On October 18, 2013, Canada and the European Union (EU) signed the Comprehensive Economic and Trade Agreement (CETA).
For the moment, this is an agreement in principle that has not yet been ratified or implemented by the two parties (federal and provincial governments, as well as the 28 EU countries) to return in force.
This target should be reached by 2015.
However, most of the major problems, set out below, have been resolved.
I. CA FORT DE FRANCE CH. CALENDARSTOPN ° 10/00341 (22/06/2012)
SA THE ASEGURADORA COLSEGUROS INSURANCE COMPANY THE SA WEST CARIBBEAN AIRWAYS FELIPE NEGRET MOSQUERA
VS/
FORT DE FRANCE COURT OF APPEAL, CIVIL CHAMBER, JUDGMENT OF 22 JUNE 2012
Decision referred to the court: Judgment of the High Court of Fort de France, dated September 08
2009, registered under number 08/00114.
CALLERS:
SA THE ASEGURADORA COLSEGUROS INSURANCE COMPANY, taken in the person of its legal representative Carrera 13 A - N ° 29-24 y 29-26 Piso 17 Ala Sur Santafé de Bogoà COLOMBIA represented by Me Alain MANVILLE, lawyer at the bar of MARTINIQUE
SA WEST CARIBBEAN AIRWAYS, Company in liquidation Callée 2 N ° 67 Hangar 72 Medelin COLOMBIA represented by Me Alain MANVILLE, lawyer at the bar of MARTINIQUE Master FELIPE NEGRET MOSQUERA, es quality of liquidating agent of the company WEST CARIBBEAN AIRWAYS Bogota Calle 70 A, N ° 6-24, Piso 2 COLOMBIA represented by Me Alain MANVILLE, lawyer at the bar of MARTINIQUE INTIMES: Madame T. Yolande L. wife B. 45 Morne Laurent T. C / 0 M. Omer L. represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE Mrs. Marie Louise Christiane L. 45 Morne Laurent T. C / 0 M. Omer L. represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE Mrs Thérèse Rose d. L. 45 Morne Laurent T. C / 0 M. Omer L. represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE Mrs Raymonde Fernande L. wife H. Cité Lacroix represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE Mr. Honoré Cyr André L. Habitation Bois Carré represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE Mr. Casimir Simplice L. represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE Mr. Thérèse Carnot L. Osman Street N. Ravine Vilaine represented by Me André ELOIDIN, lawyer at the bar of MARTINIQUE
COMPOSITION OF THE COURT:
The case was debated on April 27, 2012 at a public hearing, before the court composed of: Ms. TRIOL, Counselor, hearing chair Ms SUBIETA FORONDA, Advisor M. CHEVRIER, Advisor who deliberated on it, the parties having been informed of the date of delivery of the judgment fixed for JUNE 22, 2012. REGISTRAR: during the debates, Mrs. SOUNDOROM,
STOPPED: Contradictory, Delivered publicly by making available to the court registry, the parties having been previously notified under the conditions provided for in the second paragraph of article 450 of the Code of Civil Procedure.
PRESENTATION OF THE LITIGATION:
On August 16, 2005, an aircraft of the Colombian company WEST CARIBBEAN AIRWAYS, ensuring a flight between the
Panama and Martinique crashed in the northwest of Venezuela. Mrs. Lucienne C. and her daughter, Célyne L., are
were among the passengers on this plane.
WEST CARIBBEAN AIRWAYS, now in liquidation, is represented by Maître Felipe NEGRET
MOSQUETO, liquidator. At the material time, she was insured, for her civil liability, with the
insurance company ASEGURADORA COLSEGUROS.
By judgment of September 1, 2005, the High Court of Fort de France declared Mrs. Lucienne C. and
Mrs. Célyne L. deceased.
By contradictory judgment of September 8, 2009, the same court gave notice to Me Felipe NEGRET MOSQUETO
of his voluntary intervention, condemned the insurance company ASEGURADORA COLSEGUROS to pay to
Ms. TL wife B., Ms. Marie Louise L. wife F., Ms. Thérèse L., Ms. Raymonde L. wife H., Mr. Honoré L.,
M. Casimir L. and M. Thérèse Carnot L., each, the sum of 5,000.00 euros, in respect of non-pecuniary damage resulting from the
death of their beautiful sister and that of 8,000.00 euros, for the same damage due to the death of their niece, declared on
judgment opposable to Me FELIPE NEGRET MOSQUERA, the qualities of liquidating agent of WEST
CARIBBEAN AIRWAYS, ordered provisional execution for the whole, ordered the insurance company to pay the
sum of 3,000.00 euros, in application of the provisions of article 700 of the code of civil procedure.
By declaration registered at the registry on May 31, 2010, the insurance company ASEGURADORA COLSEGUROS,
WEST CARIBBEAN AIRWAYS and Master FELIPE NEGRET MOSQUERA, the qualities of liquidating agent of
the airline, have noted appeal from this judgment in all its provisions.
This notice of appeal was served on September 29, 2010, to Mrs. TL wife B., Mrs. Marie Louise L. wife
F., Mme Thérèse L., Mme Raymonde L. wife H., M. Honoré L., M. Casimir L. and M. Thérèse Carnot L ..
By conclusions filed at the court office on March 31, 2011, the appellants asked the court to set aside the judgment
referred, in the absence of demonstration of specific bonds of affection between the respondents and the deceased.
In the alternative, they claimed that the respondents' cross-appeal should be dismissed.
In support of their claims, they state that compensation for non-pecuniary damage is intended to compensate for the penalty
experienced for the loss of a loved one, regardless of the context in which it occurs, and that there is no
presumption of reparable non-pecuniary damage in the case of brothers-in-law, sisters-in-law, uncles and aunts. They claim that
the respondents must demonstrate the specific bonds of affection binding them to the victims and that the kinship or
alliance is not enough to establish the reality of bonds of affection likely to be compensated.
With regard to the cross-appeal, they point out that the request for an increase in the amount allocated to each of the
respondents is not warranted.
By submissions filed with the registry on January 12, 2011, Mrs. TL married B., Mrs. Marie Louise L. married F., Mrs. Thérèse L., Mrs. Raymonde L. married H., M. Honoré L., M. Casimir L. and Mr. Thérèse Carnot L. asked the court to partially set aside the judgment and order the appellants to pay them, each, the sum of 10,000.00 euros, in respect of non-pecuniary damage due to the death of their beautiful sister and that of 15,000.00 euros, in respect of the same damage due to the death of their niece, in addition to their order to pay them, together, the sum of 7,000.00 euros, in application of the provisions of article 700 of the code of civil procedure.
In support of their claims, they explain that the air disaster shook all of Martinique and constituted a
major air accident. They recall having justified the very strong emotional bond that existed between them and the deceased bringing
the court found indisputable
the bond of kinship and affection.
The closing order was made on November 10, 2011.
REASONS FOR JUDGMENT:
On compensation for non-pecuniary damage:
It is recognized that the moral prejudice of the beneficiary consists both in the psychological and emotional shock resulting from the
death of a loved one, only in the emotional and assistance losses linked to the absence of the deceased.
As the first judges rightly pointed out, the trauma linked to the particular circumstances of the accident
in its dimension of collective catastrophe cannot give rise to specific reparation but constitutes one of the
components of non-pecuniary damage, the pain being all the more acute when the circumstances of the death are
painful.
In this case, the respondents claim fair compensation for their prejudice considered in all of its
aspects, including the moral suffering related to the circumstances of the plane crash.
They thus demonstrated both their particular pain due to the brutal and violent circumstances of the death of their
parents, that the bonds of deep affection and proximity that united them.
In view of all the documents produced in the hearings, the court considers that the judgment referred has correctly assessed the
prejudice of the respondents and must receive confirmation.
On the provisions of article 700 of the code of civil procedure:
Equity justifies the condemnation of the insurance company ASEGURADORA COLSEGUROS to payment to
respondents together for the sum of 7,000.00 euros.
The same insurance company will bear the costs.
FOR THESE REASONS :
Confirm the judgment undertaken in all its provisions,
Condemns the insurance company ASEGURADORA COLSEGUROS to pay to Mrs. TL wife B., Mrs. Marie
Louise L. marries F., Mme Thérèse L., Mme Raymonde L. marries H., M. Honoré L., M. Casimir L. and M. Thérèse
Carnot L., together, the sum of 7,000.00 euros, on the basis of the provisions of article 700 of the
Civil Procedure ;
Orders the insurance company ASEGURADORA COLSEGUROS to pay the costs.
Signed by Mrs. TRIOL, President, and Mrs. SOUNDOROM, Registrar, during the delivery, to which the minute has been postponed.
THE REGISTRAR, THE PRESIDENT,
Composition of the court: Mme TRIOL, Alain MANVILLE, Me André ELOIDIN Contested decision: TGI Fort-de-France, Fort-de-France 2009-09-08
***
II. CA FORT DE FRANCE CH. CIVIL, JUDGMENT N ° 10/00341 (12/22/2012)
THE ASEGURADORA COLSEGUROS INSURANCE COMPANY SA WEST CARIBBEAN AIRWAYS SA FELIPE NEGRET MOSQUERO
VS/
R.
L.
FORT DE FRANCE COURT OF APPEAL CIVIL ROOM
Decision referred to the court: Judgment of the High Court of Fort de France, dated November 17
2009, registered under number 09/1871
CALLERS:
THE ASEGURADORA COLSEGUROS INSURANCE COMPANY, taken in its capacity as insurer of the WEST CARIBBEAN AIRWAYS Company, taken in the person of its legal representative Carera 13 AN ° 29-24 Piso 17 Ala Sur Bogota fairy bogota (colombia) represented by Me Alain MANVILLE of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE
SA WEST CARIBBEAN AIRWAYS SA, company in liquidation. Calle 2, n ° 87-15 Hangar 72 MEDILLIN COLOMBIA represented by Me Alain MANVILLE of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE Master FELIPE NEGRET MOSQUERO Calle 70 AN ° 6-24 Piso 2 BOGOTA COLOMBIA represented by Me Alain MANVILLE of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE
RESPONDENTS:
Mrs. R. Irma R. divorced L. represented by Me Alberte ROTSEN MEYZINDI of SELARL MATHURIN BELIA & ROTSEN MEYZINDI, lawyers at the bar of MARTINIQUE Madame Ketty L. marries E. 4 cour du Moulin represented by Alberte ROTSEN MEYZINDI of SELARL MATHURIN BELIA & ROTSEN MEYZINDI, lawyers at the bar of MARTINIQUE
COMPOSITION OF THE COURT:
The parties were authorized to file their case on October 12, 2012 in accordance with the provisions of article 779 paragraph 3 of the code of civil procedure and informed in application of article 786-1 of the same code of the names of the magistrates brought to deliberate either : President: Ms. DERYCKERE, Advisor Assessor: Ms SUBIETA FORONDA, Advisor Assessor: Ms TRIOL, Advisor
and the date of delivery of the judgment set for 14 DECEMBER 2012 Registrar: during the debates, Ms SOUNDOROM,
JUDGMENT: contradictory,
pronounced publicly, by making available to the court registry, the parties having been previously notified
under the conditions provided for in the second paragraph of article 450 of the code of civil procedure;
FACTS, PROCEDURE, MEANS AND CLAIMS OF THE PARTIES
By judgment of September 30, 2008, rectified on November 19, 2009, the High Court of Fort de France
ordered the insurance company ASEGURADORA COLSEGUROS to pay in compensation for the damage suffered from
of the death of MG LAURENT and his son Johan L. in the plane crash on August 16, 2005 in Venezuela,
sums for various loss items, including:
- to Mrs. RR € 5,000 for the personal hereditary damage suffered by her son Johan L.,
- to Mrs. Ketty L. € 15,000 in compensation for the hereditary damage suffered by her brother Johan L., and € 20,000 suffered by her
father G. LAURENT.
The insurer, and Me Felipe NEGRET MOSQUERA as liquidator of SA WEST CARIBEAN AIRWAYS have
by declaration of 30 September 2010, appealed from the judgment, only of these convictions pronounced in
title of hereditary harm.
By last conclusions dated May 23, 2012, the appellants argue that this damage could not have entered the
patrimony of the deceased, transmitted to the beneficiaries since it is only hypothetical and therefore not repairable. They add that
as the accident resulted in instant death, the deceased's non-pecuniary damage cannot be accepted. In the alternative, they make
note that the estate damage has been assessed at a flat rate of € 20,000 but that another judgment rendered on
of the disappearance of MG LAURENT retains the existence of 4 heirs, the only claimant among them therefore obtaining
€ 5,000, which contradicts the situation of Mrs. Ketty L. receiving € 20,000 from her
side as the sole heiress of the same G. LAURENT.
Under their last conclusions of February 7, 2012, the respondents, Mrs. RR and Mrs. Ketty L., ask the court to confirm the judgment in all its provisions and to award them compensation of € 3,000 under the article 700 of the code of civil procedure. On the principle of compensation for hereditary suffering suffering in this case, they argue that it is indisputable that during the course of an airplane crash, the passengers felt the imminence of their death with the feeling of panic and helplessness, and the awareness of leaving life before its end. This non-pecuniary damage being born before death, the personal right to compensation entered the patrimony of the victim and was transmitted to his heirs. With regard to the quantum, they claim that their quality of heirs is evidenced by a certificate of inheritance which has not been disputed, and that the judgment referring to 4 other heirs of MG LAURENT not having been given to them communicated, it is not opposable to them.
REASONS
On hereditary harm:
Any victim of damage has the right to obtain compensation from the person who caused it. This property right is
transmissible to his heirs. The reparable damage must be direct and certain, in relation to the harmful event.
In the present case, contrary to what the appellants claim, the fall of the plane is an indisputable fact, which
should not have happened under normal flight circumstances. It is therefore necessary to take into account all of the
circumstances of the accident, since the air stall, causing a sudden loss of altitude and depressurization of the
cabin, until final impact. Consequently, it cannot be argued that the passengers, who
would ignore the few minutes during which they were necessarily confronted with the terror of
vertigo of the fall, as well as the anguish then the certainty of their inexorable death, generators of suffering for all
less moral, which cannot be described as hypothetical.
The court considers that the court made a fair assessment of the quantum of this liquidated damage in the sum of 20,000 €
.
On the applicants' estate vocation:
It should be noted that the estate vocation and the respective share of Mrs. R. and Mrs. L. with respect to the sum
allocated from the head of Johan L., their son and brother who died without children, is not contested in the alternative by the
callers. Once the pleas have been rejected as to the principle of compensation for this damage, the
judgment on this count.
The appellants only make auxiliary requests regarding the basis of Ms. Ketty's estate calling
L., who according to them is not the only child of the deceased G. LAURENT. It is up to them to bring to court the
evidence on which they base their claim. The declaratory judgment of death of MG LAURENT was
established at the request of the Public Prosecutor's Office for Mrs. R., Mrs. Ketty L., Mrs. LC, Mr. Jean M., Mrs. Mr. wife
C., Miss Karina M., Mrs. Michaëlla C., and Miguèle L .. Mrs. Ketty L. for her part produces a certificate of inheritance
concerning vis-à-vis his father. In the absence of any other details relating to the relationship between these
third parties in this file, allowing their inheritance vocation and the judgment invoked by the
appellants, which is not included in their exhibits, and which in any event has never been notified or even communicated to
Ms. Ketty L. in the context of this procedure, despite the latter's request in its last
conclusions, the court has nothing to establish the alleged annoyance between the two
decisions and to reform the judgment presently referred to the court.
The appellants will continue to bear the costs of the appeal. And equity demands that they be ordered to pay
respondents compensation of € 1,500 on the basis of the provisions of article 700 of the code of civil procedure.
FOR THESE REASONS
The court, ruling within the limits of its referral; Confirm the judgment referred;
Orders the appellants to pay Ms. R. and Ms. Ketty L. the lump sum of € 1,500, on the basis of
articles 700 of the code of civil procedure,;
Order the appellants to pay the costs of the appeal;
Authorizes SELARL MATHURIN BELLIA & ROTSEN
- MEYSENDI to recover directly those costs which it would have advanced without having received a provision.
Signed by Mrs. DERYCKERE, president, and Mrs. SOUNDOROM clerk, during the delivery at which the minute was
discount.
THE REGISTRAR, THE PRESIDENT,
Composition of the jurisdiction: Ms DERYCKERE, JURISTE & Associés, SELARL Amcor, Alain MANVILLE, SELARL Mathurin Belia & ROTSEN MEYZINDI, Alberte ROTSEN MEYZINDI, Me Alberte ROTSEN MEYZINDI Contested decision: TGI Fort-de-France, Fort-de-France 2009 11-17
***
III. CA FORT DE FRANCE CH. CIVIL, JUDGMENT N ° 10/00643 (22/12/2012)
THE ASEGURADORA COLSEGUROS INSURANCE COMPANY SA WEST CARIBBEAN AIRWAYS SA FELIPE NEGRET MOSQUERO
VS/
B.
B.
FORT DE FRANCE COURT OF APPEAL CIVIL ROOM
JUDGMENT OF DECEMBER 14, 2012
Decision referred to the court: Judgment of the High Court of Fort de France, dated September 30
2008, registered under number 07/118.
