The Grinch Stole my Country

July 2005

I hope that the now-deceased Dr. Seuss doesn't mind my using the title of one of his books, since it so accurately summarizes the feelings and dynamics related to the two issues I'm now going to expand on.

The first issue has to do with recent events related to the attempt to ratify the European constitution. On the one hand, one could argue that the EU was and is not a country. However, I personally believe that, as soon as a constitution is drafted and submitted to the people, directly or through Congress, one can argue that a country is either established or about to be. My perspective on this is, admittedly, fairly unique. I was born about the time the first European treaty was signed establishing free trade of coal and steel between EU member countries. Then, in 1973 (when I was fourteen), the second batch of member countries joined the EU, one of them being Denmark. My mother’s entire family is Danish, and on my father’s side, I also had uncles and aunts living in other member countries’England and Germany’so I grew up with the idea that at some time in the near future, certainly during my lifetime, all my family members and I would be citizens of the same country. For me, the concept of one European country was then and still is very concrete, since I could envision sharing the same 'country' with those who share my blood. Since that time, and for over twenty years, the trend has been toward the creation of just such a unified European country. With the launch of the euro currency, I believed that the last cornerstone in the steps to building a federal nation had been put in place. When a constitution was drafted, I was ecstatic, eager to endorse it and be done with it. My dream was coming true; I could almost touch it.

ABOUT THE E.U. CONSTITUTION
Then I read the document and saw that it was a scam because among many other things, it required a unanimous vote to pretty much change anything. This document therefore made it almost impossible to create a true federation--a United States of Europe along the same lines as the USA. Somewhere, somehow, someone stole the country I dreamed about for decades. As I said earlier, my cross-European family ties probably make my point of view pretty unusual. Be that as it may, I believe that one of the main reasons this constitution was rejected--and not only by France--is that people largely had the common sense to say « No » when presented with the question: "Do you endorse this proposed 'constitution', which prevents the creation of the federal country it is supposed to create?" The referendum simply made no sense. Should the proposed « constitution » have (1) defined the three fundamental powers and the balance of power between them as well as (2) defined the democratic process to elect a government and Congress and finally (3) defined the balance between state and federal prerogatives, it would have conceptually created a proper federation of states and everybody could then have clearly expressed an opinion by voting for or against the federation. Should the proposed document have been just one more international treaty (like the many Europe has adopted over the course of its modern creation) then it would not have been called a « Constitution » and this would have been clearly stated in the referendum. Because of the ambiguous nature of the document proposed to popular vote, I am convinced that even a YES vote would not have changed my position that my country has been stolen, nor would it have made the issue of the future of the EU any simpler. Just imagine Mr. Adams and Mr. Jefferson arguing about whether or not the USA should even exist as a country, rather than, in a spirit of mutual love for their country, the newborn USA, negotiating among other things, the role of the individual states. I long for outstanding European leadership that will carry this mission forward successfully, as the USA's founding fathers did.

