 22-20.438

In the case of a sudden termination of established commercial relationships, compensation is calculated on the basis of the notice period that should have been granted to the victim. Article L.442-1, II (formerly Art. L.442-6, I, 5°) of the French Commercial Code requires the length of the commercial relationship to be taken into account when assessing the notice period but does not rule out the consideration of other criteria. In any event, the judge does not have to justify the reasons why the notice period enables the victim to find new opportunities. This is what the Court of Cassation ruled in a judgment issued on 18^th October 2023.

In this case, in 2014 a service provider (a consultancy firm) entered into a one-year contract with a bank for consultancy services. A second contract was signed in 2015 for the same duration. The services under both contracts were provided by the service provider and by two of the bank’s self-employed workers. In 2016, the bank decided to resort to the services of these two self-employed workers through two other companies.

Taking the view that the bank had breached its obligations and abruptly terminated their established commercial relationship, the service provider brought an action against the bank before the Paris Commercial Court.

In a judgment dated 17^th June 2019, the Paris Commercial Court dismissed all the service providers claims on the ground that the succession of two fixed-term contracts was not sufficient to characterise an established commercial relationship.

In response, the service provider decided to lodge an appeal, seeking an order that the bank pay it the sum of €100,000 for the sudden termination of an established commercial relationship.

In its ruling of 22^nd June 2022 (RG no. 20/17215), the Paris Court of Appeal ruled in favour of the service provider, holding that the bank had been guilty of the sudden termination of an established commercial relationship, when the bank should have given the service provider a three-month notice to allow it to reorganize itself.

The Court of Appeal recalled that a commercial relationship is established when it is “ongoing, stable and regular“, stability being understood as the fact for the victim of the termination to have legitimate expectations of “continuity in the flow of business“.

The appeal judges therefore considered that two successive one-year contracts could constitute an established commercial relationship considering the continuity of the assignment entrusted to the service provider, justifying, moreover, its legitimate belief in a new renewal of the contract, similar to that which occurred at the end of the first contract.

The Court of Appeal also emphasised that the notice period should be understood as “the time required for the company to reorganise itself in the light of the duration, nature and specific features of the relationship“.

The Court considered in this case that a three-month notice should have been granted to the service provider in view of the length of the two-year relationship between the parties and changes in costs and turnover. The Court then ordered the bank to pay damages of €25,000.

The service provider appealed to the Court of Cassation, claiming that the judgment limited the damages to the sum of €25,000, whereas the Court did not specify to what extent the three-month notice had enabled it to find new opportunities.

The Court of Cassation dismissed the appeal on the ground that the Court of appeal had legally justified its ruling: “the Court of Appeal, which did not have to explain further why the three-month notice period enabled the service provider to find new opportunities, since it assessed the sufficiency of the notice period solely in the light of the legal criterion applicable at the time and the specific circumstances of the relationship in question“.

Consequently, the Court of Cassation, after confirming the established nature of a commercial relationship consisting of two successive one-year contracts, pointed out that, since the Court of Appeal assessed the sufficiency of the notice period in the light of the legal criterion set out in Article L.442-1, II (formerly Art. L.442-6,I, 5°) of the French Commercial Code, i.e. the duration of the relationship, it was not bound by any obligation to provide further reasons even if, in addition to the legal criterion, it used other criteria, such as the possibility of finding new opportunities, to assess the notice period.

CA Paris, May 17 2023, 21/15795. The Paris Court of Appeal handed down a decision in which it ruled that the prescription for an infringement action expires after five years, regardless of whether acts of marketing and distribution of the disputed work continue beyond that period.

The musical work “A World Without Danger” was created by two songwriters as the theme tune for the cartoon “Code Lyoko”. The latter felt that an album produced in 2010 by two performers from the group “The Black Eyed Peas” used the melody from their work in their track “Whenever“.

In December 2011, the latter gave the performers formal notice to pay compensation for the damage suffered as a result of counterfeiting. However, it was only on June 6, 2018 that the songwriters finally took legal actions against the performers and the companies distributing and producing the album for copyright infringement.

The first-instance judgment dismissed the defendants’ plea of prescription, but declared the plaintiffs inadmissible for failing to justify the originality of the work claimed.

The songwriters have appealed the decision.

On the question of prescription, the appellants considered that the copyright infringement action is of a penal nature “which provides for the possibility of a continuous infringement, of a successive offence” and that the purchase of an album “The Beginning” at FNAC stores

on April 27, 2018, a few days before the summons, demonstrated that the disputed work was indeed been distributed to the public, which was likely to interrupt prescription.

The respondents, for their part, considered that the claim had been time-barred since December 2016 at the latest, since the appellants had necessarily been aware of the marketing of the title “Whenever” since 2010, which was established by the sending of a formal notice dated December 30, 2011, and that actions subsequent to that date such as making the track available on the iTunes platform on March 27, 2018, or selling physical copies of the album at FNAC stores on April 27, 2018, were not separate acts of infringement, as they were simply an extension of the marketing of the track in 2010. 

The Court of Appeal finally overturned the judgment, pointing out first of all that copyright infringement action is “subject to the general prescription set out in article 2224 of the French Civil Code“. It then validated the respondents’ reasoning, ruling that on the date of the summons on June 6, 2018, the five-year statute of limitations had run, since the appellants had been aware of the disputed facts on the date of the formal notice in December 2011.

The Court then ruled that making the track available on the iTunes platform and selling physical copies of the album at FNAC stores in April 2018 were “merely the normal extension of the marketing and distribution carried out previously”, which did not trigger a new limitation period.

Paris Court of Appeals, May 12, 2023, 21/16270. The Paris Court of Appeal issued a judgment in which it held that a selfie taken in an elevator cannot be protected under copyright law due to a lack of originality, nor under unfair competition and parasitism.

An influencer posted selfies taken with her dog in an elevator on social media and her blog, showing her outfits and providing affiliated purchase links.

The company MAJE launched an advertising campaign titled “Maje, my dog and I,” which, according to the influencer, reproduced essential characteristics of her selfies, especially since the model chosen by the company looks like her. She filed a legal action against the company for copyright infringement, unfair competition and parasitism.

The initial judgment dismissed the influencer’s claims based on copyright but ordered the company MAJE to pay 1,000 euros for material damages and 4,000 euros for moral damages under the parasitism claim.

Both parties appealed the decision.

Regarding copyright infringement, the Court of Appeal noted that the photograph was not on the influencer’s public profile and only appeared in a “story” which by definition is temporary. However, several statements from influencer’s followers demonstrated that the photograph had indeed been disclosed to the public.

Concerning the originality of the selfie, the Court reiterated that the author must identify “elements reflecting their personality” and precisely indicate “the characteristics that constitute the infringement.”

The Court then observed that the influencer merely described the photograph without explaining the reasons behind her choices and failed to demonstrate how her adjustments were unique to her. The “selfie”

merely replicated the “artificial lighting of the elevator.”

Furthermore, it noted that “staging oneself and taking a photograph in an elevator using the selfie technique accompanied by a dog was already known on social media…” on accounts with a much wider audience.

The Court concluded that a “daily ritual…to showcase outfits” does not qualify as the photograph’s originality, as the influencer “cannot appropriate this style.”

Consequently, the Court logically concluded that the influencer “fails to establish the arbitrary choices she made regarding staging, contrast effects, lighting effects, element placement, or post-production/retouching work” and rejected her copyright claim.

Regarding unfair competition and parasitism, the Court held that “using a photograph that bears resemblances to the previously posted image on Instagram is not wrongful” and does not constitute unfair behavior by the company MAJE, as it aligns with current trends.

Additionally, the fact that some followers of the influencer’s Instagram account believed they recognized her in the disputed photograph does not constitute unfair competition, as the invoked risk of confusion pertains to the influencer’s person and not the services she offers within her professional activity.

The Court of Appeals also noted that the influencer’s notoriety on Instagram is relative, with a low engagement rate of 1.02% and a limited audience. Finally, concerning parasitism, the Court dismissed this claim for the same reasons mentioned above, adding that the influencer did not establish having made investments related to this visual and therefore failed to demonstrate individualized notoriety or economic value.

CA Paris, July 5, 2023, 21/11317. The Paris Court of Appeal has handed down a ruling in which it condemned Mr. Jean-Luc MELENCHON and his political party, La France insoumise (“LFI”), for infringement of the economic and moral rights of street artist COMBO.

As part of the campaign for the 2017 presidential election and the 2020 municipal elections, videos produced for the campaigns of Mr. MELENCHON and LFI and distributed on several media (in particular on social networks), reproduced without the prior authorization of the artist COMBO, nor mention of his name, his work “La Marianne Asiatique” (Asian Marianne):

COMBO sued Mr. MELENCHON and LFI before the Paris Judicial Court, which dismissed its claims on the grounds of copyright infringement.

COMBO lodged an appeal with the Paris Court of Appeal, which upheld all of his claims.

Regarding the admissibility of the claims against Mr. MELENCHON, the Court ruled that Mr. MELENCHON was indeed responsible for the publications made on his official accounts, regardless of whether they were administered by a third party, provided that it is not demonstrated that the latter acted independently and outside his mission.

The Court then assessed the copyright exceptions invoked by Mr. MELENCHON and LFI to rule out infringement of the artist’s economic rights.

As for the exception of panorama, it was rejected by the Court, as this exception is provided for by Article L.122-5-11° of the French Intellectual Property Code only for “architectural works and sculptures permanently located in public places “. The Court notably held that “in the case of a work of ‘street art’, which, as in the present case, is partly made up of pasted paper, and is therefore particularly subject to external hazards (deliberate damage, erasure by the owner of the support, alterations due to  weather conditions, etc.), it cannot be said that it is ‘permanently placed on the public road“.

In addition, an examination of the videos revealed that the work did not appear in an incidental or fortuitous way, as an element of the landscape or public space serving as a backdrop to the subject or the event dealt with, “but that it was deliberately integrated, in an aesthetic research which reveals the intention of the video’s author to make it an important element of the clip and to exploit the work by associating it with the political message being broadcast“.

The court also rejected the short quotation exception provided for in Article L.122-5-3° of the French Intellectual Property Code, noting that the name of the artist or the source of the work were not mentioned at any point in the disputed broadcasts, as required by law.

Furthermore, the use of the work in the disputed videos concerns only the face of the “Marianne Asiatique” (Asian Marianne), excluding any representation of the flag bearing the motto “LIBERTE-EGALITE-HUMANITE” (LIBERTY-EQUALITY-HUMANITY) and the message “NOUS VOULONS LA JUSTICE” (WE WANT JUSTICE). According to the Court, “it cannot be considered that this use, purely visual or aesthetic, without ideological content, would be justified by the critical, polemical, educational or informative nature of the videos concerned, consisting rather in a borrowing, without obvious necessity, for the purposes of illustrating the political discourse of LFI or Jean-Luc MELENCHON“.

As a result, the Court of Appeal found that Mr. MELENCHON and LFI had indeed infringed the Combo’s economic rights. It also found several infringements of the artist’s moral rights:

• Infringement of the authorship: the Court held that the fact that the name of the author “COMBO” had already been deleted and replaced by that of the artist STYX was insufficient to justify the absence of any reference to the artist COMBO at the time of the broadcast of incriminated videos. According to the Court, Mr. MELENCHON and LFI “should have sought the author of the work in order to obtain his authorization. However, it has not been demonstrated or claimed that the slightest research was carried out“.

• Infringement of the physical integrity of the work: The Court found that the unauthorized addition of the LFI sign and its unauthorized partial integration into an audiovisual medium with a sound message and subtitling “characterize an illegitimate appropriation” by LFI and Mr. MELENCHON. The Court also found that the integrity of the work had been infringed by “the addition of branches and a bird’s flight as a watermark, this addition not having been made directly on the work created by COMBO in the public space, as is sometimes the case with ‘street art’ works that undergo  modifications in situ  necessarily consented to by the author, given the inherently evolving nature of such works“.

• Infringement of the spiritual integrity of the work: the Court considered that “even if the use (…) is devoid of any excess or controversy and is in line with republican and citizen values also claimed by COMBO (…), [the work] was used, without his consent, in support of the action and interests of a political party and personality, which was likely to lead to the belief that the author was lending his support or assistance“.

The Court therefore ordered Mr MELENCHON and LFI to pay COMBO the sums of:

• €5,000 in compensation for his economic loss;
• € 15,000 in compensation for his moral loss;
• € 15,000 under Article 700 of the French Code of Civil Procedure.

CJEU, 5th Chamber, 27 Apr. 2023, C-104/22: the Court of Justice of the European Union (CJEU) ruled that the proprietor of a European Union trademark may initiate an infringement action before the court of the Member State in which the infringement took place if the defendant used paid referencing to target the public in that State.

In the present case, a Finnish company initiate an infringement action before the Finnish court against two German companies belonging to the group BERKY, based on its EU trademark “WATERMASTER”.

The Finnish company accused them of having committed acts of infringement on Finnish territory:

• for the first company, by using its trademark to perform a paid referencing on www.google.fi (with the “.fi” extension) and thus display an advertisement for its own products.
• for the second company, by using a meta-tag[1] on the website www.Flickr.com featuring its trademark in order to benefit from natural referencing of images for its own products on www.google.fi.

The two defendants claimed the lack of jurisdiction of the Finnish court on the grounds that the acts had not been committed in Finland because neither the commercial promotion activities nor the product sales activities were aimed at Finnish consumers and that the mere accessibility of the allegedly infringing content did not make it possible to establish that those acts were aimed at the Finnish public.

Interrogated by the Finnish court, the CJEU first specified that the jurisdiction rules that applied were those of Regulation No 2017/1001 on the EU trademark, to the exclusion of Regulation No 1215/2012 on jurisdiction.

The CJEU then recalled the principle that an infringement action must be brought before the courts where the defendant is located, in which case it covers acts committed in the whole territory of the European Union.

The Court then set out the possibility for the trademark owner to bring alternatively an action before the courts of the Member State “where the act of infringement was committed or threatens to be committed“, in which case compensation can only be obtained for acts committed exclusively in the territory of the State concerned.

In view of the claimant’s choice to bring proceedings before the court in which territory the infringement took place, the Court stated that it must be examined whether there is “a sufficient connecting factor with the Member State in which the court seized of the infringement action is situated“, which requires “active conduct on the part of the person causing the infringement“.

In the absence of accurate information on the geographic delivery areas of the goods concerned, which is a “particularly important” evidence, the connecting factor must be established on the basis of other factors, such as the currency used or the language spoken in the country where the seller is located, the telephone numbers with the international prefix, the domain name used (including the extension), the expenditure on a referencing service or the address of the customers, being emphasized that “the mere fact that a website is accessible from the territory covered by the trademark is not a sufficient basis”.

More specifically regarding the two situations at stake, the Court concluded that:

• the first company had engaged an active conduct as it “pays the operator of a search engine website with a national top-level domain of a Member State other than that in which it is established, in order to display, for the public of that Member State, a link to that undertaking’s website, thereby enabling a specifically targeted public to access its product offering“. Paid referencing therefore constitutes a sufficient connecting factor.
• the second company had not engaged in active conduct, since ” the meta tag is intended only to enable search engines better to identify the images contained on that website” and “a website with a generic top-level domain is not intended for the public of any specific Member State“.

Accordingly, the CJEU found that the Finnish courts had jurisdiction over the action brought against the first company, but dismissed the action against the second company in the absence of evidence showing that such natural referencing was targeting a public established in Finland.

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[1] A meta tag is an element of the website’s source code. It is not visible to website’s visitors but is used by search engines for referencing purposes.

Paris Court of Appeal, June 23, 2023, No. RG 21/19404: Louis Vuitton’s marketing of the BLOSSOM jewelry line, featuring Van Cleef & Arpels’ emblematic four-lobed clover motif, does not constitute parasitic competition.

In 2015, Van Cleef sued took legal actions against Louis Vuitton for parasitism on the grounds that its BLOSSOM jewelry line, marketed :

• (i) takes the four-leaf clover motif from its ALHAMBRA collection;
• (ii) is the meticulous capture of his own ALHAMBRA collection, which includes a coherent set of 31 four-lobed jewels;
• (iii) uses the same communication axes; and
• (iv) has adopted the same pricing policy.

The Paris Commercial Court first recognized Louis Vuitton’s parasitic acts and ordered it to pay 214,400 euros in damages, prohibiting it from continuing to market its jewelry.

Following an appeal by Louis Vuitton, the Court overturned this ruling, considering that while the clover “is an emblematic and well-known product of the Van Cleef & Arpels brand; and therefore [has] an individualized economic value like the collection in which it is used“, Louis Vuitton had not positioned itself in the wake of Van Cleef.

More specifically, the Court of Appeal sought to respond to the various arguments put forward by Van Cleef.

• (i) With regard to the ALHAMBRA motif, the Court first noted that, despite the fact that this design is a repetition of a four-leaf clover and is identical in size to the plaintiff’s, there are numerous structural differences in the composition of the two jewelry collections.

In particular, the four-lobed shape of the BLOSSOM range is not routed, nor does it feature pearl settings or a double-sided character. The semi-precious stone is not smooth and has an additional element in its center.

The Court also considered that the four-lobed shape is “a well-known and customary element in the field of applied arts, particularly jewelry” and that “the use of colored precious or semi-precious stones set in precious metal appears to be part of fashion trends.

The Court added that Louis Vuitton found inspiration in its own four-leaf clover motif, found on its monogrammed canvas made up of the letters LV and four-petal flowers, and adapted it to market trends.

• (ii) The Court also rejected Van Cleef’s argument that Louis Vuitton had taken over the entire ALHAMBRA range, in addition to the motif itself, by creating a complete collection of 31 four-leaf jewels.

On the one hand, the Court noted that it is customary in the jewelry sector to offer a whole range of jewels (bracelets, earrings, necklaces, etc.).

On the other hand, Louis Vuitton’s BLOSSOM range also includes other floral motifs, in particular its emblematic pointed flower motif, which shows that it is not seeking to create a collection or sub-collection that would imitate, without any effort on its part, Van Cleef’s ALHAMBRA range.

What’s more, the colors of the semi-precious stones and the gold of the precious metal differ between the two ranges and are, once again, hues frequently used for the same collection in the jewelry sector.

• (iii) The judges then ruled that Van Cleef could not rely on an undue use of the theme of nature to communicate on the BLOSSOM collection, since it was processed differently in terms of colors, the same chromatic being used by Louis Vuitton to communicate on its other products, such as shoes.

The Court concluded that “no break in the communication strategy of the Vuitton companies with the aim of following in their wake” had been demonstrated.

• (iv) Lastly, the Court also concluded that the alleged adoption of a pricing policy had not been demonstrated for the BLOSSOM collection, since “price variances appear to be heterogeneous, and can be significantly lower, identical or higher depending on the product“.

The Court therefore ruled out any wrongful conduct on the part of Louis Vuitton on the basis of the evidence produced, “even taken in combination“, stressing that the risk of association “deduced from comments made by a few Internet users on social networks” was insufficient.

In four long-awaited decisions dated July 21, 2023[1], the French Supreme Court (Cour de cassation) gave a unified response to two questions that had been the subject of debate between its chambers, concerning the qualification of the two-year time limit under Article 1648 of the French Civil Code for bringing an action under warranty for hidden defects, and the time limit within which such an action may be brought.

As a reminder, the first paragraph of Article 1648 of the French Civil Code states that:

“The action resulting from hidden defects shall be brought by the purchaser within two years of discovery of the defect (…)“.

