Maître Bénédicte RAJOT - Avocat au barreau de Lyon
Droit International et de l'Union européenne
➡ European and international law :
→ Covid-19: an insurer ordered for the first time on appeal to indemnify a restaurant owner
In a decision of the Court of Appeal of Aix en Provence, dated 25 February 2021, the judges decided that the insurer had to compensate the restaurant owner for his operating losses following the administrative closure of his establishment caused by the Covid-19 epidemic. The exclusion of cover clause, which is not sufficiently delimited, in accordance with Article L. 113-1 of the Insurance Code, and which deprives the essential obligation of cover of its substance, is deemed unwritten. In this case, the clause provided that the decision to close the business had to be the result of a "contagious disease" or "epidemic". The appeal judges noted the absence of a precise definition in the policy of the term "epidemic" and proposed the one taken from the general lexicon, as being "the result of the development and rapid spread of a contagious disease in a population". All of the above shows that the exclusion of guarantee clause was not based on precise criteria, nor did it set out restrictively enumerated hypotheses of application.
→ Internet sales: a risk-free contract for the consumer
In the context of a distance sale, the transfer of risk to the consumer takes place at the time of delivery, whereby the consumer or a designated third party takes physical possession of the goods sold.
In this case, in the judgment of the First Civil Chamber of the Court of Cassation of 3 February 2021 (No. 19-21.046), a contract for the sale of goods purchased over the internet was at issue which, having been lost in transit, could not be delivered to the consumer. While under ordinary sales law the transfer of ownership and, consequently, the transfer of risk, takes place on the day the contract is concluded, consumer law provides for a derogatory rule in favour of consumers contracting at a distance. In any event, it is clear that the solution adopted in consumer law is obviously favourable to the consumer.
Private international law
→ Establishment of filiation outside marriage
In the present case, in a judgment of the First Civil Chamber of the Court of Cassation of 16 December 2020 (No. 19-20.948), a man was sued for paternity by a woman of Moroccan nationality. The trial judges declared his action admissible in the name of his minor daughter, whose paternal filiation had not been established. To this end, they ordered a biological expertise. The alleged father appealed to the Court of Cassation, reproaching the judges of the court of first instance for having disregarded the normally applicable Moroccan law as contrary to international public policy and for having based their decision on the application of French law. According to the applicant, the judges should therefore not have set aside foreign law, which was the only law applicable to the dispute by virtue of Article 311-14 of the Civil Code, which makes the action to establish paternity subject to the national law of the mother on the day of the birth, in order to declare the application admissible, in application of French law, whereas filiation is governed by the personal law, in this case Moroccan, of the mother on the day of the birth and that this law only recognises filiation within the context of marriage. Answering the question of whether a foreign law that prohibits the establishment of filiation is contrary to French international public policy, the Court of Cassation unambiguously answers in the affirmative. Consequently, a foreign law which does not allow the establishment of filiation outside marriage must be rejected as contrary to international public policy when it has the effect of depriving a minor child of the right to establish his or her filiation.
European and European Union law
→ Unworthy detention conditions: condemnation of France for ineffectiveness of the compensation remedy
In a judgment of 19 November 2020, Barbotin v France (no. 25338/16), the European Court of Human Rights considers for the first time that the compensation remedy offered to detainees in case of unworthy detention conditions must be effective. Nevertheless, it condemned the low amount awarded to the applicant, which in this case deprived the remedy of its effectiveness.
In this case, the administrative court considered that the applicant had been detained for four months in unworthy conditions and ordered the State to pay him 500 euros for non-economic loss. However, the court declared that the expert examination of the cell was not valid and ordered the applicant to pay the costs of the examination, which amounted to 773.57 euros. As a result, the applicant found himself indebted to the State for the sum of EUR 273.57.
The complainant then appealed to the Strasbourg Court on the basis of a violation of Article 13, right to an effective remedy, and Article 3, prohibition of inhuman or degrading treatment, of the European Convention on Human Rights, considering that the small amount of compensation awarded to him and the fact that he had to pay the expert's fees had rendered the remedy for compensation ineffective. On the basis of the above articles, the Court ordered France to pay the applicant EUR 2,000 for non-pecuniary damage and EUR 1,500 for costs and expenses.
