Latest developments in 2019
| Author | Latraverse, Sophie |
| Pages | 128-135 |
128
12 LATEST DEVELOPMENTS IN 2019
12.1 Legislative amendments
Article 86 of Law No. 2019-1461 of 27 December 2019 relating to local political
engagement and public action created a discrimination ground in the Labour Code relating
to the holding of a local political office (‘de son exercice d'un mandat électif local’).421
12.2 Case law
Burden of proof
Name of the court: Court of Cassation, Social Chamber
Date of decision: 3 April 2019
Name of the parties: N/A
Reference number: No. 17-11970
Address of the webpage:
https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038373553
Brief summary: This case does not specifically discuss an EU discrimination ground but
is important because the Court of Cassation reversed its position on the conformity of
collective and/or negotiated agreements in order to align with the applicable burden of
proof to EU law in all cases dealing with an issue of equal treatment potentially covered by
EU law.
Further to the regrouping of two working sites by the regional agricultural credit bank
(CRCAM), the employer put in place benefits for employees who had accepted relocation
to a particularly remote site. This benefit was enshrined in a collective agreement, in which
there was a clause providing that it was reserved to employees who had been transferred
before June 2011. The claimant, who had been employed by the bank since 1997, was
transferred to the site in August 2012 and was denied the benefit.
The first instance court dismissed her claim on the basis that the provision resulted from
an agreement negotiated with the representative trade union.422
The Court of Appeal applied the long-standing jurisprudence423 stating that in case of a
negotiated agreement, the claimant has the burden of establishing that the differential
treatment created arbitrary differences in treatment of persons in comparable situations
that was foreign to any professional consideration. It decided that the claimant had
satisfied this burden and granted the appeal.
The Court of Cassation dismissed the recourses and decided to put aside the illegal
provision. In a very detailed reasoning, which is exceptional for the Court of Cassation, it
expressly revisited its position regarding the presumption of validity of negotiated
agreements and the burden of proof on the claimant in cases challenging the conformity
to the principle of equality between employees resulting from collective and negotiated
agreements.
The court decided that such a presumption imposed a burden on the claimant that was
contrary to requirements of EU law as provided by the jurisprudence.424 Hence, it does not
421 Law No. 2019-1461 of 27 December 2019 relating to local political engagement and public action (Loi n°
2019-1461 du 27 décembre 2019 relative à l'engagement dans la vie locale et à la proximité de l'action
publique, available at: https://www.legifrance.gouv.fr/eli/loi/2019/12/27/TERX1917292L/jo/texte.
422 Although the claimant did not invoke non-discrimination legislation, the finding of the court is directly
applicable and relevant for discrimination cases.
423 Court of Cassation, Social Chamber, 1 July 2009, No. 07-42675; Court of Cassation, Social Chamber, 27
January 2015, No. 13-22179.
424 The Court of Cassation referred notably to the CJEU judgments in cases C-406/15, Milkova of 9 March 2017,
April 2018, EU:C:2018:257.
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