Corporate law

Paris Court of Economic Affairs (Tribunal des affaires économiques de Paris): entry into force of a new protocol for disputes on the merits

On 19 December 2024, the Bar, the Clerk's Office (greffe) and the Paris Commercial Court signed a new protocol relating to the introduction and scheduling of disputes on the merits, with the aim of reducing the average time taken to process these cases.

The protocol concerns the settlement of disputes on the merits (and not summary proceedings, claims and injunctions to pay) and will apply to new cases filed after its implementation, which is scheduled to take place in stages from 1 January 2025. Firstly, it aims to improve the organisation of the filing of cases by introducing a procedure for the scheduling of dates. As soon as this function is operational on the ‘digital court’, the date will be scheduled on the commercial court platform.

The case will then be placed at the clerk's office by electronic transmission (Word or PDF text format) or, if this is not possible, by filing the copy of the summons with the reservation number at the clerk's office.

The protocol also changes the way in which cases are instructed, where representation by a lawyer is mandatory, based on the provisions of articles 446-1 to 446-4 of the French Code of Civil Procedure. As soon as the case is introduced, the parties will be proposed an amicable way of resolving the dispute. In the absence of conciliation, the court will exempt the parties from attending subsequent pre-trial hearings and, after obtaining the opinion of the parties, it will set a calendar for exchanges depending on the complexity of the case. Subject to certain exceptions, the exchanges will have to take place electronically.

Corporate law

New provisions on amicable liquidation proceedings and transfer of company assets (TUP)

Amicable liquidation and universal transfer of assets (TUP) procedures are sometimes misused by fraudulent companies facing tax and social security reassessments, which they seek to elude.

To prevent such misuse, the decree of 7^th July 2024 makes it compulsory to publish the dissolution giving rise to a TUP procedure in the “Bulletin officiel des annonces civiles et commerciales” (BODACC) and to produce certificates of social security and tax compliance when closing the amicable liquidation procedure.

As a result, article 8 of decree no. 78-704 is amended to make it compulsory to publish the dissolution giving rise to a TUP procedure only in the BODACC and no longer in a legal gazette, in order to enhance the publicity given to the procedure and the information provided to creditors.

The text also amends article 10 of the same decree and article R. 237-7 of the French Commercial Code (for commercial companies) to make it compulsory to produce a certificate of social regularity and a tax certificate attesting that the accounts are fully updated when the amicable liquidation is closed, as part of this procedure, which takes place without the intervention of a judge. Although the company must not have any debts and must have enough assets to pay all its liabilities, there is no obligation to certify that, a situation that the decree seeks to correct with this new obligation.

These provisions will come into force on 1^st October 2024.

Corporate law

Conditions under which former members of a civil company (société civile) are held liable for the company's debts.

In a recent decision, the French Supreme Court (Cour de cassation) ruled that shareholders in a civil partnership who have transferred their shares may be held liable for the company's debts that became due and payable before the date of the transfer, without any need to justify unsuccessful legal proceedings against the company prior to that date.

Corporate law

General Meeting of a Société Anonyme: the failure to establish a quorum is not equivalent to a lack of quorum

The Extraordinary General Meeting of a Société Anonyme is deemed valid only if the shareholders present or represented hold at least one-quarter of the shares with voting rights on first call and one-fifth on second call (French Commercial Code, art. L. 225-96, para. 2). Resolutions adopted in breach of this rule are null and void (French Commercial Code, art. L. 225-96, para. 1).

The shareholders of a Société Anonyme requested the nullity of an Extraordinary General Meeting, arguing that the meeting officers had failed to ensure that a quorum was met.

Their claim has been rejected: only the adoption of resolutions by the Extraordinary General Meeting without respecting the quorum can lead to nullity; however, the plaintiffs did not argue that the quorum had not been met, but only that the officers of the meeting had failed to ascertain its presence.  

Corporate law

Alternative arbitration clause and attribution of jurisdiction: the court may be seized

In a recent decision, the Paris Court of Appeal stated that, in the event of an alternative clause providing for recourse to arbitration to settle disputes arising from the contract, while reserving the parties the option of submitting their dispute to the national court in the event of disagreement, the court may be seized to establish the existence of such disagreement.

Corporate law

Commercial agents unable to continue working for health reasons are entitled to indemnification

The In a recent decision, the French Supreme Court (Cour de cassation) ruled that in the event that a commercial agent terminates his contract for health reasons, he retains his entitlement to the contract termination indemnity, even if he is not completely unable to carry out any activity, as long as he can no longer reasonably pursue his activity as an agent.

