Validation Laws Retroactive Effects, Human Rights
LexInter | January 2, 2014 | 0 Comments

Validation Laws Retroactive Effects, Human Rights

This appeal essentially raises the question of the conventionality of article 29 of the law of January 19, 2000, known as the Aubry II law, validating the remuneration of educators on the basis of equivalent hours provided for by a simply approved agreement.

This question is dominated by the recent Zielinski, Pradal and Gonzalez judgment of October 28, 1999, condemning France for violating the rules of fair trial, to which we will come back at length.

In the case before you today, the facts and the procedure are, succinctly, as follows.

The association “Being a child in Chesnay” manages a social establishment supported by the department for social assistance.

Mr. Terki employed there since 1 st September 1995 as an educator.

A wage dispute opposes him to his employer.

At the cassation appeal stage, this dispute only concerns the remuneration for the hours of night duty that he performed in the establishment and the equivalence regime established by the collective agreement of March 15, 1966 applicable to this type of work. ‘establishment.

By judgment of April 27, 1998, the industrial tribunal of Versailles had decided that these guards constituted, with regard to the requirements of the European directives, an effective job and should be remunerated as such and not according to the modalities provided for by the aforementioned collective agreement, less advantageous for the employee.

The association appealed against this decision.

During the proceedings two new elements arose:

  • First, your Auffrère judgment of 29 June 1999 (bull. N ° 307) according to which an equivalence schedule cannot result, except in the case where it is provided for by a decree in accordance with the provisions of article L 212-4 of the Labor Code, than an agreement or a derogatory agreement concluded in application of article L. 212-2 of the same Code. This decision specifies that such an agreement or such an agreement can only be, on the one hand, a branch agreement or an extended professional or inter-professional agreement, on the other hand, an agreement or a company agreement. or establishment subject to the provisions of Article L. 132-26 of the said Code.

then, the aforementioned law of January 19, 2000 which provides under which conditions an equivalence regime can be instituted from now on and of which article 29 provides that:

“Subject to court rulings which have become final, payments made in respect of remuneration for periods of night-time duty are validated, including time of inaction carried out at the workplace in a standby room by the staff in application of the clauses of national collective agreements and national collective labor agreements approved under article 16 of law n ° 75-535 relating to social and medico-social institutions in so far as their amount would be contested by the plea based on l ‘absence of validity of the said clauses “ .

By judgment of May 11, 2000, the Versailles Court of Appeal confirmed the judgment referred to it, on the essential grounds:

  • Share -Of that the collective agreement at issue could not validly establish an equivalence system for night guards made by Mr. Terki,“the actual working time (being) the time during which the” employee is at the employer’s disposal and must comply with his “directives without being able to freely go about personal occupations;” that Mr. Terki had to work hours presence at night at his “place of work; that even without being constantly disturbed, he had to be” permanently available to the employer, being observed, on the one hand “that his possible interventions went beyond simple surveillance” and necessarily covered an educational aspect, on the other hand, that this “presence met the needs and the activity of the employer which is” to welcome minors from three to thirteen years old; that hours “
  • -On the other hand, that if the association “Being a child in Chesnay” is indeed a social institution, within the meaning of article 29, cited above, of the law of January 19, 2000, this text must however “remain unapplied to the present dispute “ because it does not comply with Article 6 § 1 of the European Convention on Human Rights and for the Protection of Fundamental Freedoms as interpreted by the Strasbourg Court since it is ” established that taking into account judicial decisions “definitive unfavorable to employers’ social institutions, and therefore” ultimately to the departments, on the question of the remuneration of “night guards, the legislator, who by adopting article 29 (aforementioned) did not” act within the framework of of its normative function, interfered in “the administration of justice, to protect the financial interests” of public authorities, whereas no overriding motive of general interest “justified it” .

Two pleas are produced by SCP Piwnica-Molinié in support of the appeal against this judgment.

The first means endeavor to call into question your case law, recalled above, relating to the conditions under which an equivalence regime could be instituted in the state of the texts then in force and to the definition of effective working time.

There will be no need to rule on this first plea unless you reject the second, which should therefore be examined first.

The Court of Appeal is accused of having violated, by false application of Article 6 § 1 of the European Convention, by refusing to apply Article 29 of the Law of January 19, 2000. It is argued that in this case, the legislator’s intervention was only intended to provide for transitional measures prior to the establishment of a new system for calculating working hours, by limiting the scope of a case-law interpretation isolated, for the sake of legal certainty and general interest , and not to settle a dispute to which the State was a party .

To appreciate the value of this means, it is necessary to make some observations on the validation laws and case law drawn up, on their subject, both by the Constitutional Council and by the European Court of Human Rights, both of which will – with, however, an unequal rigor – in the sense of limiting the use of such laws.

