By French Practice Department

In January 2019 the French Government – never slow to see an opportunity to levy fines, taxes and other impositions, levied a fine of €50 million through its French data protection authority on Google for violating the EU General Data Protection Regulation in France.  This is the first French sanction against US tech giants for violation of the GDPR guidelines.

GDPR came into force on 25 May 2018 and regulates the European Union’s data protection and overhauls the European Union’s data protection.  It establishes a uniform framework for data protection across the EU and regulates the way businesses process and manage personal data in order for citizens to recover control over the use of their personal data.

GDPR applies any business that processes personal data whether automated or manual, whether directly or on behalf of other parties and which is based in the EU or any foreign company which is offering goods and services to individuals within the EU.  In short, GDPR applies to almost any country and company whose business is somehow linked to Europe.

What is personal data?  Just about any piece of information that relates to an identified or identifiable individual:  Name, address, location, income, banking information, health, religion, sexual orientation, race, political belief or Trade Union membership.

There is rarely action of a company in its everyday business activities that don’t include some data processing, collecting email address, consulting a database, sending promotional emails, posting pictures of people on social media etc.  Now, of course, GDPR mandates that data collection be fair and transparent and for a specified and legitimate purpose based on the following grounds;

1. The consent of the concerned individual, 2. contractual obligation between the company and the individual, 3. provision to protect the vital interests of the individual and 4. to carry out a task that is in the public interest.

One of the major challenges to this regulation is to obtain the proper consent of each individual in order to collect and use such personal data.  It should be freely given, specifically informed and without any ambiguity and by an affirmative act such as ticking a box or signing a form.

The French data regulator has fined Google for not being transparent about its policies, for failing to provide information retention provisions in some cases and for failing to obtain proper consent from users for personalized ads.

Of course, Google could have had it much worse – the maximum penalty under the GDPR is 4% of global revenue which in Google’s case is more than US$4 billion.  Still, it shows that the EU authorities are starting to bite down.  Compliance with GDPR is going to be one of the EU challenges for the following years, pushing EU and international companies dealing with the EU to comply with such regulations.  Don’t hand over well-earned money by way of fines to France or any other EU country because you are in breach of GDPR.  Do it right.  Get a lawyer.  Get OLN.

by French Practice Department

No matter what side of the channel whether North of South of France, Napoleon is generally regarded as having had a rather full and accomplished life. One of his less violent accomplishments was a Napoleonic code which is 1804 passed with a view to give written and accessible law to all citizens and was a major step in replacing the previous patchwork of feudal laws.  At last, one could consult a book about the law which applied to everyone, there was a certain implicitly introduced. Now, of course, the French legal system has morphed into one of the more complex and sometimes quite unpalatable and unfathomable system of laws, decrees, ancillary legislation, rules and procedures. Nowhere is that more obvious than in employment law. Figuring out what is precisely the status of a contracting party appears to be more and more tricky and more and more difficult. Both sides of the Channel, Uber drivers who regarded themselves as independent contractors suddenly found themselves as being employees with of course all the benefits that go with such. In November 2018 a case “Take Eat Easy” court ruled that delivery drivers of Take it Easy, were found to have been in an employment relationship.

Even more recently, in January Uber drivers, no doubt attracted by the basket of benefits to be had as a French employee went to the Paris Court of Appeal. The issue of the case was to decide whether an Uber driver was an employee and therefore protected and with the benefits of French employment law of a freelancer, surprise surprise, following the Take it Easy case law the Paris Court of Appealed that the driver was an employee of Uber.

Now to be registered as an Uber driver the claimant had to obtain a professional driver’s card and register as a freelancer to the French Professional Authorities. After having performed more than 2000 trips for Uber, the drivers Uber account was permanently disabled at the request of Uber management for reasons which are not important here. According to the claimant, however, he was actually an employee of Uber and as such couldn’t be fired from the company this way.

For somebody to be considered an employee under French law, it has to be shown that 1. he was financially compensated, 2. that there was a job to perform, that 3. he was in a subordinate employment relationship, i.e., he took orders from his employer. In the past, the burden of proof to demonstrate the professional subordination was upon the claimant. This has been turned around by showing more than the lack of independence of the driver. Lack of independence is much easier to bring as the driver appears to be subordinated to the Uber app platform, and is therefore considered an employee.

In the decision, the Court pointed out that the driver is forced to register with the French Professional Authorities to become an Uber driver. Besides that, when performing a trip that the Uber platform prohibits Uber drivers to accept, non-Uber passengers, or to directly contact Uber passengers at the end of the trip or to keep any of their details. According to the Court, this, therefore, deprives the drivers of the opportunity to establish contacts and thus develop any personal clientele. In addition, the Court notes that the price is set by Uber without any consultation of the driver. Surprisingly the fact that the driver was able to choose days and hours of work does not in itself exclude a subordinate relationship. 

So is this an isolated case or will it lead to cascading?  Can it lead to tens of thousands of French Uber drivers suddenly finding they are Uber employees with all the benefits such involves?  Are we going to see Uber suddenly finding itself with 20,000 employees?

France has started discussions with online platforms, parliament and trade unions to define a new legal universe adapted to the user’s digital platforms. However, pending this new regulation, it is up to anybody wishing to enter into a commercial relationship with self-employed persons to be extra careful in the contract drafting and performance at the risk of being an employment agreement. Hire smartly, legally.  See a lawyer. Get OLN.

Napoleon as an employer’s armies had a much simpler termination provision.