Tag: France

French Insider Episode 12: Navigating the Metaverse with Jim Gatto [PODCAST]

Joining host Sarah Aberg is Jim Gatto. Jim joins us today to discuss the metaverse, the technology and business models involved in these virtual worlds, the role of NFTs and cryptocurrency in the digital economy, and the legal, regulatory, and governance issues that can arise when companies seek to enter that space.

Jim Gatto is a partner in Sheppard Mullin’s Washington, D.C. office, where he leads the  Blockchain & Fintech Team, Social Media & Games Team, and Open Source Team. Jim’s practice focuses on blockchain, interactive entertainment, digital art, AI, and online gambling. He advises clients on IP strategies, development and publishing agreements, licensing and technology transaction agreements, and tech regulatory issues. Jim has been involved with blockchain since 2012 and has been recognized as a thought leader by leading organizations including as a Cryptocurrency, Blockchain and Fintech Trailblazer by the National Law Journal.

Sarah Aberg is special counsel in the White Collar Defense and Corporate Investigations Group in Sheppard Mullin’s New York office. Sarah’s practice encompasses litigation, internal investigations and white collar defense.  Her areas of focus include financial services and securities, as well as corporate fraud in a variety of industries, including technology, construction, and non-profits.  Sarah’s regulatory practice encompasses market regulation, foreign registration and disclosure requirements, supervisory procedures, and sales practices.  Sarah represents corporations, financial services companies, and associated individuals in connection with investigations and regulatory matters before the U.S. Department of Justice, the Securities and Exchange Commission, the Commodity Futures Trading Commission, FINRA, the New York Stock Exchange, the New York State Department of Financial Services, and the New York Attorney General’s Office.

What We Discussed in This Episode:

  1. What is the Metaverse?
  2. How Do Metaverses Differ from Earlier Virtual Worlds?
  3. What Role Do NFTs Play in the Digital Economy?
  4. Investing in a Metaverse: What are the Risks?
  5. What are Legal, Regulatory, and Tax Considerations?
  6. What Governance Issues Exist for Brands Operating in a Metaverse?
  7. What are the Inflationary and Deflationary Aspects of the Virtual Economy?
  8. How Might Blockchain and Cryptocurrency Alter International Financial Transactions?
  9. Is the World Moving into a Virtual/Digital Economy?

Article By Sarah E. Aberg and James G. Gatto of Sheppard, Mullin, Richter & Hampton LLP

For more technology and internet legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

Pardon My French: France Wins Trademark Dispute Using Sovereign Immunity

The US Court of Appeals for the Fourth Circuit reversed a district’s court denial of sovereign immunity under the Foreign Sovereign Immunity Act (FSIA) and remanded the case to be dismissed with prejudice, holding that France was immune from a trademark infringement claim in the United States brought by the former owner of the domain name France.com. France.com, Inc. v. The French Republic, Case No. 20-1016 (4th Cir. Mar. 25, 2021) (Motz, J.)

Jean-Noel Frydman and his company France.com, Inc. (collectively, Frydman) purchased and registered the domain name France.com and trademarked the name in the United States and in the European Union. In 2015, the Republic of France (RoF) intervened in an ongoing lawsuit between Frydman and a third party, asserting the exclusive right to the use of the term “France” commercially. The RoF also insisted that the use of “France” by a private enterprise infringed on its sovereignty. The Paris District Court agreed and ordered the transfer of the domain name to the RoF.

Frydman filed suit for trademark infringement, expropriation, cybersquatting and reverse domain name hijacking, and federal unfair competition in a Virginia district court against the RoF. The RoF moved to dismiss the claim based on the FSIA. The district court denied the motion, stating that the FSIA immunity defense would be best raised after discovery. The RoF appealed.

The Fourth Circuit first determined, based on Supreme Court precedent, that sovereign immunity was a threshold question to be addressed “as near to the outset of the case as is reasonably possible” and not to be postponed until after discovery.

