|FRENCH REPUBLIIN THE NAME OF THE FRENCH PEOPLE
IN THE NAME OF THE FRENCH PEOPLETHE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:
Whereas, according to two successive contracts, the company Esso entrusted to the company X …, constituted for this purpose, the operation of a service station; that the company Esso proceeded to the early termination of the contractual relationship; that Mr. and Mrs. X …, co-managers of the company X …, seized the industrial tribunal on the basis of Article L. 781-1 of the Labor Code; that the company Esso concluded that the request of spouses X … was inadmissible by maintaining that the provisions of article L. 781-1 were inapplicable to legal persons and managers of legal persons and by arguing that the company X … having previously seized the commercial court,On the first and third pleas, together:
Whereas the company Esso complains against the judgment under appeal (Bordeaux, March 1, 2005) of having “declared admissible as it is the request of spouses X …” and of having declared the competent industrial tribunal then , according to the first means:1 / by affirming that the tenant-manager company would be a front company leaving room for a direct relationship between the natural person of its managers and the Esso company within the framework of Article L. 781-1 of the Labor Code , the Court of Appeal ruled on the merits of the dispute and in no way ruled on the preliminary question of the inadmissibility of the request due to the proceedings previously brought before the commercial court by the same persons acting as managers of this company, so that by ruling as it did, without ruling on the connection, the court of appeal violated article 101 of the new Code of Civil Procedure;
2 / that it follows from the very terms of the judgment under appeal that the industrial tribunal was seized after the commercial jurisdiction of the consequences of the termination of the lease-management contract and that his office disregarded the industrial tribunal who , for want of being able to relinquish the commercial jurisdiction, allows the conditions to be created for a conflict of decisions and an accumulation of compensation, so that by ruling as it did, the court of appeal also violated articles 12 and 100 of the new Code of Civil Procedure;3 / that in any case deprive its decision of any legal basis with regard to articles 1134 of the Civil Code and L. 781-1 of the Labor Code, the contested judgment which considers that the referral by company X … of the commercial jurisdiction would not in itself characterize a waiver by its managers to exercise the rights they derive from Article L. 781-1 of the Labor Code, without explaining the conclusions of the company Esso which asserted that the termination of the contract of the company X … had been negotiated under the conditions provided for by the inter-professional agreement, that the referral to the commercial court had taken place after this termination at a time when the managers were entirely masters of their rights , and that, under these conditions,they were inadmissible to disregard the legal person of the company to subsequently seize the industrial tribunal in the context of an alleged personal dispute;
and, according to the third plea, that the managers of an SARL tenant-manager of a service station cannot combine in their relations with the oil company owner of the business the benefit of the quality of merchant of the legal person and the benefit from the provisions of Article L. 781-1-2 of the Labor Code on an individual basis; that violates the principle of non-accumulation and article 1134 of the Civil Code the judgment under appeal which admits that the spouses X … can both seize the commercial court in their capacity as managers of the SARL X … and the industrial tribunal in a personal capacity to try to obtain twice compensation for the same damage;But since the distribution of powers between the commercial court and the industrial tribunal, in the event of disputes between the tenants-managers and the companies that own the fund, could not deprive Mr. and Mrs. X … of the right to seize the council industrial tribunal by invoking the benefit of the provisions of Article L. 781-1 of the Labor Code; that it was for the trial courts, seized of requests made in application of social legislation, on the one hand, to assess whether the managers had, as they claimed, carried out their professional activity on behalf of the oil company in the conditions set by article L. 781-1, 2, and, on the other hand, if, as supported by the company Esso,
And given that the Court of Appeal examined whether the cumulative conditions provided for by Article L. 781-1, 2, were or were not met then, responding to the conclusions, considered that spouses X … had not manifested a clear and unequivocal desire to waive the rights they hold individually from the aforementioned text;From which it follows that the means are unfounded;
On the second plea:Whereas the company Esso criticizes the judgment for having declared the competent industrial tribunal, then, according to the second plea:
