Consultancy

The Polish commercial companies law

Commercial law as a an area of private law has been distinguished from the civil law in order to regulate legal relations involving professional participants in business transactions.

Commercial companies law regulates establishment, organization, functioning, termination, merger, division and transformation of commercial companies. The essence of institutions of commercial companies law is learned by referring to the regulation of civil law, including in particular the Polish civil code.

A company is a lasting legal relationship created under agreements of shareholders who are accompanied by a common goal and will to unite their activities with an aspiration to achieve such goal.

Commercial law companies represent the most popular form of carrying out business activities for average-sized and big companies.

Business activity organized as part of the community of interest allows to develop enterprise on a large scale. By choosing a suitable organizational and legal form entrepreneurs have a possibility to carry out and manage activities that are given a chosen profile.

The Polish commercial companies code distinguishes the following types of companies:

Commercial companies:	partnerships:	General partnership (sp. j.)
		Professional partnership (sp. p.)
		Limited partnership (sp. k.)
		Limited joint- stock partnership (sp. k.-a.)
	corporations:	Limited liability company (sp. z o.o.)
		Joint-stock company (S.A.)

Due to the obligation to register companies with the registry court information about companies is available to all interested parties on website of the Ministry of Justice (www.ms.gov.pl).

Characteristics of companies:
Partnership:	Corporation:
Own legal capacity independent of partners	The company is operating on the basis of share capital
As a principle a small number of partners	As a principle shareholders do not bear responsibility for liabilities of the company
In addition to funds invested in a joint venture, partners may also contribute their labour	The company has bodies managing its operations
Principle of equal participation of partners in profits and losses of the company	Shareholder are obligated to make a contribution to the company
One vote for each partner regardless of the size of contribution made to the company	Shareholders may make contributions in Cash or in kind, however these Carnot be non-transferable rights, performance of work or provision of services
The right of partners to individually control the company	The company may not be established for every lawful activity, and activity does not have to profit-oriented
There is no form of a partnership under organization	Name of a corporation may be freely chosen

Contract law

A contract is an agreement between two or more parties by which the parties define their mutual rights and obligations. Contracts are a basic source of obligations and are of key importance for the regulation of business transactions. The most important regulations concerning contracts have been contained in book three of the Civil Code.

In the Polish legal system, the principle of freedom of contracts is in force. It means that parties to a contract may freely determine the content of contractual provisions to be binding on them. Another aspect of the freedom of contracts is the possibility of choosing a contractor and taking a decision about both conclusion and refusal to conclude a contract.

The principle of the freedom of contracts is an indispensable element of the free market economy. For this reason, limitations of the freedom of contracts should be exceptional.

Article 353 (1) of the Polish Civil Code stipulates that the content and purpose of a contract may not be contrary the laws, principles of social coexistence and the nature of contract relationship. Therefore, in particular the contract will have no legal effects where a party undertakes to commit an offence or the contract where one party may freely shape the legal position of the other party.

In the Polish Civil Code and other acts, many types of contracts have been identified. Relevant provisions regulate the contracts most frequently found in business trading such as sale, rental, lease, donation, guarantee, commission contract, contract for specific work, freelance agreement, construction contracts etc. (nominated contracts).

It follows from the principle of freedom of contracts that parties are not bound by the aforementioned types of contracts and may mould their contract relationship which does not correspond to the structure of any of the nominated contracts.

Basic information on selected nominated contracts

Type of contract	Essential obligations of party I	Essentials obligations of party II
Sale	Transfer of ownership of an object (or right) and delivery of the object	Payment of agreed price
Rental	Delivery of the object rented to be used in usable condition and maintenance of the object in adequate condition	Payment of a set rent (most frequently in the form of a periodic payment)
Commission contract	Completion of the task specified in the contract with due diligence	Payment of remuneration and reimbursement of expenses incurred by party I
Contract for specific work	Completion of specified work	Payment of remuneration

Protection of personal data

In Poland, the right to protection of personal data is derived from article 47 of the Constitution of the Republic of Poland which provides that everyone has the right to protection of private life. Detailed regulations concerning this issue have been contained in the Act of 29 August 1997 on protection of personal data (Journal of Laws No. 133, item 883, as amended).

