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Journal Officiel de la République
française (
Intellectual Property Code (Regulatory Part – Decrees in Conseil d’Etat)
INTELLECTUAL PROPERTY CODE (Regulatory Part – Decrees
in Conseil d'Etat)
Chapter
I: Nature of Copyright
Article R111-1
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The royalties referred to in Article L. 111-4 (third paragraph) of the
Intellectual Property Code shall be paid to that one of the following bodies
that is competent by reason of its statutory vocation, the nature of the work
and the envisaged exploitation mode:
Centre national
des lettres;
Société des gens de lettres;
Société des auteurs et compositeurs dramatiques;
Société des auteurs, compositeurs et éditeurs de musique;
Société pour l’administration du droit de reproduction mécanique des auteurs,
compositeurs et éditeurs;
Société des auteurs des arts visuels.
If the competent body should not accept to collect the royalties
concerned or in the absence of a competent body, the royalties shall be paid to
the Deposit and Consignment Office.
Article R111-2
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The amount of the monies to be paid by the user of a work shall be determined
in accordance with usual practice in each of the categories of creation involved.
The payment of the monies and their use for purposes of general or professional
interest shall be subject to controls by the Minister responsible for culture.
Chapter
II: Patrimonial Rights
Article R122-1
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The threshold for the levying of the resale right referred to in Article L.
122-8 shall be set at a selling price of 100.
Article R122-2
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
An artist who wishes to enjoy resale right either for the whole of his work or
for one or more works, when they are included in a public sale, shall be
required to have published in the Official Journal a statement of which the terms
shall be laid down by ministerial order.
The artist concerned shall simultaneously address to the Minister responsible
for culture a duplicate of his statement.
The statement may be made by the heirs or successors in title of the artist.
The statement may mention the marks or particulars of any kind that may
facilitate authentification of the artist’s works.
Where the object results from the collaboration of more than one artist wishing
to enjoy resale right, the statement may be made collectively by those artists
or individually by each of them.
Such statement shall include the fact that there is agreement between the
collaborators on the distribution of the royalty provided for by this Code and
in what proportion they have agreed to proceed therewith.
Article R122-3
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68
Official Journal of
In the absence of the statement referred to in the preceding Article, the
concerned party may enjoy the resale right when a given work is included in a
public sale by requesting the public or ministerial officer, or the person
authorised on a permanent or casual basis to conduct voluntary sales of
moveables at public auctions, at the latest within 24 hours after the sale, to
effect the levy referred to in Article L. 122-8.
Where the object has resulted from the collaboration
of more than one artist and in the absence of a statement as provided for in
the preceding Article, a person or persons who wish to enjoy the resale right
may assert that right in accordance with the preceding paragraph.
The notification addressed to the public or
ministerial officer, or the person authorised on a permanent or casual basis to
conduct voluntary sales of moveables at public auctions shall state whether
there is agreement between the collaborators on distribution of the royalty and
in what proportion they have agreed to proceed therewith.
Article R122-4
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The statements under Articles R. 122-2 and R. 122-3 may include the designation
of a representative such as a company or association instructed to represent
the interests of the artists, his heirs and cessionaries for the application of
the provisions of Article L. 122-8.
Such representative shall take all necessary steps to safeguard the rights of
the artist, his heirs and cessionaries.
Article R122-5
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68 Official
Journal of
As from the inclusion in the Official Journal of the
statement under Article R122-2 or of receipt of the statement under Article
R122-3, the public or ministerial officer, or the person authorised on a
permanent or casual basis to conduct voluntary sales of moveables at
public auctions, carrying out the public sale of the work of art that is the
subject of such statement shall be required, at his personal liability, to levy
on the selling price obtained the amount resulting from application of the
tariff determined by Article L122-8 and Article R122-1.
Article R122-6
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68
Official Journal of
Three clear days after a sale that has given rise to a levy, the monies shall
be kept by the public or ministerial officer, or the person authorised on a
permanent or casual basis to conduct voluntary sales of moveables at
public auctions, at the disposal of the concerned party. The monies shall be
remitted either against proof by the concerned party of his identity or of his
capacity to act or by a declaration of the representative and at his liability.
Where the object has resulted from the collaboration
of more than one artist, in the absence of an agreement under Articles R. 122-2
and R. 122-3, the amount resulting from application of the tariff determined by
Articles R. 122-8 and R. 122-1 shall be held for the benefit of the entitled
persons until the issue of distribution has been amicably settled or a decision
has been taken under the general rules of law. If, on expiry of the three-month
period laid down by Article R. 122-7, the conditions for distribution have not
been fixed and notified by the parties concerned to the public of ministerial
officer, or the person authorised on a permanent or casual basis to
conduct voluntary sales of moveables at public auctions, who has made the
levy, the amount resulting from that levy shall be paid to the Deposit and
Consignment Office for subsequent remittance to the entitled party.
Article R122-7
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68
Official Journal of
If the monies have not been handed out after the sale, the public or
ministerial officer shall hold the amount during a period of three months.
Before expiry of the first month, the public or
ministerial officer, or the person authorised on a permanent or casual basis to
conduct voluntary sales of moveables at public auctions, shall inform by
registered letter the artist, his heirs and cessionaries or his representative
that he has made a levy for his benefit in application of Article L122-8 and
that the amount resulting is being kept at his disposal.
If no reply is received to this notification prior to
expiry of the third month, the public or ministerial officer, or the person
authorised on a permanent or casual basis to conduct voluntary sales of
moveables at public auctions, shall be released, after that time limit, from
all liability on payment of the levied amount to the vendor.
The amount of the notification cost, which may not
exceed one franc, shall be deducted from the amount of the monies paid to the
artist or to the vendor.
Article R122-8
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68
Official Journal of
The public or ministerial officer, or the person authorised on a permanent or
casual basis to conduct voluntary sales of moveables at public auctions, who
has paid into the hands of the vendor the amount levied and not claimed shall
be required, on a simple request by the concerned parties, to communicate the
amount of such money and the name, capacity and address of the vendor
concerned, against whom those parties shall retain any statutory remedies.
Article R122-9
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68
Official Journal of
If the public or ministerial officer, or the person authorised on a permanent
or casual basis to conduct voluntary sales of moveables at public auctions, who
has made the levy prescribed by Article L122-8 receives an opposition or a
regular defense against payment before any payment is made to the concerned
party of the resulting amount, that amount shall be paid, on expiry of the
three-month period under Article R122-7, to the Deposit and Consignment Office
for remittance to the entitled party.
Article R122-10
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 2001-650 of 19 July 2001 art. 68 Official
Journal of
The public or ministerial officers, or the person authorised on a permanent or
casual basis to conduct voluntary sales of moveables at public auctions,
shall keep a special register for the application of Article L122-8. The
register, of which the pages shall be numbered and which shall be initialled on
the first and last pages, shall include in the order of each public sale a
summary description of the work of art, the selling price, the name of the
artist for whom the resale royalty has been levied, the name and address of the
vendor. The register may be replaced by a receipt register of which one of the
slips shall constitute the notification referred to in Article R122-7 and of which
the stub shall meet the requirements of this Article.
Article R122-11
(inserted by Decree No. 95-385 of
Artists of foreign nationality, their heirs and cessionaries shall enjoy resale
right in the same circumstances and under the same conditions as French artists
if their national legislation affords enjoyment of this right to French
artists, but only during that time for which the artists are allowed to
exercise the right in the country concerned.
However, artists of foreign nationality who, during their artistic career, have
participated in French art life and who have had their place of residence in
France for at least five years, even if not consecutive, may enjoy, without the
requirement of reciprocity, the rights laid down in Article R. 122-2.
The successors in title of such artists shall enjoy the same faculty. The
artists concerned or their successors in title shall submit a request to the
Minister responsible for culture who shall take a decision after having heard
the opinion of a commission of which the composition and conditions of
operation shall be laid down by an order issued by the Minister.
Article R122-12
(inserted by Decree No. 97-1316 of
For the purposes of the application of the provisions if item (d) of
subparagraph 3 of Article L. 122-5, the catalogue of a sale of works of graphic
or three-dimensional art means copies of a list, whether illustrated or not,
distributed prior to a sale at public auction, which, in order to inform
potential purchasers, describes the works that will be disposed of in the
course of the sale, and also the rules for the conduct of the said sale, which
copies are made available free of charge or at cost price to all persons
requesting them of the public or ministerial officer conducting the sale.
Section
4: Commission Contracts for Advertising
Article R132-1
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The Committee referred to in Article L. 132-32 shall meet either in plenary
composition or in compositions specialized in one or more advertising modes.
Each such composition shall be chaired by the Chairman of the Committee and
shall comprise an equal number of representatives of the advertising writers
and of representatives of the advertising producers.
Article R132-2
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The Committee shall comprise 12 representatives of the organizations
representing the advertising writers and 12 representatives of the
organizations representing the advertising producers, designated in accordance
with the first paragraph of Article L. 132-33.
One alternate shall be designated, in the same manner, for each full
representative of the organizations representing the advertising writers and
the advertising producers. The alternate members of the Committee shall not
attend its sessions and shall not participate in its discussions save for the
absence of the full representative for whom they are the alternate.
Article R132-3
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The Chairman and members of the Committee shall be designated for three years.
Vacancies occurring during their term of office shall be filled by designation
for the remainder of the current term.
Article R132-4
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The Chairman shall convene and set the agenda for the Committee and its
specialized compositions.
Convocations shall be ex officio where requested, with a specific
agenda, either by the Minister responsible for culture or by one third of the
members of the Committee.
Article R132-5
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The deliberations of the Committee and its specialized compositions shall be
valid only if three quarters of the members or their regular alternates are
present. Where this quorum is not achieved, the Committee shall be reconvened
within eight days; it may then deliberate whatever the number of members
present.
Article R132-6
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The members of the Committee shall be under an obligation of discretion with
regard to the elements, documents and information of which they obtain
knowledge.
Article R132-7
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
The secretariat of the Committee shall be provided by the services of the
Minister responsible for culture.
The sessions of the Committee shall not be public. However, the Committee may
hear any person as it deems useful.
The Committee shall establish its rules of procedure.
The decisions of the Committee shall be published in the Official Journal of
the
Section 5: Pledging the Software Exploitation Right
Article R132-8
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
Pledges in respect of the software exploitation right shall be entered in the
Special National Register of Software kept by the National Institute of
Industrial Property.
The entry shall contain for each computer program:
1°. The identity of the holder of the right referred to in Article L. 122-6 and
of the pledgee, together with any changes concerning the their surnames,
forenames, business names, legal form, domicile or headquarters;
2°. A statement of the elements enabling the computer program to be identified,
such as name, make, designation of the source code, operating documents and
updates, together with any other characteristics of the program and, where
appropriate, the reference of any deposit;
3°. The deed establishing the pledge on all or a part of the software
exploitation right;
4°. The acts modifying ownership or enjoyment of the exploitation right;
5°. The acts modifying the rights of the pledger;
6°. Court actions and final court decisions where they concern the rights that
are the subject matter of the pledge;
7°. Corrections of material errors affecting the entries.
Article R132-9
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
The request for entry shall be submitted by one of the parties to the pledge or
by a representative having powers of attorney. Unless otherwise provided, such
powers shall extend to the requests for entry referred to in Articles R. 132-10
to R. 132-13 and R. 132-15, to the receipt of the notifications referred to in
Article R. 132-14 and to the request for cancellation referred to in Article R.
132-16.
Article R132-10
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
The request for entry of a pledge shall be effected by filing a memorandum
whose form shall be determined by decision of the Director General of the
National Institute of Industrial Property.
The memorandum shall contain the following particulars:
1°. The surnames, forenames, domicile or business names, legal form and
headquarters of the creditor and the debtor;
2°. The designation of the software by means of its name, mark, with a precise
statement of all the elements that identify and characterize it, such as the
designation of the source code, the operating documents and the updates
together with, where appropriate, any references to a deposit of the software;
3°. The nature and date of the deed of pledge;
4°. The amount of the debt covered by the deed, its exigibility, the conditions
relating to interest and the accessory costs.
This memorandum shall be accompanied by:
— one original of the deed of pledge;
— one reproduction of the above-mentioned deed if the requester wishes the
original or the authentic copy to be returned to him;
— proof of payment of the prescribed fee;
— where appropriate, the powers of the representative.
Article R132-11
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
Any acts modifying or canceling the published rights of the debtor and of the
creditor, such as, in particular, transfer, assignment of an exploitation
right, transfer of the pledge or renunciation thereof, together with court
actions and final court decisions relating to the rights, shall be entered at
the request of one of the parties to the act.
The request shall contain:
1°. A memorandum requesting entry whose form shall be determined by decision of
the Director General of the National Institute of Industrial Property;
2°. One of the originals of the private deed or, as appropriate, an authentic
copy of the deed or of the act instituting proceedings;
3°. A copy of the above-mentioned deed where the requester wishes the original
or the authentic copy to be returned to him;
4°. Proof of payment of the prescribed fee;
5°. Where appropriate, the powers of the representative.
Article R132-12
(inserted by Decree No. 96-103 of 2 February 1996
art. 2 Official Journal of
Any change in the surnames, forenames or domicile of the natural persons or any
change in the business names, legal form or headquarters of the legal persons
shall be entered at the request of any person concerned.