CALLERS:
THE ASEGURADORA COLSEGUROS INSURANCE COMPANY, taken in its capacity as insurer of the WEST CARIBBEAN AIRWAYS Company, taken in the person of its legal representative Carera 13 AN ° 29-24 Piso 17 Ala Sur Bogota fairy bogota (colombia) represented by Me Alain MANVILLE, of SELARL AMCOR JURISTE & ASSOCIES, lawyer at the bar of MARTINIQUE
SA WEST CARIBBEAN AIRWAYS SA, company in liquidation. Calle 2, n ° 87-15 Hangar 72 MEDILLIN COLOMBIA represented by Me Alain MANVILLE, of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE Master FELIPE NEGRET MOSQUERA, the quality of the WEST CAIBBEAN AIRWAYS Calle 70 AN ° 6-24 Piso 2 BOGOTA COLOMBIA represented by Me Alain MANVILLE, of SELARL AMCOR JURISTE & ASSOCIES lawyers at the bar of MARTINIQUE
RESPONDENTS:
Mrs. Yolaine B., acting both in her own name and as a legal representative of her minor child Guy JB, born on November 24, 1994 at Lamentin Bat 28 - Touloulou Porte 8 97280 VAUCLIN SELARL MATHURIN BELIA & ROTSEN MEYZINDI, lawyers at the bar of MARTINIQUE (benefits from Total legal aid number 2010/005780 of 27/01/2011 granted by the legal aid office of FORT DE FRANCE)
Mademoiselle Daniella B Bt 28 - Touloulou Porte 8 97280 LE VAUCLIN represented by Me Alberte ROTSEN MEYZINDI of SELARL MATHURIN BELIA & ROTSEN MEYZINDI, lawyers at the bar of MARTINIQUE (benefits from Total legal aid number 2010/005794 of 27/01/2011 granted by the legal aid office of FORT DE FRANCE)
COMPOSITION OF THE COURT:
The parties were authorized to file on October 12, 2012 in accordance with the provisions of the article
779 paragraph 3 of the code of civil procedure and informed in application of article 786-1 of the same code of the names of
magistrates brought to deliberate either:
President: Ms. DERYCKERE, Advisor Assessor: Ms SUBIETA FORONDA, Advisor Assessor: Ms TRIOL, Advisor
and the date of delivery of the judgment set for 14 DECEMBER 2012 Registrar: during the debates, Ms SOUNDOROM,
JUDGMENT: contradictory,
pronounced publicly, by making available to the court registry, the parties having been previously notified
under the conditions provided for in the second paragraph of article 450 of the code of civil procedure;
FACTS, PROCEDURE, MEANS AND CLAIMS OF THE PARTIES
By judgment of September 30, 2008, the High Court of Fort de France ordered the insurance company ASEGURADORA COLSEGUROS to pay in compensation for the damage suffered as a result of the death of Mr. André V. [sic] actually Anicet V. , in the plane crash that occurred on August 16, 2005 in Venezuela: - to Ms. Yolaine B. in a personal capacity € 15,000 for non-pecuniary damage and € 5,000 for economic damage, - to Mrs B. as legal representative of her children then minors Daniella and Guy J., each € 35,000 in respect of their non-pecuniary damage and € 4,000 in compensation for the hereditary damage caused by the victim's suffering, - in addition to € 2,000 on the basis of article 700 of the code of civil procedure.
The insurer, and Me Felipe NEGRET MOSQUERA as liquidator of SA WEST CARIBEAN AIRWAYS have
appealed from the judgment, by declaration of September 30, 2010, only convictions pronounced
title of hereditary harm.
By last conclusions dated May 23, 2012, the appellants argue that this damage could not have entered the
patrimony of the deceased, transmitted to the beneficiaries since it is only hypothetical and therefore not repairable. They add that
as the accident resulted in instant death, the deceased's non-pecuniary damage cannot be accepted. In the alternative, they make
observe that the deceased having 8 descendants, children B. should only be able to claim a sum of 2,500 €
each and not not € 4,000.
Under their last submissions of March 10, 2011, the respondents, Ms. Yolaine B., acting both on her behalf
own that as the legal representative of her minor son Guy J., and Miss Daniella B. who has come of age, request
to the court to confirm the principle of compensation for hereditary prejudice of suffering in this case, by making
argue that it is indisputable that in the course of a plane crash, the passengers felt the imminence of their death
with the feeling of panic and helplessness, and the awareness of leaving life before its end. This moral prejudice
being born before death, the personal right to compensation entered the patrimony of the victim and was transmitted to his
heirs. Given the extraordinary nature of the circumstances of death, they claim in counterclaim to
fix this inheritance loss at the sum of € 35,000 and argue that it has not been shown that MV had more than 5
children as the court had held.
REASONS
On hereditary harm:
Any victim of damage has the right to obtain compensation from the one who caused it, inheritance right transmissible to his heirs. The reparable damage must be direct and certain, in relation to the harmful event.
In the present case, contrary to what the appellants claim, the fall of the plane is an indisputable fact, which
should not have happened under normal flight circumstances. It is therefore necessary to take into account all of the
circumstances of the accident, since the air stall, causing a sudden loss of altitude and depressurization of the
cabin, until final impact. Consequently, it cannot be argued that the passengers, who
would ignore the few minutes during which they were necessarily confronted with the terror of
vertigo of the fall, as well as the anguish then the certainty of their inexorable death, generators of suffering for all
less moral, which cannot be described as hypothetical.
The court considers that the court made a fair assessment of the quantum of this liquidated damage in the sum of 20,000 €
.
On the applicants' estate vocation:
In the alternative, the appellants do not dispute the quality of heirs of Daniella and Guy JB as having been the
natural children of the late Anicet V., but their hereditary part. They maintain that the latter had 8 children and not
5 as the court held. However, they produced the wrong photocopy of a document at the head of the City of
Holy Spirit, entitled Certificate of Heredity, unsigned, and undated claiming to have been established at the request of Ms.
Gabrielle C., wife of MV, and mentioning 6 children who do not all bear the name of the deceased, and without indication of
their date of birth. This unofficial and truncated document cannot carry the conviction of the court, due to the
surplus of the contradiction which it presents at the same time with the declaratory judgment of death that after investigation the parquet floor of
Fort de France requested to the wife and three legitimate children of MV, and with the judgment rendered by this
court which confirmed the authorship of MV on the children of Mrs. B. who was disputed by Mrs. C., indicating it
even that the latter had three children.
The share retained by the court in favor of Daniella and Guy JB corresponding to one fifth of the compensation for
hereditary prejudice of suffering, ie € 4,000 each will therefore be confirmed.
The appellants will continue to bear the costs of the appeal.
FOR THESE REASONS
The court, ruling within the limits of its referral;
Confirm the judgment referred;
Order the appellants to pay the costs of the appeal;
Authorizes SELARL MATHURIN BELLIA & ROTSEN MEYSENDI to recover those costs directly from it
would have made the advance without having received a provision.
Signed by Mrs. DERYCKERE, president, and Mrs. SOUNDOROM clerk, during the delivery at which the minute was
discount.
THE REGISTRAR, THE PRESIDENT,
Composition of the jurisdiction: Mme DERYCKERE, JURISTE & Associés, SELARL Amcor, Alain MANVILLE,
SELARL Mathurin Belia & ROTSEN MEYZINDI, Me Alberte ROTSEN MEYZINDI
Contested decision: TGI Fort-de-France, Fort-de-France 2008-09-30
***
IV. CA FORT DE FRANCE CH. CALENDARSTOPN ° 10/00645 (18/01/2013)
THE ASEGURADORA COLSEGUROS INSURANCE COMPANY
SA WEST CARIBBEAN AIRWAYS SA
FELIPE NEGRET MOSQUERO
VS/
L.
FORT DE FRANCE COURT OF APPEAL CIVIL ROOM JUDGMENT OF JANUARY 18, 2013
Decision referred to the court: Judgment of the judge of the High Court of Fort de France, dated 30
September 2008, registered under number 07/1645.
CALLERS:
THE ASEGURADORA COLSEGUROS INSURANCE COMPANY, taken in its capacity as insurer of the WEST CARIBBEAN AIRWAYS Company, taken in the person of its legal representative Carera 13 AN ° 29-24 Piso 17 Ala Sur Bogota fairy bogota (colombia) represented by Me Alain MANVILLE of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE
SA WEST CARIBBEAN AIRWAYS SA, company in liquidation. Calle 2, n ° 87-15 Hangar 72 MEDILLIN COLOMBIA represented by Me Alain MANVILLE of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE Master FELIPE NEGRET MOSQUERO, he is the liquidator of the WEST CAIBBEAN AIRWAYS Company Calle 70 AN ° 6-24 Piso 2 BOGOTA COLOMBIA represented by Me Alain MANVILLE of SELARL AMCOR JURISTE & ASSOCIES, lawyers at the bar of MARTINIQUE
RESPONDENT:
Madame Miguèle L., acting in personam and in her capacity as legal representative of her minor son Grégory Jean Pascal L. Les Hauts de Dillon - Bât. 5 - Gate 4 97200 FORT DE FRANCE represented by Me Marlène CUPIT, lawyer at the bar of MARTINIQUE (benefits from Total legal aid number 2011/002870 of 19/07/2011 granted by the legal aid office of FORT DE FRANCE)
COMPOSITION OF THE COURT:
The case was debated on October 26, 2012 at a public hearing, before the court composed of: Mr. FAU, President of the Chamber, Ms DERYCKERE, Advisor in charge of the report M. CHEVRIER, Advisor who deliberated on it, the parties having been informed of the date of delivery of the judgment fixed at 18 JANUARY 2013. REGISTRAR: during the debates, Mrs S.,
JUDGMENT: contradictory,
pronounced publicly, by making available to the court registry, the parties having been previously notified
under the conditions provided for in the second paragraph of article 450 of the code of civil procedure;
FACTS, PROCEDURE, MEANS AND CLAIMS OF THE PARTIES
By judgment of September 30, 2008, rectified on November 19, 2009, the High Court of Fort de France
ordered the insurance company ASEGURADORA COLSEGUROS to pay in compensation for the damage suffered from
of the death of Mr G. LAURENT and his son Johan L., in the plane crash which occurred on August 16, 2005 in Venezuela,
sums for various loss items, including Ms. Miguèle L. € 43,000 in compensation for her
non-pecuniary damage, € 15,000 in compensation for economic damage, and € 5,000 in compensation for hereditary damage
suffered by his father G. LAURENT.
The insurer, and Me Felipe NEGRET MOSQUERA as liquidator of SA WEST CARIBEAN AIRWAYS have
by declaration of September 30, 2010, appeal from the judgment, expressly limited to this count
pronounced for hereditary harm.
By last conclusions dated February 8, 2012, the appellants argue that this damage could not have entered the
patrimony of the deceased, transmitted to the beneficiaries, the death having been instantaneous, and this damage being in addition
hypothetical and therefore not repairable.
In the alternative, they point out that the inheritance loss has been assessed at a flat rate of € 20,000, and that it is up to the plaintiff to demonstrate the extent of its inheritance right, which it does not do by producing a certificate of heredity.
However, the number of heirs is uncertain, since arrested at 4 according to the judgment while another of the same day also rendered by the head of G. LAURENT allocates a sum of € 20,000 to Ketty L. as sole heir this which creates a contradiction in the inheritance devolution of the hereditary indemnity.
According to their last conclusions of November 10, 2001, Ms. Miguèle L., argues on the principle of compensation for hereditary harm caused by suffering in this case, that it is indisputable that in the course of a crash passengers, the plane felt the excruciating pain of seeing themselves die.
This non-pecuniary damage having arisen before death, the personal right to compensation entered the patrimony of the victim and was transmitted to his heirs. As regards the quantum, she argues that she sufficiently demonstrates her quality as heiress, that she does not have to produce a certificate of inheritance, and that the court misjudged the situation by awarding her 5,000 € only. She claims 30,000 € for her. In addition to compensation of € 2,000 under article 37 of the law of July 10, 1991.
REASONS
On the principle of hereditary harm:
Any victim of damage has the right to obtain compensation from the person who caused it. This property right is
transmissible to his heirs. The reparable damage must be direct and certain, in relation to the harmful event.
In the present case, contrary to what the appellants claim, the fall of the plane is an indisputable fact, which should not have happened under normal flight circumstances.
It is therefore necessary to take into account all of the circumstances of the accident, from the air stall, causing a sudden loss of altitude and depressurization of the cabin, until the final impact.
Consequently, it cannot be argued that the passengers died instantly, which would not take into account the few minutes during which they were necessarily confronted with the terror of the vertigo of the fall, as well as the anxiety and then the certainty of their inexorable death, generators of at least moral suffering, which cannot be described as hypothetical.
The court considers that the court made a fair assessment of the quantum of this liquidated damage in the amount of € 20,000.
On the applicant's estate vocation:
It should be noted that the estate vocation of Ms. L. is not criticized as such. She also had
retained by the court in view of the birth certificate of
Mrs. Miguèle L. establishing that she was the daughter of the deceased.
The first judges also calculated his hereditary vocation at the rate of a quarter, in the light of the mentions appearing in
defendants' conclusions, citing the other three children of ML, who directly settled the compensation for
their damages with the insurance company. Ms. Miguèle L. did not contest the hereditary vocation of these co
heirs, and none of the parties provides the court with any document to contradict the assessment of the
court. As for the judgment invoked by the appellants, it cannot be set up against the appellant. The court only
present file, and contradictorily, of no element allowing to note the alleged annoyance between the two
decisions and to reform the judgment presently referred to the court.
The appellants will continue to bear the costs of the appeal.
Ms. L., who is receiving legal aid, does not justify the additional costs she would have been forced to pay personally. His request based on article 37 of the law of July 10, 1991 will be rejected.
FOR THESE REASONS
The court, ruling within the limits of its referral, Confirm the judgment referred, Rejects the request based on article 37 of the law of July 10, 1991, Order the appellants to pay the costs of the appeal. Signed by Mr. FAU, President of the Chamber, and Mrs. RIBAL, Registrar, during the delivery, to which the minute has been postponed. THE REGISTRAR, THE PRESIDENT,
Composition of the jurisdiction: M. FAU, JURISTE & Associés, SELARL Amcor, Alain MANVILLE, Me Marlène
CUPIT
V. CA FORT DE FRANCE CH. CALENDARSTOPN ° 10/00634 (19/04/2013)
***
VI. CA FORT DE FRANCE CH. CALENDARSTOPN ° 10/00667 (07/06/2013)
G.
VS/
ASEGURADORA COLSEGUROS INSURANCE COMPANY SA WEST CARIBBEAN AIRWAYS FELIPE NM
Judicial litigation JurisData number: 2013-024118
FORT DE FRANCE COURT OF APPEAL CIVIL ROOM JUDGMENT OF JUNE 07, 2013 Decision referred to the court: Judgment of the High Court of Fort-de-France, dated December 15, 2009, registered under number 07/01725.
CALLING:
Monsieur Henri Augustin G.
represented by Me Laurence HO-L., lawyer at the bar of MARTINIQUE
(benefits from Total legal aid number 2012/003629 dated 18/09/2012 granted by the aid office
FORT DE FRANCE)
INTIMES:
ASEGURADORA COLSEGUROS INSURANCE COMPANY, taken in the person of its legal representative represented by Me Alain M., lawyer at the bar of MARTINIQUE
SA WEST CARIBBEAN AIRWAYS represented by Me Alain M., lawyer at the bar of MARTINIQUE Maître FELIPE NM, es quality of liquidating agent of the company West Caribbean Airways represented by Me Alain M., lawyer at the bar of MARTINIQUE
COMPOSITION OF THE COURT:
Pursuant to the provisions of articles 786 and 910 of the code of civil procedure, the case was debated at the public hearing of April 12, 2013, the lawyers did not oppose it, before Mrs. DERYCKERE, counselor, in charge of the report . This magistrate reported the pleadings in the deliberations of the court, composed of: M. LALLEMENT, President of the Chamber Ms DERYCKERE, Advisor Ms SUBIETA-FORONDA, Advisor
The parties have been informed of the date of delivery of the judgment set for 07 JUNE 2013 Registrar, during the debates: Ms SOUNDOROM,
JUDGMENT: contradictory,
pronounced publicly, by making available to the court registry, the parties having been previously notified in
the conditions provided for in the second paragraph of article 450 of the code of civil procedure;
FACTS, PROCEDURE, MEANS AND CLAIMS OF THE PARTIES
By judgment of December 15, 2009, the High Court of Fort de France condemned the company
insurance ASEGURADORA COLSEGUROS to be paid with provisional execution to Mr. Henri G. in repair of the
prejudice suffered due to the death of his parents, his sister, his niece and nephew, and his brother-in-law, in the plane crash
occurred on August 16, 2005 in Venezuela, various sums in respect of non-pecuniary damage, hereditary damage related to
suffering of direct victims, loss of luggage in addition to compensation on the basis of article 700 of the code
of civil procedure, and declared the judgment opposable to Me Felipe NM as liquidator of the company West
Caribbean Airways (WCA).
By declaration of October 5, 2010, Mr. G. appealed from the judgment.
In her last conclusions of December 7, 2012, Miss Inna G., her daughter, intervened voluntarily alongside
the appellant. In the body of his conclusions he also makes requests on behalf of his minor son Mehdi G ..
According to these latter conclusions, Mr G. asked the court to reconsider his requests for compensation post by post.
