Retroactive Application of Favorable Employment Law: French Court of Cassation Ruling

Extract

[...] 98-43.541 - Can a more favorable law apply retroactively to a contract of employment concluded beforehand in the absence of transitional provisions? - Case summary Judgment of July 12, 2000 In this case, an employee lists the various shortcomings of his employer regarding the employment contract that binds them and the collective agreement applicable to the profession exercised by the latter, including a breach of the legal maximum threshold of working hours or repeated omissions preventing him from fully exercising his activity. [...]

[...] Nevertheless, the doctrine has highlighted that the judge intervened once again in the face of the legislature's negligence, which is supposed to provide transitional provisions to avoid conflicts of law over time and unnecessary congestion of the courts in this regard (on the question: Report by Mrs. LAPLUNE, on a judgment of March appeal No. 2319696). Scope: This judgment, in civil matters, is comparable to one of the greatest principles of criminal law, which holds a similar position: Article 122-1-2 of the Penal Code provides that a new penal law, for which the scope of application is more restricted or the sanctions are attenuated, applies to facts committed prior to its entry into force as long as they have not yet been definitively judged. [...]

[...] Consequently, it considers that the employment contract should have been formalized by a written document strictly regulating the working conditions of the employee. Meaning: This judgment is particularly opportune in the sense that it is a true exception to the legal principle of survival of the old law in contractual matters, inscribed in Article 2 of the Civil Code. The legal regime that is supposed to apply is therefore that in force on the day of the conclusion of the contract, as it has been stated for example in a judgment of the first civil chamber of May 1982. [...]

[...] It is a matter of favoring the 'weaker party', the person involved, just as the employee is the theoretically weaker party in the employment contract, since subject to the subordination link of their employer, which is one of the conditions of validity of the contract. [...]

[...] In parallel, the employer raises a territorial inapplicability, specifying that the aforementioned law is not applicable to overseas departments and territories, and a lack of motivation by the Court of Appeal in response to the conclusions of the aforementioned first instance. Therefore, can a more favorable law apply retroactively to a contract of employment concluded earlier in the absence of transitional provisions? In a judgment delivered in its social chamber on July in response to appeal number 98-43.541, the Court of Cassation rejected the aforementioned appeal. [...]