ABOUT THE USA
Concurrent to the unfolding of this EU situation, I was reflecting on one of my very long-term clients, who has recently undergone hardship. The coincidence of these two situations happening at the same time points out the message of "The Grinch Stole My Country" even more clearly. He is an American citizen who acquired French nationality a while ago and has lived in France for many years. He feels completely integrated in France and on occasion, calls me to get my opinion and specific advice. About my age, with a somewhat prestigious career in the multi-national corporate world, this is the profile of someone who should not encounter any problems in either country. With his permission, I would like to relate some recent events in his life. While driving through a national park in the USA, he saw a public restroom and decided to use it. The door was locked, but there was no 'Out of Order' sign. Nature called (!), so he discreetly went behind the restroom building, which was not in view of the parking lot or anyone, and took care of business. Unfortunately, a policeman saw him and charged him with disorderly conduct - obscene act, which is a misdemeanor. To make a long story short, this man recently served a five-day jail sentence in the USA plus a fine as well as one year of unsupervised probation for this offense. I am totally incompetent to question anything about this court decision. Therefore my assumption is that this decision complies with current American law, and I do not dispute it. That said and as an aside, I can remember a time when it would have been inconceivable that such a facility be closed, without a backup solution; I can also remember a time when nudity was some sort of political statement in the USA. But reviewing the positive or the negative changes the USA has gone through over the last thirty years does not interest me either. I would like to stay focused on how this man feels. He is so used to living in France that he had no warning signals in his mind saying, « Be careful, this is a big deal in the USA. » In France, while it is arguably distasteful, it is nonetheless quite common to witness men urinating in the streets, including in all neighborhoods in Paris. I am not here to give a legal opinion on the appropriateness of the sentence my client received relative to the deed he committed, nor do I want to criticize France for being too lenient regarding a widespread problem. My focus is simply on this American man who left his country quite some time ago and kept in his memory what his country was like at that time. The USA has really changed a lot since Ronald Reagan became president, so much so that, for this man, it felt as if someone had, indeed, stolen his country and replaced it with another one of which he does not feel part of. All the cross-cultural professionals state that the hardest thing is to move back to your own country, because being a citizen, you never get the benefit of the doubt that foreigners will get. Further, you feel like a complete alien in your own country. Even though you grew up there, it no longer feels like 'home'. Time and 'water under the bridge' combined have « stolen » your country. For this client, as well as for me, it is less traumatic to think that « the Grinch » did it rather than looking objectively at the political choices over the last twenty years or so that have led to our current respective situations.

On a different level, professionals can help ease the process of settling in another country, whether for a short stay or for life. Learning the laws, customs and daily etiquette is always necessary in order to successfully adapt and stay out of trouble. But beyond these kinds of considerations, the reality is that human beings need to feel safe, to create a 'home' for themselves, and a home is much more than just a domicile, a place to live. In effect, these two stories in many ways deal with this concept of feeling 'at home', of belonging to some place that is called 'home'.
OFFICE CLOSED FOR SUMMER VACATION
As usual there will be no August issue. So have a nice summer.

Best regards,
Jean Taquet

"DOING BUSINESS AS" D.B.A. IN FRANCE?

QUESTION

Is it possible to do a D.B.A. (« Doing Business As ») in France?


UP

ANSWER

The "Doing Business As" status is possible in France, including for foreigners, and even allows such individuals to hold and renew an immigration status and therefore stay in France. However, I'm afraid that if I do not explain more, this could be quite misleading. D.B.A. is often mistaken for meaning self-employed. While it almost always implies this, there are many people who are self-employed and have never even considered that a D.B.A. was an option. So I will give you a few definitions. Being self-employed means that the individual runs a business alone, but this says nothing about the nature or scope of that business. In recent years, it has become more and more accepted that an individual states he/she is self-employed while doing business through a small corporation, e.g. an LLC or INC with one partner. "Doing Business As" means that the business in question has a name of its own which is not the name of the person. For example, Mr.Smith opens a bar called the « Home-run Café ». There is absolutely no way that anyone can identify who is the sole proprietor of this business by reading the name of the bar.
In French, there are two ways to translate this, depending on how the question is addressed. If one addresses the name and often the logo that goes with it, then the name in French is « l’enseigne ». If one addresses the more legal concept, then it is « le nom commercial ».

What is completely misleading is that the main difference in French law is between a professional activity (« une activité civile »), and running any other type of business (« une activité commerciale ou industrielle »).

From a legal as well as from a fiscal point of view, this distinction is the cornerstone of French law in this matter. Even though this distinction follows a rather logical principal, most Anglo-Saxons living in France really have a hard time seeing this logic, so you are much better off asking a professional of the category your business falls into. The easy ones to identify are usually activités commerciales/industrielles: retail (buy to sell), manufacturing (mass production of similar goods), and transport (of goods and people). Once you enter the concept of services, the line is a lot more difficult to follow.

