Legal news

The judicial appointment of a provisional administrator is an exceptional measure traditionally permitted only when two cumulative conditions are met: the inability of the company to function normally and the existence of an imminent threat to its survival or operations (Cass. com., February 6, 2007, no. 05-19.008). Furthermore, the applicant must demonstrate a legitimate interest, which the courts assess strictly (Cass. com., February 14, 1989, no. 87-13.719). In a recent case (Cass. com., May 7, 2025, no. 23-20.471), two investment companies, acting as creditors of a company managed by their former executive, requested the appointment of a provisional administrator. The court of appeal rejected their request, and an appeal to the Court of Cassation was filed. The Court rejected the appeal, not by disputing whether the substantive conditions were met, but by substituting a new legal basis: “A creditor of a company does not have standing to request the appointment of a provisional administrator.” This ruling introduces a new admissibility condition based not only on legitimate interest but also on the applicant’s legal status.

Until now, case law had suggested that even non-shareholders could initiate such proceedings, provided they had a legal connection with the company (Cass. com., February 16, 1988, no. 86-16.241; Cass. 3e civ., January 17, 2019, no. 17-26.695). Creditors were thus allowed to act, provided they demonstrated legitimate interest and the two substantive conditions were fulfilled. The decision of January 22, 2025, had even reaffirmed this view, stating: “Any person demonstrating a legitimate interest has standing to request the appointment of a provisional administrator” (Cass. com., January 22, 2025, no. 22-20.526).

This new requirement of legal standing, rather than merely a legitimate interest, raises numerous questions. What about bondholders? Do they still have standing despite their special creditor status? What about dismissed directors—can they still request an appointment if they act in the company’s interest? And what about employees, who may also be considered creditors in some cases? Does this decision exclude them from acting? This change effectively transforms what was previously an open action into a restricted one, potentially excluding key stakeholders from corporate governance during times of crisis.

In some situations, the appointment of a provisional administrator is the only effective remedy to overcome deadlock or fraudulent management. By significantly restricting who has standing to request this measure, the Court undermines access to it. A clarification of the applicable regime is now necessary, whether through further case law or legislative intervention. With this decision, the Court of Cassation establishes a new requirement of legal standing, excluding creditors from seeking the appointment of a provisional administrator. This strict position marks a break from earlier case law and raises numerous practical uncertainties, particularly for “atypical” creditors such as bondholders, employees, or dismissed directors. A prompt clarification of the scope of eligible applicants is now urgently needed.

Cabinet BRAHIN, Advokatfirma i NICE, Lawyers in NICE

Camilla Nissen MICHELIS

E-mail : camilla.nissen.michelis@brahin-avocats.com

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Tel :   +33 493 830 876      /    Fax : +33 493 181 437

www.brahin-avocats.com

When the parties to a share transfer agreement interpret the valuation rules differently, an expert may be appointed to assess the value of the equity interests (such as shares or company units). The expert is not responsible for resolving the legal disagreement between the parties. Instead, the expert may provide several valuations, each corresponding to one party’s interpretation of the agreement, and may base the calculations on different accounting periods if the contractual terms are unclear. This method enables the expert to proceed with their work without delay and to maintain a neutral role. It is the judge’s responsibility to determine the common intention of the parties and to select, among the valuations provided, the one that matches this intention. The judge may not require the expert to choose between two legal interpretations, as that would exceed the expert’s authority.

Cabinet BRAHIN, Advokatfirma i NICE, Lawyers in NICE

Camilla Nissen MICHELIS

E-mail : camilla.nissen.michelis@brahin-avocats.com

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Tel :   +33 493 830 876      /    Fax : +33 493 181 437

www.brahin-avocats.com

The Court of Cassation recognizes that shareholders have the right to seek compensation for harm suffered by the company, even when the company itself simultaneously initiates legal proceedings against its director (Cass. com., May 7, 2025, No. 23-24.052, No. 252 FS-B). The shareholders’ action (known as an ut singuli action) coexists with the company’s own action (ut universi), and is not conditional upon the company’s inaction.