1 / that the benefit of the provisions of Article L. 781-1 of the Labor Code does not apply to a legal person, nor to the managers of this legal person; that it follows that violates the text referred to above the judgment attacked which declares this text applicable to the spouses X …, managers of the private limited company X …;2 / that the existence of a front company implies fraud or deception against third parties; that neither the fact that SARL X … could be constituted exclusively to operate the Esso service station in lease management, nor the fact that the lease management contract was concluded according to the person of the spouses X …, managers of the SARL, nor the fact that the managers would not have benefited from any autonomy in the organization of their activity and the determination of their commercial policy, were in themselves capable of demonstrating that the SARL X … would have been only a front company; that for having admitted it without noting the existence of any fraud or deception with regard to third parties, the
3 / that subisidiarily, the existence of a front company implying a fraud or a deception and the SARL X … having been constituted and managed by the spouses X …, violates the principle nemo auditur propriam turpitudinem allegans l ‘ judgment attacked which admits the latter to argue that this company would have constituted only a front company;But since, according to the first paragraph of article L. 781-1 of the Labor Code, the provisions of this Code, which apply to apprentices, workers, employees, workers, are applicable to persons whose profession consists mainly of either selling goods or foodstuffs of any kind, titles, volumes, publications, tickets of any kind supplied to them exclusively or almost exclusively by a single industrial or commercial company, either to collect orders or to receive objects to be processed, handled or transported , on behalf of a single industrial or commercial company,when these persons exercise their profession in premises provided or approved by this company and under the conditions and prices imposed by the said company;
And given that , analyzing the contracts and assessing the factual conditions in which the service station was operated, the trial judges, restoring to the facts and the disputed acts their exact qualification, retained that if the company X …, including the spouses X … were co-managers, was the signatory of the lease-management and mandate contracts, the clauses of the said contracts revealed the establishment of a direct link between the company Esso and the spouses X …, the company X … being only a “front company “;From which it follows that the plea is unfounded;
The fourth plea:Whereas the company Esso still criticizes the judgment for having declared the competent industrial tribunal, then, according to the means:
1 / that if the mandate imposed, by definition, on the agent company the exclusive sale of Esso fuels, the exclusivity entered in the lease-management contract also concerned only the lubricants used in the service station, which excluded exclusivity over a thousand references of boutique products (including tires, batteries, accessories for vehicles and all products for domestic use, food and drink products, fast food), washing, greasing, fitting, routine repairs, exchanges parts and accessories, and lubricants not used in the service station; that, in the commercial procedure initiated by SARL X …,
2 / that the determination of the respective shares of activities subject to exclusivity and activities not subject to exclusivity implies a comparison of the respective receipts at a homogeneous tax rate; that, for having taken over the motivation of the first judges who had retained for sales of fuels figures including the internal tax on petroleum products, the contested judgment violated Article L. 781-1-2 of Labor Code ;
3 / that its solution does not legally justify with regard to Article L. 781-1-2 of the Labor Code the judgment under appeal which, proceeding by simple affirmation, retains that if the sale of products not supplied by Esso was authorized , this sale could only take place under conditions marking the “hold” of this company over the conditions of supply and sale, without specifying what this so-called “hold” would have consisted of, nor giving any explanation on the by way of Esso’s conclusions stressing that Esso confined itself, to facilitate the choice and organization of the tenant-manager, to offering him certain wholesalers (conclusions p. 6);
4 / that the condition relating to the quasi-exclusivity of supply which aims at determining the ratio between the activities subject to exclusivity and the activities not subject to exclusivity, is unrelated to the profitability of these activities, so that the article violates the article L. 781-1-2 of the Labor Code the judgment under appeal which retains that the condition of almost exclusive supply was fulfilled on the inoperative reason that the analysis of the accounting documents produced during the proceedings does not make it possible to establish that spouses X. .. were able to derive benefits from the sale of non-petroleum products ensuring them real economic independence from the petroleum company;
But given that sovereignly appreciating all the elements of fact and evidence submitted to it, the Court of Appeal, for its own and adopted reasons, deduced from its findings that the essential activity of spouses X … had consisted in sell products supplied exclusively by the Esso Company; that the means is unfounded;
FOR THESE REASONS :
DISMISSES the appeal;
Orders the Esso company to pay the costs;
Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing of March twenty-second, two thousand and six.
