FRENCH REPUBLIC IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, rendered the following judgment:
Ruling on the appeals brought by:

– THE SOCIÉTÉ SAP FRANCE,
– THE SOCIÉTÉ CONCURRENCE, civil party,

against the judgment of the Court of Appeal of VERSAILLES, 18th Chamber, dated November 17, 2006, which, in the procedure followed against the first for contraventions of the law relating to the use of the French language, has, on referral after cassation, pronounced on civil interests;

Joining the appeals because of the relatedness;

Considering the briefs produced in demand and in defense;

Whereas it results from the judgment under appeal and from the procedural documents that the company Competition acquired a software package of integrated management, published by a German company and distributed in France by the company SAP France; that, the instructions for use and all the accompanying documents for this product being written in the English language, the company Concurrence seized the departmental directorate of competition, consumption and the repression of fraud (DDCCRF) which noted that SAP France had marketed several of these software packages in disregard of the provisions of articles 2 of the law of August 4, 1994, 1 and 4 of the decree of March 3, 1995; that the public prosecutor made cite the company SAP France before the police court which declared it guilty of twenty-nine contraventions but dismissed the company Competition, civil party, its claims for lack of direct and certain damage; that after having noted the extinction of the public action by the amnesty, the court of appeal of Paris has, by judgment of July 4, 2003, dismissed the civil part of its requests; that, on the appeal of the civil party, the Court of Cassation quashed and annulled, in its only civil provisions, the judgment of the Paris Court of Appeal and referred the cause and the parties to the Court of Appeal of Versailles; declared guilty of twenty-nine contraventions but dismissed the company Competition, civil party, of its claims for lack of direct and certain damage; that after having noted the extinction of the public action by the amnesty, the court of appeal of Paris has, by judgment of July 4, 2003, dismissed the civil part of its requests; that, on the appeal of the civil party, the Court of Cassation quashed and annulled, in its only civil provisions, the judgment of the Paris Court of Appeal and referred the cause and the parties to the Court of Appeal of Versailles; declared guilty of twenty-nine contraventions but dismissed the company Competition, civil party, of its claims for lack of direct and certain damage; that after having noted the extinction of the public action by the amnesty, the court of appeal of Paris has, by judgment of July 4, 2003, dismissed the civil part of its requests; that, on the appeal of the civil party, the Court of Cassation quashed and annulled, in its only civil provisions, the judgment of the Paris Court of Appeal and referred the cause and the parties to the Court of Appeal of Versailles; public action by amnesty, the Paris Court of Appeal, by judgment of July 4, 2003, dismissed the civil part of its requests; that, on the appeal of the civil party, the Court of Cassation quashed and annulled, in its only civil provisions, the judgment of the Paris Court of Appeal and referred the cause and the parties to the Court of Appeal of Versailles; public action by amnesty, the Paris Court of Appeal, by judgment of July 4, 2003, dismissed the civil part of its requests; that, on the appeal of the civil party, the Court of Cassation quashed and annulled, in its only civil provisions, the judgment of the Paris Court of Appeal and referred the cause and the parties to the Court of Appeal of Versailles;

In this state;

On the appeal of the company SAP France:

On the first ground of appeal, alleging violation of articles 18 of the law of August 4, 1994, 537 and 591 of the code of criminal procedure, lack and contradiction of reasons, lack of legal basis ;

“in that the contested judgment rejected the request for cancellation of the report drawn up by the DGCCRF;

“on the grounds that the report drawn up by the DGCCRF on June 6, 2000 was transmitted on June 9, 2000 to the public prosecutor, ie within 5 days of its closure, this date clearly resulting from the transmission sheet to the prosecution; that it is therefore necessary to reject the argument drawn from the nullity of the minutes, the procedure being regular with regard to Article 18 of the Law of 4 August 1994;

“whereas the minutes are authentic until proved to the contrary; that the defendant demonstrated that the date of the report was June 6 but that the transmission sheet to the public prosecutor’s office mentioned that the report would have been drawn up on the 5th June, and that the prosecution number proved that the report had been filed with the public prosecutor’s office not on June 9 but on June 13, 2000; that the court of appeal confined itself to stating that the report was drawn up by the DGCCRF on June 6 and sent to the prosecutor on June 9 without investigating whether the dates of June 6 and June 9 were not in contradiction with the statements of the documents produced; that therefore, the court of appeal did not legally justified its decision “;