M G.:
Points out that the Montreal Convention of May 28, 1999, ratified by France and Colombia alone applicable to the present case, fixes the carrier's objective and automatic liability up to 100,000 SDR per passenger who has died or suffered injuries on board an aircraft either on the date of the judgment 172,948 euros, the carrier being able to, beyond this sum, be relieved of its responsibility by demonstrating that it has not committed negligence or that the damage results from the fault of a third party.
recalls that in this drama, he and his two children lost six members of their family, that it destroys the life of a man, and that he is waiting for the liquidation of his prejudice to be able to mourn.
specifies that at the time of the disaster, he was in the process of divorce and had returned to live with his parents where he received his children on the occasion of visitation and accommodation rights, that the brutal deprivation of support and affection of his closest parents plunged him into a long and lasting depression.
also intends to demonstrate the emotional ties and the community of economic interests uniting him with his brother-in-law, and founding his request for compensation from the head of the latter that the court had refused him.
figures his claim for non-pecuniary damage and affection in the sum of 100,000 euros for the loss of his parents, 80,000 euros for the loss of his sister, 50,000 euros for the loss of his brother-in-law, and 30,000 euros for the loss of his two nephews.
argues that no sum was paid for the prejudice of his children, whose prejudice of affection is undeniable.
Inna G., now an adult, requests 15,000 euros for the loss of her grandparents, 10,000 euros for the loss of her godmother and her uncle and 5,000 euros for the loss of her cousins, a total sum of 60,000 euro and Mr G. asks for his minor son Mehdi an equivalent compensation.
In addition, he requests for himself specific compensation for the psychic trauma he undergoes up to 30,000 euros, and he explains that his traumatic illness caused him dazzling glaucoma with blindness on the left 4 months after the drama, which gives him an IPP of 70% which he claims to repair up to 199,500 euros. For hereditary damage, he seeks 30,000 euros per passenger to whom he succeeds, or 90,000 euros.
He claims compensation for his property damage, drawn from the professional incidence linked to his mental trauma, citing the fact that he has never been able to return to his work, and that he only lives in the HSO for 600 euro per month. He asks for 580,800 euros. Besides 150 350 euro due to the loss of financial support from his parents. He further argues that his parents had started to organize their succession to provide their children with an exemption from inheritance tax, which the accident did not allow to do, namely 60% of the estate assets which represents 349,764 euros. He also claims 2,000 SDRs for the loss of baggage for his nephews, who were entitled to one bag each, or 3,600 euros. In the alternative, he claims compensation for his loss up to 100,000 SDR for the loss of his parents and his sister, and 50,000 SDR for each of his nephews. He also requests 5,000 euros on the basis of article 700 of the code of civil procedure applied to the appeal procedure.
The company ASEGURADORA COLSEGUROS and Me Felipe NM in their capacity as liquidator of the company WCA, in their last written responses in response filed on January 10, 2013 conclude with the confirmation of the judgment except on the hereditary prejudice, and the rejection of all the other requests.
According to them, the damage known as suffering victims is not reparable because hypothetical, and could not enter the heritage of the deceased whose death was instantaneous.
Furthermore, in the absence of questioning of his social security organization, on pain of the nullity of this judgment, Mr. G. must be ordered to regularize his procedure, or his claims for compensation for his damage subject to appeal must be rejected.
They do not oppose the late requests for the first time at issue in the appeal by and on behalf of the children of MG, but oppose the children's requests relating to the loss of their cousins for lack of demonstration of '' a special bond of affection that united them.
For the rest, they maintain that the Montreal Convention only repeats the principle of French law of the equivalence of damage to reparation, in order to avoid any unjust enrichment of the victim, and that with regard to this principle the requests for MG are excessive, and not justified both medically, economically or financially.
REASONS
The Montreal Convention of May 28, 1999, the application of which is not disputed in this dispute, provides in its article 17-1 that the carrier is responsible for the damage occurring in the event of death or bodily injury suffered by a passenger, by the mere fact that the accident which caused death or injury occurred on board the aircraft or during boarding or disembarking operations. Article 21 of the agreement specifies that for damage provided for by this provision, and not exceeding 100,000 SDR, the carrier cannot exclude or limit its liability, whereas it is not liable for damage exceeding this value s '' it proves that it is not due to his negligence or other prejudicial act, or that it results from the negligence or other prejudicial act of a third party.
Contrary to the applicant's reading of it, it is not a principle of automatic lump sum compensation
a minimum amount of 100,000 SDRs, but a regime of liability based on an irrefutable presumption or
simple depending on the assessment of the damage suffered. We must therefore first liquidate the damage.
Hereditary harm
It should be recalled that any victim of damage has the right to obtain compensation from the person who caused it. This right
inheritance is transferable to his heirs. The reparable damage must be direct and certain, in relation to the fact
damaging.
In the present case, contrary to what the respondents claim, the fall of the plane is an indisputable fact, which would not have
should not have happened under normal flight circumstances.
It is therefore necessary to take into account all of the circumstances of the accident, from the air stall, causing a sudden loss of altitude and depressurization of the cabin, until the final impact.
Consequently, it cannot be argued that the passengers died instantly, which would not take into account the few minutes during which they were necessarily confronted with the terror of the vertigo of the fall, as well as the anxiety and then the certainty of their inexorable death, generators of at least moral suffering, which cannot be described as hypothetical.
The court considers that the court made a fair assessment of the quantum of this liquidated damage in the sum of 20,000
euro.
MG does not dispute that he is the heir only of his parents and his sister.
Having justified being the sole heir, his vocation is to collect this liquidated sum at 20,000 euros from each of them, in full. The judgment will be confirmed on this basis.
It should be noted that the compensation for loss of luggage expressly provided for in article 22 of the Montreal Convention compensates for the material damage suffered by passengers, and therefore responds to the same logic drawn from the claimant's estate vocation.
The first judges can only be approved of having granted him the lump sum indemnity of 1000 SDR defined by the convention for each of his parents and for his sister, excluding that of his nephews, for whom it should have been sought whether or not there are successors in the paternal branch, in a direct line or in a collateral line at a rank potentially preferable to his own.
However, it does not demonstrate this. The judgment will be confirmed on this count.
On the prejudice of affection of Mr. Henri G.:
Direct personal harm is certain for the victims by ricochet relating to the brutal uprooting of a loved one from the affection of his loved ones, is liquidated taking into account the circumstances of the accident, the proximity and the links previously maintained between them.
It is perfectly justified by MG, that he lived in his parents' home because of his ongoing divorce proceedings, which reinforces the perception of the emotional and moral support that he received from his parents. It is justified by the united character of this family and the close ties maintained between each member of the family.
It is also justified by the friendship and the community of economic interests which united him to his brother-in-law.
In addition, a special assessment must be made of the non-pecuniary damage suffered by MG due to the fact that he left
in the tragedy all of his close relatives, his family by blood being reduced in an instant to his children and him.
The court considers that this head of damage for MG must be repaired up to 60,000 euros for the loss of each of his parents, 30,000 euros for the loss of his sister, 15,000 euros for the loss of each of his nephews, and 8,000 euros for the loss of his brother-in-law.
The judgment will be reformed in this sense.
On the psychological trauma invoked by Mr. G.:
Mr. G. provides a medical certificate dated May 23, 2006, attesting to his post traumatic stress disorder with episode
major depression following the air crash in which he lost his entire family. On the date of the certificate, the practitioner
judged his stationary state with persistent anxiety and depressive disorders.
In this case, therefore, the demonstration of what
MG suffers an indirect damage distinct from the loss of affection linked to the actual loss of his relatives
parents in the broad sense, and in direct connection with the air disaster establishing the right to compensation in respect of the carrier.
His request will be granted in full, the sum of 30,000 euros being allocated to him from then on. The
judgment will be quashed on this point.
On the Injury of affection of Inna and Mehdi G.:
The admissibility of the applications presented on appeal by the latter, not being discussed, it will be indicated on the merits, that the considerations above retained must be repeated for the children of Mr G., whose marital difficulties have not nothing affected the relations between his children and their paternal family.
To this must be added the circumstance that their uncle and aunt were respectively their godfather and godmother, which induces the disappearance of a reference of another order in their life, but perfectly admissible taking into account the dynamics which animated this family, as reflected in the photographs, the letters exchanged and the testimonies.
Finally, the bonds of friendship that existed between the 4 cousins, in this context of the sudden disappearance of their paternal collateral branch, make it possible to found these heads of claim that the respondents contest.
In these conditions, their moral prejudice will be repaired as follows:
For each of them, the loss of their grandparents will be evaluated at 15,000 euros each, that of their uncle and aunt, at 8
000 euros, that of their cousins, at 4,000 euros. It will be added to the judgment of these chiefs.
On the various bodily injury compensation items claimed:
Article 17-1 of the Montreal Convention mentioned above lays down the principle of compensation by the air carrier, for damages such as death and bodily injury produced on board the aircraft. This is not the case with Mr G. The bodily injury which he alleges, namely dazzling closed-angle glaucoma, was not caused by the accident.
According to him, it is only the result of the state of stress, emotion and pain felt due to the loss of his family in the air disaster.
Assuming scientifically proven the link between the traumatic syndrome and the vision pette, it would be a result of the psychic trauma already compensated above, and not of the plane crash itself.
Thus, beyond the procedural irregularity due to the lack of official challenge (see Exhibit 29 amicable appeal letter in declaration of joint judgment) of its social security organization and other possible third-party payers, this is the very foundation of his right to compensation which is lacking in this case.
His claims for compensation for a permanent functional deficit and its professional impact will therefore be rejected.
On material damage:
It is up to Mr. G. to demonstrate the existence of economic damage directly related to the death of his parents.
If it is not disputed that he lived at the domicile of the latter, it is just as constant that he had his own income, which he figures at 2,200 euro per month, and which he himself qualifies in his conclusions of corrects, so that he cannot claim as he presents in his calculation of loss of income, the status of a dependent child to whom we would recognize a share of consumption of 15% of the income of his parents.
Mathematically, if one takes into account one's own income in determining the annual household resources, one's share of consumption of 15% is absorbed entirely in one's own contribution, so that there is no justification for a loss in the income of missing relatives, from whom he also inherited the heritage.
The rejection of this request by the first judges can only be confirmed.
Regarding the exemption from inheritance tax, he only pays a letter from his parents dated May 2, 2005, explaining to their children that they plan to transmit their real estate through an SCI.
However, the chances of realization of this legal arrangement in the absence of any other preparatory act remain hypothetical but no study is provided on the expected tax benefit of the transaction, nor the justification for the calculation of inheritance tax by tranches, or their rate indicated at 60% for a direct descendant.
Besides, there is no justification for the liquidation of the succession and the rights.
The only justification for material damage is the sum of 5,416.27 euros remaining payable by Mr G. in respect of the acquisition of a funeral concession in equal parts with Mr M., the father of his stepson. brother.
In this state of the supporting documents provided, the claim for pecuniary damage will be allowed up to a sum rounded up to 5,500 euros.
In the end, the damage thus liquidated being less than the equivalent of 100,000 SDR per passenger, the transporter duly insured and guaranteed by the company ASEGURADORA COLSEGUROS, must compensate him without the possibility of exemption, which is not incidentally not requested by the respondents.
Consequently, the subsidiary claim to round up compensation to 100,000 SDR per missing passenger has no basis in the Montreal Convention.
The costs will be borne by the respondents and equity will order to allocate a sum of 5,000 euros on the
basis of article 700 of the code of civil procedure for costs incurred in appeal.
FOR THESE REASONS
Confirm the judgment referred except in its provisions relating to the loss of affection of Mr G., and to the separate loss
linked to mental trauma;
Ruling again and adding to it;
Orders the insurance company ASEGURADORA COLSEGUROS to pay to Mr G. the sums of: - 60,000 euros for the loss of Mrs. Eugénie G., - 60,000 euro for the loss of M Joseph G., - 30,000 euro for the loss of Mrs. Murielle G. marries M., - 15,000 euro for the loss of Nicolas M., - 15,000 euro for the loss of Maëva M., - 8,000 euros for the loss of Mr. Max M., - 30,000 euros for separate mental trauma, - 5,500 euros in respect of pecuniary damage,
Condemns the insurance company ASEGURADORA COLSEGUROS to pay to Mr G. as legal representative of his minor son Mehdi G., the sums of: - 15,000 euros for the loss of his grandmother Eugénie G., - 15,000 euros for the loss of his grandfather Joseph G., - 8,000 euro for the loss of his uncle Max M., - 8,000 euro for the loss of his aunt Murielle M., - 4,000 euros for the loss of his cousin Nicolas, - 4,000 euros for the loss of his cousin Maëva,
Condemns the insurance company ASEGURADORA COLSEGUROS to pay to Miss Inna G. the sums of: - 15,000 euros for the loss of his grandmother Eugénie G., - 15,000 euros for the loss of his grandfather Joseph G., - 8,000 euro for the loss of his uncle Max M., - 8,000 euro for the loss of his aunt Murielle M., - 4,000 euros for the loss of his cousin Nicolas, - 4,000 euros for the loss of his cousin Maëva,
Holds that all of the allowances awarded in appeal will generate interest at the legal rate as of this judgment,
Condemns the insurance company ASEGURADORA COLSEGUROS to pay Mr G. the sum of 5000 euro on the
basis of the provisions of article 700 of the code of civil procedure,
Reject excess requests,
Declares the present judgment enforceable against Me Felipe NM as liquidator of the company West Caribbean Airways,
Orders ASEGURADORA COLSEGUROS to pay the costs of the appeal.
Signed by Mr. LALLEMENT, President of the Chamber, and Ms. RIBAL, Registrar, when the minute was postponed.
THE REGISTRAR, THE PRESIDENT,
***
VII. CA PARIS POLE 2, ROOM 2,STOPN ° 13/04044 (19/12/2014)
Large deliveries FRENCH REPUBLIC
to the parties on: ON BEHALF OF THE FRENCH PEOPLE
COURT OF APPEAL FOR PARIS
Pole 2 - Bedroom 2
Registration number in the general directory: 13/04044
Judicial litigation
Decision referred to the Court: Judgment of January 11, 2013 -Tribunal de Grande Instance de Bobigny - RG n ° 11/06160
APPELLANTS
Madame Victoire by Jolie K.
Represented by Me Kenneth W. of SELARL W., lawyer at the bar of PARIS, toque: P0046
Mrs. Annie-Aurélie K.
Represented by Me Kenneth W. of SELARL W., lawyer at the bar of PARIS, toque: P0046
respondents
AIR FRANCE company taken in the person of its legal representative
Represented by Me Jacques B., lawyer at the PARIS bar, toque: G0334
Assisted by Me Benjamin P., lawyer at the bar of PARIS, toque: P429
KENYA AIRWAYS Company (having its establishment in […]) taken in the person of its legal representative
Represented by Me Jacques B., lawyer at the PARIS bar, toque: G0334
Assisted by Me Benjamin P., lawyer at the bar of PARIS, toque: P429
COMPOSITION OF THE COURT:
Pursuant to the provisions of articles 786 and 907 of the code of civil procedure, the case was debated on November 14, 2014, in public hearing, the lawyers not having opposed it, in front of Mrs Anne VIDAL, president of the chamber, responsible for examining the file.
A report was presented at the hearing under the conditions of article 785 of the Code of Civil Procedure.
This magistrate reported on the pleadings in the deliberations of the Court, composed of:
- Mrs. Anne VIDAL, chamber president
- Mrs. Marie-Sophie RICHARD, advisor
- Mrs. Isabelle CHESNOT, advisor
Registrar, during the debates: Mr. Guillaume LE FORESTIER
STOP:
- contradictory
- by making the judgment available at the Court registry, the parties having been informed thereof in advance under the conditions
provided for in the second paragraph of article 450 of the code of civil procedure.
- signed by Mrs. Anne VIDAL,
chamber president
and by
Mr. Guillaume LE FORESTIER, clerk to whom the minute of the decision was handed over by the signatory magistrate.
****
FACTS, PROCEDURE AND CLAIMS OF THE PARTIES:
Thérèse N. wife K., residing in Douala (Cameroon) bought an air ticket at the Air France counter in this city
return trip between Douala and Guangzhou (China) with departure on May 5, 2007 and stopover in Nairobi (Kenya) by paying the price
of the ticket for part with miles from his "Flying Blue" card. The plane, a Boeing 737-800 belonging to the company
Kenya Airways, crashed a few minutes after takeoff leaving no survivors.
According to acts of bailiff dated April 22 and 23, 2009, Mrs. Victoire K. and Mrs. Anne-Aurélie K., daughters of the victim,
have summoned before the High Court of Bobigny the company Air France, the company Boeing Company and
Kenya Airways, as well as CFM International, Thalès Group and Thalès Avionic in compensation for their
prejudices.
By judgment dated January 12, 2011, the Paris Court of Appeal, ruling on the appeal from an order of the enforcement judge
state, noted the withdrawal of the plaintiffs against the companies Thalès Group and Thalès Avionic and declared the
competent regional court of Bobigny, holding that the company Air France had intervened in the capacity of
contractual carrier within the meaning of the Montreal Convention and Kenya Airways as carrier of
made.
By order of March 22, 2012, the pre-trial judge declared perfect the withdrawal of the plaintiffs from
against CFM International and Boeing Company and the proceedings therefore continued against
only from Air France and Kenya Airways.
Mrs. Victoire K. and Mrs. Anne-Aurélie K. asked for the joint condemnation of the company Air France and the
Kenya Airways company to pay them various sums as damages in compensation for their damages,
arguing that the question of the quality of carrier of these two companies had already been decided, that the report
of investigation had brought to light a manifest misconduct and that they were the only heirs to Marie-Thérèse
N. wife K.
By judgment dated 11 January 2013, the Bobigny tribunal de grande instance declared the company Air France and the company Kenya Airways responsible towards Thérèse N. wife K. for the harmful consequences of the aircraft accident which occurred May 5, 2007, considering that the judgment of the court of appeal of January 12, 2011 had no authority of res judicata except on the competence but retaining that the company Air France did indeed have the quality of contractual carrier.
