Newsletter No. 104 – August 2017

Within the scope of a PSE set up following the compulsory liquidation of a company, the labor inspector had authorized the dismissal of a protected employee on 6 November 2013.  In March 2014, the administrative court annulled, in a first judgement, the administrative decision approving the PSE, and, consequently, in a second judgement, the decision authorizing the dismissal of the protected employee.  In June 2015, the administrative court of appeal repealed this last judgement.  According to the French Administrative Supreme Court (Conseil d’Etat), “the annulment of a decision of approval or validation, as being ultra vires, of an employment safeguard scheme leads, consequently, to the illegality of the dismissal authorizations granted, following this validation or approval, for the concerned operation”.  However, it is reminded that “the annulment of a decision of approval or validation of an employment safeguard scheme delivered as from 8 August 2015 and on the only ground of a lack of motivation does not lead, by itself, to the illegality of the dismissal authorizations granted in relation to this collective dismissal, subject to the administrative authority having taken, within the period [of 15 days as from the notification of the judgement to the administration], a new decision, sufficiently motivated” (CE, 19 July 2017, No. 391849).

A company, which was to take over a provision of service on behalf of an airport company, informed the latter that it was not considering rehiring all the employees.  A trade union then referred the case to the court of Bobigny (TGI de Bobigny) in order in particular for the provisions of article L. 1224-1 of the labor code to be judged applicable and for the employment contracts of the employees appointed to this service to be judged as having to be taken over.  The Court of appeal of Paris announced that this trade union had brought an admissible action and upheld its claims.  However, for the French Supreme Court (Cour de cassation),

« if a breach of the provisions of article L. 1224-1 of the labor code […] undermines the collective interest of the profession represented by the trade union, so that the acting of the latter by the employee’s side on the occasion of a dispute relating to the applicability of this text is admissible, the action requesting the transfer of an employment contract is a right exclusively attached to the employee as a person” (Cass. Soc. 12 July 2017, No. 16-10.460).

Initially, applications for the position of labor court councilor for the 2018-2021 labor court term were to be submitted by 31 July 2017.  Finally, the deadline has been postponed to 11 September 2017, 12:00 pm (Administrative order dated 2 August 2017 amended by the administrative order dated 5 May 2017, Official Journal of 12 August).

These breaches constitute fifth-class offenses punishable by a maximum fine of 1,500 Euros or 3,000 Euros in case of recurrent offenses, and no longer fourth-class offenses punishable by fines less than half (D. No. 2017-1230 of 3 August 2017, Official Journal of 5 August).

Referred to on 6 June 2017 on a priority question on constitutionality, the French Constitutional Council (Conseil Constitutionnel) just validated articles L. 2323-3 and L. 2323-4 of the labor code which organize the procedure of consultation of the works council and fix, in particular, its time limits.  The plaintiffs maintained that it resulted from the combination of these texts that the works council could be deemed having delivered an unfavorable opinion on the question referred to it by the employer, without the judge having decided on its request to pass on the missing information in order to usefully deliver his opinion.  According to them, in the absence of a suspensive effect of the court referral and given the material impossibility in which the jurisdictions would find themselves to comply with the 8-day period, the action offered to the works council would be ineffective.  For the Conseil Constitutionnel, “the contested provisions are coupled with the guarantees necessary to ensure compliance with the principle of participation of the workers in the collective determination of the working conditions along with the management of companies” (Cass. Soc. 5 July 2017, No. 15-21.389).

The scope of the unique authorization relating to the professional alert systems was limited to certain fields.  In order to take account of the provisions resulting from the law Sapin II relating to transparency and the fight against corruption, the CNIL just extended the perimeter of the unique authorization, which from now on covers “the automated processing of personal data implemented by public or private bodies with the purpose of reporting and handling the alerts, made by an individual, relating to:

-A crime or an offense;

-A serious and manifest breach of an international undertaking regularly ratified or approved by France;

-A serious and manifest breach of a unilateral act of an international organization taken on the basis of an international undertaking regularly ratified;

-A serious and manifest breach of the law or a regulation-

-Or a serious threat on or prejudice to the general interest, of which the issuer of the alert has been made aware personally”.

Is also covered the automated processing of alerts relating to:

-the obligations defined by the European regulations and by the financial and monetary code or the general regulations of the AMF (the French Financial Markets Authority);

-the existence of behaviors or situations in breach with the company code of conduct, concerning corruption or influence peddling facts, if the implementation of the processing addresses a legal obligation or a legitimate interest of the person in charge of the processing.

However, the unique authorization does not cover the alerts relating to facts covered by national defense secrecy, by medical secrecy along with attorney-client privilege (CNIL, deliberation No. 2017-191 dated 22 June 2017, Official Journal of 26 August).