Validation laws necessarily have retroactive effect. Mr. Olivier Schrameck, Councilor of State, defined them as “any intervention by the legislator who, by a text retroactively modifying the rule of law, protects legal acts from a risk of nullity or expiry without have to distinguish according to whether these acts come under private law relations or public law relations “ . (1)

These laws represent an interference of the legislative power in the judicial function and therefore call into question the principle of the separation of powers. (2)

They can respond to solid practical reasons and prove to be very useful in getting out of inextricable situations, but it can also happen that they  take the appearance of snubbing the judiciary” (3) and aim to preserve special interests.

It also appeared necessary to strengthen the rights of litigants by setting conditions for the intervention of legislative validations.

This is first of all what the Constitutional Council has undertaken to do since the beginning of the 1980s. (4)

Its case law lays down the principle “that it is neither for the legislator nor the Government to censure the decisions of the courts, to address them with injunctions and to replace them in the judgment of disputes falling within their jurisdiction. “.

The Council, however, admitted that the legislator can modify the terms of disputes submitted to ordinary courts, by enacting retroactive legal rules, provided that four conditions are met:

  • – the law must not relate to the act which was the object, if necessary, of the censure of the judge.
  • -The law must not disregard the authority of res judicata nor the principle of non-retroactivity of provisions of a repressive nature.
  • Itmust respond to reasons of general interest, or possibly to constitutional requirements.
  • – lastly, it must remain reasonably proportionate to the objective pursued.

However, this doctrine is still likely to evolve and, recently, an authorized commentator (5) detected in a decision of December 21, 1999 (99-422 DC) a tightening of the jurisprudence of the constitutional judge which, by relying on Article 16 of the Declaration of 1789 – from which derive the principle of the separation of powers and the right to an effective judicial remedy – appears, by a “subtle shift” , to turn its analysis more, in accordance with conventional requirements, towards the protection of rights of those who are victims of intervention by the legislator in judicial litigation.

In this state, it would therefore no doubt be hazardous to consider that the Council’s case-law has come to an end. (6)

But, today, it is from a European point of view that the laws of validation are under the spotlight and it is from this point of view that you are called upon to express your opinion.

It is, in fact, in Strasbourg that the question directly arose as to whether a validation law infringes the rules of a fair trial resulting from Article 6 § 1 as interpreted by European judges (7) which increasingly take into account “the increased sensitivity of the public to the guarantees of good justice” (8) .

By the resounding and already famous Zielinski judgment cited above (9) , the European Court went beyond (10) the current position of the Constitutional Council by making a new requirement in § 57 of its decision:

“The Court reaffirms that while, in principle, the legislative power is not prevented from regulating in civil matters, by new retroactive provisions, rights arising from laws in force, the principle of the rule of law and the notion of fair trials enshrined in Article 6 are opposed, except for overriding reasons of general interest , to interference by the legislative power in the administration of justice with the aim of influencing the judicial outcome of the dispute ” (11) .

In the present case, the Strasbourg Court declared Article 85 of Law No. 97-43 of 18 January 1994, relating to health and social protection, to be incompatible with Article 6 § 1, which, let us very briefly recall , had, following multiple litigation, validated the reduction, in practice, of an allowance of particular difficulties instituted, in 1953, for the benefit of the agents of the organizations of social security of the departments of Alsace and Moselle. The said Article endorsed, with retroactive effect from 1 st December 1983 the position taken before the courts by state officials and relevant cases. Seized before the promulgation of the law the Constitutional Council, by its decision of January 13, 1994  (12), considered that the text did not incur any censorship, the legislator having “intended to put an end to the divergences in case-law and (to) thereby avoid the development of disputes, the outcome of which could have entailed financial consequences detrimental to the balance of the social systems in question “ . In this state, the Court of Cassation had annulled (13) the judgments rendered in favor of the employees and the Colmar Court of Appeal had reversed the judgments favorable to other employees. Some of the officials concerned then brought an individual appeal before the European Court based on a violation of Article 6 § 1 of the Convention.

In order to uphold them, by the Zielinski judgment, delivered unanimously in the Grand Chamber (14) , the European judges, in addition to the reasons reproduced above, note (§ 58) that Article 85 of the contested law establishes definitively, retroactively, the terms of the debate submitted to the courts of the judiciary and, above all, that it purely and simply confirms the position adopted by the State in the context of the pending proceedings then, notes the Court, “that the trial judges were overwhelmingly in favor of the applicants “ . The European judges also note that “the circumstances of the case do not allow to affirm that” the intervention of the legislator was foreseeablenor can they support “the thesis of a perverted initial intention “ (§ 58.). They consider, finally, that “the financial risk denounced by the Government (…) and expressly noted by the Constitutional Council (…) cannot in itself allow the legislator to replace the parties to the collective agreement as well as to the judges to settle the dispute ” the amount of financial losses advanced by the Government in the event of general success of the appeals, not being matched ” by other elements of comparison, in particular as regards the total cost of the nine thousand employees, as for the particularities of the health expenditure of the organizations of Alsace-Moselle, etc … “ (§ 59). Ultimately, the European Court concludes that ” the adoption of the Article 85 actually settled the substance of the dispute “ and that ” its application by the domestic courts (…) rendered the continuation of the proceedings futile “ (§ 59).