The Court next considered whether the RoF was immune to suit. The FSIA provides a presumption of immunity for foreign states that can only be overcome if the complaint provides enough information to satisfy one of the specified exceptions. Frydman argued that the commercial activity and expropriation exceptions applied.

The commercial activity exception removes immunity where a foreign state has commercial activity in, or that has a direct effect in, the United States. Essentially, a court must determine whether the actions of the foreign state are those of a sovereign or those of a private party engaged in commerce. The Fourth Circuit first identified that the actual cause of the injury at issue to Frydman was the French court’s ruling that the domain name belonged to the RoF, and found that all claims of wrongdoing by the RoF flowed form the French court’s decision. Additionally, even if it was solely the transfer of the domain name that harmed Frydman, and not the French court’s judgment, the transfer was still based on the French court’s judgment that provided the basis for RoF to obtain the domain name. Because the cause of action was based on the powers of a sovereign nation (the foreign judgment) and not the actions of a private citizen in commerce, the Fourth Circuit found that the commercial activity exception did not apply.

The Fourth Circuit next rejected Frydman’s assertion of the expropriation exception. This exception applies when property is taken in violation of international law that is present in the United States for commercial activity by a foreign state or owned by a foreign agency. The Court first stated that it is unclear whether French judicial decree would be considered an expropriation under the FSIA. Even if it was, however, Frydman did not identify any international laws that were violated, the Court noted. The Court reasoned that because Frydman invoked the power of the French courts in litigation against a separate party, it gave the RoF the right to intervene in the action and take ownership of the domain.

© 2021 McDermott Will & Emery

ARTICLE BY Joshua Revilla of McDermott Will & Emery
For more articles on trademarks, visit the NLR Intellectual Property section.

COVID-à manger: COVID-19 Takes a Bite out of French Lunch Traditions

The COVID-19 pandemic has changed dining habits across the world, as governments have shut down and restricted indoor and outdoor dining.  Even where restrictions have eased, many avoid sit-down dining out of concern for COVID-19 exposure and rely on take-away for their restaurant meals.  Clearly, the COVID-19 pandemic has limited dining options.

France, however, has decided to provide workers with a new, previously forbidden, dining option, although it remains to be seen how palatable it will be to French employees.  The Labor Ministry has decreed that to contain the spread of COVID-19, French workers now may eat lunch at their desks, which prior to the pandemic, Article R.4428-19 of the French Labor Code prohibited.

Gathering around a table for lunch with friends and colleagues has been long-standing French tradition, reflecting the country’s customs, habits and tastes.  The decree is intended to allow workers to return to the workplace and still limit the spread of COVID-19, by permitting them to lunch alone at their own workspace.  Until now, employers that allowed employees to eat lunch at their desks were subject to a fine, if caught, and employees who ate at their desks faced unspecified disciplinary action.

The French government has long been active in imposing regulations to prevent employers from exploiting their workers and in protecting workers’ rights, such as by imposing a 35-hour workweek, implementing the “right to disconnect” and mandating lunch hours.  Workers have become accustomed to dining out for lunch, and traditionally consider this time away from their work stations as an opportunity to refresh their bodies and minds prior to returning to work for the afternoon.  This simply is part of the French concept of maintaining a proper work-life balance.

While the French government continues to encourage remote work wherever possible, the new measure reflects the government’s effort to encourage businesses to reopen, where they can, with measures in place that will protect employees’ workplace health and safety.  Allowing workers to eat lunch at their desks offers workers and their employers a safer dining option, though arguably at the expense of traditional French cultural norms.  It is yet another example of how the COVID-19 pandemic has challenged, and changed, customary workplace standards.

©2020 Epstein Becker & Green, P.C. All rights reserved.

ARTICLE BY Erika C. Collins and Ryan H. Hutzler of Epstein Becker & Green, P.C.
For more, visit the NLR Global law section.

