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Montesquieu Law Review: Issue 1; January 2015

Abstracts:
   

Administrative Law:

Recent changes in administrative litigation concerning contracts: on third-party remedies against administrative contracts
Professor Jean-François Brisson

In a decision handed down on 4 April 2014, the Conseil d’Etat opened up the possibility of challenging the validity of a given administrative contract to all third parties able to establish an interest that has been adversely affected. This decision overturned previous case law under which this course of action was reserved for parties to the contract and any unsuccessful competitors when the contract was concluded. In order to guarantee a minimum level of certainty in contractual relations, third parties may only bring an action in the event of particularly serious unlawful activity or in direct relation with the interest that has been adversely affected.

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The Dieudonné case: freedom of expression, freedom of assembly and public order requirements
Professor Aude Rouyère

The three temporary orders handed down by the Conseil d’Etat on 9, 10 11 January 2014, which enshrine the legality of administrative police decisions prohibiting a stage show characterised by the clearly anti-Semitic tenor of the views expressed therein allegedly as entertainment, caused controversy amongst French legal scholars. Freedom of expression and of assembly come face-to-face with public order requirements and are called into question by an analysis based on the principle of human dignity and the legally recognised power held by administrative autorities to take steps to prevent the commission of criminal offences. An assessment of the arguments that shape this perilous reconciliation of rights and freedoms seems to threaten France's democratic system. However, an examination of the factual and strictly legal elements in the case yields a contextualised view of the court's margin of appreciation; and this drives us to play down the importance of the prospects opened by the temporary orders and ultimately agree with the approach taken by the Conseil.

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Business Law:

A step towards the harmonisation of EU law in matters of insolvency
Professor Jean-Luc Vallens

The reform of French insolvency law, passed by Ordinance on 12 March 2014 and a Recommendation of the European Commission of the same date, presents significant convergences. The French legislature answers some of the concerns raised by Brussels, with a view to encouraging “a new approach to business failure and insolvency”, according to the title of the Recommendation.

The convergences emerge in two areas:

The preventive restructuring of businesses in difficulty, by means of negotiations and recovery plans, made effective for all. This is the purpose of the new “accelerated safeguarding” procedure, which allows the approval of an amicable agreement reached through a process of conciliation.

The writing-off of debts, granted to entrepreneurs acting in good faith. This measure, contained in the French Code de la consummation (Consumer Code), takes on greater significance as a recovery tool: the new “professional recovery”

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Civil Law:

Compensation for environmental damage under French law: past, present... but what future?
Laurent Bloch

The recent enshrinement of environmental damage as a separate tort marked an important step forward in the protection of France’s common heritage. Compensation for harm suffered is not, however, completely satisfactory as regards irreversible damage to the environment. In such a scenario, only the precautionary principle can prevent the irreparable. Paradoxically, just when “pure” environmental damage has finally been recognized, the precautionary principle finds itself under attack and its survival in peril.

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The end-of-life decision: the Vincent Lambert case
Cécile Castaing and Marie Lamarche

What is now known in France as the Lambert case has crystallised all of the questions, claims and opposition surrounding the issue of the end of life. Can the medical profession be asked to provide the means to end a person’s life? Between the right to die with dignity and the prohibition on killing, the Leonetti law seemed to have provided a measured solution. The decision handed down by the Conseil d’Etat sitting in plenary session on 24 June 2014 is an important step in the implementation of legal provisions currently in force in France that are often unfamiliar or misunderstood. It is the medical decision to stop treatment, taken in the context of the procedure provided by the statute of 22 April 2005, which was subject to review by the administrative courts.

This decision is part of a transnational and European socio-legal environment and fuels highly controversial current developments in legislative policy.

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Marriage and the prohibition on incest
Professor Jean Hauser

While the prohibition on marriage between people related biologically is ancient, there is a similar ban in many national legislations on marriages between people related by marriage. The basis of the latter is different in that it is the fear of watching a person lure away the partner of one of their children, for instance, or of one of their siblings, in order to marry them.

The prohibition, which generally applies in case of divorce, may be lifted by a dispensation. This, together with the procedure for obtaining such a dispensation, can be discussed. It calls into question the definition of incest and the scope of its application in modern times.

