CFDT v. France

In this case, a complaint was lodged by the Confédération française démocratique du travail (CFDT) with the European Committee of Social Rights (the Committee) regarding a violation of Article 24.b of the European Social Charter (the Charter) in respect of adequate compensation and reinstatement.

The Committee concluded unanimously that there is a violation of Article 24.b of the European Social Charter in respect of adequate compensation. The situation in relation to reinstatement was considered compatible with the Charter.

In respect of adequate compensation, the complainant argued that Order of 22 September 2017, as incorporated into the provisions of Article L.1235-3, paragraph 2 of the Labour Code, prevents French courts from fulfilling their role in ensuring the adequate compensation provided for by the European Social Charter, in that the compensation that they may award is limited to an amount between one and 20 months’ pay depending on the employee’s length of service in the company. The complainant organisation claims that the courts may find themselves in a situation where the maximum compensation that they may award does not even cover the damage incurred in strictly material terms.

The Committee, recalled its recent decisions in  Confédération Générale du Travail Force Ouvrière (CGT-FO) v. France (No. 160/2018) and Confédération Générale du Travail (CGT) v. France (No. 171/2018), where it held that there was a violation of Article 24 of the Charter on the ground that the right to adequate compensation or other appropriate relief within the meaning of Article 24.b of the Charter was not guaranteed. [Para. 88].

The Committee held in particular that the ceilings set by Article L.1235-3 of the Labour Code are not sufficiently high to make good the damage suffered by the victim and to be dissuasive for the employer. Moreover, the courts have a narrow margin of manoeuvre in deciding the case on its merits by considering individual circumstances of unjustified dismissals. For this reason, the real damage suffered by the worker concerned, linked to the individual characteristics of the case, may be inadequately considered and therefore, not be made good. [Para. 89].

The Committee considers in light of all of the above elements that due to the fact that in the French domestic legal order, Article 24 cannot be directly applied by national courts to guarantee adequate compensation to workers dismissed without valid reasons, the right to adequate compensation within the meaning of Article 24.b of the Charter is not guaranteed because of the ceilings set by Article L.1235-3 of the Labour Code. [Para. 92].