Employee Video Surveillance: Position of the European Court of Human Rights

On October 17, 2019, the European Court of Human Rights (ECHR) approved the installation of a Closed-Circuit Television (“CCTV”) surveillance system which was used to monitor supermarket cashiers without informing those employees of the fact that it had been installed.

In this case, a Spanish supermarket manager decided to install cameras in the supermarket because of suspected thefts. He installed (i) visible cameras pointing at the supermarket’s entrance and exit of which he had informed the staff and (ii) hidden cameras pointing at the cash registers of which neither employees nor staff representatives had been informed.

The hidden cameras revealed that thefts were being committed by several employees at the cash registers. The concerned employees were dismissed. Some of them brought an action before the Spanish Labor court arguing that the use of CCTV without their prior knowledge was a breach to their right to privacy and that such evidence could not be admitted in the dismissal procedure.

Like French law, Spanish law requires the person responsible for a CCTV system to inform the concerned employees of the existence, purpose, and methods of the collection of their personal data, prior to implementation of the system.

The case was brought before the ECHR, which gave a first decision on January 9, 2018, concluding that Article 8 of the European Convention for the Protection of Human Rights, relating to the right to privacy, had been breached. The case was then referred to the Grand Chamber.

The issue raised was to find the proportionality and the balance between (i) the reasons justifying the implementation of a CCTV system (i.e., the right of the employer to ensure the protection of its property and the proper functioning of its business) and (ii) the employees’ right to privacy.

The ECHR stated that “domestic courts must ensure that the introduction by an employer of surveillance measures that infringe the employees’ privacy rights is proportionate and is implemented with adequate and sufficient safeguards against abuse”, referring to its previous case law [1].

The ECHR considered that in order to ensure the proportionality of CCTV measures in the workplace, domestic courts should take into account the following factors when balancing the interests involved:

  1. Has the employee been informed of the possibility of being subject to a video surveillance measure?
  2. What is the extent of the video surveillance and what is the degree of intrusion into the employee’s private life?
  3. Has the use of video surveillance been justified by the employer on legitimate grounds?
  4. Was there an alternative surveillance system based on less intrusive means and measures available to the employer?
  5. What were the consequences of the surveillance for the employee who was subject to it?
  6. Was the employee concerned by the video surveillance measure offered adequate guarantees?

Therefore, prior notification to the employees is only one of the criteria taken into account in the balance of interests.

In this particular case, the ECHR approved the examination of proportionality of the video surveillance measure. The Judges decided that despite the lack of prior notification to the employees, the CCTV was (i) justified by suspicions of theft, (ii) limited in space (only a few checkout counters), and (iii) limited in time (10 days). The Court also noted that very few people watched the recordings and then concluded that the degree of intrusion into the employees’ privacy was limited.

Consequently, the Grand Chamber considered that there was no violation of the employees’ privacy rights.

Although this decision does not directly concern France, it remains very interesting since French regulations (i.e., the Data Protection Act, the General Data Protection Regulations, and the Labor Code) provide:

  • that the monitoring measures implemented by an employer must not impose restrictions on the employees’ rights and freedoms which would neither be proportionate nor justified by the nature of the task to be performed (Article L. 1121-1 of the Labor Code); and
  • that concerned employees and staff representatives must be informed prior to the implementation of a video surveillance system (Article L. 1222-4 of the Labor Code).

According to French case law, any system that is not compliant with the above is considered illicit and the information collected could not be used as evidence of an employee’s misconduct [2].

The ECHR’s decision seems to challenge French case law: where the absence of prior notification to employees is considered as an overwhelming obstacle by French judges, the ECHR considers that it is merely one of the several criteria to be taken into account to assess the proportionality of the infringement to the employee’s right to privacy.

The question that remains is: what will be the impact of the ECHR’s decision in France?