Whereas before any defense on the merits, the defendant had invoked the nullity of the report drawn up by the agents of the DDCCRF, basis of the prosecution, on the grounds that it had not been sent to the public prosecutor within the five days following its closure, as provided for, under penalty of nullity, article 18 of the law of August 4, 1994;

Whereas, in order to reject this exception, the judgment notes that it appears from the documents of the procedure that, drawn up on 6 June 2000, the report was sent to the public prosecutor on 9 June 2000, within five days following its closure;

Whereas in the state of these reasons, the Court of Appeal, which was not required to enter into the details of the arguments of the accused, justified its decision;

From which it follows that the means could not be admitted;

On the second plea of ​​cassation, taken from the violation of articles 16 and 18 of the law of August 4, 2004, L. 215-1 of the consumer code, 551, 591 of the code of criminal procedure, lack and contradiction of reasons, lack of legal basis;

“in that the judgment under appeal declared the facts constituting the offense provided for and punished by article 4 of decree n ° 95-240 of 3 March 1995 and 2, paragraph 1, of the law of 4 August 1994 constituted , declared admissible the constitution of civil party of the company Concurrence and ordered the company SAP France to pay him the sums of 5,000 euros for damages and 5,000 euros for his irrecoverable costs of appeal;

“for the reasons that in this case the prosecution is based on the statements of Mr X … but also on the material findings made by the controller, thus highlighting the 29 contraventions referred to in the prosecution when the various documents, not one of which was written in French; that no text requires that the minutes of the DGCCRF be attached to the citation; that, moreover, this citation relates to the report of the complaint, which was followed by an investigation corroborating the statements of the complainant, these elements serving as evidence; that this argument should also be rejected, confirming in this the first judge;

“whereas the observation of the infringements only has probative value if it has been carried out in accordance with the legislation in force; that the infringements of the law of August 4, 1994 can be noted and proved only by official reports of the DGCCRF; that the minutes of the DGCCRF must be sent to the public prosecutor and attached to the citation; that it follows from the statements of the court of appeal that the minutes of the DGCCRF were not annexed to the citation nor paid to the procedure by the public prosecutor; that therefore, the court of appeal which confined itself to stating that no text required that the minutes of the DGCCRF be attached to the citation, violated the aforementioned provisions “;

Whereas the company SAP maintained in its defense that, the public prosecutor not having attached the official report drawn up by the agents of the DDCCRF to the summons that he had made him deliver, and having confined himself to target in the act of prosecution the report collecting the complaint of the company Competition, the proof of the offenses on which it based its request for compensation could not be reported;

Whereas, to rule out this argument, the judgment pronounces by the reasons taken again by means;

Whereas in this state, and since it is not maintained that the plaintiff would not have had access to all the documents of the procedure with a view to their contradictory discussion at the hearing and would not have not having the time and facilities necessary for the preparation of his defense, the judgment does not incur censorship;

From which it follows that the means can only be discarded;

On the third ground of appeal, alleging violation of articles 28, 30 and 129 A, 234 of the EEC Treaty, 3 of the directive of 22 December 1969, 2 of law n ° 94-665 of 4 August 1994, 591 and 593 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis;

“in that the judgment under appeal declared the facts constituting the offense provided for and punished by article 4 of decree n ° 95-240 of 3 March 1995 and 2, paragraph 1, of the law of 4 August 1994 constituted , declared admissible the constitution of civil party of the company Concurrence and ordered the company SAP France to pay him the sums of 5,000 euros for damages and 5,000 euros for his irrecoverable costs of appeal;

