NAVIGATING THROUGH THE FRENCH LEGAL MAZE
Moving and settling in France can be a lifetime decision and the beginning of a thrilling adventure.
Though it is a fantastic idea, it must be carefully reflected upon. Among the issues to consider is the French legal system. Why? Because at some point in time, somehow, you may become entangled in the French 5th dimension of bureaucracy and paperwork. You need to be aware of it and be ready to face the whys and wherefores of this new system.
Unlike the common law system at work in the Anglo-Saxon culture, France has a legal system stemming from Roman law and based upon codified laws, also known as a civil law system.
Perhaps you’ll be flabbergasted by the specificity and the uniqueness of the French legal framework, where there are sets of rules and regulations which monitor each and every aspects of your life and a fortiori, your business. Having said that everything is much simpler if you are a citizen of an EU country because of the high number of reciprocity treaties covering most fields (taxes, health, diplomas, etc.). If you are a non EU citizen, it’s a bit lengthier.
This entry will give you a quick overview of the French legal framework and can be of help if you go through it.
France is a democratic republic and a unitary state that combines features of presidential and parliamentary government and evolves under the aegis of the written Constitution of 4 October 1958 which is the most important legal document in France and rank first in the hierarchy of legal norms.
It is a complex document which encapsulates inter alia the principles regarding the functioning of the state institutions, the powers of the executive (the President, the government and Parliament) and of the legislative.
Most importantly, the judiciary is independent from the executive and the legislative powers.
The constitution provides that “treaties or agreements duly ratified or approved, upon publication, have an authority superior to that of laws, subject, in regard to each agreement or treaty, to its application by the other party.”
As a member of the European Union, France is subject to European laws and French court decisions can be challenged in the European Court of Justice.
Laws and Regulations
The French legislature consists of two chambers: the National Assembly and the Senate.
Parliament passes laws (lois). And they come into force after enactment and publication in the « Journal Officiel ».
The executive branch has residual power over all matters not specifically assigned to Parliament. Measures taken by ministers or other lower level officials are issued in many forms, such as decrees orders, ordinance, circular, instructions, and memorandum. In a broad sense, these ministerial or high public servants decisions are called delegated or secondary legislations.
And if they affect your business or your stay in France they can be challenged in court.
France is said to have a codified law system. That is the collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice.
This stems from the 19th century when it was decided, for ease of efficiency, to enshrine all the laws of the nation in 6 compendium (Civil Code, Code of Civil Procedure, Commercial Code, Penal Code, and Code of Criminal Procedure).
As this system has proved its worth and in furtherance to this French legal tradition, large part of the French laws are thenceforth embodied in codes. So far, over fifty of them have been published.
For instance, it should be the laws embodied in the Employment and Labour Law Code (Code du travail), Tax Law Code (Code Général des Impôts) , Commercial code (Code du commerce), Civil Code (Code civil) and Immigration Law Code (Code des étrangers), but not only, that would mostly applied to newcomers with the intention to settle, work or set up a business in France.
In so far, it is noteworthy that legislation occupies a paramount position in France, while customs and courts decisions play a lesser role. However judges have a certain influence on the inferior courts even if these latters are not bound by any higher court’s decision per se.
THE JUDICIAL ORGANISATION
France has a dual system of courts with judicial courts (i.e. civil and criminal courts) on the one hand and administrative courts on the other hand. Each court system is headed by a supreme court.
The judicial courts are headed by the Cour de Cassation, the French Supreme Court. It only reviews questions of law, not questions of fact. The Court’s essential purpose is to ensure that the interpretation of the law is uniform throughout the country. It examines whether the law has been properly applied in the light of the facts as assessed by the lower courts. The Court’s decisions are usually short, unsigned, and without concurrences or dissents.
Lower courts include :
- The courts of appeal;
- The tribunaux de grande instance (courts of general jurisdiction);
- The tribunaux d’instance (court of limited jurisdiction); and
- Several specialised courts, such as the tribunaux de commerce (commercial courts) and the Conseils de Prud’hommes (industrial courts) whose functions are to conciliate or adjudicate on individual employment disputes.