In particular, provisions of the Act lay down the rules of conduct in processing personal data and the rights of natural persons whose data are processed. The Act is applicable in connection with activity of basically any entity who processes personal data.

In Poland, the body competent in matters involving protection of personal data is the Inspector General for Personal Data Protection appointed by the Sejm with approval of the Senate. His most important duties include:

• check on conformity of data processing with the regulations on personal data protection;

• giving administrative decisions and examination of complaints in matters involving application of the regulations on personal data protection;

• keeping a register of data collections and providing information about registered collections;

• giving opinion on bills and drafts of regulations on personal data protection;

• participation in work of international organizations and institutions dealing with the issues concerning personal data.Processing of personal data is possible if:

• the person to whom the data relate has consented;

• it is necessary in order to exercise the right or meet the obligation laid down in a regulation;

• it is necessary in order to execute the contract a party to which is the person to whom the data relate;

• it is necessary in order to carry out tasks provided for by the law performed in public interest;

• it is necessary in order to achieve legally justified objectives fulfilled by data administrators or recipients and the processing does not infringe the rights and freedom of the person to whom the data relate.

Each person may check how the data relating to that person are processed. In particular, he/she may request that exhaustive information be given about the collection and the circumstances in which his/her data have been entered, that incomplete, untrue and out of date data be put right or removed.

The entities administering data are obligated to adequately protect personal data against loss, damage, destruction and first of all against access of unauthorized persons. A data administrator should also, as a matter of principle, report a data collection to the Inspector General for registration.

Polish Industrial Property Law Act of 30th June 2000 regulates legal issues concerning:

• inventions
• utility models
• ndustrial designs,
• rademarks,
• eographical indication,
• opography of integrated circuits,
• ationalisation proposals.

Patents are granted – in all fields of technology – for inventions that are new, involve an inventive step and are susceptible of industrial application. A patent gives the exclusive right to use an invention for profit or for professional purposes throughout the Republic of Poland. Term of protection is 20 years since application.

Utility models are new and useful technical solutions concerning the shape, construction or specification of an object with a permanent form. For utility models may be granted protection. The term of protection ends 10 years after registration.

Industrial designs are new appearances of a product or part thereof of individual character resulting from the features of, in particular, the lines, contours, shape, colours, texture and/or materials of the product itself and/or its ornamentation. For industrial designs may be granted rights in registration for maximal 25 years from the date the application.

Trademarks are any markings capable of being represented graphically if it is capable of distinguishing the goods or services of one undertaking from those of another. For a trade mark which has sufficient distinctive features may be granted protection for the period of 10 years from the application’s date.

Geographical indications are word marks which refer directly or indirectly to the name of a place, locality, region or country (territory) that identify a good as originating in that territory, where a given quality, reputation or other feature of the good are essentially attributable to its geographic origin. Protection of a geographical indication is perpetual and lasts from the day an entry is made in the relevant register.

Topography of integrated circuits is a solution involving a dimensional layout of elements, however expressed, at least one of which is an active element, and some or all of the interconnections of the integrated circuit. For a topography may be granted a right in registration which lasts 10 years.
The tasks in the area of the granting legal protection for industrial property objects are performed in Polish by Polish Patent Office.

Copyright law

The copyright law is contained in the Polish Act of 4 February 1994 on copyright and related rights whose provisions cover every aspect of creative activity of individual nature, in any form, regardless of the value, purpose and way of expression.

The Polish legislator distinguishes author’s personal and economic rights. Author’s personal rights are strictly connected with the person of an author, in particular include an author’s right to associate the work with his person, the right to retain unchanged content and form of the work, prohibiting to introduce changes, distortions, misrepresentations or the right to supervise the use of the work.

Author’s economic rights secure interests of an author in the form of an exclusive right to use the work and dispose of it in all areas of exploitation and the right to remuneration for the use of the work.

The Polish laws make it possible that a given interest is protected by copyright and industrial property rights. The protection provided for by each of these Acts is independent of each other, however, a specified non-material interest may be protected under the Act the Industrial Property Law and simultaneously meet the conditions for being recognized as a work within the meaning of the Copyright Law.