He condemned them in solidum to repair the entire damage, without applying the limits of guarantee of the Montreal Convention because of the absence of exonerating causes and in the light of the results of the investigation concluding to the faults of piloting, and to pay Mrs. Victoire K. and Mrs. Anne-Aurélie K. the sum of 25,000 euros each for non-pecuniary damage, that of 15,000 euros for non-pecuniary damage to the victim, that of 1,438.81 euros for costs funeral and transport and an amount equivalent to 1,000 special drawing rights (SDR) in force on the date of its decision in respect of the loss of luggage and personal effects.
He dismissed Mme Victoire K. and Mme Anne-Aurélie K. for the remainder of their claims, with the exception of the sum of 5,000 euros in application of the provisions of article 700 of the Code of Civil Procedure.
Ms. Victoire K. and Ms. Anne-Aurélie K. appealed this decision following a declaration dated February 27
2013.
By order dated October 17, 2013, the Status Advisor ordered the provisional execution of the
sentences pronounced by the court against the only company Kenya Airways in favor of Mrs. Victoire K.
and Mrs. Anne-Aurélie K. but rejected their request for payment of a provision ad litem.
——————–
Mrs. Victoire K. and Mrs. Anne-Aurélie K., according to their last conclusions served on November 4, 2014,
ask the court to:
Confirm the decision referred in that it declared the company Air France and the company Kenya Airways responsible for
harmful consequences of the accident which occurred on May 5, 2007 with regard to Thérèse N. wife K.,
Reform it on the quantum of compensation awarded and jointly condemn Air France and the company
Kenya Airways to pay them the following amounts:
In respect of non-pecuniary damage, the sum of 50,000 euros each,
In respect of the material damage to the victim, the sum of 19,710 euro,
In respect of the moral prejudice of the victim, the sum of 70,000 euro,
For funeral, travel and subsistence expenses, the sum of 20,000 euro,
In respect of the loss of life expectancy of the victim, the sum of 150,000 euro,
In respect of the loss of aid and subsidies for the girls, the sum of 100,000 euros,
In respect of the damage resulting from the loss of value of the business or, in the alternative, in respect of the loss of chance for his heiresses to receive a larger heritage, the sum of 256,551 euros,
For the loss of luggage, to be distributed among the beneficiaries, the equivalent in euros on the day of the decision of 1000 SDR,
As irreparable costs incurred at first instance, the sum of 83,047.75 euros,
Order Air France and Kenya Airways to pay them a sum of 25,000 euros in application
of the provisions of article 700 of the code of civil procedure in appeal.
They make the following argument:
On Air France's liability as a contractual carrier: two decisions retained this quality, the judgment
of the court of January 12, 2011 having res judicata and the judgment of the tribunal de grande instance de Bobigny du
of January 11, 2013 considering that the only contractual document provided was an Air France document mentioning
the issue by Air France, the SKYTEAM reference and the flight conditions without mention of the IATA and MITA conditions,
so that the buyer was not informed of the alleged quality of Air France, namely the agent of the company
Kenya Airways;
On the liability of carriers and full compensation: it is incontestable in application of article 17
paragraph 1 of the Montreal Convention and of article 21 2 ° which provides that the carrier is not responsible for
damage beyond 100,000 SDR if it proves that it is not due to negligence or an act or omission
prejudicial to the carrier, its servants or its agents; however, in view of the report's conclusions
investigation, the crew lost control of the aircraft due to improper control of operations, lack of
coordination between crew members, non-compliance with flight monitoring procedures and confusion
in the use of the autopilot, in addition to takeoff without the authorization of the control tower, and the company Kenya
Airways was aware of the captain's shortcomings in his performance; compensation must therefore be
total and unlimited;
On the plaintiffs' standing: they act as heirs to Thérèse N. wife K. (daughters of the
deceased) in reparation for the prejudices thereof and on a personal basis in reparation for their own prejudices;
On the prejudices of Thérèse N. wife K.: it is necessary to repair the moral prejudice born from the extreme anguish of the passenger after takeoff and the suffering undergone between the moment of the crash of the aircraft and the presumed death to have intervened only at the time of the discovery of the plane, 40 hours later; The loss of life expectancy which constitutes a separate damage must also be repaired, taking into account the age of the victim (52 years) and his life expectancy for another 25 years on the basis of 6,000 euros per year; the material damage is constituted by the loss of the cash which the victim had taken for his business in China, estimated at 19,710 euros, and by the loss of value of his business calculated by a firm of experts on the base of the last three years;
The applicants' own damage: they claim compensation for their non-pecuniary damage (which must include the
collective dimension of the disaster, the difficulties in identifying the body and the delay in repatriating the
body), funeral and travel expenses and stays on site, loss of assistance and subsidies which they
benefited from their mother, Victoire was still a student in Germany at the time of death, and the loss
chance of receiving a larger inheritance (if the court did not accept the loss of the business); they
indicate in this regard that they are the only legitimate heirs of their father, who died in 2011, that they are therefore entitled to
58% from its share of the community on the business and that in view of the consistency of the common heritage of
spouse, they must be allocated all of the compensation as a provision on their part;
On the costs incurred: they are justified by the invoices of lawyers including research and travel for
determine responsibilities and account must be taken of the applicants' financial situation, one nurse
in Belgium, the other computer scientist in Germany, on maternity leave.
The company Air France and the company Kenya Airways, in the state of their last writings served on October 3, 2014,
conclude, on the responsibility, the reversal of the judgment in that it retained the responsibility of the company Air France
and to the exclusion of the latter and on the compensation, to its partial reversal, asking the court, to:
Reform the judgment in that it has allocated the sum of 15,000 euros in respect of non-pecuniary damage to the victim and reject
this application,
Confirm the judgment in that it applied the ceiling of 1000 SDR for compensation for material damage
of the victim,
Confirm it in that he dismissed the claim for loss of survivorship,
Confirm it on the funeral costs,
Reduce the claim for moral prejudice to the two daughters of Thérèse N. wife K.,
Confirm the judgment in that he rejected their requests for loss of assistance and subsidies,
Confirm it in that he dismissed the claims for weakening of the victim's assets and loss of
chance to perceive a more significant inheritance,
Reject the request for loss of value of the business and, in the alternative, say that the fund had a
value of 127,000 euro and that the lost chance does not exceed 15% and to say that the plaintiffs are not entitled to
claim that half the lost value,
Convict in solidum Ms. Victoire K. and Ms. Anne-Aurélie K. to pay them the sum of 5,000 euros in application of the provisions of article 700 of the code of civil procedure and reject their request on this basis both with regard to the Air France company than Kenya Airways company.
They essentially put forward the following pleas and arguments:
On the responsibility of Air France: the plaintiffs sought its responsibility to validate the
jurisdiction of the French courts but formulate grievances only against the company Kenya Airways; it's good
right that the court held that the judgment of the court did not have the force of res judicata, its device containing no
provision on the status of contractual carrier of Air France; the only documentary evidence is the ticket
itself and its statements that Air France is only the issuer while the carrier
contractual and de facto is Kenya Airways (mention “carrier: KQ” and flight number “KQ507”); even if the
ticket was issued as part of the Flying Blue loyalty program, these are the partner's general conditions which
apply, therefore those of Kenya Airways which is necessarily the contractual carrier; the document delivered after
the accident to consorts K. and constituting their document n ° 1 is not relevant to assess the belief of Thérèse N.
marries K. as an Air France carrier and the fact that it was printed on Air France paper support is not
not convincing;
On the estate action of Ms. Victoire K. and Ms. Anne-Aurélie K.: the plaintiffs do not justify the
possession of cash by Thérèse N. wife K., in the alternative, article 22 of the
Montreal Convention and limit repair to 1,000 SDR; the moral prejudice of the victim must be rejected because
the suddenness of the accident and the instantaneous death of it, the personal injury not having arisen in the
patrimony of the deceased upon his death; the loss of chance of survival loss only occurs when the victim
did not receive the care necessary for his condition, but the suddenness of the accident made it possible to rule out this head of damage;
The applicants' prejudices: the claim for loss of assistance and subsidies must be rejected in the absence of
for the plaintiffs (aged 24 and 36 at the time of death) to demonstrate that their mother continued to provide
financially to their needs; the damage called weakening of the heritage or loss of value of the fund
trade is not compensable because it is purely hypothetical in that it amounts to speculating on the evolution of the
patrimony of the victim and on the date of his "natural" death, it being recalled that the heirs have no acquired rights
on the patrimony of their parent, which the latter freely disposes of; moreover, the expert report produced is not
convincing, in the absence of knowledge of attempts to resell the fund or its assets, and in the absence of
identification of elements of the local context influencing its assessment; alternatively, the respondents file a
ML report concluding that the fund can be estimated at 127,000 euros and the appellants cannot
claim that at half the value of the fund which was part of the community of the spouses K. which is not liquidated;
Costs: they are exorbitant while the case does not present any particular difficulty since responsibility
objective of Kenya Airways has never been challenged; in addition, the respondents made an offer
settlement after the judgment up to 95,000 euros, greater than the sums awarded by the court.
The proceedings were terminated by ordinance dated November 14, 2014.
REASONS FOR DECISION:
On the responsibility of the company Air France as a contractual carrier:
Considering that in application of the combined provisions of articles of articles 77 and 95 of the code of civil procedure, it is only when the judge has, by ruling on jurisdiction, decided in the operative part of the judgment the substantive question on which this jurisdiction that its decision has the force of res judicata on the merits;
1. In the present case, the Court of Appeal, in its judgment of 12 January 2011, overturned the order of the pre-trial judge having declared the French courts internationally incompetent, and declared the Bobigny tribunal de grande instance competent to rule on the claims presented by Ms. Victoire K. and Ms. Anne-Aurélie K.;
2. that, of course, in arriving at this decision, it considered that, if the company Kenya Airways had the status of de facto carrier, the company Air France had the status of contractual carrier, which justified the choice of the plaintiffs, on the basis of article 42 of the code of civil procedure, to summon the defendants before the high court of the place of the registered office of the contractual carrier; but that this consideration not having been included in the system does not benefit from the authority of res judicata attached to the decision;
Considering that:
Mrs. Victoire K. and Mrs. Anne-Aurélie K. maintain that the company Air France has the quality of contractual carrier within the meaning of article 39 of the Montreal Convention while the company Kenya Airways has that of de facto carrier, the first having sold the ticket to Thérèse N. married K. and concluded the transport contract with her, whereas it was the second who made the flight;
they produced in the proceedings to convince the court, as they convinced the first judges, the electronic ticket which was published by the company Air France, after the accident, on an Air France boarding pass form and which includes a ticket number 05721145889336 whose code 057 corresponds to the company Air France;
the court held that this electronic ticket constituted the contractual document binding the parties and that the company Air France was the contractual carrier for having sold the ticket which had been paid, at least in part, by loyalty points from the Flying Blue program and carried the Skyteam reference, and that it made no reference to the IATA (Air Transport Association) conditions or to the MITA (Multilateral Interline Traffic Agreements) binding the companies together and which would have enabled the purchaser of the ticket to oppose 'Air France only acted as an agent for Kenya Airways;
it is clear that, if the "ticket" produced by the beneficiaries of Thérèse N. wife K. includes the words "Air France" it is because of the simple fact that it was published, a posteriori, on a boarding pass for that company when it was actually an electronic ticket that did not contain these particulars;
it cannot therefore be taken as an argument from this "ticket" to maintain that Thérèse N. wife K. could legitimately think of traveling with Air France;
the electronic ticket mentions that it is issued (issued by) by Air France (its number can therefore only start with the code 057) but that it clearly indicates that the transport is carried out by the company Kenya Airways (carrier: KQ) on a regular flight (KG 0507);
its price was paid by the use of loyalty points from the Flying Blue program which allows the traveler to use the Flying Blue Miles accumulated on the flights of each of the Sky Team Alliance companies to board the flights of these companies , among which is Air France and Kenya Airways;
the use by Thérèse N. wife K. of her Flying Blue loyalty points is therefore not a determining factor in the quality of Air France's contractual carrier, as is the mention "Sky Team" on the ticket;
certainly, the electronic ticket does not refer to the IATA and MITA agreements - which led the court to consider that the company Air France could not claim the status of agent of the carrier whose services were sold - but that it was issued in execution of the loyalty program, the conditions of which are perfectly enforceable against Thérèse N. wife K. and which provide that the premiums and benefits obtained are subject to the general conditions of the partner providing them;
Thérèse N. wife K. knew therefore perfectly that she acquired from the Air France counter in Douala an Award ticket on a flight carried out by the company Kenya Airways and meeting the general conditions of this carrier;
it is also interesting to note in this regard that all the Flying Blue Miles acquired by Thérèse N. wife K. had been purchased on Kenya Airways flights from or to Douala;
it should therefore be considered that the issue by the company Air France of a ticket on a Kenya AIRWAYS flight issued in execution of the Flying Blue program does not allow it to retain its status as a contractual carrier;
the judgment will therefore be reformed in that it held that the responsibility of the company Air France was engaged;
On the responsibility of the company Kenya Airways and the compensation for the damages suffered:
Considering that under article 17.1 of the Montreal Convention, the carrier is responsible for the damage
occurred in the event of death or bodily injury suffered by a passenger by that alone as the accident which caused death or
the injury occurred on board the aircraft or during any embarkation or disembarkation operation; than
Article 21.1 provides that the carrier cannot exclude or limit its liability for damage not exceeding
100,000 special drawing rights per passenger and that article 21.2 adds that he is not responsible for damages
exceeding 100,000 special drawing rights if it proves that the damage is not due to negligence or another act
or harmful omission of the carrier, its agents or agents, or that the damage results
solely negligence or other harmful act or omission of a third party;
That the court rightly noted that the death of Thérèse N. wife K. occurred during flight KQ 0507 of the
company Kenya Airways and that this company did not oppose any cause for exemption within the meaning of article 21.2
likely to exclude or limit its warranty; that it will therefore be confirmed in that it has condemned Kenya society
Airways to repair the entire damage suffered as a result of the death of the victim, without any limitation of amount;
Considering that article 22.2 of the Montreal Convention also provides that, in the carriage of luggage, the
carrier's liability in the event of destruction, loss, damage or delay, is limited to the sum of 1,000 rights
special draws (SDR) per passenger, except special declaration of interest in delivery made by the passenger at the time of
delivery of checked baggage; that Kenya Airways will therefore be ordered to make good the material damage
suffered by the victim, subject to justification, within the limit of this ceiling, failing a special declaration to
boarding;
Considering that Mrs. Victoire K. and Mrs. Anne-Aurélie K. are admissible to act in compensation for both their damages
personal due to the death of their mother, than those suffered by her before her death and entered into her patrimony,
in their capacity as beneficiaries evidenced by the act of notoriety produced during the debates;
1- On the prejudices of Thérèse N. wife K.:
Non-pecuniary damage:
Considering that it appears from the technical investigation report on the accident that:
the plane crashed very quickly after take-off since it took off at 12:06 am and it crashed at 12:07 am;
the fact remains that the passengers perceived the extremely dangerous situation in which they found themselves because of the very bad weather which had forced the pilot to postpone the departure, initially scheduled at 11 p.m., and especially because of the roll movements and tilt angles undergone by the device and making fear the worst (roll to the right, then to the left, then again to the right with tilt angle at 55 ° towards the right at 0:07:28, reaching 70 ° at 0:07:29 and 115 ° at 0:07:35) in the context of a very violent thunderstorm, followed by a dive fall of 2800 feet in a few seconds;
it is indisputable that in these few moments, the passengers were aware of the inevitable nature of the crash that was going to take place and of their imminent death;
this resulted for them, and in particular for Thérèse N. wife K., non-pecuniary damage which must receive compensation and which necessarily entered into her patrimony before her death;
this damage was rightly assessed by the court at the sum of 15,000 euros and that it was in vain that the appellants asked for the increase by invoking the existence of physical suffering before death which is not demonstrated and which cannot be accepted, the death can only have been immediate taking into account the conditions in which the plane crashed on the ground and the findings of the technical investigation holding that the impact occurred at high speed;
Loss of life expectancy:
Considering that the court rightly rejected any compensation for a loss of chance related to the life expectancy of the