This condemnation of France was largely predictable and announced  (15) .

Subsequently, the European Court confirmed its case-law with the Antona Kopoulous and others v Greece judgments of 14 December 1999 and Giorgiadis v Greece of 28 March 2000 (16) .

It would appear, moreover, according to the study just published by Professor Bolle, in the latest issue of the Revue française de droit administratif (17) , that to date the Strasbourg Court has not accepted the conventionality of no validation law aimed at avoiding additional public expenditure.

However, however draconian their case-law may be, the judges of the Human Rights Palace do not, however, interpret Article 6 § 1 of the Convention as prohibiting the adoption of any validation law (18) . But they make the admissibility of such an intervention by the legislature in an ongoing proceeding conditional on the existence (of) “overriding reasons of general interest” . (Zielinski judgment, § 57, cited above) or to “an obvious and compelling general interest” (19) . Otherwise, they believe, a disproportionate interference with the right to a fair trial.

These formulas are, as we can see, much more strict than that of a “sufficient general interest” adopted by the Constitutional Council, in the latest state of its case law, and it is these which must, in your turn, serve as your criterion. to assess, as you are invited by the appeal, the conventionality of article 29 of the Aubry II law, without however substituting your assessment for that of the legislator, for which you will only have to seek the reasons.

No one disputes your competence to carry out this control, the SCP Piwnica-Molinié only accusing the contested decision of a false application of Article 6 § 1.

It is, in fact, a given that if it escapes the Constitutional Council, by virtue of its own case-law (20) , the control of the conventionality of laws belongs to the ordinary courts, whether they are administrative courts (21). or courts of the judicial order (22) .

Moreover, by decision n ° 86-216 DC of September 3, 1986 (23) , the Constitutional Council clarified its case-law by stating in principle that respect for the rule laid down by article 55 of the Constitution “s’ even imposes in the silence of the law “ and ” that it is up to the various State organs to ensure the application “ of international conventions ” within the framework of their respective competences ” (24) .

It was therefore up to the Versailles Court of Appeal to examine the conventionality of article 29 of the law of January 19, 2000.

Is his assessment correct or incorrect?

Let us return to the three points of the plea: the intervention of the legislature, in the exercise of its normative function, would not have had, in the present case, the object of settling a dispute in which the State is a party (a). The legislator would have acted only in an aim of general interest (b) and to ensure legal certainty (c

a) The presence of the State as a party to the proceedings does not appear to us to be a condition for the application of Article 6 § 1(25).

As was observed by B. Mathieu (26) with regard to two judgments recently rendered by the first civil chamber of the Court of Cassation (27) , “the fact that the legislator decides a dispute in favor of one of the parties is, in principle, prejudicial to the right to a fair trial, the presence of the State in the dispute representing only an aggravating circumstance “ .

This author rightly argues, it seems to us, “(that) it would be contrary to the principle of separation of powers for the judicial power to be protected from the interventions of the legislator only when the State is party to the trial. and contrary to equity for the legitimate rights of the parties to be defended by the Convention only when the State is in front of them “ .

Be that as it may, the Zielinski judgment, as, moreover, in 1997, the Papageorgiou judgment against Greece, testifies to the fact that the Strasbourg Court understood the notion of State much more widely than it had done, in its time, the Court of Cassation and in our case, no one can dispute that it is indeed the interest of public finances that the legislator intended to protect by carrying out the contested validation.

However, this question will arise even if you decide to exercise your control in terms of Article 1 st of Protocol No. 1 which it seems disputed by anyone that he intended to apply to ” in general, regardless of the respective status of the parties to the proceedings already engaged (28) .

We will come back to that.
b) It is always in the general interest that the legislator legislates(29).

But, in this case, were the overriding reasons of general interest to the existence of which, as we have shown, the European judges subordinate the possibility of his intervention in an ongoing proceeding, were they characterized?

First of all, it is clear that the letter of the law does not contain any indication in this regard.

Secondly, the constitutionality of Article 29 not having been contested before the Constitutional Council, it is not possible to refer to the observations in response that the Government could have presented if such had been the case.

There remains therefore the examination of the preparatory work (30) . These show that the legislator’s intention was to deprive of a legal basis any action tending to draw the financial consequences from your judgment, cited above, of June 29, 1999. M. Chérioux, senator, co-author of the amendment which resulted in the disputed article 29, after having mentioned “the fears of the associative environment” had, in particular, stated that “if actions were brought by all those whose remuneration could be called into question” by application of this decision, “this would represent considerable sums,. He went on to stress the risk that any generalization (31) of litigation would represent for associations which, experiencing serious budgetary imbalances, would have to file for bankruptcy and also for the national community through local communities . “” The only one. The way, concluded Mr. Chérioux, to avoid such a risk is to proceed with a legislative validation of decisions, in particular salary, taken on the basis of the collective agreements today contested “ .

For her part, Ms. Aubry, then Minister of Employment and Solidarity, had agreed to this amendment by noting “that such validation seems necessary and complies with the criteria set by the constitutional judge because it is based on a general interest and does not affect court decisions that have become final “ .