As you will have noticed, this paragraph does not qualify the legal nature of the two-year period allowed to the purchaser to bring an action in warranty for hidden defects.

As a consequence, the silence of this paragraph led the first civil chamber and the commercial chamber of the French Supreme Court to qualify it as a prescription period that could be suspended, while the third civil chamber of the French Supreme Court considered that it was a foreclosure period that could not be suspended.

The position of the French Supreme Court was therefore eagerly awaited, and it is through four cases that it came to unify the existing case-law solutions.

• Qualification of the two-year time limit (case n°21-15.809)

In the first case submitted to the French Supreme Court, a producer of long-life food products for professional use, sourcing packaging pouches from a supplier, applied to the competent court for an expert’s legal report due to abnormal swelling leading to the deterioration of certain pouches. Once the expert legal report had been issued, the producer sued his supplier for damages. The supplier then argued that the two-year limitation period under Article 1648 of the French Civil Code could not be suspended by a legal expert report claim.

It was in this context that the French Supreme Court specified that Article 1648 of the French Civil Code has not specifically qualified the time limit granted by the first paragraph to the buyer to act in warranty against the seller and then noted that this time limit had sometimes been qualified as a foreclosure time limit and sometimes as a prescription time limit, so that the requirements of legal certainty make it necessary to adopt a single solution.

The search for this unified solution led the French Supreme Court to look for the legislator’s will.

On the one hand, the French Supreme Court points out that the reports accompanying ordinance n°2005-136 of February 17, 2005[2] , which replaced the short limitation period of Article 1648 of the French Civil Code with a two-year period running from the discovery of the defect, as well as its ratification bill, mention the existence of a limitation period.

On the other hand, it recalls that the goal pursued by the legislator is to enable any buyer, whether a consumer or not, to benefit from reparation in kind, a price reduction or its restitution when the thing is affected by a hidden defect, the buyer must be able to take action against the seller within a period which may be interrupted or suspended.  

Consequently, the French Supreme Court deduced from the above that the two-year limitation period from Article 1648 of the French Civil Code is a limitation period that can be suspended when the judge grants a request for an investigative measure such as a legal expert report.

• Twenty-year time limit (cases n°21-17.789, n°21-19.936, and n°20-10.763)

The three other cases submitted to the French Supreme Court were about the relationship between the two-year time limit for bringing an action under warranty for hidden defects and the five-year limitation period under Article L.110-4 of the French Commercial Code.  

In these three cases, the defendants argued that the plaintiffs’ action was time-barred, in that the two-year limitation period of Article 1648 of the French Civil Code was, in their view, locked into the five-year limitation period of Article L.110-4 of the French Commercial Code. The defendants therefore argued that the double time limit for bringing an action had been established by case-law up to that point, since, as a reminder:

• In civil sales, prior to the entry into force of the law of June 17, 2008 on prescription in civil matters[3] , case-law held that the two-year time limit for an action under warranty for hidden defects was enclosed within the ordinary law time limit of Article 2262 of the French Civil Code, which provides for an extinctive prescription period of thirty years.

With effect from the entry into force of the aforementioned law, the new Article 2224 of the French Civil Code has reduced the duration of the ordinary law prescription period to five years, giving it a sliding starting point: the day when the holder of a right knew or should have known the facts enabling him to exercise it.

• In the case of commercial or mixed sales, Article L.110-4 of the French Commercial Code initially provided for a ten-year limitation period, then the law of June 17, 2008 reduced this period to five years to bring it into line with Article 2224 of the French Civil Code, without however specifying the starting point. The case-law has therefore clarified this starting point, considering that it can only result from the general law of Article 2224 of the French Civil Code, and start from the day the right arises.  

The French Supreme Court therefore ruled that the sliding starting point of the extinctive prescription period under articles 2224 of the French Civil Code and L.110-4 of the French Commercial Code should be merged with the starting point of the two-year period for bringing an action under the warranty for hidden defects, i.e. the discovery of the defect, and concluded that the extinctive prescription periods under Articles 2224 of the French Civil Code and L.110-4, I, of the French Commercial Code shall no longer be analyzed as special time limits for bringing an action under the warranty for hidden defects.

In view of the above,  the French Supreme Court has specified that the action for warranty of hidden defects is subject to a time limit of twenty years from the date of sale.

Finally, the French Supreme Court has ruled on the calculation of the twenty-year time limit when the sale was concluded before June 19, 2008, the date on which the law of June 17, 2008 came into force, and has specified that, in such a situation, the transitional provisions set out in Article 26 of the aforementioned law, reproduced in Article 2222 of the French Civil Code, will apply. In other words:

• In civil sales, the twenty-year period applies from the date of entry into force of the law of June 17, 2008, i.e. June 19, 2008, without its total duration exceeding the thirty-year period provided for by the former Article 2262 of the French Civil Code and which would have begun to run prior to the entry into force of this law;

• In the case of commercial or mixed sales, the twenty-year period applies if the former ten-year limitation period under Article L.110-4 of the French Commercial Code had not expired by June 19, 2008.

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[1]      n°21-15.809, n°21-17.789, n°21-19.936, and n°20-10.763.

[2]      Ordinance n°2005-136 of February 17, 2005 relating to the guarantee of conformity of the goods to the contract owed by the seller to the consumer.

[3]      Law n°2008-561 of June 17, 2008 reforming the statute of limitation in civil matters.

ECJ, September 14, 2023, Case C-27/22

In a ruling dated September 14, 2023, the European Court of Justice (ECJ) ruled that a financial fine imposed on a company by the competent national consumer protection authority for unfair commercial practices constitutes a criminal sanction when it serves a punitive purpose and carries a high degree of severity. In such a situation, the ne bis in idem principle applies.

This case concerns the application of the ne bis in idem principle, which means that an individual cannot be punished twice for the same facts with criminal sanctions.  This principle is protected at the European level by article 50 of the Charter of Fundamental Rights of the European Union (“the Charter”), which states: “No-one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law“.

In this case, the authorities of two Member States (Italy and Germany) initiated sanction proceedings against the same group of automobile companies based in Germany.

Firstly, in 2016, the Italian Competition Authority (AGCM) imposed a fine of five million euros on these companies for committing unfair commercial practices, notably for installing software to distort the measurement of nitrogen oxide emissions levels in vehicles during emissions tests. This ruling was taken under national provisions implementing Directive 2005/29/EC of the European Parliament and of the Council of May 11, 2005 concerning unfair business-to-consumer commercial practices in the internal market. The companies appealed against this ruling.

Secondly, while the Italian was still pending in 2018, the Brauschweig public prosecutor’s office in Germany imposed a fine of one billion euros on one of the companies, also sanctioned in Italy, for manipulating the exhaust gases from certain diesel engines belonging to the same group of companies. Investigations had revealed that emission standards had been circumvented. Part of the fine (five million euros) was to penalize the specific behavior, while the remainder aimed to deprive the company of the economic benefit derived from the installation of the aforementioned software. This German ruling became final on June 13, 2018.

Finally, as part of the proceedings in Italy, the companies invoked the subsequent illegality of the Italian ruling for breach of the ne bis in idem principle.

Ultimately, the Italian Council of State (the referring court) will ask three questions to the ECJ:

“1) Can the penalties imposed for unfair commercial practices under national legislations implementing Directive [2005/29] be classified as criminal administrative penalties?”

“2) Must Article 50 of the Charter be interpreted as precluding a national provision that makes it possible to uphold in court proceedings and make final a criminal financial administrative penalty against a legal person in respect of unlawful conduct in the form of unfair commercial practices, for which a final criminal conviction has been handed down against that person in the meantime in a different Member State, where the latter criminal conviction became final before the ruling in the judicial proceedings brought against the former criminal financial administrative penalty became res judicata“

“3) Can the provisions laid down in Directive 2005/29, with particular reference to Article 3 (4) and Article 13 (2) of that directive, justify a derogation from the principle ne bis in idem established by Article 50 of the Charter and by Article 54” of the Convention implementing the Schengen Agreement of June 14, 1985, between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders ?  [CISA]”

1. On the qualification of an administrative fine imposed for unfair commercial practices as a criminal sanction

Firstly, the ECJ points out that three criteria are relevant in assessing the criminal nature of the proceedings and penalties in question: the qualification of the offence under national law, the nature of the offence and the severity of the penalty.

Applying the aforementioned criteria, the ECJ concludes that a pecuniary fine imposed on a company by the competent national consumer protection authority for commercial practices constitutes a criminal penalty when it pursues “a punitive purpose and has a high degree of severity“, even if the penalty is classified as an administrative penalty by national regulations.

2. On bis and idem

To answer the second question, the ECJ outlines the two criteria for applying the ne bis in idem principle.

First of all, there must be a prior final ruling, meaning a decision that has definitively ruled on the facts subject to a second procedure, and that this ruling was made after an assessment of the merits of the case. This is the “bis” condition. The ECJ emphasizes that it does not necessarily follow that the subsequent rulings precluded by that principle can only be those which were adopted after that prior final ruling. Indeed, the ne bis in idem principle applies once a ruling of a criminal nature has become final. In this case, the ECJ states that the “bis” condition is satisfied (subject to verification by the referring court) since the German ruling became final during the appeal procedure of the contested Italian ruling.

Next, the ECJ assesses at the “idem” condition. The ECJ points out that Article 50 of the Charter prohibits the prosecution or punishment of the same person more than once for the same offence. It stresses that the criterion for assessing the existence of the same offence is the identity of the material facts ” understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned ”. Finally, it is essential to highlight that the ECJ states that for the ne bis in idem principle to apply, the facts must be “identical” and not merely “analogous” or “similar”, as explained by the referring court. This assessment falls within the competence of the national judge.

3. Restriction on the ne bis in idem principle

As a preliminary point, it should be noted that the ECJ dismissed the references to Article 54 of the CISA and Articles 3(4) and 13(2)(e) of Directive 2005/29 as irrelevant. Subsequently, the ECJ comments on the limitations placed on the ne bis in idem principle. In particular, Article 52 of the Charter provides that: “Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of other”.

Regarding the condition related to objectives of general interest, the ECJ states that duplication can be justified by pursuing distinct objectives through the imposed sanctions. Thus, it points out that the German ruling is based on ensuring that companies and their employees act in accordance with the law, and sanctions the duty of supervision in the course of business. The Italian ruling, on the other hand, is based on a breach of the Consumer Code (transposing Directive 2005/29), the purpose of which is to protect consumers and thus contribute to the proper functioning of the internal market. Thus, in this case, the ECJ considers that the two regulations in question pursue legitimate objectives that are distinct.

Next, the ECJ addresses the proportionality criterion, which is also laid down in Article 50 of the Charter. With regard to this criterion, the ECJ states that the duplication of proceedings and penalties provided for by national legislation does not exceed the limits of what is appropriate and necessary to achieve the legitimate objectives pursued. It states that the duplication of proceedings and penalties can be considered justified if three conditions are met. The cumulation must not represent “an excessive burden for the person concerned“, there must be “clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication” and, lastly, the proceedings in question must have been conducted “in a manner that is sufficiently coordinated and within a proximate timeframe“.

Regarding the first condition, the ECJ notes that the amount of the fine imposed by the Italian authority corresponds to 0.5% of the amount of the fine imposed in Germany, and that the company on which the German fine was imposed accepted this fine. The ECJ concludes that this calls into question the excessive nature of the accumulation.

Regarding the second condition, the ECJ notes that there is no evidence to suggest that the company in question could not have predicted that its conduct was liable to give rise to proceedings in at least two Member States.  Moreover, the clarity and precision of the texts in question do not appear to be called into question.

With regard to the third and final condition, concerning the coordination of proceedings, the ECJ points out that there appears to have been no coordination between the proceedings. Additionally, it is noted that the German prosecutor’s office took steps with Eurojust to prevent the duplication of criminal penalties. However, the Italian authorities did not abandon criminal proceedings, and the AGCM did not participate in this coordination attempt. While the ECJ recognizes that coordination, especially involving different Member States, can be challenging, it clearly emphasizes that this coordination requirement cannot be disregarded.

Two bills have been filed with the French National Assembly, the first on July 4^th, 2023 (n°1482) and the second on July 20^th, 2023 (n°1583), to introduce a right of withdrawal for contracts concluded by consumers at trade fairs.

As a reminder, the right of withdrawal is the right of a consumer to withdraw from a distance or off-premises purchase, except for certain goods or services expressly provided by the French Consumer Code, or for loan contracted to finance the purchase.

The right of withdrawal created by Directive no. 2011/83/EU of October 25^th, 2011, on consumer rights, was transposed into national law in 2014. The European directive granted a right of withdrawal to contracts concluded “in the simultaneous physical presence of the seller and the consumer, in a place which is not the business establishment of the seller“. French law has never recognized a right of withdrawal for contracts concluded at trade fairs or shows, taking an constant position both before (Cassation Court, July 10^th, 1995, no. 93-16.958) and after (Appeal Court, Aix-En-Provence, May 4^th, 2023, no. 21/02238) the transposition of the directive.

As presented in the proposed bills, the introduction of a right of withdrawal would provide greater consumer protection. On the one hand, an average of 1,130 trade fairs and exhibitions are held in France every year, generating more than 30.5 million euros[1] , and leading to the conclusion of numerous consumer contracts. On the other hand, the French National Institute of Consumption has reported that nearly 55% of professionals do not inform consumers of the absence of their right of withdrawal for contracts concluded at trade fairs, despite the legal obligation to do so[2] .  

The first bill extends the definition of off-premises contracts, listed in article L. 221-1 of the French Consumer Code, to contracts concluded between a professional seller and a consumer ” d) on the occasion of a fair or trade show, when this contract is concluded on a stand which is not the place where the professional permanently or habitually carries out his activity“. The notion of trade fair or exhibition is widely understood as “any commercial event“.

The second bill limits the right of withdrawal to transactions carried out during trade fairs and exhibitions if they exceed € 100. In this case, the usual fourteen-day period of withdrawal will apply.  

To this end, and as for other contracts benefiting from a right of withdrawal, the professional must inform the consumer of the existence and terms of the right of withdrawal, prior to the conclusion of the contract, in legible and understandable terms[3] . The penalty for failing to provide this information is that the consumer will benefit from a right of withdrawal for a further twelve months period following the expiration of the initial fourteen-day period (i.e., a total of one year and fourteen days).

The withdrawal period runs from the time that the consumer takes possession of the goods in the case of a contract for goods, or from the time the contract is concluded in the case of a contract of services.

However, for contracts under € 100, the right of withdrawal will not apply. In this case, as is already the case for contracts concluded at trade fairs and shows which do not benefit from the right of withdrawal, the professional will have to inform the consumer of this absence of withdrawal, in clear and legible terms, in a sufficiently visible space provided for such purpose in the sales contract offer.

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^[1] “Salons et Foires en France : un puissant outil de développement pour les entreprises”, Octobre 2013, Etude Médiamétrie.

^[2] Article L. 224-59 of the French Consumer Code

[3] Article L. 221-5 of the French Consumer Code

On July 10, 2023, the European Commission adopted a new adequacy decision concerning the transfer of personal data between the European Union and the United States[1].

As a reminder, this new adequacy decision follows the invalidation in 2020[2] by the Court of Justice of the European Union (“CJEU“) of the previous 2016/1250 adequacy decision (“Privacy Shield“) due to concerns about surveillance by US intelligence services. The CJEU, after analyzing U.S. legislation on access to the data of Internet service providers and telecommunications companies by U.S. intelligence services (Section 702 FISA and Executive Order 12 333), concluded that the privacy infringements on individuals whose data is processed by U.S. companies and operators subject to this legislation were disproportionate to the requirements of the Charter of Fundamental Rights. In particular, the Court ruled that the collection of data by the intelligence services was not proportionate, and that available remedies, including judicial remedies, for individuals regarding the processing of their data were insufficient.

The European Commission has since considered that the changes made by the United States to their national legislation now ensure an adequate level of protection for personal data transferred from the European Union to US entities adhering to the EU-US Data Protection Framework (“DPF”).

In particular, the European Commission reports that the U.S. government has established a new two-tier recourse mechanism, with independent authorities, to handle and resolve complaints from individuals whose data have been transferred from the European Union to companies in the U.S. regarding the collection and use of their data by U.S. intelligence agencies.

This two-tier recourse mechanism is structured as follows:

i. Complaints are initially examined by the “Civil Liberties Protection Officer”, whoserole is to ensure that US intelligence agencies respect privacy and fundamental rights.

ii. Data subjects can then appeal the decision of the “Civil Liberties Protection Officer” to a new authority called the “Data Protection Review Court”. This impartial, independent authority is composed of members external to the US government.

Data subjects will also benefit from several legal remedies in the event of incorrect processing of their data by US companies. These include independent dispute resolution mechanisms and a special arbitration panel.

Following the adoption of this new adequacy decision, transfers of personal data from the European Union to US organization adhering to the DPF, which are publicly accessible on the DPF website[3] , can once again take place freely without the need for appropriate safeguards such as standard contractual clauses (“SCC”) supplemented by measures recommended by the European Data Protection Board (“EDPB”). [4]

The European Commission will conduct periodic reviews in collaboration with European data protection authorities and US authorities to ensure that the DPF is working properly. The first review will take place one year after the entry into force of the adequacy decision.

It is worth noting the initial opposition from French Member of Parliament Philippe Latombe who, as a citizen, filed a complaint with the ECJ against the DPF on September 7, 2023. According to the MP, the DPF does not comply with the General Data Protection Regulation (“GDPR”) and the Charter of Fundamental Rights of the European Union. He also points out that it has only been published in English, which would contravene EU rules that require regulations and other texts of general application to be drafted in the official languages[5] . The complaint has since been dismissed on October 12, 2023[6] .

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[1]https://ec.europa.eu/commission/presscorner/detail/fr/ip_23_3721

[2] ECJ, 16 July 2020, C-311/18, Schrems II: https://curia.europa.eu/juris/document/document.jsf;jsessionid=99B212F04D03066ED3C98B5A71ECF050?text=&docid=228677&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=589712

[3] DPF website: https://www.dataprivacyframework.gov/s/participant-search

[4] Recommendations n°01/2020: https://edpb.europa.eu/system/files/2022-04/edpb_recommendations_202001vo.2.0_supplementarymeasurestransferstools_fr.pdf

[5] https://www.usine-digitale.fr/article/le-depute-philippe-latombe-depose-un-recours-contre-le-data-privacy-framework-qui-lie-l-ue-et-les-etats-unis.N2168837

[6] https://curia.europa.eu/juris/document/document.jsf?text=&docid=278542&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=225583

Rennes Court of Appeal, June 20, 2023, RG 21/04515

In a ruling handed down on June 20, 2023, the Court of Appeal of Rennes acknowledges that the granting of notice to a commercial agent does not exclude, as a matter of principle, the existence of gross misconduct attributable to the agent.

In this case, a principal notified its commercial agent of the termination of his contract, accusing him of several gross misconduct. However, a notice period of 3 months is granted to the commercial agent. Following this notification, the commercial agent, who carries out its profession within the company LVD as director, asked for the payment of a compensatory termination indemnity by the principal company. The latter refused to pay. As a result, LVD brought an action against the principal before the Commercial Court of Nantes, seeking payment of the termination indemnity, as well as compensation for the 16 missing days of notice.