Regarding their competence, the civil courts settle private disputes between individuals such as commercial and contract litigations, inheritance, property. The criminal courts judge individuals who have committed offences.
Administrative courts form a three-tier hierarchy headed by the Conseil d’Etat (Admnistrative Supreme Court) in Paris, below which the Cours Administraives d’Appel (Administrative Appeals Court) and the Tribunaux Administratifs (Administrative Tribunals).
Generally, the administrative courts are competent to settle any disputes between the French state and the citizens.
France has adopted a series of good practices in its court system in four areas: court structure and proceedings, case management, court automation and alternative dispute resolution.
If you are brought in a legal dispute, EnterFrance has a state of the art legal team to advise you as to your litigation case scenario. Our attorneys are trained problem-solvers which will provide tailored made solutions at the least cost — financial and otherwise.
How efficient is the process of resolving a commercial dispute through the courts in France?
Globally, France stands at 14th in the ranking of 189 economies on the ease of enforcing contracts.
The table below gives an idea of the time and costs for enforcing contracts in France.
Details on time and cost for enforcing contracts in France
|Filing and service||10|
|Trial and judgment||325|
|Enforcement of judgment||60|
|Cost (% of claim)||17.4|
ALTERNATIVE DISPUTE RESOLUTION
To resolve a commercial dispute, you might want to avoid going to court, either because your business data is too sensitive to be disclosed or simply because you do not want it to affect your relationships with your commercial partners. In this case you might consider using an alternative dispute resolution (ADR).
ADR is a term used to describe several different methods of resolving legal disputes without going to court.
The 3 mostly used alternative dispute resoluton techniques are arbitration, mediation and conciliation.
Compared to judicial solutions, the advantages of ADR are undeniable :
- Easy access
- Low cost
Arbitration is much like a trial, in that the parties can call witnesses, present evidence, and argue the merits of their case to a neutral decision maker. The judge(s) will be chosen by the parties themselves.
The parties can agree that the results of the arbitration will be binding or non-binding. In non-binding arbitration, the loser can afterwards request a new trial in the civil court.
Mediation is defined as the act performed by a mediator seeking to bring two parties together and help them find a solution to their dispute.
Mediation may take place either out of court or in the course of legal proceedings.
Any judge to whom a dispute is referred may, with the consent of the parties, have recourse to mediation: for this purpose, he appoints a mediator, a third person who is qualified, impartial and independent.
When mediation takes place out of court, there are no general regulations governing it.
It is an agreement reached by the parties, either by discussion between themselves or through a third party, the conciliator. Conciliation aims to put an end to a dispute by means of a solution accepted by the parties.
The parties may resort to conciliation before a legal conciliator out of court if their dispute concerns rights that they are free to exercise. The conciliators receive the parties, who may have assistance.
They act in complete confidentiality; that is to say the reports and declarations that they obtain may not be produced or cited in subsequent proceedings without the consent of both parties. The memorandum of agreement cannot become legally enforceable unless a request to the court is submitted by both parties.
If needed, the litigation’s arm of EnterFrance can advise you on the best litigation strategy and the ADR technique that suits your situation. In that respect we expect to solve disputes peacefully by working collaboratively with the opposing counsel to see if both our clients’ needs can be adequately addressed at the same time.
As a foreigner, especially with an Anglo-Saxon cultural background, or if used to a different type of legal system, you may find the French legal mode of thinking to be very tricky and often puzzling.
First and foremost, you must acknowledge that France suffers from « hyperlexis » or the existence of too much law. Indeed, French parliament is one of the most prolific statutes producers in Europe, if not the world. Critics have bewailed the fact that French laws and regulations are growing by the minute, by the mile and by the metric ton; they are indeed becoming more complex and more costly to enforce.
Hence, you might want to reconsider the idea of grasping the rationale of a rule, let alone setting up a business in France by yourself, without the much needed help of legal specialists.
EnterFrance will not only provide you with all the updated and topped legal services you need, but will also explain in a plain language every legal effects of your business strategy and implementation in France.
As a rule of thumb, navigating through the French legal maze without a business strategy-minded legal specialist, like the people of EnterFrance, is more likely to have a prejudicial effect on your French business venture.