The request shall contain:
1°. A memorandum requesting entry whose form shall be determined by a decision
of the Director General of the National Institute of Industrial Property;
2°. Any document required to ascertain the changes or modifications in the
civil status or domicile of natural persons or the name, legal status and
headquarters of legal persons;
3°. Proof of payment of the prescribed fee;
4°. Where appropriate, the powers of the representative.
Article R132-13
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
Requests for correction of material errors in acts already published in the
Register may be submitted by any party to the acts concerned in accordance with
the procedure under Article R. 132-12. They shall be accompanied by all the
necessary documents.
Article R132-14
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
If a request for entry is not in conformity, a reasoned notification shall be
made to the requester. He shall be given a period of two months to regularize
his request or to submit observations. Failing regularization or the submission
of observations enabling the objection to be lifted, the request shall be
rejected by a decision of the Director General of the National Institute of
industrial Property.
The notification may be accompanied by a proposal for regularization. In such
case, the proposal shall be deemed accepted if the requester does not contest
it within the two-month period afforded to him.(inserted by Decree No. 96-103
of 2 February 1996 art. 2 Official Journal of 9 February 1996)
Article R132-15
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
An entry shall cease to have effect if it is not renewed under the procedure
set out in Article R. 132-10 prior to expiry of a period of five years computed
from the date of entry of the pledge.
Article R132-16
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of
Cancellation of an entry may be requested by the creditor or the debtor by
furnishing proof of the extinction of the pledged debt or by producing the act
giving release from the entry.
Cancellation may also be effected as a result of a final court decision.
Article R132-17
(inserted by Decree No. 96-103 of 2 February 1996 art.
2 Official Journal of
All entries made in the Special National Register of Software shall be notified
in the Official Bulletin of Industrial Property.
Any person concerned may obtain from the Institute:
a)A reproduction of the entries in the Register;
b)A certificate attesting to the fact that there is no
entry.
Chapter
II: Rights of Performers
Article R212-1
(inserted by Decree No. 95-385 of
The Committee referred to in Article L. 212-9 shall meet either in plenary
composition or in compositions specialized in one or more sectors of activity.
Each such composition shall be chaired by the Chairman of the Committee and
shall comprise an equal number of representatives of the employees and
representatives of the employers.
Article R212-2
(inserted by Decree No. 95-385 of
The Committee shall comprise 12 representatives of the employees’ organizations
and 12 representatives of the employers’ organizations. The organizations
called upon to designate representatives and the number of representatives of
each such organization shall be laid down by an order issued by the Minister
responsible for culture.
One alternate shall be designated, in the same manner, for each of the full
representatives of the employees’ and employers’ organizations. The alternate
members of the Committee shall not attend its sessions and shall not
participate in its discussions save for the absence of the full representative
for whom they are the alternate.
Article R212-3
(inserted by Decree No. 95-385 of
The Chairman and members of the Committee shall be designated for three years.
Vacancies occurring during their term of office shall be filled by designation
for the remainder of the current term.
Article R212-4
(inserted by Decree No. 95-385 of
The Chairman shall convene and set the agenda for the Committee and its specialized
compositions.
Convocations shall be ex officio where requested, with a specific
agenda, either by the Minister responsible for culture or by one third of the
members of the Committee.
Article R212-5
(inserted by Decree No. 95-385 of
The deliberations of the Committee and its specialized compositions shall be
valid only if three quarters of the members or their regular alternates are
present. Where this quorum is not achieved, the Committee shall be reconvened
within eight days; it may then deliberate whatever the number of members
present.
Article R212-6
(inserted by Decree No. 95-385 of
The members of the Committee shall be under an obligation of discretion with
regard to the elements, documents and information of which they obtain
knowledge.
Article R212-7
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The secretariat of the Committee shall be provided by the services of the
Minister responsible for culture.
The sessions of the Committee shall not be public. However, the Committee may
hear any person as it deems useful.
The Committee shall establish its rules of procedure.
The decisions on the Committee shall be published in the Official Journal of
the French Republic on the initiative of the Minister responsible for culture.
Chapter IV: Provisions Common to Performers and Phonogram Producers
Article R214-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Committee referred to in Article L. 214-4 shall meet in either plenary
composition or in compositions specialized in one or more sectors of activity.
Each such composition shall be chaired by the Chairman of the Committee and
shall comprise an equal number of representatives of the beneficiaries of the
right to remuneration and the representatives of the users of phonograms.
Article R214-2
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Committee shall comprise 12 representatives of the organizations of
beneficiaries of the right to remuneration and 12 representatives of the
organizations of users of phonograms designated in accordance with the second
paragraph of Article L. 214-4.
One alternate shall be designated, in the same manner, for each of the full
representatives of the organizations of beneficiaries of the right to
remuneration and of the users of phonograms. The alternate members of the
Committee shall not attend its sessions and shall not participate in its
discussions save for the absence of the full representative for whom they are
the alternate.
Article R214-3
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Chairman and members of the Committee shall be designated for three years.
Any vacancies occurring during their term of office shall be filled by
designation for the remainder of the current term.
Article R214-4
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Chairman shall convene and set the agenda for the Committee and its
specialized compositions.
Convocations shall be ex officio where requested, with a specific
agenda, either by the Minister responsible for culture or by one third of the
members of the Committee.
Article R214-5
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The deliberations of the Committee and its specialized compositions shall be
valid only if three quarters of the members or their regular alternates are
present. Where the quorum is not achieved, the Committee shall be reconvened
within eight days; it may then deliberate whatever the number of members
present.
Article R214-6
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The members of the Committee shall be under an obligation of discretion with
regard to the elements, documents and information of which they obtain
knowledge.
Article R214-7
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The secretariat of the Committee shall be provided by the services of the
Minister responsible for culture.
The sessions of the Committee shall not be public. However, the Committee may
hear any person as it deems useful.
The Committee shall establish its rules of procedure.
The decisions of the Committee shall be published in the Official Journal of
the French Republic on the initiative of the Minister responsible for culture.
Article R311-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Committee referred to in Article L. 311-5 shall meet in either plenary
composition or in either of two compositions specialized, in the first case, in
phonograms, and in the second case, in videograms. Each of these compositions
shall be chaired by the Chairman of the Committee and shall comprise, for one
half, the representatives of the beneficiaries of the right to remuneration,
for one quarter, the representatives of the manufacturers or importers or of
persons who effect intracommunity acquisition of mediums and, for one quarter,
of representative of the consumers.
Article R311-2
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The representative of the State, Chairman of the Committee, shall be appointed
by order of the Minister responsible for culture.
The Committee shall further comprise 24 members representing the categories
referred to in the first paragraph of Article L. 311-5 and designated as
provided in the second paragraph of the aforementioned Article.
One alternate shall be designated, in the same manner, for each of the full
members. The alternate members shall not attend the sessions and shall not
participate in the deliberations save in the absence of the full representative
for whom they are the alternate.
Article R311-3
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Chairman and the members of the Committee shall be designated for three
years. Any vacancies occurring during the term of office shall be filled by
designation for the remainder of the current term.
Article R311-4
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Chairman shall convene and set the agenda for the Committee and its
specialized compositions.
Convocation shall be ex officio where requested, with a specific agenda,
by either the Minister responsible for culture or by one third of the members
of the Committee.
Article R311-5
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The deliberations of the Committee and its specialized compositions shall be
valid only if three quarters of the members or their regular alternates are
present.
If the quorum is not achieved, the Committee shall be reconvened within eight
days; it may then deliberate whatever the number of members present.
Article R311-6
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The members of the Committee shall be under an obligation of discretion with
regard to the elements, documents and information of which they obtain
knowledge.
Article R311-7
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The secretariat of the Committee shall be provided by the services of the
Minister responsible for culture.
The sessions of the Committee shall not be public. However, the Committee may
hear any person as it deems useful.
The Committee shall establish its rules of procedure.
The decisions of the Committee shall be published in the Official Journal of
the French Republic at the initiative of the Minister responsible for culture.
Article R321-1
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art.
2 Official Journal of 19 April 1995)
The file addressed to the Minister responsible for culture pursuant to Article
L. 321-3 shall include the draft statutes and general regulations and all
documents proving the professional qualifications of the founders, the human,
material or financial means that the society intends to use for the effective
collection of royalties and for the exploitation of their repertoire.
The file shall be communicated by registered mail with notification of receipt.
Article R321-2
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art. 2
Official Journal of 19 April 1995)
(Decree No. 2001-334 of 17 April 2001 art. 1 I Official
Journal of 18 April 2001)
Members may at all times request communication from the society of:
1°.
The list of the society’s representatives;
2°. A
table tracing back over a period of five years the annual amounts collected and
distributed as well as withholdings on the basis of management costs and other
withholdings;
3°. A
document describing the distribution rules applicable;
4°.
The aggregate royalties owed to them over the course of the last twelve months,
as a result of contracts concluded with users, and the manner in which this
aggregate amount was calculated.
Article R321-3
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art.
2 Official Journal of 19 April 1995)
(Decree No. 2001-334 of 17 April 2001 art. 2
Official Journal of 18 April 2001)
The members
of the royalty collection and distribution societies may be convened by
registered mail or by a notice published in at least two nationally distributed
newspapers that are empowered to publish statutory notifications in the
department in which the society has its registered offices and which are laid
down in their statutes. Members shall be informed by any suitable means should
there be any modification to the list of newspapers prior to the updating of
statutes. Members are informed, by any suitable means, of any changes to the
list of these newspapers made prior to the updating of the statutes.
In addition to the particulars referred to in the first paragraph of
Article 40 of Decree No. 78-704 of July 3, 1978, the notification shall state
the date and venue for the meeting; such notification shall be published 15
days at least before the date of the general meeting.
Where the statutes require certain general meetings to
be held subject to specific conditions as to quorum or majority, those
conditions shall be mentioned in the notification that convenes the meetings.
Article
R321-4
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art.
2 Official Journal of 19 April 1995)
The date of the general meeting at which account is given, in accordance with
Article 1856 of the Civil Code, on the management of the society shall be laid
down in the statutes.
If the general meeting cannot be held as laid down in the statutes, the members
must be informed thereof at least 15 days beforehand, either by registered
letter with notification of receipt or by a notification of postponement
published in the manner laid down in Article R. 321-3. The letter or the
notification shall give the reasons for the postponement and the date at which
the general meeting will be held.
Article R321-5
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art.
2 Official Journal of 19 April 1995)
Any member may request to be convened individually to general meetings or to certain
of them by registered post with notification of receipt.
Where a meeting is convened by notification in the press, the cost of the
registered post shall be borne by the party concerned.
Article R321-6
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art.
2 Official Journal of 19 April 1995)
(Decree No. 2001-334 of 17 April 2001 art. 1 II
Official Journal of 18 April 2001)
Before
the general meeting to approve the accounts, all members are entitled to
examine the books and documents referred to in Article 48 of Decree No. 78-704
of 3 July 1978 on the application of Act No. 78-9 of 4 January 1978 amending
Title IX of Book III of the Civil Code, relating to the current financial year.
This right must be exercised in the two months prior to the General Meeting,
unless a longer period has been stipulated in the company’s statutes.
At least fifteen days before the date specified for this meeting,
members shall send the company a written request mentioning the documents to
which they wish to have access. Within ten days of receipt of the request, the
company shall suggest a date for exercising the right of access, which shall
occur in the conditions specified in the statutes. The third paragraph of
Article 48 of the aforementioned Decree of 3 July 1978 shall be applicable.
The right of access shall be exercised at the headquarters of the
company or on the premises of the administrative organisation and shall be subject
to the provisions of the final paragraph of Article R321-6-1, which does not
give entitlement to a copy of the documents.
Article R321-6-1
(inserted by Decree No. 2001-334 of 17 April 2001 art. 1 III Official
Journal of 18 April 2001)
Moreover, members may, during the period specified in the first paragraph of
Article R321-6, ask the company to provide them with:
1°.
The annual accounts to be submitted to the general meeting, together with the
accounts for the previous year, accompanied by the documents referred to in
Article R321-8;
2°.
The reports of the directors and of the auditors, to be submitted to the
meeting;
3°.
Where applicable, the text and presentation of the reasons for the proposed resolutions,
together with information on the applicants applying for a term of office in
the company;
4°.
The overall amount, certified correct by the auditors, of the remuneration
received by the highest paid individuals, of whom there will be ten or five in
number, depending on whether the company has a workforce of under or over two
hundred employees;
5°. A
list of investments appearing in the accounts at the closure of the financial
year, together with the average rate of return on short and medium-term
investments over the financial year;
6°. A
table mentioning the company in which the company has a holding and the profit
and loss account and the balance sheet for each of these companies;
7°. A
list of the main user categories, their number and the amount of benefit paid
over the year.
8°. A
table showing the comparison between the annual accounts as they are generally
presented and the tables specified in Article R321-8.
The
documents referred to in points 1 to 8 shall be made available over the same
period to members at the company headquarters or on the premises of the
administration, where the former may examine them or obtain a copy.
Article R321-6-2
(inserted by Decree No. 2001-334 of 17 April 2001 art. 1 III Official
Journal of 18 April 2001)
Members’ right to information pursuant to Article R. 321-6 shall be
ensured subject to compliance with the limits laid down by Article L. 321-5 and
the rules laid down by the memorandum of association as regards
confidentiality, inter alia as regards business secrets, vis-à-vis third
parties. Also, a member may not access personal data concerning staff members
of the company.