NOTES

[1] ECHR, Grand Chamber, September 5, 2017, n°641996/08, Bărbulescu c. Roumanie; ECHR, decision, October 5, 2010, 420/07, Köpke c. Germany.

[2] See French Supreme Court, June 7, 2006, n°04-43866 ; French Supreme Court, September 20, 2018, n°16-26482.

Copyright 2019 K & L Gates

ARTICLE BY Christine Artus of K&L Gates.
For more on employee privacy rights, see the National Law Review Labor & Employment Law section.

University Of Surrey Announces New Study On Microbial Organisms To Digest Plastic Waste

On October 16, 2019, the University of Surrey, United Kingdom, announced that its researchers have partnered with colleagues from France, Germany, and Spain to start working on a new technique to tackle plastic waste. According to the university’s article, this novel technique may revolutionize the recycling industry. The plan is to create engineered microbial communities that will digest two types of plastic polymers — polyethylene terephthalate (PET) and polyurethane (PU) — and transform them into molecules that can be used to develop a more environmentally friendly material called Bio-PU. This more environmentally friendly material is often used as a construction and insulation material.

According to the University of Surrey, current physical or chemical methods to degrade PET and PU are inefficient. Impurities in PET polymers and high energy costs associated with the high temperatures required to break down the material make its degradation very difficult. Similarly, degradation of PU is limited due to the difficulty in breaking down urethane bonds in the material. Given these challenges, University of Surrey Senior Lecturer in synthetic biology Dr. Jose Jimenez highlights that “[m]oving away from the reliance on single use plastics is a positive step; however, the problem of how we deal with current plastic waste still needs to be addressed.” Hence, the project will investigate the ability of microorganisms to digest plastic waste and turn it into a more environmentally friendly material that can be recycled.

©2019 Bergeson & Campbell, P.C.

For more plastics pollution activities, see the National Law Review Environmental, Energy & Resources law page.

Be Thankful I Don’t Take It All – France Moves to Tax the Value of Data

Were the Beatles still recording today, they might have to add this verse to Taxman. As what will surely be the opening salvo in government efforts to find ways to recapture the value of the personal data upon which so much of our digital economy now seems to depend and return it to consumers, France is now set to become the first European country to implement what is effectively a “data tax”.

About 30 companies, mostly from the US, may soon have to pay a 3% tax on their revenues. The tax will mostly affect companies that use customer data to sell online advertising. Justifying the new tax, French Finance Minister Bruno Le Maire clearly drew the battle lines:

This is about justice . . . . These digital giants use our personal data, make huge profits out of these data . . . then transfer the money somewhere else without paying their fair share of taxes.

The bill would apply to digital companies with worldwide revenues over 750 million euros ($848 million), including French revenue over 25 million euros. Not surprisingly, Google, Amazon and Facebook are squarely in the crosshairs of the new tax.

According to European Commission figures, the FANG companies and their ilk pay on average 14 percentage points less tax than other European companies. France took unilateral action after a similar proposal at the EU level failed to get unanimous support from member states, although Le Maire said he would now push for an international deal by the end of the year.

Lest you think this is just a European phenomenon, you need only look west to California, where Governor Newsom has commissioned the study of “data dividends” to help address the digital divide. In fact, the much-discussed California Consumer Privacy Act already contains provisions encouraging digital companies to compensate consumers for the use of their personal data. See our recent alert on data dividends and the CCPA here.

There will be lots more action in the “value for data” space in coming days. While academics debate whether data is more like labor or more like capital, we expect state and federal regulators to look to the value of data as a means to address the challenges of artificial intelligence and income inequality.

 

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.
Read more international news on the NLR’s Global Type of Law Page.

Is Paris Burning? France Considers Whether Damages for Employee Dismissals Should Be Capped

The latest version of Article L. 1235-3 of the French Labor Code, based on the “Macron Ordinances,” has recently been the subject of major dispute, with several labor tribunals issuing conflicting decisions.

