Extract
[...] Thus, by rejecting the last contestations, the Conseil d'Etat has definitively closed the long and tumultuous litigation around the 2019 unemployment insurance reform. The government notes a hardening of the rules for unemployment compensation as of 1 February 2023 and the social partners will have to meet before the end of 2023 to negotiate the new unemployment insurance convention, which can be a source of new litigation in the years to come The litigation of the negotiation of the insurance convention is accompanied by individual litigation that opposes job seekers to Pôle Emploi II - The individual litigation between the job seeker and Pôle Emploi If the litigation mainly concerns the compensation of job seekers by Pôle Emploi it is juxtaposed today with a more recent litigation concerning civil liability and the shortcomings of Pôle Emploi A classic and abundant litigation concerning the compensation of job seekers by Pôle Emploi As a preliminary matter, it is worth recalling that the merger between the Assedic and the ANPE has not unified the applicable law, thereby inducing a plurality of competent judicial instances and a fragmentation of the litigation between administrative and judicial jurisdictions26, This is the source of litigation and complexity for litigants, job seekers becoming discouraged from taking legal action. [...]
[...] However, the contestation in recent years of unemployment insurance agreements shows the trend towards a "jurisdictionalization of social matters1». From a collective point of view, this litigation can be explained by the evolution of the object of collective bargaining, which is no longer necessarily to obtain benefits for employees. Thus, the tightening of the rules of the unemployment insurance scheme can lead non-signatory unions to increasingly contest the content of these unemployment insurance agreements, whether at the level of the legality of the approval or at the level of respect for the loyalty of the negotiation of the agreement. [...]
[...] However, there is a reservation: we expect an active participation of the one who is looking for a job, which in this case was not the case63. However, it is an important decision since it affirms that this right of accompaniment does not constitute only a simple objective for the public service, but rather a subjective right that each job seeker can demand respect for in justice (in contrast to the right to employment). Pôle Emploi must therefore make available to each of the job seekers all the necessary means in order to allow them to find a job. [...]
[...] The jurisprudence thus reminds us here that no one, not even Pôle Emploi, can make themselves justice. The judge of the referred seems to become the 'bulwark that the unemployed have to make their rights respected' in order to put an end to the illegal withholdings and to obtain reimbursement, which is not without difficulties47. Similarly, a contentious issue has arisen over the delay in compensation and the period of unemployment48, but also on the cumulation of benefits (between unemployment allowance and other benefits), cumulation sometimes accepted by jurisprudence 49, sometimes refused 50. [...]
[...] Firstly, the contentious issues related to the conditions linked to the person themselves of the beneficiary (age, aptitude) for the benefit of the replacement income are quite rare and offer few jurisprudential examples 31. One of the contentious issues, the most frequent, is the contestation, by Pôle emploi, of the quality of salaried, during the request for unemployment insurance benefits32. In addition, the notion of job search and positive acts gives rise to contentious issues33 since there is no real definition or precise content of this notion, just like that of availability which is also prone to raise difficulties. On this latter notion, for example, volunteering has given rise to contentious issues34. [...]