In a ruling dated June 28, 2021, the Commercial Court dismissed LVD’s claims for termination and notice payments. As a result, the company LVD appealed the decision.

LVD’s claim relied on article L. 134-12 of the French Commercial Code, which stipulates that “in the event of termination of his relationship with the principal, the commercial agent is entitled to compensation for the loss suffered“. The company also invoked article L. 134-11 of the French Commercial Code regarding the calculation of the notice period.  The principal opposed these claims by invoking the gross misconduct committed by the commercial agent. He relied on article L. 134-13 1°, which stipulates that the indemnity provided for in article L. 134-12 is not due when “the termination of the contract is caused by the gross misconduct of the commercial agent“.

The question before the Court of Appeal of Rennes was whether the granting of a notice period by the principal automatically excludes termination of the commercial agent’s contract for gross misconduct. Then, if gross misconduct is compatible with the granting of a notice period, the question arises as to whether this notice period must be set in accordance with article L. 134-11 of the French Commercial Code.

On the first question, the Court of Appeal gives a negative answer. Firstly, like the lower court judges, it recognized the existence of gross misconduct on the part of the commercial agent. In this case, this gross misconduct was characterized by the agent’s lack of interest in his mission, his attitude, his vulgar and aggressive comments towards the principal’s employees, and his constant criticism of the principal’s commercial policy.

Furthermore, the Court states that “the granting of a notice period does not exclude, in principle, the existence of a serious fault attributable to the commercial agent”.

The Court of Appeal adds that “acceptance of a period of notice is only likely to remove the seriousness of the fault”. The words “only likely” therefore imply that it isnecessary to consider the alleged misconduct to assess its compatibility with a notice period. In this case, the Court of Appeal held that “given the nature of the established misconduct, its repeated character, and the clear attacks on the company’s personnel”, the granting of “a certain notice period for termination is not capable of removing the gravity from the gross misconduct”.

Finally, the Court of Appeal ruled that LVD should not be awarded the termination indemnity it had requested.

On the second question, the Court of Appeal once again replied in the negative. It held that the fact that the principal company, “in an effort to manage the situation as best as possible (…), by granting a certain notice period, was not obligated to comply with all the legal provisions relating to notice periods, especially when it is discretionary in the case of gross misconduct”. Therefore, the principal was not bound by the provisions of article L. 134-11 determining the notice period. Thus, the Court of Appeal dismisses the plaintiff’s claim for compensation related to the 16 missing days of notice.

This decision strengthens the principal’s freedom in determining the terms and conditions to terminate the commercial agent’s contract in the event of gross misconduct.    

On May 30, 2023, during a trialogue between the Commission, the Parliament and the Council, the parties agreed on a modified version of the Regulation on geographical indication protection for craft and industrial products (“GIPCIP”).

This proposal was drafted after several years of discussions between representatives of industrial and craft product producers, European regions, and Members of the European Parliament.

Until now, at the European level, only agricultural products, foodstuffs, wines, and spirits could benefit from protection through geographical indications (“GI”).

In France, industrial and craft products have already been protected since the “Hamon Law” of March 17, 2014[1], and several products such as “Charentaise” from Charente-Périgord, Limoges porcelain, and more recently the Laguiole knife have been protected on French territory.

The European Commission’s proposal aims to provide a similar level of protection at the European Union level, with the objective of promoting local know-how and fighting against illicit uses[2].

On 12 September 2023, the European Parliament voted in favour of the proposed Regulation with 616 votes in favour, 9 against and 6 abstentions.

Our FOCUS IP outlines the key points of the latest version of the Regulation proposal and provides insight on its content.

1. The scope of GIPCIP

•  A broad definition adopted for craft and industrial products

The Regulation defines craft products as products “produced either totally by hand or with the aid of manual or digital tools or by mechanical means, whenever the manual contribution is an important component of the finished product”.

As a result, if a “direct” manual contribution is required, it is only “one” of the components of a craft product, in order to allow a broader protection of products where manual intervention is just one aspect of its manufacturing process.

As for industrial products, they are products  “produced in a standardised way, including a serial production and through the use of machines”.

• The importance of the link between the sign and the origin

To benefit from protection, the European text sets out three cumulative conditions:

– the product must originate from a specific place;

– the quality of the product, its reputation, or another of its properties must be attributed to its geographical origin;

– at least one of the production stages of the product must take place within the delimited geographical area.

This definition of GI aligns with the provisions at the European level.

The first two conditions are identical to those provided for in the French regime. However, the third condition has been extensively debated as the criteria of only one production stage within the geographical area could potentially grant protection to products that are predominantly manufactured outside of that zone. This may reduce the strength of the origin guarantee provided by the GIPCIP.

To limit this risk, several associations proposed that the “main” production stages should occur within the protected zone, which was adopted by the Commission Legal Affairs but was ultimately excluded from the final version of the text.

Producers located in non-European Union countries should also be able to benefit from an GIPCIP as long as they meet the criteria set forth by the Regulation and the geographical indication is protected in their country of origin.

2. The registration procedure

• The status of applicant for GIPCIP

The applicant must be a group of producers of a craft or industrial product. This group should be defined as “any association, irrespective of its legal form, mainly composed of producers working with the same product”.

The Regulation proposal distinguishes itself from the French text by adopting a broad definition of the concept of the group, which, while it must be “mainly” composed of producers, can also include other operators in the sector (processors, product packagers, etc.).

Alternatively, a single producer may apply if:

(i) he is the only producer willing to submit the application; and

(ii) the concerned geographical area is delimited by a specific part of the territory without reference to property boundaries and has characteristics that differ significantly from those of neighbouring areas, or the product’s characteristics differ from those of manufactured products in neighbouring areas.

In exceptional cases, an authority designated by a Member State can also apply for GIPCIP registration.

Lastly, the Regulation proposal introduces the use of a document referred to as the “single” document with the aim of simplifying the application process for GIPCIP applicants.

 The single document, which format and presentation will be defined later by the Commission, would include the following elements:

(i) the key elements of the specifications, including the product’s name, a description of the product, and the delimited geographical area;

(ii) a description of the link between the product and its geographical origin.

• Requirements for preparation and filing of the specification

In the same way as for the registration of a GI for agricultural products, the application for GIPCIP must be submitted based on a product specification that includes several indications, and notably:

– the sign to be protected and a description of the product;

– the definition and delimitation of the geographical area;

– evidence demonstrating that the product originates from the specified geographical area;

– a description of the production methods;

– information about the packaging;

– elements that establish a clear and direct link between the specific characteristics of the product and the geographical area;

– labelling rules.

In France, the National Institute of Industrial Property, which is the authority in charge of applications for GIPCIP, is particularly vigilant in ensuring that the link between the geographical area and the product’s characteristic is well-defined. The French Supreme Court thus rejected the application for GIPCIP submitted by Marseille’s group of soap producers because the product specification target France entire territory without delimiting a specific geographical area associated with the characteristics of the product[3].

• The two-level registration system

The registration of an GIPCIP will take place in two successive stages[4] :

– The first stage is at the Member State level: The application for registration is submitted electronically before the competent national authority, which will verify that the product meets the requirements for protection and that all necessary information has been correctly provided (product specification, single document, etc.).

Each Member State will need to appoint an authority to examine GIPCIP applications unless it opts out and chooses for a direct registration before the European Union Intellectual Property Office (“EUIPO”).

In France, the INPI has been designated to grant GIPCIP at the national level[5], so it could also be in charge at the EU level.

– The second stage is before the EUIPO: After the application has been filed with the national authority, the EUIPO will process the application for EU-wide approval, render a decision on registration, and handle the publication of the GIPCIP in the Union register for geographical indications for craft and industrial products.

If a Member State may establish registration fees, no fees will be charged by the EUIPO for the examination of applications.

Moreover, to enhance the effectiveness of the system, a maximum 6-month-period is allowed for the EUIPO to complete the examination.

• Litigation related to registration

 Two opposition procedures are provided:

– During the first national step, for a period of at least 2 months from the date of publication, any person with a legitimate interest and residing  within the territory of the Member State may submit an opposition.

 The competent authority will establish the detailed modalities of the opposition procedure.

– During the second step before the EUIPO, for a period of 3 month from the date of publication in the European register. The opponent may be:

* the competent authority of a Member State or a third country;

* a legal or natural person with a legitimate interest, regardless of their place of residence, excluding national opponents.

In both opposition procedures, the opponent may invoke the existence of prior identical geographical indications, the generic nature of the applied-for GI, or the infringement on a prior trademark.

Appeals against decisions rendered by the national authority and the EUIPO must also be set up.

3. The protection granted by registration

• Authorization of the operator and right to use

 Once the GIPCIP is registered, any producer marketing a product that complies with the specifications benefits from a right of use, allowing them to use the protected designation on the label and for the promotion of their products.

In practice, the operator should generally apply for authorization from the group of producers, which will accept or refuse the authorization based, in particular, on the compliance of the products manufactured with the specifications.

• Rights granted by GIPCIP

In order to protect the GIPCIP and enable producers to oppose abusive or misleading uses, the proposed Regulation grants them four levels of protection:

– Prohibition of direct or indirect commercial use of the protected designation for products that are not entitled to.

This protection applies to the products themselves, as well as their packaging and marketing materials.

This provision allows opposing the use of the designation by third parties for products which are identical or similar to the products registered under that GI or where use of the name exploits, weakens, dilutes, or is detrimental to the reputation of, the protected geographical indication.

– Prohibition of usurping, imitating, or evoking the designation, including using expressions such as “style”, “type”, “imitation”…

It has been clarified that this requires a “sufficiently direct and clear link with the product covered by the registered geographical indication (…) in the mind of the average European consumer who is reasonably well-informed and reasonably observant and circumspect.”.

– Prohibition of any false or deceptive indication regarding the origin, source, nature, or essential qualities of the product.

– Prohibition of any other practice likely to mislead the consumer as to the true origin of the products.

The proposal thus incorporates the provisions of the Regulations on PDO/PGI for agricultural products, wines, and spirits while providing more accurate definitions.

This protection granted to GIPCIP applies to all products, regardless of their distribution channel (retail, internet, etc.) and also includes goods entering the customs territory of the EU without being released for free circulation.

• GIPCIP as an enforceable distinctive sign

The Regulation proposal provides that registered GIPCIP can be invoked to oppose the registration of a trademark.

They can also be invoked in the context of alternative dispute resolution procedures concerning domain names.

• Labelling rules

The Regulation proposal includes rules for the use of Union symbols and abbreviations on the labelling and advertising of the relevant product.

Specifically, the proposal provides that if the product originates from the EU and is marketed under a registered GIPCIP, the EU symbol may appear on the labelling and advertising:

GPI Logo

This logo can be accompanied by a representation of the relevant geographical area and/or references (text, graphic representation, or symbol) related to the Member State where the geographical area is located.

Furthermore, the proposal allows for the addition of the abbreviation “GPI” on the labelling of products benefiting from an GIPCIP.

• Verification and controls of GIPCIP

 The proposal provides that Member States must designate one or more competent authorities in charge of controls, which would consist of:

– Verification that a product designated by an GIPCIP has been manufactured in compliance with the corresponding specifications.

 This verification is carried out through a self-declaration that the producer must submit to the competent authorities in order to obtain a certificate of authorization for use, renewable every three years.

The competent authorities may also conduct inspections on the products themselves or by appointing a certification agency.

– Verification of the use of GIPCIP in the market. In case of GIPCIP infringement, the authorities will have the power to take administrative and judicial measures to prevent or stop the unlawful actions.

                                            * * *

The proposed Regulation must now be formally approved by Council.

It will then enter into force twenty days following its publication in the EU Official Journal. The regulation will apply two years after this date.

It will then be the responsibility of the Member States to transpose the new provisions into their national laws.

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[1] French Law No. 2014-344 of March 17, 2014, regarding consumers.

[2] In 2013, a European study identified 834 craft products potentially eligible for a GI.

[3] French Supreme Court, March 16, 2022, n°19-25.123.

[4] See GIPCIP’s registration procedure in the annex.

[5] For agricultural products or wines with PDO/PGI, the INAO (National Institute of Origin and Quality) is in charge of national examination.

The new Regulation establishing additional procedural rules relating to the application of Regulation (EU) 2016/679 proposed by the European Commission on July 4, 2023 (“Regulation”) aims to streamline cooperation between data protection authorities (“DPAs”) when enforcing the General Data Protection Regulation (“GDPR”) in cross-border cases^[1] .  

The Regulation lays down procedural rules for the handling of complaints and the conduct of investigations, in complaint-based and ex officio cases by supervisory authorities in the cross-border enforcement of the GDPR.

The Regulation will include concrete procedural rules, including the obligation for the lead data protection authority to send a “summary of key issues” to its counterparts. This summary must include the main points covered by the investigation, as well as its opinion on the case.

This Regulation will:

• Reduce disagreements and facilitate consensus between authorities from the earliest stages of the process;
• Clarify the information that individuals need to provide when filing a complaint, and ensure that they are properly involved in the process;
• Clarify the procedural rights of companies when a DPA investigates a possible breach of the GDPR;
• Resolve cases more quickly (swifter remedies for individuals, legal security for businesses).

The Regulation provides rules to harmonize procedural rules in cross-border cases in the following areas:

• Rights of complainants:

• Harmonization of requirements for a cross-border complaint to be admissible, removing the obstacles arising from the different rules applied by DPAs;
• Common rights given to complainants ensuring them that they will be heard in the event that their complaints are rejected in whole or in part;
• If the complaint is investigated, the proposal governs the way in which they are involved in the investigation.

• Rights of parties under investigation (data controllers and data processors):
  • Right to be heard at key stages of the procedure;
  • Clarification of the administrative file and the parties’ right of access to it.

• Streamlining cooperation and dispute resolution:
  • DPAs will be able to give their opinion at an early stage of investigations and make use of all the cooperation tools provided for by the GDPR (e.g., joint investigations, mutual assistance);
  • The Regulation will increase influence of DPAs on cross-border issues (early consensus-building during the investigation and reduction of later disagreements);
  • The Regulation details rules to facilitate swift completion of the GDPR dispute resolution mechanism and provide common deadlines for cross-border cooperation and dispute resolution.

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[1] The notion of “cross-border processing” is defined in Article 4 (23°) of the GDPR and covers:

a. processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State;

b. processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State. 

In a judgment dated April 20, 2023, aff. C-25/21, the Court of Justice of the European Union (hereinafter “CJEU”) ruled on the binding effect of final decisions by national competition authorities, when implementing consecutive private actions (“follow-on actions”), when these do not fall within the scope of the “Damages Directive”. To ensure a high evidential value, the CJEU requires that “the nature of the alleged infringement which is the subject of those actions, as well as its material, personal, temporal and territorial scope, coincide with those of the infringement found in that decision”.

In this case, the oil company Repsol has been condemned twice by the Spanish competition authorities, based on Article 101 of the TFEU and Spanish national law. The first decision was rendered in 2001 by the Spanish Competition Court and confirmed in 2007 by a ruling of the Spanish Supreme Court. The second decision was rendered in 2009 and confirmed in 2015. In both rulings, the company was accused of indirectly fixing the retail price of fuel through its contractual relations with certain Spanish service stations.

As a result, the owners of a service station, who had signed exclusive fuel supply contracts from 1987 to 2009, brought an action for annulment of the contracts concluded with Repsol, and a claim for damages to compensate for the harm allegedly caused. In order to demonstrate the existence of the infringement in question, the plaintiffs rely on the 2001 and 2009 decisions.

The referring court hearing the case states that, under Article 2 of Regulation 1/2003, the burden of proving an infringement of the TFEU lies with the party alleging it. It goes on to state that, according to national case law, no binding effect is conferred on a final decision of a national competition authority. Unless it can be shown that the infringement contested in that decision and the one which is the subject of the follow-on action are the same, and provided that the claimant has indeed been the victim of that infringement.

However, the referring court considers that “to deny any binding effect to the final decisions of the national competition authority would have the effect of maintaining in force contracts which infringe Article 101 of the TFEU.” It therefore decided to stay proceedings and refer two questions to the CJEU for a preliminary ruling.

The first question concerns the evidential value of decisions by the national competition authority, in the event that the contractual relationship at issue in the follow-on action falls within the same scope as the national authority’s decision. In such a case, is it possible to consider that proof of the anti-competitive practice has been established, with the burden of proof shifting to the defendant to prove otherwise.

Firstly, the CJEU looks at the temporal and material applicability of article 9 paragraph 1 of Directive 2014/104/EU entitled the “Damages Directive”. This article provides that “an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 of the TFEU or under national competition law”. 

Two points are addressed by the CJEU concerning the scope of application of the “Damages Directive”. Firstly, with regard to its material scope, the Directive applies to actions for damages only. Consequently, no action for nullity can be brought on this basis.  Secondly, regarding the temporal scope, the CJEU points out that it must be established whether the provision concerned is substantive or procedural (judgment of June 22, 2022, Volvo and DAF Trucks, C267/20‑, EU:C:2022:494, paragraph 38).  In the first case, the provision would apply to events occurring after December 27, 2016, the date on which the transposition period left to the Member States expires. In the second case, the provision would apply to proceedings initiated as from December 26, 2014 (judgment of June 3, 2021, Jumbocarry Trading, C39/20‑, EU:C:2021:435, point 28).

Unsurprisingly, the Court points out that Article 9(1) of the Directive relates to the existence of one of the constituent elements of civil liability and is therefore of a substantive nature. Consequently, Article 9(1) cannot be applied in the present case to actions for damages brought following decisions by national competition authorities.  These actions became final before the expiry of the maximum transposition period.

It is therefore necessary to look at the national regulations interpreted by the national courts, in the light of Article 2 of Regulation 1/2003. The CJEU goes on to stress the importance of the principle of effectiveness. According to this principle, national rules must not “make in practice impossible or excessively difficult to exercise rights conferred by EU law.”

In this case, the CJEU considers that the Spanish national rules, insofar as they lead to a total absence of probative effect of the final decisions of the competition authorities, render “the exercise of the right to compensation for infringements of Article 101 of the TFEU excessively difficult.” The Court explains that competition law cases require “a complex factual and economic analysis”.

Thus, the Court points out that in such cases, it is important to guarantee the full effectiveness of Articles 101 and 102 of the TFEU. It is therefore necessary to consider that the finding of an infringement of competition law by a decision of the national competition authority establishes the existence of that infringement, until proof to the contrary is adduced. To this end, it specifies that the nature of the infringement mentioned in the follow-on action, “as well as its material, personal, temporal and territorial scope,” must correspond to those of the infringement found in that decision.

With this decision, the Court of Justice has lightened the burden of proof for victims of pre-Directive events. In this case, it is sufficient for the plaintiffs to prove that the contracts concluded with Repsol are the same as those sanctioned by the competition authorities. It is then up to the defendant to prove the contrary.

The second question asks whether, if it is established that the contractual relationship between the service station and Repsol is affected by the decisions of the national competition authorities, the sanction is necessarily to declare the agreement null and void.

The Court of Justice replied in the affirmative but clarified its answer. It points out that the national court must draw all the consequences of Article 101(2) of the TFEU. Accordingly, it must declare all contractual stipulations incompatible with Article 101(1) of the TFEU null and void by operation of law. However, the Court specifies that the entire agreement will be declared null and void only if the elements in breach of the TFEU cannot be separated from the agreement.