The article limits a judge’s ability to determine compensation for an employee whose dismissal has been recognized as having no “real and serious” cause. It caps the damages awarded at an amount between 0.5 months’ salary (for an employee with less than one year of continuous service) and 20 months’ salary (for an employee with more than 29 years of continuous service).

However, this system is not applicable in a number of cases, particularly where the dismissal is declared null and void because, for example, of a “violation of a basic human right,” an “act of harassment,” or its “discriminatory” nature.

By introducing this new system, the government intended to “remove uncertainty” about the “cost of a termination” by allowing the employer to anticipate the risk incurred if the dismissal was found to be without real and serious cause (Report to the President of the Republic on Order No. 2017-1387 of 22 September 2017 on the predictability and security of labor relations).

However, in a series of decisions issued in December 2018 and January 2019, labor courts have ruled that this system conflicts with several international conventions applicable in France.

Even if the Constitutional Council had approved, both in principle (C.C., 2017-751 DC of 7 September 2017) and in its implementation (C.C., 2018-761 DC of 21 March 2018), the concept of a cap on compensation for damage caused by the fault of an employer, it is not up to the Council to ensure compliance of this system with the international agreements ratified by France.

It is judges who are responsible for checking that the system established by the labor tribunal complies with the international conventions applicable in France.

However, Article 10 of Convention 158 of the International Labour Organization stipulates that a judge who finds that a dismissal is unjustified, but does not propose reinstatement of the employee to his or her original position, must be able to order the “payment of adequate compensation or such other relief as may be deemed appropriate.” Similarly, Article 24 of the European Social Charter provides for the “the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief.”

Considering these stipulations, two labor tribunals (Le Mans and Caen, the latter being ruled by a professional judge) adopted the applicable scale, considering that it provided for “appropriate” compensation for damages.

By contrast, the labor tribunals of Troyes, Amiens, Lyon, Grenoble, and Angers decided, in highly publicized decisions, not to apply the mandatory scale stipulated by Article L. 1235-3. As a result, they granted compensation in excess of the legal maximum. None of these five cases fell into the provided categories allowing a judge to exceed this maximum.

At present, while other councils could follow this reasoning, the impact remains limited. The Administrative Supreme Court has already been called upon in urgent situations to rule on the validity of these measures. It considered that because of the possibility of deviation from the scale when the dismissal is deemed null and void, so that the scale is compliant with the stipulations of the conventions (CE, 7 December 2017, CGT, N° 415243).

It will be up to the Courts of Appeal and then to the Court of Cassation, France’s Supreme Court, to decide whether it is appropriate to continue to apply this system or whether the international conventions ratified by France require that it be overruled.

Pending these decisions, the possibility that the scale is inapplicable may divide the courts and create judicial uncertainty in labor tribunal disputes. The underlying objective of legal certainty is therefore, at least temporarily, severely compromised: neither employees nor employers can use this scale to assess with certainty the chances of profit or the risks involved when making a decision on any given dismissal.

A rapid resolution would be desirable. To this end, referral to the Court of Cassation for a legal opinion in accordance with the provisions of Article L. 441-1 of the Code of Judicial Organization and Article 1031-1 of the Code of Civil Procedure (referral for an opinion) might have seemed particularly appropriate if the Court of Cassation had not recently refused to grant such an opinion regarding the compliance to conventional rules of another legal text (Cass, avis, 12 juillet 2017, 17-70.009).

Thus, it can only be hoped that a litigant whose rights are “imperiled” by a ruling requests that a Court of Appeals set a day for a priority hearing (Article 917 of the Code of Civil Procedure). Such proceedings would reduce the delay before the appeal hearing and would provide a finer outlook on the future of the mandatory scale.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
This post was written by Jean-Marc Albiol and Thibaud Lauxerois of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Right to Disconnect: New Right for French Employees?

right to disconnect FranceA new law, called El Khomri law, passed on August 8th, 2016 in France providing a right to disconnect for employees.

