Macron Scale - Review of Conventionality - Three Steps for Three Methods

Three Steps

The « conventionality » of the law expresses its conformity with a conventional norm resulting from the international legal order. It is a necessity based on the pyramid of norms in French Law. In the national legal order, international conventions have a higher legal value than legislation, although lower than the constitution. Thus, the validity of a law presupposes that it complies with both the international conventions that bind France at the first level and the French constitution at the second level.

The review of conventionality is not carried out by the French Constitutional Council but by the judges, whether they are part of :

• the administrative order – since the “Nicolo” judgement (n° 108243) handed down on October 20, 1989 by the French Conseil d’Etat;

• or the judicial order – since the “Jacques Vabre” Judgement (n° 73-13556) handed down on May 24, 1975 by the French Cour de cassation.

Not all conventional norms are eligible for such control. Only international conventions directly applicable in the French legal system can be used to review the conventionality of a law. Direct applicability refers to the ability of conventional provisions to be applied directly in court, without the national authorities having to specify their content through intermediate norms of implementation. In European Law, “regulations” are directly applicable, unlike “directives” which are indirectly applicable.

More generally, the direct applicability of an international convention is assessed Article by Article, according to two cumulative criteria of a jurisprudential nature.

Plus généralement, l’applicabilité directe d’une convention est évaluée article par article, selon deux critères cumulatifs de nature jurisprudentielle.

The stipulation in question must :

• contain a clearly defined individual prescription of behaviour – to which a subjective right is opposed;

• and express its author’s intention (France in particular) to give it direct applicability.

It is up to the trial jurisdictions – tribunals and courts of appeal – judging both facts and law – to proceed with the review of conventionality, under the supervision of the only-law judges sitting on the highest courts (Cour de cassation or Conseil d’Etat).

The direct application of a treaty norm does not establish its “direct effect”. Although they are regularly confused, including by the French Court of Cassation itself, the two concepts describe different normative characteristics. Direct effectiveness refers to the possibility for an individual to in invoke a conventional stipulation and oppose it to another individual – “horizontal” direct effect – or to the French administration – “vertical” direct effect – in the context of a legal dispute. While all the direct effect rules are necessarily of direct application in French Law, the reverse is not necessarily true. In most cases, the treaty norms that apply directly under French Law do not possess direct effectiveness in the sense that they cannot be invoked against an individual or the public authorities in justice.

The possibility of reviewing the conventionality of a law is subject to the direct applicability of the conventional norm and not to its direct effectiveness. In other words, the direct or indirect effect of the conventional provision does not affect the possibility of using it as a control basis thanks to its direct applicability. It is not a question of litigants claiming the application of treaty provisions in place of legislative provisions, but of excluding the application of the latter in favor of other domestic law provisions. The inapplicability of a legal or regulatory norm which is unconventional does not imply the substitutive application of the conventional standard of review, but that of another available domestic legal or regulatory norm.

To summarize, the review of conventionality of the “Macron” scales is carried out in three successive steps :

1. identification of relevant (potentially conflicting) treaty standards;

2. verification of their direct applicability;

3. evaluation of the reviewed domestic norm’s compliance with the pre-identified and directly applicable treaty standards.

Three Methods

How is assessed the conventionality of a domestic norm ? According to the first judgements and rulings on this issue, it can be noted that the answer given depends mainly on the control method adopted.

To sum up, three different methods are used :

• legal review, also known as ‘abstract’ or ‘in abstracto” review, which evaluates the rule by comparing it with other rules rather than its concrete consequences and thus tends to validate – apply – the new system;

• factual review, also known as ‘concrete’ or ‘in concreto’ review, which evaluates the concrete consequences of the rule rather than the rule itself and thus tends to invalidate – reject – the new system;

• mixed or hybrid review, which tries to mix and articulate as well as possible both previous types of review and tends to validate – in law - the new system subject to the disproportionality of its consequences – in fact.

The French Court of cassation laid on advisory opinions validating the “Macron” scales through an “in abstracto” approach. Several Conseils de Prud’hommes (hereinafter CPH) – Labour Tribunals – and the Paris Court of Appeal (pole 6, chamber 8) have also adopted it. However, the generalization operated by the abstract method of review loses sight of individual difficulties the new law generates for low-seniority employees.

Preferred by other CPH, the “in concreto” approach is not satisfactory either for the opposite reason. The individualization operated by the concrete method of review loses sight of general difficulties the new law generates for high-seniority employees.

Finally, several decisions have developed a third-type approach combining both the previous ones. The CPH of Grenoble and the Paris (pole 6, chamber 3) and Reims Courts of appeal validated in principle – and “in abstracto” – the conventionality of Article L1235-3 of the French Labour Code, while reserving as an exception – and “in concreto” - the possibility of judging it unconventional according to the relevant facts of each case.

In other words, these jurisdictions have held that the courts may exclude the application of compensation ranges on a case-by-case basis when balancing the available evidence would command inadequate compensation.

The whole question is to know which solution the case law will switch to in majority. It is certain that the position the Court of cassation is about to choose in a contentious context will be very enlightening on this highly controverted and uncertain subject.