In the end, this decision is unlikely to change the practice of French courts. Indeed, it is quite rare for national courts to go against decisions of competition authorities. This decision serves as a reminder of the importance of distinguishing between the substantive and procedural provisions of the Damages Directive, while easing the burden of proof for victims who do not benefit from the Directive.

In a ruling of June 8, 2023 (C570/21), the CJEU confirms that a person who has entered into a credit agreement for both professional and extra-professional purposes, jointly with their spouse can be considered a consumer within the meaning of Directive 93/13 when the professional purpose is so limited that it does not predominate in the agreement; this being determined by quantitative and qualitative criteria.

In the case at hand, a mixed credit agreement was concluded between a married couple and a bank, with the amount intended for the repayment of debts of the husband’s company on one hand, and for the repayment of household debts and the financing of renovations in the couple’s home on the other hand. The conclusion of this credit agreement was subject to the repayment of the professional debts. The applicants contested a clause in the credit agreement, concerning the valuation of the monthly repayments on the loan, arguing that it was an abusive clause under Directive 93/13 on unfair terms in contracts between professionals and consumers, as it had not been individually negotiated.

The referring court questions whether, in this context, the applicant could be considered as a “consumer” within the meaning of the directive, given the existence of a connection between the professional activity and the contract, albeit not a predominant one, and that, without a professional use of the credit, it would not have been possible to grant the credit for a non-professional purpose. In other words, what are the relevant criteria for determining whether a person qualifies as a consumer?

On the first preliminary question, the CJEU concludes that Article 2(b) of Directive 93/13 defining “consumer” must be interpreted as including “a person engaged in business activity who entered into an agreement concerning a loan indexed to a foreign currency together with a joint-borrower who is not engaged in business activity, which loan is intended to be used partly for the business purposes of one of the borrowers and partly for purposes unconnected with his or her business activity, and not only where business use is so marginal as to be negligible in the overall context of the agreement.”

The Court recalls the principle that when interpreting a provision of EU law, one must consider its wording, as well as its context and the objectives pursued by the relevant regulation. Thus, by referring to the wording of Article 2(b) of Directive 93/13, the Court first establishes that the status of consumer must be determined in the light of a functional criterion, i.e., by assessing whether the contractual relationship falls within the scope of activities outside the exercise of a profession. Secondly, the Court assesses the context and objectives of the provision: as it applies to any contract between a professional and a consumer that has not been individually negotiated, the CJEU concludes that it is in fact the quality of the contracting parties that must be assessed, and not whether they are acting in the course of their professional activity or not. This is particularly relevant since the directive aims to redress the imbalance in which the consumer finds themselves, requiring a broad understanding of the concept., Additionally, for the sake of coherence in EU law, the Court considers the interpretation of the concept contained in other regulations, noting that the definitions are “broadly equivalent”, and that their recitals can therefore help to clarify the legislator’s intention. In particular, recital 17 of Directive 2011/83, which states that “where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer. ” The Court adds that this analysis is even more relevant as it is corroborated by recital 18 of Directive 2013/11 and recital 13 of Regulation no. 524/2013 (even though these acts post-date the facts of the dispute). Finally, while the Gruber judgment, under the Brussels Convention, assesses the notion of consumer according to whether the professional use is marginal to the point of having a negligible role in the overall context of the transaction at issue, the court rejects this strict interpretation and refuses to apply it here. It therefore concludes that if the professional purpose is so limited that it does not predominate in the overall context of this contract, the applicant may be considered a consumer, despite the dual purpose of the credit agreement.

On the second question, the CJEU considers that in order to determine whether the professional purpose is so limited that it does not predominate in the contract, “the referring court is required to take into consideration all the relevant circumstances surrounding that contract, both quantitative and qualitative.” The Court recommends a global approach, factoring in all the elements of the case (terms of the contract, nature of the goods or services covered by the contract, purpose). It establishes several criteria, neither exhaustive nor exclusive: on the one hand, a quantitative criterion, the distribution of the borrowed capital between professional and non-professional activities, and on the other hand, non-quantitative criteria: the fact that only one of the borrowers is pursuing a professional purpose, or the fact that the lender has made the credit conditional on a partial allocation of the amount to the repayment of professional debts.

In addition, the applicant requested the effects of the present decision to be limited in time, but the CJEU refused, pointing out that this is only possible where two criteria are met – the good faith of the interested parties and the risk of serious disturbance – which were not present in the case in point.

Cour de Cassation, Ch. Com. May 17^th, 2023, n°21-24.809

Determining the notice period following the brutal termination of an established business relationship cannot take into account factors occurring after the date of notification of such termination.

In this case, the company TNT has entrusted the performance of transport and delivery services for international shipments to the company MATIM, a company specialised in the transport of goods in Morocco.

In 2009, TNT and MATIM signed an agreement for the aforementioned services, which provided a 45-day notice period in the event of termination.

In 2016, FEDEX acquired the shares of TNT, and the following year, launched a call for tender to select its next delivery service provider in Morocco.

The participation to this call for tender required candidates to sign a non-disclosure agreement. As it wished to apply, MATIM signed this agreement on October 2^nd, 2017, which contained, in view of its relationship with TNT, a clause under which MATIM accepted the consequences of an early termination of their contractual relationship, this agreement constituting the starting point for the notice period relating to such termination.

By letter dated January 15^th, 2018, TNT informed MATIM of the rejection of its application and indicated that this letter triggered the starting point of the 45-day notice period.

Feeling victim of a fictitious call for tenders, MATIM summoned TNT in order to pay it the sum of €7,776,000 as compensation for the brutal breach of established commercial relations on the basis of article L.442-6 I 5° of the French Commercial Code, in addition to pay the moral prejudice suffered, the reimbursement of the bank guarantees taken out by its manager and the costs of the proceedings.

As a preliminary point, it should be emphasized that in this case, article L.442-6 I 5° of the French Commercial Code was the one applicable in its previous version (amended by decree no. 2019-359 of April 24, 2019, and now the new article L.442-1 II of the French Commercial Code).

The International Commercial Division of the Paris Court of Appeal, by his ruling rendered on July 18^th, 2019, (RG no. 19/14727) has adjudicated in favour of MATIM while reducing the damages claims to TNT.

The Court of Appeal has pointed out that in the event of the termination of established business relationships that, “the sufficient notice period is assessed taking into account the duration of the commercial relationship and the other circumstances at the time of notification of the termination“, and that the “main criteria to be taken into account are economic dependence, the length of the relationship, sales volume and sales growth, specific investments made and not amortized, exclusive relationships and the specificity of the products and services in question“.

The appeal judges considered that the starting period of the notice period ran from the signing of the non-disclosure agreement on October 2^nd, 2017, and not from the letter of January 15^th, 2018. In fact, the Court considered that MATIM could not have been unaware of TNT’s desire to question the service agreement between them, and that it had expressly agreed, by signing the non-disclosure agreement relative to the call for tender, to this act being the starting point for the notice period. In fact, TNT gave MATIM 5 months’ notice from October 2017.

To calculate the notice period, the Court of Appeal weighed up two aspects of the effects of terminating this contractual relationship.

On the one hand, the Court of Appeal considered the economic dependence of MATIM, which achieves approximately 70% of its business with TNT, its contractual exclusivity and its two-year contractual and post-contractual non-competition obligation with TNT, as well as the significant investments made by MATIM for the deployment of services in Morocco, all of which were assessed within the context of a highly competitive market.

On the other hand, the Court also took into consideration the fact that even if MATIM had “lost a large part of its customers, employees and work tools, […] it was able to reorganise, find other outlets and adapt its business. It has now regained 75% of its former customers and is developing a promising business with the TOTAL group“, it has reinvented itself and “is now operating under the name ‘MTI Express‘,” and has “developed a business competing with that of TNT. […] and highlights the “pricing agreements negotiated with the market’s leading carriers, such as DHL, UPS, Aramex and Chronopost, as well as [its total] independence from them.“

In view of these factors, which demonstrate not only the impact of the severance of this relationship but also MATIM’s successful conversion and current profits, the Court of Appeal has determined the notice period at 12 months, including the 5 months’ notice already done. TNT was ordered to pay €1,052,513 for the remaining 7 months’ notice, which had not been served.

The Cour de Cassation overturned the decision on the grounds that the Court of Appeal, in considering MATIM’s successful conversion following the termination of the business relationship, “relied on factors subsequent to the notification of the termination of business relationship in order to assess the length of notice to which MATIM was entitled”.

As a result, the Cour de Cassation has ruled that only factors prior to the notification of the termination of business relationship can be taken into consideration when calculating the required notice period.

The parties are referred to the Paris Court of Appeal.

On April 17, 2023, the European Commission (the “EC” hereinafter) published in the Official Journal of the European Union (the “OJEU” hereinafter) Regulation n°2023/822 extending Regulation n°461/2010 of May 27, 2010 (the “MVBER” hereinafter)[1] and a communication amending the accompanying guidelines[2] .

Reminder

The block exemption of vertical agreements in the motor vehicle sector is governed by:

• Regulation n°2022/720 of May 10, 2022 (formerly Regulation n°330/2010) on the application of Article 101§3 of the Treaty on the Functioning of the European Union (the “TFEU” hereinafter) to categories of vertical agreements and concerted practices (the “VBER” hereinafter), applicable to distribution agreements for new motor vehicles; and
• The MVBER, applicable to agreements for the distribution of spare parts for motor vehicles and agreements for the provision of repair and maintenance services for such vehicles.

Background

On December 2018, the EC launched the process of reviewing the MVBER and its guidelines since they were due to expire on May 31, 2023. On May 28, 2021, the EC published an evaluation report and a work document presenting the results of the evaluation of the MVBER and its guidelines.

The evaluation report shows that pressure from the growing importance of vehicle-generated data, the reduction of greenhouse gas emissions and the evolution of post-covid mobility patterns calls for the MVBER to be adapted to the motor vehicle sector. However, the EC points out that these factors will only lead to changes in the motor vehicle sector in several years so that to date, there have been no significant developments justifying a major revision of the MVBER and its guidelines.

In its evaluation report, the EC concludes that the MVBER is still useful and needs to be extended, and that the accompanying guidelines need to be updated to account for the potential importance of accessing vehicle-generated data as a competitive factor.

Following the publication of the draft regulation extending the MVBER for five years and the draft communication amending the accompanying guidelines of the MVBER, the EC opened a public consultation from July 6, 2022 to September 30, 2022.

Extension of the MVBER for a further five years and updating of the accompanying guidelines to factor in the importance of vehicle-generated data

On April 17, 2023, the EC published Regulation n°2023/822 in the OJEU, extending the MVBER by five years to expire on May 31, 2028. Apart from the period of application of the MVBER, its content remains unchanged.

On the same day, the EC also published in the OJEU a communication amending the guidelines accompanying the MVBER (“the Communication” hereinafter).

In its Communication, the EC now considers that vehicle-generated data may constitute an essential input, being a competitive factor and as such, essential to the repair and maintenance services of independent operators. 

As a reminder, the withholding of essential inputs may be considered to constitute an anticompetitive agreement falling within the scope of Article 101§1 TFEU when one of the parties acts in such a way as to evict certain independent operators by sharing certain essential inputs for the repair and maintenance services.

In addition, the EC states in its Communication that when a party is considering, for security grounds, the withholding of an essential input, it must consider whether the withholding of this information is a  means to address the security concerns at issue and must consider whether less restrictive measures would suffice.

Finally, the Communication specifies that the withholding of an essential input such as vehicle-generated data may constitute an abusive practice under Article 102 TFEU when the dominant supplier does not communicate it to independent operators.

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[1]       Regulation (EU) n°461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector.

[2]       Commission notice – Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts for motor vehicles (2010/C 138/05).

ECJ, June 29, 2023, Case C-211/22

In a ruling on June 29, 2023, the European Court of Justice (ECJ) confirms that the mere fact that a vertical agreement fixing minimum resale prices is likely to fall into the category of “hardcore restrictions” within the meaning of Regulation no. 330/2010 on vertical restraints does not dispense with the need to verify whether it presents a sufficient degree of harmfulness to competition, in order to qualify it as a “restriction of competition by object” within the meaning of Article 101 par. 1 of the Treaty on the Functioning of the European Union.

Super Bock is a Portuguese beverage producer. In order to distribute its products to hotels, restaurants and cafés, the company has entered into distribution contracts with independent distributors. In 2019, the Portuguese Competition Authority fined Super Bock 24 million euros for imposing fixed or minimum prices on its distributors. Specifically, Super Bock provided its distributors with lists of minimum resale prices and distribution margins, either verbally or in writing. Distributors generally applied prices accordingly and provided Super Bock with data relating to the resale of Super Bock’s beverages, in terms of quantity and amount. Whenever distributors deviated from the communicated prices, retaliatory measures were implemented, such as the removal of financial incentives (discounts) or in terms of stock procurement and replenishment. Following an appeal, the Lisbon Court of Appeal submitted a set of questions to the ECJ, including (i) whether the agreement constituted a restriction of competition by object, and (ii) whether it constituted an agreement within the meaning of Article 101 par.1 of the Treaty on the Functioning of the European Union (TFEU). The ECJ’s answers on these two points are the main highlights of the judgment under review.

(i) Qualification as a restriction of competition by object

The main interest of the Super Bock ruling lies in the classification as a restriction of competition by object of a vertical agreement fixing resale prices, which is a hardcore restriction of competition under Regulation n°330/2010 on vertical agreements (the Regulation), applicable in this case in the presence of a distribution contract between a supplier and its distributors. 

As a reminder, Article 101 par.1 of the TFEU prohibits agreements which have as their “object or effect” the restriction of competition. Restrictions by object are those which, by their very nature, have the capacity to restrict competition, so that it is not necessary to examine their effects. To maintain these agreements , it will therefore be necessary to prove that they can be exempted, either by means of an individual exemption (Article 101 par. 3 TFEU), or by means of an exemption regulation. Article 4 a) of the Regulation stipulates that the fixing of minimum resale prices constitutes a hardcore restriction of competition, so that the benefit of the exemption for an agreement containing such a restriction is lost.

In this case, the ECJ points out that the concept of restriction of competition by object must be interpreted restrictively. The ECJ then provides an analytical grid, indicating that to qualify a restriction as a restriction by object, it is necessary to focus on the content of its provisions, the objectives to be achieved, and the economic and legal context in which the agreement operates.

More specifically, on the subject of resale price maintenance – and this is the main point of interest of this ruling – the ECJ emphasizes that, although the Regulation withdraws the exemption for agreements involving resale price maintenance or minimum price maintenance, it does not provide that this hardcore restriction constitutes a restriction of competition by object. Consequently, the courts or authorities must carry out the analysis described above to qualify the agreement as a restriction of competition by object, even in the presence of a hardcore restriction. However, it should be stressed, that the Court indicates that the presence of a hardcore restriction may be considered in the legal context as part of the analysis grid described above.

In other words, the presence of a hardcore restriction does not absolve the authorities from assessing the harmfulness of the agreement in the light of the factors described above.

(ii) Qualification as an “agreement”

Secondly, the ECJ also clarifies the concept of “agreement” within the meaning of Article 101 par.1 TFEU, which prohibits “agreements” which have the object or effect of restricting competition.
The ECJ reiterates the Court’s consistent case-law that an agreement exists when companies have expressed their joint intention to behave on the market in a particular way. This agreement may result from clauses in distribution contracts, but also from the behaviour of the parties, in particular the acceptance by  distributors to comply with  resale prices as set by suppliers.

A unilateral pricing policy cannot constitute an agreement under Article 101 par.1 TFEU. For example, sending out minimum price lists and setting up a price police with a system of reprisals do not necessarily mean that there is an anticompetitive agreement, and may be the result of purely unilateral behaviour on the part of the supplier. 

On the other hand, the ECJ states that when this apparently unilateral behaviour on the part of the supplier is accompanied by compliance with prices by distributors, or when their determination is sought by distributors which, while complaining to the supplier about the prices indicated, do not set other prices, then there could be acceptance on the part of distributors and therefore an agreement within the meaning of Article 101 par.1 TFEU.

Lastly,  the ECJ also ruled (i) on the subject of proof of a competitive agreement, confirming that proof of such an agreement can be provided by means of direct evidence or by means of a body of evidence, and (ii) on the concept of affecting trade between Member States, confirming that trade between Member States can be affected even when the agreement under review does not cover the entire territory of a Member State, but concerns almost all of it.

On 30 March, the National Assembly voted on the bill aimed at regulating commercial influence and fighting against the abuses of influencers on social networks.

Several amendments have been integrated compared to the initial proposal commented in one of our previous FOCUS IP.

The main modifications to be retained are the following :

– The legal definition of an influencer

The voted text no longer refers to a decree that would set a threshold of remuneration from which the qualification of influencer could be retained.

The definition retained is now the following:

“Natural or legal persons who mobilise their notoriety among their audience to communicate content to the public by electronic means with a view to promoting, directly or indirectly, goods, services or any cause whatsoever in return for an economic benefit or any advantage in kind are exercising the activity of commercial influence by electronic means.”

– Regulation of promotion for certain products and services

The scope of the sectors of activity concerned has been modified:

• Tobacco and vaping sector: it is now expressly mentioned that influencers must comply with the prohibition of promoting tobacco and vaping products in compliance with articles L.3512-4 and L.3513-4 of the Public Health Code.

Influencers are also reminded of their obligation to comply with the Evin Law regarding the promotion of alcoholic beverages. The general prohibition initially envisaged is therefore set aside.

• Health sector: in addition to the ban on the promotion of surgical procedures, the obligation to comply with the regulations on nutritional and health claims for foodstuffs has been added.

Above all, a much more general prohibition was added on “any direct or indirect promotion which undermines the protection of public health“.

The previous version of the Bill provided for a broader express prohibition, since it also covered pharmaceutical products such as medicines, contraceptives and foodstuffs intended for medical purposes.

• Gambling sector: promotion by influencers is now subject to two technical criteria: (i) the use of platforms offering the technical possibility to exclude underage users from the audience; (ii) the activation of this functionality.

A specific clause will also have to be inserted in contracts with operators whereby influencers certify that they are aware of the laws and regulations applying to commercial communications relating to gambling and undertake to comply with them.

• Sector of sweetened drinks or drinks with added salt or synthetic sweeteners or manufactured food products: influencers under the age of 16 are prohibited from promoting these products, as well as product placements in a programme targeting minors under 16.

In addition, the promotion will have to be combined with either (i) the form of presentation complementary to the nutritional declaration of the product, or (ii) health information.

Violation of the provisions concerning points 1, 2 and 3 would be punishable by 6 months’ imprisonment and a fine of EUR 300 000, instead of the 2 years’ imprisonment and EUR 30 000 fine initially provided for, unless the Consumer Code already provides for other penalties.

– Regulation of the activity of influencer agents

The new text reinforces the protection of intellectual property rights.

An amendment now explicitly states that the influencer agent must take “all necessary measures (…) to avoid situations of infringement of intellectual property rights“.

The contract between the influencer and his agent will also have to include a specific clause recalling the rights and obligations of on the parties in terms of intellectual property rights.

Finally, the contract will have to be drawn up in writing only when it concerns a sum exceeding an amount set by decree.

– The principle of joint liability between the advertiser and the influencer vis-à-vis injured third parties

The amendment aims to make the influencer more responsible and to encourage him to respect the rules relating to his activity, as well as to ensure better protection for the injured third party.

In a judgement dated 13 April 2023, no. 21-20.252, the Commercial Chamber of the French Supreme Court ruled that the online marketplace TEEZILY was an editor and overturned the judgement of the Court of appeal, which had ruled that it was an hosting provider.