victim, holding that the latter could not exercise the right to live until a certain age, taking into account
vagaries and accidents of life as well as fluctuations in the state of health of each prohibiting the existence of a
acquired right entered into the heritage of the victim during his lifetime and transmissible to his heirs when his
death; that the only reparable damage for the loss of life expectancy is that born from the conscience felt by
the victim, before his death, of the abridged nature of his life due to the accident or the fault of a third party, that is to say the
non-pecuniary damage linked to awareness of the imminence of his death, already repaired as part of the assessed non-pecuniary damage
upper ; that if the notion of loss of chance of survival has been evoked in jurisprudence, it is because of the loss of
chance that a victim may suffer, in matters of medical liability, of surviving his affection, due to a
fault of the health professional, but that it is never a question of compensating the victim for the loss of an acquired right to live;
Material damage:
Considering that Mrs. Victoire K. and Mrs. Anne-Aurélie K. produce a certificate from MGK certifying that
Thérèse N. wife K., trader at the Douala central market, actively participated in tontine (a form of
savings agreement between people placing their money in common) of which he is the president and that she had withdrawn on 6
April 2007 a sum of ten million CFA francs (or about 14,600 euros) to make purchases
in China, as on each of his business trips; that this attestation is confirmed by a witness, MK,
also a member of the tontine;
That the appellants also disclose an extract from a bank account which shows that their mother had
also withdrawn, on April 4, 2007, a sum of 3,500,000 CFA francs in cash at the bank, which represents a
sum of the order of 5.110 euro;
That if it is not possible to know precisely what was the sum that Thérèse N. wife K. had taken in her personal effects to carry out her business in China, it emerges from these documents that she was carrying relatively large funds in cash, but that she had made no specific declaration to the company; that therefore it is right that the court has applied the provisions of Article 22.2 of the Montreal Convention and ordered the company Kenya Airways to compensate the victim up to the sum of 1000 SDR;
Loss of goodwill:
Considering that it is in vain that Mrs. Victoire K. and Mrs. Anne-Aurélie K. claim, within the framework of their action
estate as a party to the rights of Thérèse N. wife K., compensation for the financial loss resulting from the
loss of the victim's business, the alleged disappearance of this business being only the consequence of death and
having therefore occurred afterwards, so that the resulting damage has not entered into the patrimony
of the deceased;
2- On the own damages of the two appellants:
Non-pecuniary damage:
Whereas the court rightly assessed this position of prejudice by holding that the plaintiffs, aged 36
years and 24 years, no longer lived with the victim for several years since they resided in Belgium and
Germany where one was practicing nursing while the other was still a student but taking
considerations the particular circumstances of the disappearance of their mother due to its disaster dimension
collective, awaiting the family after the announcement of the accident until the remains of the aircraft were discovered and
the identification of the bodies, the geographic distance of the two girls, the deadlines for the repatriation of the remains and
anxiety linked to ignorance, for several years, of the conclusions of the technical investigation and the reasons for
the accident ; that the fixing of the compensation at the sum of 25,000 euro for each of them takes into account all of
these items and will be confirmed;
Economic damage:
Considering that the court accepted as justified only the sum of 1,438.81 euros corresponding to the total of
two plane tickets produced at the debates, one in the name of Xavier G. between May 17 and May 24, 2007, the other in the name
Annie-Aurélie between October 25 and November 9, 2007; that, admittedly, the appellants do not produce the supporting documents
other journeys they made between Paris or Brussels and Douala, but it appears from the testimonies that they
traveled three times to Cameroon, in the immediate aftermath of the accident in May 2007, then during the
body lifted in late October 2007 and funeral in January 2008; that they should be compensated for these costs by
allocating the sum of 5,000 euros;
Loss of aid and subsidies:
Considering that if Mrs. Anne-Aurélie K., then aged 36, was practicing the nursing profession in Belgium at the time of the death of her mother and does not justify having received from the latter assistance and subsidies, it is different from the second daughter of the victim, Ms. Victoire K. who, aged 24, was still a computer student in Germany and who justifies, by producing the MTK certificate, that her mother sent her, on an ad hoc basis, a financial aid in the range of 4,500 to 6,000 euros; that it is however necessary to note that nothing indicates, in this certificate, the frequency of these aids and that it appears that Mrs. Victoire K. finished her studies in 2008; that it is therefore appropriate to fix at the sum of 15,000 euro the amount of economic damage resulting for her from the loss of her mother's aid during the end of her studies; that the request of Mrs. Anne-Aurélie K. on this count will on the other hand be rejected;
Loss of chance of receiving a larger inheritance:
Considering that Mrs. Victoire K. and Mrs. Anne-Aurélie K. claim, in the absence of compensation for the loss of the fund
trade within the framework of the succession action, compensation for the damage resulting for them from the weakening of the
heritage they inherited due to the disappearance of their mother's business; that they produce to
debates an accounting report from the CSA firm to Levallois Perret who, in the light of the accounting documents produced,
estimated the economic value of the business operated by Thérèse N. wife K. at 256,551 euros and they claim
compensation for their damage up to this sum;
That it should however be considered, on the one hand that the heirs do not have an acquired right on the inheritance of their
author who freely disposes of it and whose content and value are liable to change in gain or loss at the most
throughout his life and until his death, on the other hand that the appellants do not justify the future of the
trade of their mother after the accident, providing no information on the possible resale of the fund or its components
of assets, right to lease and stocks, while it appears from the judgment of the court of first instance of Douala of October 15
2007 that Ms. Anne-Aurélie K. had been appointed administrator of the estate's assets, including the business
the deceased whose inventory was planned;
That Ms. Victoire K. and Ms. Anne-Aurélie K. will therefore be dismissed from their request on this account;
On the request made under article 700 of the code of civil procedure:
Considering that under the terms of article 700 of the code of civil procedure, the judge condemns the part held costs costs
pay the other party the amount it determines for costs incurred and not included in costs, taking
account of the equity or the economic situation of the condemned party; that among these so-called irreparable costs
find the fees of lawyers and experts amicable;
That Ms. Victoire K. and Ms. Anne-Aurélie K. report lawyers' bills paid up to 5,000 euros in May
2007 and 71,985 euro between June 2007 and January 2012 corresponding to the first instance, then a note
fees of 5,474 euros for the period from January to October 2013 and a provision of 25,000 euros in December 2013
corresponding to the call, finally a note of fees from the firm W., lawyer to the council, in the amount of 3,588 euro;
that they also produce a bill of fees from the CSA firm in the amount of 1,800 euros;
That it is not for the court to make any assessment whatsoever on the amount of attorney's fees
invoiced, any disputes and complaints under this head falling under the provisions of articles 175 and following of the
decree of 27 November 1991, but that it is up to him, independently of the invoices produced, to assess, with regard to the
costs justified by the necessities of the case and in consideration of the elements of fairness, the amount of compensation paid
charge of the unsuccessful party;
That it is necessary to fix this indemnity at the sum of 15,000 euros at first instance and that of 10,000 euros at appeal;
Considering article 696 of the code of civil procedure,
FOR THESE REASONS,
Ruling publicly, contradictorily,
Set aside the judgment referred in that it declared the company Air France responsible for the harmful consequences of
the aircraft accident which occurred on May 5, 2007 which caused the death of Thérèse N. marries K. and in that he condemned her
to the payment of various sums as damages, indemnities and costs, and puts the company Air France
harmless ;
The defendant in that he dismissed Mrs Victoire K. of her claim for compensation for the loss of assistance and
subsidies and in that it limited to the sum of 1,538.81 euros the amount of economic damage resulting from the costs
funeral, travel and subsistence and, ruling again on these points, orders Kenya Airways to pay:
To Ms Victoire K., in a personal capacity, the sum of 15,000 euros in compensation for the damage resulting from the loss of aid
financial support from his mother during the end of his studies,
To Ms. Victoire K. and Ms. Anne-Aurélie K. together, the sum of 5,000 euros for funeral and travel expenses
and stay;
It also invalidates it on the quantum of compensation awarded in application of the provisions of article 700 of the code of
civil procedure and condemns the company Kenya Airways to pay to Mrs. Victoire K. and Mrs. Anne-Aurélie K. together
an amount of 15,000 euro in application of the provisions of article 700 of the code of civil procedure under the
first case ;
Confirms this for the remainder of its provisions;
Adding to it,
Condemns the company Kenya Airways to pay to Mrs. Victoire K. and Mrs. Anne-Aurélie K. the sum of 10,000 euros in
application of the provisions of article 700 of the code of civil procedure in appeal;
Order her to pay the costs of appeal which will be recovered under the conditions of article 699 of the procedural code
civil.
THE CLERK THE PRESIDENT
Investigation of the damages paid to the Chinese victims of the KQ 507 crash of Kenya Airways on May 4, 2007 (Fr)
Research carried out by JIANG Yanwei, graduated with a law degree from the University of Wuhan in China and a master's degree in business law from Paris X University in France, for the law firm of Weissberg
On May 4, 2007, Kenya Airways flight KQ 507 crashed shortly after takeoff in Douala, Cameroon.
There were 145 passengers, all of whom were killed in the accident. The report of the accident of the Air Authority
Canadian commissioned by the government of Cameroon concluded that the accident was at 100% in
because of the gross fault of the pilots, and the failure to respect all the basic aviation rules.
Kenya Airways insurance company negotiated compensation with family of victims
different levels depending on nationalities, professions, income and the number of children and parents
dependent on victims.
Among all the victims, there were 5 Chinese citizens, all coming from Cameroon to return to China, more precisely, all returning from the Ivory Coast or Cameroon for China. In the case of these victims, the insurer negotiated comprehensively with the Chinese government rather than negotiating individually with each victim. Here is the list of the 5 Chinese passengers, their contact details and the amount of compensation they received:
Table of victims
LAST NAME
Mr. LIU
Sheng
Mr. JIANG
Xuedong
M. BIAN
Jingzhong
Ms. SHI
Weisha
Mr. WU
Changgen
PLACE OF BIRTH
Jiangdu, the
Province of
JIANGSU,
CHINA.
The village
from YINTUO,
The
Commune
YIQUAN,
DONGGAN
G City,
Province
of
LIAONING,
CHINA
Shanghai,
CHINA
N / A
The City of SUZHOU,
the Province of
JIANGSU,
CHINA
STATE
CIVIL
single
married
married
(husband of
Ms. SHI
Weisha)
married
(wife of
M. BIAN
Jingzhong)
married
CHILDREN
no
One of 12
years
N / A
N / A
A
ADDRESS
N / A
N / A
N / A
N / A
N / A
AGE
29
36
N / A
N / A
53
ACTIVITY
Director of sales of the South Africa Provision of HUAWEI TECHNOLO GY CO.
Boatman, LULU Fisheries Company, Ivory Coast
Trader in Abidjan, Ivory Coast
Shopkeeper in Abidjan, Ivory Coast
Trader looking for business opportunities in Africa
Table of victims (continued)
RETURNED
300 000
RMB / year
(about
35 000
Euros / year)
100 000-
200 000
RMB / year
(about
12,000 to
17 000
euros / year)
Insurance
of
accidents
transport
subscribed
by
HUAWEI at
name of all
its employees
N / A
N / A
N / A
N / A
AGREEMENT
Yes
Yes
Yes
Yes
Yes
TAXATION
N / A
N / A
N / A
N / A
N / A
AUTHORITY INVOLVED IN THE NEGOTIATIONS
N / A
N / A
N / A
N / A
N / A
See the article
Request for damages awarded to victims of Chinese nationality in the Air France AF447 crash of June 1, 2009 (Fr)
Research carried out by JIANG Yanwei, graduated with a law degree from the University of Wuhan in China and a master's degree in business law from the University Paris X in France, for the Law Firm Weissberg, lawyer at the court.
Introduction
On June 1, 2009 Flight AF447 of the French airline AIR France between Rio de Janeiro and Paris was damaged in the Atlantic Ocean.
It was carrying 228 people (including 216 passengers) while no sign of survival has been revealed until today.
The final report of the BEA (Bureau of Investigation and Analysis for Civil Aviation Safety) published on July 5, 2012 after the recovery and analysis of the recorders concluded that the main cause of the accident would be a stall at high altitude following a loss of speed indications by icing of the Pitot probes, having induced an inappropriate reaction by the pilots.
Table of victims
Among all the victims, there were 9 Chinese citizens, for each of whom compensation of 126,000 euros was paid to their families. Here is a list of these 9 Chinese passengers, their contact details, and the amount of compensation they received:
LAST NAME
Mr. ZHUO
Jiachun
M. CHEN
Qingwei
Mr. XIAO Xiang
Mr. LI
Mingwen
Mr.
ZHANG
Qingbo
INSTEAD OF
BIRTH
Shanghai,
China
The
province
of
Zhejiang,
China
The province of
Jiangxi, China
N / A
N / A
CIVIL STATUS
married since
less than a year
single
married
married
married
CHILDREN
No
no
1, very young
1, 18 years old
1
ADDRESS
N / A
N / A
N / A
N / A
N / A
AGE
27
35
35
44
54
ACTIVITY
Employee of HUAWEI TECHNOLOGY CO.
Investor in Brazil
Searcher
assistant in
the Institute of
Engineering
Thermophysics
, the Academy
Chinese
Sciences,
China
Director
General
Deputy
of the
Benxi
Iron and
Steel
Group
Company
,
China
Assistant to the General Manager of the Benxi Iron and Steel Group Company, China
RETURNED
About
200,000 -
300,000 RMB /
year (either
25 000-33 000
euros)
About
50,000 -
100 000
dollars / year
(is
45 000-
95 000
euros)
About
100,000 -
150,000 RMB
(i.e. 12,000-
17,000 euros)
178 700
RMB
(is
about
20 000
euros)
About
150 000
RMB
(20 000
euros)
INDEMNITY
126,000 euros
126 000
euros
126,000 euros
126 000
euros
126 000
euros
CONTRACTUAL FORM
N / A
N / A
N / A
N / A
N / A
AGREEMENT
Yes
Yes
Yes
Yes
Yes
TAXATION
N / A
N / A
N / A
N / A
N / A
AUTHORITIES
COMMITTED
N / A
N / A
N / A
N / A
N / A
LAST NAME
M. SUN
lianyou
Mr. SHEN
Zuobing
Ms. GAO
Xing
Ms. CHEN Chiping
INSTEAD OF
BIRTH
N / A
N / A
N / A
Benxi, the province of
Liaoning
CIVIL STATUS
N / A
N / A
N / A
Bride (wife of
deputy governor of
the province of
Liaoning, China)
CHILDREN
N / A
N / A
N / A
N / A
ADDRESS
N / A
N / A
N / A
N / A
AGE
49
A
quarantine
years
39
About 53 years
PROFESSION
Director of
the
Ironmaking
Factory of
Benxi Iron
and Steel
Group
Company,
China
Director of
department
of
fuels
Benxi
Iron and
Steel Group
Company,
China
Director of
department
responsible for
trades
commercial
international
Benxi
Iron and steel
Group
Company,
China
Deputy Director of
responsible department
Exchanges
commercial
international
Benxi iron and steel
Group Company,
China
RETURNED
About
200 000
RMB
About 200,000 RMB (22,500 euros)
About 200,000 RMB (22,500 euros)
About 170,000 RMB
(20,000 euros)
INDEMNITY
126 000
euros
126 000
euros
126 000
euros
126,000 euros
FORM
CONTRACTUAL
N / A
N / A
N / A
N / A
AGREEMENT
Yes
Yes
Yes
Yes
TAXATION
N / A
N / A
N / A
N / A
AUTHORITIES ENGAGED
N / A
N / A
N / A
N / A
The article
A guide to exporting to Europe (En)
INTRODUCTION
Europe today consists of the Member States of the European Union (EU), the Member States
of the European Free Trade Area (EFTA), and the Central and Eastern European States most
of which were, until recently, under the political, economic, and military umbrella of the
form the Soviet Union.
This paper outlines what the potential corporate investor or exporter of goods and services
must know of the EU and describes the general aspects of doing business in France.
The EUROPEAN UNION (EU)
The fifteen current Member States of the EU are France, Germany, the United Kingdom, the
Netherlands, Spain, Portugal, Belgium, Denmark, Greece, Luxembourg, Italy, Ireland,
Austria, Finland and Sweden. The EU was initially called European Economic Community
(EEC). The basic principles of the Economic Union, known as the "Four Freedoms", set up a
uniform economic area free from distortions in competition and thus free from customs
barriers within the Member States. The "Four Freedoms" are the free movement of goods,
persons, services and capital. The Treaty of Maastricht dated February 7th, 1992 organized
economic and monetary union, unanimity in foreign policy and cooperation in defense among
the Member States. In May 1999, the Treaty of Amsterdam added significant improvements
on social and employment matters, to the Treaty of Maastricht.
The EUROPEAN FREE TRADE AREA (EFTA)
The current Member States of EFTA are, Iceland, Norway, Switzerland and Liechtenstein.
EFTA essentially creates a "privileged" trade area and is not in any sense an economic or
political union. This organization has nonetheless concluded some conventions with EU,
namely on jurisdiction, free trade relationship (excepted Switzerland).
It is worth noting that a number of current EEC Member States were previously members of EFTA and that the extension of the EU will probably lead to the disappearance of the EFTA.
THE FORTHCOMING ACCESSION OF THE CENTRAL AND EASTERN EUROPEAN STATES
The accession of new Member States will enhance the Union's international influence.
Although economic and political realities in these countries are often very different, the Union
will certainly prove its ability to merge the economic interests of nations with a long common
history of exchanges.
With accession of Central and Eastern Europe countries, as well as Malta, Turkey and Cyprus,
the EU's population could rise by 25% to 500 million but its total GDP would grow no more
than 5%.
The Copenhagen European Council started the pre-accession process in 1993. Negotiations
started in 1998 with a first wave of 6 countries: Cyprus, Czech Republic, Estonia, Hungary,
Poland, Slovenia. This has been followed by a second wave of 5 countries: Bulgaria, Latvia,
Lithuania, Romania, Slovakia.
The Copenhagen European Council defined the criteria which applicants would have to meet
before joining the EU: Stability of institutions guaranteeing democracy, existence of a
functioning market economy, adherence to the aims of political / economic and monetary
union.
The PHARE program is the pivotal financial instrument in the pre-accession strategy. ECU 21
billion are to be provided to the Central and Eastern European Countries for the period 2000-
2006. 30% are to be allocated to the reinforcement of the applicant's administration and
institutions, 70% in investment financing.
Lately, the Berlin European Council (March 1999) set up 2 pre-accession instruments: A
structural instrument (ISPA) and an agricultural one (SAPARD). This European Council
decided to double pre-accession aid from 2000.