“on the grounds that Article 28 of the EEC Treaty prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States subject to Article 30 of the same Treaty; that there is no of Community directive laying down the rules to be applied as regards the use of the language in the instructions for use of products of the species, this question being a matter for the Member States; which, however, most of the Member States considered that ” it is necessary to inform the consumer in his own language, the European Commission encouraging multilingual information while allowing States to use the language of the country where the product is marketed; that,therefore, for products marketed in France, the use of the language is regulated by law
of August 4, 1994 which imposes the use of the French language for the designation, the offer, the presentation, the written or spoken publicity and the instructions for use of an article or a product; that, on the principle of imposing language requirements on instructions for use of products imported from a Member State, which would thus force the manufacturers of the product to incur additional costs, the CJEC thus considered in terms of labeling, that ‘in the absence of Community harmonization, the Member States may adopt measures requiring that these particulars be worded in the language of the country where the product is sold or in a language easily understandable for the consumer; that it cannot be seriously maintained by the appellant that the translation would have entailed excessive costs, being furthermore recalled that in the writings and the documents produced, it is established that from the following months, the notices were multilingual; that consequently, no contradiction exists between the law of 4 August 1994 and article 28 of the EEC Treaty; that there is therefore no need to ask the preliminary question to the CJEC as advocated by the appellant; that the small or medium-sized business that buys a no conflict exists between the law of 4 August 1994 and article 28 of the EEC Treaty; that there is therefore no need to ask the preliminary question to the CJEC as advocated by the appellant; that the small or medium-sized business that buys a no conflict exists between the law of 4 August 1994 and article 28 of the EEC Treaty; that there is therefore no need to ask the preliminary question to the ECJ as advocated by the appellant; that the small or medium-sized business that buys asoftware must therefore be able to understand how it works, even though it can subsequently contact a professional for installation and maintenance and the trial judge rightly considered that in this case the law protects the consumer by requiring the use of the national language, and this particularly in a field where the misinterpretations and handling errors are frequent and where, moreover, the English language, if it can be mastered of in general, may not be in a technical field; that the various documents collected by the DGCCRF, i.e. the software user manual of 100 pages written in English and various documents instituted “Early Watch Aller User Guide R / 3”, “Licensing the SAP system”, “release restrictions for R / 3”, all written in the English language therefore constitute infringements of the law. of August 4, 1994; that the findings are sufficient and do not justify the requested expertise measure; that the online information can only be truly supported, for which it is moreover not justified, insofar as the appellant indicates precisely that he cannot use this software, and which it is argued by the appellant that it would have been installed subsequently, can the day of the facts compensate for the absence of written documents drafted in French; that the materiality of offenses is therefore constituted and that there is therefore no place to expertise;

“1 °) whereas the restrictive effects on the free movement of goods must not be out of proportion to the desired result; what constitutes an import restriction prohibited by Article 28 of the EEC Treaty, the general obligation and absolute made to any industrialist to provide that the instructions for use of a product should be translated into a national language; that this is the case with the law of 4 August 1994 in that it obliges all instructions for use to be be translated into French, without further examination;

“2 °) whereas the use of the French language is imposed for the sole purpose of protecting the consumer and the measure having an effect equivalent to quantitative restrictions on imports which could result from the legislation prescribing the use of the French language in the instructions for use of the software packages is justified by the protection of the consumer on the national territory; that, in order to consider that the infringement was established, the court of appeal confined itself to stating that the documentation was drawn up in English without investigating whether this documentation was not intended exclusively for professionals and not for consumers, thus ignoring the aforementioned texts; that, therefore, the Court of Appeal did nothas not legally justified its decision;

“3 °) whereas the use of the French language is imposed for the documents constituting a user manual of the product; that the defendant argued that the documents mentioned by the minutes of the DGCCRF did not constitute modes of ’employment and were only installation documents; by limiting itself to listing the various documents identified by the DGCCRF without investigating whether these documents constituted instructions for use, the Court of Appeal did not give any legal basis for its decision “;

Whereas the company SAP maintained that the obligation, punishable by law, to draw up the instructions for use or use and the accompanying documents for a product in French, likely to create an obstacle to Community law, was incompatible with Article 28 of the EC Treaty;

Whereas the judgment which rejected this exception, for the reasons set out in the plea, does not incur the alleged complaints, since the measure having an effect equivalent to quantitative restrictions on imports which could result from the legislation prescribing the use of the French language in the methods of use of products is justified, in accordance with Article 30 of the Treaty, by the protection of consumers on national territory;

From where it follows that the plea, inadmissible, for the remainder, in that it accuses the referral court of having ruled in accordance with the judgment of cassation which seized it, can not be accepted;

II – On the appeal of the company Concurrence:

On the single ground of cassation, taken from the violation of articles 2, paragraph 1, of the law of August 4, 1994 imposing the use of the French language, 2, 3 and 593 of the code of criminal procedure, lack of reasons, lack legal basis;

“in that the judgment under appeal condemned the company SAP to pay the sum of 5,000 euros in compensation for the economic damage linked to the delays, difficulties and procedures suffered by the company Competition due to offenses of non-use of the French language and rejected the claim for compensation for commercial damage related to the inability of the company Concurrence to carry out its activity through a website;

