France – Preparing for Hard Brexit: what are the measures provided for in the Ordinance of 6 February 2019
Pursuant to the Law of 19 January 2019 allowing the French Government to take by way of ordinance the necessary measures to prepare the withdrawal of the United Kingdom from the European Union, an ordinance on financial services which are applicable only in the event of Hard Brexit has been issued by the French Government on 6 February 2019.
This ordinance provides for several key measures, including:
- the exclusion of the anatocism rule which prohibits the capitalisation of interests due over a period of less than one year for French law master agreements published by the International Swaps Derivatives Association (ISDA) in respect of derivatives;
- the introduction of a new mechanism for the replacement of derivative framework contracts with framework contracts governed by French law, subject to certain cumulative conditions as set by the Ordinance;
- facilitating access by French entities to British interbank and securities settlement systems, which will continue to benefit from the protective measures of the Finality Directive of 19 May 1998 and ensure that settlements within these systems are final; and
- the continuity of the Supervisory Authority's powers of sanction and supervision for acts committed by persons under its authority but also for successive performance contracts concluded on the basis of a European passport.
For more details please click on the following link (Only a French version is available): https://www.hoganlovells.com/fr/publications/produits-derives-et-brexit-que-retenir-de-lordonnance-du-6-fevrier-2019
France – First ruling upon request of the CNIL's qualified person
When the administration considers that content published on the Internet constitutes a direct provocation or promotes acts of terrorism, it can order Internet service providers and search engines to block access to or stop indexing such content.
These measures are implemented under the control of a qualified person designated by the French Data Protection Authority (the "CNIL"). This person can submit a cancellation request to the administrative courts.
In this context, on February 4th, 2019, the administrative court of Cergy-Pontoise quashed several content withdrawal decisions made by the Anti Information Technology-Related Crime Central Office (Office central de lutte contre la criminalité liée aux technologies de l'information). This is the first ruling issued upon request of the CNIL's qualified person.
European Union – EDPB Guidelines on certification pursuant to Articles 42 and 43 of the GDPR
In February 2019, the European Data Protection Board (EDPB) released its guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the General Data Protection Regulation (GDPR), adopted on January 23rd, 2019.
In this context, certification refers to a third party attestation related to processing operations by controllers and processors.
The guidelines explain the key concepts, scope and purpose of certification. They aim at facilitating the uniform application within the European Union of the provisions of Articles 42 and 43 by the supervisory authorities and the different certification bodies, the role of which they clarify in this regard. In particular, the guidelines provide considerations to take into account in the definition and approval of certification criteria.
European Union – EDPB information note on data transfers in the event of a no-deal Brexit
On March 30th, 2019, unless Brexit is delayed, the UK will become a third country to the European Union. In the event of a no-deal Brexit, and without derogations provided by the GDPR or an adequacy decision by the European Commission acknowledging that the UK ensures an adequate level of protection, any personal data transfer to the UK will have to comply with the GDPR provisions applicable to transfers to third countries.
In an information note of February 12th, 2019, the EDPB mentions the mechanisms that may be used to transfer personal data to the UK under such circumstances, such as executing Standard Data Protection Clauses approved by the European Commission or using Binding Corporate Rules.
The EDPB recommends companies to adopt a multi-step plan. Companies should first identify personal data transfers to the UK, then the appropriate transfer mechanisms. Such mechanisms should be implemented by March 30th, 2019. After that, companies should mention transfers to the UK in their internal documentation and update their privacy notices accordingly to inform data subjects.
France – Secondment of employees: transposition of European Directive n°2018/957 dated 28 June 2018
Order n° 2019-116 dated 20 February 2016 implements into French law the provisions of European Directive n°2018/957 dated 28 June 2018.These new provisions reinforce the control of secondment by introducing new information obligations for user companies and temporary employment agencies. Seconded employees will now have to receive the same compensation as that received by a local employee on an equivalent work position. A maximum duration of secondment is now fixed. Thus, the specific regime for secondment provided for in the French Labour Code is only applicable to secondments of a maximum duration of 12 months, unless a derogation is granted in the conditions that will be specified by a later decree.
These new rules will come into force on July 30, 2020.
France – Challenging the conventionality of the Macron scale
Under the terms of the Ministerial Circular n° C3/201910006558 of 26 February 2019, the Ministry of Justice asks the Attorneys General of the Courts of Appeal to inform it of the judgments handed down by the employment tribunals within their jurisdiction which have upheld or, on the contrary, have ruled out the conventionality of the scale of compensation for dismissal without real and serious cause provided for in article L. 1235-3 of the French Labour Code. The Ministry of Justice also requests the communication of the judgments that have been appealed so that Public Prosecutors can "intervene as an added party to make known the opinion of the Public Prosecutor's Office on this question of application of the law under Article 426 of the Code of Civil Procedure".
France – AGIRC-ARCCO merger
The letter from the Social Security Department addressed to the Central Agency for Social Security Funds (ACOSS) dated 25 February 2019 confirms the temporary maintaining of the former objective categories allowing the employer to benefit from a favourable social regime despite the merger of AGIRC-ARCCO.
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