Brexit: Deal Or No-Deal? Data is the Question
With the Brexit deadline looming ahead on 31 October 2019, the situation seemingly reaches new levels of uncertainty every day. Last week, the U.K. Supreme Court’s eleven judges unanimously ruled that Prime Minister Boris Johnson’s decision on 9 September 2019, to prorogue Parliament was “unlawful and void.” Parliament will therefore carry on its Brexit discussions…with now only thirty days left to finalise a deal. Although Parliament, while still in session, passed a law to extend the Brexit deadline, such an extension would still require approval by the EU.

So how should companies prepare, on either side of the Channel (and beyond), in the coming months for the more-likely-by-the-day-scenario of No-Deal?

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K&L Gates ranked “Excellent” with Etienne Drouard & Claude-Etienne Armingaud.

Source: Leaders League

On July 2, 2018, the French Data Protection Authority (“Commission Nationale de l’Informatique et des Libertés” or “CNIL”) published its yearly thematic guidance for the priority axes of its control activities, notably further to the entry into force of the recent General Data Protection Regulation (“GDPR”).

As for the previous periods, the CNIL is expecting to launch 300 dawn-raids, either on premises or online, in order to control compliance of companies subject to French and European data protection regulations, notably on newly introduced aspects relating to the implementation of GDPR (right to portability, data protection impact assessments…).

One of the new aspects of GDPR also includes the joint control operations by several EU supervisory authorities.
The themes which will guide the CNIL’s actions over the following months will include:

Recruitment operations
While the development of big data solutions and AI-assisted recruitment, through the use of algorithm offer the vast possibility to assess the applicants and predicts their adequacy for the position on the basis of pre-defined criteria, such technologies are also likely to impact a broad number of data subjects and subject them to arbitrary or opaque decision making outcomes. The CNIL will therefore target the transparency and the selection requirements, as well as retention periods for the surrounding meta data.

Real estate documentation
Fair home access is a key concern of our times. French Decree no.2015-1437 dated 5 November 2015 aims at protecting tenants with regard to information which may be requested. However, almost three years after this decree, it seems that asking additional documentation remains common practice, including sensitive data such as medical files. The lack of proportionality between the documents requested and the purposes of the processing may affect the compliance of realtors, who will be a priority control target.

Connected e-ticketing services
The MAPTAM Act allowed for local territorial administration to outsource the parking ticket process and the automation thereof. However, several complaints emerged since the beginning of the year from data subjects who perceived a decrease in their protection under the data protection framework. As such, the CNIL will also target the conditions under which the outsourcing operations have been performed and the conditions for use, retention and safeguarding of the data subjects’ information.

While the guidance addresses the control aspects of its activities, the CNIL also mentioned that the follow up to such controls, notably in terms of sanctions against the controlled companies, would be assessed at a later stage and will take into consideration good faith efforts initiated by targeted companies.

As a consequence, it remains a priority to validate a sound action plan to reach compliance with GDPR undertakings by the end of this year for all impacted companies.

The French Privacy team of K&L Gates remains available to assist you in your implementation and evaluation of your GDPR compliance strategy.

First published on K&L Gates French Privacy Alert

The French Autorité des Marchés Financiers has recently published a synthesis of the contributions it received in response to its public consultation on Initial Coin Offerings (ICOs) to obtain stakeholder views on how these new types of blockchain offerings might be regulated.

The consultation included a presentation of ICOs, a warning on the risks they present, a legal analysis of ICOs with respect to the rules overseen by the AMF and the regulatory options proposed by the AMF. Respondents were invited to give their views on all of these points.

The English version of the synthesis can be found here, the French version here and our previous coverage of the consultation can be found here.

First published on K&L Gates Fintech Law Blog.

On 26 October 2017, France’s Financial Markets Authority, the “Autorité des Marchés Financiers” (“AMF”), published a discussion paper focusing on initial coin offerings (“ICOs”) that highlights the (many) dangers that arise from these unregulated transactions and discusses the regulation options that it currently foresees.
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The French Act no.2016-1691 dated 9 December 2016 on Transparency, Anti-Corruption and Modernization of Economic Life (Or “Sapin II” – see our compliance coverage here) empowered the Government to amend the regulatory framework to facilitate the transmission of certain financial securities through blockchain technology 1)Article 120 of Sapin II “The Government may by way of executive orders within the 12 months following this Act take the measures necessary to (…) … Continue reading

In order to prepare such executive order, the Ministry of Finance initiated last Spring a public consultation, whose results were made public on 30 August 2017.
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References

References
1 Article 120 of Sapin II “The Government may by way of executive orders within the 12 months following this Act take the measures necessary to (…) amend the regulatory framework applicable to securities in order to allow the representation and the transmission (via a shared electronic recording device) of securities that are not admitted to the operations of a central depositary or a system of payment and delivery of financial instruments.”

In view of the strong international dimension, notably European, of commercial issues related to trademarks, the economic players do not limit the scope of their protection to one single national territory anymore. On the contrary, the current trend is to multiply of the trademarks filings, which often leads to a variety of protections, for a same sign, through a national trademark, a European Union (EU) trademark and an international trademark.

However, in France, the jurisdiction of the courts varies depending upon these different titles, and thus requires, prior to introducing an action, adopting an actual procedural strategy. The Commercial Division of the French Supreme Court, in a decision dated 6 September, 2016 1) Commercial Division of the French Supreme Court, 6 September 2016, No.15-29.113 , confirmed these strategical issues relating to the choice of the forum election. Indeed, according to this decision, limiting the scope of a proceeding to French trademarks becomes a real advantage (1.), which could lead, in fine, to a new equilibrium for trademark litigation in France (2.)
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References

References
1 Commercial Division of the French Supreme Court, 6 September 2016, No.15-29.113