The company TEEZILY commercialises products, clothes and other printed materials through its website www.teezily.com. It enabled designers to put their creations online for reproduction on the said products, to choose the availability duration, set the product price and a target number of buyers, and promote their product.  

The company SPRD.NET initiated a proceeding against the company TEEZILY for trademark infringement, violation of its database and unfair competition, noting that the company TEEZILY sold clothing and accessories identical to those it marketed and that it reproduced the “SPREADSHIRT” trademarks owned by SPRD.NET.

The company TEEZILY invoked the exemption of liability as a hosting company within the meaning of the French Law “LCEN”, which was upheld by the Paris High Court, rejecting all SPRD.NET’s claims.  

The company SPRD.NET appealed against this decision, but its claims were once again rejected by the Paris Court of Appeal.

In particular, the Court of Appeal had found that the following facts did not demonstrate an active role on the part of TEEZILY, excluding consequently the status of editor:

• guiding the designer in setting the price of his product;
• offering the designer technical support to “create your design in one click“;
• publishing articles on general tips for each country to help designers in their advertising campaign;
• providing a logistical service for the manufacture and delivery of the products, with the corollary that the designer has authorised TEEZILY to reproduce his work, and that the buyer has the related guarantees.

The Court also rejected SPRD.NET’s argument that TEEZILY was offering sales optimisation assistance to creators, on the grounds that there was no evidence of this. The screenshots provided in the submissions were of poor quality, did not mention TEEZILY’s name and were undated.

It concluded that TEEZILY’s role and conduct were neutral and purely technical and did not indicate knowledge or control of the data stored by it.

SPRD.NET therefore appealed to the French Supreme Court.

In its ruling of 13 April 2023, French Supreme Court overturned the decision of the Court of Appeal. It held that the company TEEZILY did not act as a hosting provider because it provided creators with a logistical service for manufacturing and delivering products, thereby playing an active role that gave it knowledge or control over the data relating to these offers.

Lastly, with regard to the illegibility of the screenshots produced in the submissions before the Court of appeal, the Supreme Court noted that the bailiff’s report also reproduced the screenshots, which were of better quality and should therefore have been taken into account by the judges.

CJEU, Grand Chamber, 22 Dec. 2022, C-148/21 and C-184/21. In response to two preliminary questions raised by 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 may be held directly liable for infringement of the rights of a trademark owner resulting from an announce by a third-party seller on its marketplace.

In the present case, Mr Christian Louboutin, the designer of shoes famous for their red outsole, noticed that the sites of Amazon, the distributor and operator of an online marketplace, have offers made by third-party sellers relating to shoes with red soles.

He also noted that Amazon not only published offers on its platform, but also handled the holding, shipping and delivery of these products whereas Mr. Louboutin had never given his consent to the circulation of such products.

Considering that Amazon was infringing his trademark, Mr. Louboutin initiated an infringement action against Amazon on the basis of 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 that 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 offer made by a third-party seller on its online marketplace.

In a judgment of 22 December 2022, the CJEU, sitting as a Grand Chamber, gave a positive answer on condition that “a reasonably well-informed and reasonably observant internet 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 that platform who “commercializes, in his own name and on its own account, the goods“.

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

It must be shown that the operator is using the trademark in the context of its own commercial communication, which must be understood to mean “any form of communication to third parties designed to promote its activity, goods or services or to indicate the exercise of such an activity“.

In this respect, according to the CJEU, the following may be taken into account:

• the way in which the offers published on the platform are presented: a display showing the platform operator’s offers and those of third-party sellers at the same time, with its own logo both on the website and on all those offers “may establish a link, in the eyes of those users, between that sign and the services provided by that same operator”.
• the nature and extent of the services provided by the platform operator: the handling of user queries, the storage and dispatch of goods and the management of returns are ” likely to give the impression, to a well-informed and reasonably observant user, that those same goods are being marketed by that operator, in its own name and on its own behalf“.

It will therefore be up to the national courts to analyse the platform’s commercial communications in detail and in practice to see whether they lead users to establish a link between the platform and the product in question.

Paris Court of Appeal, Division 5, Section 1, January 25^th, 2023, no. 19/15256 – A clause in an employment contract progressively assigning intellectual property rights relatied to creations progressively as they are completed does not constitute a global assignment of future works.

In 2015 and 2016, an employee acting as fashion designer, who had entered a “stylist-artistic director” employment contract with OLT SAS, delivered services for third-party companies under collaboration contracts (or “co-branding”).

She considered that she was owed additional compensation for her services and requested that her claim be fixed as OLT SAS’s liability for the compensation of her patrimonial intellectual property rights, since the company had been placed in insolvency proceedings.

Article 8 of the employment contract, entitled “Intellectual Property”, provided that: “Ms. [A] [H] assigns exclusively to the Employer all intellectual property rights (reproduction and representation rights, excluding adaptation rights) relating to the works created within the scope of the present contract, progressively as they are completed. The present assignment covers all works protected in any way whatsoever by the Intellectual Property Code created by Ms. [A] [H] under the present contract.”

The employee considered that the copyright assignment clause was null and void, as it consisted in a global assignment of future works, prohibited by article L.131-1 of the French Intellectual Property Code.

The Court first held that the employee’s involvement in the co-branding contracts was part of her employment relationship with OLT SAS, to which she had granted the exploitation rights on her creations.

In the present case, the clause assigning rights set out in the employment contract to the employer’s benefit covered the creations completed under the contract, progressively as they were delivered.

The Court considered that such clause was not null and void since it “does not cover all the works that are the object of the assignment; moreover, it does not relate to future works but to completed works, since the assignment only takes effect progressively as the works are completed”. The clause as it was drafted therefore sufficiently delimited the scope of the assignment.

The Court also dismissed the invalidity of the clause despite the lack of any distinction between the compensation granted for the services delivered and the assignment of copyright.

This decision appears to be in line with a recent ruling by the Montpellier Court of Appeal (Montpellier Court of Appeal, October 18^th, 2022, no. 20/04452), which held that the prohibition of global assignments of future works only applies to contracts covered by paragraph 1 of article L. 131-2 of the French Intellectual Property Code, i.e. performance, publishing and audiovisual production contracts.

Any confirmation by the French Supreme Court of this restrictive interpretation of article L. 131-1 of the French Intellectual Property Code shall be followed with interest.

French Supreme Court January 11^th, 2023, no. 19-19.567 & French Supreme Court January 11^th, 2023, no. 20-10.935 – On January 11^th, 2023, the French Supreme Court rendered two decisions in favor of recognizing the technical means of computer programs, and therefore their patentability.

Under French law, regarding computer-implemented inventions, article L. 611-10 of the French Intellectual Property Code provides that “computer programs” and “presentations of information“ shall not be considered as inventions”. However, paragraph 3 of the same article specifies that only patents concerning “one of these elements” are excluded from patentability. Therefore, software could in principle be patentable only if the invention in question has technical means.

The first case (French Supreme Court, January 11^th, 2023, no. 20-10.935) concerned a French patent application filed by BULL for a “terminal establishing communications by broadcasting within a group“. The purpose of the invention, which had a military application, was to permit transmission of information on the status of each soldier in a combat unit, thus providing an overall view.

Regarding the second case (French Supreme Court, January 11^th, 2023, no. 19-19.567), the French patent application was filed by THALES for a time-based display of an aircraft’s mission. The aim of this patent was to improve the display of information in cockpits, in order to facilitate the reading and correlation of data relating to the stages of an aircraft mission.

Both patent applications were rejected by the Director of INPI for lack of technical character.

Following an appeal, the Court of Appeal overturned these decisions considering that both patent applications have a technical character.

In both cases, the Director of INPI appealed to the French Supreme Court.

In the “THALES” case, the French Supreme Court disapproved the Court of Appeal’s decision considering that the Court of appeal did not provide a legal basis for its decision, holding that the Court asserted the existence of a technical character of the invention without establishing the existence of a technical contribution or explaining in what way the means were technical.  

In the “BULL” case, the French Supreme Court dismissed the appeal, ruling that it was clearly not of such a nature as to lead to cassation.

The French Supreme Court seems to be in favor of patenting computer-implemented inventions, but only if the assessment of the technical character of the patent application is well explained and motivated.

Both decisions of the French Supreme Court issued on January 11^th, 2023, are debated, as the inventive activity of both patent applications appeared to be rather weak. According to observers, these decisions demonstrate the alignment of French case law with the practice of the European Patent Office in admitting the patentability of computer-implemented inventions regarding the inventive activity.

It is important to keep in mind that both of these two cases were introduced before the law “PACTE” came into force. Article L. 612-12 7° of the French Intellectual Property Code now requires the INPI to examine the inventive step of the patent application, which was not the case when the Bull and Thales patents were examined. It is possible that such examination would have ruled out the patentability of the two inventions in question.

Inspired by the Etats Généraux de la justice launched in October 2021, the bills of orientation and programming of justice as well as the one on the status of the judiciary were presented by the Minister of Justice, this Wednesday, May 3, in the Council of Ministers.

The stated ambition is to simplify the criminal procedure.

The reform affects in particular the use of contractual employees (1.) but also the criminal procedure (2.).

1. Judicial attachés called upon to reinforce the “jurisdictional team” around the magistrate

Article 11 of the bill intends to strengthen the judicial team around the magistrate by creating the position of judicial attaché.

The judicial attachés would be either civil servants or contractual and would perform functions “including decision support, case law research, drafting briefing notes, supporting public and partnership policies and even drawing up various requisitions in criminal matters”[1] .

2. The considered amendments in criminal procedure

• Codification of the code of criminal procedure in accordance with the law

The law of orientation and programming for justice proposes to empower the Government to rewrite the code of criminal procedure by means of ordinances, following the example of the procedure for adopting the code of criminal justice for minors.

The purpose of this codification under constant law is thus to rewrite, regroup and reorganize the various provisions of the code of criminal procedure in order to modernize them.

• Reform of the status of assisted witness and procedural adjustments

In particular, the bill includes a reform of the status of assisted witness (Témoin assisté), for which new rights, including the right to appeal, are expected. He would also be able to request counter-expertise and would be notified of more acts by the investigating judge.

The Minister of Justice also wishes to allow a wider use of the Delayed Appearance procedure, which allows prosecutors to subject the accused to surveillance and control measures, by the liberty and custody judge, while continuing the investigation for a maximum period of four months.

It also provides for a change in the regime of night-time house searches, which could now be carried out for ordinary crimes, with the authorization of the liberty and custody judge if there is a “risk of harm to life or physical integrity or if there is an immediate risk of the disappearance of evidence and clues of the crime that has just been committed“.

The project also envisages the extension of special investigative techniques to allow remote activation of connected devices for the purposes of geolocation and sound and image capture.

Finally, in terms of community service, the orientation and programming law considers the generalization of the possibility of using social and solidarity economy companies.

• Provisions relating to the compensation of victims

The bill provides for a broadening of the scope of offences that can be referred to the Commission for the Compensation of Victims of Crime.

The bill intends to extend the CIVI compensation to offences such as blackmail and abuse of weakness and to extend the compensation to home invasions with a serious material situation requirement but without a resource treshold.

It is also planned to open a one-stop shop. The goal is to accompany the victims and their families in better conditions in their steps and procedures.  

***

The Senate will soon consider this bill. 

Another aspect concerns civil procedure with the promotion of amicable dispute resolution.

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[1] Speech of 27/02/23 – M. DUPOND-MORETTI

CJUE, 22 novembre 2022, C- 37/20 et C-601/20

L’objectif d’amélioration de la transparence globale de l’environnement économique et financier de l’Union s’est retrouvé en contradiction avec la Charte des droits fondamentaux de l’Union Européenne (« La Charte »). Se prononçant en grande chambre le 22 novembre 2022, la Cour de justice de l’Union européenne (« CJUE ») a invalidé une disposition de la directive 2018/843 permettant aux Etats membres de donner accès aux informations sur les bénéficiaires effectifs des sociétés constituées sur leur territoire au grand public, et ce, sans restriction.

« Quel est le juste équilibre entre, d’une part, l’exigence de transparence en ce qui concerne les bénéficiaires effectifs et les structures de contrôle des sociétés, qui joue un rôle fondamental dans le cadre de la prévention du blanchiment de capitaux et du financement du terrorisme et, d’autre part, le respect des droits fondamentaux des personnes concernées, à savoir les bénéficiaires effectifs, et, notamment, de leurs droits au respect de la vie privée et à la protection des données à caractère personnel ?[1]».

Cette question soulevée dans les conclusions de l’avocat général illustre bien l’enjeu difficile de proportionnalité entre d’une part l’objectif de transparence de la directive n° 2018/843[2] et d’autre part, les droits fondamentaux des bénéficiaires effectifs.

La notion de bénéficiaire effectif se retrouve à l’article L. 561-2-2 du Code monétaire et financier, et rejoint celle de l’article 3§6 de la directive 2015/849[3]. Est bénéficiaire effectif la ou les personnes physiques « 1° soit qui contrôlent en dernier lieu, directement ou indirectement, le client ; 2° soit pour laquelle une opération est exécutée ou une activité exercée[4] ». La directive n° 2015/849[5], plus récemment modifiée par la directive n° 2018/843, a imposé aux Etats membres de tenir un registre comportant des informations sur ces bénéficiaires effectifs. Toutefois, la version de 2018 a supprimé la condition relative à la démonstration d’un « intérêt légitime[6] » pour y avoir accès.

I. Les litiges au principal et les questions préjudicielles

Dans le cadre de la transposition de la directive anti-blanchiment, le Luxembourg a adopté une loi[7] ouvrant au grand public le registre sur les bénéficiaires effectifs, accessible sur internet. Cependant, cette loi prévoyait une exception permettant de limiter l’accès aux informations au public de certains éléments en déposant une réclamation au Luxembourg Business Registers (« LBR »)[8]. Pour que la réclamation soit acceptée, le bénéficiaire effectif devait démontrer que sa famille et lui-même, étaient de façon caractérisée, réelle et actuelle, exposé à un risque disproportionné et à un risque de fraude, d’enlèvement, de chantage, d’extorsion, de harcèlement, de violence ou d’intimidation. C’est à la suite du refus de deux réclamations au près du LBR, que deux bénéficiaires effectifs et deux sociétés luxembourgeoises ont saisi le tribunal d’arrondissement de Luxembourg.

Partant, il était posé à la CJUE la question suivante : les dispositions de la directive qui imposent aux Etats-membres de veiller à ce que des informations sur les bénéficiaires effectifs des sociétés et autre entités juridiques constituées sur le territoire soient accessibles sans restriction au grand public, constituent-elles un risque disproportionné d’atteinte aux droits fondamentaux ? Et plus particulièrement une atteinte au droit à la protection de la vie privée familiale ainsi que le droit à la protection des données à caractère personnel, consacrés respectivement aux articles 7 et 8 de la Charte[9] ?

II. Le raisonnement de la CJUE

• Une ingérence grave dans les droits fondamentaux des bénéficiaires effectifs

Dans un premier temps la Cour a reconnu que l’accessibilité des données au grand public pouvait nuire au respect de la vie privée des bénéficiaires effectifs ainsi qu’à la protection des données à caractère personnel[10]. C’est notamment le cas de l’article 30 de la directive de 2015[11] qui impose aux Etats de donner accès au grand public à plusieurs informations, dont, le nom, le pays de résidence et la nationalité du bénéficiaire effectif. A cet égard, la Cour relève que, dès lors que le registre comporte des informations sur des personnes physiques identifiées, à savoir les bénéficiaires effectifs, « l’accès de tout membre du grand public à celles-ci affecte le droit fondamental au respect de la vie privée garantie à l’article 7 de la Charte[12]».

La CJUE poursuit son raisonnement en caractérisant la gravité de cette ingérence dans les droits fondamentaux des personnes concernées[13] en raison de la mise à disposition au grand public d’informations concernant le bénéficiaire effectif permettant notamment de dresser un profil de ce dernier[14]. Enfin, elle souligne que l’accès illimité à ces données accessibles sur internet[15] peut créer un risque d’utilisation abusive de celles-ci[16].

En d’autres termes, la visibilité accrue du profil du bénéficiaire effectif était critiquée, ainsi que l’existence d’un risque d’utilisation abusive des informations accessibles, sans qu’il puisse en contrôler la diffusion, et l’exposant par conséquent à d’éventuels abus face auxquels il lui serait impossible de se défendre efficacement.

En raisonnant sur ces trois points, la Cour a caractérisé l’existence d’une ingérence grave dans la jouissance des droits énoncés aux articles 7 et 8 de la Charte.

• L’absence de justification

A ce stade, si la présence d’une ingérence grave portée par la directive de 2018 était établie, la Cour s’est également prononcée sur la présence d’une éventuelle justification des atteintes des articles 7 et 8 de la Charte, en ce que ces droits ne sont pas « des prérogatives absolues[17]».

Tout d’abord, la CJUE a jugé que le contenu des droits fondamentaux n’était pas atteint[18]. Elle a également constaté que les objectifs de prévention de blanchiment des capitaux et du financement du terrorisme répondaient bien à la poursuite d’un intérêt général. Enfin, la Cour a constaté que le principe de légalité était également satisfait[19].

Toutefois, c’est sur le test d’aptitude, de nécessité et de proportionnalité que la Cour a établi l’atteinte injustifiée dans les droits fondamentaux. En ce qui concerne l’aptitude, la CJUE a considéré que l’accès au grand public est apte à contribuer à la réalisation de l’objectif d’intérêt général. Plus concrètement, cet accès aux informations sur les bénéficiaires effectifs peut participer à la prévention du blanchiment de capitaux et du financement du terrorisme par la mise en place d’un environnement moins susceptible d’être utilisé à de telles fins[20].

En revanche, la Cour considère que la stricte nécessité de la divulgation des informations constituant une ingérence dans les droits fondamentaux n’est pas démontrée[21]. Partant, l’absence de condition relative à la démonstration d’un « intérêt légitime » pour l’accès au registre, pourtant présente dans la directive de 2015, ne peut être justifiée par la Commission en raison de difficultés pour en définir précisément la notion[22]. Au surplus, la Cour indique que la presse et les organisations de la société civile seront en mesure de démontrer l’existence d’un intérêt légitime ne justifiant dès lors pas l’ouverture du registre, sans restriction, au grand public. Ainsi, la CJUE considère que cet accès illimité va au-delà de ce qui est nécessaire pour la réalisation de l’objectif d’intérêt général poursuivi par la directive.

Enfin, la Cour considère que le critère de proportionnalité n’est pas non plus respecté en raison d’une trop grande ingérence dans les droits fondamentaux des bénéficiaires effectifs en dépit de l’objectif d’intérêt général[23]. En guise de réponse, la Commission invoquait l’existence de dérogations pouvant être mises en place par les Etat-membres afin de restreindre l’ouverture au registre si le bénéficiaire était exposé à des risques de fraude, enlèvement, chantage, d’extorsion, de harcèlement, ou de violence[24].

Or, la Cour souligne que l’article 30 de la directive permettant la mise à disposition des données au public ne répond pas à l’exigence de clarté et de précision[25], en ce que les données qui sont accessibles dans le registre ne sont ni définies et ni identifiables et vont à l’encontre des articles 7 et 8 de la Charte. Enfin, la CJUE rappelle également que le régime introduit par la dernière directive de 2018, prévoyant l’ouverture du registre au grand public, outre l’accès des autorités compétentes et de certaines entités, représente une atteinte « considérablement plus grave » aux droits fondamentaux de la Charte et « sans que cette aggravation ne soit compensée par les bénéfices éventuels qui pourraient résulter de ce dernier régime par rapport au premier ».

