Macron law: some truths on missions and commitments of EIG Infogreffe
mar., 17 févr. 2015 10:49:00 +0100
The Macron law: setting the record straight on the missions and commitments of the E.I.G. Infogreffe.
The draft Macron law was adopted on Sunday, 15 February 2015, by the National Assembly. The deputies will vote on Tuesday, 17 February on the entirety of the "for growth, business, and equality of economic opportunity" text. It is in this context that the E.I.G. Infogreffe hopes set the record straight on its missions and commitments.
The remarks made by the Minister of Finance, Industry and Digital Technology in the National Assembly on 4 February 2015 demonstrated a total misunderstanding of the current distribution of roles among court clerks, the Infogreffe E.I.G. National Institute for Industrial Property (INPI).
Today, the Commercial Court clerks maintain the Trade and Companies Register, under the supervision of a judge and under their responsibility. They undertake a thorough legal control bringing security to the information brought to them by the public, notably for the issuance of extracts from the registration filings, known as "Kbis". The latter constitutes an identity card for every company and are signed by the court clerk under the seal of the Republic.
In parallel, since September 2012, the court clerks send by electronic means a copy of the referenced statements to INPI, which archives them. Such archives were maintained, prior to September 2012, in paper form. Even if this double archiving by the court clerks and INPI was previously justified, in the digital age it no longer makes sense.
In effect, all of the Commercial Court clerks are grouped together in an E.I.G. so as to share the considerable common means allowing for the building of a public, efficient on-line service , in constant adaptation and is accurate regardless of the geographic zone. Self-funding, these services allowing electronic archiving which relies on three infrastructures: that of the clerk, by remote access and with their E.I.G. Infogreffe centralises all information for the 134 clerks' offices.
However, to date, the system of double archiving made by INPI imposes 25 million euros each year on companies.
These 25 million euros correspond, on one hand, to the tax paid by the companies, and collected by the court clerks for the account of INPI to which it is thereafter paid, namely 14 million euros, and the amount of the fees collected by the court clerks for the transmission of the double copy of the statements, namely, 11 million euros.
The strength of this information on our profession has led to the formulation of two proposals:
- to simplify the current organisation by eliminating of centralisation role of INPI, which is no longer justified in an operational plan;
- to entrust to the court clerks the role of distribution of data (from the instruments), in an open and inter-active format (open data).
These proposals are not neutral for our profession as they would eliminate an 11 million euro resource, however they would permit assistance in growth and business.
Nevertheless, Article 19 of the law entitled "growth and business", adopted on 4 February 2015 by the Deputies, maintains an abnormal and inequitable situation for companies.
In effect, this Article anticipates, that from now on, company data will be transmitted, free of charge, by the court clerks to INPI, as a supplement to the statements already sent today, so that they will then distribute them free of charge.
This Article does not in any event mean that the Trade and Companies Register will become free of charge. The legal instruments issued by the court clerks via their E.I.G. Infogreffe remains subject to the fee regulated by the Ministry of Justice.
Today, INPI possesses neither technical or legal competence for distribution of such data which it has entrusted, since 2009, to the E.I.G. Infogreffe the distribution of data from the National Trade and Companies Register (RNCS) via the licenses which it markets.
Since the will of the government is obviously positive, we are convinced that it did not choose the right horse.
Moreover, two institutions have proceeded in this direction:
1/ The Controller and Auditor General who was reminded, during a recent summary judgement on the topic of INPI, that its actions must be driven first and foremost by the realisation of the European Patent and its success,
2/ The Competition Authority which suggested, in its opinion of 9 January 2015 on regulated legal professions, to reconsider the distribution of roles about RNCS. The Authority therefore recommended the elimination of the INPI tax and the remuneration collected by the court clerks for its funding and entrusting the distribution mission of the RNCS to the E.I.G. Infogreffe, free of charge.
E.I.G. Infogreffe is not set against the suggestions of the Minister in our regard.
When the Minister of Finance, Industry and Digital Technology indicates that « investment was financed - read, over-financed – and amortised », he insinuates that the Commercial Court clerks operate in their own interest and not in the general interest.
This assertion is false, and we cannot accept it!
The constitution of the E.I.G. by court clerks allowed an efficient public service offering and responded to the expectations of users. Each year the court clerks invest in a permanent research for the development of services benefiting companies and those answerable under law.
These investments support:
- access to legal information about companies registered on the Trade and Companies Register (RCS)
- services for formalities and filings in the RCS on-line
In addition to companies, our E.I.G. allows endowment of commercial jurisdictions, which have no budgets, or innovative tools such as a portal for public prosecutors, judges, or attorneys . . . in the service of efficient, rapid and safe justice. This global balance is necessary for justice and the business world.
To depict our E.I.G. as an « aberration » is offensive and contemptuous of the work accomplished by the court clerks and their 1800 collaborators.
The Minister still specifies: « Because they decided to establish a E.I.G., they benefit from a monopoly position which in no event is covered by law. ". Is it necessary to be reminded that this E.I.G. was established in application of Article R.741-5 of the Commercial Code under the chapter entitled "The institution and its missions" (of Commercial Court clerks)?
And Mr. Macron adds: « The available information [on the subject of the E.I.G.] are therefore limited ». Yet, a collection of accounting and financial data was delivered to the Competition Authority in 2014 within the framework of preparation of its opinion on regulated legal professions.
Besides, Mr. Macron refers to a report of the General Inspectorate of Finance dating from 2012 to support his assertions. This report was rendered even before our profession saw the imposition of important reductions in resources for two activities:
- 50% on registration expenses of commercial companies since 1st July 2014;
- 66% on the expenses of transmission by secured electronic means of the registration extracts of the Trade and Companies Register ("Kbis").
This report and Mr. Macron assert that "the annual average rate of profitability of a Commercial Court clerk's office is 82%".
This assertion, still, is false and would need to be supported in order to understand the calculation. This fanciful percentage is a sign of a positioned report and the writers, therefore, are sorely lacking intellectual honesty.
Finally, if it was necessary to once again demonstrate the inaccuracy of the words directed at us, the proposal of our profession was swept away by the Minister who claims, in response to Deputy Philippe Houillon:
« You suggest putting them at the disposition of the National Council of Commercial Court Clerks: such is, in fine, a return to the status quo ante. In fact, it is unlikely that this information would thereafter be distributed free of charge to the public. "
Yet, our profession proposed the free distribution of data relating to commercial companies (with the exception of personal data requiring wider legal reflection) and those relating to annual accounts, allowing rapid and effective response to the government's objectives.