Tax

Research tax credit (“crédit d'impôt recherche - CIR”): sub-contracted expenses can only be taken into account if they have been paid during the financial year

According to the Toulouse Administrative Court of Appeal, sub-contracted expenses can only be taken into account in calculating the research tax credit (“crédit d'impôt recherche – CIR”) in respect of a given financial year if they are actually paid in that same year.

Tax

Denial of tax exemption to non-residents is subject to the contradictory procedure

When non-resident contributors claim an exemption on the basis of a bilateral tax treaty in a letter attached to their wealth tax (“Impôt de Solidarité sur la Fortune – ISF”) declaration, the contradictory rectification procedure must be implemented (French Supreme Court 18-9-2024 no. 23-10.515 F-D).

Employment law

The duration of fixed-term contracts, even if discontinuous, is deducted from the trial period provided for in any permanent contract subsequently entered into.

In a recent decision, the French Supreme Court (Cour de cassation) has reiterated the conditions for the implementation of the trial period in the event of a succession of previous contracts, confirming its case law in this matter.

In particular, on expiry of one or more fixed-term employment contracts (CDD), the employee may be hired, without any delay, on a permanent contract (CDI) by the company in which he or she was working. In this case, the duration of the fixed-term contract(s) has to be deducted from any trial period provided for in the new employment contract (French Labor Code, art. L 1243-11, para. 3), even if the various contracts are separated by short periods of interruption. The deduction of the duration of previous fixed-term contracts from the trial period of the new contract is even more applicable in the event of new recruitment on a fixed-term contract following immediately successive fixed-term contracts. However, except in cases of fraud, the employer does not have to reduce the trial period if the new contract is for a different position requiring the employee to have different qualifications and skills.

Employment law

A recording made without the employer's awareness can be used to prove a work-related accident

The plenary session of the French Supreme Court (Cour de cassation) recently ruled that, in civil proceedings, the unlawfulness of obtaining or producing evidence does not necessarily mean that it should be excluded from the proceedings. The court must, when requested to do so, assess whether such evidence undermines the fairness of the proceedings as a whole, by balancing the right to evidence against the conflicting rights involved. The right to evidence may justify the production of evidence that undermines other rights, provided that such production is essential to the exercise of that right and that the violation is strictly proportionate to the aim pursued.

In a judgment of 6 June 2024, the Second Civil Chamber of the French Supreme Court applied this solution for the first time to disputes concerning work-related accidents. It approved the Court of Appeal's (Cour d’appel) ruling that an employee could produce an audio recording made without the knowledge of the director of the company with whom he had had an altercation, in order to obtain recognition both of the work-related nature of the accident resulting from this altercation and of the employer's inexcusable fault, after observing that the court had carefully balanced the director's right to respect for his private life and the victim's right to evidence.

Employment law

Repeated sexist comments by an employee are culpable and justify dismissal

An employee who repeatedly insults colleagues using mildly sexist language is guilty of misconduct justifying dismissal, regardless of the employer's past tolerance.

Employment law

No compensation for notice for an employee who refuses a change in working conditions

An employee who refuses a simple change in working conditions may be dismissed for misconduct. In this case, the employer may require that the notice period, if any, be performed under the new working conditions. An employee who refuses loses all entitlement to compensation for notice (French Supreme Court, Labour Division, 23-10-2024 no. 22-22.917 F-D, Association Essor c/ E).

Real estate law

Consequences of an ancient promise to sell: revocation and invalidity of the price

It is impossible for the promisor to withdraw from the unilateral undertaking to sell unless otherwise stipulated in the contract. Whether the price is too low is determined at the date of the unilateral undertaking to sell and not, as in matters of lesion, at the date of exercise of the option.

Real estate law

The seller's right to occupancy compensation is not conditional on absence of fault on his part

While the seller's bad faith does not deprive him of his right to restitution in respect of the occupation of the property sold after the invalidation of the sale, a purchaser acting in good faith only has to pay this value from the date of the claim (French Supreme Court 3^rd Civil Division 5-12-2024 no. 23-16.270 FS-B).

Real estate law

Legal standing for a non-professional creditor in a compulsory sale of the principal residence of a debtor in compulsory liquidation

A creditor with a charge over real property, to whom the declaration of unseizability of a property belonging to a debtor in compulsory liquidation cannot be set up against, may proceed with its sale on seizure. The non-professional creditor's right to bring an action is recognised because it is not an action to order the debtor to pay a sum of money prohibited by article L. 622-21 of the French Commercial Code (French Supreme Court, Commercial Division, 20 November 2024, F-B, no. 23-19.924).

