AIJA T.R.A.D.E.
Newsletter #2, May 2017
Dear AIJA friends,
We are really pleased to send you our new Newsletter.
To all of our new members – warm welcome!
This Newsletter will notably tell you what are the events in which our Commission participates and give you
highlights about legal subjects of interests on and around T.R.A.D.E. law.
The Commission recently changed its name from Distribution to T.R.A.D.E. (Trade, Retail, Agency, Distribution,
E-Commerce). We wanted to make sure that our name better reflects the expertise of the Commission’s
members.
This Newsletter aims to be a venue for all our members. Please do not hesitate to send us legal articles or
reviews that you would like to share with our other members and AIJA. Also, please let us know if you
participate in any T.R.A.D.E. related events, conferences or publications, whether AIJA or not. We will be
delighted to insert them in the future issues of the Newsletter.
We thank you all for your hard work and involvement in our Commission, which are key to its success.
We are looking forward to seeing you all in Riga or soon thereafter.
Babak, Moritz, Christine and Elena.
President
Babak Tabeshian
Dr. Roth & Kollegen Rechtsanwälte Partnerschaft mbB
Gewürzmühlstr. 5
80538 München, Germany
[email protected]
Vice-President
Moritz Maurer
Niederer Kraft & Frey AG
Bahnhofstrasse 13
8001 Zurich, Switzerland
[email protected]
Vice-President
Christine Borfiga
Astine
34 rue Godot der Mauroy
75009 Paris, France
Tel +33 1 43 12 33 06
[email protected]
Communication Officer
Elena Kadelburger
ebl miller Rosenfalck
Aylesbury House, 17-18 Aylesbury Street
London EC1R 0DB, United Kingdom
[email protected]
In This Issue / In Short
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Highlights
Upcoming Commission Events
Members’ Corner
About Law
Reminder
Highlights
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AIJA Half-Year Conference (Riga, 17-20 May 2017)
Minutes of the Commission meeting (Verona, 25 November 2016)
Upcoming Events
From AIJA
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AIJA 55th Annual Congress (Tokyo, 28 August – 1 September 2017), Working Session with Transport
Commission: “Unmanned Distribution – Where is our Driver?” More information about Tokyo below.
T.R.A.D.E. Annual Seminar (Bratislava, 12-14 October 2017)
From other organizations
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IDI Annual Conference (Paris, 9-10 June 2017) “Adapting distribution to a changing environment.
Developing new e-commerce strategies. Establishing a direct relation with consumers.“ To know
more, click here.
Members’ Corner
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Babak Tabeshian (President of the T.R.A.D.E. Comission) joined the Munich firm Dr. Roth &
Kollegen Partnerschaft mbB in December 2016. Babak has more than 10 years of professional
experience in advising national and international clients with regard to different aspects of crossborder transactions, including the drafting of commercial contracts and the representation in
contentious procedures.
Moritz Maurer joined Niederer Kraft & Frey AG in Zurich, Switzerland in January 2017 as a Senior
Associate. Moritz has extensive experience in negotiating and drafting commercial contracts and
advising on cross-border trade and distribution law issue. He is further a corporate law specialist
with a focus on M&A transactions and complex corporate law matters. Moritz has a broad range of
experience in M&A transactions, in particular as buyer’s advisor of privately held companies in
various industries (especially retail).
Julia Blind (newly announced AIJA Honorary Member) and her partners set up the new law firm
AVANTCORE in Stuttgart, Germany. Part of the team is the AIJA- and T.R.A.D.E-member Rebekka
Stumpfrock. AVANTCORE launched on January 1st, 2017. AVANTCORE assists national and
international clients in various fields of business law. Julia and Rebekka advise clients in questions of
sales and distribution, e-commerce and commercial litigation, in particular in cross-border
situations. “AVANTCORE is about moving forward”. To know more, click here.
Ana Úbeda joined the international firm RSM as a Partner in charge of the Corporate Law
Department (leaving her position as Principal Associate of the Corporate Law Department Spanish
law firm Garrigues). As of 1 March 2017, her new contact details are as follows:
RSM Spain
Pau Claris, 194-196, 6ª Planta 08037-Barcelona
T +34 93 241 39 70 F + 34 93 414 77 38
E [email protected] | W www.rsm.es
To know more, click here.
•
Elena Kadelburger joined the TRADE Commission as Communication Officer. After her studies at
King’s College London, she worked as a paralegal at UK firm Fladgate LLP and US firm Jenner & Block
LLP in their litigation and arbitration departments. She then joined EBL miller rosenfalck to
commence her training contract and is due to qualify as solicitor in March 2018. She speaks 5
languages, and is training in the firm’s commercial, employment, immigration and dispute resolution
departments.
