59 Winter 2025 As seen above, the judge in summary proceedings has the authority to order any measures to “prevent imminent harm” or to put an end to “a manifestly unlawful disturbance.” The discrimination faced by the Israeli companies barred from the exhibition constitutes a manifestly unlawful disturbance, which is punishable under criminal law and must be prevented by the presiding judge. This is precisely what the court ruled: “the measures implemented by COGES as of May 31, 2024, are unlawful and criminally punishable. They therefore cause a manifestly unlawful disturbance which must be terminated in accordance with Article 873 of the Code of Civil Procedure.”12 However, this decision was rendered too late to have an impact on the participation of Israeli companies, as the exhibition concluded the following day. Nevertheless, the France-Israel Chamber of Commerce learned a valuable lesson about how to respond if the French government requests the organizers of a public exhibition to exclude Israeli companies. Two weeks before the EURONAVAL exhibition, the France-Israel Chamber of Commerce, with the support of Israel shipyards, one of the exhibitors, filed a claim against SOGENA,13 the organizer of the event, before the same Paris Commercial Court, also invoking the discrimination faced by Israeli operators. An exceptional event occurred when the Prefect intervened in the procedure by filing a “declinatory motion” challenging the jurisdiction of the Paris Commercial Court. To understand this jurisdictional debate, it is important to note that in France, decisions made by the administration through the exercise of its public powers fall within the jurisdiction of administrative courts. They do not fall under the jurisdiction of the courts of the judicial order, which includes the Paris Commercial Court. The Paris Prefect’s declinatory motion contested the jurisdiction of the Commercial Court on the grounds that the dispute concerned the lawfulness of an administrative decision. In this case, the issue was the decision of the SecretaryGeneral for Defense and National Security, who wrote to SOGENA, “...regarding the exhibition of Israeli military equipment, in alignment with the position of French diplomacy aimed at achieving peace and stability in Gaza and Lebanon, manufacturers of equipment used or potentially used in operations concerning these territories are not authorized.”14 The judge acknowledged that this was indeed an administrative decision, and relied on case law from the Court of Conflicts – a jurisdiction specifically tasked with resolving jurisdictional conflicts between the administrative and judicial courts – to justify rejecting the declinatory motion.15 This case law considered that the exclusive jurisdiction of administrative courts for administrative matters has exceptions. The first is based on the constitutional provision that treaties have authority superior to that of laws16 and “do not prescribe nor imply any derogation from the principles governing the distribution of competencies between jurisdictions when...the dispute concerns the compatibility (of an administrative act) with international obligations.”17 In this case, European law, specifically the Charter of Fundamental Rights of the European Union, prohibits all forms of discrimination, particularly those based on nationality. The second exception occurs “when, based on established case law, it appears that such illegality is manifest.”18 In this case, the Commercial Court could determine the illegality of the lower court’s decision. SOGENA raised a plea of lack of jurisdiction, arguing that the decision of the Secretary-General for Defense and National Security was a governmental act related to France’s foreign relations, and thus enjoyed complete judicial immunity. However, the Court referred to consistent case law19 and concluded that this decision was “separable,” meaning it could be assessed independently from the policy pursued by the government and was therefore subject to judicial review. Under these conditions, the Commercial Court asserted its jurisdiction and rendered its decision.20 The efforts of the French authorities to avoid the classification of discrimination, which had been fatal to the organizers of EUROSATORY, proved to be in vain. Following the decision of the Paris Commercial Court rendered during the EUROSATORY exhibition, SOGENA had taken the precaution of having Israeli companies sign an addendum excluding its liability and aimed at 12. Order of the Paris Commercial Court dated June 18, 2024. 13. See https://www.sogena-events.com/sogena/?lang=en 14. Decision notified on Oct. 18, 2024, to SOGENA by the Secretary-General for Defense and National Security. 15. Court of Conflicts, Judgment of Oct. 17, 2011. 16. Constitution of Oct. 4, 1958, art. 55 (Fr.). 17. Paris Commercial Court, Oct. 30, 2024. 18. Supra note 15. 19. Supreme Administrative Court 6/29/1962; Court of Cassation 6/30/1992. 20. Supra note 17.
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