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Constitutional Law:

Recent draft amendments to the Environmental Charter
Florian Savonitto

Some ten years since its promulgation, the solemnity of France’s Charter for the Environment appears to have waned, judging by the proposed constitutional amendments to which it has recently been subject. Focusing primarily on Article 5, the proposals are the culmination of constant and increasing challenges to the precautionary principle; they aim either to de-constitutionalize it, or balance it out through the insertion into the Constitution of an innovation principle, or entrust the task of defining the conditions for its application to the legislature.

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Contract Law:

The curious process reforming France's law of obligations
Professor Hélène Boucard

The process of reforming France’s law of obligations is at least curious. Long desired yet long postponed, the reform now seems urgent, as it is said, in particular that of contract law, because of the European context and the international competition between legal systems. After a decade of doctrinal disorder, the political power has seized the question but brought an inappropriate solution to the table. To complete the reform, it has chosen an expeditious hybrid technique: the governmental ordinance rather than the ordinary statute. This has sparked a symbolic and institutional conflict between Ministry of Justice and one of the Houses of Parliament, the Senate.

The result is a mediocre attempt to recodify the French law of obligations, disjointed in its substance as in its authors: the Government will reform by ordinance the law of contracts, quasi-contracts and the “’régime général de l’obligation” (or law of obligations in general), whereas Parliament will reform by statute the law of civil (contractual and extra-contractual) liability.


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Consumer Law:

The introduction of class actions in French law
Françoise Gonthier
Law n° 2014-344 of 17 March 2014 on consumer affairs (known as the loi Hamon or Hamon law) finally instituted class actions in French law, regulated under Sections L. 423-1 and subsequent of the Code de la consummation. However, it remains a fairly modest innovation for the time being, the scope of which is narrow. The law restricts such actions to damage within the scope of consumer law or some aspects of competition law. Moreover, class actions may only relate to compensation for financial loss resulting from material damage suffered by consumers and can only be brought by accredited consumer associations and representatives on a national level.

The Law makes provision for an original standard procedure, together with a simplified procedure and a specific one for anti-competitive practices.

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Criminal Law:

The influence and false influence of European Union law on French criminal procedure
Amane Gogorza

This article questions the contribution purportedly made by Directive 2012/13/EU on the right to information in criminal proceedings. Having in some ways lifted the veil on the concept of “suspect”, the Directive doubtless explains some of the advances contained in France’s transposition law of 27 May 2014.

However, it has been noted that European legislation is vague and hazy on the most controversial points, and occasionally ill adapted to France’s procedural architecture. In this respect, the development of French criminal procedure is essentially the result of a more audacious constitutional and conventional movement, while the European Union plays only a marginal role in this field which belongs more to a process of adjustment than it does to true revolution.

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Employment Law:

The ban on the wearing of the Islamic veil in creches: the Baby Loup case
Professor Christophe Radé and Marie Peyronnet

The Baby Loup case has regularly racked up column inches in French newspapers over the last four years. Can a salaried employee come to work wearing an Islamic veil at a crèche which requires its staff to observe strict religious and political neutrality when, on joining the company, the employee had agreed to comply with the company’s aims? The Social Chamber of the Court of Cassation held that it was discriminatory but the Court of Appeal, ruling on the referral, resisted and upheld the decision of the first Court of Appeal; it took the Court of Cassation sitting in plenary session to bring the saga to an end, when it too found in favour of the employer.

Quite beyond the simple matter of French labour law relative to restrictions imposed on employee rights and freedoms by a company’s internal regulations, on a much deeper level it was religion’s place in French society that was argued before the courts.

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European Law:

Surrogacy agreements: at last, the primacy of the child's interests

Adeline Gouttenoire

With the decisions handed down on 26 June 2014 in Mennesson v France and Labassee v France, the European Court of Human Rights finally gave a glimmer of hope to the "ghost children" whose filiation is not recognised in France! The Court clearly condemned France’s refusal, and particularly that of the Court of Cassation (in its decisions of 6 March 2011) to recognise the filiation of children born to surrogate mothers overseas with regard to their French "intended" parents. In reality, this condemnation relates only to a child’s filiation with regard to the biological father of the children.

The European Court accepted that a State may prohibit surrogacy agreements and take steps to prevent its citizens from resorting to such agreements overseas. The Court did, however, examine the consequences for the children born to surrogates overseas of the French State’s refusal to recognise their filiation, legally established in the country of their birth. While the Court considered that there had been no infringement of the parents’ or the children’s right to respect for family life, it also considered, conversely, that France’s failure to recognise the children’s filiation constituted an undue infringement of their right to respect for private life.