About Law
“French fine for not complying with maximum
Sarah Temple-Boyer, Attorney at law, Paris, France
payment
terms
up
to
€
2
million”
Pursuant to French law n°2014-344 dated 17 March 2014, administrative penalties (up to € 375,000 euros for
legal entities) could already apply to anyone infringing the French legal cap on payment terms which is
mandatory between professionals (ie. 60 days from the invoice date). Article 123 of Law n°2016-1691 dated 9
December 2016 has recently increased the administrative fine applicable in case of late payment up to € 2
million. This article aims at pointing out the main consequences inferred from this new legislation on B2B
relationships including those involving foreign companies.
To know more, click here.
Reminder
LinkedIn - If you are not part of our LinkedIn Group yet, now is the time to join our page “AIJA T.R.A.D.E.
Commission”!
AIJA Annual Conference in Tokyo - The AIJA Congress in Tokyo is coming closer! The complete programme is
going to be published soon. Since Tokyo is THE synonym for future, technology and innovation, AIJA’s
International Young Lawyers’ Congress will center on one big topic: “Artificial Intelligence, Technology and
Innovation”. The T.R.A.D.E. Commission is excited to announce its working session, together with the
Transport Commission: “Unmanned distribution: the future is out there!”
Our working session will be moderated by both Commission’s General Reporters: Mr. Lucas Leite Marques
(Kincaid | Mendes Vianna Advogados, Brazil), Transport Law Commission and Dr. Benedikt Rohrßen (Taylor
Wessing, Germany, T.R.A.D.E. Commission). We will all be taken directly into the future by our keynote
speaker from Rolls Royce: Mr. Oskar Levander (Vice-President Innovation, Engineering & Technology, Marine
Rolls Royce) will present their Autonomous Ship Project.
Subsequently, we will dive into a round-table debate with T.R.A.D.E. and Transport Law commissions. It will
touch topics such as:
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legal and regulatory challenges involving unmanned shipping;
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cyber security and data protection. Can unmanned vehicles be hacked?
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remotely piloted aircraft systems (RPAS / Drones), unmanned distribution and a comparative
analysis on different jurisdictions.
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legal and civil liability issues; accidents; emergency response measures; et al.
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overall picture of autonomous vessels technology.
Our high-class speakers in this debate are coming from both commissions and several jurisdictions all over
the world:
•
Hiroyuki Sanbe, (Atsumi & Sakai), Japan
•
Julia Bhend (Probst Partner AG), Switzerland
•
Gustaf Duhs (Stevens & Bolton LLP), United Kingom
•
Christian Bjortuft Ellingsen (Simonsen Vogt Wiig AS, Norway)
•
Marcus Webesberger (Dabelstein & Passehl, Germany)
•
Samuel Chacon (Chacon & Rodriguez, Mexico)
Our working session will take place in Tokyo on 30 August 2017 from 14:30 to 16:00 – so be there: The
future is out there!
Looking forward to seeing you in Tokyo in August!
Ben
(Benedikt Rohrßen, General Reporter for the T.R.A.D.E. Commission)
French fine for not complying with maximum payment terms up to € 2 million
In France, payment terms between professionals have been a top-priority concern for all successive
governments over the last ten years.
Unsurprisingly, small and medium-sized companies suffer from the most significant late payments, knowing
that a late payment of 30 days increases the risk of insolvency by 6. Statistically, late payments are directly
responsible, each year, for 25% of all recorded bankruptcies.
Even if payment terms between professionals have been capped for some time under Article L.441-6-I para.9
of the French Commercial Code (“FCO”)1, this mandatory cap was not really complied with, mainly because
the infringement of such article was only subject to occasional judicial actions before French civil and
commercial courts by the victim or the Ministry of Economy.
In such a context, the law n°2014-344 dated 17 March 2014 (so-called the « Hamon law ») has provided for
administrative penalties against late payments much more dissuasive (as the fines may amount to up to
375,000 euros for legal entities) 2 and their enforcement has been facilitated by the fact that the agents of
the General Directorate for Competition Policy, Consumer Affairs and Fraud control (Direction Générale de la
Concurrence Consommation et Répression des Fraudes – « DGCCRF ») are empowered to draw up an official
report on any failure, according to the procedure referred to in Article L.465-2 of the French Commercial
Code (hereinafter “FCO”).