If
required, the personal data excluded from the right of access, shall be
concealed.
Documents
having a preparatory nature to decision by the society’s bodies or relating to
a pending lawsuit may not be accessible.
The
company may decide not to follow up on repeated or abusive requests.
Article R321-6-3
(inserted by Decree No. 2001-334 of 17 April 2001 art.
1 III Official Journal of 18 April 2001 in force on 1 July 2001)
A
member who has received a refusal of communication may refer the matter to a
special commission comprising at least five members, elected by the general
meeting from those who have no corporate representation status.
The opinions of this commission must be justified. The applicant and the
company management bodies will be notified of them.
The commission shall provide the general meeting with an annual report
on its activities. This report will be sent to the Minister for Culture and to
the Chairman of the Commission, under the terms of Article L321-13.
Article R321-6-4
(inserted by Decree No. 2001-334 of 17 April 2001 art.
1 III Official Journal of 18 April 2001)
For a
de iure or de facto manager to refuse to communicate all or part of the
documents referred to in Articles R321-2, R321-6 and R321-6-1
shall be sanctioned by the fine provided for 3rd class offences.
Article R321-7
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 95-406 of 14 April 1995 art. 1, art.
2 Official Journal of 19 April 1995)
Users
may obtain knowledge of the repertoire referred to in Article L. 321-7 at the
headquarters of the society or, where appropriate, at one of its regional
agencies. At their request, they may be given a copy of the repertoire without
any further claim on them other than an amount representing the cost of the
copy.
Article R321-8
(Decree No. 98-1040 of 18 November 1998 art. 1
Official Journal of 19 November 1998)
(Decree No. 2001-334 of 17 April 2001 art. 1 IV
Official Journal of 18 April 2001)
(Decree No. 2001-809 of 6 September 2001 art. 1
Official Journal of 8 September 2001)
Communication of the annual accounts of the royalty collection and distribution
companies, provided for under Article R321-6-1 for all members and in
application of the first paragraph of Article L321-12, to the Minister for
Culture must include:
A. –
As regards the financial management of the company:
1. In
compliance with the common accounting rules on the reporting of revenue and
expenses, a management account in compliance with Annex 1 (NB).
The
companies concerned will also be entitled to:
a)
Show corporate operations to the profit of the partners, on the one hand, and
cultural operations on the other, either in the management account or in a
separate account.
b)
Show the royalties received in revenue, the amounts to be allocated and the
amounts effectively paid in expenses for the financial year in the management
account.
2. As
management indicators:
a) in
compliance with Annex 2, a table showing the allocation of the amounts received
per type of remuneration;
b) in
compliance with Annex 3, a table showing, per type of remuneration:
- a
list of the amounts effectively paid during the financial year for individual
allocation;
- the
share amounts realised during the financial year actions for collective
allocation;
c) in
compliance with Annex 4, a table summarising the amounts remaining for
individual allocation, per type of remuneration;
d) in
compliance with Annex 5, a table showing the list of amounts individually
allocated and not yet paid, per year of allocation and per type of
remuneration;
e) a
table showing the ratio of deductions on royalties to collections for the
financial year;
f) a
table showing the amount and allocation of financial revenue;
B. –
As regards implementation of activities, financing whereof is provided for
under Article L321-9:
1. A
breakdown of the amounts paid, per activity category, as specified in the first
paragraph of Article L321-9, combined with special information on:
- the
cost of management of these activities.
- the
organisations that have benefited from assistance over three consecutive years.
2. A
description of the allocation procedures;
3. A
commentary on the policies of the company as regards the former.
4. A
list of the conventions referred to in Article R321-10.
C.
Annual information on any action taken to defend the social categories affected
by their corporate purpose.
N.B.
annexes not reproduced, please refer to the Official Journal of 19 November
1998.
Article R321-9
(Decree No. 98-1040 of 18 November 1998 art. 1 Official Journal of 19
November 1998)
(Decree No. 2001-809 of 6 September 2001 art. 2
Official Journal of 8 September 2001)
I. –
The assistance for creation referred to in Article L321-9 refers to assistance
provided:
a)
for the creation of a work, its performance, the first fixing of a work or
interpretation on a phonogram or videogram;
b)
for defence, promotion and information campaigns to support creators and their
works;
II. –
Assistance in the distribution of a live show as referred to in Article L321-9
shall mean assistance provided for:
a)
Events presenting a live show as a main or back-up act;
b)
Campaigns that will ensure the distribution of the works and artistic services
of a live show.
III.
– Assistance with the training of artists, as referred to in Article L321-9,
refers to assistance provided for the training of authors and
artists-performers.
Article R321-10
(inserted by Decree No. 2001-809 of 6 September 2001
art. 3 Official Journal of 8 September 2001)
Any
assistance granted by a royalty collection and distribution society pursuant to
article L321-9 is the subject of an agreement between the company and the
beneficiary. This agreement provides for the conditions of use of the aid
granted, together with the conditions in which the beneficiary shall inform the
company of the elements which can be used to give proof that said assistance is
used in accordance with its destination.
Chapter II: Approved Societies for the Administration of Reprographic
Reproduction Rights
Article R322-1
(inserted by Decree No. 95-406 of 14 April 1995
art. 1, art. 2 Official Journal of 19 April 1995)
A society governed by Title II of Book III may be approved under Article L.
122-10 if it satisfies the following conditions:
1°. Provide evidence of the diversity of the partners with respect to the
categories and number of entitled persons, of its economic importance expressed
in revenue or turnover and the diversity of editorial types of works. Such
diversity should be expressed in the composition of its deliberative and
executive organs;
2°. Provide proof, by any documentary means, of the qualification of its
executives and representatives:
a)Their capacity as authors;
b)Or the type and level of their diplomas;
c)Or their professional experience in the field of
publication or of the management of professional bodies;
3°. Provide all information concerning its administrative organization and the
conditions of its installation and equipment. This information should concern
the collection of data on reprographic practice, the collection of
remuneration, the processing of the date required for distribution of the
remuneration collected, the finance plan and the budget forecast for the three
financial years following the request for approval;
4°. Provide in its statutes, its general regulations and in the model instruments
binding each of the members, rules that guarantee the equitable nature of the
conditions laid down for distribution of the remuneration to the authors and
publishers.
Article R322-2
(inserted by Decree No. 95-406 of 14 April 1995
art. 1, art. 2 Official Journal of 19 April 1995)
The request for approval, accompanied by a file drawn up in accordance with
Article R. 322-1, shall be transmitted by registered letter to the Minister
responsible for culture who shall issue a receipt. If the file is not complete,
the Minister responsible for culture shall request by registered letter a
supplementary file to be submitted in the same form within a period of one
month as from the receipt of the letter.
Approval shall be given by order of the Minister responsible for culture,
published in the Official Journal of the French Republic.
Approval shall be given for five years. It may be renewed subject to the same
conditions as the initial approval.
Approval may be withdrawn if a society fails to satisfy one of the conditions
laid down in Article R. 322-1 following service of notice or notification of
the defects. The holder of approval shall have a one-month period to submit his
observations. Withdrawal shall be pronounced by order of the Minister
responsible for culture, published in the Official Journal of the French
Republic.
Article R322-3
(inserted by Decree No. 95-406 of 14 April 1995
art. 1, art. 2 Official Journal of 19 April 1995)
Any change in the
memorandum of association or in the general rules, any termination of the
functions of a member of the executive and deliberative bodies of an approved
company shall be communicated to the Minister responsible for culture within a
period of fifteen days as from the corresponding decision. Failure to
make a declaration may lead to the withdrawal of approval.
Article R322-4
(inserted by Decree No. 95-406 of 14 April 1995
art. 1, art. 2 Official Journal of 19 April 1995)
If, on the date of publication of a work, the author or his successor in title
has not designated an approved royalty collection and distribution society, the
society that has the largest number of administered works, determined in
accordance with relevant professional usage, shall be deemed to represent the
reprographic reproduction right.
The Minister responsible for culture shall designate each year one or more
societies that fulfill the conditions set out in the preceding paragraph.
Article
R323-1
(inserted
by Decree No. 98-1041 of 18 November 1998 art. 1 Official Journal of 19
November 1998)
A company governed by Title II of Book III may be approved under I of Article
L132-2 and Article L217-2 if it satisfies the following conditions:
1°. Provide proof of the effective administration of the right to
authorise retransmission by cable, with respect to the number of entitled
persons, of its economic importance expressed in revenue or turnover;
2°. Provide proof, by any documentary means, of the qualification of its
executives and representatives:
a) the type and level of their degrees;
b) or their experience in the management of professional bodies;
3°. Provide all information concerning:
a) The administrative structure and the conditions of installation and
equipment.
b) Payments received or awaited on the occasion of the retransmission by
cable, simultaneous, in full and without change, within national territory,
from a member State of the European Community and the data required for their
distribution;
4°. Communicate :
a) Copy of agreements made with third parties concerning the retransmission by
cable, simultaneous, in full and without change, within national territory,
from a member State of the European Community;
b) Failing which, a copy of the agreements made with foreign professional
organisations in charge of royalty collection and distribution.
Article
R323-2
(inserted
by Decree No. 98-1041 of 18 November 1998 art. 1 Official Journal of 19
November 1998)
The
request for approval, accompanied by a file drawn up in accordance with Article
R. 323-1, shall be transmitted by registered letter to the Minister responsible
for culture who shall issue a receipt. If the file is not complete, the
Minister responsible for culture shall request by registered letter a
supplementary file to be submitted in the same form within a period of one
month as from the receipt of the letter.
Approval shall be given by order of the Minister responsible for culture,
published in the Official Journal of the French Republic.
Approval shall be given for five years. It may be renewed subject to the same
conditions as the initial approval.
If a society should fail to satisfy one of the conditions laid down in Article
R. 323-1, notification is sent by registered letter with acknowledgement of
receipt. The holder of the approval shall have a one-month period to submit his
observations. Failing regularisation of the situation, the approval may be withdrawn
by order of the Minister responsible for culture, published in the Official
Journal of the French Republic.
Article R. 323-3
(inserted by Decree no. 98-1041 of 18 November 1998
art. 1, Journal Officiel of 19 November 1998)
Any
change in the memorandum of association or in the general rules, any
termination of the functions of a member of the executive and deliberative
bodies of an approved company shall be communicated to the Minister responsible
for culture within a period of fifteen days as from the corresponding
decision. Failure to make a declaration may lead to the withdrawal of
approval.
Article
R323-4
(inserted
by Decree No. 98-1041 of 18 November 1998 art. 1 Official Journal of 19
November 1998)
The
list of companies that benefit from the approval is published each year by the
Minister responsible for culture.
Article R323-5
(inserted by Decree No.98-1041 of 18 November 1998 art. 1 Official
Journal of 19 November 1998)
The
designation provided for in the second paragraph of I of article L.132-20-1 and
of the second paragraph of I of the article L.217-2 made by registered post
with acknowledgement of receipt addressed to a royalty collection and
distribution company.
Withdrawal can be effected in terms of the conditions provided for by the
articles of the company.
Chapter IV: The
mediators commissioned with carrying
out the resolution of disputes related to concession of authorisation of
retransmission by cable, simultaneous, complete and without alteration, in the
territory of a member state of the European Union.
Article
R324-1
(inserted
by Decree No. 98-1042 of 18 November 1998 art. 1 Official Journal of 19
November 1998)
For the
application of articles L.132-20-2 and L.217-3, a list of 20 mediators is
established by the Minister responsible for Culture on the proposal of royalty
collection and distribution companies approved and included in the list
mentioned in article R.323-4, representatives of professional broadcasting
organizations and representatives of organizations of beneficiaries with the
right to permit the retransmission by cable.
The
Minister responsible for Culture decrees the list of professional organizations
mentioned in the preceding paragraph.
The
list of mediators is published in the official Journal of the Republic of
France.
Article R324-2
(inserted by Decree No. 98-1042 of 18 November 1998
art. 1 Official Journal of 19 November 1998).
The
mediators must fulfil the following criteria :
1.
Enjoy full civil and political capacity ;
2.
Not have carried out acts contrary to honour, integrity and good morals
attracting punitive disciplinary or administrative measures ;
3.
Possess the qualifications necessary for the resolution of the disputes brought
before him ;
4. Be
able to present the guarantees of impartiality necessary in the exercise of
mediation and notably, not be a member, director, agent of employee of a
company or organisation mentioned in article 324.1.
Article R324-3
(inserted by Decree No. 98-1042 of 18 November 1998 art. 1 Official
Journal of 19 November 1998)
The
mediators are appointed for a renewable 3-year term.
Article R324-4
(inserted by Decree No. 98-1042 of 18 November 1998 art. 1 Official
Journal of 19 November 1998)
A
mediator may request his removal from the list provided for in article R.324.1
by registered letter with acknowledgement of receipt addressed to the Minister
responsible for Culture.
His replacement is provided for in the conditions fixed in article
R324-1.
Article R324-5
(inserted by Decree No. 98-1042 of 18 November 1998 art. 1 Official
Journal of 19 November 1998)
The
mediator may be called upon, at the joint request of the parties by registered
letter with acknowledgement of receipt outlining the points around which their
dispute has arisen.