TRANSATLANTIC ECONOMIC RELATIONS
The EU and the US are each other's single largest trading partner: In 1997, they traded goods
worth ECU 277,000 million, around 20% of their total world trade. High added value goods
like high-tech products account for 20% of this transatlantic trade. The EU and the US have
by far the world's most important bilateral investment relationship and are each other's most
important source and destination for Foreign Direct Investment. 51% of FDI stocks in the EU
originate in the US
The WTO is the scene where the EU and the US can exercise considerable influence on
global trade & investment (FDI). In this context, the EU and the US have worked together to
conclude the Information Technology Agreement and the Basic Telecommunication Services
Agreement, which together liberalize approximately one trillion ECU in trade in goods and
services and most recently, the Financial Services Agreement.
Recently, the EU and the US went further in their attempts to enhance a closer economic co-
surgery. Despite many efforts on both side, a number of barriers, mainly of a non-tariff kind
continue to hamper Transatlantic Trade. It was with this mind that the European Commission
made a proposal in March 1998 on the creation of a New Transatlantic Marketplace (NTM).
This led the EU and the US to agree to the launching of the Transatlantic Economic
Partnership (TEP) at the 18 May 1998 EU / US summit in London.
I. GENERAL COMMENTS CONCERNING THE EU
A. From The Treaty of Rome to the Treaty of Maastricht
The European Economic Community (EEC) came into existence following the signing of the
Treaty of Rome in 1957 by the six original Member States. The principal object of the Treaty
was the creation of a single unified market within its Member States. The United Kingdom,
Denmark, and the Republic of Ireland acceded to the Community in 1973, Greece in 1979,
Spain and Portugal in 1986 and Austria, Sweden and Finland in 1996.
The Treaty of Rome is essentially an agreement of principle. For the fulfillment of its objective, it specifically envisages the free movement of goods, services, persons and capital within the Member States.
The Treaty also defines and creates the institutions charged with the duties of managing, controlling and implementing the numerous steps required to result in the creation of a single European market.
The idea of a single market, as envisaged in 1957, has been taken substantially further by the Single European Act of 1986 entered into among the Member States and which envisages close economic and monetary cooperation as well as a close harmonization of social, scientific, technological and environmental policies.
Under the Treaty of Maastricht ratified by the Member States on February 7th, 1992, the EEC
was replaced by the European Union, characterized by economic and monetary union, and
common policy in matters of justice, security and foreign affairs. The Member States also
planned the creation of a common currency named "Euro" which has entered into circulation
in 1999.
Remark: The Treaty of Rome is still in existence.
B. The Institutions of the EU
The Institutions are:
Parliament,
Commission,
European Court of Justice,
Economic and Social Committee
With the Treaty of Maastricht the European Monetary Institute,
European Central Bank and
European Central Bank system.
at. The Parliament
The European Parliament, also called the Assembly, is located in the Franco-German border
town of Strasbourg. It is charged under the Treaty of Rome with mainly advisory and
supervisory responsibilities, and was not intended as a legislative body even though it
assumes a substantial part in the legislative process and has recently been given veto powers
over certain aspects of the EU budget. The Parliament has an advisory role under the Treaty
of Rome but the Council has no obligation to follow its advice, although its powers have been
strengthened in the Treaty of Maastricht and in the Amsterdam Treaty.
b. The Council
The Council consists of representatives of the Member States (one for each State) and is
ensuring that the objectives of the Treaty of Rome are fulfilled. The Council is not a
permanent body, its members having full-time responsibilities in their States either as
ministers or as civil servants and meeting only a few days a month.
vs. The European Commission
It has been described as the "guardian" of the Treaty.
The Commission consists of twenty members (two from each of the four biggest members and Spain, and one from each of the other States).
The European Commission has three functions.
First it is the promoter of Union's action, with respect, for instance, to its role in the enactment of the directives.
Secondly, it is the Union's watchdog and
Thirdly, it functions as the executive of the EU. It is worth noting in particular that competition policy is enforced solely by the Commission.
d. The European Court of Justice
The European Court of Justice is in charge of the interpretation and application of
Community law. It is the supreme authority on all matters of Community Law. Issues are
brought before it by the national courts of the Member States or by the Member States
themselves, following specific proceedings.
The case law of the European Court of Justice today is a fundamental source of law not only
in the scope of the treaties but also in Human Rights field: its creative role has permitted to
compensate the non-adhesion of the EU to the European Human Rights Convention as
independent entity towards its Member States (although the current negotiations aim at this
purpose).
e. Economic and Social Committee
The Economic and Social Committee has a consultative role in the EU decision-making
process. It members are appointed by the Council in their personal capacity and represent a
variety of interests such as farmers, workers, trade unionists and consumers.
f. The Comity of Regions
It includes 222 members and does represent the regional and local entities of the EU. Before
any decision, the Council and Commission are under the obligation to consult the Comity of
Regions.
g. Economic and Monetary Union (EMU)
The Economic and Monetary Union has been brought into operation in January 1999. Its
three corner stones are a close coordination of the States' economic policies, a unique
currency (the "Euro"), and an irrevocable fixing of the rates of exchange.
On 2 May 1998, the Council of the EU unanimously decided that 11 Member States fulfilled
the necessary conditions for the adoption of the single currency on the 1st of January 1999.
These States are: Austria, Belgium, Finland, France, Germany, Ireland, Italy, Luxembourg,
The Netherlands, Portugal, Spain, Denmark, Greece and Sweden. The UK has not joined the
EURO for the time being.
The European Central Bank (ECB) was created on the 1st of June 1998. It is partially
independent. Its primary goal is price stability which should be gained through low interest
rates, strong investment growth, high economic growth and employment policy.
The Global Economy has welcomed a new stabilizing force and Europe trading partners
among which the US is most important, has gained from increased transparency, lower costs
and great predictability in the EU market.
C. Legislative Acts
The legislative acts of the EU institutions are "regulations, directives and decisions".
- A "regulation" has general application; it is binding and immediately applicable in all
Member States.
- A "directive" is also binding but only after a certain period of time during which it is left to
each
Member State to which it is addressed to choose the form and method of its implementation.
- A "decision" is immediately binding upon those to whom it is addressed.
Apart from the legislative act stricto sensu, EU institutions can make "recommendations" or
"Opinions" which have very substantial persuasive authority.
D. The Common Market
As mentioned above the Treaty of Rome envisages the creation of a single market through the
free movement goods, services, persons and capital within the Community. Each of these
"Four freedoms" will be addressed briefly below:
at. The Free Movement of Goods
The objective of this "freedom" is to establish a tariff-free union between Member States
through the abolition of customs duties on exports and imports between them and the
adoption of a common customs tariff towards non-Member States, and the elimination of
quantitative restrictions of imports to and exports from the Member States. Thus, if a US
company establishes a presence in a Member State, that presence will be able to benefit from
this "freedom" instead of being subject to a diversified range of customs, duties and import
restrictions otherwise applicable.
“Goods” covers both industrial and agricultural products whether originating within Member
States or coming from third countries already in free circulation within the Community. It
also applies to Community patents; by registering a patent within a Member State, its
registration is deemed to have been made within all Member States.
b. The Free Movement of Services
This "freedom" consists of no restriction policy on the movement of services within Member
States.
Services include insurance, banking and other financial services, legal services, accounting
services, etc. To this end, directives have already been enacted in relation to investments,
insurance, banking and financial and legal services.
However, given that each Member State is free to choose its method of implementation of the
directive, substantial differences in application exist to date although it is envisaged that the
differences will gradually disappear over time.
vs. The Free Movement of Persons
This "freedom" has substantial social importance within the Community. It establishes the
rights of nationals of Member States and certain members of their family to move and
establish themselves freely within the Member States. The freedom includes the rights to
employment (with current exemptions in relation to employment in Public Service) under the
non-discrimination principle: it namely involves the right to benefit from any social
advantage initially reserved to the Nationals.
d. The Free Movement of Capital
It is probably obvious that for there to be an unified market place there must be a free
movement of capital. In this respect, this freedom envisages the abolition of restrictions of
capital flows within the community.
In summary, the Union offers its Member States as well as all entities and individuals
established within it, very substantial benefits. The purpose of the Union, which is to create
an Economic and Monetary Union, is motivated by the desire to obtain a competitive
advantage toward non-Member States and individuals.
e. The “Schengen” Agreements
The application of the four freedoms mentioned above involves the suppression of the controls
at the interior frontiers of the European Member States. As a result, the controls must be
transferred to the external frontiers of the EU, accompanied by common rules concerning for
instance drugs, weapons ..
The Schengen Agreement, dated June 19, 1990, has been signed between some of the Member
States in order to solve these difficulties. United Kingdom, Ireland, Denmark, Sweden,
Austria and Finland are still not signatories of the Agreement, whereas Greece and Italy do
not comply yet with all of its conditions.
As a matter of fact, the Member States chose not to act under the authority of the EU.
However, the Schengen Agreement has to comply with the regulations of the EU Treaties
(Treaty of Rome, Treaty of Maastricht,…)
The Agreement provides for the lifting of the controls of the interior frontiers, the
harmonization of the rules concerning the entry and the circulation of persons and goods
within the EU, the right of sanctuary…
It establishes a judiciary and Police cooperation among the Member States as well as an
exchange of information ("Schengen Information System").
II. ESTABLISHING IN France
A US company establishing a presence in any one of the EU Member States will be able to
benefit from the freedom of movement of goods, services, capital and people within the EU.
The economic opportunities, enhanced by numerous incentive schemes and the large choice
of legal structures available make France an ideal choice when deciding the country in which
to establish a presence. French legislators have simplified administrative formalities in order
to bring French business practice more in keeping with principles shared by the world
community. The French business environment is similar to that elsewhere in the developed
world today, with further particular attractions.
A. Different Forms of Presence
International companies setting up in France benefit from a secure legal framework. They can
select those best suited to their position and commercial strategy at every stage, from
prospecting to business expansion.
1. First stage: the basic setting-up
at. Setting up without officially registered representation
A foreign company can rent an office or set up operations at a business-service center and
open to non-resident bank account. Once the company has its own premises and / or employs
two or more people in France, it must be officially represented by a registered liaison office, a
branch or a subsidiary.
b. The liaison office: Exempt from corporate income tax and VAT
A company whose activities in France are not of a commercial nature, being limited to
advertising, the supply of information, storage or any other preliminary operation, may be
represented by a liaison office. Registration is with the trade register
and Companies).
vs. Branch offices: A good temporary arrangement.
Branches are considered permanent establishments for tax purposes, and are subject to
corporate income tax and VAT. It is quicker and less expensive to set up a branch office than
a subsidiary. The branch operates under the authority of company headquarters. It is not a
separate legal entity. They are thus drawbacks, for example, in the event of financial
difficulties: the company will have unlimited liability for the debts of the branch office.
It may thus be preferable to set up a separate entity in order to shield the mother company
from direct liability exposure and also, to benefit from State aid, tax exemptions, taxation of
intra-group transactions. As a result, it is a generally advised to create a subsidiary.
2. The setting-up of a limited liability type of company
A US corporation contemplating the establishment of a limited liability company in France
should be aware of the different types and characteristics of French limited liability entities.
French business entities fall into one of two categories: partnerships, which
approximate to US partnerships and capital companies in which the shareholders' liability
is limited to the amount of their respective subscription.
Under French law, there are four types of partnerships: general partnership
(SNC) (general partnership); limited partnership (partnership with limited and general
partners); civil partnership and undisclosed
partnership).
Most business entities in France are characterized by the limited liability of its shareholders.
Under French law, there are five such entities: société anonyme (SA) (joint stock
corporation), simplified joint stock corporation (SAS),
limited liability company (limited liability company) limited partnership with shares
(limited partnership with shares), rarely used, and sole proprietorship
limited (EURL) (incorporated sole proprietorship). Brief comments in relation to each of
these legal entities are set out below.
(a) Société Anonyme (SA)
The French legal form closest to the US corporation is the société anonyme (SA). Its share
capital (250,000 FF minimum) must be held by at least seven shareholders, who meet at least
once a year to approve its financial statements and to decide whether profits will be
distributed or retained, or both. Day-to-day management is delegated to:
(1) A Board of Directors which elects its chairman, who is also often the Managing Director, its Chief Executive Officer, or (2) A Supervisory Council, which appoints a management committee (Directoire).
Simple majority rules apply during annual shareholder's meeting. If major decisions have to
be made, such as a merger or a change in the articles of association, an extraordinary
shareholder's meeting must be convened, and qualified majority rules apply.
(b) Simplified Limited Company (SAS)
The SAS was created in France in 1994 to attract investments. It is a flexible limited liability
company in which the division of powers, nomination of directors and mode of operations are
freely determined by the by-laws. Since 1999, the minimum capital required is of 250,000 FF
and the requirement that the shareholders must be legal entities has been removed. One
shareholder only is enough to create a SAS.
This modification of the SAS 'regime is meant to promote the setting up of New Technology
start-ups.
The SAS makes it possible for these entrepreneurs to arrange a flexible legal structure adapted
to a highly competitive and evolving business area.
(c) Limited Liability Company (SARL)
The characteristics of the SARL are the following:
- it does not have a Board of Directors but a manager who need not be a shareholder;
- the minimum share capital is FF 50,000;
- it must have a minimum of two shareholders and a maximum of 50;
- the qualified majority rule is three-fourths;
- If the manager hired is not a citizen of an EU member State, application must be made for a
business permit (merchant card), either through the French Consulate in the person's
home country or through the local administrative authority in which the company is to locate
its registered office.
(d) One Person Company with Limited Liability (EURL)
Popular among foreign investors because it requires only one shareholder, the EURL operates
like a SARL.
It permits the sole owner of a business to limit its liability for business debts only to the extent
of the amount of the capital. The sole shareholder may either be an individual or a legal entity.
In the latter case, the EURL is automatically subject to corporate income tax at normal rate.
In addition, while an individual may be shareholder of only one EURL, the number of
EURL's held by a company is not limited. The EURL is managed by a manager who must be an
individual but needs not to be the shareholder. In other respects, the rules of the SARL apply
to the EURL.
Hence, the EURL form may also appear to be a convenient legal vehicle for the American
investor who wishes either to create a subsidiary in France whose business does not
immediately necessitate the incorporation of an SA, or to acquire 100 % of the capital of an
existing SARL.
3. French Partnerships and Similar Structures and Non-corporate Contractual
Arrangements
These consist of:
(a) General partnership (SNC)
This is the most common form of partnership, equivalent to a US general partnership. Its partners are jointly and collectively liable for all debts and obligations incurred in as much as they are considered to be merchants. SNC are often used because of their flexibility (no minimum capital, no board of directors, possibility of dividend rights and capital contributions). The contract nature of SNC tax status (ie transparency) also makes this structure attractive under certain circumstances.
(b) Common interest group (GIE)
The GIE is essentially a joint venture with a legal personality of its own. The rules governing it and its members, its day-to-day management and profit-and-loss allocation are set forth in an agreement signed by its members. Transparent for tax purposes, the GIE structure tends to be the favored in ventures in large-scale industrial projects, research and development, joint sales and exports, or purchasing activities conducted on behalf of members.
4. Distributorship Agreements
Distribution of goods or services may be achieved through any of established means:
- Distributorship agreement
- Commercial agency agreement
- Franchise agreement
(a) Distributorship Agreement
This type of agreement is a purchase-and-sale agreement whereby the distributor is
remunerated for its services by a gross margin on sales. The conditions of the agreement may
be negotiated freely, subject to relevant EU and domestic competition laws. It must be
determined whether the agreement is on an exclusive or non-exclusive basis, for a specific or
undetermined territory, for a limited or unlimited period of time.
A distributor has no basic title to the manufacturer's clientele. As a result, the termination of a
pure distributorship agreement does not trigger severance payment and damages, except for
abrupt termination.
The grantor can unilaterally terminate the distributorship agreement. But he may be obliged to
assume liability for the employees of the distributor. As a general matter of labor law, in the
event of a "modification" of the legal situation of an employer, notably as a result of a take
over, sale, merger, or transformation of its going concern or incorporation, all employee
contracts in effect at the time of such modification remain in effect as between the new
employer and the staff of the company. This provision of labor law has been interpreted
by the courts to apply to a modification consisting of the non-renewal by a grantor of a
distributorship agreement and his decision to commercialize his products directly; in such
circumstances grantors have been obliged to either take over the employment of the
employees hired by the distributors to sell grantor's products or pay severance indemnities to
the employees on the basis of an unjustified termination of their employment contract (Art. L
122-12 of the labor law code).
(b) Commercial Agency Agreement
This is the most common form of distributorship agreement used in France. The commercial
agent is an independent contractor who takes orders from customers on behalf of the principal
and receives a commission expressed as a percentage of sales in consideration for its services.
The agent must be registered with the office of commercial court and must hold a commercial
card. It must also register with the State welfare agency and contract for a retirement plan, as
well as a medical plan. The commercial agent is entitled to damages for breach or termination
of contract, which can amount to as much as two years of anticipated commissions. Some
commercial agency agreements contain clauses.
(c) Franchise Agreement
This is a contractual arrangement between the owner (the franchiser) of a marketing process
and
corresponding products and several retailers (the franchisees). The arrangement included:
- distribution of products by franchisees;
- licensing of trademarks and protected know-how; and
- marketing and sales services. If the arrangements provide for the assignment of trademarks,
the contracts must be registered with the French National Institute of Industrial Property
(INPI).
5. Joint Ventures in France
A joint venture may be described as an agreement of cooperation between independent parties
(often, but not always, of similar economic weight) who enter into a common objective
whether for profit or otherwise.