→ Religious beliefs and cross-border care
In the decision of the Court of Justice of the European Union, A v Veselibas ministriaja, of 29 October 2020 (C-243/19), the Court was confronted with a refusal to issue a form for the coverage of an open-heart operation for a heart defect with regard to the consideration of medical criteria alone. Indeed, this operation could be performed in Latvia, the State of residence, for Mr A's son. However, as a witness for Jevohav, the applicant wanted the operation to be performed in Poland, because of the lack of blood transfusion. The applicant then considered that Latvia's refusal constituted discrimination since other patients could receive reimbursed medical benefits without having to renounce their religious beliefs.
Therefore, can medical criteria be the sole justification for issuing a form for reimbursement of treatment in another Member State or should religious beliefs be taken into account?
The Court of Justice examined the question on the basis of Regulation 883/2004 and Directive 2011/24, and found that religious beliefs can justify the assumption of responsibility for a medical service in a Member State other than the State of residence. The refusal of authorisation by the State of residence does indeed constitute indirect discrimination on the basis of Article 21(1) of the EU Charter of Fundamental Rights. However, such discrimination may be justified if it is based on an objective and reasonable criterion such as medical planning or the maintenance of care capacity.
→ Intercountry adoption :
The Court of cassation (the highest court in the French judiciary) asserted, in a decision of March 18th, 2020 (n°19-50.031), that the procedure and the mechanisms provided by the Hague Adoption Convention of May 29th, 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, had to be checked, even if the legal conditions for adoption were met and this latter was in the best interests of the child.
In the present case, the Pointe-à-Pitre court had not checked whether the central authorities of the respective countries of the adopters and the adopted had intervened ahead of the procedure, in accordance with that convention, which provides that « […] where a child habitually resident in one Contracting State ("the State of origin") […] is to be moved to another Contracting State ("the receiving State") […] » (article 2.1), « the competent authorities of the State of origin [must establish] that the child is adoptable [and determine] that an intercountry adoption is in the child's best interests » (article 4). Furthermore, « the competent authorities of the receiving State [must determine] that the prospective adoptive parents are eligible and suited to adopt » (article 5). Finally, « a Contracting State [must designate] a Central Authority to discharge the duties which are imposed by the Convention upon such authorities » (article 6.1).
→ Residence right for the same sex partner of an EU citizen :
On June 5th 2018 (C‑673/16), the CJEU held that member states, while they retain the right to allow or not same-sex marriage, cannot oppose the recognition of such marriage validly celebrated in another member state which gives the partner without a European citizenship the right to permanent residence in the European Union.
→ Access by grandparents :
According to the European Court of Justice (ECJ, C-335/17, Valcheva vs/ Babanarakis), the notion of right of access (Brussels IIa Regulation) does not only refer to the right of access of parents to their child, but also to the one of other people with whom it is important for the child to maintain a personal relationship, among others the child’s grandparents.
→ Establishment of parentage in an international context :
A French decision (Civ. 1re, 24 mai 2018, n° 16-21.163) stated that the Judge cannot order a biological examination in the context of a paternity dispute without having first determined the applicable law, since the mother is of foreign nationality. The mother, born in Algeria, had the nationality of this country, so that, as it was inalienable rights, she had to apply the Algerian law.
→ Children's regular residence :
On June 28th 2018 (C-512/17), the CJEU clarified the concept of a child's "regular residence". On the basis of the article 8 of Brussels II bis regulation, to be « regular resident » of a State, a child has to be physically present in the State concerned. Whatever the circumstances of the childbirth, if the mother lives in the child’s birth country, whether or not forced by the father to do so; the violation of the mother and the child’s fundamental rights doesn’t affect the establishment of the child’s regular residence. It is up to the national jurisdiction to determine the child’s regular residence, in light of the situation.