Article R324-6
(inserted by Decree No. 98-1042 of 18 November 1998 art. 1 Official
Journal of 19 November 1998)
The
mediator may also be called upon by one of the parties. He makes this request
by registered letter with acknowledgement of receipt within a period of eight
days, the other parties have a period of one month within which to make known
their position by registered letter with acknowledgement of receipt and, in the
event of disagreement over the choice of mediator, propose another mediator.
When
the choice of mediator is settled by all the parties the mediator informs the
parties by registered mail with acknowledgement of receipt.
Article R324-7
(inserted by Decree No. 98-1042 of 18 November 1998
art. 1 Official Journal of 19 November 1998)
The
duration of the mediation shall not exceed three months running from the date
of receipt of the joint request or the date of the last acknowledgement of
receipt in the case provided for in terms of the last paragraph of the
preceding article.
The
mediation may be renewed once for the same duration at the request of the
mediator with the agreement of the parties.
Article R324-8
(inserted by Decree No. 98-1042 of 18 November 1998
art. 1 Official Journal of 19 November 1998)
The
mediator will inform the parties of the total amount of his fees. The charge of
such fees shall be shared equally by the parties.
Article R324-9
(inserted by Decree No. 98-1042 of 18 November 1998
art. 1 Official Journal of 19 November 1998)
The
mediator invites the parties to hear the proceedings from the beginning of the
mediation.
He
requests that the parties furnish him with all accurate facts he deems
necessary and can interview all persons he deems usefully contribute to the
proceedings. The parties may be assisted by a lawyer or by anyone of their
choice who has been approved by the mediator. Only those invited by the
mediator to participate shall be admitted.
The mediator shall retain no fact, grievance, element of information or
proof without notifying the parties concerned in conditions allowing the latter
to question their legitimacy.
Article R324-10
(inserted by Decree No. 98-1042 of 18 November 1998 art. I official
Journal of 19 November 1998)
The
mediator is duty-bound to keep confidential the business brought to his
attention.
Investigations carried out by the mediator and his findings cannot be produced
or called for within the framework of another procedure of mediation,
arbitration or judicial proceedings without the consent of the parties.
Article R324-11
(inserted by Decree No. 98-1042 of 18 November 1998
art. 1 Official Journal of 19 November 1998)
At
the time the mediator establishes an agreement between the parties, he shall
draft minutes outlining the measures to be taken and setting a timeframe for
their execution. He addresses copies of these minutes to the parties by
registered letter with acknowledgement of receipt within 10 days.
Article R324-12
(inserted by Decree No.98-1042 of 18 November 1998
art. 1 Official Journal of 19 November 1998)
If,
at the end of the time limit provided for in article R.324-7, no agreement has
been reached between the parties, the mediator may, by registered letter with
acknowledgement of receipt, put forward recommendations to the parties,
proposing a solution which he judges appropriate and just to all parties to the
dispute.
Failure to have expressed their opposition in writing to the mediator within 3
months from the date of receipt of his proposal will result in the parties
being deemed to have accepted such proposal.
Chapter
V: Standing committee on the control of royalty collection and distribution
companies
Article R325-1
(inserted by Decree No. 2001-334 of 17 April 2001 art. 3 Official
Journal of 18 April 2001)
The
Standing Commission on the control of royalty collection and distribution
companies instituted by article L.321-13 is called at the summoning of its
chairman.
It
can validly deliberate in the presence of a quorum of three of its
members. These deliberations will be adopted by the majority of members
present, the chairman having the casting vote in the event of a deadlock. The
reporter who was appointed in terms of the last paragraph of I of article
L.321-13 attends to the deliberations.
The
Commission can hear the directors of royalty collection and distribution
companies, their affiliates and organizations controlled by such companies and
those persons who, in the opinion of the chairman, is considered useful.
The
Commission undertakes to take all measures to protect the secrecy of these
inspections.
Article R325-2
(inserted by Decree No. 2001-334 of 17 April 2001
art.3 Official Journal of 18 April 2001)
The
Commission fixes its annual work programme as recommended by the chairman.
The
decision to an inspection is notified by registered letter to the company or
organization who has raised the objection.
The request
for documents and information is addressed, to the company or the organization
supervised, by a letter setting a time frame within which to respond to it.
This period may not be for a period of less than thirty days.
Inspection is subject to prior written notification.
Article R325-3
(inserted by Decree No. 2001-334 of 17 April 2001
art.3 Official Journal of 18 April 2001)
The
provisional report of inspection, established by the reporter and adopted by
the Commission, is communicated by the Chairman to the inspected company or
organisation, which has thirty days in order to put forward its observations or
asks that its representatives be heard by the Commission.
The
final verification report is adopted by the Commission after examination of the
observations of the company or organization under investigation and, if needs
be, after examination of the representatives. The observations of the company
organization are annexed to the report. This report is addressed to the
company or organization. It is also sent to the Minister responsible for
Culture.
Article 325-4
(inserted by Decree No. 2001-334 of 17 April 2001 art.3 Official Journal
of 18 April 2001)
The
annual report provided for in III of article L.321-13 is established on the
basis of verification of facts by the Commission at the instance of its
investigations.
The
observations of the Commission putting in issue a company or organization
communicated with earlier. The company or organization has a period of thirty
days within which to put forward its observations or ask that its
representatives be heard by the Commission. The observations of the company or
organization are annexed to the report.
Chapter I: General Provisions
Article R331-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The agents designated by the National Center for Cinematography, by the
professional bodies of authors and by the societies referred to in Title II of
this Book shall be required, after having been approved by the Minister
responsible for culture, to take an oath before the judge of the first instance
court of their place of residence. The formulation of the oath shall be as
follows: “I swear to carry out my duties correctly and faithfully and to
neither reveal nor use anything of which I may obtain knowledge during the
exercise of my duties.”
Article R335-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The request for withholding of goods by the customs administration referred to
in Article L. 335-10 shall include:
1°. The surname and forenames or the company name of the requester, his place
of residence or of business;
2°. Where appropriate, the name and address of a representative and proof of
his powers;
3°. The capacity of the requester with respect to the rights that he wishes to
assert, attested to by any means;
4°. All elements that will permit the infringing work or service to be
identified;
5°. A description of the allegedly infringing goods for which withholding is
requested.
The request may be made prior to entry of the allegedly infringing goods onto
the French territory. In such case it shall be valid for one year and may be
renewed.
The conditions for submitting the request shall be detailed in an order issued
by the Minister responsible for the budget.
Article R335-2
(inserted by Decree No. 96-103 of 2 February
1996 art. 2 Official Journal of 9 February 1996)
Any publication or user’s handbook concerning means of removing or
circumventing any technical device protecting software, which does not bear a
notice in clear characters that the unlawful use of such means is liable to the
penalties laid down for cases of infringement shall incur the penalties laid
down for offenses of the third class.
Section 1: Organization of the National Institute of Industrial Property
Article R411-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The National Institute of Industrial Property shall have the following duties,
in particular:
1°. Examination of patent applications and the grant of patents and the issue
of any relevant documents;
2°. Registration and publication of trademarks and service marks;
3°. Issue of certificates of identity and the provision of information concerning
anticipations with respect to trademarks and service marks;
4°. Centralization and keeping of the deposits of industrial designs, and their
publication;
5°. Registration and keeping of deposits of dual envelopes intended to
facilitate proof of the creation of industrial designs;
6°. Keeping of registers of patents, of trademarks and of industrial designs,
entry of all acts affecting the ownership of patents, trademarks or service
marks and industrial designs;
7°. Implementation of the provisions contained in the laws and regulations
concerning temporary protection of industrial property at exhibitions,
concerning industrial awards and concerning marks of origin;
8°. Implementation of the international agreements with respect to industrial
property, particularly administrative relations with the International Bureau
for the Protection of Industrial Property in Berne and the International Patent
Institute in The Hague;
9°. Keeping the National Register of Commerce and Companies and the Central
Directory of Trades;
10°. Keeping the filings of instruments that establish companies and the
modifications thereto filed with the registrars of the commercial courts and
the civil courts that act in their stead;
11. Centralization of the information given in the registers of commerce and
trades and the official bulletins of those registers;
12. Centralization, keeping and availability to the public of all technical and
legal documentation concerning industrial property;
13. Administration of the Official Bulletin of Industrial Property.
In order to exploit its documentary holdings, the Institute may set up
databases, where appropriate, in conjunction with other files or registers. It
may, for that purpose, set up subsidiary firms or enter into financial
participation.
Article R411-2
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Director General of the National Institute of Industrial Property shall
represent the Institute in all civil acts.
The staff of the Institute shall be under his orders.
He shall take all measures necessary for the operation of the Institute.
He shall prepare and implement the budget. He shall establish the receipt
titles. He shall commit, liquidate and order expenditure within the limit of
the budget appropriations.
He may delegate certain of his tasks to one or more agents of the Institute,
designated by him.
He may receive delegation of signature from the Minister responsible for
industrial property in order to exercise the duties placed upon the latter in
the fields of industrial property and of rights related to industrial property,
of the National Register of Commerce and Companies and of the Central Directory
of Trades.
Article R411-3
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-845 of 10 September 1997 art. 1
Official Journal of 17 September 1997)
The
Administrative Council shall comprise 12 members:
1. A
member of the Conseil d'Etat or of the Court of Audit, as Chairman, appointed
for three years by order of the Minister responsible for industrial property;
2.
The Chairman of the Industrial Property Council or a member of that Council
designated by him;
3.
The Director of Civil Affairs and of the Seal of the Ministry of Justice or his
permanent representative;
4.
The Director of the Budget of the Ministry of the Economy, Finance and the
Budget or his permanent representative;
5.
The Director of Public Accounting of the Ministry of the Economy,
Finance and the Budget or his permanent representative;
6.
Two representatives of the Minister responsible for industrial property,
including the Director of General Administration;
7.
The Director General of the National Research Development Agency;
8.
The Chairman of the National Society of Industrial Property Agents;
9.
One representative of the industrial circles concerned by industrial
protection, designated by the Minister responsible for industrial
property for a renewable period of three years;
10.
Two representatives of the serving staff of the establishment, elected in
accordance with the conditions laid down by order of the Minister responsible
for industrial property.
The
functions of member of the Administrative Council shall not be remunerated.
They shall give entitlement to the travel and subsistence allowances laid down
in Decree No. 90-437 of 28 May 1990.
The
Director General, the State Controller and the accounting agent shall attend
sessions of the Administrative Council in a consultative capacity.
The
Chairman may call upon any person whose presence he deems useful to attend
sessions in a consultative capacity.
The
Secretariat of the Administrative Council shall be provided by an agent of the
Institute designated for that purpose by the Director General.
Article R411-4
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Administrative Council shall give opinions on matters entered on its agenda
by the Director General of the National Institute of Industrial Property.
It shall be consulted by obligation on the budget drafts and, in general, on
all draft decisions to be submitted for the approval of the Ministers concerned
or the Ministers responsible for the financial control of the establishment.
The Administrative Council shall be required to give its opinion on the matters
that are obligatorily submitted to it within one month as from the date on
which the Chairman has been seized thereof. On expiry of that time limit, the
Director General may, if the urgency of the matter so requires, submit the
draft decisions directly for the approval of the Ministers referred to in the
preceding paragraph.
Article R411-5
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Administrative Council shall meet, in principle, once during each quarter.
It shall be convened by its Chairman.
Its deliberations shall be valid only if at least seven of its members attend
the session.
If the quorum is not achieved, a new convocation shall be addressed to the
members. The Council shall deliberate validly in such case whatever the number
of members present.
In the event of equally divided voting, the Chairman shall have a casting vote.
Article R411-6
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The numbers of contractual staff belonging to the Institute shall be laid down
each year within the limits of the budget appropriations for that
establishment.
The status of the staff shall be laid down by decree.
Article R411-7
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The accounting agent shall be appointed, and if necessary, replaced or revoked,
by order of the Minister concerned and of the Minister responsible for finance.
His remuneration shall be laid down in the same manner.
He shall be placed under the authority of the Director General. However, he
shall be personally and monetarily responsible for the acts of his
administration and shall receive from the Minister responsible for finance
directives concerning execution of the financial part of his service.
He shall be required, prior to his installation, to take oath before the Court
of Audit and to evidence the provision of security of which the amount shall be
laid down by order of the Minister responsible for finance and economic
affairs. His administration shall be subject to verification by the General
Inspectorate of Finances and by the General Collector of Finance of Paris and
to checking by the Court of Audit.
He may, at his own responsibility, delegate his signature to one or more agents
of the establishment whom he shall appoint as his signing clerks by means of a
regular letter of authority.
Article R411-8
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-845 of 10 September 1997 art. 2
Official Journal of 17 September 1997)
The control of the National Institute of Industrial Property, particularly the
a posteriori control of the budget implementation, shall be carried out by a
State Controller, in accordance with the conditions laid down in Decree No.
55-733 of 26 May 1955 as amended codifying and adapting the texts relating to
the economic and financial control of the State.
The special conditions for exercising this control shall be laid down by a
joint order of the Ministers responsible for industrial property, for the
economy and for the budget.
Article R411-9
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-845 of 10 September 1997 art. 1,
art 3 Official Journal of 17 September 1997)
The draft budget of the Institute, accompanied by the opinions of the
Administrative Council and the State Controller, shall be submitted by the
Director General of the Institute for approval to the Minister concerned and to
the Minister responsible for the budget within the time limits stipulated with
respect to the general budget of the civil service by means of the joint letter
from the Minister for the budget.