In a recent case, both a limited liability company (SARL) and one of its shareholders brought simultaneous actions against the same director for the same harmful conduct. The court of appeal rejected the shareholder’s claim, holding that only the company’s legal representative could bring such an action.

The Court of Cassation overturned this decision: the shareholder’s claim is admissible, provided that they have a legitimate interest in the success of their case, in accordance with Article 31 of the Code of Civil Procedure and Article L. 223-22, paragraph 3 of the Commercial Code.

Legal basis:

• Article 31 CPC: legal action is available to any person who can demonstrate a legitimate interest, unless expressly restricted by law.
• Article L. 223-22 of the Commercial Code: shareholders of an SARL may individually or collectively bring a derivative action against the manager.

This combination of provisions supports the recognition of the ut singuli action. Such an action may be exercised prior to, concurrently with, or after the company’s action, based on distinct claims. This coexistence prevents a director from using the company’s (ut universi) action to shield another director from liability or to downplay the seriousness of their own misconduct (Cass. com., May 7, 2025, No. 23-15.931, No. 253 F-B).

Cabinet BRAHIN, Advokatfirma i NICE, Lawyers in NICE

Camilla Nissen MICHELIS

E-mail : camilla.nissen.michelis@brahin-avocats.com

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Tel :   +33 493 830 876      /    Fax : +33 493 181 437

www.brahin-avocats.com

Introduction

Diplomatic status confers on its beneficiaries a set of privileges and immunities designed to ensure the effective exercise of their functions in international relations.

These protections are based on the 1961 Vienna Convention on Diplomatic Relations, which codifies rules of customary international law.

1. Personal inviolability and property

Diplomats enjoy personal inviolability, which means that they cannot be arrested or detained by the authorities of the receiving State, except in the case of a crime or flagrant offence.

This protection also extends to their property, in particular their personal baggage, which is inviolable except in the event of a crime or flagrant offence.

Diplomats may not be arrested or detained by the French authorities.

2. Immunity from jurisdiction

Diplomatic immunity is a principle of international law which aims to guarantee the security and independence of diplomats so that they can carry out their duties without the risk of infringement of foreign law.

According to this legal axiom, members of the diplomatic corps are exempt from the jurisdiction of the authorities of the host country in which they are present.

Diplomatic agents enjoy immunity from jurisdiction for acts performed in the exercise of their official functions.

This immunity covers their words and writings and continues even after they have ceased to hold office.

In criminal matters, this immunity is absolute and applies regardless of the nature of the acts (jure imperii or jure gestionis).

However, diplomats are obliged to respect the laws and regulations of the receiving State, although this does not entail the automatic loss of their privileges and immunities (see article 31 and article 41 of the Vienna Convention).

This means that they cannot be prosecuted or summoned before French courts for acts carried out in the exercise of their official duties.

There is a rule that all French diplomats must follow.

In the case of international civil servants enjoying diplomatic privileges, such as those of UNESCO, the waiver of immunity may be decided by the Director-General of the organisation.

According to the decision of the Court of Cassation, 1st Civil Chamber, No. 03-83.452, the waiver of diplomatic immunity was requested by the public prosecutor and accepted by UNESCO to allow a criminal investigation into serious facts.

In another judgment, although this was a divorce case, the Court held that immunity from jurisdiction applies only to acts performed by UNESCO officials in the course of their official duties.

The acts relied on by Ms X in support of her application for divorce did not fall into this category, which justified the refusal of immunity.

3. Taxes and tax status

In addition, diplomats are exempt from most French national and local taxes, including income tax and property tax, on their official income and, in many cases, on goods imported for their personal use.

Diplomats may import certain goods for their personal use without paying customs duties or taxes.

In addition, French diplomats and their families are exempt from immigration restrictions, alien registration requirements and compulsory service in France.

In times of international crisis, diplomats and their families benefit from the same repatriation facilities as French diplomatic staff abroad.

These privileges are not granted on a personal basis but are intended to ensure the smooth running of diplomatic missions.

Any abuse of these privileges can result in a diplomat being declared persona non grata and expelled from France, although prosecutions are rare unless immunity is waived by the diplomat’s home country.

