By Jean Baptiste Guillot, Partner and Virginie molho, Counsel
Article published in the Lexis Nexis journal

COVID-19 | publication of a first “Sport & Culture” Ordinance

A new ordinance was adopted in application of article 11 of law n ° 2020-290 of 23 March 2020 of emergency to deal with the Covid-19 epidemic: Ordinance n ° 2020-538 of May 7, 2020 relating to the financial conditions for terminating certain contracts in the event of force majeure in the culture and sport sectors.

Inspired by the ordinance n ° 2020-315 of March 25, 2020 relating to the financial conditions of resolution of certain contracts of tourist travel and stays in the event of exceptional and inevitable circumstances or of force majeure which makes it possible to foresee a credit instead of reimbursement, this ordinance is intended to apply to the culture and sport sectors.

As a reminder, since the beginning of March 2020, regulations have gradually prohibited gatherings of 5 people to 000 people, then prohibited theaters and sports venues from welcoming the public and closed physical activity establishments. and sports, before prohibiting the movement outside the home of any person except for expressly enumerated reasons, of which the fact of attending a show, a sports event or attending an establishment of physical and sports activities does not form part . These measures lead a large number of customers and spectators to request cancellations and refunds both from entrepreneurs of live shows and organizers of sporting events and from operators of establishments of physical and sporting activities.

This ordinance modifies the obligations of certain entrepreneurs of the live performance, organizers or owners of the exploitation rights of a sporting event and operators of establishments of physical and sporting activities to allow them to offer to their customers, for a period strictly determined and limited in time, reimbursement in the form of an identical or equivalent service proposal, a credit note valid for a period appropriate to the nature of the service, not exceeding six months (for contracts for access to a establishments of physical and sporting activities and their possible associated services), twelve months (for contracts of access to one or more services of live performances) or eighteen months (for contracts of sale of access tickets giving the access to one or more sports events and their associated services), with the aim of balancing support for companies and associations in the cultural sectors ure and sport in this period of crisis with respect for consumer rights. This alternative to reimbursement makes it possible to save the cash flow of the companies and associations concerned..

This ordinance is structured around two main articles.

Article 1 specifies the scope of the ordinance which will apply to the resolutions of the contracts listed below notified either by the client or by the professional between March 12 and September 15, 2020 inclusive.

Contracts for access to one or more live performance services, including in the context of festivals, and their possible associated services, concluded between entrepreneurs of live shows, within the meaning of Article L. 7122-2 of the Labor Code, legal entities governed by private law responsible for ticketing, and their customers directly or through authorized distributors;

Contracts for the sale of access tickets to one or more sporting events, and their possible associated services, concluded between legal persons governed by private law exercising the activities of organizers or owners of the rights to exploit sports events within the meaning of Article L. 333-1 of the Sports Code, responsible for ticketing , and their customers directly or through distributors authorized by them.

Subscription sales contracts giving access to the performances of live shows mentioned in 1 ° and to the sporting events mentioned in 2 °.

It is specified that contracts for access to a live performance or to a sporting event forming part of a tourist package or a related travel service within the meaning of 2 ° of I are excluded from its scope of application. of article 1 of ordinance n ° 2020-315 of 25 March 2020 relating to the financial conditions for the resolution of certain tourist travel and holiday contracts in the event of exceptional and unavoidable circumstances or force majeure.

II of article 1218 lays down the principle, according to which, by derogation from the provisions in force, the entrepreneur of a live performance, the organizer or owner of the rights of exploitation of a sporting event can, directly or through the intermediary from authorized distributors, offer a credit note, instead of reimbursement of any amount paid and corresponding in whole or in part to the amount of tickets for access to live performances or sporting events and their possible associated services, as an exception to the right to reimbursement resulting from the combined provisions of articles 1229 and XNUMX of the Civil Code.

The provisions of III of article XNUMX of the ordinance provide that the amount of the credit is equal to that of all the payments made under the terminated contract. When this credit note is offered, the customer cannot request reimbursement of these payments during the validity period of the credit note.

They also provide that the live performance entrepreneur, the organizer or owner of the exploitation rights of a sporting event, offering a credit note to the customer, informs him in a durable medium (mail or email) no later than thirty days. after termination of the contract, or, if the contract has been terminated before the date of entry into force of this Ordinance, no later than thirty days after this date of entry into force. This information specifies the amount of the credit, as well as the deadline and validity conditions.