Any amendments that may be made to the budget during its implementation shall
be submitted and approved in the same manner.
The Minister responsible for the budget may delegate his signature to the State
Controller with respect to the approval decisions referred to in this Article.
Article R411-10
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The resources of the National Institute of Industrial Property shall be
constituted by:
1°. The proceeds of all authorized levies with regard to industrial property,
the registers of commerce and trades and the filing of company statutes;
2°. All revenue that may be levied by the Institute as remuneration for
services rendered;
3°. The proceeds from the sale of publications;
4°. Revenue from assets and the proceeds of their sale;
5°. The proceeds of any refunds made by international industrial property
organisms in which France participates;
6°. Funds deriving from authorized loans;
7°. Any other resources deriving in particular from donations, legacies, gifts
and assistance funds.
Article R411-11
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The costs of the National Institute of Industrial Property shall comprise:
1°. The expenditure for running and equipping the Institute;
2°. The expenditure related to participation by France in the international
industrial property organisms.
Article R411-12
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The contracts for work and supplies issued by the Institute shall be governed
by the legislative and regulatory provisions applicable to State contracts.
Article R411-13
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Director General of the National Institute of Industrial Property shall keep
accounts of the issue of vouchers for receipts, commitment, liquidation and
payment orders for the expenditure.
Article R411-14
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The accounting agent shall be exclusively responsible for the recovery of
outstanding debts and for payments.
He shall be responsible for the revenue vouchers communicated to him by the
Director General. He shall be required, under his personal responsibility, to
make all efforts to ensure the receipt of all resources of the establishment,
to effect the necessary enforcement measures against outstanding debtors, to
notify the Director General of the expiry of leases, to ensure that time limits
are not exceeded, to ensure the maintenance of rights, privileges and mortgages
and to apply for entry in the mortgage register of the appropriate titles.
He shall effect the amicable collection of debts outstanding. Where this is not
possible, he shall inform the Director General who shall render enforceable the
revenue vouchers in accordance with Article 2 of the Decree of 30 October 1935
to improve and facilitate the operation of the legal service and of the
judicial agency of the Treasury.
He may only waive legal action on a written order from the Director General.
He shall be responsible for paying the expenditure that is regularly ordered by
the Director General.
Article R411-15
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-845 of 10 September 1997 art. 1,
art 4 Official Journal of 17 September 1997)
The administrative account of the authorizing officer and the management
account of the accounting officer shall be submitted each year to the
Administrative Council.
The administrative account, accompanied by the opinion of the Administrative
Council and of the State Controller, shall be submitted for approval to the
Minister responsible for the budget and to the Minister concerned within three
months of the end of the financial year.
The Minister responsible for the budget may delegate his signature to the State
Controller for the approval of the administrative account.
Article R411-16
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The rules with regard to accounting, to the form of budgets and accounts, to
the books and to the entries made by the authorizing officer and the accountant
shall be laid down in one or more orders signed by the Minister responsible for
finance, the Minister responsible for the budget and the Minister concerned.
Section 2: Fees Levied by the National Institute of Industrial Property
Article R411-17
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 96-103 of 2 February 1996 art. 3
Official Journal of 9 February 1996)
The fees levied by the National Institute of Industrial Property in relation to
the procedures and formalities relating to industrial property and to the
Register of Commerce and Companies shall be those shown in the table below:
Procedural Fees
1.Patents, utility certificates and supplementary protection certificates:
Filing(1);
Search report(1) (2);
Claim in excess of the 11th;
Declaration of priority right;
Request to enjoy the filing date of an earlier application;
New claims requiring an additional search report;
Request for correction of errors;
Request for continuation of the procedure;
Issue and printing of the specification;
Maintenance in force;
Supplement for late payment of the filing fee or the search report fee;
Surcharge for late request for a search report;
Surcharge for late payment of the annual fee;
Request for restoral;
Supplementary protection certificate.
2.European Patents:
Publication of the translation or revised translation of a European patent or
of the claims in an application for a European patent;
Making and transmitting copies of the European patent application to the
recipient States.
3.International Applications (PCT):
Transmission of an international application;
Confirmation of the designation of States;
Surcharge for late payment;
Preparation of additional copies.
4.Trademarks and Service Marks:
Filing;
Class of goods or services;
Claim to a priority right;
Regularization;
Opposition;
Correction of clerical errors;
Renewal;
Surcharge for late payment of the renewal fee;
Renunciation;
Request for entry in the International Trademark Register;
Notice of expiry.
5.Industrial Designs:
Deposit;
Extension;
Waiving of postponed publication;
Waiving the effects of deposit;
Regularization, correction, notice of expiry;
Registration and keeping of a special envelope.
6.Rights related to Industrial Property:
Topographies of semi-conductor products: filing and keeping; entry of an
instrument amending or transmitting rights;
Industrial awards: registration of results, of an award or transcription of an
assignment statement or transmission statement.
7.National Registers of Patents, Trademarks, Industrial Designs:
request for entry.
8.National Register of Commerce and Companies:
Declaration;
Filing of an instrument.
(1) Fee refunded if inadmissible.
(2) Fee refunded in the event of refusal, withdrawal, suspension of the
grant procedure or prolongation of prohibition on disclosure and free
exploitation that occur before the start of the procedure for drafting the
search report.
Article R411-18
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The ancillary revenue that the National Institute of Industrial Property may
levy when communicating documents or instruments in its keeping, for the
exploitation of its documentary holdings and from the sale of its publications
shall be established by deliberation of the Administrative Council that will
lay down the conditions for collection and the amount.
Section
3: Appeals Lodged
Before the Appeal Court Against Decisions by the Director General of the
National Institute of Industrial Property with Respect to the Grant, Refusal or
Maintenance of Industrial Property Titles
Article R411-19
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Appeal Court with territorial competence to hear appeals lodged against
decisions by the Director General of the National Institute of Industrial
Property with regard to the grant, refusal or maintenance of industrial
property titles shall be the court of the place of residence of the person who
lodges the appeal, taking into account the groupings effected in Table IV bis
annexed to the Code of Judicial Organization reproduced hereafter:
Seat and Jurisdiction of the Courts of Appeal Competent to Hear Directly
Appeals Lodged Against Decisions by the Director of the National Institute of
Industrial Property with Regard to the Grant, Refusal or Maintenance of
Industrial Property Titles
SEAT JURISDICTION extending to the territorial limits of the courts of appeal
and the higher courts of appeal of :
Aix-en-Provence
: Aix-en-Provence, Bastia, Nîmes.
Bordeaux : Agen, Bordeaux, Poitiers.
Colmar : Colmar, Metz.
Douai : Amiens, Douai.
Limoges : Bourges, Limoges, Riom.
Lyon : Chambéry, Lyon, Grenoble.
Nancy : Besançon, Dijon, Blois, Nancy.
Paris : Orléans, Paris, Reims, Rouen, Versailles,
Basse-Terre, Fort-de-France, Saint-Denis-de-la-Réunion, Nouméa, Papeete,
Mamoudzou and Saint-Pierre-et-Miquelon.
Rennes : Angers, Caen, Rennes.
Toulouse : Pau, Montpellier, Toulouse.
If such person resides abroad, the Court of Appeal of Paris shall be competent.
Domicile shall be elected within the jurisdiction of that court.
Article R411-20
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The time limit for lodging an appeal to the court of appeal against decisions
of the Director General of the National Institute of Industrial Property shall
be one month.
Where appropriate, this time limit shall be extended in accordance with Article
643 of the new Code of Civil Procedure.
Article R411-21
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Appeals shall be lodged by means of a written declaration addressed or handed
in duplicate to the registry of the court. Subject to ex officio
inadmissibility, the declaration shall comprise the following particulars:
1.a)If the petitioner is a natural person: his surname, forenames, profession,
domicile, nationality, place and date of birth;
b)If the petitioner is a legal person: its form, its
name, its registered offices and the organ that legally represents it;
2.The date and subject of the contested decision;
3.The name and address of the owner of the title or the holder of the
application if the petitioner has neither capacity.
A copy of the contested decision shall be attached to the declaration.
If the declaration does not contain an explanatory statement of the grounds put
forward, the appellant shall be required, subject to inadmissibility, to file
such statement with the registry within one month following the declaration.
Article R411-22
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The registry of the court of appeal shall transmit to the Director General of
the National Institute of Industrial Property, by registered mail with
notification of receipt, a copy of the appeal declaration together with, where
appropriate, a copy of any subsequent statement of grounds.
On receipt of the copy of the declaration, the Director General of the National
Institute of Industrial Property shall transmit to the registry the file of the
contested decision.
Article R411-23
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The court of appeal shall take its decision after the Director General of the
National Institute of Industrial Property has been enabled to submit written or
oral observations.
The written observations shall be transmitted by the Director General of the
National Institute of Industrial Property in duplicate to the registry of the
court, that shall transmit one copy to the petitioner.
Article R411-24
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
If the appeal is lodged by a person other than the owner of the title or the holder
of the application, the latter shall be implicated by the chief registrar of
the court of appeal by registered letter with notification of receipt.
Article R411-25
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The appellant may be assisted before the court of appeal by a lawyer or
represented by a solicitor.
Article R411-26
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The decision of the court of appeal shall be notified by the registry to the
petitioner, to the Director General of the National Institute of Industrial
Property and, where appropriate, to any other person implicated.
Chapter II Committee
for the Protection of New Plant Varieties
Section 1:
Organization and
functions of the Committee for the Protection of New Plant Varieties
Article R412-1
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Committee for the Protection of New Plant Varieties established by Article
L.412-1 shall ensure the following duties:
To
issue new plant variety certificates corresponding to the applications which
satisfy the requirements laid down in Articles L.623-1 to L.623-16, and all
official documents concerning such applications and certificates.
To
declare the forfeiture of breeders' rights in the circumstances set out in
Article L.623-23.
Article R412-2
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Committee for the Protection of New Plant Varieties may propose to the Minister
of Agriculture the provisions of a regulatory nature necessary for the
application of Articles L.412-1 and L.623-1 to L.623-35 and, in general, submit
any suggest suggestions to him relative to the implementation of new plant
variety protection.
Article R412-3
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Committee for the Protection of New Plant Varieties shall have its headquarters
in Paris. In addition to its Chairman, it shall include ten members appointed
by order of the Minister of Agriculture, one of whom shall be put forward by
the Minister responsible for the Overseas Departments and Territories, in
accordance with the conditions set out in Article L.412-1.
Article R412-4
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
magistrate entrusted with the chairmanship of the Committee shall be chosen
from the magistrates of the Court of Appeal of Paris or the Tribunal de grande
instance of Paris belonging to at least the first grade of the judiciary.
He
shall be appointed by joint order of the Garde des sceaux, Minister of Justice
and the Minister of Agriculture.
It
shall be the duty of the Chairman, outside the Committee's meetings which he
shall assume the chairmanship, to ensure the smooth working of the Secretariat
General provided for in Article R. 412-10 and to undertake, assisted by the
latter, the preparation and execution of the Committee's decisions.
Article R412-5
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Chairman and the members of the Committee shall be appointed for four years.
Their term of office may be renewed. Half the members of the Committee shall be
renewed every two years. Where, through death or other cause, a member has
ceased to exercise his functions, he shall be replaced within a period of two
months. The newly-appointed member shall remain in office until the end of the
term of office of the member he is replacing.
Article R412-6
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
members of the Committee who are not civil servants shall be subject to the
provisions of Decree No. 90-437 of 28 May, 1990, setting out the terms for the
reimbursement of travel expenses of State agents and other persons who take
part in councils, committees, commissions and other bodies which provide
assistance to the State.
Article R412-7
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Chairman and the members of the Committee shall be under an obligation of
secrecy in relation to anything that comes to their knowledge in the exercise
of their functions. Moreover, a member of the Committee may not take part in
the deliberations relating to a plant variety where he has a direct interest in
the acceptance or refusal of an application for a certificate.
Article R412-8
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Committee shall meet on convocation by the Chairman whenever necessary. It may
only deliberate if the number of members present is more than half the number
of members in office. Where the votes are equal, the Chairman shall have a
casting vote.
Article R412-9
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
To
facilitate the preparation and examination of cases brought before it, the
Committee may:
- appoint a standing bureau from among its members;
- set up specialised expert commissions;
- call upon any expert or other person whose advice appears necessary.
Article R412-10
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Committee for the Protection of New Plant Varieties shall have a Secretariat
General. The Secretary General shall be appointed by order of the Minister of
Agriculture on the Committee's proposal and after consultation with the
Director General of the National Institute of Agronomic Research.
The
Secretary General shall call upon the assistance of agents recruited by the
Director General of the National Institute of Agronomic Research under the same
conditions as those governing its own agents. Their remuneration shall be drawn
from the special section referred to in Article L.623-16.
Management of the staff shall be assumed by the Secretary General, by
delegation of power from the Director General of the National Institute of
Agronomic Research.