Such right is entered into force on January 1st, 2017

According to the law, it belongs to the employers and the unions to negotiate this new right to determine its modalities of application and of control. Such negotiation should take place in companies having at least 50 employees and should provide for the implementation of mechanisms of regulation regarding the use of the new technologies in order to ensure the compliance with rest times and holidays and the familial and personal life of the employees.

Should no agreement be reached with the unions defining the methods of implementation of the right to disconnect, the employer shall unilaterally elaborate, after having consulted the work’s council committee, a policy which shall need to provide for the training actions and sensitization to the use of digital tools.

However, the idea to enable an employee to disconnect completely outside of his working hours is not new in France.  In 2004, the French Supreme Court had already judged that an employee could not be dismissed for serious misconduct due to the fact that he had not responded to professional solicitations during his lunch break (Cass. Soc. February 17, 2004 n°01-45889).

Furthermore, several collective bargaining agreements applicable in different sectors of industry had already provided for a right to disconnect (e.g. Syntec).

If the title of this right seems simple, its exact nature questions.

Indeed, no legal definition of what is exactly the right to disconnect is given.

The right is generally described as a right for the employee to not be connected to a digital professional tool (email, smartphone…) during off-duty and vacation time.  However, it is not easy to impose the right to disconnect in a professional environment in which the “BYOD” concept has experienced a takeoff without precedent and which therefore has the consequence of dimming a little more the barrier between professional and private life.

However, by sending back to the collective negotiation, the El Khomri law leaves it to unions and employers to guarantee the efficiency of such a right in a manner that matches with the way the company operates.  This relative flexibility obliges them however to be imaginative and to find devices adapted to the nature of the functions occupied by the employees to the variety of the means of communication used, considering evidently the needs of each company.

As such, the right to disconnect is not uniform and can materialize itself in several ways:

  • by a reinforced information of the employees on the use of digital tools (e.g. avoiding to reply to all recipients or to send emails during the week-end or holidays),

  • by the implementation of training actions or sensitization to new technologies (e.g. reminding the employees that they should not send emails after 9.00 pm or the absence of obligation of the recipient to answer emails outside of regular hours),

  • more radically, by automatically redirecting the emails of the employees who are out of the office to an appropriate available employee or the interruption of the professional mailbox during evenings and weekends, or even during holidays.

The new law does not provide for any sanction in case of noncompliance, however, companies should take into consideration that employers failing to implement it will likely be sanctioned by judges on the basis of the necessity to preserve the health and safety of the employees at the workplace as well as the necessity to comply with working time regulations.

ARTICLE BY Cécile Martin of Proskauer Rose LLP

© 2017 Proskauer Rose LLP.

French Supreme Court Specifies Requirements for Health Care Companies Under the Sunshine Act

McDermott Will & Emery

Law no. 2011-2012 of 29 December 2011, also known as the French Sunshine Act, introduced into French law disclosure obligations imposed on health care companies (HCC).  The French Medical Board and a nonprofit organisation challenged the law’s implementing decree of 21 May 2013 and its explanatory circular of 29 May 2013.  On 24 February 2015, the Conseil d’Etat annulled some of the challenged provisions of the aforementioned decree and circular, and provided useful clarifications on the scope of the disclosure obligations.

Pursuant to the decree of 21 May 2013 and the explanatory circular of 29 May 2013, there were three exceptions to the obligation to disclose (i) benefits in kind or cash exceeding EUR10 and (ii) written agreements:

  • Payments made as reasonable compensation for services rendered and for salaries did not have to be disclosed.

  • Companies that manufacture or commercialise cosmetic and tattoo products did not have to disclose agreements other than those relating to the conduct of health and safety work assessments and biomedical or observation research on these products.

  • Companies that manufacture or commercialise health products did not have to disclose commercial sales agreements of goods and services.

