Advance Dispensation
LexInter | September 4, 2017 | 0 Comments

Advance Dispensation

Court of Cassation
Social Chamber

public hearing of March 15, 2000 Rejection

Appeal number: 98-41028
Unpublished
President: M. MERLIN advisor
FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by Etablissements Rabot, a public limited company with its registered office at Km5 route Territoriale n 1, 98800 Nouméa,

in cassation of a judgment rendered on November 19, 1997 by the Nouméa Court of Appeal, in favor of Mr. Marc Larrazet, residing 29 ter, route du Vélodrome, 98800 Nouméa,

defendant in cassation;

THE COURT, in the public hearing of February 2, 2000, where were present: Mr. Merlin, senior advisor serving as president, Mr. Poisot, referendum advisor rapporteur, MM. Finance, Texier, Advisers, M. de Caigny, Advocate General, Mme Guénée-Sourie, Clerk of the Chamber;On the report of Mr. Poisot, referendum advisor, the observations of the SCP Guiguet, Bachellier and Potier de La Varde, lawyer of the company Etablissements Rabot, of the SCP Monod and Colin, lawyer of Mr. Larrazet, the conclusions of Mr. de Caigny, Advocate General, and after having deliberated in accordance with the law;

Whereas Mr. Larrazet was engaged, by letter of February 12, 1991, as commercial director as from February 18, 1991 by the company of Etablissements Rabot; that the employment contract having been broken by mutual agreement on February 15, 1993, the employee was exempted, April 5, 1993, to carry out his notice of three months; that the company Rabot seized the labor court to seek in particular damages for non-compliance with the non-competition clause;

On the two means, combined:

Whereas the company Etablissements Rabot criticizes the judgment under appeal (Nouméa, November 19, 1997) for having rejected its claims and for having ordered it to pay compensation to the employee, then, according to the first plea, that failure to observe the notice period does not have the effect of bringing forward the date on which the contract ends; that by deciding that Mr. Larrazet had been able, during the notice of the performance from which he was exempt, to take, on the occasion of a modification of the articles of association, the management of a distribution company directly competing with that of which he was the sales manager without breaching his obligation of loyalty to which he remained bound towards his employer until the end of his notice, the court of appeal violated article L. 122-8 of the Labor Code ;that by refraining from any response to these conclusions likely to establish a lack of loyalty towards his employer, even during the period preceding the termination of contractual relations, the court of appeal violated the article 455 of the new Code of Civil Procedure;

But expected, first, that the court of appeal, which found that Mr. Larrazet was not subject to any non-competition clause and that he had been exempted from giving his notice, decided properly right that the person concerned could thus, during the period of notice not taken, enter the service of a competing company ;

And expected, then, that, ruling within the limits of the employee’s appeal directed against the provisions of the judgment having condemned him for violation of the non-competition clause, the court of appeal did not have to respond to the conclusions the employer evoking facts prior to the termination of the employment contract which were not likely to influence the solution of the dispute before it; that the means can not, therefore, be accepted;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Etablissements Rabot to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Etablissements Rabot to pay Mr. Larrazet the sum of 12,000 francs;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing on March 15, 2000.
Contested decision: Nouméa Court of Appeal 1997-11-19

Court of Cassation
Social Chamber

Public hearing of March 1, 2000 Rejection

Appeal number: 97-44973
Unpublished
President: M. MERLIN advisor
FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by Cogedep, a public limited company, whose registered office is rue des Vieilles Vignes, 77183 Croissy-Beaubourg,in cassation of a judgment rendered on October 1, 1997 by the Lyon Court of Appeal (social chamber), in favor of Mr. Robert V., residing at 15, rue Cavenne, 69007,

defendant in cassation;

THE COURT, in the public hearing of January 19, 2000, in which were present: Mr. Merlin, senior advisor serving as president, Mr. Brissier, rapporteur advisor, Mrs. Lemoine Jeanjean, advisor, Mr. Poisot, referendum advisor, Mr. Lyon-Caen, Advocate General, Ms. Guénée-Sourie, Chamber Clerk;

On the report of Mr. Brissier, advisor, the observations of the SCP Gatineau, lawyer of the company Cogedep, of the SCP Masse-Dessen, Georges and Thouvenin, lawyer of MV, the conclusions of Mr. Lyon-Caen, general counsel, and after having deliberated in accordance with the law;

