Contrat Nouvelle Embauche - Court Arbitrages

Court Arbitrages

The CNE has been several times questioned in courts. On October 17, 2005, the Conseil d'Etat, France' supreme court for administrative justice, declared the two years "fire-at-will" period to be "reasonable" and thus in concordance with convention n°158 of the International Labour Organization, which has been ratified by France and states that an employee "can't be fired without any legitimate motive" and "before offering him the possibility to defend himself". The Conseil d'Etat declared that if the firing is not justified, "this does not mean that it has no motive, nor that the judge, seized by the employee, shouldn't determine it nor control it". Other examples of unjustified firings would be to fire pregnant women or sick people, someone with unwanted religious or syndical opinions, someone who has been sexually or morally harassed; or also someone who is fired because he is a representant of the trade-union or on racist grounds, etc.

On February 20, 2006, labor law courts in Longjumeau (Essonne) sentenced for the first time an employer to pay back 17 500 Euros of dedommagement because of "abusive rupture of the trial period" and "rupture of the consolidation period" (the famous 2 years "fire-at-will" period). A 51 years-old employee working in the automobile industry had been hired on May 21, 2005 in a small firm (PME) with an ordinary indeterminate contract (CDI). On August 6, 2005, two days after the activity of the CNE law, he was fired, and then hired again by another PME, which was a succursal of the first one, for exactly the same job at the same place - but this time with a CNE. On August 30, 2005, according to the CNE rules, he was fired a second time. The CGT claimed the "CNE favorized arbitrary bosses' behavior".

On April 28, 2006, after the repeal of the CPE, the Longjumeau (Essonne) conseil des prud'hommes (labour law court) judged the CNE contrary to international law, and therefore "unlegitimate" and "without any juridical value". The court considered that the two-years period of "fire at will" (without any legal motive) was "unreasonnable", and contrary to the convention n°158 of the International Labour Organization (ratified by France). The court was statuing on the case of Linda de Wee, which had been employed in CDD (determinate time contract) on July 1, 2005 as secretary. At the end of her six months' CDD, she was hired by the same employer on January 1, 2006 under a CNE contract. The court thus requalified the contract in an ordinary CDI (indeterminate time contract). Bernard Thibault, leader of the CGT trade union, expressed his hope that the juridical decision would be repeated, thus creating jurisprudence and signifying the end of this controversial contract.

On July 6, 2007, the Court of Appeal of Paris confirms the decision of first authority. The court considered also that the two-years period of "fire at will" (without any legal motive) was "unreasonnable", and contrary to the convention n°158 of the International Labour Organization.

Meanwhile, the International Labour Organization itself stated in the same way as the French jurisprudence in its decision dec-GB.300/20/6 taken in November 2007, on request of the Force Ouvrière Trade Union. The French government was invited therefore to ensure "that “contracts for new employment” can in no case be terminated in the absence of a valid reason".