Edward Fennell
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Ten years ago, when the lawyer Tony Blair came to power and made his impassioned speech on the South Bank, it seemed as if everything was possible. But on the Rive Gauche last week after of the victory of another lawyer, Nicolas Sarkozy, the mood was more subdued.
Certainly, most French corporate lawyers welcome the arrival of the little Hungarian – they agree that reform is essential to release France from its torpor. But they expect that the trade unions and the Communist Party, so powerful in the all-important transport unions, will try to fight the reforms into the ground.
“Trade union reform is the corner-stone of change,” Denis Chemla, of Herbert Smith, a litigation specialist, says. “A trade union can have the monopoly on the works council even though it may actually have, for example, only 7 per cent membership. Sarkozy wants to end that monopoly, which is enshrined in law.”
In order to do this, he must win what the French call the “third round” of the presidential election – winning over public opinion to go along with his proposals. And that may still be in the balance. “There will be people on the streets and the unions will oppose it very strongly,” one lawyer says. Other changes, too – notably the requirement for transport workers to maintain a minimum service even in the midst of a strike – are also likely to be fiercely opposed.
But if the labour law changes do go through – especially those making it easier for employers to make people redundant – it is expected that there will be an explosion of employment law cases going to tribunals. “Employment lawyers will be extremely busy. There will be a big demand for their services,” Chemla says.
But the prize is considerable. Although most of the focus is on the widely publicised labour market reforms, the vision beyond is even more important. The belief among the president-elect’s supporters is that if the employment and industrial relations battles can be won, this will lead to a variety of changes including to the legal culture of France.
Just to take one small example. Nicolas Sarkozy, although no longer practising, is the name partner in the firm Claude & Sarkozy, which is said to have strong links with American firms that operate in the class-action area. While France does not permit class actions, it is predicted that this may well change, opening the door to what is now common practice among the Anglo-Saxons “He has been talking about putting it on the agenda,” one lawyer says, “and it is absolutely symptomatic of the way that his eyes have opened to the American way of doing things.” Norbert Majerholc, a partner with White & Case, agrees: “Sarkozy is a new man from a new generation who is more influenced by American culture than the previous generations.”
What Sarkozy wants is more dynamism in the French economy. If he gets his way then lawyers expect an expansion in the mergers and acquisitions area with, as Majerholc observes, many more French businesses becoming interested in international expansion. “I think we shall see more outbound investment,” he says, “as French companies become more successful.”
Meanwhile, more Americans may start taking an interest in investing in France now that the frost between the two countries has started to thaw. “The expected simplification of employment laws would also make it more attractive for foreign investors to open business in France,” Jean-Claude Rivalland, of Allen & Overy, says.
Yet there is one area where Sarkozy, for all his liberalising attitudes, is likely to play very much the traditional role of defending French industry. Rivalland says: “In a number of key sectors the new president has indicated that he would wish to become an actor rather than someone in the audience.” Hence, when it comes to supporting the national champions then Sarkozy will do so to the legal hilt. “He won’t break European law on state support for business but he will push it to its limits.”
Alain Garnier, of Linklaters, points out that Sarkozy is keen to build up European multinationals in order to compete with the United States. “He wants to balance the US economy – which is itself quite protectionist – with some strong European multinationals.” It could well be that there will be moves in Brussels, initiated by Sarkozy, designed to encourage European businesses in key industries to build together rather than to stay fragmented or fall prey to American takeovers.
If Sarkozy can make France (and maybe Europe at large) appear more energised and liberal, then that will be as important as the legal changes themselves. Much may depend on the first one hundred days in which Sarkozy has committed himself to relentless action. After the general elections next month Sarkozy intends, Majerholc says, “to keep the deputies in session throughout the summer”. Majerholc expects that detailed plans for legislation have already been prepared to come into law in a short timeframe. By the time of the rentrée, la vie française will have changed. Or will it?
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