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The difficulties faced by public bodies in light of competition law
Professor Sébastien Martin


The law on State aid is a privileged instrument for the European Commission in its work relating to the protection of competition. Its decisions sometimes take on even greater significance as they stretch beyond the scope of traditional subsidies. This is true for the case examined here, where the European authority considered that the French postal operator’s status as a public establishment breached the rules set down by the Treaties.

The case is a delicate one as it rests on an implicit State guarantee, disputed by the Commission. However, the case also reflects developments affecting public operators in the internal market and is thereby the symbol of the transformations in State intervention in the economy.

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The notion of "public authority" in the recent case law of the European Court of Justice and its impact on French administrative law
Professor Sébastien Platon

The distinction between public and private entities is central to French administrative law. The line between the two categories has, however, been blurred by the case law of the European Court of Justice, and its definition of public authorities in particular. In its decisions in Portgás (12 December 2013) and Fish Legal (19 December 2013), the ECJ handed down a definition of public authorities that encompasses those entities that French law would rather categorise as private entities entrusted with a public service mission.

The consequences for French law are far from trivial. The Portgás decision means that the French State may invoke Directives against private entities entrusted with a public service mission. Pursuant to the Fish Legal decision, some private entities entrusted with a public service mission may be legally bound to furnish documents to any person requesting the same.

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The European Court of Human Rights and the offence of insulting the President: an ambiguous condemnation for a planned repeal
Professor David Szymczak

In the Eon decision of 14 March 2013, the European Court of Human Rights condemned France for her violation of the right to freedom of expression, protected under Article 10 of the European Convention on Human Rights. At the heart of the Court’s analysis lay the offence of insulting the Head of State, which had earned the applicant, Mr. Eon, a criminal conviction under French law for insulting the President. While the Court in Strasbourg recognized a violation of the Convention in the case, it refused to rule in abstracto on the conventionality of the offence. This did not, however, prevent the French authorities from taking swift steps to repeal the offence by an Act of Parliament passed on 5 August 2013.

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Public international law:

The trial of Pascal Simbikangwa, or how the application of the principle of universal jurisdiction has led to the very first conviction of a Rwandan genocide fugitive in France

Professor Anne-Marie Tournepiche and Justine Castillo
The principle of universal jurisdiction, which allows a court to deal with cases involving foreign citizens outside State territory, is only rarely used by French judges. In acknowledging its own jurisdiction for the first time in order to try a Rwandan genocide fugitive and convicting him of complicity in genocide and crimes against humanity, the Paris Assize Court implemented the principle and contributed to the fight against the impunity of perpetrators of the most serious international crimes.

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Political science:

The Front National at the heart of the French political scene and the consequences for the UMP's failing strategy to win back and remain in power
Professor Patrick Troude-Chastenet and Clémence Faure

The European elections, which took place on 25 May 2014, were a historic moment for the far right, on both a national and a European level. In France, the FN became – in the space of one ballot – the country’s leading party, defeating the UMP by 4% and the PS by 11%. The results serve as confirmation of its steady advance since 2010. They also lead us to reflect on the party’s swift rise to the very heart of public debate, where once it had been relegated to the fringes of France’s political stage.

What factors could explain the place that the FN now occupies in the electoral arena after its spell in the wilderness between 2007 and 2009? One answer lays in the “Sarkozy strategy”. Indeed, this policy, implemented in 2004 in light of the 2007 presidential elections, not only normalised Marine Le Pen’s party, but also legitimised its themes and issues.

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Dialogues:

A Huron at the Palais-Royal
Jean Rivero, with a commentary by Professor Jean-Bernard Auby
Jean Rivero (1910-2001) was a well-known French adminstrative and comparative lawyer. In his seminal piece, Le Huron au Palais-Royal (1962), Rivero shows with biting humour that French law was, at that time, far from satisfactorily guaranteeing the rule of law in administrative matters. The article especially underlines three weaknesses in the courts’ supervision of administrative authorities, which have since been attenuated by reforms of French adminstrative law.

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The absurdity of the law, following an exposition of Racine and Kafka
Professor Jean Carbonnier, with a commentary by Professor Jean Hauser

Jean Carbonnier (1908-2003), Professor of Private Law, is widely considered as one of the founders of the sociology of law in France. The author of many works on civil legislation, he brought about a number of significant reforms of French family law between 1964 and 1975 (see L’année sociologique, vol. 57, 2007 n°2, PUF).

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