Since the Cour de Cassation issued two legal opinions on July 17 2019 validating the Macron scale (link to our July 2019 Social Newsletter), this first Court of Appeal ruling handed down since surprises us yet again by taking a third standpoint!
The ruling of the Reims Court of Appeal of September 25, 2019 presents several unusual features.
Firstly, the Court of Appeal, contrary to the standpoint of the Cour de Cassation, recognizes the direct applicability of Articles 10 of the ILO Convention N° 158 and Article 24 of the European Social Charter, i.e. the possibility for individuals to invoke it before their national courts. As a reminder, the validity of the scale was denied by reference to these two legislations, which provide that a national court must grant an “appropriate compensation” for the damage suffered by unlawfully dismissed employees and an “adequate indemnity” for their harm.
Secondly, at the end of its compliance review with International treaties, the Reims Court of Appeal validates the principle of the scale. It considers that whether it be an “adequate compensation or an appropriate compensation it does not in itself imply a full compensation for the damage caused by an unlawful job loss and may be in line with the introduction of an financial compensation ceiling“. It adds, with regard to the ceiling introduced by Article L. 1235-3 of the Labour Code, that “The entire system, taken as a whole, and not in separate parts, leads to the conclusion, regardless of Ms X’s situation, that it is compliant with international treaties“.
Last but not least as this is where it is being creative, the Court invites the judges of the lower courts to carry out, for each specific dispute, a proportionality review “in concreto” assessing whether the legal measure “does not disproportionately infringe the rights of the concerned employee, i. e. by making him/her bear a disproportionate burden in relation to the result sought“.
In conclusion, although it rules that the scale is compliant with international legislation in principle, the Court of Appeal acknowledges that the judges of the lower courts may waive its application following an in concreto assessment. Therefore, if an employee were to demonstrate that the application of the scale to his dispute would result in inadequate compensation for his damage, the judge could waive the scale and award compensation beyond that provided for in the scale. In the present case, the employee had only requested an assessment in abstracto, which is why the Court of Appeal, despite the above, confirmed the judgment of the first instance ruling which had applied the scale.
It remains to be seen whether other Courts of Appeal will share and convey the opinion of the Reims Court of Appeal. It should be noted that if the Paris Court of Appeal was also scheduled to hand down a ruling yesterday on the scale, it postponed its ruling to October 30, 2019.
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