Thereafter, the government’s intention to intensify the fight against late payment has been revealed during
the media conference dated 23 November 2015 since the Minister of Economy himself (Emmanuel Macron)
brought everyone’s attention to the first publication of penalties, under the new policy of « name and
shame » introduced by aforesaid Article L.465-2. The list of the five companies (among which SFR,
Numericable and Airbus) which have been heavily sentenced to pay the maximum fine in 2015 (375,000
euros each) has been, for the first time, disclosed to the public, through the DGCCRF’s website, on 22
November 2015.
During this media conference, Emmanuel Macron also pointed out that that the maximum fine amount for
non-compliance with the legal cap stated in Article L.441-6-I para.9 would be soon increased.
This has finally been implemented by Article 123 of law n°2016-1691 dated 9 December 2016 relating to
transparency, fight against corruption and modernization of the economy, which has notably amended
article L.441-6-I para. 9 of the French commercial code.
1
As a reminder, under the latest version of Article L.441-6-I para.9 of the FCO, « the payment term agreed upon between
the parties shall not exceed 60 days as from the invoice issuance date. By way of derogation, a maximum payment term of
45 days end of month as from the invoice issuance date can be agreed between the parties, provided that such payment
term is expressly stated in the contract and that it cannot be regarded as a manifest abuse towards the creditor”.
2
Article L.441-6-VI of the FCO: « Is punishable by an administrative fine, which amount cannot exceed 75,000 € for an
individual and 375,000 € for a legal entity, any non-compliance with the payment terms referred to in § 8, 9, 11 and last
of current article I (…). Said fine shall be imposed in the conditions provided for in Article L.465-2. The fine amount shall
be doubled in case of repeated failures within a 2-year timeframe as from the first penalty decision became definite. Subject
to the same sanctions, any provision or practice which effect is to delay abusively the starting point of payment terms
referred to in same article are prohibited ».
The main modifications related to the maximum payment terms – which have been validated by the French
Constitutional Council, are as follows:
-
Legal entities which would not comply with the terms of article L.441-6-I para.9 shall incur an
administrative fine of up to 2 million euros (instead of the former fine of 375,000 euros) without
prejudice to the publication, now systematic, of such a sentence through various media (DGCCRF –
French administration website, corporate website of the concerned entity, press media etc…)
-
In case of various infringements, applicable fines may be cumulated: for instance, operators in the
transportation sector which would not comply with both regulated payment terms (as per article
L.441-6-I para.11) and agreed payment terms (as per article L.441-6-I para.9) could incur
accumulated fines up to an aggregate amount of 4 million euros.
-
The relapse within two years as from the first decision became final is punishable by a fine
amounting to max. 4 million euros.
-
A derogation to the legal cap of 60 days has been introduced by law n°2016-1691 for purchases VATfree from other states (as per article 275 of the French Tax Code) of goods meant to be delivered
(“as is”) outside the European Union territory. Provided that it (i) is expressly addressed in a contract
and (ii) is not to be regarded as « a manifest abuse towards the creditor », such derogatory payment
term between the contracting parties shall not exceed 90 days as from the invoice date.
Such derogation should probably improve the cash flow situation, subject to a scissor effect, of French
companies turned to long-distance export which are expected to pay, pursuant to article L.441-6-I para. 9 of
the French commercial code and/or the Directive 2001/7/UE3, their French and/or European suppliers within
a maximum term of 60 days whereas they are themselves paid by their own non-European customers within
longer terms.
Does it mean that, by such derogation, the French legislator would implicitly admit that article L.441-6-I
para.9 of the French Commercial code should not apply to an international contract involving a French
supplier?
This interpretation would somehow contradict the position, expressed at several times, according to which
the French Administration does not exclude – for purposes of protecting a “branch” depending on a French
supplier subject to payment terms beyond 60 days – to sue any operator (being French or not) infringing the
legal cap on payment terms (as a reminder of the administrative doctrine in this respect, please refer to our
article « the legal cap on payment terms in international contracts: the French example”).
In any case, the scope of this derogation may be put into perspective since it is time- limited to 30 additional
days and it is excluded to the benefit of “big companies”, which notion should be construed, according to
Decree 2008-1354 dated 18 December 2008, as companies hiring, on the one hand, more than 5,000
employees and, on the second hand, achieving a turnover of at least 1.5 billion euros or total gross assets
reflected in the balance sheets of at least 2 billion euros.
3
Directive 20011/7/UE of the European Parliament and of the Council of 16 February 2011 on combating late payment
in commercial transactions
In case of any doubt and given the importance of the fines which can be now at stake in case of breach of
article L.441-6-I para.9, companies should remain very careful and take drafting precautions in their
international contracts.
Sarah Temple-Boyer
Attorney at law