It follows from this preparatory work that the situation that the legislator wanted to resolve has many points in common with the Zielinski affair, the objective pursued being the protection of the financial interests of public authorities and it emerges from the minister’s own words that the general interest taken into consideration has only been assessed in the light of the case law of the Constitutional Council, which we have just seen does not agree with that of the Strasbourg judges to which you, however, are responsible for refer you, within the framework of a control of conventionality.

Neither the text of the law in question, nor the preparatory work specify the additional cost of the application of the Auffrère case-law only to current proceedings .

However, this is the only point that matters, here, since the European judge only condemns the intervention of the legislator in the aforesaid instances, the application of the validation law remaining possible to disputes arising after the entry into force of this law. law.

It is, a fortiori, not possible, as it stands, to determine what the advanced financial consequences of your Auffrère judgment represent, in relation to the total cost of employees in the sector in question and to the overall budget of the associations concerned and public authorities involved.

However, according to the very case-law of the Constitutional Council relating to validation laws, the sole consideration of a financial interest does not represent a sufficient reason for the general interest, and moreover a recent decision of 29 December 1999  (32) , is refers to the concept of seriously damaging consequences that the outcome of the disputes in question could have entailed for the State, a concept which does not appear to be applicable in this case.

It follows that the judgment under appeal appears to have escaped criticism of this second part of the plea.

In the same vein, let us point out an interesting decision rendered on July 4, 2000 by the social chamber of the Bourges Court of Appeal and commented on in the Revue de droit social (33) . In this judgment, very well motivated – it seems to us – the judges, after noting that the legislative provision in question constitutes an interference of the public power in the current trial, in favor of one of the parties, state than :

“The financial interest of the social and medico-social institutions in question, and indirectly of the public collectivities which provide at least partial financing of them in various forms has never seemed imperative enough to the public authorities until then to determine it to create in the professional branch considered an equivalence schedule by decree within the framework of the provisions of Article L. 212-4 of the Labor Code, nor to confer on the contractual provisions which created this schedule sufficient authority to allow it to ” acquire derogatory value; that the criticized legislative intervention therefore obviously aims, in this perspective, to correct late a deficiency detrimental to the interests of the institutions in question and their funders,this goal cannot be considered as of general interest “. The Court of Appeal concludes that “since the reasons of overriding general interest are lacking, in this case, the element of unfairness of the trial created by article 29 of the law of January 19, 2000 cannot be justified. “ and therefore rules out the application of this tex

c) Last point of the plea: the legislator pursued an objective of legal certainty.

Article 29 of the law in question appears in Chapter IX entitled “Legal security” (we will come back to this point at the end of these conclusions).

This reference to the concept of legal certainty refers to the principles of legal certainty and legitimate expectations recognized both by Community law and by the European Court of Human Rights (34) .

By enriching the means, can we consider that, failing to be justified, in the light of the Zielinski case law, the intervention of the legislator was, in this case, in the light of this double European principle? Or even that the reference to these two concepts characterizes – implicitly but necessarily – an imperative reason of general interest?

Let us recall, in a word, what these two concepts cover.

The notion of legal certainty reflects a requirement for the reliability of the legal environment; that of legitimate expectation, which is its corollary, requires that “the subject of the rule of law not have to regret his past behavior because of the modifications subsequently made to this rule” (35) .

It should first be noted that these two principles have no constitutional value (36) that French law is, on the whole, less protective of legal certainty than Community law. As Professor Pacteau (37) observes : “Legal certainty is not as such incorporated into the principles of French public law; we do not see case law, neither administrative nor constitutional, nor the endorse “ .

However, this observation must be somewhat qualified because the premises of a jurisprudential evolution of the Constitutional Council are recorded (38) and certain authors consider that the judges of the rue de Montpensier have, “in fact, recognized constitutional value to the requirements which ( en) constitute the substance “ of the two aforementioned principles.

For its part, in three recent judgments, your social chamber applied, sometimes expressly, sometimes implicitly (39), of the principle of legal certainty.

But whatever the importance, legal certainty does not imply immobility and obviously does not prohibit interpretations of texts and reversals of jurisprudence (40) which are “the inherent consequence of any judicial system” . It is in fact – as the aforementioned judgment of the Bourges Court of Appeal rightly points out – “not to assimilate any reversal of case law to legal uncertainty prejudicial to the general interest, except to deprive case law of all power of evolution and adaptation of the rule to the requirements, precisely of this general interest “. This should not prevent the judge, in the name of legal certainty, from ensuring that his case-law does not have excessive consequences, as you have just done by one of your aforementioned judgments, the Jeumont judgment -Schneider, March 28, 2000.

On the other hand, the principles of legal certainty and legitimate expectations are, of course, a double-edged sword. They can be invoked in various and contradictory senses … and it is clear that in terms of legislative validation, it is essentially to protect the rights of litigants that the judge, national and European, has, little by little, strengthened the conditions imposed on the intervention of the legislator.

