THE COURT OF CASSATION, SOCIAL CHAMBER. Section formation.

On the appeal brought by Ms. Rose Evenas-Baro, residing at 55 bis, rue de Breteuil, 78670 Medan,

in cassation of a judgment rendered on November 12, 1998 by the Versailles Court of Appeal (5th chamber, section B), in favor of:

1 ° / of the company Sonauto, a public limited company, whose registered office is 1, avenue du Fief, ZA les Béthunes, BP 479, 95005 Saint-Ouen l’Aumone,

2 ° / of the company Chrysler France, a public limited company, whose registered office is 112, avenue du Général Leclerc, 92100 Boulogne Billancourt,

defendants in cassation;

THE COURTYARD,

Acknowledges that Daimler Chrysler France, headquartered at Parc de Roquencourt, BP 100, 78153 Le Chesnay, takes over the proceedings instead of Chrysler France;

Whereas Mrs. Evenas-Baro was hired on September 5, 1994 as head of the legal department by the company Sonauto, which was engaged in the import and distribution of Chrysler, Porsche, Mitusbishi and Hyundaï motor vehicles; that in May 1996, the Chrysler company resumed the distribution of its own vehicles in France; that the company Sonauto then engaged a procedure of collective dismissal at the conclusion of which Mrs. Evenas-Baro was dismissed for economic motive on April 16, 1997;

On the first plea:

Having regard to article L. 321-4-1 of the Labor Code;

Whereas, to dismiss Ms. Evenas-Baro from her request to have the social plan declared null and void and consequently to declare the dismissal procedure null and void, the Court of Appeal holds that the employee has no standing for request the cancellation of the social plan set up by the company Sonauto within the framework of Articles L. 321-1 et seq. of the Labor Code, since such an action, by collective nature, does not belong to the employees individually , that moreover the social plan provided for a measure of reclassement under the mobility intervened within the companies forming part of the group Sonauto and among which appeared in particular the company Austrian Holding Porsche Holding;

Whereas, however, on the one hand, employees made redundant for economic reasons have their own right to assert that their dismissal is null with regard to the provisions of Article L. 321-4-1, paragraph 2, of the Code labor, on the other hand, that the social plan must include precise and concrete measures to avoid or limit dismissals and to facilitate the reclassification of staff whose dismissal could not be avoided;

From where it follows that by ruling as she did, while the employee was justified in contesting the social plan in order to maintain that her dismissal was null and whereas she had maintained that the social plan did not include of reclassification measures in the Porsche group of which the Sonauto company is part, the Court of Appeal violated the aforementioned text;

And on the seventh plea:

Having regard to article L. 122-12 of the Labor Code;

Whereas, to put the company Chrysler France out of the case, the Court of Appeal stated that the deed of sale of business signed on May 22, 1996 between the companies Chrysler France and Sonauto provided for the transfer to Chrysler France in application of Article L. 122-12 of the Labor Code of five hundred Sonauto employees attached to the Chrysler activity, only Ms. Evenas-Baro, whose workload for Chrysler within Sonauto does not represent that 40% was in the minority has been kept in the workforce of Sonauto, that it cannot claim that it should have been at least “partially transferred” to Chrysler even though a dispute was likely to arise between the two companies due to this asset takeover and thatwas not conceivable that Ms. Evenas-Baro cumulatively defends the interests of two companies that have become competitors, that Ms. Evenas-Baro maintains that the compensation agreement signed on May 21, 1996 between Sonauto and Chrysler can be considered as a counter-letter within the meaning of Article 1321 of the Civil Code intended to effect a distribution of employees between companies by excluding the sole criterion provided for by Article L. 122-12 of the Labor Code, namely the employee’s membership in the transferred activity and that as such it is unenforceable against it, but that the purpose of the said agreement was in reality to distribute between the companies the charge of the restructuring costs resulting from the fact of litigation which may arise on the occasion of the application of the agreement of transfer of the business, thatsuch an agreement which does not contain any provision of such a nature as to defeat the provisions of article L. 122-12 of the Labor Code is lawful, that it follows that no fraudulent collusion between the companies Sonauto and Chrysler does not having been established, it is also necessary to confirm the judgment undertaken in that it exonerated the company Chrysler France to which, through regular application of the provisions of article L. 122-13 of the said Code, the employment contract of the ‘appellant was not transferred;he exonerated the company Chrysler France to which by regular application of the provisions of article L. 122-13 of said Code, the appellant’s employment contract was not transferred;he exonerated the company Chrysler France to which by regular application of the provisions of article L. 122-13 of said Code, the appellant’s employment contract was not transferred;

That by ruling thus when it had noted, on the one hand, that the resumption of the distribution of its own vehicles by the company Chrysler within the framework of the sale made with the company Sonauto entailed the transfer of an autonomous economic entity retaining her identity and whose activity had been continued by the transferee, on the other hand, that the employee devoted 40% of her duties to the activity taken over, which resulted in the deed of transfer not being able to defeat the provisions of Article L. 122-12 of the Labor Code, that his employment contract had been transferred in part to the company Chrysler France, the Court of Appeal violated the aforementioned text;

FOR THESE REASONS, and without there being any need to rule on the other six grounds:

BREAK AND ANNUL, in all its provisions, the judgment delivered on November 12, 1998, between the parties, by the Court of Appeal of Versailles; 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 Paris;

Orders the company Sonauto and the company Daimler Chrysler France to pay the costs;

Said that on the diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;

On the report of Mr. Frouin, referendum advisor, the observations of the SCP Célice, Blancpain and Soltner, lawyer of the company Daimler Chrysler France, of Me Ricard, lawyer of the company Sonauto, the conclusions of Mr. Lyon-Caen, lawyer general; M. WAQUET, Dean adviser acting as president.