Publication: Bulletin 2006 VN ° 122 p. 116
Contested decision: Bordeaux Court of Appeal, 2005-03-01
SOC Court of Appeal
|Public hearing of September 26, 2006
Appeal no .:
Published by the Documentation and Studies Department of the Cour de cassation,
JUDGMENT No PH OF 26 SEPTEMBER 2006 RG: 05/02556 and 05/2557 Conseil de Prud’hommes de VERDUN 04/00207 01 September 2005 COURT OF APPEAL FROM NANCY CHAMBRE SOCIALE APPLICANTS FOR CONTREDIT Mrs Béatrice X … … 57290 SEREMANGE ERZANGE Mr Georges X … … 57290 SEREMANGE ERZANGE Represented by Maître JOURDAN (Lawyer at the Paris bar) DEFENDER TO TOTAL CONDEMNATION FRANCE taken in the person of its legal representative 24 Cours Michelet 92800 PUTEAUX Represented by Maître BAYLE (Lawyer at the PARIS bar)
COMPOSITION OF THE COURT :
During the debates, without opposition from the parties President: Mr. GREFF, President of the Chamber Advisers: Mr. CARBONNEL Sitting as Rapporteurs advisers Clerk: Ms. BOURT (During the debates)
During deliberation, Pursuant to the provisions of article 945-1 of the new Code of Civil Procedure, the case was debated in a public hearing on June 13, 2006 held by Mr. GREFF, President and Mr. CARBONNEL Magistrates rapporteurs, who heard the pleadings, the lawyers not being opposed and reported to the Court composed of Mr. GREFF, President, Mr. CARBONNEL and Mrs. MAILLARD, Advisers, in their deliberation for the judgment to be delivered on September 26, 2006; At the hearing of September 26, 2006, the Court, after having deliberated in accordance with the Law, delivered the judgment, the content of which is as follows:
FACTS AND PROCEDURE :
The company X … -SARL- represented by its co-managers Mr Georges X … and Mrs Béatrice X … concluded on December 1, 1983 a mandate and rental management contract with the company TOTAL FRANCE for the commercial operation of a fuel and lubricants distribution service station located at VERDUN. This contract was terminated in April 1985 and the company X … as well as Mr and Mrs X … summoned on April 25, 1988 the company TOTAL FRANCE to have a ruling that the contractual situation having existed between the parties was null and void.
By judgment delivered on November 25, 1991, the Commercial Court of NANCY granted the request of the company X … and of the spouses X … and appointed an expert to establish the accounts between the parties.
By judgment of February 12, 1997, the NANCY Court of Appeal partly reversed the judgment undertaken but appointed the same Expert to make the accounts between the parties. By an interpretative judgment of December 18, 1997, the Court completed the expert’s mission by instructing him to present a separate account for the operation of the activity under lease management and an account for the operation of the activity. under mandate.
By a judgment dated February 29, 2000, the Court of Cassation rejected the two appeals brought by the company TOTAL FRANCE against these decisions.
Finally, by a judgment dated January 29, 2003, the Court hereby jointly condemned company X … and spouses X … to pay the insurance company L’ETOILE CAUTION, coming to the rights of the COMPAGNIE GENERALE DE GARANTIE , the sum of 15,949.55 ç and condemned the company TOTAL to reimburse the Company L’ETOILE CAUTION the sum of 18,875.84 ç.
By request initiating proceedings registered at the registry on December 13, 2004, Mr. and Mrs. X … seized the Labor Council of VERDUN to obtain the application of the provisions of article L.781-1 of the Labor Code for the operation of the service station, and to request a reminder of wages and overtime on the basis of the coefficient 230, and lack of the coefficient 215, of the National Collective Agreement of the Petroleum Industry, a compensatory allowance paid vacation for the last reference year, damages for non-observance of paid annual vacation and weekly rest, retroactive registration in the general social security system, participation in the fruits of the expansion of thecompany TOTAL FRANCE and a sum for the irretrievable costs of the procedure.
The company TOTAL FRANCE opposed these requests, raising the main issue of the material incompetence of the Prud’hommes Council.
By judgment rendered on September 1, 2005, the VERDUN Labor Court declared itself materially incompetent to hear the dispute. Mr and Mrs X … formed regularly on September 5, 2005 a contradiction against this decision.
CLAIMS AND MEANS OF THE PARTIES:
Mr and Mrs X … file conclusions dated February 23 and June 13, 2006 tending the reformation of the two identical judgments rendered against them on September 1, 2005. They maintain that the conditions of application of the provisions of the Article L. 781-1 of the Labor Code are met and that they must benefit from the status of special worker provided for by this article, notwithstanding the existence of an SARL forming a screen between them and the company TOTAL. They add that the exclusion provided for by this article does not relate to the financial impact of the payment of the elements of the remuneration but concerns the liability that the entrepreneur may incur as a result of non-compliance with labor regulations, hygiene and safety.
On the prescription raised by the company TOTAL FRANCE, they argue that the argument is premature at the stage of the discussion on jurisdiction and that the prescription of article 2277 of the Civil Code only applies to contracts. stricto sensu. Finally, they request the payment of a sum of 5000 ç in application of article 700 of the New Code of Civil Procedure.