Very recently, you yourself ruled, in two judgments of 8 June 2000, that article 6-1 of the European Convention “precludes the application of article 34 of the law of 27 December. 1996 validating the payments made by social security organizations to private health establishments governed by Article L. 162-22 of the Social Security Code “ .

The Limoges court of appeal ruled in the same direction, in a judgment of 13 March 2000 (41) .

This decision was firmly approved by Professor Perrot (42) who considers that, without it being necessary to appeal to European texts, the transitional law required the solution adopted. “It would not be illogical, he observes, to pose as a principle that the introduction of a proceeding creates for the benefit of the plaintiff an acquired right, rebellious, if not to any new law which has arisen during the proceeding, at least. the retroactive application of a law which is not dictated by an overriding reason in the general interest “ .

To come back to the dispute which is submitted to you today, it has been pointed out, in legal writers, that article 29 of the Aubry II law “paralyzes any procedure in progress and prohibits future claims” and that “we can doubting such a parliamentary process which aims to “break” a case law that is dangerous for the funds of public authorities financing private establishments ” (43) . Another author notes “(that) objectively the law of January 19, 2000 gives reason to the employer whereas the social chamber of the Court of Cassation finally found him wrong” and wonders if there is not ” a breach of equality to the detriment of one side? “behind the employers’ associations point the State, the public collectivities. ”  (44) For his part, finally, the commentator of the Semaine sociale Lamy evokes the ” bad trick played on employees by legislative intervention ” .

In line with this case-law and this doctrine, we are inclined to consider that it was not possible to apply the disputed Article 29 to Mr Terki.

The non-predictability of said text for this employee is not to be demonstrated.

His proceedings being in progress, at the date of the promulgation of the law in question, he was – it seems to us – entitled to claim the benefit of the latest state of jurisprudence which is favorable to him and which, let us recall -le, had been established in full knowledge of its financial consequences (45) , without benefiting from a windfall effect, nor from a perversion of the initial intention of the legislator (46) . The latter, by the Aubry I law had, in fact, clearly manifested its will by expressly consecrating your Lulbin case law and, subsequently, the Auffrère judgment only recalled the conditions under which it could be derogated from the provisions of public order relating to working hours.

Moreover, is not this last judgment abusively presented as a turnaround? If it is true, as alluded to in the supplementary brief, in its developments (p. 16), that your Chamber had delivered, in recent years, in this matter, a few laconic or ambiguous judgments, your decision of 29 June 1999 has dispelled the ambiguity of this intermediate period by applying Articles L. 212-2 and L. 212-4 of the Labor Code, in their wording then in force, and by expressly reviving its previous case law (47) . You yourself have thus heard the work of clarification and reassurance (48) .

It should, moreover, be underlined that, paradoxically, the Aubry II law did not condemn for the future this case law which affects – let us remember – social public order. On the contrary, it reinforced it by making the establishment of a system of equivalent hours subject to conditions even stricter than those which you had retained.

In addition, it should be noted that the 1999 case law “fluctuation”, corrected by this Auffrère judgment (49) is subsequent to the date of conclusion of the employment contract of Mr. Terki (50) and to the judgment of the prudential council. men who had given him satisfaction.

In this state, it appears that it is Mr Terki, and not the association requesting the appeal, which is entitled to invoke the principle of legal certainty and legitimate expectations, mentioned above.

The senatorial amendment which resulted in article 29 of the Aubry II law therefore does not seem to us to be justified by the use of this double principle any more than it was by the existence of imperative reasons of general interest. .

This is why we suggest that you reject the plea, noting that the provisions of Article 6 § 1 of the Convention preclude the application of the validation law in question to pending proceedings .

It could, however, apply to disputes arising after its entry into force.

This is the distinction that the judgment under appeal had implicitly retained (p. 10, penultimate paragraph).

If, in your turn, you adopted it, you would take into account, as widely as possible, it seems to us, the objective of securing pursued by the legislator, by appreciably reducing the financial risk put forward by the applicant association. , without, however, being unrecognized, as regards Mr. Terki, who had already taken legal action, the rules of a fair trial.

You would also come closer to the spirit of the Jeumont-Schneider judgment, cited above.

We therefore suggest that you clarify your case law of June 8, 2000 by clearly laying down, through a leading judgment which appears to be eagerly awaited  (51) , the conditions for the conventionality of a validation law.

In the present case, this treaty could also be examined in the context of the first additional protocol to the European Convention on Human Rights, guaranteeing the right of everyone to the enjoyment of their property.

The concept of property law, within the meaning of this text, is in fact very widely understood by the judges of Strasbourg, as evidenced by the Gayssuguz judgment of 16 September 1996 condemning Austria for discrimination (52) and, of its On the other hand, your Chamber recently took up of its own motion a plea alleging a violation of Article 14 of the Convention in conjunction with Protocol No. 1, as interpreted by this decision (53) .

