LexInter | March 3, 2003 | 0 Comments


On the sole means:Whereas, according to the judgment under appeal (Nîmes, May 14, 1998), that the company Perrier Vittel France, designed a restructuring project involving in particular the outsourcing of the Caisserie Center bois of the Vergèze establishment, and the transfer of this service to the company La Palette Rouge, with the aim of moving from the returnable pallet system to the rented pallet; that it submitted this project comprising, according to it, the transfer of 37 employees in application of Article L. 122-12, paragraph 2, of the Labor Code, to the Vergèze works council, which, contesting the existence of an autonomous economic entity, seized with the CGT union, the tribunal de grande instance;

tangible or intangible elements allowing the exercise of an economic activity pursuing a specific objective; that in the present case, having found that “the activity of manufacturing and repairing pallets” of the establishment of Vergèze of the company Perrier Vittel France was carried out in a unit known as “Caisserie Center bois” comprising a staff composed of ‘”a specific framework for the workshop (a workshop foreman and a team leader)” and 37 other employees with an “average seniority” of assignment of “seven years” to this workshop, operating “on the site in separate buildings “using” equipment specific to the had not been included in the said project; then, on the other hand, that by determining by the consideration that the Caisserie Center Bois would not pursue an “own economic purpose” and would ultimately only be a “dismemberment of central services”, the contested judgment comes into conflict direct with the Community case-law interpreting the directive of February 14, 1977, according to which the concept of transfer of a business is applicable both when the economic activity is “ancillary” for the ceding business as when it is essential, interpretation henceforth. confirmed by Directive 98/50 / EC of June 29, 1998; then, from the third part, and anyway,
that by limiting itself, therefore, to stating that the Contrexeville pallet sorting and repair center would be organized differently from that of Vergèze (judgment p. 12, paragraph 1) and thus refusing to consider the site’s membership. disputed to the entire branch ceded to the same buyer, the Court of Appeal, again in this respect, deprived its decision of legal basis both with regard to Article L. 122-12 of the Labor Code and the directives above-mentioned communities;

But given that, for the application of Article L. 122-12, paragraph 2, of the Labor Code, an economic entity constitutes an organized group of persons and tangible or intangible elements allowing the exercise of an economic activity continuing a specific objective; that the resumption by another employer of a secondary or ancillary activity of the enterprise entails the maintenance of employment contracts only if this activity is carried out by the autonomous economic entity;

And whereas the Court of Appeal, which only had to rule on the project submitted to the Vergèze establishment committee, found that if this project concerned the Caisserie Center bois activity, this service which was only a simple dismemberment of the central services of the company, did not have within the establishment of Vergèze an autonomy, either in its means in personnel, because of the versatility of the majority of the employees, that in the organization of its production; that having retained that the service did not have particular means tending to specific results and a specific economic purpose, it was able to decide, without disregarding the directive of February 14, 1977 and in accordance with the provisions of article L. 122-12, paragraph 2, of the Labor Code, that the Caisserie Center bois de Vergèze did not constitute an economic entity for the application of the last of these texts ; that the means is unfounded;


DISMISSES the appeal.


Publication: Bulletin 2000 VN ° 285 p. 225

Contested decision: Court of Appeal of Nîmes, 1998-05-14

Precedents in case law: TO BE CONSIDERED: Chambre sociale, 2000-04-26, Bulletin 2000, V, n ° 150, p. 116 (dismissal), and the judgment cited.



Court of Cassation
Social Chamber

Public hearing of October 24, 2000 Cassation.

Appeal number: 97-45944
Published in the bulletin

President: M. Gélineau-Larrivet.
Rapporteur: M. Chagny.
Advocate General: M. Martin.
Lawyers: SCP Lyon-Caen, Fabiani and Thiriez, SCP Delaporte and Briard.


On the first plea:
Having regard to articles L. 122-12, paragraph 2, of the Labor Code and L. 710-4 and L. 711-2 of the Public Health Code;

Whereas Mrs. Mispiratceguy was hired on July 4, 1975 as a hospital agent by the company La Clinique des Cigognes; that it had for attributions the service of the meals to the hospitalized persons, the tasks of help in the kitchen and the cleaning of the rooms; that the clinic, which entrusted the company APR, from September 1, 1995, with cleaning activities, meal service and patient assistance, considered that the employment contracts of employees who performed, among their activities , the cleaning tasks, had been transferred to the company APR by application of article L. 122-12, paragraph 2, of the Labor Code; that the company APR offered Ms. Mispiratceguy a new employment contract entrusting her with the tasks of cleaning the rooms, at the exclusion of those from the meal service; that the interested party refused to sign this contract and that it was dismissed on 20 November 1995 for serious misconduct by the company APR;


Whereas, to reject the employee’s request for a judgment that she had remained in the service of the clinic, to order her reinstatement and the payment of an indemnity equivalent to the wages due from September 1, 1995 until her reinstatement in the clinic, the contested judgment retains that most of the hosting function of the clinic was transferred to the company APR with the means necessary for its implementation; that this function, which proposed a service having its own means and which retained its identity, is distinct from the role and the activity of care of the clinic; that this activity is detachable from the main activity of the clinic and that it constitutes an autonomous entity;

Whereas, however, it follows from the combined provisions of Articles L. 710-4 and L. 711-2 of the Public Health Code that the purpose of health establishments, public or private, is to provide care, with or without accommodation and that they must develop any action contributing to the overall care of the patient; that, consequently, these establishments constitute in themselves economic entities of which no service participating in the global support of the patients, even if it can be entrusted to a third party, can not constitute a distinct economic entity;

From where it follows that by ruling as it did, whereas it resulted from its observations and statements that the employment of the employee was attached to the service of lodging and feeding of the sick, the court of appeal violated the aforementioned texts;

FOR THESE REASONS, and without there being any need to rule on the second plea:

BREAK AND CANCELED, in all its provisions, the judgment delivered on November 3, 1997, between the parties, by the Pau Court of Appeal; returns, consequently, 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 Toulouse.

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