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La Lettre de Jurisprudence de la Commission des Affaires Européennes et Internationales N°3 - English version




Editorial - Knowledge bridge

La Lettre de Jurisprudence de la Commission des Affaires Européennes et Internationales N°3 - English version
The purpose of this newsletter is to bridge the gap between French jurisprudence and the non-francophone world. Many lawyers, judges, professors and law students would like to have access to court decisions in other countries but, in most cases, are unable to do so because of the language barrier.

La "lettre de jurisprudence" of the French Bar is a small step to try to overcome this formidable obstacle.

Roughly at the same time, as we were putting together thisissue of la " lettre de jurisprudence", a lawyer in Kuwait, Mr. Mohammed Al Jassem, has been designing a project to systematically translate all of French jurisprudence in Arabic. His project is called, appropriately, "knowledge bridge". In cooperation with the French Foundation for Continental Law, he has already has had more than half a million words of text translated.

This editorial is a tribute to him and to all those who strive to share legal knowledge across cultural and linguistics divides.

Prepared under the direction of Mr Marc Jobert Vice-President of the Commission des Affaires Européennes et Internationales translation to English by Judge J C Gibson, District Court of NSW, Australia.


Public Law


CNB-2008-12 - A critical review by the Constitutional Council of the law relating to security detention and to the declaration of absence of criminal responsibility by reason of mental disorder

In its Decision No 2008-562 DC of 21 February 2008, the Constitutional Council reviewed the law relating to security detention and to the declaration of absence of criminal responsibility by reason of mental disorder.

The High Court of Law, first of all, upheld the use of security detention, holding that this measure provision, when "proportional and necessary" was "neither a penalty punishment nor a sanction having the character of a punishment penalty". The Constitutional Council did, however, censure the retrospectivity of security detention "having regard to its nature as a deprivation of liberty, to the duration of this deprivation and to its unlimited renewable character". Consequently, such a measure shall not be applied other than for acts committed after the law had been enacted.

The security surveillance supervision of this detention (which could be effected, by example, by means of an electronic bracelet) is on the other hand immediately applicable, from the time of publication of the law, to persons who have been sentenced for various very serious crimes, from the time they leave prison. If these persons violate their obligations, they can be put in custodial detention.

The Constitutional Council next examined the second section of the law relating to absence of criminal responsibility on account of mental disorder. The Council considered, on the one hand, that the entry on the Criminal Record of the declaration of absence of criminal responsibility by reason of mental disorder "which does not take on the character of a sanction" was violating the protection of privacy except in the case where security measures had been pronounced against the concerned party. The Council considered, on the other hand, that “in subordinating to the favourable opinion of an administrative commission the power of the sentence-enforcing court to grant conditional release, the legislator had ignored as much the principle of separation of powers as that of the judicial authority independence. The decision-making process to an administrative body to make orders concerning punishment, including conditional liberty, the legislature had misconceived the principle of the separation of powers and ignored the right of judicial independence.”

Download decision n° 2008-562 DC (PDF file)

Private Law


CNB-2008-13 - Legal professional privilege within the framework of correspondence between lawyers

On 4 December 2007, the Court handed down a decision, which explains the conditions governing the application of Article 66-5 of Law No 71-1130 as amended on 11 February 2004.

From now on, correspondence exchanged between lawyers, except those which carry the word "official" are protected by legal professional privilege.

In the present case, a lawyer had used, and cited, in Court a letter that had been sent to him by a colleague. At first instance, the Criminal Court regarded this production as a violation of legal professional privilege, a decision which was set aside by the judges of appeal who discharged the accused person on the basis that the Law of 11 February 2004 was inapplicable to correspondence sent before the enactment of the law and that the contentious letter, which was an official account of an agreement between the parties, did not have a confidential character. In its turn, the Criminal Chamber set aside the decision of the Court of Appeal. The magistrates of the High Court of Law emphasised that: "The production of the correspondence had taken place after the enactment commencement of the law cited above".

Consequently, if, since 11 February 2004, any correspondence, which does not contain the word "official", is protected by the legal professional privilege, this guarantee applies only to correspondence produced subsequent to this date.

Download decision - Cour de Cassation 4 December 2007, Appeal Case No 06-88025 (PDF file)

CNB-2008-14 - Application of the Community principle of equality of treatment between male and female workers in the RATP* legislation (* a public transport provider)

In a judgment dated 18 December 2007 the Cour de Cassation held that legislation for RATP personnel must respect the principle of equality of treatment for men and women.

In the present case, Mr X had brought industrial law proceedings, asserting he was the victim of discrimination because the RATP employment legislation places an age limit of 35 years for persons seeking to acquire the status of permanent employee, except for certain categories of women. For the appellant, the regulation, which he claimed was discriminatory towards him, "gave an absolute and unconditional priority to the candidature applications of certain categories of women".

The Court of Appeal and, on appeal, the Cour de Cassation, made orders in his favour, holding that such a regulation was contrary to the Community principle of equality of treatment between male and female workers, as enunciated in Articles 141 §4 ECT and 2 §4 of Directive no 76/2007/EEC of 9 February 1976.