Conclusion

In summary, French diplomats enjoy extensive legal protection, tax exemptions and special administrative facilities when serving abroad, in accordance with international diplomatic standards and French law.

Med venlig hilsen / Kind regards

Cabinet Nicolas BRAHIN

Advokatfirma i NICE, Lawyers in NICE

Camilla Nissen MICHELIS

Assistante – Traductrice

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Tel :   +33 493 830 876      /    Fax : +33 493 181 437

Camilla.nissen.michelis@brahin-avocats.com

www.brahin-avocats.com

1) On the operation in France

1. a) The Regulation in France

French gambling regulations are based on a very restrictive legal framework.

The founding principle is the general prohibition of games of chance, the law of 21 May 1836, which prohibits all lotteries, and the law n° 83-628 of 12 July 1983, which criminalises the operation of unauthorised gambling in public places.

These texts strengthen control where only specifically authorised exceptions can be legally exploited.

Overall, French legislation remains one of the most restrictive in Europe, with market access strictly reserved for state-controlled or authorized actors and the focus on preventing the liberalization of gambling activities. Gambling is only allowed where the law explicitly allows it, usually under a state monopoly or tightly controlled permissions.

Today, gambling is really controlled, and lotteries are banned.

However, there are exceptions for which an operator may have a game of chance. This prohibition extends to “all operations offered to the public, under any name whatsoever, giving hope of a gain that would be due, even partially, to chance, and for which a financial sacrifice is required of the participants“.

The concept of “financial sacrifice” is established when an advance payment is required, even if a subsequent repayment is possible.

However, there are specific exemptions that allow certain types of gambling.

These licensed games are not considered ordinary commercial activities or services; They are subject to strict regulations aimed at preventing disturbances to public and social order, particularly with regard to the protection of health and minors.

Their exploitation is subject to exclusive rights, authorisations or approvals granted by the State. The State’s gambling policy aims to limit and regulate the supply and consumption of games, as well as to control their operation.

Its main objectives are: to prevent excessive or pathological gambling and to protect minors, by ensuring the integrity, reliability and transparency of gambling operations, preventing fraudulent or criminal activities as well as money laundering and terrorist financing, and ensuring the balanced operation of different types of gambling in order to avoid economic destabilization of the sectors concerned.

Legally licensed gambling operators contribute to these goals by channeling demand into a controlled circuit and preventing the development of illegal offerings.

Permitted gaming activities, as exceptions to the general prohibition, include:

• Casinos may be authorised in certain types of municipalities, such as those classified as seaside, spa or climatic resorts, or in large urban centres that meet certain cultural and demographic criteria. They may also be authorised on commercial passenger vessels flying the French flag.
  • The authorisations are temporary, granted by the Interior Minister after municipal approval and on the basis of a detailed charter.
  • Casino managers, members of the management committee and all staff working in gaming halls must be of French or EU/EEA nationality, of legal age, enjoy their civil and political rights and be approved by the Minister of the Interior.
  • The operation of slot machines, also known as slot machines, is specifically allowed only in casino gaming rooms. (L321-1).

• Traditional lottos, also known as “poules au gibier”, “fusils” or “quines” in French, are also excluded when they are organised by non-operators in a restricted circle for similar causes of general interest, with low stakes (less than 20 euros) and prizes that cannot be redeemed for cash or refundable.
  • Games offered at the fairgrounds are also excluded. (L322-3; L322-4)

• The operation of lottery games under exclusive rights is marketed by a single legal entity, under strict control by the State.

• • Licensed lottery games may be based on the principle of profit sharing, where total winnings, set as a percentage of the stakes, are distributed among the winners, or on fixed odds (counterparty), the nature and value of which are fixed or the result of probability calculations.
  • They are classified into “draw” games (traditional, successive or additional draws) and “instant” games (instant games, such as scratch cards or games with immediate random results, or additional instant games).
  • A single lottery game can combine features from both categories.
  • The mathematical expectation of winning for each game or category is regulated by decree, and the sale or export of these lottery games without the prior authorization of the holder of the exclusive rights is prohibited, as well as their sale or resale at a price higher than their issue value. (L322-2)

1. b) Administrative prohibitions

An administrative ban may be imposed by the competent authority on persons whose behaviour disturbs public order or the normal conduct of the games, for a maximum period of five years.