Employment law

A basic legal instrument regulating employment relationship and defining rights and obligations of employers and employees is the Labour Code of 26 June 1974.

A labour relationship is characterized by carrying out work voluntarily subordinated, payable and done personally for an employing entity, carried out as a teamwork and with the risk being taken by an employer.

An employer is every legal entity, natural person or organizational unit (even if it is not incorporated) hiring employees.

The main elements of an employment contract are declarations of will of two parties – an employee who undertakes to carry out work of a specified type for and under direction of an employer, and an employer who undertakes to engage an employee and pay remuneration to such an employee.

Types of employment contracts:	Contract for a trial period
	Contract for a specified period of time
	Contract for an unspecified period of time

Outside the scope of regulations of the Polish Labour Code, there are “non-employee” forms of doing work, i.e. legal relations based on civil law contracts (e.g. commission contracts, contracts for specific work, agency agreements) to which constitutive elements of an employment relationship cannot be attributed, in particular the element of subordination.

The German commercial and companies law

 

Commercial law

The German law distinguishes the commercial law from the private law setting the rules applicable to legal transactions involving entities carrying out business activity. It is regulated in the commercial code (HGB) and includes special provisions which are applicable if at least one party involved fulfills the requirements for the qualification of a merchant. Within the meaning of the act, a merchant is any person who is engaged in trading, that is any type of business activity  excluding the activity which on account of its nature or scale does not require professional organization. If a person fulfills the preconditions for being a merchant, the regulations of the BGB apply as secondary only, and in the first place the HGB is applicable.

Companies law

The companies law governs the formation, organization, termination, fusion, separation, transformation of a company and the rights and obligations of the shareholders of a company. The relevant rules are laid down in specific acts and in the German Civil Code (BGB).

By entering into a partnership agreement, the partners mutually put themselves under a duty to promote the achievement of a common purpose in the manner stipulated in the agreement, in particular, without limitation, to make the agreed contributions (§ 705 BGB). Apart from the forms of a company provided for in the German companies law, there are also those introduced by virtue of the applicable laws of the European Union.

Entrepreneurs use the possibility to organize themselves in different company forms in order to achieve their goals. For this purpose, from different company forms they can choose the one which is most convenient for them.

In the German law there is a differentiation between the following company forms:

corporations:	Business partnerships:	Civil law association (GbR)
		General partnership (oHG)
		Professional partnership
		Limited partnership (KG)
		Silent partnership
		European economic interest grouping (EWIV)
	Capital companies:	Joint stock company (AG)
		Private limited liability company
		Entrepreneurial company (UG)
		Association by shares (KGaA)
		Societas Europaea (SE)

It is also possible to form hybrid types out of the existing corporations.

Characteristics of the different company forms:
Business partnerships:	Capital companies:
Natural person	Legal entity
Assets are exclusively in possession of shareholders	Own property of the company, separated from the shareholders
Liability with private assets	Liability with assets of the company
Administration through every shareholder	Administration through own governing bodies
Existence depends on the shareholders	Existence is independent of the shareholders
Principle of unanimous vote, unless the partnership agreement provides otherwise	Principle of majority of votes
Generally there is no change of members	Change of members possible and predictable
Taxation of shareholders	Special tax: corporate tax
No disclosure of the annual balance sheet	Disclosure of the annual balance sheet

Contract Law in Germany

A contract is an agreement between two or more parties through which the mutual rights and obligations between the parties are being defined. It comes into being by according declarations of intent, which are called offer and acceptance. The regulations are defined in the German Civil Code (BGB) in the books concerning the general part, law of obligations – general part and special part.

The German law on obligations bases on the principle of freedom of contract, which is an occurrence of the principle of private autonomy of persons. That means that the parties are able to freely choose the content of a contract. Limits to freedom of contract can be found in § 138 BGB on the prohibition of contracts contrary to the public policy and in § 242 on the duty of performance in good faith.