In reply, the company TOTAL FRANCE files conclusions on June 13, 2006 confirming the judgments undertaken and the rejection of the contradictions filed by Mr and Mrs X … In any event, it asks to declare inadmissible the requests of the consorts X … and to condemn them to pay a sum of 3000 ç for the irretrievable costs of procedure. It maintains that the service station operating contract was entered into between two commercial companies and that it is subject to the provisions of article 1984 et seq. Of the Civil Code for the fuel distribution activity carried out under mandate and to the provisions of the Law of March 20, 1956 in respect of management leasing activities for the sale of other products and related activities. It recalls that inter-professional agreements have been concluded between the representatives of the oil companies and the representatives of the retailers to put in place these operating contracts. She adds that she never exercised power of direction against Mr. and Mrs. X … and paid no remuneration. PH No / 2006 It argues that the latter do not meet the conditions provided for by article L.781-1 of the Labor Code. It emphasizes in particular that company X … did not buy the fuels but sold them on behalf of the supplier and that only the amount of commissions received reflects the importance of this activity in turnover . It specifies that the contractual provisions did not allow impose on the managing agents operating conditions within the meaning of Article L. 781-1 of the Labor Code. It also maintains that the requests are inadmissible since the court decision taken in commercial matters has definitively fixed the remuneration of Mr. and Mrs. X … by compensating them for the losses suffered and that this decision the authority of the res judicata. Finally, she recalls that actions in payment of salary are prescribed by five years. For a fuller account of the facts, the procedure and the means of the parties, the Court refers to the contested judgments and to the aforementioned conclusions and resumed orally at the hearing. It also maintains that the requests are inadmissible since the court decision taken in commercial matters has definitively fixed the remuneration of Mr. and Mrs. X … by compensating them for the losses suffered and that this decision the authority of the res judicata. Finally, she recalls that actions in payment of salary are prescribed by five years. For a fuller account of the facts, the procedure and the means of the parties, the Court refers to the contested judgments and to the aforementioned conclusions and resumed orally at the hearing. It also maintains that the requests are inadmissible since the court decision taken in commercial matters has definitively fixed the remuneration of Mr. and Mrs. X … by compensating them for the losses suffered and that this decision the authority of the res judicata. Finally, she recalls that actions in payment of salary are prescribed by five years. For a fuller account of the facts, the procedure and the means of the parties, the Court refers to the contested judgments and to the aforementioned conclusions and resumed orally at the hearing.
On the consolidation of the procedures : Whereas for a good administration of justice, it is advisable to join the procedures listed under the numbers 05/02556 and 05/02557 opposing respectively Mrs X … and MX … the company TOTAL and whose requests are identical;
On the jurisdictional contradiction : On the application of article L.781-1 of the Labor Code: Whereas the provisions of the Labor Code are applicable to certain categories of particular workers and in particular to people whose profession consists essentially of selling goods supplied to them exclusively or almost exclusively by a single industrial or commercial enterprise, when these persons exercise their profession in premises provided or approved by this enterprise and at the conditions and prices imposed by said enterprise;
Whereas it is established that Mr and Mrs X …, co-managers of the company X …, concluded on December 1, 1983 a contract for the operation of a service station located VERDUN belonging to the company TOTAL and including ” on the one hand a mandate for the retail distribution of fuels and on the other hand a rental management for the sale of other products – lubricants and accessories for automobiles and for motorists;
Whereas it is not discussed that Mr and Mrs X … previously exercised the same activity as tenant-managers on another TOTAL service station and that it was closed PH No / 2006 by decision of the latter;
Whereas an inter-professional agreement – AIP – was concluded between the oil companies and the retailers’ unions in 1983 to establish new operating methods for service stations and to guarantee in particular a minimum income for operators;
Whereas Mr and Mrs X … constituted between them a limited liability company to continue to operate a TOTAL service station and then concluded a new agreement comprising both a mandate for the sale of fuels on behalf of the TOTAL company against payment a commission proportional to the quantity sold and a conventional rental management contract for the sale of other products and to provide maintenance services and small car mechanics;
Whereas this contract of exploitation was concluded with Mr. and Mrs. X … because of the intuitu personae and the bonds of confidence already existing with the oil company;
Whereas however if the contract of mandate and hiring management was concluded in right with the company X …, the professional activity resulting was in fact and personally exercised by Mr and Mrs X … as before;