On the sole means:

Whereas MV, employed by the company Cogedep as responsible for the video department of the establishment of Lyon, signed, on January 26, 1989, a transaction concerning the pecuniary consequences of the resignation of his employment;

Whereas the company Cogedep criticizes the judgment under appeal (Lyon, 1 October 1997) for having ordered it to pay a sum by way of transactional compensation, then, according to the plea, that, first, the non-performance of its obligations by one party to a transaction always allows the other party to obtain the resolution of the transaction; that by retaining, to condemn the company Cogedep to pay MV the compensation provided for by the transaction concluded on January 26, 1989, that the payment of the transactional compensation was not conditioned by the respect on the part of the employee of his obligation of loyalty and discretion stipulated in the transaction, the Court of Appeal violated Articles 1134 and 1184 of the Civil Code; while, secondly, Mr. Abscheidt attested to having met Mr.

that Mr. Gonez testified, for his part, that during this meeting, MM. Abscheidt and V. had informed him of their respective intention to work for the company CVC, competitor of the company Cogedep, and that Mr. Abscheidt had offered him a job within the company CVC, specifying the conditions of this possible hiring. ; that it thus emerges clearly from the certificates of MM. Gonez and Abscheidt that MV had played an active part in the conversation between these two men and in the “debauchery” of Mr. Gonez by organizing their meeting; that by retaining, to condemn the company Cogedep to pay the disputed transactional compensation, that it resulted from the certificates of MM. Abscheidt and Gonez as MV’s was limited to sharing a lunch with them without actively participating in it and without in any way favoring the departure of Mr. Gonez from the Cogedep company, the Court of Appeal distorted the meaning and scope of the certificates of MM. Abscheidt and Gonez and, thus, violated article 1134 of the new Code of Civil Procedure; whereas, thirdly, Mr Abscheidt himself clearly recognized, in his certificate, having attended the presentation meeting of the company CVC organized by the latter at its headquarters on 2 June 1989 for several employees of the company Cogedep; that in retaining, in order to order the company Cogedep to pay the disputed transactional indemnity, that it had not been shown that Mr Abscheidt was aware of the existence of the CVC company presentation meeting held on June 2, 1989 in its premises, the Court of Appeal distorted the remarks made by Mr. Abscheidt in his certificate and thus violated Article 1134 of the Civil Code; whereas, fourthly, in any event, and assuming that this distortion is the result of a purely material error and that the name of MV should be substituted for that of Mr. Abscheidt, Mr. Gonez clearly stated in his certificate that he had been informed of the existence of the meeting of June 2, 1989 during his meeting with Mr. Abscheidt, in the presence of MV, so that the latter could not be unaware of the existence of this meeting; that by retaining, in order to condemn the company Cogedep to pay the disputed transactional indemnity, that it was not shown that MV was aware of the existence of the CVC company presentation meeting held on June 2, 1989 in the latter’s premises, the Court of Appeal would then have distorted Mr Gonez’s certificate and, thus, violated Article 1134 of the Civil Code ; whereas, fifthly, the non-competition obligation is only the expression of the more general obligation of loyalty that MV had formally undertaken to respect, in the transaction of January 26, 1989, and to which he was , in any event, held by virtue of his employment contract, it does not matter whether he resigns since he was not exempted from the execution of his notice; that by retaining, to condemn the company Cogedep to pay the transactional compensation to MV, that the latter does not was not bound by a non-competition clause and that, having resigned, he could freely discuss with his work colleagues his professional future within a competing company, the court of appeal violated articles 1134 and 2044 of the Civil Code ; whereas, sixth, the appropriation of the property of another in the course of the work constitutes a breach of the obligation of probity and loyalty, whatever the importance of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not constitute a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code; he could freely discuss with his colleagues his professional future within a competing company, the court of appeal violated articles 1134 and 2044 of the Civil Code; whereas, sixth, the appropriation of the property of another in the course of the work constitutes a breach of the obligation of probity and loyalty, whatever the importance of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not constitute a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code; he could freely discuss with his colleagues his professional future within a competing company, the court of appeal violated articles 1134 and 2044 of the Civil Code; whereas, sixth, the appropriation of the property of another in the course of the work constitutes a breach of the obligation of probity and loyalty, whatever the importance of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not carry out a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code; a competitor, the court of appeal violated Articles 1134 and 2044 of the Civil Code; whereas, sixth, the appropriation of the property of another in the course of the work constitutes a breach of the obligation of probity and loyalty, whatever the importance of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not constitute a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code; a competitor, the court of appeal violated Articles 1134 and 2044 of the Civil Code; whereas, sixth, the appropriation of the property of another in the course of the work constitutes a breach of the obligation of probity and loyalty, whatever the importance of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not carry out a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code; obligation of probity and loyalty, whatever the importance of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not constitute a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code; obligation of probity and loyalty, regardless of the extent of the theft; that by retaining, to condemn the company Cogedep to pay to MV the transactional compensation, that the possession, by the latter, of products devoid of market value did not constitute a breach of his obligation of loyalty or probity towards his employer, the court of appeal violated articles 1134 and 2044 of the Civil Code;