Individuals may also voluntarily request a ban, applicable to casinos, online gaming and certain physical terminals, for a period of three years, tacitly renewable.

They are required to prohibit sending commercial communications to players, current or former, who are self-excluded or voluntarily banned.

Most importantly, gambling on credit is prohibited. Operators, their management or employees are prohibited from lending money to players or facilitating player-to-player loans. Advertising for such lending services or linking to such services on online gaming platforms is also prohibited.

Licensed gambling operators are subject to strict regulations.

They must include a warning message about overplaying and a reference to an information and assistance system.

Communication is prohibited in publications, audiovisual services and electronic communications intended for minors, and in cinemas during performances accessible to minors.

It is also forbidden for financial operators or to sponsor events specifically aimed at minors.

Local authorities (representative of the State in the department or prefect of police in Paris) can define perimeters around educational and youth establishments where gambling advertising is prohibited and where the establishment of new gaming points of sale is prohibited.

1. c) Sanctions

Violations of these regulations result in heavy penalties.

The exploitation of games prohibited by law is punishable by three years’ imprisonment and a fine of €90,000, increased to seven years’ imprisonment and €200,000 in an organized gang.

Failure to comply with the conditions for authorising legal gambling is punishable by the same penalties.

The issuance or distribution of prohibited gaming media is punishable by a fine of €100,000, which can be quadrupled depending on the advertising expenses related to the illegal exploitation.

The import, manufacture, and exploit of illegal slot machines is punishable by three years in prison and a fine of €90,000, increased in the case of organized crime.

Operators who allow banned people to gamble online or send them commercial communications are liable to a fine of €10,000.

The establishment of a new point of sale in violation of the prohibited perimeters or direct access to terminals with a human intermediary without prior verification of age is punishable by a fine of €100,000.

Violation of the credit ban is punishable by a fine of €150,000. Advertising for a loan or creating a link to such services is punishable by a fine of €75,000. (from L324-1 to L324-3).

Any non-compliant commercial communication is punishable by a fine of €100,000, which can be quadrupled depending on advertising expenses.

Individuals found guilty of these offences are subject to additional penalties, such as loss of civil rights, confiscation of property, prohibition from exercising a profession and permanent or temporary closure of their establishment.

Legal people may also be subject to heavy fines and prohibitions from exercising a profession, up to and including the withdrawal of their authorisation or approval.

2) The operation in the United Kingdom

The law governing gambling in the United Kingdom was reformed in 2005. The reform introduces a vast authorisation regime for almost all gambling activities.

Its three fundamental objectives: preventing crime, ensuring fairness and protecting the vulnerable, form the basis of regulatory discretion.

The UK National Lottery is subject to a separate regime introduced by the 1993 Act, with a single operator selected by tender and subject to strict rules for the distribution of revenues.

In particular, the National Lottery allocates significant funds to “good causes”, thus underlining its social function for charitable purposes.

Casinos are categorized into regional, large and small categories, with numerical and structural limits to ensure oversight.

Slot machines are classified by risk levels, with low-risk machines allowed in pub bars and family centres under more relaxed controls.

The legal recognition of spread betting as a financial activity, regulated by the Financial Services Authority (FSA), is unique to the UK, which expands the betting landscape beyond traditional gambling standards.

The UK upholds a liberalised and competitive gaming environment, anchored in a strong regulatory structure focused on transparency, integrity and social responsibility.

Licences are widely granted, and commercial operators are free to innovate, especially in areas such as fixed odds betting and spread betting.

3) The operation in Italy

Italian gambling legislation is based on a monopolistic model, supported by the Penal Code, which generally prohibits the private operation of games of chance.

The central authority in charge of this sector is the Agenzia delle Dogane e dei Monopoli (ADM). Specifically, the Gaming Control Office within the Gaming “Directorate” plays a direct role in enforcing the regulations and maintaining the dealer list.