The parties to a contract are in particular not bound to specific agreement categories. However mandatory legal requirements must be met (so called freedom of content). A further aspect of private autonomy is the possibility to freely choose the other contracting party (so called freedom to conclude a contract).

Following the principle pacta sunt servanda, the parties basically have to abide by the contract . Only under special conditions a party is able to disengage from a contract. An obligation to enter into a contract is only possible under precise, very restrictive conditions.

The abstraction principle applies in the German contract law. That means, that when it comes to a legal transaction there is a differentiation between an obligation transaction and the transaction of the ownership. In the obligation transaction the parties define the content of the transaction, for example: purchase of a good. In order to complete the transfer of ownership there is a special act necessary between the parties, in this case mostly the delivery of the good to the buyer. The two transactions are legally divided from each other.

Basically contracts can be concluded without a special form. Only for certain contracts the act sets out the requirement of a special form, for example written form, text form or notarization

The German Civil Code (BGB) already defines certain types of contracts. It regulates inter alia the rules for purchase, exchange, time-share agreements, contracts relating to long-term holiday products, brokerage contracts and exchange system contracts, loan contracts, donations, lease, usufructary lease, rent, loan of a thing, service contract, treatment contract, contract to produce work, public offer of a reward, brokerage agreement and mandate.

Basic information on selected contracts

Type of contract	Essential obligations of party I	Essential obligations of party II
purchase § 433 ff	grant of property	payment of the agreed price
lease § 535 ff	grant use of the leased property	payment of the set rent
mandate § 662 ff	gratuitously carrying out of a trans action entrusted to him by the employer	reimbursement of the necessary expenses of party I
contract to produce a work § 631 ff	produce of a work or to provoke a success	approval of the work and payment of the agreed remuneration

Right to personal data protection in Germany

The right of an individual to protect his/her personal data is in Germany described as the right to “informational self-determination” which means that every person may independently decide whether his/her personal data may be disclosed or used by third parties (cf BVerfGE 65, 1). Limitations are only possible if there is a predominant public interest.

The right to personal data protection is not explicitly regulated in the German Basic Law (GG) but was for the first time derived by the Federal Constitutional Tribunal from Article 2 section 2 of GG in conjunction with Article 1 section 1 of GG as a special manifestation of the so called general right of privacy in the judgment „Volkszählungsurteil“ [Census] of 15. December 1983 (cf BVerfGE 65, 1). It has constitutional rank and is deemed to be one of the aspects of protection of human dignity and general freedom to act. The right to informational self-determination is to protect an individual from uncontrolled collection, gathering, use and transfer of his/her personal data.

Limitations on the right to informational self-determination are only permissible  under an act of parliament. While introducing statutory limitations, the Federal Constitutional Tribunal demands from the legislator that a fair balance be kept between opposing interests of citizens who are interested in keeping their data secret on one hand and the interest of a processing entity on the other, allowing for limitations only when there is a predominant public interest. In the aforementioned judgment, the Federal Constitutional Tribunal explicitly distinguished the limitations which are imposed against the will of citizens from those placed with their consent. In case of limitations imposed without citizens’ consent, the Federal Constitutional Tribunal sets down particularly strict requirements. Conditions and extent of limitations must be laid down clearly and be understandable to a citizen in accordance with a prevailing in a law-abiding state principle of definite character of legal standards (cf BVerfGE 45, 400).

The law on data protection is regulated on the national level and in legislations of individual federated states. On the national level, the federal act on personal data protection is in force which relates to the protection of data by government offices and non-public entities while the acts on personal data protection of individual federated states relate to activities of domestic offices. In addition, regulations on data protection can be found in numerous acts concerning individual fields of law, such as telecommunications law.

The federal act on data protection contains regulations concerning admissibility of personal data collection, obligations to register, confidentiality, gathering, modification and use of data and defining the rights of the individual concerned. In addition, the act provides for a claim for indemnity on account of damage caused as a result of its provisions being violated by an entity processing personal data.

For the purpose of supervising compliance with the regulations on data protection, independent data protection officers are appointed who advise individual institutions and control their activities. On the national level, the data protection officer is appointed who every two years reports to the Bundestag on his activities.  In addition, he informs the Bundestag and the public about significant developments in data protection.

