The 2012/03/19 at 13:05
Propos recueillis par Cécilia Dubé
Actu-cci.com: Did the decision of the Paris Cour d'Appel (Paris Appeal Court) in May 20111 surprise you?
Sylvain Niel: “It is the reasoning followed by the Appeal Court judge that surprised me. He relied on a condition of the Code du Travail (French Work Code) according to which, when employment safeguarding measures are inadequate, a retrenchment plan is invalid. Yet according to case law, if the plan is invalid, all subsequent acts are as well. In addition, the matter was referred to court in the middle of the consultation period according to the following reasoning: when there is no economic motive, the reclassification plan is invalid, as well as all procedural acts – including the consultation of the works council, and if this had been the case, the notification of the retrenchments. As a lawyer, this shocks me as there is no invalidity when there is no text: the judge pronounced invalidity according to a reasoning that has more to do with legal gymnastics than legal reflexion. But this is not the only case of this type. For some time, we have seen more cases that clearly challenge retrenchment plans as early as the procedural level: the Total group was thus sentenced to reopening one of its refineries (in Dunkerque in 2010, editorial note); Carrefour was prevented from closing a supply platform employing 200 persons in the south of France."
What does this suite of cases reveal in your opinion?
S.N.: “This raises a number of queries, to which the legislator needs to respond. Firstly, what is a group? In employment law, it is a mother company that has the power to order retrenchments in its subsidiaries. This is not the perimeter currently retained by the Cour de Cassation: subsidiaries can be perfectly autonomous with respect to the mother company's decisions. It is necessary to redefine this notion of the group in the context of restructuring. One of the elements to bear in mind would be to consider the group through the shareholder's decisional power."
More generally, what legal shortcomings exist in terms of retrenchment2?
S.N.: “According to the current definition of 'economic motives', there are aspects of business reorganisation that are not integrated. The legislator therefore needs to review this definition, to give more meaning to the consensus found amongst social partners when restructuring is planned. Today, whether there is a collective agreement or a unilateral decision, the judge's sanction is the same! Businesses that break up into small companies with under ten employees in order to be able to carry out retrenchments in each one, or else move machines between Christmas and New Year so that staff are confronted by a done deed, are sanctioned in the same way as those that do not use a fraudulent approach. Within the Cercle des DRH, we are in favour of legislative recognition of damages and interest taking into account not only the harm incurred by the loss of a job, but also a punitive and dissuasive aspect, to financially condemn intolerable practices."
Can the Cour de Cassation annul the decision of the Cour d'Appel?
S.N.: “This is the only solution. There are no legal elements allowing it to confirm the reasoning of the judges. It can annul it by recalling the absence of reference to law and by delivering a type of virtuous lesson on the need to fill in legal gaps. The multiplication of these cases highlights this inadequacy, and will perhaps allow distinction to be made between those who err and those who take advantage of the law."
1On 12 May 2011, the Paris Court of Appeal, after the matter was referred to it by the Viveo works council, cancelled the downsizing plan.
2At this point in time, the law considers retrenchment to be void when reclassification measures foreseen in the Plan de Sauvegarde de l’Emploi (PSE or Employment Safeguarding Plan) appear, in the eyes of the judge, inadequate.