But expected, first, that the Court of Appeal found, apart from any denaturing, that it was not established that MV encouraged employees of the company Cogedep to leave this company to be hired by a competing company;

Whereas, then, the Court of Appeal, which noted that the samples or specimens, which remained in the possession of MV, had no market value, was able to decide that the fact of not having spontaneously returned them did not characterize a breach of the obligation of loyalty or probity towards his employer;

That it follows that apart from the reasons overabundants criticized by the first and fifth branches of the means, the Court of Appeal legally justified its decision; that the means is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the Cogedep company to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Cogedep to pay MV the sum of 12,000 francs;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing on March 1, 2000.
Contested decision: Lyon Court of Appeal (social chamber) 1997-10-01

Court of Cassation
Social Chamber
Public hearing of November 27, 1991 Partial annulment.
N ° of appeal: 88-43917
Published in the bulletin
President: M. Cochard
Rapporteur: M. Combes
Advocate General: M. Graziani
Avocats: SCP Lyon-Caen, Fabiani and Thiriez, M. Foussard.
FRENCH REPUBLICIN THE NAME OF THE FRENCH PEOPLEWhereas, according to the judgment under appeal and the documents of the proceedings, that Mr. Buffet, principal clerk in the study of Mr. Lecornu, notary, was the subject, as from June 1, 1984, of a measure of dismissal for economic reasons accompanied by an unworked notice period expiring on October 31, 1984, his employer paying to him, in application of the provisions of the collective agreement of the notarial profession, in addition to the previous due relating to wages and paid leave, payment of termination indemnity and notice compensation; that, subsequently reproaching Mr. Buffet for having engaged, as early as June 1984, in acts of characterized competition constituting gross negligence, Mr. Lecornu seized the labor tribunal to obtain reimbursement of the compensation paid; that Mr. Buffet has counter-claimed a reminder of wages ;.

On the second plea: (without interest);

But on the first way:

Having regard to article 1134 of the Civil Code, L. 122-6 of the Labor Code;

Whereas in order to order Mr. Buffet to reimburse Mr. Lecornu the compensation for notice that he had paid him for the period from June 1 to October 31, 1984, the judgment held that it resulted from the provisions of the agreement collective that the non-observance of the period-notice had not resulted in bringing forward the date of termination of the employment contract; that Mr. Buffet was thus not founded to claim that the contract had ended, since the employer had dispensed from executing the notice; that exempt from his obligation of work, he remained held until the end of the contract to respect his other obligations towards the employer and particularly that of loyalty;

That by ruling thus, while having been exempted from complying with the notice, the employee had the right to enter, during his term, in the service of a company, even if it was a competitor, the Court of Appeal violated the aforementioned texts;

FOR THESE REASONS :

BREAK AND CANCELED, but only in its provisions having ruled on the reimbursement of the compensation for notice, the judgment rendered on July 7, 1988, between the parties, by the Caen Court of Appeal; returns, consequently, as regards this, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Rouen
Publication: Bulletin 1991 VN ° 531 p. 331
Legal week, Company edition, 1992-09-29, note F. TAQUET.
Contested decision: Caen Court of Appeal, 1988-07-07

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