Newsletter
 February – March 2022

SUMMARY

Articles

1. Professional elections and participation of senior executives

The Constitutional Council authorises senior executives to vote in professional elections contrary to the case law of the Court of Cassation

2. The influencer, a status to be defined in labour law

In Brief

ARTICLES

Professional elections and participation of senior executives

The Constitutional Council authorises senior executives to vote in professional elections contrary to the case law of the Court of Cassation

In application of an established case law of the Court of Cassation delivered based on Article L. 2314-18 of the Labour Code, employees holding a particular written authorization allowing them to be assimilated to the company director and employees who effectively represent the employer in front of the staff representative institutions could not vote in professional elections.

On 15 September 2021 the Constitutional Council was asked by the Court of Cassation to consider a priority question of constitutionality. The question was whether Article L. 2314-18 of the Labour Code as interpreted by the Court of Cassation complied with constitutional rules with regard to the fact that it excluded employees who could be assimilated to the employer from the status of voter in professional elections, and therefore from any representation on the social and economic committee.

In a decision of 19 November 2021, the Constitutional Council considered that “by denying employees any possibility of participating as voters in the election of the social and economic committee, on the sole ground that they have a […] authorization or a […] power of representation, these provisions [i.e. those of Art. L. 2314-18 of the Labour Code] cause a manifestly disproportionate breach of the principle of employee participation”.

The Council concluded that Article L. 2314-18 of the Labour Code “must be declared contrary to the Constitution”.

Thus, employees exercising employer prerogatives by delegation, mainly executives, recover their right to vote.

The decision of the Constitutional Council is not just a matter of anecdote. The case in which the Council was seized concerned the electoral body of the company Carrefour Market and particularly the registration of the store managers on the electoral lists. For the CGT, the store managers represented the employer in front of the Social and Economic Committee and they should therefore be excluded from the electoral lists. On the contrary, for the nation Trade Union of the supervision of the Carrefour group CFE-CGC, the application of the jurisprudence of the Court of Cassation led to “nearly 30% of the executive college [being] excluded from the right to vote”, i.e. 406 executive employees.

To avoid the legal vacuum that would result from an immediate revocation of the provisions of article L. 2314-18 of the Labour Code, the Constitutional Council postponed the effects of its decision until October 31, 2022.

It is therefore up to the legislator to take the appropriate measures to amend article L. 2314-18 of the Labour Code before October 31, 2022.

In the meantime, the question is whether the old interpretation of article L. 2314-18 of the Labour Code should be maintained or whether it should be interpreted in accordance with the decision of the Constitutional Council.

It should be specified that the ineligibility of employees assimilated to the employer remains in force.

Therefore, be careful when preparing the electoral lists for the next elections of the members of the Social and Economic Committee.

The influencer, a status to be defined in labour law

The French Advertising Regulatory Authority defines an influencer as: “an individual expressing a point of view or giving advice, in a specific field and according to a style or treatment that is unique to him and that his audience identifies”.  Companies use influencers to promote their products or services on multiple platforms such as Youtube, Instagram, TikTok, Snapchat or Twitch.

However, in the lack of a clear legal status, the relationship between companies and influencers, especially in terms of advertising, is not subject to a well-defined legal framework in such a way that some companies forget their obligations.

This is the case recently of the fast food giant, Mcdonald’s, against whom the UFC QUE CHOISIR [French consumers rights association] filed a complaint before the Paris Court of Justice for misleading commercial practices.

Indeed, Mcdonald’s provided two young influencers with products and packaging of the brand to allow them to create a youtube video in which the influencers play to recreate the fast food.  In this video, marked by the Macdonald’s logo omnipresence, no banner, no message informs the public that it is an advertisement or that the content contains product placements. It is for this reason that UFC QUE CHOISIR denounces misleading commercial practices.

Beyond the problematic of advertising, understanding the content proposed by influencers and defining it legally remains a major issue, especially from the point of view of labour law.

In the disputed video, two underage people are promoting the fast-food giant. Under what conditions did they shoot the video? How are they remunerated and who receives the financial compensation generated by these videos?

In other words, the qualification of the “work” of influencers remains essential.

Should the influencer be assimilated to a self-employed worker who lends advertising services to clients, or is he or she an employee who lends his or her image to a brand like a model and in this case be subject to the rules of the Labour Code?

The influencer could be compared to the model as defined in article L7123-2 of the French Labour Code indicating that :

 “Is considered as exercising an activity of model, even if this activity is exercised only occasionally, any person who is responsible for:

    1° Either to present to the public, directly or indirectly by reproduction of its image on any visual or audio-visual support, a product, a service or an advertising message ;

    2° Either to pose as a model, with or without further use of his image “.

If the latter does indeed perform a work service (a service of influence) in exchange for compensation (payment of a salary or benefit in kind), it is difficult to establish a legal relationship of subordination. Indeed, to characterize it, the employer must have management, control and sanction power over the employee. In other words, he must organize the execution of the work, which is not always obvious insofar as the influencer generally has a great independence to choose the modalities of execution of his service and to present the product around his field of predilection. No control is exercised on the working hours and only the predefined obligation to perform an influencing service count.

Nevertheless, the content is always approved before publication, so that the advertisers keep a certain control over the advertising carried out.

It seems even more essential to establish a specific protection framework as many influencers are minors.

Article L. 4153-1 of the French Labour Code prohibits the employment of children under the age of 16. Nevertheless, there are some exceptions, for the employment of children in the performing arts, itinerant professions, advertising and fashion. Indeed, articles R. 7124-1 and following of the labour code regulate the duration, the working conditions, and the remuneration of under-aged workers.

However, the publication of videos on platforms is not subject to any specific regulation in terms of protection of the underaged, except for the respect of the general terms of use of the social network. To fill this gap, the legislator adopted on October 19, 2020, the law no. 2020-1266 aiming at regulating the commercial exploitation of the image of children under 16 years old on online platforms. The objective is to raise awareness among parents as well as platform users by reconciling the freedom of expression of minors and their protection, without defining their status or determining a framework for the performance of the service.

Currently, in the lack of a status, the appreciation of the nature of the contractual relationship between an advertiser and an influencer can only be done on a case-by-case basis, depending on the nature of the services (production of a video content, physical presence at an event, etc.) and the obligations attached to the contract.

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 IN BRIEF

Nathalie Cazeau will co-present with Nuria Bové a session on Cybercrime organized by the Franco-Spanish Commission of the Paris Bar, on February 9, 2022.

Nathalie Cazeau will also speak at the UIA seminar on “fashion law”, in Barcelona in March 2022.