“on the grounds that the company Competition has established by various letters and documents the delay it suffered in the implementation of the softwareand the difficulties it encountered in being able to use it due to the lack of a French language document that could be used immediately; that it also had to make multiple steps to be able to carry out finally its project; that this damage is directly linked to the infringements identified; that, however, the company Competition can not seriously claim that this delay would be alone determinant of a prejudice commercial such as it is described and encrypted in its writings; that indeed, it is not established that the aggravation (sic) alleged turnover is the only consequence of the infringements; that he does not nor is it produced documents like multiple customer complaints or order shortages; whereas it itself agrees that it is difficult to assess economic damage; that therefore the damage, if it is real and direct, can be assessed at a sum of 5,000 euros;

“whereas, on the one hand, the offender is required to make full compensation for the damage which results directly from the offense without it being necessary for this offense to be the sole and decisive cause; demanding that the delay caused by the company SAP as a result of the offenses of non-use of the French language alone be the determining cause of the decrease in turnover suffered by the company Concurrence, the court of appeal violated the the aforementioned texts;

“while, on the other hand, the offense of non-use of the French language which prevented the establishment of an online sales website is the certain and direct cause of the loss of a chance of making a turnover by means of these sales; that by failing to rule on this head of damage for which the company Concurrence sought compensation (p. 26, § 1; p. 30, § 11; p. 31 § 4; p. 32, § 11), the court of appeal violated the aforementioned texts;

“whereas, finally, as regards the repair of the loss of a chance to achieve a turnover on a new market, the absence of complaints of customers or of rupture of orders constitute ineffective grounds, so that the court of appeal has not legally justified its decision “;

Whereas by assessing, as it did, the compensation for the damage resulting for the company Competition from the infringement of its right to have access in the French language to the description and the mode of use of the product acquired with the company SAP, the court of appeal only exercised its power to assess sovereignly, within the limits of the submissions of the parties, the

From which it follows that the plea cannot be accepted;

And considering that the stop is regular in the form;

DISMISSES the appeal;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberation, in the training provided for in article 567-1-1 of the code of criminal procedure: Mr. Cotte president, Mr. Blondet advisor rapporteur, Mr. Farge advisor of the chamber;

Clerk of the chamber: Mrs Lambert;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

 

Contested decision: Versailles Court of Appeal of November 17, 2006

Court of Cassation
Criminal Chamber

Appeal number: 03-85642
Published in the bulletin

President: M. Cotte
Rapporteur: Mme Agostini.
Advocate General: M. Davenas.
Lawyers: SCP Waquet, Farge and Hazan, SCP Piwnica and Molinié.

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS, delivered the following judgment:

Deciding on the appeal brought by:

– THE COMPETITION COMPANY, civil party,

against the judgment of the Paris Court of Appeal, 13th chamber, dated July 4, 2003, which, in the proceedings against the company SAP FRANCE for contraventions of the law relating to the use of the French language, a declared the public action extinguished and dismissed its demands;

The COURT, ruling after debates in the public hearing of October 19, 2004 where were present: Mr. Cotte president, Mrs. Agostini advisor rapporteur, MM. Farge, Blondet, Palisse, Le Corroller, Castagnède councilors of the chamber, Mmes Gailly, Guihal, M. Chaumont referendum advisers;

Advocate General: M. Davenas;

Clerk of the chamber: M. Souchon;

On the report of the referendum adviser AGOSTINI, the observations of the professional civil society WAQUET, FARGE and HAZAN and of the professional civil society PIWNICA and MOLINIE, lawyers in the Court, and the conclusions of the Advocate General DAVENAS, the lawyers for the parties who spoke last;

Having regard to the briefs produced, in demand and in defense;

On the first ground of appeal, based on the violation of articles 460, 513 and 593 of the Code of Criminal Procedure, together violation of the rights of the defense and of the adversarial principle;

“in that it does not follow from the mentions of the judgment that the company Concurrence, civil party represented by its lawyer whose presence at the hearing of the debates was noted, was heard;

 

“whereas in application of articles 460 and 513 of the Code of Criminal Procedure, the instruction at the hearing ended, the civil party must be heard at his request”;

Whereas the plaintiff cannot complain that the contested judgment does not mention that her lawyer, present at the hearing, was heard as provided for in Article 460 of the Code of Criminal Procedure, since the decision notes the filing of the regularly referred conclusions formalizing its claims;

Whereas in this state, the Court of Cassation is able to ensure that no harm has been brought to the interests of the civil party that the aforementioned text aims to preserve;

From which it follows that the means can only be discarded;

On the second ground of appeal, alleging violation of articles 1 and 2 of the law of 4 August 1994, articles 1 and 4 of the decree of 3 March 1995, articles 591 and 593 of the Code of Criminal Procedure, lack of reasons , lack of legal basis;