→ Illegal moving of children :
A French decision (January 17th 2019; n°18-23.849) reminded the application’s terms of The Hague’s convention of October 4th 1980. The situation is: a separated couple, with two children, the father lives in DRC with his two children, DRC is the principal residence of the children; the mother lives in France. Due to signs of child abuse, the mother wishes to take the children to France. According to The Hague Convention of October 4th 1980, the moving of children is legal in case of child abuse is legal. However, as for he French Supreme Court, the DRC isn’t part of The Hague Convention of October 4th 1980. Therefore, this convention doesn’t apply to the case. Moreover, the French jurisdiction can’t take care of this case, because the DRC isn’t part of the EU and its legislative dispositions.
→ Residence permit :
(CJEU, KA affaire C-82/16 - May 8th 2018)
The European Court of Justice declares that the national of a nonmember country, member of European citizen’s family, can’t have his request of residence permit being automatically refused, on the basis that he had had an interdiction to enter the EU.
→ Recognition of refugee status :
According to the article 33 of the convention of July 28th, 1951 relating to the status of refugees and the articles L. 721-2 et L. 511-1 of the French Code of entry and residence of foreigner and the right of asylum, the Court of cassation asserted, in a decision of March 11th, 2020 (n°19-81.541), that the administrative authority couldn’t force a foreigner to leave French territory when he had obtained a refugee status.
In the present case, a man had received retroactively an order for escort to the border, the status of refugee. Consequently, the offense of evading the order was devoid of any legal basis.
Data & Protection
→ Data Protection (GDPR) :
On May 25th, 2018 came into force the new European Data Protection Regulation (Regulation 679/2016) which obliges all companies to clearly inform individuals of how they use their personal information. They are now able to retrieve their data free of charge and they will have to be immediately informed in the event of a data leak. Finally, if their personal information is abused, they can bring collective actions and obtain compensation (up to € 20 million or 4% of the turnover of the offending company).
Data concerned: any information relating to an identified or identifiable individual by a name, a number or a functional identification or any attempt to attribute him data. They concern private as well as work life, social relations, living and consumption habits, personal opinions.
→ Electronic signature :
Decree No. 2017-1416 of September 28th 2017 specifies the technical characteristics of the procedure provided for in Article 1367 of the Civil Code and considers that the reliability of the electronic signature created is presumed, until proven otherwise, when this method implements a qualified electronic signature namely advanced, in accordance with the Regulation of the European Union of 23 July 2014 (910/2014) relating to the electronic identification.
Exequatur and clauses conferring jurisdiction
Burkinabè Court’s decisions convicting a french company couldn’t be executed in France, because a clause conferred jurisdiction to French jurisdictions in the general terms and conditions of the contract, accepted by the burkinabes society. This decision was taken by the Court of Cassation on May 15th 2018 (Cass. 1re civ., 15 May 2018, No. 17-17.546).
CEDH advisory opinion
→ Entry into force of Protocol No. 16 to the European Convention on Human Rights :
Following its ratification by France on April 12th 2018, the Council of State, the Court of Cassation and the Constitutional Council may, as soon as it enters in force on August 1st 2018, to submit requests for advisory opinions to the European Court of Human Rights on questions of principle concerning the interpretation or application of the rights and freedoms defined by the Convention or its protocols. All this will take place in the context of cases brought before those courts and the opinion given by the ECHR will be reasoned and not binding.
→ Right of withdrawal in credit contracts :
The Court of Justice of the European Union (CJEU) asserted, in the case JC v Kreissparkasse Saarlouis (C-66/19) of March 26th, 2020, that the calculation methods for the withdrawal period had to appear, in the consumer credit agreements, clearly and concisely.
Indeed, the article 10, paragraph 2 of the directive 2008/48/EC of the European Parliament and of the Council of April 23rd 2008 provides that « the credit agreement shall specify in a clear and concise manner : […] p) the existence or absence of a right of withdrawal, the period during which that right may be exercised and other conditions governing the exercise thereof […] ». The article 14, paragraph 1, subparagraph 2 of this same directive adds that « that period of withdrawal shall begin (a) either from the day of the conclusion of the credit agreement, or (b) from the day on which the consumer receives the contractual terms and conditions and information in accordance with Article 10, if that day is later than the date referred to in point (a) of this subparagraph. ».
