Information Note on the Court’s case-law No. 114
December 2008
Unédic v. France - 20153/04
Judgment 18.12.2008 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Fair hearing
Scope of change in the case-law in a civil case: no violation
Article 34
Victim
Association underwriting employees' claims qualified as a non-governmental organisation: victim status upheld
Facts: The applicant association, A.G.S. Unédic, manages the insurance scheme covering monies owed to salaried employees. When liquidation proceedings are opened, the A.G.S. Unédic delegation’s role is to make the sums owed to employees available to the creditors’ representative when those sums cannot be paid in full or in part from the company’s own funds. A law of 1975, codified in the Labour Code, set a ceiling for the payment of the sums owed to employees and introduced different systems that took into account the origin of the sums owed, amongst other things. In December 1998 the Court of Cassation departed from its previous case-law concerning the interpretation of those provisions by allowing the retrospective raising of the ceiling for sums owed to employees in the event of liquidation proceedings.
In January 1998 M.H. was made redundant for economic reasons following the placing under judicial reorganisation of the company for which he worked. He challenged the ceiling applied by A.G.S. to the sum owed to him, first before the industrial tribunal, then before the Court of Appeal, which, relying on the Court of Cassation’s judgment of December 1998, both found in his favour. The Court of Cassation dismissed an appeal lodged by A.G.S.
Law: Article 34 – As to the Government's objection of incompatibility ratione personae, it was to be noted that the applicant in the present case was a private-law corporation subject only to private law in respect of its accounting and financial methods, the way it operated and the rules governing its liability. It was composed of members of representative employers’ organisations independent of the political authorities. The fact that A.G.S. had delegated the operational side of its mission to Unédic, under a management agreement, could not be said to shed doubt on its independence. Although, in principle, the scheme was financed by private contributions, the fact that in exceptional cases there might be State funding made no difference. The recovery of funds was not a public-authority prerogative but rather a subrogation, as of right, in the rights and actions of the employees which the funds in question served to pay off. Moreover, simply in its capacity as the institution responsible for managing the scheme, A.G.S was entitled by law to take legal action to defend the interests of the scheme. The applicant organisation could therefore be considered as a “non-governmental organisation” within the meaning of Article 34 of the Convention.
Article 6 – The need for legal certainty and the protection of the legitimate confidence of litigants did not establish any acquired right to unchanging case-law. In the present case, M.H.’s situation had not been finally settled. The payment by A.G.S. of the advances was not capable of depriving him, under any circumstances and independently of the departure from the case-law, of his right to challenge before the industrial tribunal the quantum of the sums awarded to him. Furthermore, both parties had been perfectly aware of the new legal situation created by the departure from the case-law in December 1998, that is, prior to the litigation between M.H. and Unédic concerning his recovery of the remainder of the salary owed to him. M.H. had simply brought legal proceedings, as he was entitled to do, following a judgment in his favour which entitled him to claim additional severance pay. If the applicant organisation considered it an injustice that the courts should have found in M.H.’s favour, that injustice was inherent in any change of legal solution. The only consequence of the application to the instant case of the solution adopted in the judgment of December 1998 had been to increase the quantum of the surety A.G.S. had had to advance; it had not impaired any rights A.G.S. might have acquired once and for all. In conclusion, the applicant organisation had suffered no infringement of any of its rights guaranteed by Article 6, be it access to a court, legal certainty at the time when the domestic courts had delivered judgment, or the fairness of the proceedings.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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