Civil Law

Royal Decree-Law 5/2023 of 28 June modifies the civil cassation appeal, as well as other procedural rules. It came into force at the end of July this year, although the law provides for a transitional regime. Among other measures, the law includes a new regulation of the civil cassation appeal, including that provided for in the Draft Law on Procedural Efficiency Measures for the PublicJustice Service, and other amendments to the Civil Procedure Act.

Structure of the new cassation appeal

Art 477.1: Judgments subjects to appeal in cassation:

• Judgments that put an end to the second instance issued by the provincial courts.
• Decisions and sentences handed down on appeal in proceedings on the recognition and enforcement of foreign judgments, when the right to appeal is recognized in the corresponding treaty, convention or regulation of the European Union.
  
  Art 477.2 Requirements:
• To have an interest on the case.
• Civil judicial protection of fundamental rights.
  
  The possibility of accessing the cassation appeal if the amount of the case was greater than €600,000 is eliminated.
  Who will decide on the appeal? It will correspond to the First Section of the Supreme Court. This is unless the appeals are against decisions of the civil courts seated in the Autonomous Community.
  
  Procedure:
  It shall be brought before the court which delivered the decision within 20 days. The court that receives it decides whether or not to accept the appeal.
  
• If it accepts it, the appeal is deemed to have been lodged.
• If the requirements are not met, an order dismissing the appeal is issued.
  Novelty in the procedure: The parties will not participate in the admissibility or inadmissibility part of the appeal.

Format:

• An appeal shall be divided into grounds of appeal.
  o Different offences may not be combined in the same different offences may not be joined in the same ground of appeal.
• Each ground of appeal shall begin with a heading, which shall contain the precise wording of the rule infringed and a summary of the infringement committed rule infringed and a summary of the infringement committed.
  o The grounds of each plea shall be set out in the grounds of appeal, without departing from the essential content of the heading.
• The maximum length of the appeal shall not exceed 25 pages.

Bankruptcy law

Barcelona Commercial Court no. 2 has issued judgment no. 26/2023, approving the CELSA Group’s Restructuring Plan. This is a highly relevant judgement, as it discusses the conflict of interests arising from the control of the Group between the shareholders and the financial creditors, most of whom are investment funds dedicated to the purchase of debt assets.

The restructuring plan has gone through several stages, building relevant doctrine on the new dynamics of pre-bankruptcy restructuring after the reform approved by Law 16/2022 of 5 September. The judicial approval of the Restructuring Plan extends its effects to the dissident classes of creditors, on the understanding that the legal conditions for this are given:

• The amount of the debt is much higher than the value of the company.
• With the creditors' proposal, the viability of the Celsa Group is assured, qualifying it as the only viable alternative in the medium term.

This result has been made possible following the reform of the TRLC to transpose Directive 2019/1023 on restructuring and insolvency. The new regime, which replaces the old refinancing agreements and out-of-court payment agreements with Restructuring Plans, is designed to enable companies to anticipate an insolvency situation and restructure their debt with creditors. Among the measures, the Spanish legislator has given legal status to the possible imposition of a debt-toequity conversion despite the opposition of the shareholders of the company concerned.

The judgment contains certain aspects that will be useful for the future elaboration of Restructuring Plans:

• The judge uses the term “joint and several” to refer to the sacrifice made by all classes of creditors.
• For the judge, it is perfectly lawful for market operators to take investment decisions based on interests other than those of the company's good purpose, although in this case those interests coincided with those of maintaining the viability and solvency of the group, since the alternative would lead CELSA into insolvency.
• The Restructuring Plan can go ahead without the approval of the shareholders. In this ruling, it is argued that the new wording of the TRLC deliberately leaves the debtor and the shareholder on the sidelines: through a teleological interpretation of articles 627 et seq. of the TRLC, the speed of the procedure and the best interests of the company, the shareholders and the market must take precedence. The shareholders will tend to hinder
  the application of a Plan that could alter their representation in the share capital, as is the case here. For this reason, the Judge recalls that the interests of the company's viability outweigh those of the shareholders.
• The importance of accompanying the Restructuring Plan with a financial report on the valuation of the company is highlighted because if the debt exceeds the value of the capital, the TRLC allows creditors to keep the company, leaving the shareholders out of the money.

Corporate Law

The new regulation, published in the Official State Gazette (BOE hereinafter) on July 12 and which entered into force on September 19th, creates the registry, which will be electronic, central, and unique throughout the national territory. The Central Registry of Real Estate Titles (hereinafter, “RCTIR”) is created, and its operating regulations are approved.