Furthermore, the CJEU added that a credit agreement shouldn’t make, as regards the information referred in the article 10 of the directive, reference to a national provision which would refer itself to other legislative provisions of the member State in question.
→ Contract about both property for occupational use and personal property :
(CJUE, SCHEMES c/ Facebook- C-498/16 - January 25th 2018)
Someone who concluded a contract about a property destined to a professional aim but also to a non-professional aim, hasn’t the right to benefit of the specific competences’ rules written in the Brussels Convention. This, except if the professional use is negligible, to the point its role is negligible in the context of the operation.
→ Social security :
Applying the principles of uniqueness of affiliation and attachment of the worker to the legislation of the Member State with which he carries on business, the Court of Cassation ruled, in a judgment rendered on March 18th 2018 (No. 17-21.991), that a person residing in France and affiliated to the compulsory health insurance in Switzerland in respect of the activity which he carries on in that State could not be affiliated to the French social security scheme or should be removed from it as soon as she asks for it, regardless of the priority of her affiliation to the French regime.
→ Weekly day of rest :
On November 9th 2017 (C-306/16), the CJEU attested that the weekly rest’s day must not necessarily be granted after every 6 consecutive working days’ period, but must be granted inside a 7 days’ period. Therefore the employee will be able to benefit of 2 rest days in the end of the 7 days’ period. The CJEU adds that any State might initiate a more favorable regime for the employee.
→ Illegal discrimination :
(CJEU, September 11th 2018, n° C-68/17)
The European Court of Justice declares that the dismissal of a chief doctor by a German catholic hospital because of his divorce and his remarriage, constitutes an illegal discrimination based on religion.
→ Consequences of dual nationality in case of “renvoi” :
The EU Regulation on international succession of July 4th 2012, provides that the law of the usual residence of the deceased will apply to the whole succession. The French judge that heard a case about a deceased woman of French and Spanish nationality owning properties in France and Spain, declined competence for the goods located in Spain, because the Spanish law applicable for the real estates located in Spain provides that the succession is governed by the national law of the deceased and when a person holds dual citizenship, French nationality shall prevail, engendering the acceptation of the reference made by the Spanish law. The Court of Cassation cancelled this decision which took precedence over the French law with regard to bi-nationals, whereas in the meaning of the Spanish civil code, the national legislation of connection, should have been determined according to the Spanish legislation (Civ. 1re, May 15th 2018, No 17-11.571).
→ Environmental Damages :
In Costa Rica v. Nicaragua, rendered on February 2nd 2018, the International Court of Justice (the principal jurisdictional body of the United Nations), recognizes the compensability of environmental damages, due to the material damage that Nicaragua has caused by illegal activities in Costa Rica.
→ European arrest warrant :
In the present case, the judicial authorities had issued a European arrest warrant against a Franco-Algerian residing in Spain for a prison sentence pronounced by the Court of Appeal of Rome. The person concerned invoked his French nationality (Article 695-24 2nd of the Code of Criminal Procedure).The French judges argued that the cases of non-delivery provided by the article of the Criminal Procedure Code in question were optional and it would be easier for his wife and daughter residing in southern Spain to visit him in Italy. The French Court of Cassation overturns the judgment and explains that the decision of the judges should have stated an answer before anything of the prosecutor of the Republic on the question of whether he intended to recognize the Italian decision of conviction as enforceable in the territory pursuant to Article 728-42 of the Code of Criminal Procedure.
➡ French law :
Fundamental Freedoms - Human Rights
→ GPA and lack of biological link to the child
Two Icelandic women had resorted to surrogate motherhood (GPA) in California in 2013. When they returned to Iceland, they applied to have the child registered and recognised as their son. GPA is prohibited in Iceland, so they had their applications rejected. The European Court of Human Rights, in a judgment Valdís Fjölnisdóttir and others v. Iceland, of 18 May 2021 (no. 71552/17), considered that the refusal to recognise as parents an Icelandic couple with no biological link to the child did not constitute a violation of the right to respect for private and family life, within the meaning of Article 8 of the European Convention on Human Rights.
