A new episode in the legal saga on Macron's scale: the Cour de Cassation (French Supreme Court) recently issued an eagerly awaited opinion on the compatibility of Macron's mandatory scale for the determination of damages in case of dismissal without real and serious cause with European and international standards.
It should first be reminded that the judge is now required to apply the mandatory scale for the determination of damages in case of dismissal without real and serious cause, as introduced by Ordinance n°2017-1387 and set forth in Article L. 1235-3 of the French Labor Code, and to award damages, the minimum and maximum amounts of which are determined on the basis of the employee's seniority and the size of the company.
Many Labor Courts have opposed this scale, arguing that it was incompatible with international conventions. Specifically, they consider that the application of this scale does not allow them to provide employees with an adequate compensation in accordance with Article 10 of Convention No. 158 of the International Labor Organization ("ILO") and Article 24 of the European Social Charter.
In response to this wave of opposition, the Ministry of Justice sent a circular dated 26 February 2019 to Public Prosecutors at the Courts of Appeals, in which it recalled that the scale had been validated by the Conseil d'Etat (Council of State) and the Conseil Constitutionnel (Constitutional Council)..
It is now the Cour de Cassation that has been asked to examine this issue. On July 19, 2019, it handed down two opinions1 following two applications filed by the Labor Courts of Toulouse and Louvriers with respect to the compatibility of this scale with European and international standards.
In both opinions, the Cour de Cassation first acknowledged that the applications were admissible and then expressed its view on the merits. In particular, it considered Article 6, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and then Article 24 of the European Social Charter to finally give its opinion on the compatibility of such scale with Article 10 of Convention No. 158 of the ILO.
The Cour de Cassation considered first of all that the provisions of Article L. 1235-3 of the French Labor Code do not constitute a procedural obstacle to access to justice, and that they, therefore, do not fall within the scope of the aforementioned Article 6, § 1.
With regard to Article 24 of the European Social Charter, the Cour...