There's one last element I'd like to mention on this topic, which is important even if you do not yet have French residency or are not yet ready to open your shop or office. For a lot of reasons (and regardless of the legal status under which you choose to run your business), as an individual, you should patent your business' name as soon as possible, once your choice is final, with the I.N.P.I. (Institut National de la Propriété Intellectuelle). This way, you have ownership of the use of the name, provided that no one else already owns it. This gives you an excellent leverage tool for the future in the case of merger, acquisition or simply partnership negotiation. Indeed, the commercial name of a business has become certainly one of its most valuable assets, and personally owning it can be very useful.

As for the substantial wait for an appointment, it depends on a lot of factors; my experience is that lately carte de résident holders get their renewal appointment several months after the date of request and the process of issuing the card also takes a long time. So be ready to hold a récépissé (periodically renewed) for up to a year. It might feel unsettling, and you might be anxious to get it over with, but there is no way I know of to speed up the process and the prefecture is good about keeping you documented. You have to trust the system, which means trusting the prefecture, if you want to go through this with some peace of mind.

HOW TO OBTAIN A CARTE DE SÉJOUR AS A SELF-EMPLOYED PERSON

QUESTION

I would like to set up a legal guardianship for my daughter, if anything were to happen to my husband and myself. I am a New Zealander, married to a French national (my husband was born Iranian, and has had French nationality for ten years now). Our daughter was born here, and has both NZ and French nationality. We would like her to be brought up in New Zealand by my relatives if anything happened to us. Under French law, what should we do to ensure this happens?


UP

ANSWER

This rather simple question requires quite a complex answer. First of all, French law regulates wills and estates so differently from the common Anglo-Saxon system that it would almost take a book to describe the differences. I will therefore strictly focus on guardianship when both parents are dead at the same time, or just about. Under such circumstances, the French judge has the ability to completely over-rule the parents' choice, even when it is stated in a valid will. This is possible because the judge rules in the best interest of the child (children), and this new situation could create such a different setting that the parents' choice was not the best one anymore. The good news is that this scenario is extremely rare. The judge, indeed, tends to think that the parents knew best what is in the best interest of their children. This said, I would still strongly advise you not only to state your wishes as presented in your question, but also to explain in detail your reasons for this choice, as well as the financial arrangements set up to alleviate the financial burden it would create for your NZ relatives. So, the way to go about this so as to give your intention its best shot should be:

Step 1: – Define WHY both of you want the child to go back to New Zealand and not stay here in France. You should list all the reasons, the reasonable ones, the personal ones, the silly ones, everything that has influenced this choice.

Step 2: – Define who would be the potential guardians in New Zealand, why you chose them, how they will get the financial means to pay for this guardianship.

Step 3: – Define what might be the reasons that your in-laws could put forward to attempt to overturn this decision and what your response would have been, were you alive.

Step 4: – Outline how your daughter would travel to New Zealand, because in today’s world, children traveling alone mean following a pretty strict procedure called the UM procedure (i.e. Unaccompanied Minor). Specifically, who would take her to the airport and who would have the right to sign to put her on the plane?
Once you have thoroughly addressed all these issues, you should then write a French will with the help of a notaire, and leave one original with him/her so it can be implemented. I would also advise that, with the notaire's help, you write a memo detailing any other pertinent points not covered in the will.
Keep in mind that the more sound and solid reasons you have for this decision, the more likely it is that the French judge would agree to and enforce it.

Also, at the time of your death, a « conseil de famille » (which could be translated as a "family board »), will be created, and family members of both sides should be named to it; the judge serves as the president of this board. It could happen that your husband’s relatives and family members strongly disagree with your choices and, should they be living in France, this board could then try to have the judge overrule your decision.

A lot of practical elements in your situation - the distance between New Zealand and France, the citizenship of origin of your husband, as well as the slight tendency of French judges to keep children in France - should convince you that putting all this into place will require a lot more than copying the normal sample document that the notaire has handy in the office. You should also seek information and advice from organizations that deal with multi-national families.


UP

Leave a Reply

Your email address will not be published.