March – April 2021
- ARTICLE: The “in futurum” measure: a means of preserving evidence by derogating from the adversarial principle
- IN BRIEF: Employment law news in France and abroad
Prior to a lawsuit, a party may face the difficulty of proving a fact that is prejudicial to it. This may be the case in matters of unfair competition, for example, where the potential victim cannot access the documents held by the offending competitor (invoices, contracts, customer solicitation messages, etc.).
In such cases, there may be an interest in claiming to the judge for the application of so-called “in futurum” measures in order to reach certain evidence that is beyond the reach of the party seeking to rely on it. “In futurum” measures make possible, for example, to prevent the decay of evidence. These measures may be ordered by the judge without the party subject to them having been previously heard or called to an adversarial debate.
In concrete terms, the in futurum measure may consist of authorising a bailiff to have access to documents in any form whatsoever and to sequestrate them pending a possible challenge.
The measure is therefore of great interest but, in order to be obtained, it must meet very strict conditions. Indeed, the principle of adversarial proceedings, an essential principle of French civil procedure, can only be waived in very exceptional cases.
Thus, the judge may issue a provisional decision without adversarial proceedings in cases where the claimant is justified in not calling the opposing party, the claimant having to materialise, in addition to the absence of any lawsuit already initiated on the merits (the dispute must be potential: it must not be ongoing), the need to derogate from the principle of adversarial proceedings and a legitimate interest.
The case-law accepts that the need to preserve an element of surprise constitutes a justification for the absence of contradiction; however, the mere risk of modification or disappearance of the elements sought is not sufficient: it must be explained in a concrete manner why it is impossible to proceed otherwise than by surprise. For example, if the nature of the facts relates to acts of unfair competition, the state of the conflictual relations between the parties may justify, according to the case-law, the risk of the evidence withering away and the need for a surprise effect and thus allow the application of measures in futurum. In concrete terms, it will therefore be necessary to establish that prior requests have been made and that the party to be subjected to the measure is resisting in an abusive manner. Thus, the risk of withering and the need for a surprise effect are two cumulative conditions.
The legitimate interest is also defined by case law: the judge deduces it from the absence of other ways of preserving evidence by carrying out a genuine proportionality check; he reconciles the conflicting rights and freedoms and takes the measure strictly necessary to defend the interests at stake. The judge must therefore rely on factual elements to determine whether the measure is sufficiently circumscribed. In practice, the judge ensures that the evidence referred to in the application is not likely to refer to too many elements unrelated to the dispute, which would have the effect of prejudicing the other party. The judge ensures that the measure will be proportionate, always with a view to limiting the scope of the derogation from the adversarial principle to a minimum.
Likewise, the court may check whether there is a legitimate impediment, the non-observance of which would disproportionately affect the principle of adversarial proceedings, but also the principle of business secrecy and correspondence or the fairness of the evidence.
If the judge grants the measure, all is not lost for the party who has been subjected to it, since the party can always challenge it. The party will then have to prove that the conditions set out above were not met.
The order known as 145 with a view to obtaining a measure ‘in futurum’ is therefore a major weapon for the litigant. However, its implementation presupposes mastery of the technicalities of this regime, which requires the meeting of very strict conditions. The preparation of the claim therefore requires the utmost attention to ensure that the measure is effective.
Employment law news in France and abroad:
- The Court of Cassation has just clarified a fundamental element of employment law: the content of the severance pay (Soc. 27 Jan. 2021, no. 18-23.535):
Statutory severance pay is the counterpart of the employer’s right to terminate unilaterally the contract, while compensation for dismissal without real and serious cause repairs the damage resulting from the unjustified nature of the loss of employment. An employee who has already received these two types of compensation cannot claim compensation for damage already repaired by the latter – damage resulting from the loss of employment and loss of chance of an optimised return to work due to insufficient job protection plan  – in an action for extra-contractual liability.
This case law will undoubtedly provide an additional defence for employers, as the employee will have to establish the existence of distinct prejudice in order to obtain further remedies.
- Instruction no. DGT/RT1/2021 of 19 January 2021 of the Directorate General of Labour on the posting of employees in France has been applicable in France since 30/07/2020 and makes it possible to strengthen the protection of posted workers within the European Union.
For example, the principle of equal treatment must now be guaranteed: an employee posted to France by a company established abroad receives the same remuneration as an employee employed by a company established in France performing the same tasks. In concrete terms, posted employees will be entitled to benefits such as a seniority bonus or a thirteenth month’s pay.
Spain: Collective redundancies in Spain (STSJ de Cataluña, Sala de lo Social, de 11 de diciembre de 2020, rec. núm. 50/2020):
The Catalan Supreme Court admitted the collective dismissal of employees by a subcontracting company specialising in telemarketing whose contract with the company AIRBNB had been terminated because of the Covid-19 pandemic.
By way of comparison, in France, such a case does not seem to be excluded. In fact, with regard to the conditions laid down in Article L1233-3 of the Labour Code, which subordinates collective dismissal for economic reasons to “a significant drop in orders or turnover”, collective redundancies could possibly be motivated by the early termination of a contract generating an important source of activity for the company.
United Kingdom: An important change for Uber workers (Uber BV and others (Appellants) v Aslam and others (Respondents) UKSC 2019/0029):
The Court of Appeal had upheld the decision of the Employment Tribunal in London that Uber’s business model does not prevent its drivers from being classified as employees. The Court held that the drivers were working when they had their application activated and were willing to accept rides. As employees, they are entitled to rights normally inapplicable to independent contractors, including paid holidays and minimum wage. The judges of the Court of Appeal were not unanimous in their decision.
The Supreme Court decided unanimously that the company’s Uber drivers are entitled to workers’ rights. The decision could mean thousands of Uber drivers can have access to minimum wage and paid holidays.
This British decision is in line with European case law, such as that of the Court of Cassation, which on 4 March 2020 (no. 19-13.316) also reclassified the status of a self-employed Uber driver as an employee by retaining the existence of a subordination link.
 In the event of dismissal for economic reasons, the employer must implement a job protection plan. This plan aims to avoid redundancies or to limit the number of redundancies. It is based on the number of employees to be made redundant.