A joint venture may be materialized by a simple contractual relationship, a partnership
agreement or a joint corporation. Joint ventures which result in a common entity are organized
either in the form of a partnership or in a form of a corporation. Joint venture contracts
provide great flexibility to the parties by avoiding the burdens inherent in setting up a separate
legal entity. However, limits to the contractual freedom are sometimes imposed by public
policy rules relevant to the place where the contract is to be performed or to the nature of its
purpose.
B. Investment Incentives Available:
To stimulate industrial development, the French government and local authorities have
implemented a wide range of financial incentives specifically tailored to industrial research
and development. These programs are often supervised by the Community. A foreign investor
can benefit from investment aids created in order to promote and maintain employment by the
reorganization or reorientation of industries experiencing economic difficulties. The various
incentive programs available in France are frequently coordinated at the national level by the
Delegation for Regional Planning and Regional Action (DATAR) and at the local
level by the municipalities. Thus, for example;
1. The “Prime d'Aménagement du Territoire” (PAT) granted by the DATAR.
DATAR provides grants to finance up to 33% of a given investment in land, buildings and / or
equipment purchased during the first three years of operation. The criteria to be eligible
include site selection, the number of jobs created or to be created and the benefits for local
industry. The amount allocated to the proposed operations is determined by a government
committee. One-third of the grant is paid at the beginning of the investment program, and the
remainder is paid in two installments as the project moves towards completion.
To prevent distortion of completion within the European Union, the Commission has set
limits on total public assistance which vary according to the area concerned. In a few areas,
notably the area around Longwy in Eastern France, parts of the North and Corsica, the ceiling
is as high as 28% or even 33% of investment in property, plant and equipment. In some other
areas, only independent companies with fewer than 250 employees can benefit from public
assistance and then, at a low rate.
2. The Regional Grant for New Businesses (PRCE)
The Regional Grant for New Businesses (PRCE) is given by Regions with no geographical
limitations.
It may be combined with the PAT and is reserved to young companies registered for less
than 12 months, which are likeley to create a minimum number of jobs.
The advantage takes the form of a pre-tax ceiling (150,000 FF to 200,000 FF), of refundable
loans, equity participation, etc.
3. The Redevelopment Agencies
The Redevelopment Agencies have also been created by large industrial corporations to
encourage the redevelopment of their production sites or the job reinsertion: a free technical
assessment is offered as well as various financial assistance.
4. Preferential Tax Regimes
Preferential Tax Regimes are provided, such as the Research Tax Credit, in order to
encourage innovative programs and technology transfers and the Tax Credit Break for
companies located in special investment areas (ZIP).
5. Temporary exemption from the Business tax
Temporary exemption from the Business tax may be granted to the benefit of research or
industrial activities located in priority development areas.
6. Tax exemptions are available for acquisitions of ailing firms
A company set up for the purpose of acquiring an ailing firm may qualify for major
exemptions from tax, social contributions and property levies. Acquirers can thus enjoy total
exemption from corporate income tax for the first 24 months of operation under certain
conditions. Entrepreneurs must undertake to keep the company and its business in operation
for the three years following the acquisition, failing which the tax savings become payable.
The buyer may also be exempted from business tax for a period of 2 years in all parts of
France by decision of a local authority like a "Commune".
7. National social measures
National social measures are open to foreign enterprises inasmuch as they are treated like
French establishments. These measures allow total or partial exemption on labor costs,
employ contributions, reimbursements of training expenses, extensive incentives for hiring
young employees…. These various aids cover a large field of activities.
8. Research & Development
To encourage companies in certain key areas of technology to set up in France, the Minister
for Industry and Research offer subsidies for part of the research expenditure involved. When
investment in research is not directly subsidized, it may qualify for tax credit of up to FF 40
million per company and per year.
9. Local financial support
Most French municipalities and Chambers of Commerce sponsor business parks and
industrial zones.
They sell or lease the land and provide financing. Also government and local funds are
available for job training.
10. Export guarantees and financial assistance
Export guarantees and financial assistance are also investment incentives. The "Company
Française d'Assurance pour le Commerce Exterieur ”(COFACE) and the Banque Française du
Commerce Exterieur (BFCE) play the same role in relation to the sale of French goods abroad
as the Overseas Private Investment Corporation (OPIC) in the US in relation to the US
goods or the Export Credit Guarantee Department of the United Kingdom and may guarantee
and assist export activities.
COFACE provides credit insurance on behalf of the French State. BFCE provides subsidized
financing for companies involved in international trade and plays a coordinating role between
French exporters and the French Government.
C. Investment Incentives Available:
To stimulate industrial development, the French government and local authorities have implemented a wide range of financial incentives specifically tailored to industrial research and development.
These programs are often supervised by the Community.
A foreign investor can benefit from investment aids created in order to promote and maintain employment by the reorganization or reorientation of industries experiencing economic difficulties.
The various incentive programs available in France are frequently coordinated at the national level by the Délégation à l'Aménagement du Territoire et à l'Action Régionale (DATAR) and at the local level by the municipalities.
Thus, for example;
1. The “Prime d'Aménagement du Territoire” (PAT) granted by the DATAR.
DATAR provides grants to finance up to 33% of a given investment in land, buildings and / or
equipment purchased during the first three years of operation. The criteria to be eligible
include site selection, the number of jobs created or to be created and the benefits for local
industry. The amount allocated to the proposed operations is determined by a government
committee. One-third of the grant is paid at the beginning of the investment program, and the
remainder is paid in two installments as the project moves towards completion.
To prevent distortion of completion within the European Union, the Commission has set
limits on total public assistance which vary according to the area concerned. In a few areas,
notably the area around Longwy in Eastern France, parts of the North and Corsica, the ceiling
is as high as 28% or even 33% of investment in property, plant and equipment. In some other
areas, only independent companies with fewer than 250 employees can benefit from public
assistance and then, at a low rate.
2. The Regional Grant for New Businesses (PRCE)
The Regional Grant for New Businesses (PRCE) is given by Regions with no geographical
limitations.
It may be combined with the PAT and is reserved to young companies registered for less
than 12 months, which are likeley to create a minimum number of jobs.
The advantage takes the form of a pre-tax ceiling (150,000 FF to 200,000 FF), of refundable
loans, equity participation, etc.
3. The Redevelopment Agencies
The Redevelopment Agencies have also been created by large industrial corporations to
encourage the redevelopment of their production sites or the job reinsertion: a free technical
assessment is offered as well as various financial assistance.
4. Preferential Tax Regimes
Preferential Tax Regimes are provided, such as the Research Tax Credit, in order to
encourage innovative programs and technology transfers and the Tax Credit Break for
companies located in special investment areas (ZIP).
5. Temporary exemption from the Business tax
Temporary exemption from the Business tax may be granted to the benefit of research or
industrial activities located in priority development areas.
6. Tax exemptions are available for acquisitions of ailing firms
A company set up for the purpose of acquiring an ailing firm may qualify for major
exemptions from tax, social contributions and property levies. Acquirers can thus enjoy total
exemption from corporate income tax for the first 24 months of operation under certain
conditions. Entrepreneurs must undertake to keep the company and its business in operation
for the three years following the acquisition, failing which the tax savings become payable.
The buyer may also be exempted from business tax for a period of 2 years in all parts of
France by decision of a local authority like a "Commune".
7. National social measures
National social measures are open to foreign enterprises inasmuch as they are treated like
French establishments. These measures allow total or partial exemption on labor costs,
employ contributions, reimbursements of training expenses, extensive incentives for hiring
young employees…. These various aids cover a large field of activities.
8. Research & Development
To encourage companies in certain key areas of technology to set up in France, the Minister
for Industry and Research offer subsidies for part of the research expenditure involved. When
investment in research is not directly subsidized, it may qualify for tax credit of up to FF 40
million per company and per year.
9. Local financial support
Most French municipalities and Chambers of Commerce sponsor business parks and
industrial zones.
They sell or lease the land and provide financing. Also government and local funds are
available for job training.
10. Export guarantees and financial assistance
Export guarantees and financial assistance are also investment incentives. The "Company
Française d'Assurance pour le Commerce Exterieur ”(COFACE) and the Banque Française du
Commerce Exterieur (BFCE) play the same role in relation to the sale of French goods abroad
as the Overseas
Private Investment Corporation (OPIC) in the US in relation to the US goods or the Export
Credit Guarantee Department of the United Kingdom and may guarantee and assist export
activities.
COFACE provides credit insurance on behalf of the French State. BFCE provides subsidized
financing for companies involved in international trade and plays a coordinating role between
French exporters and the French Government.
D. Conditions Required for Establishing Presence
The foreign investor exporting goods or services to France must comply with certain
conditions related to the entry of capital, services and persons.
at. The Export of Capital to France
Following the abolition of exchange controls in 1989, there were very few obstacles to the
transfer of funds to and from France.
Investments, whether by EU entities or by non-EU entities, that conform to one (among others) of the following cases were exempted from declaration and preliminary authorization of the French Treasury:
Creation of subsidiaries in France or a newly-formed legal entity;
Extension of the activity of an existing company;
Increase of the interest held in a French company under foreign control where the investor already holds two-thirds of the capital or of the voting rights.
Every direct investment operation realized in France must only be declared to the Minister of
Economy and Finance wherever this investment may come from.
However the following investments remain submitted to the obligation of prior declaration:
Investments, whether related to the exercise of the French public authority or infringing upon
the public order, the health, the security and those engaged in activities connected to the
production or the commerce of guns and war material or investments that are contrary to the
enforcement of French laws and regulations, are subject to a preliminary authorization.
On the contrary, neither authorization nor prior declaration are required in a large variety of
cases such as creation of companies, subsidiaries and new undertakings, direct investment
operations realized, exceeding an amount of 10 million francs in artisan, hotel or retail
enterprises in diverse commercial services or having for exclusive purpose the exploitation of
quarries, direct investments in estate enterprises (excepted building enterprises), acquisition of
farms, subscription to share capital increase, etc.
Subject to any applicable taxation, transfers of dividends and repatriation of capital are free.
b. The Export of Goods to France
(i) Customs Regulations
Goods circulate freely within the EU and duty is charged on imports only once. The principle
is that customs duties are paid just once on arrival in the EU, even when they are shipped on
from one Member State to another.
Moreover, products transferred to France from another EU country are not subject to any
import declaration (DI) or import license. The same applies to those imported from a non-EU
country provided the necessary EU entry formalities have been met in another EU country.
Furthermore, procedures and documents have been standardized. The SAD (statement
administrative unique), an identical document for all EU countries can be used for import,
transit and export. For import into France, from a non-European country, it is simply a matter
of taking the goods to customs, handing over the SAD and paying the duties. The operation
may take 3 days, but then exist special clearance procedures which can speed up the process.
The SAD must be filed by the importer at the EU place of entry. The certificate of origin, the
invoices, and the stamped DI form or import license, when applicable, are admitted, along
with the SAD form to the Customs Office at the place of entry.
Therefore, apart for certain products which are considered "sensitive" because of their nature
or their source (Asian countries or Eastern Europe) and require an import license, there is no
restriction on imports in France.
For some products, a form known as the DI (Import Declaration) must be filed with
the Technical Division of the relevant Ministry, prior to Import. The technical Division
returns the form bearing its stamp to the importer, who then has one year to import the goods.
Import licenses and DI must be requested from the Central Import Licensing Office.
(ii) Value Added Tax (VAT)
The VAT is a tax on the consumption of goods and services and is paid by the consumer.
Businesses are only charged with collecting the tax on sales and deduct the VAT they have
paid on purchases and investments from the amount collected.
All EU. member states have adopted the VAT. In 1993, VAT became a pan-European tax,
charged in the country receiving the goods. Once charged, goods circulated freely with the
EU.
Exports of goods are fully exempt from VAT. Banking, financial and insurance transactions,
teaching and some real-estate rentals are the main services exempted from VAT.
Foreign service providers established in France charge VAT to their foreign clients in
accordance with the nature of their services and their place of business. For intangible
services for example (consultancy, telecommunications, advertising, data processing,
financial services, etc.), the foreign service provider must collect the VAT when the service is
provided to a client in France and is exempt from the VAT when the client is in another
country.
Reduced rates of VAT for many goods and services: The standard rate of VAT on the sale of
goods and services is 19.6% but lower rates are applicable in many cases. In particular, the
rate is 5.5% for some agricultural products, medicine (5.5 % to 2.5%), books, public transport,
newspapers and magazines (5.5% to 2.1%), some types of entertainment, etc.
(iii) Exemptions from customs duty and the VAT
They include:
- Goods imported for re-export
- In certain cases, alterations or repairs to goods for subsequent re-export
- Imports of goods for storage in France for maximum of 3 years in a warehouse
- There are also three zones such as Guadeloupe where goods may be stored free of customs
duty and VAT for up to 5 years
- There exists a certain number of import subsidies which mostly involve exemptions or
reductions in customs duties for goods entering France
- These measures are largely directed at products from developing countries (Africa, Central
or South America), from the former Soviet countries and from China.
b. The Export of Services to France
Foreign entities engaged in the supply of services are subject to compliance with certain
requirements prior to providing services in France. Each service sector, be it insurance,
banking, financial services, architecture, legal services, accountancy, audiovisual
communication, data processing, advertising, etc. has its own particular requirements that will
be detailed hereinafter.
One should bear in mind that foreigners must have a Tradesman Identity Card. The foreign shareholders of a "Société en Nom Collectif", of a "Société en Commandite Simple" or "par actions", the managing director of a "SARL", the President of the Board of Directors in a "SA", etc. , are also obliged to obtain this document.
d. Conditions imposed on non-EU workers in France
A non-EU national intending to work or conduct any commercial activity in France must have
a longterm visa and / or a business permit before doing so.
(i) long-term Visas
A long-term visa is granted as a right to any person who will be working in France and a
French Consulate has received notice that a business or work permit has been issued to that
person; It may take up to four months to process a visa application. US nationals must apply
at their local French Consulate for a long-term visa.
Since the SCHENGEN Agreement an overseas person holding a title delivered by one of the
signatory countries already mentioned above is normally entitled to enter in France.
(ii) Business Permits
Any non-EU national proposed to be appointed as a manager or officer of the French
subsidiary of a foreign-based company must hold a current French business permit.
Application for such permit is made at the appropriate French consulate.
A business permit will subject a US national (or any other Non-EU national) to the
appropriate French labor and social security laws.
Besides any National in possession of a Resident Card is allowed to work in France in any
fields for 10 years. This card is automatically renewable.
(iii) Social Welfare; Employment Conditions
The relations between employers and employees are governed by the French Labor code,
collective bargaining agreements (union agreements), company regulations and individual
employment contracts.
In accordance with the Non discrimination principle stated in the International Labor
Convention No. 111 as well as in the Treaty of Rome, foreign workers benefit from the same
rights and work conditions as French employees.
An employment may be for an indefinite or definite period. The Labor Code sets out
minimum standards of working conditions such as hours, overtime, and paid leave (including
vacation).
France has a mandatory system of social security covering health risks for salaried employees.
The system is financed by contributions from both employees and employers. Contributions
paid by the employer can rise to about 45% of gross salaries. Contributions to social security
are tax-deductible.
For foreign employees, double contributions are avoided by international reciprocity
agreements on social security concluded with France.
Pursuant the "Free Movement of Persons" European principle an employee regularly
employed and resident in a Member State of the EU may work with a minimum formalities in
any other Member State whatever his or her nationality may be (European or not).
D. Certain Rules Concerning Some Specific Fields of Services.
at. Architects
This profession is strictly regulated in France. The laws, rules and regulations tend to protect
the monopoly of architects on one hand, and the title of Architect on the other (Law 77-2 of
January 3, 1977 amended by the Law of July 12, 1985; Ordinance 78-67 of January 19, 1978;
Ordinance 80-217 of March 20, 1980, establishing a Code of Professional Responsibility of
Architects).
(i) Monopoly
The architect, according to French Law, is defined as the prime contractor to whom the owner
must address himself for any construction or renovation job which requires a building permit.
In all cases where a building permit is necessary (ie, for all new constructions, for all
changes in the purpose of an existing construction or all modifications carried out on its
volume or its outer appearance), the architect has to establish an architectural plan before such
permit can be issued.
Such a plan consists of drawings and documents defining "the positions of the building, their
content, organization and volume, as well as the choice of materials and colors ”.
The execution of the work may be entrusted to a contractor, but the architect must always
ensure that the project is being followed as it has been approved by the authorities who have
issued the building permit.
Furthermore, the architect may participate in the following:
- Town planning and development, including preparation of drawings
- Allotment of land
- Preparation of programs
- Consulting of firms
- Preparation of public calls for bids
- Coordination and direction of works
- Providing assistance to owners
- Consultancy and appraisal expert
- Teaching
Architects are required to obtain insurance covering their professional responsibility.
They can group themselves and form a partnership with others of different means or
professions, or form a corporation for which they will work. In the latter case the partners
must comply with the following rules:
- The shares of the company must be nominative shares
- More than 50% of the nominative capital must be held by architects
- The membership of a new partner is subject to the prior agreement of the General Meeting
of shareholders. The decision must be taken by a two-third majority.
- None of the partners can hold more than 50% of the nominative capital
- The chairman of the board of directors, the general manager (if he is alone), at least half of
the managers and members of the board of directors, as well as the majority of the board of
directors and administrators must be architects.
(ii) Protection of the title
The illegal use of the title of architect is subject to criminal sanction.
To ensure the protection of the title, there is a professional body which guarantees the
application of professional rules and regulations. It has the authority to take disciplinary
action and controls the access to the profession through inscription on the Roll.