Under the Conseil d’Etat decision of 24 February 2015, the two first exceptions no longer apply, and the scope of the third exception has been specified.  The three main changes entailed by this decision are described herein.

All payments made from 1 January 2012 by HCCs to HCPs that do not constitute salaries must be disclosed.

The Conseil d’Etat specified the limits of the concept of “benefit in cash or in kind” that must be disclosed.  The 2013 explanatory circular had given a narrow definition of this concept, stating that it excluded payment made as reasonable compensation for services rendered and for salaries.

According to the Conseil d’Etat, however, the provisions of Law no 2011-2012 exclude only salaries received by health care professionals (HCPs) working exclusively as employees of HCCs.  According to the words of the General Advocate (Rapporteur Public) before the Conseil d’Etat, the exclusion relates to an “HCP who works exclusively as an employee in a HCC.”

Consequently, the Conseil d’Etat annulled the provisions of the explanatory circular which disregarded both Law no. 2011-2012 and the decree of 21 May 2013 by excluding from the scope of the disclosure obligations payment made as reasonable compensation for services rendered.

Companies manufacturing or distributing non-corrective contact lenses, cosmetic or tattoo products must disclose all agreements concluded with French HCPs, regardless of the object of the agreement.

With regard to companies manufacturing or distributing non-corrective contact lenses, cosmetic or tattoo products, the decree limited the scope of the disclosure obligations to agreements concluded with HCPs relating to the conduct of health and safety work assessments and biomedical or observation research on the products.

The Conseil d’Etat stated that by limiting the scope of the disclosure obligations, the decree disregarded the provisions of Law no. 2011-2012, and therefore annulled the regulatory provisions at stake.

The only commercial sales agreements of goods and services that are excluded from the disclosure obligations are those in which the HCP is the buyer.

The Conseil d’Etat clarified the content of Article R. 1453-2 of the French Code of Public Health, which excluded from the disclosure obligations commercial sales agreements of goods and services.  Even though this article was explained in the circular, it remained unclear which agreements it really targeted.

According to the judges, this exemption concerns solely commercial sales agreements of goods and services in which the HCP is the buyer.  Furthermore, despite the rather unclear wording of Conseil’s decision, it must be noted that, in light of the words of the General Advocate, the decision clarified that this exemption does not apply to purchase of advertising space by HCCs in medical journals.

Conclusions

Since the Conseil d’Etat did not time-differentiate the effects of its decision, its 24 February 2015 interpretation of the Sunshine Act is deemed to apply to all conventions concluded and benefits paid from 1 January 2012.  Therefore, HCCs should now disclose the following:

  • All payments made from 1 January 2012 by HCCs to HCPs for services rendered that do not constitute salaries

  • All agreements concluded from 1 January 2012 between companies manufacturing or distributing non-corrective contact lenses, cosmetic or tattoo products and French HCPs

  • Commercial sales agreements of goods and services in which the HCP is not the buyer

In accordance with the principle of legal certainty, HCCs should be given reasonable and sufficient time to adapt to the regulation as interpreted by the Conseil d’Etat, during which period of time they should not be sanctioned.

ARTICLE BY

Charlotte Michellet
Sabine Naugès
McDermott Will & Emery

What To Look For Down The Road: France

Sheppard Mullin 2012

There is some legislation being debated in the French Parliament.  One piece of legislation would encourage fathers to take leave to care for their children.  The goal would be to curb the systemic disadvantages that women experience in their careers due to motherhood.

Another bill has been introduced with the goal of reforming the system of continuing vocational training, which could have major financial implications.  The bill provides for the creation of a so-called “individual learning account” in which rights to training hours earned each year would accumulate, within a total limit of 150 hours.  The account would not be related to the company: it would be personal and “follow” the employee throughout his/her entire working life.

 Article by:

Terese M. Connolly

Of:

Sheppard, Mullin, Richter & Hampton LLP