Par conséquent, l’absence de condition relative à la démonstration d’un « intérêt légitime » ne permet pas une amélioration de la lutte contre le blanchiment et le financement du terrorisme au détriment des droits fondamentaux[26].

III. L’invalidation de l’article 1^er, 15 c)

La CJUE a invalidé « l’article 1^er, point 15, sous c) de la directive 2018/843 en tant qu’il a modifié l’article 30, paragraphe 5 premier alinéa sous c) de la directive 2015/849 en ce sens que celui-ci prévoit dans sa version modifiée que les Etats membres doivent veiller à ce que les informations sur les bénéficiaires effectifs des sociétés et autres entités juridiques constituées sur leur territoire soient accessibles dans tous les cas à tout membre du grand public[27]».

La portée de cet arrêt est à nuancer. L’objectif de la directive n’est pas remis en cause, et la CJUE reconnait qu’une atteinte aux articles 7 et 8 de la Charte peut être justifiée afin de lutter contre le blanchiment d’argent et le financement du terrorisme. Toutefois, la Commission européenne est invitée à revoir les conditions d’accès au registre par le grand public de manière à garantir une meilleure protection des droits fondamentaux des bénéficiaires effectifs. A noter qu’une décision constatant l’invalidité d’un acte a pour conséquence d’imposer à l’institution, auteur de la mesure, de remédier à l’illégalité. Similairement, les autorités nationales doivent également respecter dans leur ordre juridique la déclaration d’invalidité telle qu’elle résulte de la décision préjudicielle[28].

A la suite de cet arrêt, plusieurs pays ont mis fin à la publicité du registre des bénéficiaires effectifs. C’est notamment le cas en France. Pour rappel, l’ordonnance n° 2020-115 du 12 février 2020, complétée par le décret n°2020-118 ont transposé la directive permettant l’ouverture au registre sans la démonstration d’un intérêt légitime. L’article L 561-46, alinéa 2 permet à toute personne du public d’accéder à un nombre important d’information sur les bénéficiaires effectifs[29]. En revanche, l’accès à la totalité des informations est ouvert à certaines autorités et personnes qui y sont habilitées[30].

Au début du mois de janvier 2023, l’INPI avait coupé l’accès au registre[31]. Cependant, à la suite de la publication d’un communiqué de presse, le ministre de l’économie a rouvert le registre en précisant que « Les futures modalités d’accès aux données du registre des bénéficiaires effectifs tenant compte de la décision de la CJUE seront définies prochainement, en lien avec les parties prenantes. Elles permettront notamment aux organes de presse et aux organisations de la société civile y ayant un intérêt légitime de continuer à accéder au registre. » [32]

Il semble que le gouvernement rétablisse la notion d’intérêt général comme condition nécessaire à l’accès du registre telle qu’elle existait dans la directive de 2015. Reste à savoir comment cette notion sera définie, et sera mise en œuvre.

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[1] Conclusions de l’avocat général Pitruzzella, 20 janvier 2022, C-37/20 et C-601/20, pt.1.

[2] Directive (UE) 2018/843 du Parlement européen et du Conseil du 30 mai 2018 modifiant la directive (UE) 2015/849 relative à la prévention de l’utilisation du système financier aux fins du blanchiment de capitaux ou du financement du terrorisme disponible ici.

[3] Art. 3§6, Directive n° 2015/849 : « bénéficiaire effectif », la ou les personnes physiques qui, en dernier ressort, possèdent ou contrôlent le client et/ou la ou les personnes physiques pour lesquelles une transaction est exécutée, ou une activité réalisée (…). »

[4] Article L. 561-2-2 du Code monétaire et financier disponible ici.

[5] Directive (UE) 2015/849 du Parlement Européen et du Conseil du 20 mai 2015 relative à la prévention de l’utilisation du système financier aux fins du blanchiment de capitaux ou du financement du terrorisme disponible ici.

[6] Article 30 de la directive 2015/849.

[7] Loi du 13 janvier 2019 instituant un Registre des bénéficiaires effectifs (mémorial A 15).

[8] A noter que cette exception n’était pas prévue dans le droit français ; Renaud Mortier, La CJUE invalide l’accès du grand public aux informations sur les bénéficiaires effectifs, BRDA 1/23.

[9] Cf. pt. 34.

[10] Cf. pt. 38.

[11] Article 30, paragraphe 5, premier alinéa, sous c), de la directive 2015/849 modifiée impose aux Etats-membres de veiller à ce que les informations sur les bénéficiaires effectifs soient accessibles dans tous les cas à tout membre du grand public, tandis que son deuxième alinéa précise que les personnes ainsi visées sont autorisées « à avoir accès, au moins, au nom, au mois et à l’année de naissance, au pays de résidence, et à la nationalité du bénéficiaire effectif » lesquelles « comprennent ; au moins, la date de naissance ou les coordonnées , conformément aux règles en matière de protection des données ».

[12] Cf. pt. 38.

[13] Cf. pt. 44.

[14] Cf. pt. 41.

[15] Cf. pt. 42.

[16] Cf. pt. 43.

[17] Cf. pt. 45.

[18] Cf. pt. 54.

[19] Cf. pt. 49.

[20] Cf. pt. 67.

[21] Cf. pt. 76.

[22] Cf. pt. 72.

[23] Cf. pt. 77 à 87.

[24] Cf. pt. 79.

[25] Cf. pt. 81.

[26] Cf. pt. 85.

[27] Cf. pt 88.

[28] Jacques Pertek, Renvoi préjudiciel en appréciation de validité, Fasc. 362., 2023.

[29] Art. L561-46 Code monétaire et financier : Seules sont accessibles au public, les informations relatives aux nom, nom d’usage, pseudonyme, prénoms, mois, année de naissance, pays de résidence et nationalité des bénéficiaires effectifs ainsi qu’à la nature et à l’étendue des intérêts effectifs qu’ils détiennent dans la société ou l’entité.

[30] Art. L561-46.

[31] Pierre Januel, Le registre des bénéficiaires effectifs bientôt refermés ? Dalloz Actualité, 2023.

[32] Bruno Le Maire, Registre des bénéficiaires effectifs : Maintien de l’accès au grand public, Communiqué de presse n°520, 19 janvier 2023

In France, the number of influencers is estimated at more than 150,000. A study conducted in January 2023 by the DGCCRF on around sixty influencers revealed that 60% of them do not comply with the current regulations[1].

Some initiatives have already emerged to improve practices. For example, in 2019, the OECD published a Good Practice Guide on Online Advertising. The ICC also offers a Communication Code on Advertising and Marketing. In France, the ARPP (the French Authority for the Regulation of Professional Advertising) has published ethical recommendations regarding best practices for transparency and loyalty applicable to influencer marketing.[2].

Given the multiplicity of violations of the regulations that are already applicable to influencers (1.), several bills aiming to specifically regulate this activity have emerged. The most advanced to date is the one “aimed at combating the abuses of influencers on social media” (2.).

1. Regulation already applicable to influencers

To date, the only law regulating the activity of influencers is the law n° 2020-1266 of October 19^th, 2020[3], intended exclusively to protect minors.

In the absence of specific texts, this regulation applies to influencers, especially those relating to advertising law, consumer law and criminal law. Several influencers have already been sanctioned in this regard (see Appendix).

In particular, the following obligations apply:

• Identification of the partnership by the influencer

Since 2008, Article 20 of the LCEN (the French Law for trust in the digital economy) provides for the obligation for “any advertisement accessible (…) by an online public communication service” to clearly identify the person on whose behalf it is made. In practice, this is reflected, for example, by the mention “in partnership with…” or “sponsored by…” on the influencer’s publications.

• The prohibition of deceptive commercial practices

An influencer promoting a defective product or a fraudulent website can also be punished on the ground of unfair or deceptive commercial practice[4].

In this respect, Nabilla, an influencer, was recently sentenced by the DGCCRF (The French Directorate-General for Competition Policy, Consumer Affairs and Fraud Control) to pay a settlement fine of €20,000 for deceptive commercial practices on social media related to the promotion on the social media Snapchat of an online trading training site (see Appendix).

• Provisions of the Evin law

The French Evin law regulates the advertising of alcoholic beverages and applies to posts made via an online network.

For instance, Meta Group was recently forced by the Paris Court of Justice to remove 37 publications of influencers on Instagram that reproduced alcoholic beverages in an illegal way and to communicate the data of the owners’ account in order to identify them.[5] 

• Regulations on the advertising of gambling, games of chance and sports betting

Any commercial communication in favor of a gambling operator must respect a certain number of strict rules, including the reproduction of a warning message against excessive or pathological gambling.

Any publication aimed at minors is also prohibited.

2. The development of a specific legal framework for influencers

Several bills aimed at regulating the activity of influencers on social media have already been tabled in the National Assembly, including in particular the bill of 15 November 2022 “aimed at framing commercial and advertising practices linked to the market of influence on the Internet“, the bill “aimed at reinforcing prevention against illicit commercial practices linked to the market of influence on the Internet and reinforcing the fight against these practices” of 15 December 2022, and the bill of 27 December 2022 “aimed at combating the abuses of influencers on the social networks”.

The latest proposal is the one registered before the National Assembly on 22 March 2023, “aimed at fighting against scams and abuses by influencers on social networks“. It is currently undergoing its first reading in the Assembly under the accelerated procedure.

This text introduces several new provisions directly targeting influencers:

• A legal definition of an influencer

The proposal defines an influencer as follows: “Natural or legal persons who use their reputation to communicate content to the public by electronic means with a view to promoting, directly or indirectly, goods, services or any cause whatsoever in return for an economic benefit or an advantage in kind the value of which exceeds the thresholds set by decree“[6].

This is based on the definitions already suggested by the ARPP [7] as well as the one referred to the Court of Appeal of Paris in a decision of February 10^th, 2021[8].

• The obligation to have a legal representative within the European Union for influencers targeting French consumers

The text would require influencers established outside the European Union and targeting French consumers to appoint a legal representative (natural or legal person) located in an EU Member State, which would have to subscribe to a civil insurance to cover its activities.

The legal representative would then be subject to French law and anyone using the influencer’s services would have to contract with its legal representative.

• Regulation of the activity of an influencer agent

The Bill defines an influencer agent as one who “for compensation, represents or connects influencers with persons seeking their services to promote goods, services, practices or causes of any kind“.

It can also offer influencers “assistance and advice” and must take “all measures to ensure the defence of their interests and to avoid situations of conflict of interest“.

The Bill also mentions the stipulations that must be specified in the contracts concluded between an influencer and his agency, including the nature of the diligences, the modalities of the payment and the respective rights and obligations of the parties.

• The indication of the promotional nature of the offer

Any promotion of products/services by an influencer must be explicitly indicated by a clear, legible and identifiable statement on the image or video during the entire promotion.

This could for example be a visible banner on the image.

The words “Sponsored” or “In partnership” would be therefore no longer be sufficient.

The edited images must also be marked with the words: “Edited images”, visible in all formats, on the modified content, photo or video, and this during the entire viewing period.

Such obligation already exists for edited commercial photographs of models[9].

Violation of these provisions shall be punishable by one year’s imprisonment and a fine of €4.500.

In addition, if the influencer is only an intermediary in the sale, he/she has to:

– inform the potential buyer of the identity of the supplier;

– check the availability of the good; and

– check that it is not a infringing product;

– check for the existence of a certificate of conformity to European standards.

This is intended to provide a better framework for the practice of “dropshipping”, in which the seller is only responsible for marketing, while the supplier is responsible for manufacturing and shipping.

• The ban on promotion for certain products and services

The promotion of certain products/services will be prohibited altogether. None of the following products shall be offered by an influencer:

• In health sector: this includes the prescription, supply, sale, performance or consumption of aesthetic acts, procedures, techniques, and methods reserved for health professionals, as well as surgical interventions, including those without therapeutic or reconstructive purposes.

The previous version of the Bill provided for a much broader express prohibition as pharmaceutical products were also excluded, such as drugs, contraceptives or foodstuffs intended for medical purposes.

A derogation was also provided in the previous Bill for Government health campaigns, but this is no longer the case.

• In financial sector: the proposal is based on the current wording of Article L. 222-16-1 of the Consumer Code, which prohibits direct or indirect advertising by electronic means. This includes :
  • some of the riskier financial contracts;
  • the provision of certain services on digital assets;
  • public offerings of tokens;
  • investments or placements involving risks of loss to the consumer in a digital asset or, more generally, in a fungible or non-fungible intangible asset. This includes offers of crypto passbooks and non-fungible tokens (NFTs).

• Illicit and infringing products: only trademark infringements are covered and not patent, copyright or design infringements, which may seem surprising and should probably be modified during the examination of the Bill by the National Assembly[10].

Violation of these provisions should be punished with a two years’ imprisonment and a fine of €30.000, to which may be added a ban on exercising the activity of influencer.

• Framework for the promotion of some products and services
  • The promotion of vocational training would only be allowed if are specified the nature of the funding of such training, the associated commitments and eligibility rules. The name of the provider responsible for the training and the provider referenced on the dematerialised service mentioned in Article L.6323-9 of the Labour Code must also be mentioned. 
  • Gambling^[11] and video games that can be assimilated to gambling, must indicate by a visible banner on the image or video during the entire promotion, that these games are reserved for adults and comply with the laws and regulations applicable to these games of gambling.
  • The promotion of sweet beverages or beverages with added salt or artificial sweeteners or manufactured food products must include health information, the content of which will be specified by a decree.

The penalties for non-compliance with these provisions should be one year of imprisonment and a fine of €4.500.

• The introduction of a label “Ethical Influencer”

Such label could be delivered to any legal entity contributing, as part of its activities, to the prevention of scams and abuses by influencers.

A decree will have to specify the terms and conditions of this new label.

* * *

The bill is currently being debated in the National Assembly and will then be examinate in the Senate.

Several changes are therefore still likely to occur.

---

[1] DGCCRF press release n°525 of January 23^rd, 2023.

[2] Recommendation on digital advertising communication, effective January 1^rst, 2022

[3] Law n°2020-1266 of 19 October 2020 aimed at regulating commercial exploitation of the image of children under the age of sixteen on online platforms (1)

[4] See Art. L121-2.3° of the Consumer Code

[5] Judicial Court of Paris, January 5^th, 2023, Case Addiction France / META

[6] Article 1 from the bill n° 1006 aimed at combating scams and abuses by influencers on social networks

[7] ARPP: “an individual expressing a point of view or giving advice, in a specific field and according to a style or treatment of his or her own, to an identified audience“.

[8] Paris Court of Appeal, Pôle 5, ch. 15, Feb. 10^th 2021 – n°19/17548: “A person active on social media, who by virtue of his or her status, position or media exposure could be a relay of opinion influencing consumer habits with a marketing aim.”

[9] Article L2133-2 of the Public Health Code

[10] Art. 2.B. of the bill: “Illicit and counterfeit products defined in Articles L. 716-9 to L. 716-11 of the Code of Intellectual Property”.

[11] As defined in Article L. 320-1 of the Internal Security Code and which fall more generally under Chapters II, IIb and IIc of Title II of Book III of the Internal Security Code

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.

Court of Cassation, Commercial Chamber, 19 October 2022, 21-18.301

In the field of distribution, the control exercised by suppliers over the methods and conditions of marketing their products by distributors is a key issue. This issue is all the more important in selective distribution, where the brand image of the products and their necessary protection require and justify a stricter control.

In this respect, the action for misleading commercial practices, formerly provided for in Article 121-1 of the Consumer Code and now codified in Article L. 121-2 of the same code, may constitute a relevant means of action in that it allows a company to act against a misleading act even if it is not perpetrated by a competing company.

Indeed, there are situations where companies outside a network, and sometimes even outside the market concerned, can cause damage to an image. This was the case in the present case, in which the Court of Cassation was asked to rule on the possibility for the promoter of a selective distribution network to bring an action for misleading advertising against a company that had advertised a website unlawfully marketing its products.

The facts go back to February 2010 : the France Télévisions TV channel had presented a site offering various perfumes for sale during its “Télé matin” and “C’est au programme” programmes. Some of the products sold by this site were part of the selective distribution network of the Coty company, which holds licences for luxury products of the Calvin Klein, Davidoff and Chloé brands.

As Coty had not given any approval to the company holding the site for the purposes of this marketing, it sued it for parasitism, unfair competition and misleading advertising, also invoking the joint and several liability of France Télévisions for the latter.

In a decision on referral after cassation of 9 June 2021, Chamber 5-4 of the Paris Court of Appeal found the company’s network to be lawful and concluded that there had been a breach of the prohibition on resale outside the network (on the basis of the former Article 442-6, I, 6°), as well as the characterisation of an act of unfair competition and parasitism by the company owning the site.

In addition to the liability of the owner company, the Court decided to hold France Télévisions jointly and severally liable for having indirectly participated in the damage caused to the network by promoting the site in question and engaging in misleading commercial practices through false advertising. It thus sanctioned the company for having led people to believe that it was possible to legally acquire products through the website, even though the said products were being resold illegally, regardless of whether the advertising was not commercial in nature and was not disseminated for profit-making purposes.

As a reminder, to qualify as a misleading commercial practice, it is necessary to show that the act in question causes confusion with another good, service or trademark, or that it is based on false or misleading claims, indications or presentations concerning the essential characteristics of a product. In the case of an undertaking other than the seller of the promoted products, this sanction may be applicable provided that it acts in the name of or on behalf of the latter (CJEU, 17 October 2013, Case No. C-391/12).

Consequently, a company engaged in journalistic activity such as France Télévisions could be held liable if it were to infringe a trademark in a proven manner and profit from it or engage in it for the benefit of a related company.

In this case, France Télévisions had no commercial link with the owner of the site and did not benefit directly from the advertising. The Paris Court of Appeal had therefore adopted a broad approach, considering that the site’s broadcasting gave the consumer the false impression that he could lawfully acquire products of the brands in question, and therefore constituted a misleading commercial practice, even in the absence of a profit-making purpose.

Following an appeal lodged by France Télévisions, the Court of Cassation partially annulled this decision for having retained the commercial nature of the message broadcast during the programme without demonstrating how it was promotional rather than informative.

Also, the decision was censured for having concluded that there was a misleading commercial practice without showing how the content of the remarks made by the presenter of the programmes could lead to confusion, presented false information or was likely to mislead on the essential characteristics of the products.

Thus, the Supreme Court confirms the possibility of engaging the liability of the author of an act of advertising relating to a company practising off-network resale. However, this action cannot be authorised solely on the basis of the illegality of the resale of the products in question and remains conditional on the fact that the conditions laid down for misleading advertising are also met with regard to the act of advertising itself.

Paris Court of Appeal, November 18^th, 2022, RG n°21/16539

The recent decision of the Paris Court of Appeal concludes the long legal saga concerning the “Morbier” PDO.

In this case, the “Syndicat interprofessionnel de défense du fromage Morbier” accused the “Société Fromagère du Livradois” of infringing the “Morbier” PDO and of committing acts of unfair and parasitic competition by marketing, under the name “Montboissier”, a cheese with the visual appearance of the product covered by this PDO, but not benefiting from it, by the presence of a dark line dividing the cheese horizontally.