The
Secretary General shall, in particular, have the following duties, in
accordance with the Committees directives and under the authority of the
Chairman, and within the terms of Articles L.412-1 and L.623-1 to L.623-35 and
its implementing legislation:
- to receive, register and examine applications for new plant variety
certificates and oppositions to the issue of such certificates;
- to maintain the various registers relating to the protection of new
plant varieties, to ensure that all acts affecting the ownership of
certificates are recorded and to publish the various notices provided for;
- to keep in contact with all the competent bodies and, in particular,
insofar as concerns questions of denomination, with the National Institute of
Industrial Property and the Office of the International Union Protection of New
Plant Varieties together with the experts to whom the technical examination of
plant varieties is conferred;
- to provide the secretariat for Committee meetings;
- to draw up the new plant variety certificates and to issue all copies of
official documents;
- to inspect or arrange for the inspection of the conservation of all
varieties for which certificates have been issued;
- to plan the budget relating to the special section of the budget of
the National Institute of Agronomic Research referred to in Article L.623-16.
The Secretary General shall draw up the implementing legislation of the
aforementioned provisions which shall be submitted by the Committee to the
Minister of Agriculture. He shall prepare and take part in the negotiation of
international agreements proposed by the Committee to the Minister of
Agriculture and to the Minister of Foreign Affairs to be passed with a view to
facilitating or improving the protection of new plant varieties.
Article R412-11
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Committee for the Protection of New Plant Varieties and its Secretariat General
shall be considered, in accordance with the provisions of Article 30-1 (B) of
the Convention of Paris for the Protection of New Varieties of Plant of 2
December, 1961, as the authority entrusted with the protection of new plant
varieties in France. For this purpose, the Secretariat General of the Committee
shall keep in contact with the International Union for the Protection of New
Varieties of Plants and shall participate in its work.
Article R412-12
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
special section of the budget of the National Institute of Agronomic Research,
created by Article L.623-16, shall be decided upon by the administrative board
of this Institute following consultation with the Committee for the Protection
of New Plant Varieties. The income and expenses of this special section shall
be administered by the Secretary General of the Committee for the Protection of
New Plant Varieties, by delegation of power from the Director of the National
Institute of Agronomic Research and under the same conditions as those applying
to the income and expenses of the Institute.
Article R412-13
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
resources of the special section shall, in particular, consist of the income
from all fees that are chargeable in relation to the protection of new plant
varieties, in accordance with Article L.623-16.
Article R412-14
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
liabilities of the special section shall consist of:
- operational and equipment expenses of the Committee and its
Secretariat General, including staff salaries and travel expenses;
- the costs of technical examinations and, where required, of making
reference collections;
- the financial contribution of France to international organisations
concerned with the protection of new plant varieties ;
- any other expenses resulting from the application of Articles L.412-1
and L.623-1 to L.623-35.
Section
2: Appeals against decisions of the Committee for the Protection of New Plant
Varieties
Article R412-15
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
time limit for lodging an appeal before the Court of Appeal of Paris against
decisions of the Committee for the Protection of New Plant Varieties shall be
one month. Where the petitioner resides outside Metropolitan France, this
period shall be extended by one month if he resides in Europe and by two months
if he resides in any other part of the world.
Article R412-16
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The
time limit for lodging an appeal provided for in the preceding Article shall
run from the date of receipt by the petitioner of notification of the
Committee's decision.
Article R412-17
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Appeals shall be lodged by means of a written request addressed to the senior
presiding judge of the Court of Appeal of Paris by the applicant in person or
by counsel practising at the Court of Appeal or by a attorney-at-law duly
registered at a Bar.
Where
the petitioner is unable to appear in person, he may be represented or assisted
as provided for in the first paragraph of this Article.
Article R412-18
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Where
the appeal is lodged by any person other than the owner of the application for
a new plant variety certificate, the latter shall be implicated by the Senior
Registrar of the Court of Appeal by registered letter with acknowledgement of
receipt.
Article R412-19
(inserted by Decree No. 95-385 of 10 April 1995,
Official Journal of 13 April 1995)
The
Court of Appeal shall render its decision after the Public Prosecutor has been
heard.
Article R412-20
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Any
appeal lodged against decisions of the Committee for the Protection of New
Plant Varieties shall be declared within fifteen days by the Registrar of the
Court of Appeal to the Committee by registered letter with acknowledgement of
receipt.
The
decision rendered by the Court of Appeal on the contested file shall be
notified by the Registrar to the petitioner and to the Committee for the
Protection of New Plant Varieties by the same means.
Article R412-21
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Court Registrar shall send a copy of the decision to the Committee for the
Protection of New Plant Varieties.
This
decision shall ex officio be recorded in the National Register of New Plant
Variety Certificates.
The
decision of the Court of Appeal shall be executed within two months of its
notification.
Chapter III
Industrial Property Council
Article R413-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
There shall be established an Industrial Property Council under the supervision
of the Minister responsible for industrial property. The Council shall have an
advisory role. It shall give its opinion on the matters submitted to it by the
Minister.
Article R413-2
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Industrial Property Council shall be comprised as follows:
1°. The permanent representative of the Ministry of Foreign Affairs;
The permanent representative of the Ministry of the Budget;
The permanent representative of the Ministry of Justice;
The permanent representative of the Ministry of Defense;
The permanent representative of the Ministry of Culture;
The permanent representative of the Ministry of Agriculture;
The permanent representative of the Ministry of Health;
The Director General of the National Institute of Industrial Property;
The Director of the Center for International Industrial Property Studies or his
permanent representative;
The Director General of the National Research Development Agency or his
permanent representative;
2°. Four professors of law;
Four persons representing the interests of employees;
Two inventors or engineers;
Eight persons representing the interests of trade and industry;
The President of the National Society of Industrial Property Agents and four
industrial property attorneys;
Four lawyers;
Four persons competent in respect of industrial property.
The members referred to in the second subparagraph above shall be appointed for
five years by order of the Minister responsible for industrial property.
Article R413-3
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Minister responsible for industrial property shall designate from amongst
the members of the Council a Chairman and a Deputy Chairman.
Article R413-4
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Committee may establish from within its membership temporary commissions to
examine specific matters. It may also, where it deems useful, involve competent
persons in its work in an advisory capacity.
Article R413-5
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The secretariat of the Council shall be provided by the National Institute of
Industrial Property.
Chapter
I: Entry
in the List of Persons Qualified with Respect to Industrial Property
Article R421-1
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The entry of a natural person in the list of persons qualified in industrial
property referred to in Article L. 421-1 shall be subject to compliance with
all of the following conditions:
1°. Possession of a legal, scientific or technical national second cycle
diploma issued by a scientific, cultural and professional public establishment
within the meaning of Act No. 84-52 of 26 January 1984 empowered to issue such
diploma or of a qualification recognized as equivalent in accordance with the
conditions laid down by joint order of the Keeper of the Seals, Minister for
Justice, the Minister responsible for industrial property and the Minister
responsible for higher education;
2°. Possession of a diploma issued by the Center for International Industrial
Property Studies (CEIPI) of the University of Strasbourg or of a qualification
recognized as equivalent in accordance with the conditions laid down by joint
order of the Keeper of the Seals, Minister for Justice, the Minister
responsible for industrial property and the Minister responsible for higher
education;
3°. At least three years of professional experience;
4°. To have passed an examination of competence of which the conditions and
program shall be laid down, for each specialization, by joint order of the
Keeper of the Seals, Minister for Justice, the Minister responsible for
industrial property and the Minister responsible for higher education. The
examinations shall be adapted for the professional representatives before the
European Patent Office.
Article R421-2
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
No person may be entered in the list if:
1°. He has committed acts that have led to a criminal conviction for acts
contrary to honor, honesty or morality;
2°. For acts of the same nature, he has received a disciplinary or
administrative sanction involving dismissal, striking off, removal, withdrawal
of approval or authorization;
3°. He is declared personally insolvent or is subject to other sanction
pursuant to the legislation on judicial settlement, liquidation of assets, personal
insolvency and bankruptcy or under the legislation on the rehabilitation and
judicial liquidation of enterprises.
Article R421-3
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
As set out in Article R. 79 of the Code of Criminal Procedure:
(...) the number 2 bulletin of the police record has been issued;
(...) 24°. To the Director General of the National Institute of Industrial
Property for entry in the list of persons qualified in industrial property and
in the list referred to in Article L. 422-5.
Article R421-4
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 1 I
Official Journal of 24 September 1997)
The reference to the specialization that accompanies the entry of persons
qualified in industrial property may be either that of patents or that of
trademarks, industrial designs, based on professional experience, supplemented
as appropriate by that of engineer or of lawyer, based on diplomas.
Where appropriate, more than one mention may be entered.
An order of the Minister responsible for industrial property may provide for
further specialization mentions if new professional qualifications in
industrial property should arise.
Article R421-5
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 1
II Official Journal of 24 September 1997)
The professional experience referred to in Article R. 421-1 (third indent)
shall be constituted by the exercise as the main occupation of study, advice,
assistance or representation activities with respect to industrial property,
related rights and rights concerning any related matter.
The professional experience shall have been acquired in France in the subject
matter that corresponds to the specialization mention sought and under the
responsibility of a person qualified in industrial property who is entered with
the same mention.
If the experience has not been acquired under the responsibility of such a
person, the board referred to in Article R. 421-6 may, on examination of the
file, admit a candidate to the examination if his experience has been
recognized as equivalent in its content, its scope and its compliance with the
usual standards in the specialization concerned.
Article R421-6
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The board responsible for supervising the examinations referred to in Article
R. 421-1 (fourth indent) shall comprise one magistrate of the judiciary, as
chairman, one university professor teaching private law, one lawyer and four
persons qualified in industrial property. Each member unable to attend shall be
replaced by an alternate.
The conditions for designating the members of the board and their alternates
shall be laid down by joint order of the Keeper of the Seals, Minister for
Justice, of the Minister responsible for industrial property and the Minister
responsible for higher education.
Article R421-7
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The conditions referred to in Article R. 421-1 with regard to diplomas,
training and professional examinations, shall not apply to persons who have
successfully completed a cycle of studies of a minimum duration of three years
or of an equivalent duration of part-time attendance at a university or an
establishment of higher education or in another establishment with the same
level of training and, where appropriate, the professional training required in
addition to such cycle of studies and who holds:
1°. Either a diploma, certificate or other title permitting the exercise of the
profession in a Member State of the European Union issued:
a)By the competent authority of that State and
certifying to training acquired predominantly within the Union;
b)Or by an authority of a third country provided that
an attestation is furnished from the competent authority of the Member State
that has recognized the diploma, certificate or other title certifying to the
fact that its holder has professional experience of at least three years in
that State;
2°.Or full-time exercise of the profession during at least two years during the
preceding ten years in a Member State that does not regulate access to or
exercise of that profession provided that such exercise be attested to by the
competent authority of that State.
Article R421-8
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The treatment referred to in Article R. 421-7 shall be subject to successfully
passing an examination of competence before the board referred to in Article R.
421-6 of which the program and conditions shall be laid down by joint order of
the Keeper of the Seals, Minister for Justice, and of the Minister responsible
for industrial property:
1°. Either where the training of the candidate covers matter that is
substantially different from that contained in the programs for the diplomas
and the professional examination referred to in Article R. 421-1;
2°. Or where one or more of the professional activities of which exercise is
subject to holding such diploma or such examination are not regulated in the
Member State of origin or last residence or are regulated in a different manner
and such difference is characterized by specific training required in the first
Member State covering matter that is substantially different from that covered
by the diploma presented by the applicant.
The list of candidates accepted for the examination shall be drawn up by the
Director General of the National Institute of Industrial Property.
Article R421-9
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The application for entry shall be submitted to the Director General of the
National Institute of Industrial Property. It shall be accompanied by proof
that the conditions laid down in Article R. 421-1 or in Articles R. 421-7 and
R.421-8 have been satisfied.
A receipt for the application shall be issued.
Article R421-10
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 1
III Official Journal of 24 September 1997)
The decision of the Director General of the Institute with regard to the
application for entry, failing which, after decision of the jury in accordance
with Article R 421-5, shall be notified to the concerned party. Refusal shall be reasoned.
Article
R421-11
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Any person entered in the list may at any time request to be removed from the
list.
Any person subject to any of the measures referred to in Article R. 421-2 shall
be removed from the list by the Director General of the Institute. Removal
shall be reasoned and the decision taken after the party concerned has been
enabled to submit his observations.
Article R421-12
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Entries and removals shall be published in the Official Bulletin of Industrial
Property.
The updated list of qualified persons shall be published at the beginning of
each calendar year in the Bulletin.
Section 1: Entry in the List of Industrial Property Attorneys
Article R422-1
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 2 I
Official Journal of 24 September 1997)
Any person qualified in industrial property and entered in the list referred to
in Article R. 421-1 may apply to be entered, with the same notice of
specialization, in the list of industrial property attorneys referred to in the
third paragraph of Article L. 422-1.
The notice “patents” permits action in the procedures referred to in Article R.
612-2. The notice “trademarks, industrial designs” permits action in the
procedures referred to in Articles R. 712-2 and R. 712-13.
However, persons entered with the notice “lawyer” under the procedure set out
in I of Article 36 of the Decree of 1 April 1992 on qualification and
professional organization with respect to industrial property may carry out the
acts defined in Articles R. 712-2 and R. 712-13.
Article R422-2
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 2
II Official Journal of 24 September 1997)
(Decree No. 2002-215 of 18 February 2002 art. 2
Official Journal of 20 February 2002)
Entry in the list referred to in Article R. 422-1 shall be subject to the
following conditions:
1°. To offer to the public the services referred to in Article L. 422-1 or
undertake to do so within three months, either individually or in a group or as
the employee of another industrial property attorney or of a company of
industrial property attorneys;
2°.
