#France: Decisions of the Court of Cassation. @Courdecassation

PROTECTION OF NATURE AND THE ENVIRONMENT

SOCIAL SECURITY, ACCIDENTS AT WORK

WORK REGULATIONS, WORKING HOURS

COLLECTIVE LABOUR STATUS

Although an employee, in support of a plea of illegality of a collective agreement, cannot rely on a complaint based on the conditions under which the agreement was negotiated, he may, on the other hand, rely in support of that objection on the failure to comply with the legal conditions for the validity of the collective agreement, relating in particular to the status of the signatory parties, as provided for, for company or establishment agreements, by Articles L. 2232-12 to L. 2232-14 of the Labor Code. The judge hearing an action for nullity against collective agreements shall assess their compliance with the legal and regulatory provisions in force at the time of the conclusion of these collective agreements or agreements. In a judgment of 22 September 2010 (Soc., 22 September 2010, appeal no. 09-60.435, Bull. 2010, V, no. 188, published in the Annual Report), the Court of Cassation ruled that since the term of office of trade union delegate ends at the time of the renewal of the representative institutions in the company, the designation, following these new elections, of a trade union delegate, causes the period provided for in Article R. 2324-24 of the Code of Labour to run from the date of such appointment. even if the designated employee was already performing this task before the new election. The Court of Appeal therefore violates Articles L. 2232-11 and L. 2232-12, as amended by Law No. 2008-789 of 20 August 2008 of the Labour Code, by holding that the first professional elections held after the entry into force of the Law of 20 August 2008 were held in the company in June 2010, either prior to the signing of the agreement of 1 July 2010 replacing the agreement on working hours, the organisation of working time and wages of 30 June 1999 and its amendments, and the terms of office of trade union delegates who signed that agreement were not renewed between those elections and the signing of the collective agreement of 1 July 2010, that, since a judgment of 10 March 2010 (Soc., 10 March 2010, appeal no. 09-60.347, Bull. 2010, V, no. 58), that is to say, before the signing of the company agreement at issue, it has been held that the term of office of the trade union representative on the works council ends when the members of that institution are renewed, that, consequently, the trade union representatives who signed the company agreement of 1 July 2010 did not have the power to do so and that it is the case that the trade union representatives who signed the works council of 1 July 2010 did not have the power to do so. It follows that this company agreement is not enforceable against the employee, whereas it did not follow from Article L. 2232-12 of the Labour Code as interpreted on the date of the conclusion of the collective agreement in question, prior to the above-mentioned judgment of the Court of Cassation of 22 September 2010, that the term of office of the trade union delegates had ended

PRIORITY QUESTION OF CONSTITUTIONALITY

EMPLOYMENT CONTRACT, PERFORMANCE

For the purposes of Article L. 1224-1 of the Labour Code, interpreted in the light of Directive No. 2001/23/EC of 12 March 2001, an economic entity is an organised group of persons and tangible or intangible assets enabling the exercise of an economic activity which pursues an objective of its own. Consequently, the judgment holding that the fact that two of the employees supervising the activity had not been taken over by the new entrepreneur was sufficient to exclude the existence of a transfer of an economic entity maintaining its identity, even though it was clear from its findings that the incoming company had taken over the contract for logistics services entrusted to the outgoing company and continued, in the same premises and with the same equipment, the same activity to which fourteen employees were assigned, so that there was a transfer of significant tangible and intangible elements necessary for the operation

EMPLOYMENT CONTRACT, PERFORMANCE

Pursuant to Article L. 642-9, paragraph 3, of the French Commercial Code, any substitution of transferee must be authorized by the court in the judgment adopting the transfer plan, without prejudice to the implementation of the provisions of Article L. 642-6. It follows that, in the absence of authorisation by the court which adopted the recovery plan for a substitution of transferee, the employment contracts of the employees of the transferred undertaking whose employment is maintained by the plan are automatically transferred to the transferee. A Court of Appeal, which noted that the judgment of the Commercial Court had adopted the transfer plan only for the benefit of a company it designated and that it did not mention any authorization for a possible substitution of the transferee, in particular for the benefit of a third party presenting himself to an employee as a buyer, correctly deduced that the employment contract of this employee had continued by operation of law with the company designated pursuant to Article L. 1224-1 of the Labour Code

FAMILY ABANDONMENT

The purpose of a complaint for abandonment of a family is not to settle the sums due in alimony but to obtain damages for the non-payment

TRAFFIC ACCIDENT – compensation – insurer’s offer – time-limit – compliance – default – penalty – indemnity with interest at twice the statutory rate – subject matter – penalty for the insurer’s own obligations – compulsory liquidation of the insurer – consequence

The penalty of doubling the legal interest rate, provided for in Article L. 211-13 of the Insurance Code, is in the nature of default interest and does not constitute a claim for damages. If this sanction is applied to an insurer placed in compulsory liquidation, the rate of increased interest ceases on the day on which these insolvency proceedings are opened

PERIODIC PENALTY PAYMENT (LAW OF 9 JULY 1991) – liquidation – nature – scope

It follows from Articles L. 131-1 and L. 131-2 of the Code of Civil Enforcement Procedures that a periodic penalty payment is a personal measure the purpose of which is to compel the person who refuses to do so to perform the obligations imposed on him by a judicial decision and to ensure respect for the right to such enforcement. Its liquidation is not intended to compensate for damage. Since the claim for the payment of a penalty payment is not a right in rem in immovable property, nor an accessory to such a right, the deed providing for its transfer does not constitute a deed subject to land registration and its enforceability against third parties is not governed by Decree No. 55-22 of 4 January 1955 but presupposes the service of its assignment made to the debtor, or its acceptance by the latter, in accordance with Article 1690 of the Civil Code