The CJEU issued a ruling (CJEU, December 17^th, 2020, C-490/19), in which it noted that the protection of PDOs should no longer be understood as relating solely to the name, but that it can also relate to the appearance of the product, when it is particularly distinctive, which can mislead the consumer as to the true origin of the product.

The Court of Cassation (Cass. Com, April 14^th, 2021, n°17-25.822) followed the lessons of this decision, by censuring a decision of the Court of Appeal in which it was argued that the PDO regulation did not aim at protecting the appearance of a product or its characteristics described in the specifications.

In the referral decision rendered on November 18^th, the Court of Appeal had only to follow the rules laid down by the supreme courts.

Based on consumer surveys, the Court estimated that the public in the presence of “Montboissier” will have in mind, as a “reference image”, the cheese of the “Morbier” PDO.

It therefore considered that the dark central horizontal line constituted a reference characteristic of the “Morbier” PDO, and that the use of this distinctive characteristic, combined with the use of the shape and appearance of the PDO, constituted an infringement of the “Morbier” name.

Therefore, the use of the appearance of a product protected by a PDO could now be considered wrongful.

Lyon Court of Justice, April 5th 2022, RG n°1/11459

This case involves a dispute between a PGI and an earlier trademark. Under Article 14(2) of Regulation No. 1151/2012, the coexistence of a PGI and an earlier trademark presupposes the good faith of the trademark owner at the time of filing.

In this case, a company registered the semi-figurative mark “Louis Auvergne” in 1988. Believing that this mark evoked the PGI “Auvergne sausage / Auvergne dry sausage“, effective since 2016, the INAO and the “Consortium des Salaisons d’Auvergne” (CSA) sued this company.

The Court granted the requests of the CSA and the INAO. It condemned the company for infringement and cancelled the trademark for fraudulent registration with respect to products similar to those of the PGI.

To characterize bad faith, the Court based itself on the fact that the process of recognition of the PGI was already underway when the earlier trademark was filed, and, since the company was initially part of the group at the origin of the PGI, it was perfectly aware of it.

The Greek authorities reported to the European Commission the behavior of the Danish authorities, considering that they did not take any measures to stop the marketing of cheeses to third countries of the EU.

The Danish authorities considered that their practice was not contrary to EU law, as Regulation No. 1151/2012 would only apply to agricultural products marketed within the EU, and not in third countries.

It is true that, unlike the Wine Regulation (R. n°1308/2013) or the Spirits Regulation (R. n°2019/787), there is no provision in the Agricultural products Regulation (R. n°1151/2012) for the rules to also apply to exports.

However, the Court has remained in line with its case law, which aims to give maximum protection to geographical indications, and interprets the Regulation as broadly as possible, considering the literal terms of the text, but also its context and objectives.

Thus, the CJEU ruled that the Danish authorities, by failing to prevent and stop the illegal use of the “Feta” PDO to designate cheese that does not meet the specifications and exported to third countries, violate Regulation No. 1151/2012.

Paris Court of Appeal, December 17^th 2021 RGn°21/01247

The Director of the INPI (the French National Intellectual Property Office) rejected the registration of the word sign “Normindia” to designate alcoholic beverages.

The Court of Appeal confirmed the decision of the Director of the INPI. It ruled that the “Normindia” trademark was deceptive and infringed the previous PGIs “Cidre de Normandie”, “Cidre Normand”, “Eau-de-vie de Normandie”, “Eau-de-vie de poiré de Normandie” and “Pommeau de Normandie”.  

The Court applied Article L.711-3 of the Intellectual Property Code, as it read prior to the 2019 reform, which prohibited the registration of marks that are likely to deceive the public about the geographical origin of the product.

The Court of Appeal held that the products were similar, and that the sign “presents a strong visual, phonetic and intellectual similarity with Normandy [the French region] and constitutes an imitation, or at least an evocation, of this French region, to which the PGIs at issue refer“.

In addition, it is also held that the sign “Normindia” is likely to mislead the public on the geographical origin, insofar as it can be applied to products from another region than Normandy. It should be noted that since the 2019 reform, infringements of PGIs and PDOs are now absolute grounds for refusing to register a trademark.

(Civ. 1, August 31, 2022, n°21-13.080)

Article L. 221-1 of the French Consumer Code defines a distance contract as: “any contract concluded between a professional and a consumer, within the framework of an organized system of remote sale or provision of services, without the simultaneous physical presence of the professional and the consumer, by the exclusive use of one or more remote communication techniques until the conclusion of the contract.

The conclusion of a distance contract, as defined by the French Consumer Code, implies the application of a protective regime for consumers, both in terms of pre-contractual information and the right of withdrawal.

The qualification of a distance contract is at the center of the decision of the first civil chamber of the Cour de Cassation commented here.

In this case, in February 2017, a professional individual had contacted consumer individual in order to proceed with fitting out, furnishing and decorating an apartment. Several deposit payments were made and, in July 2017, the professional issued an invoice for the work carried out. The consumer sued for the restitution of amounts unduly paid and, in the alternative, for compensation.

The Douai Court of Appeal, in a decision dated January 14, 2021, rejected the request for cancellation of the contracts by rejecting the qualification of a distance contract on the grounds that the professional had not put in place an organized system of remote service provision.

An appeal was lodged against the judgment of the Douai Court of Appeal by the consumer. The consumer argued that the Court of Appeal, by rejecting the qualification of a distance contract, when it had noted that the contract had been concluded without the simultaneous presence of the parties and by the exclusive use of distance communication techniques, had violated article L. 221-1 of the French Consumer Code. It did not matter, according to the consumer that the professional practiced individually, outside of an organized system of distance service provision.

The Cour de cassation dismissed the appeal and reaffirmed the three cumulative criteria for qualifying a distance contract under Article L. 221-1 of the French Consumer Code. The distance contract must have been concluded: 1) by a professional and a consumer without their simultaneous presence, 2) by the exclusive use of one or more techniques of distance communication until the conclusion of the contract and 3) within the framework of an organized system of sale or provision of distance services.

The criteria being cumulative, the Cour de cassation validated the reasoning of the Court of Appeal which had rejected the qualification of a contract concluded remotely in the absence of an organized system of sale or provision of services at a distance despite the finding of the first two criteria mentioned above.

It remains to be clarified what exactly is meant by “organized system of distance selling or provision of services” in the absence of case law clarifying this concept.

Directive 2011/83/EU of 25 October 2011 on consumer rights has defined this as to “those schemes offered by a third party other than the trader but used by the trader, such as an online platform. It should not, however, cover cases where websites merely offer information on the trader, his goods and/or services and his contact details.“

This is a rare decision of the Cour de cassation dealing with the qualification of distance contracts and not with their regime; the significance of this decision being demonstrated by its publication in the Official Journal of the French Supreme Court.

The CNIL has included smart working surveillance in its priority control themes for 2022, along with commercial prospecting and the cloud. The priority themes represent one third of the controls carried out by the CNIL each year. Indeed, the tools for monitoring the work of smart workers have developed and the CNIL found it necessary to check the compliance of employers’ practices with the General Data Protection Regulation (GDPR).

Smart working is only a way of organizing work, and the employer has the power to supervise and control the performance of the tasks entrusted to the employee. But this new digital terrain and these new work tools necessarily impose new rules on the employer.

The devices implemented by the employer must remain proportionate to the objective pursued and must not infringe the employee’s rights and freedoms, for example his right to privacy. The employer must inform the employees and consult the staff representatives for transparency of the surveillance systems within the framework of a social dialogue. The Labour jurisdictions prohibit permanent surveillance, except in exceptional cases due to the specificity of the task performed by the employee. The CNIL therefore advises employers to give priority to monitoring the tasks performed rather than the working time, and to ask employees for regular reports in order to move away from constant surveillance.

The CNIL also reminds that if the employee uses personal tools for smart working, the level of security and confidentiality of personal data must be the same regardless of the equipment used. This can nevertheless make it difficult for the employer to access professional data, hence the need for the employer to properly frame the use of personal tools. Finally, regarding videoconferencing, the employer can only force an employee to activate his camera in certain specific situations such as an HR interview or a meeting with clients. To promote the protection of personal data, the CNIL encourages the use of tools allowing the blurring of the background when the camera is activated.

The CNIL will therefore carry out numerous controls on smart working this year, which may be carried out remotely, on site, on hearing, on documents in case of complaint from an employee or on its own initiative. The CNIL has the possibility to give formal notice to the controlled company to comply with the GDPR within a period of 6 to 12 months, to sanction financially or to withdraw certifications, reminders or injunctions under penalty payment. Finally, the CNIL may decide to make its decisions and sanctions public.

It is therefore necessary to be vigilant in the implementation of tools to control the work of the smart worker, and it is recommended to pay particular attention to the drafting of the texts framing smart working in this respect.

An employee hired by a company in 1970 became its Chief Executive Officer in 1990. He signed the minutes of the Board of Directors appointing him as a corporate officer, stating that he was “waiving the benefit of his employment contract and no longer being remunerated under it“. In 2014, he was revoked from his position as Chief Executive Officer, and the company deduced that he had resigned from the employment contract when the minutes were signed in 1990 and that he no longer had any link with the company. However, the employee maintained that this signature only suspended his employment contract and that at the end of his mandate, he became an employee of the company again. As such, he applied to the Labour courts to obtain judicial termination of his employment contract to the detriment of the employer.

The question is to know whether the mention in the minutes manifested a clear, serious and unequivocal will of the employee to terminate his employment contract, pursuant to the case law rendered under article L1237-1 of the French Labour Code, or whether it only resulted from the non-cumulation of the functions of corporate mandate and the functions of employee.

In a decision dated March 18, 2022 (Cass. soc. n°20-15.113), the Social Chamber of the French “Cour de Cassation” recalled that the employment contract of an employee invested with a corporate mandate exclusive of any subordination link is, in the absence of any contrary agreement, suspended during the time the mandate is exercised. On the other hand, if the person concerned is in a situation of legal subordination to the company, if his or her duties as an employee are clearly different from those as a corporate officer and if a separate remuneration is paid under the employment contract, the employee may combine a corporate mandate with an employment contract. This was not the case in this instance, as the principle was that the employment contract was suspended during the term of office. However, as the employee had declared that he was giving up his employment contract, had he thereby cancelled the suspension and resigned?

For the “Cour de Cassation”, the wording in the minutes is equivocal in that it can be considered as the sole application of the principle of non-cumulation of the corporate mandate and employee. Thus, it does not imply a waiver of the principle of suspension of the employment contract.

The position of the “Cour de Cassation” may seem questionable in view of the wording of the minutes, and calls for caution in order to ensure that the situation legally corresponds to the will of the parties.

The saga of the “Macron scale” seems to have been brought to an end by the two long-awaited decisions of the Social Chamber of the Cour de Cassation ruling in plenary session. The decisions rendered on May 11, 2022 (Cass. soc. May 11, 2022, n°21-14.490 and 21-15.247) confirm the legitimacy of this compensation scale for unfair dismissals.

The litigation related to the validity of the “Macron scale” was as follows: several French Labour Courts and “Cours d’Appel” refused to apply this legal compensation scale, which they considered to be contrary to article 10 of ILO Convention 158 and article 24 of the European Social Charter, which establishes the principle of “adequate” reparation of the damage suffered by an employee who has been dismissed without real and serious cause (see our Newsletters of September 2021, January 2020, June and February 2019 on this issue).

As a reminder, the “Macron scale” resulting from Article L 1235-3 of the French Labour Code introduced by the “Macron” ordinances of September 22, 2017, sets minimum and maximum amounts, expressed in months of gross salary, of compensation awarded to employees dismissed without real and serious cause, depending on the size of the company and their seniority.

This scale was challenged because of its very nature, which, according to some, necessarily prevents full compensation for the damage. The adequate indemnity was understood by the latter as an indemnity to be calculated in concreto according to the damage suffered as a result of the unfair dismissal.

It should be noted that the scale was determined on the basis of an average evaluation of damages awarded before 2017 by the “Cours d’Appel”. Moreover, as the scale is made up of a minimum and maximum amount for each year of seniority, the judge still has the possibility of adapting, within a predefined range, the amount of the compensation to make it adequate to the employee’s damage.

Opponents of the scale feared that it would make it easier for employers to consider dismissing an employee by knowing in advance what compensation they would have to pay.  The “Cour de Cassation” ruled on these different points, setting out its arguments in detail. The pattern is relatively the same in both judgments, except that in one case the employee relies on article 10 of the ILO Convention 158 to counter the scale and in the other case he relies on article 24 of the European Social Charter.

First, the High Court recalled that article 24 of the European Social Charter has no direct effect in domestic law in a dispute between individuals. Thus, the invocation of this article could not lead to the exclusion of the application of the provisions of article L 1235-3 of the French Labour Code. On the other hand, article 10 of ILO Convention 158 has direct effect.

These texts were invoked to remind the Court that the compensation must be adequate to the damage suffered by the employee. The Court specifies that the term “adequate” referred to in these articles means that the compensation for unfair dismissal must, on the one hand, be sufficiently dissuasive to avoid unjustified dismissal, and on the other hand, be reasonable to allow compensation for the unjustified loss of employment. The High Court assures that in this respect, the indemnity provided for by the “Macron scale” is adequate. To this end, it invokes two arguments: on the one hand, the exceptional situations in which the scale is set aside to allow for an even more adequate compensation, i.e. in cases of nullity of the dismissal; on the other hand, the dissuasive nature of the sums provided for by the judges’ ex officio application of the provisions of Article L 1235-4 of the Labour Code, which provides in certain cases for the reimbursement by the employer to the administration of the unemployment benefits paid to the dismissed employee, from the day of his dismissal to the day of the judgment, up to a limit of six months.

Thus, the role of the judge in this type of dispute is not to judge whether the compensation should be decided in concreto or on the basis of the scale, but to set the amount of this compensation, if any, within the range provided for in relation to the employee’s seniority. Thus, the “Macron scale” cannot be set aside except in case of nullity of the dismissal: the “Cour de Cassation” has finally decided after several years of legal uncertainty.

However, this does not take into account the report of the European Committee of Social Rights (ECSR), which monitors Member states’ compliance with the European Social Charter, which has just considered the “Macron scale” to be contrary to France’s international commitments, just as it had sanctioned similar legislation in Finland and Italy. This report, which is not expected to be made public until September, does not have any binding effect on French judges, but it could continue to fuel litigation in the courts.

The majority of platform workers are self-employed entrepreneurs who use one or more electronic platforms to carry out their professional activities. These include Uber drivers and Deliveroo delivery drivers, to name just two of the best-known platforms, but this business model is booming.

The French Labour Code attaches a presumption of non-salaried status to workers with a self-employed status.

Indeed, according to article L 8221-6 of the French Labour Code, natural persons registered in the various professional registers and directories are deemed to be non-salaried. However, this presumption can be reversed, leading to a reclassification of these self-employed workers as employees. This change of status is not trivial, and entails the application of all the rules of Labour law (paid vacations, right to strike, freedom of association, medical examination, minimum wage, regulated termination of the contract, taxes and social contributions on salaries, overtime or employer’s liability…). All these upheavals, which are in the interest of the worker and frighten digital platforms, depend on the existence of a subordination link between the platform and the workers. It is this link that case-law is trying to define more and more precisely, not without difficulty, through decisions of social and criminal courts. 

In five key decisions, French judges have outlined the clues that could lead to the reclassification of the status of platform workers as employees. This analysis allows employers to understand where the limits are not to be crossed concerning the directives, the control of the execution and the sanctions for the non-execution of the missions of platform workers.

On March 4, 2020, the Labour Chamber of the French “Cour de Cassation” recognized the existence of a subordination link in the “UBER case” (Cass. Soc. March 4, 2020, n°19-13.316). Indeed, the power of direction was characterized by the impossibility for the driver to choose his customers and by the incentive to remain constantly connected on the application subject to loss of access to the account in case of too frequent disconnection. The power of control was characterized by the algorithms predicting the route and tracking by geolocation. Moreover, in case of inefficiency, the driver sees the price of his trips reduced. Finally, the power of sanction was illustrated in the loss of access to the application for reasons “at the discretion of the UBER platform“.

In line with this decision, on June 24, 2020, the “Cour de Cassation” again characterized a subordination link in the “Take Eat Easy case” (Cass. soc. June 24, 2020 n°18-26.088). This judgment states that geolocation is a tool for monitoring the performance of workers. Moreover, the penalties implemented by the platform such as loss of bonus, summons or loss of access to the account are evidence of the characterization of a sanctioning power.

Judges do not automatically reclassify self-employed workers as employees and try to analyze each situation. Thus, on April 5, 2022, the “ClickWalker case” (Cass. Crim. April 5, 2022 n°20-81.775) reminded us in which case the subordination link cannot be characterized. On this platform, the workers can abandon their mission during its performance. The company has no means of control during the performance of a mission, it only checks the result in order to release the compensation in case of success, which, for the High Court, is the very principle of any commercial contract.

Similarly, on April 13, 2022, the Labour Chamber, in the “LE CAB case” (Cass. soc. April 13, 2022 n°20.14-870) recalled that the cluster of evidence ensuring an insertion of the worker in an organized service is not sufficient to demonstrate the existence of a subordination link. Here the Court states that geolocation and the evaluation of services are two things inherent to the services of platforms and therefore cannot constitute a power of control or sanction. This decision allows to redefine the level of control and sanctions that platforms can reach without risking to enter into the framework of subordination.

In opposition to these last two decisions of the Labour Chamber, the Criminal Court, on April 19, 2022, sanctioned the Deliveroo platform with the maximum penalty for concealed work, i.e. 375,000 euros for abuse of the workers’ self-employed status. This sanction was motivated by a set of indicators. In particular, it was emphasized that it was the platform that created the service offer and not the delivery person, and that there was a real operational framework in the form of a special outfit and invoicing elements provided by the company. Moreover, these workers are in a situation of economic dependence and do not have the means to work for other market players. Not to mention the problem of geolocation, which is synonymous with control by the platform. The Deliveroo company has appealed and denies the existence of any link of subordination between the platform and the independent workers. This decision is important, especially since the Court followed the opinion of the Labour Chamber of the “Cour de Cassation”, which it had consulted beforehand. The opinion was therefore shared by this social court, making the jurisprudential landscape even more fluctuating.

In the absence of a homogeneous definition of the status of platform workers by the courts, the legislator has been able to get around the problem of requalification by directly supervising platform workers and by ensuring that the latter, even if they do not qualify as employees, can have access to social dialogue. Thus, we can underline the creation, on April 21, 2021, of an Authority of Social Relations of Employment Platforms (ARPE) in charge of regulating the social dialogue between the platforms and the workers who are linked to them by a commercial contract. The ARPE organizes elections and training for platform workers’ representatives and protects them in the event of breach of contract. The goal is to negotiate with the platforms their right to better working conditions in the near future.

Applicable since March 31, 2022, French law n°2021-1018 of August 2, 2021, supplemented by questions and answers from the Ministry of Labour, Full Employment and Integration, strengthens the prevention of occupational risks and medical monitoring of employees while extending the definition of sexual harassment, in the Labour Code, to several behaviors with sexist or sexual connotations coming from a person or a group, concerted or not.

The employer must therefore update the internal regulations, which must include updated provisions on moral/sexual harassment and sexist behaviour. The employer must also ensure that it meets its safety obligation and continue to take the necessary measures to protect the physical and mental health of its employees.