Civil liability law
→ Liability due to product defect: conditions for exoneration of the producer
According to the decision of the First Civil Chamber of the Court of Cassation, dated 2 June 2021 (No. 19-19.349), the electricity producer is liable for the damage caused due to the defectiveness of the product, without being able to rely on the fault of the victim who, although having aggravated the damage, did not contribute in any way to its occurrence. In this case, a fire had destroyed the house inhabited by a couple. After obtaining the appointment of a judicial expert to determine the causes of the fire, they sued their electricity supplier for liability and compensation, which was declared liable for 60% of the damage on the basis of liability for defective products.
In accordance with Article 1245-12 of the Civil Code, according to which the producer's liability may be reduced or eliminated, taking into account all the circumstances, when the damage was caused jointly by a defect in the product and the victim's fault, the Court of Cassation overturned the decision of the trial judges, who, to limit the defendant's liability to 60% of the damage after having held that the fire was caused by a power surge in the electrical network attributable to the defendant, the Court of Appeal quashed the decision of the trial judges who noted that the plaintiffs had also committed a fault by installing a dangerous "recloser" on their private network that did not comply with the regulations in force, the presence of which had been an "aggravating" factor in the damage. In ruling that it was clear from its findings that the fault attributed to the victims had not caused the damage and had only aggravated it, the court of appeal violated the above-mentioned text.
→ No hazard, no insurance
In the present case, a private individual acquired a vehicle by means of a lease contract with an option to purchase, taken out on 20 September 2012. A few months later - on 25 May 2013 - the purchaser took out an insurance policy covering, among other things, his total incapacity to work and assigned to the lease with option to purchase contract. The buyer then sued the seller and the insurer for payment of a sum representing the monthly instalments of the loan paid during his period of incapacity. The Court of Appeal upheld the claim on the grounds that the insured, suffering from a right knee sprain, had been off work since 18 February 2013, that this condition had been consolidated on 11 September 2014 and that the insured had been off work again since 12 September 2014. The trial judges noted that, in order to oppose coverage, the insurer argued that the insurance contract, which is by nature uncertain, cannot cover a risk that the insured knows has already occurred. However, they added that the insurer had not requested the nullity of the insurance contract, so that this request was not before the court.
The Second Civil Chamber of the Court of Cassation, in a judgment handed down on 6 May 2021 (no. 19-25.395), censured the decision of the lower courts in its entirety. Referring to Article 1964 of the Civil Code, in its wording prior to that resulting from the Order of 10 February 2016, which was applicable to the case, it recalled that 'under the terms of this text, an aleatory contract is a reciprocal agreement whose effects, in terms of benefits and losses, either for all the parties, or for one or more of them, depend on an uncertain event. Such is the insurance contract" (pt. 4). The Second Civil Chamber concluded that by ruling as it had done, "whereas in the absence of a hazard, on the day of the adhesion, concerning one of the risks covered by the insurance contract, the guarantee relating to it could not be retained, the court of appeal, which noted that the first work stoppage had begun on 18 February 2013, before the date of adhesion, did not draw the legal consequences from its own findings" and violated Article 1964 (old) of the Civil Code (pt 6).
→ Application of the adage fraus omnia corrumpit in surety law
The Commercial Chamber of the Court of Cassation, in a decision dated 24 March 2021 (No. 19-21.468), decided that fraud could have an impact on the assessment of the proportionality of the surety bond. The same chamber of the Court of Cassation, on 5 May 2021, added to the lessons learned from its previous decision by ruling that fraud has an equal influence on the nullity incurred in the event of irregularities in the handwritten information required for the validity of the guarantee. It follows from the principle of fraus omnia corrumpit that fraud committed by the guarantor in the drafting of legal handwritten information, prescribed by several texts of the Consumer Code on pain of nullity of the deed, prohibits the guarantor from relying on these provisions to free himself from his commitment.