Download decision - Cour de Cassation 18 December 2007, Appeal Case No 06-45132 (PDF file)

CNB-2008-15 - Extent of a banker's obligation to warn uninformed borrowers

The Cour de Cassation has in this judgment clarified the obligation of a banker to advise uninformed borrowers.

In an appeal judgment of 11 December 2007, the Cour de Cassation, setting aside the judgment below, emphasised that the banker should warn an uninformed borrower, with regard to the financial capacity of the latter and the indebtedness risks linked to the granting of the loan*. The Commercial Court also held that the onus of proof of the fulfilment of the obligation to warn lay on the banker and not on the borrower.

This finding has since been confirmed by the Civil Chamber of the Cour de Cassation in an appeal judgment of 20 December 2007.

* A finding consistent with other decisions on the characteristics of uninformed menders (Cf Ch. Mixte, 29 June 2007)

Download decision - Cour de Cassation 11 December 2007, Appeal Case No 03-20747 & Cour de Cassation 11 December 2007, Appeal Case No 03-20747 (PDF file)

CNB-2008-16 - Rejection of a request for simple adoption by the common law wife or partner of the child's biological mother

In two judgments (19 December 2007 appeal no. 06-21369 and 7 February 2008) the Civil Chamber of the Court de Cassation refused to apply article 365 of the Civil Code, which deals with simple adoption by married persons, to a PACS partner (PACS: agreement between two adults, whether different or same sex, to live together as a family) and to a common law partner (a de facto relationship characterised by a stable long term relationship between two adults, whether same or different sex, living as a couple).

In both these decisions the Court of Cassation has held “the mother of the child would lose her parental authority in the event of adoption of the child even though she was well able to exercise this authority and had not shown any lack of care” and further “that article 365 of the Civil Code did not foresee the division of parental authority other than in the case of adoption by a spousal partner and, under French law; spousal partners are persons who are married to each other […].”

Download decision - & Cour de Cassation 6 February 2008, Appeal Case No 07-12948 (PDF file)

CNB-2008-17 - Whether the criminal offence of copyright infringement can be committed by placing photographs on the Internet without the authorisation of right holders

The offence of copyright infringement can be committed by putting photographs on the internet without the permission of the persons with authorial rights

Copyright infringement can even be committed on the internet. Such is the import of the appeal judgment handed down by the Cour de Cassation Criminal Chamber of 5 February 2008.

The facts in this case were that three journalists put onto an internet site and disseminated photographs reproducing pictures and models of high fashion without the permission of the fashion houses holding the rights.

Although they were acquitted at first instance, the defendants were declared to be guilty on appeal of the crime of breach of copyright an original work contrary to the rights of the persons asserting authorship, as defined by Article L.335-2 of the Intellectual Property Code.

The Cour de Cassation arrived at this guilty verdict first of all by holding that haute couture designs are original works for which fashion houses enjoyed a right of ownership rejected by Articles L.112-1 and L.112-2 of the Intellectual Property Code. According to the Court, the acts of infringement were constituted by the journalists photographing several fashion models and, from French territory, disseminating online images obtained without the permission of the authority holders, on a website to which it was not extended the benefit of the press accreditation which they had obtained.

The Criminal Chamber judges then held that the intentional element of the offence was established when the first journalist charged had unsuccessfully sought an accreditation for the company which used the site, when the second journalist could not have been unaware of this refusal of accreditation, and the third journalist had failed to take any steps to avoid the putting of the photographs online, which was evidence of bad faith.

Download decision - & Cour de Cassation 6 February 2008, Appeal Case No 07-81387 (PDF file)

CNB-2008-18 - The viability threshold of the foetus: an irrelevant criterion for issuing a death certificate for a stillborn child

The Cour de Cassation handed down on 6 February 2008 three important decisions authorising for the first time the issuing of a “certificate for a stillborn child”, whatever the viability threshold of the foetus.

In these three judgments, the Court of Appeal refused parents of still-born foetuses the issuing of an “a certificate for a stillborn child”. The judges in the court below considered had regard that to issue such a certificate, the foetus had to comply with the viability threshold defined by

the World Health Organisation, namely, 22 weeks amenorrhoea or for the foetus, a weight of at least 500 grams, conditions which were lacking in the three cases.

However, the Civil Chamber of the Cour de Cassation has now set aside the three judgments of the Court of Appeal, by pointing out that that Article 79-1 paragraph 2 of the Civil Code, which defines the rules relevant to the issuing of a certificate for a child born without life

does not subordinate the issuing of a certificate for a child born without life either to the weight of the foetus or to the duration of the pregnancy.”

We should note however that this decision has no bearing whatsoever on the status of the foetus, as it has no legal personality. Therefore, the issuing of a certificate for a child born dead does not give it any legal right.

(Editor’s note: The text of all three judgments is the same, so only the text of judgment 06-16498 is set out. The other appeal judgment numbers are 06-16499 and 06-16500.)

Download decision - & Cour de Cassation 6 February 2008, Appeal Case No 06-16498 (PDF file)


Lundi 21 Juillet 2008

     


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