With regard to risk prevention, the employer is required to assess the risks to which the worker is exposed as a result of the organization of his or her work, in association with the CSE, the occupational health referents and the occupational health and prevention services. In this line, French law requires to facilitate the traceability of the single document of evaluation of professional risks (DUERP). The successive versions of the DUERP will now have to be kept for 40 years on a dematerialized portal and the list of people who can access it will be extended. It should be noted that the CSE must now be consulted on the DUERP and its updates. According to the DUERP’s contributions, in a company with more than 50 employees, the employer will have to plan an annual risk prevention program adapted to the risks highlighted by this document.

The third subject addressed by this law is the medical follow-up of employees. By adapting existing medical check-ups and creating new ones, the idea is to allow for a smooth reintegration of the employee into his or her job or into a new position. Some preventive visits will make it possible to fight against the risks of disinsertion and to ensure that each employee is in his or her place in the company, that he or she is not overworked or overexposed to risks. It is with this in mind that the law creates a mid-career check-up, which is set out in article L 4624-2-2 of the French Labour Code. The employer will have to organize, at the initiative of the Occupational Health and Prevention Service (SPST), the employee or himself, a medical check-up for each employee reaching the age of 45 (or at another deadline set by branch agreement) or at the same time as any other medical check-up scheduled within 2 years before this deadline. During this visit, the occupational physician must verify the suitability of the employee’s position and state of health, taking into account exposure to risks. He or she will raise awareness of the challenges of aging and, following this visit, may request that the employee’s workstation or working hours be adjusted if necessary. The second new feature as of March 31, 2022 is the liaison visit, defined in article L 1226-1-3 of the French Labour Code. After a sick leave of at least 30 continuous or discontinuous days, the employee will be able to meet with his or her employer, remotely or in person, in connection with the SPST. This liaison meeting, organized at the request of the employee or the employer, will make it possible to consider the return to work under the best conditions to fight against the loss of employment, while informing the employee of his rights. It should be noted that the employer must inform the employee that he/she can request this service. Finally, a post-exposure visit, defined in article L 4624-2-1 of the French Labour Code, is provided for as soon as an employee who was specifically exposed to a risk stops being exposed to this risk before the end of his career. The employer must inform the Occupational Health and Safety Service of the cessation of exposure to a health risk justifying in-depth monitoring of the employee’s departure or retirement. The visit, if the SPST considers it necessary, is carried out with the occupational physician who analyzes the exposure to risks and gives the employee a report, which the physician will also place in the employee’s medical file for better follow-up. Post-exposure surveillance may also be set up if necessary.

The law on health at work also modifies the visits already in place within the company, making the pre-resumption visit earlier and the resumption visit reserved for the most risky cases. Indeed, the pre-resumption visit, referred to in article L 4624-2-4 of the French Labour Code, reserved for employees who have been off work for more than 3 months, becomes possible for all employees who have been off work for more than 30 continuous or discontinuous days. This pre-resumption visit may lead to a modification of the workstation. The resumption visit, referred to in article L 4624-2-3 of the French Labour Code, is now reserved for long sick leave, at least for non-work-related sick leave, and has been extended from more than 30 days to at least 60 days. The 30-day minimum remains unchanged for sick leaves due to an occupational disease or an accident at work.

The rules applicable to the information and prevention medical visit and to periodic medical visits have not changed.

In addition, the supervised trial, which already existed, is now regulated: this system, managed by the health insurance system, allows employees to request a test of their ability to return to their former position or to a new position. The supervised trial is subject to the opinion of the occupational physician, who judges if the procedure is useful.

Lastly, the Convention de Rééducation Professionnelle en Entreprise (CRPE), initially reserved for disabled workers, will be accessible, as of March 31, 2022, to disabled workers and to all employees declared unfit or at risk of being unfit.

Through this essential text, the employer certainly has new obligations, but the law on health at work will offer him a framed and organized help. Thus, we can underline the change of name of the occupational health services into “prevention and occupational health services” (SPST) supporting the preventive role of the organization and allowing a clear understanding of the objectives. The aim is to offer transparency of the tools for protecting the health of employees in the company.

The Waserman Act of 21 March 2022, which transposes a European directive of 23 October 2019 and aims to improve the protection of whistleblowers in France, comes into force from 1^er September 2022. For more information, we refer you to our three previous news posts on this topic.

This fourth and final post is about to the analysis of the consequences of this law in terms of criminal law and procedure, and in particular:

• The criminalization of reprisals from the point of view of discrimination: a new kind of discrimination has been introduced at the article 225-1 of the French Criminal Code. Discrimination based on the status of whistleblower, facilitator, or any person in connection with a whistleblower, whether a natural or legal person, is now punishable of 3 years imprisonment and a fine of €45,000.
• Increased repression against those who attack the whistleblower: the amount of the fine for dilatory or abusive proceedings against a whistleblower, known as the “gagging procedure“, has been increased to €60,000 (compared to €30,000 previously).

In addition, the penalty of posting or disseminating the criminal decision complete the main penalty, which has not been increased, of one year’s imprisonment and a fine of €15,000 for obstructing the transmission of an alert.

Furthermore, when criminal proceedings are initiated against a whistleblower with the aim of hindering his or her reporting, the whistleblower may now ask the criminal court to award him or her, at the expense of the civil party, an advance to cover the costs of the proceedings in order to ensure his or her defense, or to cover his or her subsistence. The judge may order investigative measures before making a decision on the matter. In any event, the judge may decide that the advance granted to the whistleblower is final, even if the whistleblower were to lose the case.

• The justifying fact of the whistleblower is reinforced:
  • The Sapin 2 law already provided for the criminal irresponsibility of the whistleblower for the disclosure of a secret protected by law in Article 122-9 of the Penal Code. The Waserman Act extends this non-accountability to cases where, in order to support his or her report, the whistleblower “withdraws, misappropriates or conceals documents or any other medium containing information of which he or she has lawful knowledge and which he or she reports or discloses under the conditions defined by the law“. The lack of criminal responsibility therefore applies to the author of the alert who has committed offences of theft, breach of trust or concealment, not in order to gain knowledge of the information but to be able to disclose it. It should be noted that the reform extends criminal liability to persons in the whistleblower’s entourage: accomplices, facilitators, natural persons linked to the whistleblower and legal entities controlled by the whistleblower. As these provisions are more favourable, they will be able to act retroactively (Cass. crim., 17 October 2018, n°17-80.485).
  • The establishment of civil irresponsibility in the event of an alert in good faith. Thus, from now on, persons acting in good faith at the origin of the alert will be exempted from the obligation to pay compensation, i.e. those who have “reasonable grounds to believe, when they proceeded to do so, that the alert or the public disclosure of the entirety of this information was necessary to safeguard the interests in question“. The whistleblower will therefore not be required to compensate for the harmful consequences of the disclosure, such as the moral or financial prejudice suffered by the natural or legal person targeted by the alert.

These innovations introduced by the European directive have the effect, on one hand of providing greater protection for whistleblowers and, on the other, of avoiding their isolation.

Cass. ch. mixte, March 25, 2022, n°20-17.072

Cass. ch. mixte, March 25, 2022, n°20-15.624

On March 25, 2022, two important decisions were rendered by the mixed chamber of the Court of Cassation concerning the compensation of victims of assault, attack or personal injury.

With these two rulings, the Court of Cassation confirmed the autonomy of two types of head of loss: (1) the damage of “anguish of imminent death” suffered by the direct victim and (2) the damage of “waiting and worry” suffered by the victim’s relatives.

These two heads of loss are not included in the Dintilhac nomenclature, which offer a classification of recoverable heads of loss in personal injury cases.

While it is established by case-law that this nomenclature is not limitative, the emergence of newhead of loss has been the subject of uncertainty and divergence between Courts.

In that respect, the imminent death anxiety of the direct victim as well as the worry suffered by the relatives have been the subject of numerous debates.

The two recent decisions rendered by the mixed chamber of the Court of Cassation are therefore benefic; they aim to unify the case-law by establishing the existence of two heads of loss and by defining their conditions.

The anxiety of imminent death is a distinct head of loss from the pain and suffering

French law permit to the heirs of a deceased victim to claim compensation for the damages suffered by the deceased and resulting from the cause of death (whether an accident or a crime).

Also, some claimants have attempted in the past to seek compensation for the specific harm of the anguish felt by the victim, who, in view of the seriousness of his or her injuries, becomes aware of the imminence of his or her own death.

A debate took place between the different chambers of the Court of Cassation: on the one hand, the 2^e civil chamber considered that the anguish of imminent death was necessarily compensated via the pain and suffering head of loss, aiming to compensate the victim for temporary physical and moral pain (Cass. 2nd civ, June 29, 2017, n° 16-17.228). The criminal chamber, on the other hand, considered that the anguish of imminent death should be compensated as separate head of claim (Cass. crim, 15 October 2013, n° 12-83.055). Finally, the 1^ère civil chamber had considered that the damage of imminent death anxiety could only be compensated separately if it had been excluded from the pain and suffering head of loss (Cass. 1st civ., 26 September 2019, n° 18-20.924).

The mixed chamber agreed with the position of the criminal chamber, unequivocally establishing the autonomy of the anguish of imminent death head of loss.

In this case, the victim of a stabbing was taken to hospital and died a few hours later. The Fonds de garantie des victimes des actes de terrorisme et d’autres infractions (FGTI) (Guarantee Fund for Victims of Terrorism and Other Crimes) complained that the Court of Appeal had upheld the claim for compensation for the loss of imminent death anxiety made by the victim’s heirs.

The Court of Cassation reminded the factual analysis carried out by the previous judges and implicitly recalled the conditions previously identified by case law to characterize such harm, namely (i) the occurrence of anguish subsequent to the event that caused the injuries and (ii) the victim’s state of consciousness (Cass. crim, May 14, 2019, No. 18-85.616).

The Court then clearly stated that “without compensating the same loss twice, the Court of Appeal allowed the claims for this specific loss ” and dismissed the appeal.

The autonomy of the damage of anguish of imminent death is thus confirmed by this decision of the mixed chamber.

Nevertheless, if the debate concerning the existence and autonomy of this head of loss seems to have been settled, uncertainties sustain regarding its conditions. For example, the question of the existence of such a damage in the event of the victim’s survival remains unresolved.

The prejudice of waiting and worry of the relatives is distinct from the bereavement harm (“prejudice d’affection”)

The second decision of the mixed chamber also enshrines the autonomy of another head of loss, and this time carefully define the conditions for it.

This “waiting and worrying” head of loss aims to compensate for the specific anguish suffered by the relatives of a direct victim who learns that the latter is or has been exposed to a danger or peril. It especially concerns the relatives of victims of terrorist attacks or collective disasters such as air disasters.

In this case, the daughter and grandchildren of a victim who died in the Nice attacks claimed compensation for their loss of waiting and worry. They emphasized that they had had no news of the victim for several days and had conducted numerous searches in hospitals, ignoring whether she was alive, injured or dead. The Paris Court of Appeal granted this request in a decision dated January 30, 2020 (CA Paris Pôle 2, chamber 4, January 30, 2020 – n° 19/02479).

The FGTI then appealed to the Court of Cassation, arguing that this loss was already included in the beravement, intended to compensate for the mental suffering experienced by the victim’s relatives.

The Court of Cassation adopts a step-by-step reasoning and begins by stating that: “The relatives of a person, who learn that this person is or has been exposed, on the occasion of an event, individual or collective, to a danger likely to affect his or her bodily integrity, feel concern linked to the sudden discovery of this danger and the uncertainty weighing on his or her fate.

The Court continues by considering that: “The suffering, which occurs prior to the knowledge of the actual situation of the person exposed to the peril and which arises from the expectation and uncertainty, is in itself constitutive of a prejudice directly linked to the contemporary circumstances of the event. “This damage, which occurs between the discovery of the event by the relatives and their knowledge of its outcome for the person exposed to the peril, is, by its nature and intensity, a specific damage which gives rise to a right to compensation when the direct victim has suffered serious injury or died as a result of this event.

Finally, the Court concludes as follows: “It follows from the foregoing that the loss of expectation and anxiety suffered by the indirect victims cannot be confused, as the Court of Appeal correctly held, with the bereavement harm, and is not related to any other head of loss compensating these victims, but constitutes a specific loss that is compensated independently. It follows that the Court of Appeal did not compensate the same loss twice, but allowed the claims for this specific loss of expectation and anxiety.

 The Court of Cassation has thus consecrated the autonomy of the waiting and worry damage of indirect victims, and defined its conditions, namely :

• An individual or collective event, a peril of a nature to harm the physical integrity: the mention of the “individual” allows to extend the scope of application of this head of loss and is not limited to collective disasters or terrorist attacks;
• A suffering occurring between the knowledge of the event and the knowledge of the real situation of the direct victim: this is a temporal criterion;
• A “serious injury” or death suffered by the direct victim as a result of the event.

This last criterion of “seriousness” may raise questions. On the one hand, it excludes compensation if the direct victim emerges from the event unscathed. The Court of Cassation thus seems to consider that the relief felt afterwards by the relatives would outweigh this damage of waiting and the resulting anguish. On the other hand, we can regret the highly subjective criteria of “seriousness of the injury” in case of survival of the direct victim, which risks giving rise to divergent interpretations according to the different jurisdictions.

In conclusion, these two decisions of the mixed chamber illustrate the evolving nature of compensation for personal injury and the need to delimit new heads of claim. More broadly, they are part of a search for a balance between the autonomy of certain general damages to allow for better compensation and the risk of “splitting” losses and allowing double compensation.

Cass. 2^ème civ, February 10, 2022

The consolidation date, corresponding to the date of stabilization of the victim’s condition, is a key notion in personal injury compensation. It permits to distinguish temporary and permanent damages and is also considered as the starting point of the limitation period to bring a claim for compensation.

If the consolidation date, as a medical concept, is in practice set by a medical expert, what happens in the absence of such a determination?

On February 10, 2022, the second chamber of the Court of Cassation made an interesting decision which reaffirm the discretionary power of the judge to determine the date of consolidation and which impact on the statute of time limitation.

In this case, the claimant was victim of a traffic accident at the age of 3, in 1985. A previous decision had ruled on compensation for his injuries in 1994. Several years later, a new medical assessment was ordered by the judge. The expert submitted his report on May 15, 2002.

The particularity of this case lies in the fact that the determination of the date of consolidation was not part of the missions entrusted to the expert, who had therefore not expressly deal with this issue.

On May 18, 2015, the victim, who was placed under guardianship, sued the insurer of the vehicle and the driver and claimed additional compensation. The Court of Appeal ruled that the claim was time-barred, considering that more than ten years had elapsed between the filing of the judicial expert report and the initiation of the legal proceeding.

The victim appealed to the French Supreme Court and criticized the previous decision for having judged that his claim was time-barred, although the medical expert’s report did not indicate a date of consolidation. He claimed that the time-limitation delay could only begin to run once its starting point had been notified and acknowledged by the victim, and that, failing this, no time-limitation could be invoked against him.

The Court of Cassation, after recalling that the legal claim for compensation of a personal injury is prescribed by 10 years from the consolidation date, referred to the reasoning adopted by the Court of Appeal.

The latter had indeed noted that the expert’s report mentioned that “the victim’s sequala condition was not likely to evolve favorably after the date of the expert’s examination and that it does not appear that this condition has worsened since then“. The Court thus concluded that these findings of the expert allowed the victim to understand that the consolidation had been achieved and set the starting point of the prescription period at the date of notification of the expert report, (namely May 15, 2002).

The Court of Cassation referred to the sovereign discretion of the trial judges and dismissed the appeal.

This reaffirmation of the discretionary power of appreciation of the judge and of the freedom he/she has regarding the medical expert report is always appreciable. This principle has been established by case law (for example: Cass. 2^ème civ, September 17, 2009 – n° 08-15.113). The judge is in no way bound by the opinion of the medical expert and remains free to rely on his/her own assessment.

In line with this discretionary and casuistic approach to the dispute submitted to it, the solution of the Court of Appeal, validated by the Court of Cassation, fixing the starting point of the limitation period at the date of filing of the report, seems rather pragmatic.

In this case, the opposite solution would have had the effect of indefinitely delaying the starting point of the limitation period, or even leaving it to the goodwill of the victim, who neglected to have recourse to medical expertise to determine the date of consolidation.

While the relatively long ten-year statute of limitations is primarily intended to protect the victim and facilitate compensation, the victim shall remain careful and proactive.

Law No. 2022-401 of March 21, 2022, known as the “Waserman” law, transposes the European directive of October 23, 2019 and strengthens the protective status of whistleblowers.

It modifies the definition of whistleblower, which is now as follows: “a natural person who reports or discloses, without direct financial compensation and in good faith, information concerning a crime, an offence, a threat or harm to the general interest, a violation or an attempt to conceal a violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of the law of the European Union, or of a law or regulation”.

This third post presents the contributions of the Waserman law, presenting the new elements that characterize the status of whistleblower:

Concerning the author of the alert, the reform extends the conditions for receiving the quality of whistleblower:

• Only a natural person can now be a whistleblower, which excludes legal entities such as associations for example;
• The whistleblower must not receive any “direct financial compensation“. This clarification precise the former provisions which stipulated that the whistleblower must be, more generally, “disinterested“;
• The condition relating to personal knowledge of the information revealed is removed, the whistleblower can disclose information that has been reported to him in the professional environment;
• Finally, the whistleblower’s entourage can benefit from protection. These are, on the one hand, the “facilitators”, i.e. the natural or legal persons of private non-profit law who provide assistance to the whistleblower; and on the other hand, any natural or legal person having a professional link with the whistleblower.

As regards the information revealed, the scope is extended to attempts to conceal a violation of an international commitment and to the violation of European Union law. The “serious and manifest” nature of the violation is no longer a condition. The classic exclusions of national defence secrecy, medical secrecy and lawyer-client secrecy are enriched with the secrecy of judicial deliberations, the secrecy of the investigation and of the judicial inquiry.

Regarding the proceeding of the alert, the hierarchy of reporting channels is simplified:

• First, the whistleblower can choose between the internal channel (the company or administration in which he or she works), and the external channel (the administrative or judicial authority, the professional order). The external channel must acknowledge receipt of the alert within seven days. A forthcoming decree will impose a three-month response period for whistleblowers and will specify the list of authorities competent to receive and process alerts;
• Then, public disclosure may occur if the alert is not processed by the external channel within the above-mentioned time limit, if there is a risk of retaliation, if there is a “serious and imminent danger“, or if there is an “imminent or obvious danger to the general interest” for information obtained in a professional environment.

Concerning the effects of whistleblowing, the reform strengthens the protection granted to whistleblowers:

• The whistleblower enjoys both civil and criminal immunity;
• Any person who attempts to prevent the reporting of a whistleblower is liable to a civil fine of 60,000 euros. In the event of legal proceedings for retaliation against the whistleblower or an attempt to thwart his or her reporting, the judge may grant the whistleblower an advance on legal costs depending on the respective economic situation of the parties and the foreseeable cost of the proceedings, or an advance to cover his or her subsistence when his or her financial situation has “seriously deteriorated” as a result of the reporting;
• The whistleblower can also benefit from psychological and financial support measures from external authorities.

The Waserman law will come into force on September 1, 2022, it being recalled that some of its provisions are subject to the subsequent publication of an implementing decree. We can already anticipate that this new framework for the status of whistleblower has multiple consequences in criminal law, which will be the subject of a 4th and final news post.