In the first place, the beneficial owner is understood to be:

• Natural person or persons who directly or indirectly control more than 25% of the capital or voting rights of a company.
• In the absence of such beneficial owner, such control is deemed to be exercised by the director(s).

A series of additional information requirements are established, thus increasing certain data that must be shared with the administration, specifically the e-mail address of all those considered to be beneficial owners.

Objectives:

Its objective is to collect and publicize information on beneficial ownership of all Spanish legal persons and non-legal entities or structures (such as trusts) that have the seat of their effective management or their main activity in Spain, or that are managed or administered by natural or legal persons resident or established in Spain or that, not being managed or administered from Spain or another European Union (EU) State, nor registered by another EU State, intend to establish business relations, carry out occasional operations or acquire real estate in Spain.

Information to be included in the register:

Name, surname, date of birth, identification document (Passport or DNI), country of issue of the identification document, country of residence, nationality, criteria that consider that person as the real owner and e-mail.

Penalties:

The sanction in case of non-compliance will be the closure of the registration sheet and financial penalties are foreseen which have not yet been determined.

Corporate law

Amendment to the General Law of Mercantile Corporations for the Implementation of Electronic Means, to Hold Shareholders and Partners Meetings Outside the Domicile of the Company

In Mexico, limited liability companies (Sociedades de Responsabilidad Limitada, S. de R.L.) and corporations (Sociedades Anónimas, S.A.) are two of the most common types of commercial entities.
Article 80 of the General Law of Commercial Companies mandates that limited liability companies must convene their Partner or Shareholder meetings at the company's registered office at least once a year. Similarly, Article 179 of the same law stipulates that both ordinary and extraordinary general shareholders' meetings for corporations must take place at the corporate domicile of the company.

Failure to adhere to these requirements will lead to the nullification of the respective meetings, unless exceptional circumstances, such as a fortuitous event or force majeure, make it impossible to convene the meeting elsewhere.
However, on September 12 of the present year, the Mexican Senate approved an amendment to the General Law of Mercantile Corporations, to allow Mexican companies to use technological tools and means to hold virtual meetings.

This reform implies the inclusion of specific rules and essential requirements so that meetings of partners, shareholders and any administrative body can be held remotely. Companies wishing to hold virtual meetings must have the necessary tools to facilitate simultaneous and uninterrupted communication among participants, thus ensuring interaction as similar as possible to a face-to-face meeting. In addition, it establishes the need to implement a system that allows access, verification of participants' identity, registration and voting, in order to document the legality of the meetings.

The reform also gives the partners and shareholders the ability to discuss both the format and the venue of the meetings, which is especially beneficial for those who are abroad, since they will not be obliged to physically attend the registered office of the company, allowing decisions to be taken remotely.

It was also established that the notices must be published in the electronic system designated by the Ministry of Economy, and these notices must include the agenda and be signed by the person issuing them. In the case of Limited Liability Companies, it must be made eight days in advance or as established in the bylaws. In the case of Corporations, it must be made 15 days in advance, or otherwise, as established in the bylaws.

Corporations that have been incorporated prior to the entry into force of this reform have the option to amend their bylaws to incorporate these new provisions. In order to implement the reform approved in the General Law of Commercial Companies in Mexico, it is essential that commercial companies adapt to the new provisions that allow the
holding of virtual meetings. These modifications represent a significant advance in the flexibility and efficiency of corporate operations, especially in a constantly evolving business environment, and when it comes to foreign shareholders or partners of Mexican companies.

Tax

Legislative Initiative Proposes Higher Range of Free Representation for Taxpayers

On September 12th, 2023, the Upper House (Cámara de Senadores) granted the approval to a legislative initiative that has the aim to elevate the financial limit at which the Taxpayer's Defense Attorney’s Office can offer free representation to taxpayers in their dealings or trials with the fiscal authorities. However, this proposal still awaits the vote in the Lower House (Cámara de Diputados) before it can secure full approval and eventual publication.

This financial threshold, commonly referred to as the limit amount, represents the monetary value of cases for which a taxpayer seeks representation. In concrete terms, this amendment seeks to triple the limit amount, propelling it from the existing thirty Annualized Units of Measurement of Actualization (Unidades de Medida de Actualización - UMAS), which are the equivalent to USD $63,294 (sixty three thousand two hundred ninety four American dollars), to an elevated level of ninety UMAS, which are equivalent to $ 189,884 (one hundred eighty nine thousand eight hundred eighty four American dollars).

