In two decisions rendered on July 17, 2019, the French Supreme Court ruled that the Macron scale (a mechanism introduced on September 24, 2017, which provides for caps and floors on damages for unfair dismissal) complies with international conventions ratified by the French Government.
The Macron scale has been highly criticized by members of France’s left-wing political parties and trade unions, as well as employees’ lawyer, who have initiated various actions to freeze its implementation.
Since its entry into force, several French industrial tribunals (Conseils de Prud’hommes) have set aside the Macron scale, considering it to be in breach of article 10 of the Termination of Employment Convention of the International Labor Organization (ILO) and article 24 of the European Social Charter, which provide for an adequate indemnity and appropriate compensation in case of unfair dismissal.
Instead of taking a position on the validity of the Macron scale, two French industrial tribunals took the decision to ask the position of the French Supreme Court through a specific procedure (Demande d’avis).
The French Government, lawyers, employers and trade unions, as well as the French media, have been waiting impatiently for the Supreme Court to deliver its opinion. However, there was uncertainty as to whether or not it would do so. Previously, the Supreme Court has always refused to deliver an opinion on the compliance of French law with international conventions through the Demande d’avis procedure.
On July 17, 2019, the Supreme Court decided to overturn its jurisprudence and express its opinion on the compliance of French law with international conventions.
It ruled that the Macron scale does comply with applicable international conventions.
First, the judges considered that the Macron scale does not fall within the scope of article 6, section 1 of the European Convention of Human Rights, considering that this mechanism does not restrict the possibility of applying to the courts and obtaining a judicial decision.
In addition, the Supreme Court indicated for the very first time that article 24 of the European Social Charter does not have any effect in domestic law.
Finally, the judges took the position that the Macron scale is not in breach of article 10 of the Termination of Employment Convention of the ILO. The rationale behind this is that the Convention’s provision for adequate indemnity or appropriate compensation leaves a wide margin of interpretation for state parties.
Fortunately, when giving its opinion, the Supreme Court only considered legal and not political arguments.
These decisions should end the dissension of the French industrial tribunals, although it is likely that trade unions and employee’s legal representatives will continue the judicial fight, particularly before the European Committee of Social Rights.
Let’s hope the Supreme Court’s judgements confirm the ongoing modernization of French labor and employment law.
Client Alert 2019-180