Furthermore, a code of ethics enumerates the architect's obligations.
Thus, in principle, to join this profession, three conditions must be fulfilled:
Possess one's civil rights and provide evidence of good moral character.
have obtained a degree, certificate, or other title recognized by the French government.
be French, or the national of another Member State of the European Community, or the national of a third country which has signed a convention of reciprocity with France.
There is no such convention between France and Canada, or the United States. - A North American cannot therefore practice as an architect in France, unless he has dual nationality, one of which is of an EU country.
In the latter case, the degree he or she holds must appear on the list of foreign degrees recognized as being equivalent to French diplomas by an order of the Minister of Town Planning, Housing and Transport (Ministry of Urbanism, Housing and Transport ).
Nevertheless, the Law of January 3, 1977 and the Ordinance of January 16, 1978, mention four exceptions to the condition regarding French nationality:
1. A foreign architect can be authorized to practice by a decision of the Minister of
Urbanism, whose decision is taken after hearing the opinion of the Minister of Relations
External (Secretary of State). But in practice, the Minister of External Relations bases
his decision mainly on the existence of a convention of reciprocity with the country of origin
of the candidate. The situation is quite unfavorable for Canadians as the possibilities for
French architects to practice in Canada are very much restricted.
2. The Minister of Town Planning may allow a foreign architect to register in France, upon
presentation of professional references, and after taking into account the opinion of a national
commission. But this rule only concerns exceptional cases, where the candidate has already
completed works of great importance.
3. The Minister of Town Planning can authorize an architect to carry out a specific project in
France, either after hearing the opinion of the Conseil National de l'Ordre des Architectes, or
as a result of a contest of which he or she was the prize-winner.
Within this context, then, the authorization of the Minister is practically automatic.
It is to be noted that competitions are advertised in the bulletin of the Union Internationale des
Architects (UIA - International Union of Architects).
4. Finally, the law provides for persons having effectively practiced as architects in France
before 1977 to be recognized and approved by the Minister of Town Planning, after receiving the
opinion of a regional commission, and on these grounds to be authorized to work as an
architect.
However, this procedure seems quite impractical at the moment as 2,000 applications have
already been submitted, and the Order of Architects is not at all favorable to this procedure.
The application to register should be made to the Regional Council of the Order of Architects
of the area in which the candidate wishes to practice.
In cases 1, 2, and 3, however, if the candidate is the prize-winner of a competition, the
application should be made directly to the Department of Architecture of the Ministry of
Town planning.
In all cases, the application must be accompanied by the documents which prove that the
candidate fulfills the statutory conditions.
In practice, North American architects in France practice in partnership with French
architects.
Indeed, the real problem is not the access to the profession, but the lack of knowledge of
French rules and regulations and of French practice, especially regarding the employment of
salaried workers, the making of contracts, the technical regulations (control of materials, etc.)
and the possibility of entering into a partnership with an engineering firm.
b. Consultancy in Management of Firms and Civil Engineering
All individuals, whether French or foreign, can establish a firm of consultants.
This is why there is a proliferation of Anglo-Saxon management consultant firms in Paris.
The field of activity of these firms is wide and mostly include auditing, counsel in matters of
strategies (product - market) and counsel in matters of organization.
This is also true in the field of civil engineering. There are no laws, rules or regulations which
limit the use of the title of Consultant Engineer, unlike the diploma of engineer obtained from
a particular university which is strictly regulated.
However, the members of these professions have sometimes felt that the absence of rules and
regulations was a negative factor, and have founded organized professional bodies with a
code of deontology.
This is the case with the Chambre Syndicale des Ingénieurs-Conseils (Consultant Engineers
Committee), and the Chambre Syndicale Nationale des Conseils en Recrutement (Recruitment
Consultants National Committee).
There is no mandatory obligation for consultant firms to take malpractice insurance coverage.
Nevertheless, these firms are strongly advised to do so, and it is mandatory in order to become
a member of certain associations.
In the particular case of recruitment of consultants, the activity, even though not governed by
any laws, is curtailed by the monopoly which is conferred to the Agence National Pour
l'Emploi (ANPE) - (National Agency for Employment) by a Government Order of 1945
regarding employment.
Where an intermediary acts as the authorized agent of a person seeking employment (whether
unemployed or not), on his behalf, with a person offering employment, the ANPE's
monopoly is infringed. The recruitment consultant who acts as the authorized agent of a firm,
providing it with candidates does not infringe the monopoly of the ANPE
Recruitment consultant firms may seek candidates by (i) advertising or (ii) direct contact: (i)
Advertising is usually done through newspapers.
The consultant, in this case shall have to comply with the statutes and regulations relating to
employment ads in the newspapers (Labor Code - Labor Code, Article L 311-4).
In particular, it is prohibited to advertise a job offer:
(i) indicating a maximum age limit (except where a law, rule or regulations contains a requirement regarding age) containing false allegations (eg, duration of employment, remuneration, place of work) discriminating on the basis or origin, race, religion, or sex, or written in a foreign language or with foreign expressions having equivalent translations in French and concerning work carried out in France. There is, however, an exception for foreign language publications.
In addition, the consultant must give to the Director of the newspaper the name, corporate
names, and address of the anonymous client for whom the advertisement is published.
(ii) The recruitment consultant also operates by direct contact, that is to say that he or she acts
as a head-hunter.
Certain precautions must be taken in order to ensure that such a practice does not amount to
unfair competition.
It is constantly stated through case law that to bring an employee to quit his employment
amounts to unfair competition if the person was employed under a non-competition clause or
if the incitement to leave is accompanied by actions which are prejudicial to the new
to employ.
In the latter situation, to entice a worker to leave by offering him abnormal advantages with a
view to weaken the organization or to embezzle the assets of a rival company, amounts to
unfair competition
vs. Audio-visual Communication
The Statute N ° 86-1067 of September 30, 1986 relating to the freedom of communication
provides created a National Commission for Communication and Liberties (National
Commission for Communication and Liberties). This commission was replaced by a Conseil
Superior de l'Audiovisuel (CSA) - (Superior Council on the Audiovisual Industry) under
Statute N ° 89.652 of January 17, 1989.
According to the principle which prevails in France and in the EU, Audiovisual
communication is free; it may only be limited by reason of a motivation expressly stated in a
statute.
Ordinarily this motivation consists of complying with human rights principles.
(i) Superior Audiovisual Council (CSA)
The CSA has the following objectives to:
Ensure impartiality, to encourage free competition, and to foster the broadcasting of a multiplicity of opinions
Promote the French language and encourage French productions.
Guarantee the impartiality and independence of State-owned installations
Ensure the quality and diversity of programming.
(ii) Powers of the CSA
It authorizes the use of frequency bands, it controls their operation and takes the necessary steps to ensure a proper reception of the signals.
The procedure according to which it assigns the use of frequency bands is determined by an ordinance.
The use of frequencies for the transmission of audio-visual or radio communication services
by terrestrial hertzian means is subject to the technical conditions specified by the CSA. Thesis
conditions are set up according to criteria defined by the law of September 30, 1986, amended
by the law of January 17, 1989.
Ordinances shall fix the rules applicable to advertising, broadcasting of films and other audio-
visual productions. These rules shall be established for each category of audio-visual
communication services transmitted either by terrestrial hertzian means or by satellite.
The Statute of January 18, 1992 specifies that a proportion of European audio-visual
productions and the broadcasting of films must represent 60% of the production diffused and
at least 40% of them must be productions in the French language.
However, the CSA reserves its rights to fix the general rules applicable to the preparation of
programs, and to fix the general conditions for the production of the artistic works
broadcasted.
In particular, the CSA fixes the duration of the authorization. The authorization cannot
exceed 10 years for television services and 5 years for radio broadcasting services.
The operation of audio-visual communication services broadcasted by hertzian means or by satellite is subject to special obligations defined by the CSA and included in an agreement between the operator and the CSA
These agreements will include:
quality and duration of programming
honesty and multiplicity of the information and the programs
time allocated to the broadcasting of French works, primarily during prime time
time allocated for the broadcast of cultural, educational, and consumer protection programs
broadcasting to French overseas departments and territories
broadcasting of French programs abroad
extent of time reserved for advertising.
(iii) Radio and Television Broadcasting by Terrestrial Hertzian Means
The use of frequencies for the broadcasting of radio or television services by terrestrial hertzian means is authorized by the CSA
The procedure is the following one:
For certain predetermined zones, the CSA publishes a call for candidates seeking to operate
radio or television broadcasting services.
The candidates are either non-profit companies or associations registered according to the
Law of July 1, 1901.
The candidates must indicate in particular, the objectives and general characteristics of the
service, the technical characteristics of the broadcasting, the estimates regarding expenditure
and returns, the origin and the amount of the financing provided for, as well as the list of
administrators, members of the Board of Directors and shareholders.
The CSA finalizes a list of frequencies which can be allotted within a given zone in
consideration of the various applications.
The Council issues the authorization after studying and assessing the value for the public of
each project, with respect to the following three main priorities:
- the protection of the multiplicity of socio-cultural expression
- the diversification of operators
- prevention against the abuse of a dominating position in the market, or unfair competition. It also takes into account, for both radio and television license applicants: 1 - the experience acquired by the candidate in the field of communication; 2 - the financing, the profitability of the service, and whether the advertising resources will be well distributed between the newspaper companies and audio-visual or radio communications services; 3 - the direct and indirect share held by the candidate in the capital of one or more state-controlled advertising companies or in the capital of one or more newspaper publishing companies; 4 - the commitments of the candidate, regarding the broadcasting of French works, that are being broadcasted for the first time in France. and for television licenses applicants only: 5 - the broadcasting of educational and cultural programs; 6 - the involvement in educational and cultural activities; 7 - the contribution made to the broadcasting of television programs in French overseas territories; 8 - the contribution made to the broadcasting of a television program in foreign countries; 9 - the financial contribution made to the film and audio-visual industries.
The use of frequencies for satellite radio and television broadcasting is authorized by the CSA, according to procedures established by ordinance. The authorizations can be issued only to companies.
(iv) Radio Broadcasting and Television Distributed by Cable
Towns or groups of towns may install or authorize the installation of networks on their territory for the distribution by cable of radio and television services. However, the statute N ° 96-299 of April 10, 1996 which refers to experiments in technological and information field provides impairments to the existing statutes.
By and large, this text permits the realization, under specified conditions, of experimental
projects such as Digital Television broadcasted by Hertzian Terrestrial means and
broadcasting by microwave multiunit distribution system.
In such circumstances, the CSA is entitled to grant authorizations without proceeding to a call
for candidates.
The system is much more conventional than the former in order to adjust the legal conditions to these new technologies which involve the broadcasting of numerous services through only one frequency. These networks must comply with the technical specifications set by the CSA
The operation of the networks thus established is authorized by the CSA upon a petition by
a town or a group of towns. This authorization can be issued only to companies. It indicates
the number and the nature of the services to be distributed, and can mention certain
obligations of which it defines the conditions.
These obligations concern one, or more, of the following
1 - The retransmission of programs broadcasted by hertzian means normally received in the zone. 2 - Broadcasting of a minimum number of their own programs. 3 - The allotment of a channel reserved for local news and information concerning the town, to the town, or the group of towns concerned, on a full-time or part-time basis. 4 - The payment of a tax to the town or group of towns by the operating company.
An ordinance establishes: 1 - The rules regarding the duration of the authorization 2 - The general rules concerning the schedule of programs 3 - The general rules for the production of the works broadcasted 4 - The rules applicable to advertising 5 - The hours of the films and audio-visual works broadcasted
(v) Rules Applicable to all Services Which are Subject to Authorization
The law establishes certain guidelines in order to ensure a multiplicity of views: Television by Hertzian Terrestrial Means The same individual or legal entity cannot, directly or indirectly, hold more than 25% of the capital, or of the voting rights of a company having an authorization to operate a national television service by hertzian terrestrial means. Where an individual or a legal entity holds more than 15 % of the capital or the voting rights of a company which holds such an authorization, it cannot hold more than 15 % of the capital or of the voting rights of two companies having such an authorization ; it cannot hold more of another company having a similar authorization.
Firthermore, where an individual or a legal entity holds more than 5 % of the capital or of the
voting rights of two companies having such an authorization it cannot hold more than 5% of
the capital or the voting rights of another company having a similar authorization.
Television by Satellite and Television Transmitted Through Frequencies Attributed to Radio
Broadcasting
An individual or a legal entity cannot hold, directly or indirectly, more than 50 % of the
capital or of the voting rights of a company having an authorization regarding a television
service which is broadcasted exclusively through frequencies attributed to radio broadcast and
to television by satellite.
Where an individual or a legal entity holds, directly or indirectly, more than a third of the
capital or of the voting rights of a company having such an authorization, it cannot hold more
than a third of the capital or of the voting rights of another company having a similar
authorization.
Furthermore, where an individual or entity holds more than 5 % of the capital or voting rights
of two companies having the authorization mentioned above, it cannot hold more than 5% of
the capital or of the voting rights of another company having a similar authorization.
Capital held by Foreigners
A French national cannot carry out an acquisition which will result, directly or indirectly, in
foreigners holding more than 20% of the registered capital or voting rights of a company
having an authorization regarding radio broadcasting or television service in the French
language through hertzian terrestrial means.
In an European perspective, the broadcasting of television programs is submitted to the
"Home Country Control" principle whereby a program regularly authorized in a Member
State must be received in the other Member States without any additional control.
d. DataProcessing
Neither the conditions of access to professions related to data processing nor its practice are
governed by any particular rules or regulations.
Thus, no specific degree is required in order to declare oneself, manufacturer, designer,
consultant, etc. in data processing. Also, there is no professional organization supervising the
persons or firms pursuing these activities.
Such persons or firms can if they so desire, become members of associations, the main
objective of which is to promote and defend the professional, moral and economic interests of
their members.
Thus, Canadian and US residents can have access to the French data processing market.
An administrative organization called Information Agency has
been created.
This Agency is responsible for promoting data processing.
With this objective in view, the Agency:
provides its support and cooperation to public and private research concerning the use of data processing and the techniques which are liable to encourage their development
investigates new uses of data processing
investigates and participates in the experimentation of new applications of data processing.
organizes the collection and distribution of French and foreign information about the use of data processing and the research which is done in this field.
aims at acquainting potential users with data processing.
participates in education of potential users and in disseminating the new applications of data processing, and in the preparation of corresponding methodologies.
gives its opinion regarding the granting of government assistance to particular projects in data processing technology research.
informs the government of all the problems encountered in the field of data processing.
Data processing and electronics are considered by the Direction du Trésor (Treasury Department) to be sensitive fields of activity. Consequently, prior declarations of foreign investments in France in the field of data processing are subject to more detailed scrutiny than in the case of investments made in other fields of activity. The examination is carried out by the Direction du Trésor. Although this remains the exception, the Direction du Trésor has exercised its right to oppose the investment when the latter had a direct relation with the data processing or electronics industry. In certain cases, the Direction du Trésor subjects the investment to certain conditions. For example, in the case of a commercial investment, it may prohibit the importation of certain products, or, in the case of an industrial investment, it may require that a percentage of the end product be manufactured by French contractors.
e. Advertising
There are no specific requirements, other than the general principles of law already examined,
to establish an advertising agency or to practice as an advertising consultant.
Neither the access to nor the practice of this profession are subject to any particular
regulation. There are no specific degrees or diplomas required either.
There is no professional body which organizes and supervises the activities of the profession.
However, the media or owner of the media (newspapers, radio, television, billboard
advertising…) often require that the agency should hold the title of “intermédia” in order to be
able to purchase advertising space.
Agencies which hold the "intermedia" title can benefit from special conditions of sale which
each medium can establish in their favor.
This title is issued to firms and consulting agencies which practice according to criteria set up
by the International Chamber of Commerce (report of the 128th Session of the Council, June
1976).
The "intermedia" title is neither a certificate of professional aptitude, nor a general and
permanent power of attorney which the media confer to the agencies who hold the title. It
does not prevent the making of special agreements freely signed between the media and these
agencies.
The media remain the sole judges of the conditions imposed upon advertising in their
advertising space. In no way does it entitle the agencies to become sole agents between
advertisers and the media.
"Intermedia" title is obtained by submitting an application to a commission that awards the title in Paris.
The consulting agency in advertising which applies for the "intermédia" title must fulfill the following conditions: carry our commercial activity in conformity with the laws, rules and regulations in force and with professional self discipline.
undertake to prevent the media to which the agency gives advertising orders from being sued
for the latter's acts.
ensure that the advertising orders will be promptly paid for.
undertake to provide proof at all times of its capacity to pay for the orders booked by
providing payment guarantees, and especially:
by having insurance covering the risks of the advertiser's insolvency.
by obtaining from these clients that they should be jointly responsible with the agency towards the media by countersigning the advertising orders issued to the latter.
not to be a central purchasing office of advertising space.
practice mainly as an advertising agent. The percentage of the agency's revenue from advertising (purchase of space, creation, publishing, etc.) must exceed 50 % of its total revenues.
provide guarantees of professional proficiency (training, professional experience in an agency or with advertisers).
The "intermedia" title is conferred by right when the above-mentioned conditions recorded by
the commission are fulfilled.
French nationality is not listed as one of these conditions.
The "intermedia" title is delivered by a joint commission, the members of which include
representatives of the press, of other media and advertising executives. Its composition and its
organization are fixed by the internal rules and regulations.
If the "intermedia" title is refused, the concerned agency has the possibility to appeal the
decision to the commission, who summons the agency to hear its explanations.