Although the guarantor is largely protected by the legislator, particularly in consumer law, the general scope of the adage fraus omnia corrumpit places a necessary limit on the extent of this protection, which must cease to benefit the guarantor when the latter attempts, as in this case, to exploit it for fraudulent purposes.
→ Accepting a disciplinary demotion is not the same as approving the sanction
In the case of the judgment of 14 April 2021 (no. 19-12-180), handed down by the Social Division of the Court of Cassation, an employee was offered a disciplinary demotion. Initially a heritage manager, he was offered, subject to his agreement, to become a librarian with a reduction in pay of approximately 700 euros per month. However, if he refuses, the employer reserves the right to resume the procedure and consider dismissal. The employee signs the rider for a disciplinary demotion. However, he then brought the matter before the industrial tribunal and requested the cancellation of this sanction and his reinstatement in his initial position. The first judges agreed with him, but the Court of Appeal dismissed the case on the grounds that he had accepted the proposed sanction with full knowledge of the facts and was therefore no longer entitled to contest it. In other words, for the trial judges, accepting the demotion was tantamount to pleading guilty. The Court of Cassation very logically censured this reasoning. Acceptance of a change in the contract cannot be equated with approval of a sanction. The employee's acceptance of the amendment to the employment contract proposed by the employer as a disciplinary sanction does not imply a waiver of the right to contest the regularity and validity of the sanction.
Fundamental freedoms - Human rights
→ Clarification on the recognition of a legitimate interest in changing a name
As an essential element allowing the identification of persons, the name is in principle immutable. However, the rule of immutability of the family name is not an absolute rule.
In this case, the problem concerned the interpretation of Article 61 of the Civil Code, according to which: "Any person who can justify a legitimate interest may request a change of name / The request for a change of name may be intended to avoid the extinction of the name borne by an ascendant or collateral of the applicant up to the fourth degree / The change of name is authorised by decree. ". A man wanted to add his maternal grandmother's surname to his family name so that his name would not be extinguished. The administrative court and the administrative court of appeal granted his request, but the Council of State has just decided otherwise and clarified the notion of recognition of a legitimate interest in the change of name. In this case, the question arose as to whether the prevention of the extinction of a name, accepted as a legitimate reason, should apply only to a French name? In other words, must at least one of the ascendants have had French nationality? The Council of State
Considered, in a decision dated 28 May 2021 (no. 441856), that "the legislator, having in mind the preservation of the French onomastic heritage, intended to make the recognition of a legitimate interest in a change of name subject to the condition that the name to be changed must have been borne by a person possessing French nationality. Consequently, the case was referred back to the administrative court of appeal.
→ PACS and economic assistance
The First Civil Chamber of the Court of Cassation, dated 27 January 2021 (No. 19-26.140), decided that, given the obligation of material assistance between PACS partners, the full repayment, by only one of the partners, of two loans taken out by each of the members of the couple to finance the acquisition of the undivided family dwelling, does not confer on the one who proceeded alone to the settlement a right of claim against the other.
→ Fraudulent acknowledgements of paternity or motherhood :
The Asylum and Immigration Act introduced two new measures to combat fraudulent paternity or maternity recognitions before an act of recognition is established: the obligation for any person wishing to establish a relationship of parentage by recognition to present proof of identity and domicile and the possibility for the prosecutor of the Republic to suspend or oppose recognition.
A circular from the Department of Justice states that these provisions aim to strengthen the fight against various cases of fraud such as the recognition of a foreign national’s minor child by a French national (recognition allows the child to be granted French nationality and a residence permit as a parent of a French child) and also, recognition may be made so that a mother or father can receive social benefits, for themselves and/or for the child.
→ Transcription of the civil status of birth certificates :
The 20th of March 2019, in two cases (Cass. 1ère civ., 20 mars 2019, n°18-11.815, n°18-50.006 et Cass. 1ère civ., 20 mars 2019, n°18-14.751, n°18-50.007), a question of parent of intention was asked. These questions follow up on the Mennesson case, in which the Plenary Assembly of the Court of Cassation referred to the new Protocol number 16 at the European Convention of Human Rights to address a request for an advisory opinion on 3 questions relating to the “maternity of intent”.