Whereas it is removed from the contractual arrangement between the parties of numerous obligations the burden of the company X …, such as the reception of the goods, the display of the prices, the keeping of the cash register, the daily establishment fuel accounts and the deposit of cash and checks in a chosen bank, the monitoring, cleaning and minor maintenance of the station which are necessarily carried out by its managers under the regular control of an attaché or an inspector sales representative of the company TOTAL;
Whereas there was in reality a rigorous framework for the operating conditions of the service station – in particular for the distribution of fuels – which remains the main object of a service station; That there was consequently a direct and regular link between the operators-physical persons and the petroleum company, the exclusive supplier of fuels and lubricants;
Whereas the mere constitution of an SARL between the spouses, ex officio co-managers and together operators of a service station as both agent and tenant managers could not automatically exclude the application of the provisions of article L. 781-1 of the Labor Code; as both agent and tenant managers could not automatically exclude the application of the provisions of Article L. 781-1 of the Labor Code;
Whereas the company TOTAL did not report the proof of a clear and unequivocal renunciation of Mr. and Mrs. X … to avail the status of employee or worker assimilated by the Labor Code;
Whereas the establishment of commercial accounts between the two commercial companies after the operation of the service station and its fixing in court after an expert report did not prevent the operators who are natural persons from entering the Labor Council by invoking the benefit of article L 781-1 2o of the Labor Code;
Whereas the cumulative conditions of application of this article – exercise of a profession consisting essentially of selling products supplied exclusively or almost exclusively by a single company in premises supplied or approved by it, prices and operating conditions imposed – were well assembled;
Whereas the VERDUN service station was indeed a “local provided” where the business was operated by Mr. and Mrs. X … who had to respect the brands, colors, sign and advertisements of the TOTAL FRANCE company; That the agent-manager contract provided for the exclusive supply of fuels and lubricants by the company TOTAL FRANCE and that the sale of other products – groceries – as well as ancillary activities (washing, repair, etc.) then only constituted an activity complementary to the main activity, as appears from the accounts drawn up by the expert; That these ancillary activities were not independent and remained linked to the distribution of fuels and lubricants; That the gas station basically had a customer on the d neighborhood and passing motorists; That the predominant activity of the service station remained the distribution of fuels; That determining the activity of the sale of fuels solely by the amount of commissions received, as the company TOTAL FRANCE maintains, did not reflect the real importance of this activity in the overall turnover of this point of sale; That the alleged freedom left to company X … to operate the service station as it sees fit, and in particular to set the days and hours of operation and the prices for the sale of goods other than fuels and lubricants as well as services n ‘ was that apparent, since the service station had to make a minimum sale of fuel per month and take into account the catchment area to set its prices and remain profitable; That the deposit of fuels instead of their sale the company X … constituted a modality commercial and a financial facility without outweighing the existence of the supply exclusive or almost exclusive of the distributed products; That the selling prices of the pump fuels were well fixed by TOTAL FRANCE alone and imposed on the operators;
Whereas it is established that the spouses X … fulfilled all the conditions allowing them to claim the benefit of the special status provided for by article L.781-1 of the Labor Code;
Whereas in these conditions the Labor Court of VERDUN is competent to hear the dispute between the parties;
Whereas it should accordingly, by receiving the contradicts formed by Mr. and Mrs. X …, to reverse the judgments undertaken and to refer the parties before this Council for it to be ruled on their requests;
Whereas the company TOTAL FRANCE which succumbs will bear the costs and will be ordered to pay Mr. and Mrs. X… a sum of 2000 ç in application of article 700 of the New Code of Civil Procedure. FOR THESE REASONS THE COURT, ruling in a public hearing and by contradictory judgment,
Declares Mr. and Mrs. X … admissible in their contradictions formed against the judgments rendered on September 1, 2005 by the Labor Court of VERDUN,
Orders the joinder of the proceedings listed under the numbers 05/02556 and 05/02557, Receives these contradictions and reverses in all their provisions the judgments undertaken,
Refers the case to the VERDUN Labor Court for a ruling on the claims made by the parties,
Condemns the company TOTAL FRANCE to pay Mr and Mrs X … a sum of 2000 ç for their irretrievable costs of procedure, dismisses the parties for their further requests, purposes and conclusions, condemns the company TOTAL FRANCE at the expense of contradictions. Thus pronounced the public hearing or by provision to the registry on the twenty sixth of September two thousand and six by Mr. C.GREFF, President, assisted by Mrs. BOURT, Registrar; And Mr. President has signed this judgment together with the Registrar. THE CLERK