Mention should also be made of the Pressos Compania Naviera and others v Belgium judgment of 20 November 1995 (54) , by which the European Court admitted that in the state of (the) “legitimate expectation” of the applicants, based on domestic case law, to see their claims materialize in respect of the accidents for which they sought compensation, said claims were analyzed as a “property value” . (§ 31.) The Strasbourg Court thus intended to protect “virtual property” (55) .

In the present case, cannot Mr. Terki plead a legitimate expectation, having regard not only to your aforementioned case-law but also to the texts applicable in the case.

If this question is answered in the affirmative, article 29 of the Aubry II law could also be regarded, in application of this Pressos Compania Naviera case law, as constituting an interference in the enjoyment of a property.

However, we know that such interference is subject by European judges to conditions which were recalled in another of their recent judgments (56) : they demand that a “fair balance between the demands of the general of the community and the imperatives of the fundamental rights of the individual (§ 78, 80) “ is spared and if they reject, in the present case, the request it is because, in fact, the legislator had been guided by “an obvious and compelling general interest “ (§ 81).

As we have endeavored to show, this does not appear to be the case in our case.

In this state, the control of conventionality to which this appeal invites you could therefore, by broadening the debate , be exercised, both in terms of the aforementioned protocol and that of the fair trial or even on both levels, at the same time , as the European Court had done so in its landmark Greek Refineries judgment of 9 December 1994 (57) .

These are our observations in favor of rejecting the second plea .

As for the first plea, it too can only be dismissed since it is limited to attempting to call into question the Auffrère case law, the wording of which will suffice for you.

We therefore conclude that the appeal should be dismissed (58) .

  1. Quoted by Le Gars, “Legislative validations and the control of conventionality”, the small posters, n ° 71, of June 15, 1998.
  2. cf.B. Mathieu, International Yearbook of Constitutional Justice 1999, Volume XV, p.178.
  3. cf.R. Perrot, RTDC July.Sep. 2000, p. 630
  4. cf.L. Favoreu and L. Philip “The major decisions of the Constitutional Council”, Dalloz 1999, p.424 and s. ; X. Prétot “Legislative validations. From the Constitution to the European Convention on Human Rights”, RDP 1998, p. 11 and s. ; JP Camby, “Putting a stop to legislative validations: constitutional limits or jurisprudential limits?” RDP 1996, p. 323 and s. ; JP Camby RDP 2000, p. 612 and s. ; Girardot and Raynaud, AJDA 1998. 97.
  5. B. Mathieu, “Legal certainty: an import product henceforth” made in France “, concerning decisions 99-421 DC and 99-422 DC of the Constitutional Council”, D. 2000., n ° 4, “Point of view” p.VII.
  6. cf.B. Genevois, RFDA 2000, 724;X. Prétot, “The Constitutional Council, the European Court of Strasbourg and legislative validations” Mélanges Conac n ° 19 et seq., To be published by Economica editions.
  7. Your social chamber, by the Bozkurt judgment of 14 January 1999, Bull.V, n ° 24, p.27, quashed a decision by expressly referring to the interpretation by the European Court of the provisions of the Convention; cf. also Com. April 29, 1997, Ferreira, B. IV n ° 110, p. 96; JP Marguenaud, “The effectiveness of judgments of the European Court of Human Rights in France”, Annonces de la Seine, suppl. to n ° 14 of February 19, 2001.
  8. ECHR Borgers v Belgium, October 30, 1991, § 24.
  9. X. Prétot, “The Constitutional Council, the European Court of Strasbourg and legislative validations”, op.cit.; S. Bolle, “The unconventionality of a legislative validation in accordance with the Constitution: the judgment of the European Court of Human Rights of October 28, 1999, Zielinski and Pradal and Gonzalez and others against France”, RFD 2000 p . 1254 and s. ; A. Boujeka, “Validation laws under the caudar forks of the European Convention on Human Rights”. Small posters 8 June 2000 n ° 114; B. Mathieu, “Legislative validations before the Strasbourg judge” RFDA 2000, p. 289.
  10. JP Camby RDP 2000, cited above, p.615.
  11. We are emphasizing.
  12. No. 93-332, Rec.CC p.21.
  13. Cass.Soc.February 15, 1995, Bull. Civ. V n ° 58, p. 41. March 2, 1995
  14. See the concurring opinion of Judge ad hoc Bacquet.
  15. X. Prétot, AJDA 1995, p.579.

JF Flauss, Chron. AJDA 1998, 990; N. Molfessis, Chron. RTD. Civ. 1999. 242; S. Bolle, op. cited, p. 1255.