Intellectual Property Law in Germany

Under the term intellectual property law, the rights are understood which do not apply to a certain material object but to the immaterial good. It is the area of private law related to property law. The person who has the right is exclusively qualified to use and dispose of the good. Immaterial goods include intellectual work within the meaning of the copyright law like books or music as well as technical inventions, trademarks or company names.

Copyright

The German law on copyrights is based on the so called monistic theory which means that personal and exploitation rights cannot be separated. The copyright law covers intellectual work like speech, music and art. The right to a work is established with the creation of the work. There must exist a personal, intellectual creation. It protects the ideational and material interests of the creator and is laid down in the act on copyrights of 09.09.1965 (UrhG). It includes the protection of the form of expression, however the idea itself is not protected, parallel creations are possible. The creator can enforce his right against physical or immaterial use of his creation. It is not possible to transfer the copyright itself, third parties can gain the right to use the creation. It exists until 70 years after the death of the creator and descends to the heirs after the death of the creator.

Patent

A patent protects technical innovations (inventions) and is regulated by the act on patents of 16.12.1980. Patents are granted for inventions in all areas of technique, if they are new and based on an inventive step and may be commercially useable. It protects from unauthorized utilization of the invention and against parallel inventions. It is transferable without limitation and the term of protection is 20 years. Patents must be registered with the German patent and trademark office.

Trademark

The law on trademarks protects signs like trademarks or company names and is regulated in the act on trademarks (MarkenG) of 25.10.1994. Precondition for the protection is that the sign must possess the necessary distinctive features and there must not be a need for a sign to be kept free. It is established with the registration at the patent and trademark office or also without registration, if the trademark is notoriously well known which means that the trademark is generally known. The owner of the trademark can forbid the others to use it. The protection right is transferable and there is no time limit to it, but must be renewed every 10 years.

Design

The law of designs covers the exclusive utilization of an aesthetic form of appearance of a given product. The regulations can be found in the act on the legal protection of designs (DesignG) of 12.03.2004. The design must be new and have a particular nature. The right belongs to the designer or to an employer. A design must be submitted for registration at the German patent and trademark office. Only after the registration the protection of the design starts. The duration is 25 years. Protected are the attributes of the form of appearance of the registered design which have been indicated at the registration. Without approval third parties are not allowed to use the design.

Utility model

The protection of utility models is regulated in the act on utility models (GebrMG) of 28.08.1989. Similar to patents, utility models protect technical innovations, which are based on a technical step and are commercially usable. In contrast to patents, the just mentioned preconditions are not verified at registration and the term of protection is 10 years long to the maximum and therefore shorter than in case of patents.

Employment Law in Germany

Employment law regulates the legal relationship between the employer and the employee (individual employment law) and on the other hand also the legal relationship between the unions and bodies representing employers and employees (collective employment law).

The German employment law is not based on a uniform legal act which would regulate all issues concerning this area of law, while there is a number of acts containing specific regulations. The number of regulations in this area of law can be explained by the need to protect employees against the stronger position of employers and exploitation.

Historically, in the German employment law there is a differentiation between workers who do physical work and employees. This differentiation is not of fundamental importance anymore because the respective regulations have been made uniform over the last years.

Already before entering into an employment contract the potential employer has certain obligations. For example, it is forbidden to formulate job advertisements in a discriminatory manner and also during job interviews the legal framework must be respected

Employment contract

An employment contract is a sub form of a commission contract under § 611 BGB and establishes the employment relationship between the employer and employee. Every natural or legal person can be an employer. An employee is a person who under a civil law contract, being personally dependent, is obliged to work for another person. An employment contract must contain the following provisions:

• Place of work;
• Name and address of the parties;
• Date of the employment;
• Remuneration and mode of payment;
• Description of duties;
• Dates and period of notice;
• Weekly or daily hours of work;
• Length of vacation;
• General reference to collective labour or company applicable to the employment relationship.

The written form for employment contracts is not required by law but recommended as evidence, while the essential provisions concerning employment relationship must be made available to an employee in writing.

