Conventionaliy in abstracto subject to unconventionality in concreto
Cour d’appel of Reims
Having to deal with one (no. 18/00035) of the two judgments of unconventionality handed down on 13 December 2018 by the Conseil de prud'hommes (hereinafter CPH) of Troyes, the Reims’ Court of Appeal decided on September 25, 2019 (judgment no. 19-00003) to overturn it after a double review of conventionality of Article L1235-3 of the French Labour Code, the former in abstracto and the latter in concreto.
While the pedagogical work done at this occasion by the judges is to be commended, there is still a great deal of confusion in the articulation of the two - abstract and concrete - components of the conventional examination.
Already tangled in the distinction between the concepts of direct applicability and direct effectiveness, the Court had great difficulty in clarifying the duplication of its review methods - in abstracto and in concreto. However, this does not detract from the correctness of its conclusion: an abstract conventionality confirmed in this case by a concrete conventionality.
The judges began by distinguishing on the one hand, the review of conventionality in abstracto – “of the rule itself” - and on the other hand, the review of conventionality in concreto – “of its application in the circumstances of the case”; before adding that they "may be juxtaposed" (page 12).
As regards the relationship between the two methods of review, the Court stated that the abstract conventionality of the law did not prejudge its concrete conventionality. While the first one is sufficient for a judgment as a matter law, the second one requires this judgment to be related to the facts of the case.
The means chosen by the judges to establish such relation is the proportionality test.
1. Review of conventionality (and proportionality) in abstracto
The Court proceeded with the following definition of "adequate compensation" and "appropriate reparation" in matters of dismissal “without real and serious cause” (hereinafter WRSC) :"[t]he so-called adequate compensation or appropriate reparation for employment loss’ injury means [...] compensation in a reasonable, and not purely symbolic, amount in relation to the injury actually suffered and adapted to its purpose, which is to ensure the effectiveness of the employee's right to protection. It must be sufficient to remain dissuasive and not render ineffective the requirement of a real and serious cause" (page 15).
As for the prejudice of dismissal WRSC, the Court stated that it should not be confused with moral prejudice or vexatious dismissal; that it "encompasses personal and economic aspects of job loss [and] depends on the impact of the employment loss on the employee, taking into account not only its seniority but also its age, professional qualification or personal situation" (page 15).
After having defined the applicable conventional standards, the judges listed the arguments in favour or against the abstract conventionality of the "Macron" scales.
On the negative side, they noted that the technique of compensation ranges and the cumulation of several allowances (last paragraph) limit the power of labour jurisdictions to individualize both the employment loss’ damage and the sanction of unjustified dismissal.
As regards the deterrent or non-deterrent nature of the compensation ranges, the Court considered that their gradual increase according to the years of seniority makes it possible, in abstracto at least, to exclude the incentive to dismissal WRSC: "The amplitude between the minimum and maximums cannot, because of its real progression, be considered as an incentive, in itself, to dismiss" (page 16).
On the positive side, they stressed the flexibility left to the judge within the compensation ranges, while pointed out that they resulted from the averages observed in previous judicial practice.
Unlike the scale technique, which imposes a predefined compensation value and prohibits any margin of jurisdictional evaluation, the range technique preserves a freedom of appreciation as the values range from the minimum and maximum imposed. However, this freedom includes the possibility of using criteria other than the employee's seniority in determining compensation for the dismissal WRSC, such as age, professional qualification or personal situation (page 17).
In addition, the exclusion from the compensation ceiling of nullity cases provided for in Article L1235-3-1 of the Labour Code and alternative grounds for dismissal compensation restrict the most worrying aspects of the system.
The balancing of the positive and negative elements resulted in a conventionality judgment in abstracto. In the Court's view, the Macron scales does not disproportionately affect the conventional standards of adequate compensation and appropriate reparation for unjustified dismissal (page 17).
2. Review of conventionality (and proportionality) in concreto
Given that the abstract conventionality of the legal mechanism "does not exempt" the Court from reviewing its concrete conventionality, according to the facts, it was expected that the Court would carry out a proportionality review at the stage the rule of law is applied, and that it would rule on the effective conventionality of a compensation range between ½ and 2 months' gross salary in the present case.
Nevertheless, the Court refused to proceed this way, arguing that they were prevented by the absence of an express and conform request from the employee! "The search for proportionality, understood this time as 'in concreto' and not 'in abstracto', must however have been requested [...]. It cannot be exercised ex officio by the trial judge, which cannot, on its own initiative, carry out a search aimed at excluding, where appropriate, a mechanism whose conventional nature it recognizes" (page 17).
According to this decision, the review of conventionality in abstracto would be automatically, unlike the review of conventionality in concreto. However, this is neither obvious, nor logical! it is regrettable, to say the least, that the Court did not explain its position on this point.