JAHNKE and LENOBLE v. FRANCE
Inadmissible
The three applicants are French nationals, born in 1954, 1955 and 1956 respectively. The first applicant is a technical salesman and lives in Paris. The second applicant is an electromechanical engineer. He is the husband of the third applicant, who is a sales representative. They live in Vitry-sur-Seine (Val-de-Marne). The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were hired in 1986, 1978 and 1985 respectively by a company called Mole Richardson France whose object was the manufacture, sale and hire of lighting and cinematographic equipment. The collective agreement applicable to the three applicants was the one for the metalworking industry. In 1989 Mole Richardson France transferred its manufacturing department and part of its sales department to a company called Raccetec. The employment contracts of the staff employed in connection with the activities which had not been transferred, including the applicants’ contracts, were transferred to Mole Richardson International Ltd. In 1991 Mole Richardson International Ltd transferred its Montrouge branch to a company called Panavision France, which was not subject to any collective agreement. The following year Panavision France closed down its Montrouge establishment. On 28 December 1992 the second applicant was made redundant. On 7 January 1993 the company obtained administrative authorisation to serve a redundancy notice on the other two applicants, who, in their capacity as staff representatives, were protected employees. On 13 January 1993 the company made them redundant on the ground that the establishment employing them had been closed down. On 25 June 1993 the applicants lodged an application with the Boulogne-Billancourt Industrial Tribunal for an order requiring their former employer to pay them all the sums due under their contract, pursuant to the provisions of the collective agreement for the metalworking industry. On 24 November 1993 the Industrial Tribunal dismissed the applicants’ claims in their entirety and awarded costs against them. The tribunal found, inter alia, that while Panavision France had taken over Mole Richardson’s assets and the employment contracts had been transferred to the new employer, the latter was not subject to the application of any collective agreement, “the transfer of a contract under ... Employment Code [not entailing] the preservation of all previously obtaining advantages”. The applicants appealed to the Versailles Court of Appeal. They submitted in their grounds of appeal that Panavision France was obliged to apply the collective agreement for the metalworking industry because, in accordance with the provisions of an Act of 3 January 1985, that agreement continued to be effective for one year following the transfer. They also submitted that their redundancies had breached the European Directive of 14 February 1977 relating to the information to be given to employees in the event of transfers of undertakings (Directive no. 77/187, Official Journal of 5 March 1977). The applicants complained, in particular, that, in breach of the directive, it was only their salary slips that had officially informed them, at the end of December 1991, of the transfer of Mole Richardson International to Panavision France. On 26 June 1995 the Court of Appeal upheld the Industrial Tribunal’s decision that there had been genuine and substantial grounds for making the applicants redundant. It went on to hold that the applicants could not rely on the application of the collective agreement for the metalworking industry at the time of their redundancy because the transfer to Panavision France of Mole Richardson International’s activity and equipment had taken place on 1 July 1991, that is, before they had been made redundant. Accordingly, the Court of Appeal concluded that the applicants could not rely on the collective agreement for the calculation of their redundancy pay because their right to compensation had arisen when the agreement had ceased to be effective. Consequently, it dismissed the applicants’ claims and awarded costs against them. The Court of Appeal did not deal with the ground of appeal relating to a breach of the European directive. The applicants lodged an appeal on points of law with the Court of Cassation. In their grounds of appeal they complained, inter alia, that the Court of Appeal’s judgment had not dealt with “important points of law based on French obligations with regard to the European Community”. They submitted that, accordingly, the Court of Appeal had failed to comply with its obligations under Article 455 of the new Code of Civil Procedure. In its defence pleadings, Panavision France, replying to the arguments put forward by the applicants – and after noting that “the appellant complains that the decision did not deal with his objection based on a breach of the European Directive of 14 February 1977” – submitted: “... apart from the fact that it is not clear in which pleadings this point was raised, it should be reiterated that the judges of fact have a duty to deal only with genuine grounds, defined as the statement of a fact on the basis of which, using legal reasoning, the party intends to demonstrate the merits of a claim or defence. Even supposing that the employee did raise the point, he did not draw any legal inference from the alleged breach of the directive. It was therefore a mere argument which the judges of fact did not have to deal with”. In a judgment of 10 July 1997 the Court of Cassation dismissed the applicants’ appeals. In particular, the ground of appeal based on a breach of the European directive was declared inadmissible on the ground “that it does not appear either from the impugned decision or the pleadings that [the applicants] relied, before the judges of fact, on a breach of the European Directive of 14 February 1977 on the information to be given to employees in the event of transfers of undertakings; it is therefore a new ground of appeal and one of mixed fact and law ...”. New Code of Civil Procedure Article 619 “... new grounds of appeal shall not be admissible before the Court of Cassation. Subject to any contrary provision, the following may, however, be raised for the first time: 1. Points of pure law; 2. Grounds of appeal arising out of the decision being challenged.” That provision enshrines traditional case-law according to which the Court of Cassation was instituted only to assess, from a legal perspective, judgments delivered at last instance. It is thus impossible to raise before the Court of Cassation new grounds which have not been dealt with before the judges of fact. According to the established case-law of the Court of Cassation, a ground which has not been raised before the judges of fact and is of mixed fact and law is a new ground (see, to that effect, Cass. App. 22 November 1942, JPC 43 II 2444; Court of Cassation, 1st Civil Division, 22 May 1979, JPC 79 IV 244; Cass. 2nd Civ., 17 July 1991, GP 93 summ. 2). Article 954 “... Appeal submissions shall formulate expressly the parties’ claims and the grounds on which each of those claims is based.” Article 455 “The judgment shall set out succinctly the respective claims of the parties and the grounds on which they rely; it shall give reasons. The decision shall be set out in the operative provisions of the judgment.” Case-law has interpreted those provisions to mean, inter alia, “that the requirements of that Article are satisfied where the judgment has stated and dealt with the factual circumstances, and the legal inferences drawn from them, on which the decision is based” (see Comm. 5 January 1976, Bull. civ. IV, p. 2, and 2nd Civil Division, 12 May 1980, ibid. II, p. 77).