The consequences of approving this reform are multi-faceted for both taxpayers and the fiscal landscape. Most notably, it would cause the Taxpayer's Defense Attorney's Office to expand its services to a considerably larger range of taxpayers, which could significantly diminish the financial burden that they face when navigating complex tax matters. Additionally, it could be crucial for the increase of legal certainty for taxpayers, who can now benefit from expert representation when needed. Nevertheless, in case of approval, it will be vital to ensure that the Taxpayer's Defense
Attorney's Office receives the necessary additional resources to effectively provide its services, considering the increase of workload that this reform might represent for it.

Another substantial advantage of this reform is the prospect of simplifying the resolution of disputes involving the tax authority. When contrasted with cases involving private legal representation, these disputes would find resolution directly within the purview of public entities. This streamlined approach holds the potential to reduce the complexities that often accompany such matters, facilitating a more efficient and cost-effective process.

Should the reform secure approval, it could serve as the beginning of a comprehensive review of the entire tax law framework, in order to ensure that the tax law remains coherent and effectively aligned with the reform's objectives, safeguarding fiscal stability and preventing unintended complications, ultimately benefiting both the government and taxpayers alike.

Political, Economic, Social, and Technological factors

The PEST analysis, which addresses Political, Economic, Social and Technological factors, aims to assess the business situation in Mexico in search of opportunities and threats that may arise from these four areas.
Mexico currently has several advantages, largely due to its geographic location and demographically diverse population. However, the country faces persistent challenges related to systemic problems such as corruption and the presence of organized crime. In addition, in the technological and business sphere, Mexico shows significant potential for growth.

Politics

Political Aspects: Mexico is a presidential federal republic, and currently, the incumbent president is Andres Manuel Lopez Obrador (AMLO), leader of the Morena party.

Power Challenges: One of the main issues of concern is the centralization of power under AMLO's government and its impact on the separation of powers.

Security: is another major concern due to the presence of organized crime and cartels in certain regions. Despite efforts to combat it, corruption remains a significant problem.

International relations: are fundamental, particularly with the United States, due to geographic proximity and its implications for trade, migration, and security issues.

Human rights: especially regarding militarization and possible violations of these rights in the fight against crime.

Political Future: a change in political focus is anticipated under Sheinbaum's administration, although AMLO’s policies could persist.

National Agenda: Focuses on the energy sector, poverty reduction and economic development.

Economics

Growth: 2% increase in Gross Domestic Product (GDP) is expected, driven by domestic demand.

Currency and Inflation: Future appreciation of the Mexican peso and moderate inflation are expected.

Remittances: Remittances represent a significant source of income that supports consumer spending.

Economic Challenges: As the largest economy in Latin America, Mexico faces challenges such as inequality, corruption, and poor infrastructure.

Impact of COVID-19: The pandemic has had a severe impact on key sectors such as tourism and remittances.

International Trade: Mexico benefits from trade agreements such as the North American Free Trade Agreement (NAFTA) and the Mexico-United States-Canada Agreement (T-MEC).

Social

Demographics: With a population of 126 million, Mexico has the second largest population in Latin America, and youth dominates its demographics.

Social Challenges: The country faces problems such as poverty, inequality, violence, and lack of social mobility.
Crime: Organized crime has a profound impact on Mexican society.

Trust in Institutions: President AMLO enjoys high approval thanks to his focus on fighting corruption.

Mobility: There is a migration trend from rural to urban areas.

Technology and Society: Digitalization is on the rise, but there are challenges in financial inclusion for broad layers of the population.

Technological:

Technology Adoption: There is a significant increase in the adoption of technologies such as automation, artificial intelligence (AI) and the Internet of Things (IoT).

Startups and Venture Capital: Despite growth, Mexico still lags behind its regional competitors in startup development and venture capital investment.

Infrastructure Challenges: Mexico faces difficulties in implementing the 5G network and strengthening cybersecurity.

Innovation: Research and development (R&D) spending in Mexico is relatively low compared to other countries in the region.

Technology Policies: The government is looking to expand access to technology, focusing especially on the Fintech sector through government initiatives.

Takeaways

Political: To ensure a stable political environment, Mexico must address the centralization of power and corruption.

Economics: Opportunities are on the horizon, particularly in trade with North America.

Social: Effective action is needed to address poverty and inequality, and the advantage of a young demographic must be leveraged.

Technology: Mexico needs to invest more in R&D and overcome infrastructure challenges to unlock its full technological potential.

On 21 February 2023, was published the Act 2/2023, regulating the protection of persons who report infringements and the fight against corruption, hereinafter, (“The Spanish Whistleblowing Act”). The Act will come into force on 13th march 2023, this Act responds to the obligation imposed on the Spanish legislator to transpose the Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law.