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A month with Seconda
Welcome to the Seconda newsletter!
As every month, we share our latest news and that of our Secondants, we open up the debate on a legal issue and we introduce you to a work, a place or a person, connected with the world of law, that has left a mark on us and that we recommend to you !
Enjoy the read and all your feedback is welcome!
What's new at Seconda?
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The return of the famous café-chouquettes!
After a September edition disrupted by strikes, we were finally able to hold our meeting at Merci Jérôme Batignolles!
On Thursday, November 20, we had the pleasure of meeting our colleagues over coffee and delicious pastries, just before or after their appearance at the court, to present Seconda to them.
The discussions were particularly rich and dynamic: we talked about the daily challenges of firms, client expectations, and solutions to gain efficiency without ever sacrificing quality.
A big thank you to Iris Nakov who had the good sense to help us finish the last of the cream puffs!
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All the way west!
On November 25 and 26, we had the pleasure of organizing two informal gatherings for our colleagues: an aperitif on Tuesday evening and a breakfast on Wednesday morning, to present Seconda and exchange ideas to understand the challenges and specificities of the Nantes bar.
For this Nantes edition, we were accompanied by Valérie Bouchez, partner at Librato Avocats and vice-president of ACE Bretagne. Valérie shared with us the philosophy and dynamism of this union, which aims to expand its presence in the Pays de la Loire region.
A real moment of sharing to discover Seconda and ACE… and to debate lighter topics: Nantes, in Brittany or not?
Discovering Legora!
On Monday, November 24, we had the pleasure of attending the evening organized by Legora, on the eve of their participation in the Legal Transformation Fair.
Legal directors, lawyers, compliance officers… many legal professionals were present to discuss the various applications of AI.
Legora, a Swedish legaltech company founded in 2023, specializes in collaborative AI for lawyers. Its platform helps legal professionals analyze, draft, and review legal documents.
Beyond public databases, the tool also allows the integration of each firm's internal resources, which is a valuable asset when you want to reuse and enhance your own work.
But what particularly impressed us was a rare (unique?) programming choice: the AI's ability to indicate when it's unsure of its answer. This seems crucial for ensuring expert-level work.
As a lecturer at Paris I specializing in labor law, Bérénice has developed cutting-edge expertise on subjects related to criminal law and constitutional labor law.
Secondant of the Month
This month, we present to you Bérénice Bauduin !
It was in Cagliari, Sardinia, that Bérénice settled in November, invited by an Italian association with an international focus for a symposium on the new issues influencing labor law: environment, rise of populism, duty of vigilance…
His round table ? An international cast – two French, an Italian, an Argentinian – around a theme: “Neo-liberalism and populism: what reforms to labor law?”
And then, a surprise: " Despite seemingly very different models, the French neoliberal approach and Argentinian populism rely on similar methods: brutal reforms, a weakening of the role of trade unions... "
Back in France, Bérénice is finalizing a handbook on labor criminal law for Dalloz, which she co-authored with Jean-Baptiste Thierry, a professor at the University of Lorraine. It offers a combined criminal law and labor law perspective on illegal work, workplace accidents, and the employer's criminal liability.
From criminal law to constitutional law, there is only one step: Bérénice has also just published an article on a recent decision of the Constitutional Council relating to the right to remain silent in business.
“ By refusing to recognize this right and basing its position on the employer’s disciplinary power derived from the employment contract, the Constitutional Council has inadvertently put an end to a long-standing doctrinal debate on the source of the employer’s power. From now on, the path forward is clear: reasoning is based on the contract. ” This decision could even influence the case law of the Social Chamber in the future.
But what Bérénice loves most of all is passing on knowledge.
Most recently, she spoke before labor inspectors from URACTI, the specialized unit on illegal work, on issues relating to substandard working conditions and accommodation... but also in the context of continuing education for magistrates on unintentional offences in labor law.
And as part of her work as a lecturer at Paris I, Bérénice co-pilots, with Pascal LOKIEC, a very ambitious project with students of the Master 2 research in social law : analyzing 200 collective agreements on the valuation of trade union careers.
This project is both technical and practical, as the conclusions of this work will be published online on the DGT website!
Bérénice represents academic rigor, field commitment, and a clear vision: to reflect on and design labor law that is consistent with its time but also rooted in its principles.
Question of the month
The right of appeal: what protection?
The draft decree "Rivage" plans to raise the threshold to €10,000 and to establish a procedure for filtering appeals deemed "manifestly inadmissible".
Does the current protection of the right of appeal in civil matters allow for such limitations?
This can be assumed a priori because it is unanimously considered that the right of appeal does not have the value of a fundamental right:
The Constitutional Council has stated on several occasions that the two-tier system of jurisdiction does not, in itself, have constitutional value.
The ECHR judges that it does not fall within the guarantees resulting from the right to a fair trial protected by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The CJEU considers that Article 47 of the EU Charter of Fundamental Rights, guaranteeing the right to an effective remedy, opens the right of access to a court and not to a double level of jurisdiction.
