Newsletter No. 116 – August 2018

This text notably provides that “the administration cannot give a sanction, whether financial or consisting in the loss of a due benefit in whole or in part, to a person having disregarded for the first time a rule applicable to their situation or having made a material mistake while giving information about their situation, if they have voluntarily regularized their situation or if they have been requested to do so by the administration within the period indicated by it”.  This rule is however not applicable if the person is acting in bad faith, namely, if they “deliberately disregarded a rule applicable to their situation”, knowing that proof of bad faith and fraud falls to the administration (Law No. 2018-727 of 10 August 2018, Official Journal of 11 August).

On 8 June 2016, the European Parliament and the Council adopted a directive on the protection of undisclosed know-how and commercial information against illicit obtaining, use and disclosure, a text that the French legislator has just transposed into national law. The information protected must meet the following requirements:

– Not be generally known or easily accessible for people familiar with this type of information due to their line of business;

– Have a commercial value, effective or potential, due to their secret nature;

– Be the object on part of their legitimate holder of reasonable protection measures, given the circumstances, to preserve their secret nature.

This law also defines the illicit nature of the obtaining, use and disclosure of trade secrets, along with exceptions to the protection of trade secrets.  Finally, actions aiming at preventing, putting an end to or seeking damages following the infringement of trade secrets are also being set up. (Law No. 2018-670 of 30 July 2018, Official Journal of 31 July).

A national inter-professional agreement setting up the AGIRC-ARRCO supplementary pension scheme of 17 November 2017 provided the merger of the supplementary pension schemes ARRCO and AGIRC on 1^st January 2019 and defined the new methods for calculating contributions.  An administrative order of 27 July 2018 extends and widens this agreement, ratifying this merger “for all employees, former employees and their assignees and for the employers included in its own scope” (Administrative order of 27 July 2018, Official Journal of 14 August).

This text mainly specifies the prerogatives of the Cnil in relation to the implementation of the RGPD.  The majority rules of the decisions taken by the Cnil are thus defined, along with the certification and approval procedures.  The decree also determines the information relating to the DPO that the data controller has to communicate “forthwith” and by electronic means to the Cnil: last name, first name, professional contact details (D. No. 2018-687 of 1^st August 2018, Official Journal of 3 August).

This text notably completes the provisions of the Criminal code relating to offenses of sexual and psychological harassment, specifying that these offenses are also constituted:

“1° when these remarks or behaviors are directed at a same victim by several persons, in consultation or at the instigation of one of them, even when each of these persons did not act in a repeated manner;

2° When these remarks or behaviors are directed at one same victim, successively, by several persons, who, even in the absence of consultation are aware that these remarks or behaviors characterize a repetition”.  Besides, a new offense is created (sexual affront) punished with the fine set for fourth class offenses and defined as “the fact […] to direct to a person any remark or behavior with a sexual or sexist connotation, which either undermines their dignity due to its degrading or humiliating nature, or creates against them an intimidating, hostile or offending situation” (D. No. 2018-687 of 1^st August 2018, Official Journal of 3 August).

Adopted on 1 August 2018, this text notably contains provisions in favor of the attractiveness and welcoming of talents and skills and specifies the conditions of intragroup transfers. Having been referred to the Constitutional court on 6 August, this law has not yet been promulgated.

Currently being the object of an action before the Constitutional court filed on 4 August, this law aims at deeply reforming professional training and apprenticeship.  The text thus contains provisions aiming at strengthening and facilitating individual freedom in the choice of professional training, with notably an account in Euros (and no longer time-based), release and secure investments for workers’ skills, transform work-linked training by relaxing the legal framework of the apprenticeship contract, rebuild the system of construction and regulation of degrees and professional titles.  This law also reforms the obligation to employ disabled workers and reinforces the principles of equal pay for women and men and the fight against sexual and sexist violence.