This dual system allows for private participation while maintaining public control, particularly over the collection of bets and the design of games.

Casinos are limited to thirty historically authorized establishments located in border regions and operated by companies with majority public participation.

Lotteries, including the “SuperEnalotto” and the “Lotto”, are managed under exclusive concessions granted by the State.

Local lotteries are allowed under strict thresholds. Slots, although widespread, must meet technical and gaming criteria to avoid being classified as illicit gambling.

Italy stands out by allowing the widespread installation of slot machines in hospitality establishments, subject to regulation.

The core of the current regulatory framework is Legislative Decree No. 41 of 25 March 2024, which entered into force on 4 April 2024.

This decree is the main regulatory source for public games authorised in Italy. Its main objective is the reorganization of the gaming sector, with a particular focus on remote gaming (giochi a distanza).

It should be noted that the regulation of casinos is expressly excluded from this decree and therefore remains governed by the previous provisions.

In addition, the provisions relating to public games collected by a physical network are expected in a subsequent legislative decree, after the agreement between the State, the regions and the local authorities.

The reorganization of the gaming sector, as provided for in Article 15 of Law No. 111 of 9 August 2023, is based on several fundamental principles.

These include the introduction of technical and regulatory measures for the protection of players, such as the reduction of betting and winning limits, the continuous training of operators, and the strengthening of self-exclusion mechanisms, including through the establishment of a national register.

The law also provides for territorial planning of physical playgrounds, guaranteeing predictable distances from sensitive sites, and encouraging consultation between the State, the regions and local authorities.

In tax matters, the decree stipulates that the elements related to the triggering events, the taxpayers and the maximum amounts of taxation are subject to ordinary law.

It also requires prior approval from the ADM for the minimum content of contracts between dealers and their outlets.

The aim is to ensure transparent and uniform rules nationwide in terms of permits, authorisations and controls, while at the same time allowing the participation of municipalities in the planning of the physical gaming offer.

Permits issued outside the planned territorial areas are prohibited and considered null and void by operation of law.

The ADM actively enforces these regulations, especially in the fight against illegal online gambling services.

The Gaming Control Office of the Gaming Directorate issues orders to internet connectivity service providers to block access to unauthorized gaming sites.

These orders, based in particular on Article 102, paragraph 1, of Decree-Law No. 104 of 14 August 2020, require the redirection of traffic from illegal sites to a specific IP address, within a set time limit, such as 13 June 2025 for newly identified sites.

An updated list of these blocked sites is publicly available on ADM’s institutional portal.

For concessionaires, in particular those who operate public games on sports or horse racing, the ADM supervises the electronic transmission of data relating to the transfer of the rights assigned, via the functionalities available in the reserved area of the ADM website.

While remote gaming dealers may have physical locations for strictly ancillary services, these locations may neither offer remote gaming nor manage the resulting gains.

4) Our conclusions

IN CONCLUSION, France, the United Kingdom, and Italy have very different ways of managing lotteries and gambling.

In France, the system is very strict: gambling is forbidden except for exceptions well supervised by the State, to protect public order and vulnerable people.

The UK has a more open approach, but with clear rules to ensure transparency and limit risk, including through a national charity lottery.

Italy combines a public monopoly and private concessions, with tight state control and a recent reform to better organize the sector.

So, it’s evident that the easiest to install a business based in gambling might be the UK.

Med venlig hilsen / Kind regards

Cabinet Nicolas BRAHIN

Advokatfirma i NICE, Lawyers in NIC

Camilla Nissen MICHELIS

Assistante – Traductrice

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Tel :   +33 493 830 876      /    Fax : +33 493 181 437

Camilla.nissen.michelis@brahin-avocats.com

www.brahin-avocats.com

The French Penal Code contains a number of provisions to penalise cyberattacks and personal data breaches. Articles 226-16 to 226-24 cover offences related to non-compliance with the provisions of the General Data Protection Regulation (GDPR) and the French Data Protection Act (Loi Informatique et Libertés).

These offences include unauthorised use of personal data, fraudulent collection of data, and non-compliance with security and data breach notification obligations.

