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ORIGINAL FRENCH ARTICLE: Justice : comment la loi Macron organise l’impunité patronale


Justice: how the Macron law grants out impunity to bosses

Translated Wednesday 18 March 2015, by Adrian Jordan

One the one hand, the socialist powers try to stop unions or journalists from putting their noses in the affairs of employers; on the other, they intend to lighten heavy sanctions on employers. Though that great mechanism sometimes errs, the objective of the government leaves little doubt: freeing the hands of the “creators” of jobs.

In the face of public outcry, the government prudently went into reverse. There is an article slipped discretely into the Macron law project which lit the fuse: under the guise of fighting against industrial espionage, the text prescribed a three year prison sentence and fine of 375,000 euros for anyone violating a “business secret”. A very vague concept which opens the doors wide to abuse: a unionist alerting the press of possible redundancies, a journalist denouncing the lobbying of some multinational, could be prosecuted by an over-zealous judge.

The actions by journalists of the UGICT-CGT (union) and NGOs have been well taken (for the moment) against the law, discretely buried by Bruno Le Roux, leader of the PS group in the Assembly: “There is a dual debate: the business secret which should protect our businesses, and the protection of sources. I hope the two strong measures will be examined concomitantly in the bill.; clearly, this has not happened.” Nonetheless, the debate is far from closure. The offensive against this shielding of information inside companies is now taking a European approach.


A proposed directive on business secrets issued by the European Commission in November 2013 now circulates amid general indifference. According to the text, companies’ information is considered secret when it is not generally known by people (…) normally engaged in the genre of information in question”, and it has “a commercial value”. That is to say the text has a wide ambit, from patents to accounting documents. In principle, the sanctions – which remain to be defined by member states – would not apply in cases of “legitimate use of the right of freedom of expression and information”, but that definition is too vague to be a real safeguard - leaving the investigating judge to say whether the leak is “legitimate” or not... The law is not a bolt from the blue. “It works well to defend big organisations, the Monsantos, pharmaceutical laboratories, food agriculture groups”, confirms Pascal Durand, Green MEP (“Mediapart”, 29 January). “There are some calling for this law, who are prepared to fight, guided by employers’ lobbies.


In France, bosses are starting to lose the battle but the war is far from finished. Especially as the Macron law project gives them complete satisfaction, even when purged of the article concerning business secrets. The objective being followed by the government is clear: to guarantee minimal judicial “harassment” for bosses, under the pretext of giving them breathing room, which will incite them to create jobs. This accommodation is also written in black and white in the preamble of the bill. The text envisages that “sanctions should be the last resort”, progressing through “phases of injunction and warnings”. The government also intends to decriminalise the offence of obstruction (allowing for good functioning of a works council or an HSC), so as to “better guarantee the smooth and normal functioning of workers’ representative bodies” - plainly an understatement. Up to now, the offence of obstruction could be punished by a year’s imprisonment, rarely imposed in reality, but carrying significant symbolic weight. Starting tomorrow, it will punishable only by a fine. Foreign bosses currently hesitate to invest their precious capital in the Hexagon (France), petrified by the prospect of a prison stay.


More generally, all government policies aim at limiting penal sanctions, starting today with the health and safety inspectors’ initiative, in favour of administrative sanctions, which will be administered by DIRECCTE (Regional Directorate for Enterprise, Competition, Consumption, Work and Employment). This action concerns health and safety inspectors, like Julien Boeldieu, national secretary of SNPEFP-CGT: “DIRECCTE agents are directly responsible to the administration. We health and safety inspectors act, on the contrary, with real independence. Besides, administrative procedures are not public: clearly, everything will take place between the employer and officials in the DIRECCTE office. It will be open to haggling, with the objective of finding sanctions convenient for the bosses.”


Will the multinationals eventually be accountable for scandals involving their sub-contractors? The question was posed with dramatic acuity in April 2013, the time of the collapse of the Rana Plaza building, housing workshops of big clothing brands (Benetton, Camaïeu, etc.). NGOs and unions have acted since then to ensure the big groups stop avoiding the fallout. A bill proposed by Green party deputies in November 2013 and principally supported by Communist deputies, called for the establishment of an “obligation of vigilance” for the multinationals regarding their subsidiaries and sub-contractors: in case of “damage and risk to health, the environment and fundamental rights”, the parent company could be sued. Alas! The efforts of the business lobbies strongly opposed to the bill seemed to come to fruition: the scrutiny of the bill by the National Assembly was shelved by Socialist deputies, supported by the government, under the pretext that the text was “too complicated”.


Numerous drafts of the Macron law passed under the radar of the media, among those article 34, spotted by “le Canard enchaîné” (28 January edition), which aims to “lighten the terms of taxation” on the distribution of bonus shares by companies. Clearly, the authors of the text wish to halve the “burden” weighing down the happy beneficiaries. Today, the holder of a bonus share worth 100 euros pays 42.71 euros tax on income, explains “le Canard”; if the article is voted in, they will pay no more than 20.21 euros. At the same time, the rate of social security contributions paid by the companies will be diminished. Officially, the aim is to encourage the growth of start-ups, which are adicted to distribution of free bonus shares; the problem is the law would apply to any firm, starting with the multinationals on the CAC 40. “There would be a windfall effect: part of big business’ directors’ pay would fall into this tax-free system”, rightly denounced by Socialist Karine Barger.

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