  1. Req.37098/97 and 41209/98, cited by S. Bolle, op.cited, p. 1255.
  2. Op. Cited, p.1259.
  3. Cf. however, C. Lepage, “Feues les lois de validation”, Annonces de la Seine, 2 December 1999, n ° 81, p.11.
  4. National Building, cited above, § 81, 112.
  5. Decision on voluntary termination of pregnancy n ° 75-54 DC of January 15, 1975.
  6. Cf. Nicolo CE Ass.20/10/1989, Rec.190, Concl. Frydman JP Markus, “The Control of Conventionality of Laws by the Council of State”, AJDA 1999, p. 99 and s. ; CE December 5, 1997, “Legislative validations and control of conventionality”, notes Le Gars, supra.
  7. See in particular Cass.Mixed Ch., May 24, 1975, S des Cafés Jacques Vabre, D. 1975. 497, Concl. Tufted; Ass. plenary 21/12/1990, Bull. 1990, Ass. Pl. N ° 12, p. 23: Ch. Crim. May 6, 1997, Bull. crim. n ° 170, p. 566; Ch. Crim. May 21, 1997, Bull. crim. n ° 191, p. 620; Cass. Civ. 1, February 22, 2000, GP August 25-29, 2000, p. 13 Concl. C. Roehrich; Cass. Civ. 1, June 20, 2000, two RFDA judgments p. 1189 et seq., Concl. J. Sainte-Rose; Cass. Ch. Soc. June 8, 2000, Bull. V n ° 225, p. 175, two stops; CE Assembly December 5, 1997, Ms. Lambert; Rec. 460, AJDA 1998. 149, Concl. C. Bergeol, AJDA 1998. Chr. Girardot and Raynaud prev. and GAJA 1999, p. 811.
  8. Rec.135.
  9. Cf. note B. Genevois RFDA 1987 p.126 to 128;JDI 1987 note R. Pinto, p.299, note Pinto.
  10. Contra, JP Marguenaud, RTD Civ.2000 p.437; ML Niboyet, .D 2000, Comments, p. 699.
  11. “A jurisprudence which errs by excess of timidity”, RFDA 2000, p.1201.
  12. Civ.1, March 21, 2000, Concl.C. Roehrich, supra; Civ. 1, June 20, 2000, Concl. J. Sainte-Rose, supra.
  13. JP Marguénaud, prev.
  14. Girardot and Raynaud, cited above.
  15. Cf. OJ January 20, 2000, p.992.
  16. We are emphasizing.
  17. December 28, 1995, Collection of decisions of the Constitutional Council 1999, OJ December 31, 1999, p.20012;cf. JP Lhernould cited above, p. 1017.
  18. JP Lhernould Rev.dr.soc. 2000, p. 1017; in the opposite direction cf. in particular, Paris 21 December 2000, 22 e ch., sect. VS. ; Limoges, January 8, 2001, ch. soc.
  19. The Court of Justice of the European Communities, in accordance with Article 174, paragraph 2, of the EEC Treaty may limit, for reasons of legal certainty, the retroactive effect of its annulment judgments.

CJCE, Defrenne v Sabéna, April 8, 1976; CJCE Barber, May 17, 1990; CJCE Moroni, of December 14, 1993.

CEDH Marckxd v Belgium, June 13, 1979; ECHR Brumarescu v Romania, October 28, 1999, obs. Flauss, JCP 2000. I. 203, n ° 10.

  1. JE Schoettl, AJDA 1997, p.971.
  2. Cf. Constitutional Council Decision 97-391 DC of 7 November 1997, except as regards two specific meanings of the concept of legal certainty: cf.Schoettl, cited above, p.971.
  3. “Legal certainty, a principle we lack?”, AJDA June 20, 1995, special issue p.151;M. Fromont, “The principle of legal security”, AJDA 1996, special issue, p. 183.
  4. Th. S. Renoux, Constitutional Code, LITEC, 2001, p.26;B. Mathieu, “Legal certainty: a clandestine but efficient constitutional principle”, Mélanges P. Gélard, Montchrestien 2000, p. 302; B. Pacteau, cited above, p. 151; Ph. Waquet, “Labor law and legal security”, to appear in the ENA alumni review
  5. Cf. P. Waquet, cited above;cf.A. Cristau, D. 2001 II p. 35.
  6. On the question cf.C. Mouly, “How to limit the retroactivity of judgments of principle and of reversal?”, Small posters May 4, 1994, n ° 53.
  7. D. 2000, IR 127.
  8. cited above.
  9. S. Hennion-Moreau, Review of health and social law 2000, p.149.
  10. A. Dorant, Sem.Sociale Lamy, 2000, n ° 981, p.7.
  11. See our conclusions, Rev.dr.soc., 1999, p. 768.
  12. ​​Prohibited by the ECHR cf.National Building, supra: by this judgment the European judges had admitted that the British legislator intervenes retroactively to prevent litigants from taking undue advantage of a text contrary to their will, resulting from a legislative flaw;J. Sainte-Rose, Concl. under 1  Ch. Civ. June 2000, cited above, p. 1196: in this case, the principle of legal certainty could be invoked by credit institutions, the borrowers not being able to maintain that they had a legitimate interest in not paying the interest due.
  13. Soc.November 13, 1990, Bull.V, n ° 549, to the report of Councilor Saintoyant.
  14. Cf. our concl., Cited above, p.771.
  15. dismissing the appeal against a judgment of10 July 1997.
  16. September 25, 1995: cf.the judgment under appeal, p.2.
  17. X. Prétot, AJDA, cited above, p.582;B. Mathieu, “A case law that errs by excess of timidity”, cited above, p. 1203 and 1205; A. Dorant, cited above, p. 6.
  18. D. 1998 II notes Marguénaud and Mouly;ECHR 21 February 1997, Van Raalte v / the Netherlands, § 44.
  19. supra.
  20. 38/1994/485/567;cf.B. Mathieu, “A case law that errs by excess of timidity”, cited above, p. 1201.
  21. L. Sermet, “Retroactivity and the European Convention on Human Rights”, RFDA 1998.990.
  22. National Building, supra.
  23. RTD Civ.1995. 652. Obs.F. Zenati.
  24. Since the taking of these conclusions appeared in the RDP n ° 1-2001 p.23 et seq., An important study by X. Prétot, “Legislative validations and the right to a fair trial”, taking stock of developments on the issue of constitutional, administrative and judicial judges.