IV of article XNUMX requires the live performance entrepreneur, organizer or owner of the operating rights of a sports event to offer, directly or through authorized distributors, a new service allowing the use to see her.

This new service must be the subject of a contract meeting the following conditions:

1 ° The service is of the same nature and the same category as the service provided for by the terminated contract;

2 ° Its price is not higher than that of the service provided for by this terminated contract;

3 ° It does not give rise to any price increase other than those resulting from the purchase of associated services, which the terminated contract provided for.

The V of article XNUMX specifies that this proposal is formulated at the latest within three months from the notification of the resolution. This proposal specifies the duration during which it can be accepted by the client. This period may not be longer, from receipt of the proposal, than twelve months for contracts for access to one or more performances of live shows, and eighteen months for contracts for the sale of access tickets. giving access to one or more sporting events, and their possible associated services.

The VI of article XNUMX specifies that, when the price of the new service offered differs from the service provided for by the terminated contract, the price to be paid for this new service takes account of the credit. Concretely, this translates into:

- in the event of a service of higher quality and price: payment by the customer of an additional sum;

- in the event of a different service for an amount less than the amount of the credit note: the retention of the balance of this credit note, remaining usable according to the terms provided for by the ordinance, until the end of the period of validity of the credit note (breakable nature of having it).

In application of VII, in the absence of conclusion of the contract relating to the new service (for which the client has a credit note) before the end of the period of validity, the live performance entrepreneur, the organizer or owner of the rights operating a sports event reimburses or has reimbursed all payments made for services not performed under the terminated contract.

Article 2 relates to contracts for access to establishments in which physical and sporting activities mentioned in Articles L. 322-1 and L. 322-2 of the Sports Code and their possible associated services are carried out, concluded between persons private law companies operating these establishments, and their clients. It also modifies the obligations of the operators of establishments of physical and sporting activities so that they are able to offer their customers for a defined period, a credit note valid for a period of up to six months.

This article provides that its provisions will apply to the resolutions of these contracts notified either by the customer or by the operator of the establishment of physical and sports activities, between March 12 and September 15, 2020 inclusive.

The II of article 2 lays down the principle, according to which, by way of derogation from the provisions in force, it can be proposed, instead of the reimbursement of all the payments made, a credit note.

The provisions of III of article 2 provide that the amount of the credit note is equal to that of all the payments made for services not performed under the terminated contract. When this credit note is offered, the customer cannot request reimbursement of these payments during the validity period of the credit note.

They also provide that the operator of a physical and sporting activity establishment offering a credit to the customer, informs him in a durable medium (mail or email) at the latest thirty days after the termination of the contract, or, if the contract has been resolved before the date of entry into force of this Ordinance, no later than thirty days after this date of entry into force. This information specifies the amount of the credit, as well as the deadline and validity conditions.

IV of article 2 requires the operator of a physical activity and sports establishment to offer a new service so that their client can use the credit.

This service is subject to a contract meeting the following conditions:

1 ° The service is identical or equivalent to the service provided for by the terminated contract;

2 ° Its price is not higher than that of the service provided for by this terminated contract;

3 ° It does not give rise to any price increase other than that provided, if applicable, by the terminated contract.

This proposal is made no later than three months from notification of the resolution and remains valid for six months from receipt of the proposal (V of article 2).

The VI of article 2 specifies that, when the price of the new service offered differs from the service provided for by the terminated contract, the price to be paid for this new service takes account of the credit. Concretely, this translates into:

- in the event of a service of higher quality and price: payment by the customer of an additional sum;

- in the event of a different service for an amount less than the amount of the credit note: the retention of the balance of this credit note, remaining usable according to the terms provided for by the ordinance, until the end of the period of validity of the credit note (breakable nature of having it).

In the absence of conclusion of the contract relating to the new service (for which the customer has a credit note) before the end of the period of validity, the operator of a physical and sports activities establishment shall proceed, in application of the Article VII, to the reimbursement to which he is required, that is to say of all the payments made for the services not performed under the contract, if applicable, of the remaining balance.

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Jean Baptiste Guillot

Jean-Baptiste Guillot

Partner

Jean-Baptiste Guillot handles mergers and acquisitions, strategic partnerships, commercial law, company law and contract law matters, with a particular focus on international transactions for Canadian, British and French companies.

Portraits GINESTIÉ MAGELLAN PALEY-VINCENT 2021

Virginie molho

Counsel

Virginie has acquired a solid expertise in sports law allowing her to support players in the sports industry in all types of legal issues in commercial law, company law, association law and social law applied to sport.