“in that the contested nursing judgment dismissed a civil party (the company Concurrence), purchaser of software, of its claim for damages directed against the importer of the software (the company SAP France), tending to the compensation for damage caused by the offense of failure to use the French language in the software’s user manual;

version 4.5 B, which was delivered directly by SAP AG on December 24, 1999, accompanied by documents written entirely in English; that the company SAP France maintains however that these technical documents were intended for the professional installer, in this case the company Bull Consulting, and not the end user;

that the company SAP France demonstrates although the screens were drafted in French and that the manual or online help, also in French, was accessible by simply pressing the F1 key of the user’s keyboard; that the circular of March 19, 1996 taken in application of the law of August 4, 1994 stating that the modes of use integrated into computer software and comprising on-screen displays are assimilated to instructions for use and the help in line being sufficient for the use of the product after installation by a professional, the infringement aimed at the prevention is not established, being moreover recalled that the company SAP France is not the co-contractor of the company Concurrence and does not

“1) whereas the criminal judge cannot base his decision on a circular which adds a condition to the criminal law; whereas the law of 24 August 1994, like its implementing decree of 3 March 1995, requires the use of French language for the instructions for use of goods or services regardless of the identity of the recipient of the information; that based on the distinction introduced by the circular of March 19, 1996 between the information necessary for the use of the software intended for the professional installer, which would not require any translation, and that intended for the consumer, which only should be written in French, the court ofappeal violated Articles 1 and 2 of the Law of August 4, 1994 and Articles 1 and 4 of the Decree of March 3, 1995;

“2) whereas it is up to the person responsible for the first placing on the market of a product to verify that it complies with the requirements in force and in particular with the law of 4 August 1994 and its implementing decree of 3 March 1995; by deciding that the offense of failure to use the French language was not characterized against the company SAP France on the ineffective reason that it had not directly concluded any contract with the company Concurrence, the court of appeal has again violated the aforementioned texts;

“3) while the person who imports a foreign product into the national territory with a view to selling it makes the first placing on the market; that by failing to find out whether the company SAP France had not imported the software manufactured in Germany to sell it to the company Bull Consulting, which itself sold it to the company Concurrence, as expressly resulted from the letter from the company SAP France sent directly to the company Concurrence on the day of delivery and from the invoice established on December 28, 1999 by the company SAP France to the attention of the company Bull Consulting mentioning the Concurrent company as “end customer”, the court of appeal did not legally justify its decision “;

Considering articles 2 of the law of August 4, 1994, 1 and 4 of the decree of March 3, 1995;

Whereas it follows from these texts that the use of the French language is compulsory in particular in the designation, the offer, the presentation, the instructions for use or use, the description of the scope and the conditions of guarantees of a good, product or service;

Whereas it results from the judgment under appeal and from the procedural documents that the company Competition has acquired a software package integrated management, edited by a German company and distributed in France by the company SAP France; that, since the installation instructions and all the accompanying documents for this product are written in the English language, the Concurrence company seized the departmental directorate of consumer competition and the repression of fraud which found that SAP France had marketed several of these software packages in disregard of the provisions of articles 2 of the law of 4 August 1994, 1 and 4 of the decree of 3 March 1995; that the public prosecutor summoned the company SAP France before the police court which

 

Whereas to reject the civil party’s claims, after noting the termination of the public action by application of article 2 of the amnesty law of August 6, 2002, the judgment is limited to stating that the documents in English accompanying the software package were intended for a specialized installer and not for the end user who could, once the software package was installed by a professional, have access to user manuals or online help written in French, accessible by pressing a button on the computer and sufficient for the use of the product;

But expected that in the state of these statements, the Court of Appeal, which did not draw the legal consequences of its own findings, did not justify its decision;

From which it follows that the cassation is incurred;

For these reasons,

BREAKDOWN and CANCELED, in its only civil provisions, the above-mentioned judgment of the Paris Court of Appeal, dated July 4, 2003, all other provisions being expressly maintained, and for it to be tried again, in accordance with the law, within the limits of the cassation thus pronounced,

REFERS the case and the parties to the Versailles Court of Appeal, to that designated by special deliberation taken in chamber of the council;

ORDERS the printing of this judgment, its transcription on the registers of the registry of the Paris Court of Appeal and its mention in the margin or following the partially canceled judgment;

Thus done and judged by the Court of Cassation, criminal chamber, and pronounced by the president on November 3, two thousand and four;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;