Article 226-16 of the French Penal Code states that: “The offence, including negligence, of processing or having personal data processed without complying with the formalities required by law prior to their implementation is punishable by five years’ imprisonment and a fine of 300,000 euros […].”

Article 226-18 of the French Penal Code also regulates cases of violation or theft of personal data. This article states that “the collection of personal data by fraudulent, unfair or illegal means is punishable by five years in prison and a fine of €300,000”.

There is also a general article on fraudulent access to an automated data processing system (STAD). Article 321-1 of the Criminal Code states that “fraudulent access to or remaining in all or part of an automated data processing system is punishable by three years’ imprisonment and a fine of €100,000.

If the result is either the deletion or modification of data in the system or a change in the functioning of the system, the penalty is five years’ imprisonment and a fine of €150,000 […]”.

It is also important to maintain paragraph 1 of Article 323-2 of the Criminal Code, which states that “Obstructing or distorting the operation of an automated data processing system is punishable by five years in prison and a fine of 150,000 euros”.

The mental element of the offence of theft or violation of personal data:

The mental element, or criminal intent, is crucial to the classification of these offences. Article 121-3 of the French Penal Code states that ‘there is no crime or offence without the intention to commit it’. This rule means that the perpetrator of a crime or misdemeanour must have intended to commit it in order to be considered responsible, which includes the intention of the conduct and the intention of the result.

Personal data breaches can involve hacking or malicious extraction of personal data. However, some breaches can also be due to negligence, especially when it comes to controllers subject to the obligations of the RGPD, such as lack of security.

To define personal data theft, we need to refer to the general definition of theft. Theft is the fraudulent removal of another person’s property and the moral element is constituted when the perpetrator behaves as the owner of the property, knowing that he or she has no rights over it.

In a decision of 20 May 2015 (No. 14-81.336), the Court of Cassation confirmed the moral element of fraudulent maintenance and theft of data, emphasising that the accused was aware that he was in a protected area, having noticed the presence of access control (login and password).

Despite the initial access being facilitated by a technical error, the data was deliberately maintained and used for personal purposes without authorisation, showing fraudulent intent, which is a moral element required to classify the offences.

Personal data breach is characterised by the accidental or unlawful destruction, loss, alteration or unauthorised disclosure of personal data. The moral element of this type of offence can be due to negligence, such as human error or technical failure, or malicious intent, such as unauthorised access or disclosure for malicious purposes.

The substantive element of the offence of theft or personal data breach:

The decision of the Court of Cassation of 28 June 2017 (No. 16-81.113) illustrates that unauthorised copying of computer files, even if they are freely accessible on an internal network, constitutes theft when the perpetrator acts without the knowledge and against the will of the data owner.

In this case, a lawyer copied his colleague’s personal documents, which were accessible without a password on the shared server of their professional partnership and sent them to the president of the bar association.

The Court ruled that although the files were easily accessible, their appropriation was fraudulent because it was carried out for purposes unrelated to the company’s operations without prior authorisation from the owner of the documents. This decision confirms that the material element of theft can consist of simple unauthorised copying of data, regardless of its technical availability.

Thus, the element of a personal data breach can be the destruction, loss, alteration, unauthorised disclosure or unauthorised access to personal data. Examples are unauthorised use of passwords or installation of spyware.

In a decision of 10 May 2017 (No. 16-81.822), the Criminal Division of the Court of Cassation illustrates the material element of a violation of personal data protection, particularly in the context of unauthorised use of passwords.

In this case, a lawyer installed spyware (keylogger) on the computer of his wife, who is also a lawyer, to access her private correspondence. The Court of Cassation upheld the decision of the Court of Appeal, emphasising that the use of the software for purposes other than monitoring the law firm’s operations constituted an offence of fraudulently maintaining access to the computer system.

Med venlig hilsen / Kind regards

Cabinet Nicolas BRAHIN

Advokatfirma i NICE, Lawyers in NICE

Camilla Nissen MICHELIS

Assistante – Traductrice

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Tel :   +33 493 830 876      /    Fax : +33 493 181 437

Camilla.nissen.michelis@brahin-avocats.com

www.brahin-avocats.com