To have French nationality or be a national of another Member State of the
European Union, or of another State party to the agreement on the European
Economic Area;
3°. To have a place of residence or a professional establishment
in France;
4°. Provide evidence of the insurance and the guarantee referred to in
Article L. 422-8 or undertake to provide such evidence
within a period of three months; this evidence shall be produced each year
after entry.
Article R422-3
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The application for entry shall be submitted to the Director General of the
Institute. The evidence that the conditions referred to in Article R. 422-2
have been satisfied shall be attached to the application.
Article R422-4
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 2
III Official Journal of 24 September 1997)
The Director General of the Institute shall make the entry, after having heard
the opinion of the National Society of Industrial Property Attorneys. Such
opinion shall be deemed to have been given if the Society does not formulate an
opinion within one month as from having been approached.
Refusal to enter shall be taken on a reasoned decision to be notified to the
party concerned.
The entry of natural persons shall be made in the name of the industrial
property attorney followed by the title of the practice within which he
performs his duties or, in the case of a company, by its registered name or
title.
If the industrial property attorney does not furnish the evidence that he
satisfies the conditions laid down in Article R. 422-2, particularly those
required by item 4 of that Article, he shall be invited by the Director General
of the Institute to regularize his situation within the time limit set forth in
that invitation.
If, on expiry of the time limit referred to in the preceding paragraph, the
person concerned has not regularized his situation, the Director General of the
Institute shall pronounce his suspension, which shall cease to have effect once
the situation has been regularized. Suspension shall be published in accordance
with Article R. 422-66.
A suspension shall also be ordered, in accordance with the conditions laid down
in the preceding paragraphs, with respect to any company that no longer
satisfies the conditions laid down in Article L. 422-7.
The Director General of the Institute shall remove from the list referred to in
Article R. 422-1 any industrial property attorney whose suspension has
continued for more than six months.
Article R422-5
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Any person entered in the list of industrial property attorneys may request to
be removed from the list. He shall be required to do so if he no longer
satisfies the conditions set out in Article R. 422-2. The request shall be
submitted to the Director General of the Institute who shall effect the removal
after having obtained the opinion of the National Society of Industrial
Property Attorneys.
Removal shall be suspended if the case is submitted to the disciplinary board
referred to in Article L. 422-10.
Article R422-6
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Where the profession is exercised as a company, entry of the company in the
special section referred to in Article L. 422-7 shall be applied for
collectively by all the partners. It shall be accompanied by proof of the
filing of the application for entry in the Register of Commerce and Companies.
The Director General of the Institute shall effect the entry as set out in
Article R. 422-4 and shall notify his decision to the registrar responsible for
keeping the Register of Commerce and Companies at the court with which the
corresponding application for entry was filed.
Any decision to remove a company shall be notified, within one month of its
date, to the registrar responsible for keeping the register in which the
company has been entered.
Article R422-7
(inserted
by Decree No. 95-385 of 10 April 1995 Official Journal of 13 April 1995)
The registered capital of an industrial property attorneys company as referred
to in Article L. 422-7(b) may be held, in accordance with Article L. 423-2(e),
by an industrial property attorney for only 25 per cent if the purpose of the
company is to associate one or more industrial property attorneys with other
providers of services carrying out as their main activity one of the following:
1°. Construction of prototypes;
2°. Licensing intermediary services;
3°. Creation of trademarks;
4°.
Funding of innovation.
Section 1bis : Free provision of service by representatives in industrial
property established within the territory of a member State of the European
Community or a State party of the agreement on the European Economic Area
Article R422-7-1
(inserted by Decree No. 2002-215 of 18 February 2002 art. 3 Official
Journal of 20 February 2002)
When a professional person residing in a Member State
of the European Community or in a State that has signed up to the agreement on
the European Economic Area is authorised to represent persons owning industrial
property before the central service of industrial property in that State, they
may use their professional title in France, expressed in one or other of the
languages of that State, to represent persons before the National Institute of
Industrial Property, once their title has been certified by the competent
authority of the State in which they are established.
When the exercise of the profession in the State where
the party concerned is established does not depend on the possession of a
regulated title, the professional person must provide the National Institute of
Industrial Property with proof, in the form of a certificate from the competent
authority of the State, that they have habitually practised in such a capacity
for at least two years in the course of the last ten years.
Article R422-7-2
(inserted
by Decree No. 2002-215 of 18 February 2002 art. 3 Official Journal of 20
February 2002)
The
professionals mentioned in Article R. 422-7-1 shall undertake, in the exercise
of their activity in France, to respect the rules set forth in Articles L.
422-8 et R. 422-52 to R. 422-54. They shall be subject to the provisions of
Articles R. 422-56 to R. 422-66 and the sanctions set forth in Article L.
422-10 shall be applicable to them.
Nevertheless, the disciplinary measure of temporary or definitive
prohibition shall be replaced by a sanction with the effect of temporarily or
definitively prohibiting them from exercising professional activities in
France. The Disciplinary Board can ask the competent authority of the State of
origin of the communication professional information on the parties concerned.
It shall inform the latter authority of all decisions made. These
communications shall not compromise the confidential nature of the information
provided.
Section 2: The National Society of Industrial Property Attorneys
Article R422-8
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The natural persons entered in the list of industrial property attorneys shall
constitute the National Society of Industrial Property Attorneys referred to in
Article L. 422-9.
Article R422-9
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The Society shall establish its rules of procedure. They shall enter into force
following approval by a joint order of the Garde des sceaux, Minister
for Justice, and the Minister responsible for industrial property.
Article
R422-10
(Decree
No. 95-385 of 10 April 1995 Official Journal of 13 April 1995)
(Decree No. 97-863 of 17 September
1997 art. 2 IV Official Journal of 24 September 1997)
The General Assembly of the Society shall elect for two years from
amongst its members, by a secret ballot, an office comprised of nine persons,
including a President, three Vice Presidents, a Secretary, a Treasurer and
three members. The ballot shall be by voting for a single person for the
functions of President, Secretary and Treasurer. The Vice Presidents and the
other members, respectively, shall be elected by voting for more than one
member. The conditions for the ballot shall be laid down in the Rules of
Procedure.
With the exception of the establishment of the Rules of Procedure, of the vote
for the annual budget of the Society and of other attributions reserved, where
appropriate, for the General Assembly by the Rules of Procedure, the Office
shall carry out the administration of the Society. It shall ensure application
of resolutions adopted in the General Assembly. It may have at its disposal a
permanent secretariat and may set up standing or temporary committees for which
it shall define the tasks.
Article R422-11
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
In addition to any gifts or legacies made to it and participation in various of
its costs, the resources of the Society shall derive from the annual membership
fees.
The basic rate for the annual membership fee shall be the same for all members.
This shall be supplemented on a basis which takes into account the turnover
achieved, where appropriate, by companies.
The method for calculating and the conditions for
collecting the membership fees shall be laid down in the Rules of Procedure of the
Society. The rate shall be laid down each year by the General Assembly.
Section 3 Exercise in the Form of a Company
Sub-Section 1: Professional Civil Act Companies
Article R422-12
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Two or more industrial property attorneys entered in the national list of
industrial property attorneys referred to in Article L. 422-1 may together
constitute a professional civil law company for the exercise in common of the
profession of industrial property attorney.
However, the company may be constituted, exclusively or not, by natural persons
not entered in the national list of industrial property attorneys but who meet
the conditions required to be entered in that list, on condition that each such
person applies for his entry at the same time, at the latest, as that of the
company.
Article R422-13
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The company shall be constituted subject to the suspensive condition of its
entry in the national list of industrial property attorneys. In accordance with
the third paragraph of Article 1 of Act No. 66-879 of 29 November 1966, it
shall enjoy legal personality as from such entry.(Decree No. 95-385 of 10 April
1995 Official Journal of 13 April 1995)
Article R422-14
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The application for registration of the company in the Register of Commerce and
Companies shall be drawn up in accordance with the conditions set out in
Article 15 of Decree No. 84-406 of 30 May 1984 relating to the Register of
Commerce and Companies.
Notwithstanding Articles 22, 24 and 26 of Decree No. 78-704 of 3 July 1978, the
company shall be exempted from publishing the notice referred to in those
Articles in a journal of statutory announcements.
The notices published in the Official Bulletin of Civil and Commercial Announcements
shall contain the particulars referred to in Article 73 of the Decree of 30 May
1984, except for those relating to the surname and forenames of the partners
liable indefinitely and jointly for the company debts.
Article R422-15
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
If the statutes are established by means of simple contract, a sufficient
amount of originals shall be drawn up to communicate one copy to each partner
and to satisfy the provisions of Article 7 of Decree No. 78-704 of 3 July 1978
and those of this subsection.
Article R422-16
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Notwithstanding the provisions that are to be included in the statutes
according to Articles 10 and 11 of Act No. 66-879 of 29 November 1966, those
which they may contain under Articles 8, 14, 15, 19, 20 and 24 of that same
Law, concerning, respectively, the distribution of shares, the administrators, the
company name, the distribution of profits, the company debts, the assignment of
shares in the company and the dissolution of the company, and of Articles R.
422-6 and R. 422-7, the statutes shall be required to state:
1°. The surnames, forenames and places of residence of the partners, their
marital status and, where appropriate, the existence of any clauses, acts
invokable against third parties or decisions restricting the free disposal of
their assets;
2°. The title of each of the partners;
3°. The duration for which the company is formed;
4°. The address of the registered offices;
5°. The nature and separate evaluation of each of the contributions made by the
partners;
6°. The amount of the company capital, the nominal amount, the number and
distribution of company shares represented by that capital;
7°. Confirmation of the full or part liberation, as appropriate, of the
contributions that are comprised in the company capital;
8°. The majority required in order to transfer or assign shares to third
parties;
9°. The amount of the partnership shares allocated to each subscriber to the
company;
10°. The special provisions referred to in Articles R. 422-20 and R. 422-21.
Article R422-17
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The following may constitute contributions to a professional civil law company,
in ownership or in possession:
1°. All intangible rights, whether movable or real, particularly, where
appropriate, the right for a partner to present the company as successor to his
customers;
2°. All documents and archives and, in general, all movable objects for
professional use;
3°. The buildings or premises used for exercise of the profession;
4°. All amounts in cash.
The contributions in diligence to the company made by the partners which, by
reason of Article 10 of the Act of 29 November 1966, do not contribute to
building the capital may give rise to an allocation of partnership shares.
Article R422-18
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The shares in the company may not be given in security.
Their face value may not be less than FRF 1,000.
The partnership shares allocated to the subscribers shall not be assignable.
They shall be cancelled when their holder loses his capacity as partner for any
reason whatsoever.
Article R422-19
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The shares of the company that correspond to the contributions in cash shall be
paid up, on subscription, to at least one half of their face value.
The paying up of the remainder should be effected, in one or more payments,
either on the dates specified in the statutes or by a decision of the assembly
of partners, and at the latest within two years as from entry of the company in
the national list of industrial property attorneys.
Within eight days of receipt, the funds from cash subscriptions shall be
deposited for the account of the company with the Deposit and Consignment
Office, with a notary or in a bank.
Withdrawal of such funds shall be carried out by an authorized representative
of the company on simple proof of entry of the company in the national list.
Article R422-20
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The statutes shall lay down the management and determine the powers of the
managers in accordance with the conditions of Article 11 of the Act of 29
November 1966.
Article R422-21
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Decisions that go beyond the powers of the managers shall be taken by the
partners meeting in assembly.
The assembly shall be convened at least once a year. It shall also be convened
at the request of at least one half of the partners, whereby the request shall
state the agenda.
The conditions for convening the assembly shall be laid down in the statutes.
Article R422-22
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The statutes may afford a reduced number of votes to partners who exercise
their profession on a part-time basis only.
They may also allocate a reduced number of votes to partners for as long as the
company shares they hold have not been fully paid up.
Each partner may be represented by another partner holding written powers. A
partner may not hold more than two powers.
Article R422-23
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Subject to the provisions of Article 19 of the Act of 29 November 1966 and
those of this subsection that impose special conditions with respect to
majority, decisions shall be taken on a majority of the votes held by the
partners that are present or represented.
However, the statutes may require a larger majority or even unanimity of the
partners for all decisions or for those decisions only that they enumerate.
Article R422-24
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Amendment to the statutes and, in particular, prolongation of the company shall
be decided on a majority of three quarters of the votes of all partners.
However, an increase in the competence of the partners shall require a
unanimous decision.
Article R422-25
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The deliberations of the partners shall be subject to the provisions of
Articles 40 to 47 of Decree No. 78-704 of 3 July 1978.
The assembly may deliberate validly only if at least three quarters of the
partners are present or represented. If the quorum is not achieved, the
partners shall be reconvened and the assembly shall deliberate validly if two
partners at least are present or represented.
The register referred to in Article 45 of Decree No. 78-704 of 3 July 1978
shall be numbered and initialed by the registrar responsible for keeping the
Register of Commerce and Companies in which the company is registered.
Article R422-26
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
At the end of each financial period, the manager or managers shall prepare,
under the conditions laid down by Article 1856 of the Civil Code, a written
general report comprising the annual accounts of the company and a report on
the outturn.