Judgment n ° 1937 of 24 April 2001
Cour de cassation – Social chamber

Claimant to the cassation: Association “Etre enfant au Chesnay”
Defendant to the cassation: Mr. Moustapha Terki

Whereas Mr. Terki was hired, as from December 1, 1994, as a physical education instructor, acting as a boarding school educator, by the association “Being a child in Chesnay” managing an establishment under the National collective agreement for establishments and services for maladjusted and disabled people; that, on September 25, 1995, the parties signed a new contract under the terms of which Mr. Terki became an educator in training; that, arguing that overtime were due him under night guards, the employee seized the industrial tribunal by claiming the payment of reminders wages and leave paid leave related;

On the first plea:

Whereas the association criticizes the judgment under appeal (Versailles, May 11, 2000) for having decided that the employee should be remunerated for night shift hours, then, depending on the means, that:

1 ° / according to the terms of Article L. 212-2 of the Labor Code in its drafting prior to the entry into force of the law of January 19, 2000, only the cases of derogation from a regulatory text are subject to the extension of a branch agreement; that the Court of Appeal having found the absence of any decree applicable to the branch of activity concerned, it could not exclude that a collective agreement approved can validly institute a system of equivalence for night guards; that in fact, the approval, which confers on a collective agreement the effects attached to the regulatory provisions, is imposed in the medico-social sector because of its financing by public funds and supposes a control of the same type as the one that precedes the adoption of an extension order; that ruling as it did, the Court of Appeal ignored the meaning and scope of Article L. 212-2 of the Labor Code;

2 ° / by affirming that the hours of night duty constituted hours of actual work, without investigating whether these guards did not include time of sleep and inaction, whether or not comparable to on-call duty and liable to be paid in the conditions provided for by the applicable collective labor agreement, the Court of Appeal did not give a legal basis for its decision with regard to the provisions of Article L. 212-4 of the Labor Code;

But given, first of all, that it follows from Articles L. 212-2 and L. 212-4 of the Labor Code in their drafting then in force that an equivalence schedule can be instituted either by a decree or by a branch agreement or an extended professional or inter-professional agreement, either by an agreement or a company or establishment agreement subject to the provisions of Article L. 132-26 of the Labor Code; that an approved collective agreement does not meet these conditions; that the Court of Appeal, which noted, on the one hand, that no decree concerning the sector of activity considered had been taken and, on the other hand, that the National Collective Agreement of establishments and services for persons unsuitable and disabled had only been approved, decided,

Whereas, then, the Court of Appeal found that the employee had to perform his night shift hours in the establishment, that he had to be permanently available to the employer, that his interventions went beyond the simple supervision, covered an educational aspect and responded to the needs and activities of an establishment welcoming minors between three and thirteen years of age day and night; that in the state of these findings, she decided exactly that these hours of night guard constituted a time working effective which had to be remunerated as such;

From which it follows that the plea is unfounded;

On the second plea  :

Whereas the association also accuses the Court of Appeal of having ruled out the application of article 29 of law n ° 2.000-37 of January 19, 2000, then, according to the means,that the intervention of the legislator, in the exercise of its normative function, was only intended to provide for transitional measures prior to the establishment of a new system for calculating working hours, by limiting the scope of an isolated jurisprudential interpretation, for the purpose of legal certainty and general interest, and not to settle a dispute in which the State has been a party; that in ruling as it did, the court of appeal violated by false application Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, together, by refusal of application, article 29 of the law of January 19, 2000;

But given that the principle of the rule of law and the concept of a fair trial, resulting from Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, are opposed, except for imperative reasons of general interest, interference by the legislative power in the administration of justice in order to influence the judicial outcome of a dispute;

And whereas the Court of Appeal noted that the association was entrusted with a public service mission and placed under the control of a public authority which finances it by the payment of a daily price, that the lawsuit opposing the employee was in progress when article 29 of the law of January 19, 2000 came into force and that this text, for which it is not established that an overriding reason in the general interest justified, called into question, for the benefit of the association, a case law favorable to the employee in matters of equivalent hours; that in view of these findings, it decided, rightly, by application of Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to set aside the from which it follows that the plea is unfounded;

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