With an employment contract, mutual rights and obligations for the parties are established. The obligations of the employer include payment of the agreed remuneration, assignment of duties, social benefits and equal treatment. The employer has the authority to give directives to an employee. The main obligation of the employee is to do the agreed work, but the employee is not obligated to achieve a specific result. Subsidiary obligations of the employee include loyalty to the employer and secrecy.

Collective labour agreement

In addition to individual agreements so called collective labour and company agreements are concluded in many trades. Labour agreements are concluded between employers or employer associations on the one hand and trade unions on the other hand. Company agreements are only valid at a given work place. They include regulations on a multitude of individual employment contracts. Conclusion of a labour agreement is aimed at balancing the power asymmetry between an employer and employees which is characteristic of an employments relationship.

Acts and collective labour agreements establish minimum standards for the content of employment contracts. The employment contract cannot adversely differ from these standards.

Termination of an employment contract

The employment relationship ends as a result of expiration, amicable solution, judgment for solution, appeal, termination with or without notice. Termination of a contract by one party without notice requires a good cause on the part of an employer or employee. Termination of an employment contract with notice is the usual form of ending employment relationship but notice periods stipulated by contract or by law must be observed.

In certain cases, employees are protected from the one-sided termination by the employer. The employment protection act regulates the rights of the employee in this regard and allows for the termination of a contract only for socially justifiable reasons. In case of unjustifiable termination, an employee has the right to appeal to the labour court.

Companies’ Law

The French companies’ law includes a set of legal standards regarding the commonality of property or production and determining the rules of sharing the profits related thereto or using the savings generated thereby.

As regards the typology, there are different types of companies for which relevant statutory regulations are provided. Two basic types should be identified: limited liability companies and unlimited liability companies.

The difference between these companies is based on the basic criterion, i.e. scope of the shareholders’ liability. In an unlimited liability company, shareholders are liable for the company’s debts and fully cover the losses incurred thereby.

In a limited liability company, shareholders are not liable for the company’s debts and cover the company’s losses up to the amount of their contributions, which means that their losses will not exceed what they contributed to the company.

There are five types of partnerships and companies governed by the commercial companies’ law.

In the case of partnerships, the main substrate are the partners thereof, who found the partnership and agree to jointly assume the risk (SNC: société en nombre collectif (general partnership) and SCS: société en commandite simple (limited partnership).

In the case of companies, the substrate of capital is more important than the substrate of persons.

Companies include:

SA: Société Anonyme (joint-stock company)

SARL : Société à responsabilité limitée (limited liability company)

SAS : Société par Action simplifiée (simplified joint-stock company)

SE : Société Européenne (European company)

SCA : Société en commandite par action (private company limited by shares)

Contract Law

The contract law is a branch of the French civil law the object of which includes civil-law contracts. The contract law is a structural part of the obligation law and compensation law.

The contract law in France was codified in 1804 in the spirit of Enlightenment theories, and the basis thereof is the rule of autonomous wills of the parties. Since that time on, the contract law in France has been subject to three main rules: freedom of contract, consensualism and binding force of contracts. Since the theory of the autonomy of will may not be absolute, it was partially relativized and restricted by the law.

Contracts are classified in different ways: by subject matter, by form or by obligations of the parties. There are also other classifications, e.g. by contract type or by the extent of the parties’ freedom within the scope of forming the terms of a contract.

Personal data protection law

The personal data protection law is a collection of legal standards enabling an individual to control the processing of such personal data. The French legislator took up this issue as one of the first ones in connection with the occurrence of computer technology enabling quick processing of significant data amounts. The act called “Information technology and liberties” is aimed to protect an individual against the abuse of the possibilities related to the computer personal data processing.

In accordance with the “Information technology and liberties” Act of 1978, with respect to the private sector, personal data may be collected, processed and stored by an institution or enterprise solely if a person or department in charge thereof has previously submitted a declaration to CNIL (Commission nationale de l’Informatique et des Libertés – National Commission for Information Technology and Liberties) which is confirmed by an assignment of a registration number. The number must be provided on the website along with a contact address of the department managing personal data files.

