Having regard to the dispatch of the decision of July 28, 2000 by which the Council of State ruling on litigation, seized of a request from Ms. Issa and Ms. Le Gouy tending, on the one hand, for the annulment of the decisions dated of June 24, 1994 of the principal of the lycée Jean-Mermoz in Dakar terminating their employment contract as of September 1, 1994, as well as of the implicit decisions of the director of the Agency for French education abroad rejecting their appeals against these decisions and, on the other hand, to the payment of indemnities for unfair dismissal and in compensation for the prejudices of any kind which they consider to have suffered as a result of these decisions, referred to the Tribunal, by application of article 34 of the amended decree of October 26, 1849, the care to decide on the question of competence;
Considering the judgment of November 16, 1998 by which the Paris Court of Appeal declared itself incompetent to hear this dispute;
Considering the brief presented for Ms. Issa and Ms. Le Gouy tending that the jurisdiction of the judiciary be declared competent on the grounds that the employment contracts of the interested parties were performed in Senegal, that it does not follow from their clauses that the common will of the parties was to submit them to French law, that the situation of the employees as employees of the Lycée Jean-Mermoz in Dakar was not governed by any rule of French public law and that if the judicial judge, under the national rules of jurisdictional competence, may have to hear a dispute relating to the execution of an employment contract subject to a foreign law, it is not for the administrative judge, adjudicator, to decide pronounce on the application of a contract which does notis in no way governed by French public law;
Considering the brief presented for the Agency for French Education Abroad, tending that the jurisdiction of the judiciary be declared competent by the aforementioned reasons of the brief presented for Ms. Issa and Ms. Le Gouy;
Having regard to the additional brief presented for Ms. Issa, seeking to establish that it cannot be considered that it follows from the clauses of her employment contract and that of Ms. Le Gouy that the common will of the parties was to submit said contracts to Senegalese law;
Having regard to the other documents in the file;
Considering the law of August 16-24, 1790 and the decree of Fructidor year III;
Considering the law of May 24, 1872;
Having regard to the amended law of October 26, 1849;
Considering article 1 of law n ° 90-588 of July 6, 1990, now article L. 452-1 of the Education Code;
Considering, on the one hand, that contracts concluded by State services abroad for the on-site recruitment of non-statutory staff are, in the absence of legislative or regulatory provisions to the contrary, governed by the law chosen by the parties , according to an express choice or which must result with certainty from the stipulations of the contract; that failing this, these contracts are governed by the law of the country where they are performed;
Considering, on the other hand, that the administrative judge, adjudicator in matters of international employment contract, is not competent to hear disputes arising from the execution and termination of contracts which are not governed by French law, knowledge of which rests solely with the judicial judge by virtue of the rules of conflict of laws and jurisdictional competence;
Considering that Ms Issa and Ms Le Gouy were recruited in 1977 and 1978 by the lycée Jean-Mermoz in Dakar, which is managed by the Agency for French Education Abroad, a national public administrative establishment placed under the supervision of the Minister in charge of Foreign Affairs and the Minister in charge of Cooperation; that it does not result in a certain way from the employment contracts which were executed in Senegal that the common will of the parties was to submit them to French law; that it follows, in the absence of legislative or regulatory provisions to the contrary, that the dispute between Ms Issa and Ms Le Gouy at the Lycée Jean-Mermoz in Dakar and the Agency for French Education at the
Article 1: The jurisdiction of the judicial order is competent to hear the dispute between Ms. Issa and Ms. Le Gouy at the Jean-Mermoz high school in Dakar and the Agency for French education abroad;
Article 2: The judgment of the Paris Court of Appeal dated November 16, 1998 is declared null and void. The case and the parties are referred to this jurisdiction.
Publication: Bulletin 2001 CONFLICTS N ° 20 p. 29
Contested decision: Council of State, 2000-07-28
Case law precedents: A RECORD: Chambre sociale, 1996-06-18, Bulletin 1996, V, n ° 249, p. 175 (rejection); Social chamber, 1996-07-09, Bulletin 1996, V, n ° 275, p. 193 (cassation without referral), and the judgment cited; Social chamber, 1996-10-28, Bulletin 1996, V, n ° 335, p. 253 (cassation without referral), and the judgment cited; Conflict Tribunal, 1996-03-25, Bulletin 1996, Conflict Tribunal, n ° 6, p. 7; Conflict Tribunal, 1996-06-03, Bulletin 1996, Conflict Tribunal, n ° 7, p. 9; Conflict Tribunal, 2001-03-12, Bulletin 2001, Conflict Tribunal, n ° 8, p. 11 and the judgment cited; Council of State, 1968-05-08, husband X …, Rec. Lebon, p. 289; Council of State, 1979-05-25, Mme Y …, Rec. Lebon, p. 231; Council of State, 1983-01-28, Mme Z …, Rec. Lebon, p. 28; Council of State 1991-06-07, MA .., Rec. Lebon, p. 223; Council of State, 1997-03-10, Mme de B …, Critical review of private international law 1997, p. 695, Coursier note.
Codes cited: Education Code L452-1.
Laws cited: Law 90-588 1990-07-06 art. 1.