When an employer does not affiliate his employee to Agirc over a given period, he can take action to compensate for his loss. In its judgment of April 3, 2019 (nº 17-15568 FP-PB), the Court of Cassation confirms that the limitation period for the action for compensation runs from the liquidation by the employee of his pension rights, it that is to say, the day on which the employee, holder of the debt, knew or should have known the facts allowing him to exercise an action.

In this decision, it provides a new clarification: in such a case, the 20-year deadline provided for in article 2232 of the Civil Code does not apply, in the name of the employee's right to take legal action.

1) Background.

When liquidating his pension rights, an employee realizes that his employer has contributed to Agirc-Arrco on an incomplete calculation basis or that he has neglected to affiliate him, he can take action to compensate for his loss.

Several clarifications of the case law:

On the one hand, the action for compensation for damage is not subject to the prescription relating to the payment of wages: it is subject to the general prescription of five years provided for in article 2224 of the Civil Code.

On the other hand, the limitation period only runs from the date of the employee's liquidation of his pension rights (Cass. Soc., July 11, 2018, nº 17-12.605, nº 16-20.029).

2) Facts and procedure.

An employee was hired on March 16, 1976 by Dumez Bâtiment.

In 1979, the employee occupied the position of land surveyor with missions abroad.

The employee was then affiliated to the basic scheme of the Expatriate Pension Fund.

When liquidating his retirement rights (droit à retraite) on July 1, 2012, the employee realized that during his expatriate assignments, certain quarters had not been validated and that the employer should have affiliate it with AGIRC.

On December 5, 2013, he applied to the Labor Court in order to obtain the condemnation of his employer to pay him various sums in compensation for the damage resulting from the lack of affiliation to the general scheme and to the AGIRC scheme. during his expatriation.

On March 11, 2016, the Limoge CPH in tiebreaker training affirmed that the action of the employee in liability against his employer was not prescribed and therefore ordered the company to pay the employee the sum of 60,000.00 euros as damages.

The company appealed this judgment.

The Court of Appeal set aside the judgment and found the action inadmissible to be time-barred: admittedly, the five-year period running from the time of the assessment of the rights was respected, however, the Court found the time-barred claim on the basis of article 2232 of the Civil Code.

Indeed, this article provides that "the postponement of the starting point, the suspension or the interruption of the prescription cannot have the effect of bringing the period of the extinctive prescription beyond twenty years from the day of birth law ".

Thus, the Court of Appeal found that the 20-year period began from the last day of the period during which the employer had to contribute for retirement, that is to say in July 1986.

According to the judges, the rights born between January 1977 and July 1989 had been covered by the extinctive prescription by 1 August 2006 at the latest.

The employee therefore appealed to the Court of Cassation.

3) Solution and analysis.

The Cour de cassation affirmed that “the limitation period of the action based on the obligation for the employer to affiliate his staff to a supplementary pension plan and to settle the contributions which result therefrom only runs from the liquidation by the employee of his retirement rights, the day on which the employee holding the claim in this capacity knew or should have known the facts allowing him to exercise his action, without the provisions of the Article 2232 of the Civil Code. ".

Thus, the Court of Cassation censored the analysis of the Court of Appeal.

To make this decision, the Court of Cassation is based on Article 6§1 of the Convention for the Protection of Human Rights, which affirms the right to take legal action: the right of the employee to act in compensation for his prejudice must not be hindered by the maximum period of 20 years, resulting from article 2232 of the Civil Code, as soon as the period of five years following the liquidation of pension rights has been observed.

We must welcome this decision.

C. cass. April 3, 2019, n ° 17-15568 https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038373550


Frédéric CHHUM avocat et member du Conseil de l’ordre des avocats de Paris

Julie Rougé-Guiomar

CHHUM AVOCATS (Paris, Nantes, Lille)