For the Paris Court of Appeal: from flexibility to firmness
The breach of non-compliance with international texts was quietly opened by the Court of Appeal of Paris, Pole 6, Chamber 3, in a first judgment dated 18 September 2019 (9).
Indeed, it stated that in accordance with the requirements of Article 10 of ILO Convention No. 158 and Article 24 of the European Charter, "compensation up to the two months provided for in the scale of constitutes an adequate and appropriate compensation for the particular situation ".
Consequently, there was "no need to derogate from the regulatory scale and to consider the scale contrary to the above-mentioned conventions".
The wording could have hit the nail on the head because the answer was expressly circumscribed "to the situation of the species", which did not require a "derogation from the regulatory scale".
On reading such a formulation, the possibility was open to the judge to reject the scale whenever he considered it necessary.
Article L. 1235-3 would have lost its binding nature.
For its part, the Court of Appeal of Reims, by the judgment rendered on September 25, 2019, appeared to rush indirectly into the same breach. For its part, it decided that "the control of conventionality does not dispense, in the presence of a device deemed conventional, to assess whether it does not disproportionately affect the rights of the employee concerned".
Thus, it stated that it was possible to conduct a "search for proportionality, this time heard" in concreto "and not" in abstracto ", which should have been" requested by the employee ".
However, the Court of Appeal of Paris (Pole 6, Chamber 8) has departed well from such convolutions to make a judgment that leaves no room for doubt.
A question continues to animate the commentators: will the dissensions between the province and the capital flourish even in the Courts of Appeal so that the scale is spread elsewhere in France?
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris
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