The two-tier system of jurisdiction does not even have supra-regulatory value since the Council of State judges that it "does not constitute a general principle of law which would prohibit the regulatory power from providing, in the exercise of its competence, for cases in which judgments are rendered in the first and last instance".
Does this mean that the right of appeal could be limited at will?
The conclusion would be too hasty, because the right to an effective judicial remedy resulting from Article 16 of the Declaration of the Rights of Man and of the Citizen, as well as the right of access to a judge guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, apply before the appeal judge.
In other words, while the right of appeal is not in itself a fundamental right, since a means of recourse such as appeal is provided for by law, access to it must not be subject to disproportionate limitations.
So what about the measures planned in the draft decree?
Limitations such as:
the increase in the spring rate,
the elimination of the right of appeal for certain decisions of the commercial rent judge, the enforcement judge, and the family court judge,
and above all, the filtering of appeals deemed "manifestly inadmissible" by the presiding judge without adversarial debate, even though the notion of an "manifestly inadmissible" appeal is subject to interpretation.
Can they not be considered disproportionate?
Avo-plumes! The debate is open.
Our Secondants in the news
Charles-Henri Hardy
Charles-Henri Hardy signs an article in the European and International Review of Tax Law on a sensitive subject: the balance between the right of the tax administration to communicate and the protection of privacy.
He demonstrates that this right, essential to combating fraud, grants access to a massive amount of information, sometimes highly personal, and that third-party confidentiality is often disregarded. The result: a disproportionate infringement on taxpayers' privacy, exacerbated by an information asymmetry, since the tax authorities have only a limited obligation to disclose the documents that led to tax adjustments.
In conclusion, he warns of a vague and evolving notion of privacy, sometimes used as a tool for the benefit of the tax system.
His post can be found here.
Jean-Baptiste Barbièri
Jean-Baptiste Barbièri analyzes the latest rulings of the Commercial Chamber regarding collective procedures and banking law.
Among them, several key decisions on the banker's vigilance and his duty of non-interference (appeals no. 24-17.056; 24-18.534; 24-17.780; 24-19.776)
Two other rulings deserve attention: the judge appointed to gather information on the situation of a company is not a "tribunal" within the meaning of Article 6§1 ECHR and is therefore not subject to the duty of impartiality provided for by this text (appeal no. 24-14.924) and the action for recovery based on a property clause derives from the right of ownership and not from a personal claim, thus escaping the limitation period of Article 2224 of the Civil Code (appeal no. 23-12.250).
His post can be found here.
Marie Fernet
In the November episode of the podcast "Let's Take a Walk in the Law", Marie Fernet takes us into the world of customs law, a subject often overlooked but essential for international trade and more relevant than ever.
With precision and clarity, Marie explains the basics and key concepts (origin vs provenance, Incoterms, de minimis threshold), then addresses complex topics such as anti-dumping rights.
The discussion is punctuated with concrete and sometimes unusual examples: Brexit, environmental standards, importing dinosaur bones, Bourbon, Cognac, Cassis de Dijon… all presented with pedagogy and good humor.
The episode can be found here.
A film, an exhibition, a restaurant…
At a time when the work of the justice system is under attack more than ever, Emmanuel Carrère gives us the grand and little-known story of the judges of Vienna.
Dans D'autres vies que la mienne, Emmanuel Carrère raconte des drames intimes, mais aussi une forme de justice discrète et essentielle.
L’histoire débute au Sri Lanka, où l’auteur est témoin du tsunami meurtrier de 2004 et des tragédies vécues par des milliers de personnes, notamment celle d’un couple de français confrontés, impuissants, à la perte de leur fille.
A son retour en France, Carrère fait face à une autre tragédie: le décès de Juliette Devynck, la sœur de sa femme, après de long mois de lutte contre un cancer.
L'écrivain va alors se retrouver à Vienne, où il va faire la rencontre du collègue de Juliette, Etienne Rigal, le «juge rouge et unijambiste ».
Etienne va alors lui raconter comme il a, avec Juliette, essayé d'incarner une justice humaine et engagée.
Les deux juges refusaient, au nom d’une justice sociale, les clauses abusives et les pénalités injustes appliquées aux plus démunis qui ne comprenaient pas ce qu'ils signaient.
Durant plusieurs années , les juges de Vienne décident alors de se battre à leur niveau, au tribunal d’instance, pour défendre les surendettés, souvent non représentés voire non comparants.
Face à des établissements de crédits furieux et à une Cour de cassation qui refuse de les voir soulever d'office certains arguments au profit des plus faibles, les juges vont saisir la Cour de justice européenne pour obtenir une décision historique et changer, pour toujours, le droit du surendettement.
Carrère montre, avec pudeur et justesse, comment ces « petits juges » ont été « plus grands qu’eux-mêmes ».
Ce livre rappelle que le travail du juge n’est pas seulement répressif : il peut être un recours, un soutien, un visage humain dans l’épreuve.
Thank you for reading.
That's all you need to know for this month, see you next month!
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See you very soon!
Fred-Eric and Neda