In both cases, the first civil chamber held that, despite the fact that the questions asked by the appeals were not identical, since the transcriptions on the registers of the civil status were requested, a birth certificate designating a man as a “parent of intention” in the first case, and foreign birth certificates of children conceived by medical assistance in procreation and not after a surrogacy in the second case, they, nevertheless, have a “sufficiently close link with the issue of “intention motherhood” to justify of proceedings pretending the opinion of the European Court of Human Rights and the decision of the plenary assembly to intervene”.
→ Civil registration of a child born by surrogate motherhood :
On October 5th 2018 (n°10-19.053), the French Supreme Court confirmed that the birth certificate of a French child born abroad, elaborated in a foreign country, and transcribed on the civil registrar; is legal to the extent that it reflects the reality of the situation. This ruling is based on article 47 of the French Civil Code; article 7 of the August 3rd 1962 decree; article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
→ Adoption of a child born by surrogate motherhood :
The evolution of the case law today makes it possible to recognize a status for children born of surrogacy abroad. On this issue, a new procedure for the review of court decisions on the status of persons is instituted following a conviction of France by the European Court of Human Rights. This appeal will make it possible to benefit all the children born of surrogacy abroad, whatever their date of birth, evolutions of the jurisprudence of the Court of Cassation (Cass, 1re civ, July 5th 2017, No. 15 28 597). The same judgment recognizes that a child born abroad as a result of surrogacy may be adopted by the biological father's spouse. It follows from this case law that the simple adoption of a child born as a result of surrogacy by the spouse of the biological parent is now possible. Full adoption remains uncertain.
On October 1st 2016, the law obligations' reform came into force.
→ Punitive Damages Reform :
The practice of punitive damages is currently prohibited in French law. The judge cannot therefore increase the amount of the damages in view of the seriousness of the fault. This solution may be subject to change since some of the draft laws of the law provide for the introduction of punitive damages in French law, particularly in the so-called "lucrative fault" hypotheses. The last project presented by the Chancery in March 2017 turned to the technique of civil fines, provided for in Article 1266-1, which states that "In extracontractual matters, when the person who committed the damage deliberately committed failure to obtain a gain or an economy, the judge may condemn, at the request of the victim or the public prosecutor and by a specially motivated decision, the payment of a civil fine”.
→ IDD Directive :
Ordinance No. 2018-361 on the distribution of insurance, published in the Official Journal of May 17th, initiates, in French law, the transposition of Directive (EU) 2016/97 of the European Parliament and of the Council of January 20th 2016 on the insurance distribution, known as the "IDD" directive. The ordinance transposes the IDD Directive and will enter into force on October 1st 2018, with the exception of the provisions on continuing education for insurance and reinsurance intermediaries, which will enter into force on February 23rd 2019. Based on the principles of the IDD Directive, the ordinance is made up of three chapters, the first relating to the amendments to the Insurance Code, the second to amendments to other codes (Consumer Code, Monetary and Financial Code, Code of Mutuality and Social Security Code) and the third concerning the final provisions.
→ Labour law’s reform :
According to the government, this reform aims at giving more equality, freedom and safety to employees and executives, by a reinforcement of the social dialogue. This reform implies several subjects: compensations in labour lawsuit; resignation’s compensation; personnel representatives; drudgery; teleworking; resignation; unemployment; etc.
This reform is based on 5 ordinances.
→ Employment contract :
A French decision (Civ. 1re, November 28th 2018, n°17-20079) stated that someone who works as a delivery man for « Take eat easy », shouldn’t work anymore as a self-employed person, but as an employee. There is a subordinate relationship between the delivery man and the company, which applies to the qualification of a contract of employment.
→ Severance pay's scale :
Two French decisions (December 21st 2018; January 7th 2019) of Lyon industrial tribunal stated that, according to the European Social Charter, and the article 10 of the ILO’s convention 158, the severance pay’s scale introduced in 2017 is unconventional.
Other decisions of the same kind lately appeared in France. For example, in Troyes (13 décembre 2018) and Amiens (19 décembre 2018).