Within two months following the end of the financial period, the documents
referred to in the preceding paragraph shall be submitted for approval to the
assembly of partners.
To that end, those documents shall be communicated to each partner, together
with the wording of the proposed resolutions, at the same time as the convening
of the assembly and at least 15 days before its meeting.
Article R422-27
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Each partner may, at any time, take cognizance, under the conditions laid down
in Article 48 of Decree No. 78-704 of 3 July 1978, of the annual accounts of
the company and of the report on the outturn, together with all the registers
and accounting documents in the possession of the company.
Article R422-28
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The provisions of Articles 49, 50 and 52 of Decree No. 78-704 of 3 July 1978
shall apply to assignments and transfers of shares in the company and to their
publication.
Article R422-29
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
In the case referred to in the third paragraph of Article 19 of the Act of 29
November, 1966, the price of the shares in the company shall be determined,
failing agreement between the parties, in accordance with the provisions of
Articles 1843-4 of the Civil Code and 17 of Decree No. 78-704 of 3 July 1978.
Where the assigning partner refuses to sign the instrument assigning his shares
at the price thus fixed, his refusal shall be overridden two months after he
has been summoned to do so by the company without result, either by registered
letter with notification of receipt or by process served by bailiff; the
assignment price of the shares shall be consigned at the responsibility of the
assignee.
If assignment concerns the totality of the company shares belonging to a
partner, that partner shall lose his capacity as partner on expiry of the time
limit laid down in the preceding paragraph.
Subject to the rules for the protection and representation of incapacitated
persons, the provisions of Article 19 of the Act of 29 November 1966 shall
apply to the assignment of the company shares of a partner subject to statutory
prohibition or to tutelage of adults; the six-month period referred to in the
third paragraph of that Article shall be extended to one year in such case.
Article R422-30
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
In the event of the death of a partner, the time limit for assignment referred
to in the second paragraph of Article 24 of the Act of 29 November 1966 shall
be laid down as one year as from the date of death.
It may be renewed by agreement between the successors in title of the deceased
partner and the company reached in accordance with the provisions on the
assignment of company shares in the first paragraph of Article 19 of the Act of
29 November 1966.
If consent to the preferential allocation referred to in the second paragraph
of Article 24 of the Act of 29 November 1966 is refused and if the successors
in title of the deceased partner have not assigned the company shares of their
originator on expiry of the time limit allocated to them, the company shall
have one year in which to acquire or have acquired the company shares of the
deceased partner.
Article R422-31
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
If the instrument assigning the company shares is drawn up in the form of a
private deed, the necessary number of originals shall be produced in order to
hand a copy to each party and to comply with the provisions of Article R. 422-28.
In addition, one of the originals of the private deed or a copy of the
instrument of assignment of the shares, if it is in the form of an
authenticated deed, and possibly any instrument amending the statutes of the
company, shall be communicated to the Director General of the National
Institute of Industrial Property who, if necessary, shall make the relevant
amendment to the entry of the company in the national list of industrial
property attorneys.
Article R422-32
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
If a partner wishes to withdraw from the company, he shall notify his decision
to the company by registered mail with notification of receipt.
The company shall have six months as from notification in order to notify to
the partner, in the same form, draft assignment of his shares to a partner or
to a third party entered in the list of industrial property attorneys or who
satisfies the conditions for entry in that list or a draft redemption of those
shares of the company. Such notification shall imply a commitment by the
assignee or by the company that acquires the title.
In the event of failure to agree on the assignment price, Article R. 422-29
shall apply.
Article R422-33
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
If a partner has been struck off, pursuant to Section 5 of this Chapter, for a
period of six months or more, he may be excluded from the company by a decision
taken on a majority of the other partners.
The excluded partner shall have a period of six months, as from notification
made to him of the decision by registered mail with notification of receipt, in
order to assign his shares under the conditions laid down in Articles 19 and 21
of the Act of 29 November 1966 and in Articles R. 422-28 and R. 422-29.
If, on expiry of that period, no assignment has been made, action shall be
taken in accordance with the provisions of the third paragraph of Article 19 of
the Act of 29 November 1966 and of Article R. 422-29.
Article R422-34
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The shares of the partner definitively removed from the national list of
industrial property attorneys shall be assigned under the conditions set out in
Article R. 422-33.
Article R422-35
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The number of partners may be increased during the lifetime of the company with
or without an increase in the assets of the company.
Article R422-36
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Any partner who receives for consideration or gratuitously a right of
representation of a customer transmitted by a third party shall be obliged to
contribute enjoyment thereof to the company and it shall be for the company to
create and issue to him the new company shares that correspond to this
additional contribution.
Article R422-37
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
If the reserves constituted by means of non-distributed profits or the plus
value on assets due to the diligence of the partners so permit, the capital of
the company shall be periodically increased. The shares in the company created
for that purpose shall be distributed between all partners, including those who
have contributed only their diligence.
However, the statutes may provide for cases and conditions under which a
partner may be excluded from the allocation of shares in the company that had
been newly created to represent an increase in the capital.
Article R422-38
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Any decision to prolong the company shall be immediately brought to the notice
of the Director General of the National Institute of Industrial Property,
accompanied by a copy of the full minutes of the meeting, or of the instrument
showing prolongation, constituted by one of the originals if the instrument is
a private deed or by a copy if it has been drawn up in authenticated form.
Article R422-39
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
In the event of amendment of the statutes, a copy of the full minutes of the
meeting or of the amending instrument constituted by one of the originals if
the instrument is in the form of a private deed or by a copy if it has been
drawn up in authenticated form, shall be communicated within two months to the
Director General of the National Institute of Industrial Property and to the
President of the Society of Industrial Property Attorneys.
If the new provisions of the statutes do not comply with the legislative or
regulatory provisions and if regularization is not carried out within the time
limit stipulated by the Director General of the National Institute of Industrial
Property, the latter, after having invited the company to submit its oral or
written observations, shall remove it from the national list of industrial
property attorneys under the conditions set out in Articles R. 422-61 to R.
422-63.
The modification shall be published as provided for in Articles 22 et seq. of
Decree No. 84-406 of 30 May 1984.
Article R422-40
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Premature dissolution of a company shall require the decision of at least three
quarters of the partners.
The provisions of Articles 8 to 16 of Decree No. 78-704 of 3 July 1978 shall
apply.
A copy of the instrument appointing the liquidator shall be communicated by the
latter to the Director General of the National Institute of Industrial Property
and to the President of the Society of Industrial Property Attorneys. The
liquidator shall inform them of the closing of the liquidation.
Paragraph 2 Liberal Partnerships
Article R422-41
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The provisions of this subsection shall govern partnerships constituted
pursuant to Title I of Act No. 90-1258 of 31 December 1990 with the aim of
exercising in common the profession of industrial property attorney. Such
partnerships shall bear the designation of professional partnerships of
industrial property attorneys.
Article R422-42
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Instruments and documents intended for third parties, in particular letters,
invoices, announcements and miscellaneous publications originating from a
professional partnership of industrial property attorneys shall show the name
of the partnership immediately preceded or followed, as appropriate:
— by either the notice “limited liability professional partnership of
industrial property attorneys” or the notice “SELARL of Industrial Property
Attorneys”;
— or the notice “professional partnership in the form of a stock company of
industrial property attorneys” or the notice “SELAFA of Industrial Property
Attorneys”;
— or the notice “professional partnership limited by shares of industrial
property attorneys” or the notice “SELCA of Industrial Property Attorneys”,
together with the statement of the capital stock, of the address of the
registered offices, a notice of its entry in the list of industrial property
attorneys and its registration number in the Register of Commerce and
Companies.
Article R422-43
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
One and the same natural or legal person exercising the profession of
industrial property attorney may not, pursuant to the third paragraph of
Article 5 of Act No. 90-1258 of 31 December 1990, hold a participation in more
than two professional partnerships of industrial property attorneys.
Article R422-44
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The holding of shares in a professional partnership of industrial property
attorneys shall be prohibited for any person who has been removed from the list
of industrial property attorneys or the list of patent agents referred to in
Article 3 of Decree No. 76-671 of 13 July 1976 as amended, relating to
professional qualifications with regard to patents for invention and
establishing the organization and disciplinary arrangements for the profession
of patent agent.
Article R422-45
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
A partner may exercise the profession of industrial property attorney only
within a single professional partnership and may not exercise the profession
individually or within another company of any form whatsoever.
Article R422-46
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The professional partnerships of industrial property attorneys shall be subject
to the provisions on obligations, guarantee and discipline applicable to the
profession of industrial property attorney.
However, partnerships may not be subject to disciplinary procedures
independently of those initiated against attorneys who are partners within such
partnerships exercising that profession.
Article R422-47
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
A partner in a professional partnership set up for the exercise of the
profession of industrial property attorney may be excluded from that
partnership in the event of definitive disciplinary sanction with the effect of
temporarily prohibiting him from exercising the profession for a period of more
than six months.
Such exclusion shall be decided by a unanimous decision of the other partners.
Article R422-48
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Any partner who has been excluded shall have a period of six months as from
notification made to him of the decision by the partnership to assign his
partnership shares or stock, by means of a registered letter with notice of
receipt.
During that period, the excluded partner shall forego the remuneration deriving
from exercise of his professional activity and his right to attend and vote in
meetings of the partnership. He shall maintain his right to receive the
dividends distributed with regard to his partnership shares or stock. The
partnership shares or stock of the partner who has been excluded shall be
purchased either by an acquirer who has been approved by the partnership or by
the partnership which shall then reduce its capital. Failing amicable
agreement, the buying back price of the partnership shares shall be determined
under the conditions laid down in Article 1843-4 of the Civil Code.
Article R422-49
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
A partner prohibited from exercising on a temporary basis shall keep, for the
duration of his sanction, his capacity of partner with all the rights and
obligations deriving therefrom, with the exclusion of his right to remuneration
paid by the partnership in relation to the exercise of his professional
activities.
In the event of a prohibition to exercise the profession imposed on all the
partners in a professional company, the professional acts and the management of
the company shall be undertaken by one or more industrial property attorneys
designated by the National Society of Industrial Property Attorneys.
Paragraph 3 Trading Partnerships
Article R422-50.
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
The constitution of a trading partnership of industrial property attorneys
referred to in Title II of Act No. 90-1258 of 31 December 1990 shall give rise
to the publication of a notice in a journal authorized to publish statutory
announcements at the place of its registered offices, if such exists, or at the
place of exercise of each of the partners. The notice shall contain the
identity of the partners, the designation, the purpose, the address of the
registered offices, if such exist, and that of the places of exercise.
Article R422-51
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
Membership of a trading partnership, with the designation of the partnership,
shall be notified in the professional acts and in the correspondence of each
partner.
Section 4: Professional Obligations
Article R422-52
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
An industrial property attorney shall exercise his profession with dignity,
honor, independence and probity and shall comply with the laws and regulations
governing his society.
Article R422-53
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 2 V
Official Journal of 24 September 1997)
An industrial property attorney shall refrain from any canvassing or
advertising not authorized by Article R. 423-2.
He shall draw up an indicative schedule of fees, as distinct from the refunding
of costs and fees to be paid. The detailed schedule of such charges shall be
communicated to any person so requesting.
Article R422-54.
(inserted by Decree No. 95-385 of 10 April 1995
Official Journal of 13 April 1995)
An industrial property attorney:
1°. Shall refrain within the same case from advising, assisting or representing
customers having opposing interests;
2°. Shall observe professional secrecy: secrecy shall extend in particular to
consultations given to his customer, to professional correspondence and to all
documents drawn up in that connection;
3°. Shall pursue the case for which he is responsible up to its completion,
unless his customer releases him from it;
4°. Shall report on the execution of his brief, particularly with respect to
the handling of funds; to that end, he shall submit to his customer an account
that clearly shows his fees, on the one hand, and the costs and charges, on the
other: this account shall show the amounts that have been previously received
as advances or payment;
5°. Shall return to the customer who has released him or to the latter’s new
representative all documents of an official nature in his possession and all
the elements and information required to execute or complete the task entrusted
to him; the documents should be handed out within a period of time that will
avoid any preclusion or prescription.
Section
5: Disciplinary Measures
Article R422-56
(Decree No. 95-385 of 10 April 1995 Official
Journal of 13 April 1995)
(Decree No. 97-863 of 17 September 1997 art. 3
Official Journal of 24 September 1997)
(Decree No. 2002-215 of 18 February 2002 art. 4
I Official Journal of 20 February 2002)
The disciplinary board, referred to in Article L. 422-10,
to hear breaches of the obligations of industrial
property attorneys,
shall comprise seven members:
1°. A magistrate of the judiciary, as Chairman, appointed on a proposal by the
first President of the Court of Appeal of Paris;
2°. A member of the Conseil d'Etat appointed on a proposal by the Vice
President of the Conseil d'Etat;
3°. The President of the National Society of Industrial Property Attorneys or
his alternate designated by him for the duration of his term of office from
among the vice presidents of the Society;
4°. Two industrial property attorneys, chosen from a list of eight proposed candidates,
not members of its Office, by the National Society of Industrial Property
Attorneys;
5°. Two qualified persons.
The members designated in accordance with items 1, 2,
4 and 5 shall have alternates appointed under the same conditions.
The disciplinary board also hears breaches of the obligations
of other persons allowed to exercise activities within the scope of
industrial property attorney.
Article
R422-57
(Decree No. 95-38