Since the Act on daily protection of 2001 as amended by the Act of 2006 on combating terrorism became effective, Internet providers and telecommunication operators have been obliged to keep data on users’ connections and to make them available at the request of the Police authorities.

The person in charge of the files or personal data processing must notify the persons whose data are protected on the goal of the data processing, identity of the recipients of the information and rights conferred upon the individuals pursuant to Articles 32 and 38 of the  “Information technology and liberties” Act of 1978.

Political parties, churches, trade unions and associations are not obliged to submit the lists of their members to CNIL. Websites maintained by natural persons for private use are also released from such obligation in accordance with the release from notification No. 62 of CNIL.

The French act defines the “sensitive data” as personal data which, directly or indirectly, disclose the racial or ethnic origin, political opinions, world or religious views, trade union membership, health condition, sexual life and data regarding offences, judgments and security measures. Such data are governed by special rules. It is prohibited to collect and record such data. After fulfilling some conditions, only state authorities (Police, general intelligence, etc) are released from the above prohibition.

Intellectual Property Law

 

The intellectual property law is a collection of legal standards aimed to protect the products of human activity constituting intangible goods.

Under the intellectual property law, two groups of the protected goods may be distinguished:

–           works themselves without a functional purpose, i.e. copyright including the protection of literary and artistic works. However, this does not mean that the works may not be attached to a business activity;

–           industrial property, where the product of human thought has, in particular, a functional character.

As regards the industrial property, it should be distinguished between inventions and industrial designs, i.e. products of intellectual activity which are manufactured on an industrial scale:

Inventions aimed to solve a given technical matter. They are used to obtain a specific result. The law should protect such invention by reservation of the exclusive right to use the same, i.e. a patent.

Aesthetic or ornamental industrial designs, which assign an individual appearance to industrial products. They are different from technical industrial products. For instance, drawings and designs are protected by the law. Specific aesthetics is assigned to industrial products so that the recipients may recognise a product on the basis of its form. This affects the decision on the purchase (e.g. a bottle of perfumes). If an object has a special aesthetic form, the industrial property right may apply also if the object itself is not protected by a patent.

Labour Law

The labour law is a field of law governing the relations under an employment agreement entered into between an employer and employee. In France, the relations are characterised by the existence of a legal dependence of employees towards employers. The goal of the labour law is thus to govern this dependence and relieve the lack of equality between the individual parties to the employment agreement. The rules of the labour law do not apply to state officials employed on a permanent or contract basis or self-employed persons.

Political, economic and social issues merge in the field of the labour law. By determining the current employment conditions of employees, the labour law has an impact on the current and future labour market, and on the market competitiveness of enterprises and on the national economy. The issue of the amendment to the labour law provisions, its scope and manner each time arouses controversy and is subject to public discussions.

Standards of the French labour law result from the sources of the international law, domestic law and standards governing the pursuance of the individual professions. Co-existence of different sources of law requires some flexibility of standards, the application of which may differ depending on the employment conditions of employees.

The sources of the international law include, in particular, conventions of the International Labour Organisation ratified by France. They also include conventions of the Council of Europe, i.e. European Convention of Human Rights and European Social Charter, as well as decisions of the European Court of Human Rights. Eventually, the labour law includes the provisions of the EU laws, governed mainly in the secondary legislation.

It is notable that, despite the existence of the social policy standards, the Court of Justice of the European Union currently strives to subordinate social rights to economic freedoms and rights.

Within the domestic law, the labour law is constituted in accordance with the legislation and regulatory rights mentioned in Articles 34 and 37 of the Constitution. Some of the standards are developed as a result of the contractual bargains with trade unions and employers. Further, the decisions of the Social Chamber of the Supreme Court and, to a smaller degree, of the State Council, are the source of the interpretation of the labour law.

Further, the labour law system includes professional standards, the scope and binding force of which are governed by the act and on the basis of the rules determined by trade unions. At the local, regional or domestic levels, employment relations within one or more jobs are governed by collective agreements. The individual employment relationships are also governed by the provisions of an employment agreement, unilateral obligations and internal regulations.