Several significant judgments of the Court of cassation
Several significant judgments of the Court of cassation
About sources of law
* Hierarchy of Norms :
Superiority of international treaties over ordinary national law : Ch. Mixte, 24 th May 1975, “ Jacques Vabres”, Bull. 1975, Ch. Mixte, n° 4, p. 6 : in consideration of article 55 of the Constitution of 4th October 1958, the international treaties possess a superior authority to national law, even when enacted later.
Superiority of the constitutional norms over international treaties in the internal order :Plenary Session , 2 nd June 2000, Bull. 2000, Plenary Session n° 4 : the supremacy conferred upon international commitments over the laws by article 55 of the constitution does not apply, in the internal order, to the provisions of a constitutional nature.
* The retroactive nature of laws in civil affairs : Plenary Session, 23 rd January 2004, Bull. 2004, Plenary Session n° 2 : “If the legislator may adopt, in civil affairs, retroactive provisions , the principle of the pre-eminence of law and the notion of an equitable trail affirmed by article 6 of the European Convention for the protection of human rights and fundamental liberties are opposed, except for commanding reasons based in the general interest, to the interference of the legislative power in the administration of Justice to influence the judicial outcome of litigation . This general rule applies regardless of the formal characterisation of the law, even when the State is not a party to the legal proceedings.”
* The question of interpretative laws : 3 rd Civ., 27 th February 2002, Bulletin civil 2002, III, n° 53 ; a law may not be considered as interpretative in so far as it is limited to recognise, without any innovation, a pre-existing law which an imperfect definition has made liable to dispute. An interpretive law is applied to proceedings in progress.,
*The scope of reversals of jurisprudence : Civ., 1 st, 9th October 2001 : double affirmation : “no-one may take advantage of a right obtained through obsolete jurisprudence” and that “the precedential interpretation of the same norm at a given time may differ according to the period of the matters under consideration”.
In civil affairs
♦ Protection of private life :
* Concerning civil responsibility for rights inherent to the human being : 1 st Civ., 5 th November 1996
The mere assertion of the violation of article 9 of the Civil Code gives rise to a right for compensation.
♦ Proof :
*Establishment of line of descent : 1 st Civ., 28 th March 2000 and 1 st Civ., 30 th May 2000 :
Biological expertise is dejure for matters concerning the line of descent unless there is a legitimate reason for not having recourse to it.
*Unfair procedure of proof : Com., 03 rd June 2008 : Telephone recording carried out by one party at the instigation of the author of the words spoken constitutes an unfair procedure which renders its presentation as proof inadmissible.
♦ Marriage :
* Bigamy is absolutely forbidden : 1 st Civ., 03 rd February 2004 : Only the dissolution of the marriage allows for the consecration of a new union, including when the second marriage has been celebrated between the same persons .
♦ Line of Descent :
*Establishment of the natural line of descent and the French Conception of international public order : 1 st Civ., 10 th May 2006 : “the line of descent is determined by the personal law of the mother on the child’s day of birth ; a foreign law which does not allow for the establishment of a natural line of descent is not contrary to the French conception of international public order, since it does not have the effect of depriving a child of French nationality or usually resident in France of the right of establishing their line of descent” .
* Adoption by a homosexual couple : 1 st Civ., 8 th July 2010 : “ if article 377, 1st paragraph, of the civil code does not prevent a single mother who holds parental authority from delegating its exercise in whole or in part to the woman with whom she lives in a stable and unbroken union, this is the condition which circumstances demand, along with the measure being in conformity with the best interests of the child […]”, in the case in point, on the one hand, the petitioners “did not provide proof of the particular circumstances which required a delegation of parental authority since absences due to work obligations which they invoked were exceptional, the risk of accident was merely hypothetical, and no different from that with which any parent is confronted who exercises sole parental authority” , and on the other hand, they “did not demonstrate in what way the best interests of the children required that the exercise of parental authority should be shared between them and would allow the children to enjoy better kind of life or better protection when testimonials confirmed that the children were totally fulfilled”.
* Recognition of Kafala : 1 st Civ., 28 th January 2009 : The adoption of a foreign minor may not be pronounced if their personal law prohibits this practice, unless the child was born and usually resides in France. Consequently, an appeal court, which accepts that Moroccan law does not recognize this practice and that the kafala instrument provided is not comparable with a link comparable to a line of descent, rejects for good legal reasons the request which was referred to it in order simply to adopt a minor born in Morocco” .
♦ Polygamy :
* Compatibility of Polygamy with the French public order :
1 st Civil, 03 rd January 1980, The reaction to a provision of foreign law contrary to the French conception of public order is not the same according to whether it creates an obstacle in France to a legal situation laid down by this law, or whether it amounts only to allowing rights in France to be acquired, on the basis of a situation created abroad without fraud in conformity with the competent law according to French international private law ; especially concerning polygamous marriage legally undertaken abroad in accordance with the personal law of the parties, the second spouse and their legitimate offspring may claim, in these capacities, at the same time as the first spouse and their legitimate offspring, to exercise, as far as buildings in France are concerned, the rights recognised by the French law of succession, whether for the surviving spouse or for the legitimate children .
1 st Civ., 17 th February 1982. It was without violating articles 5 and 12 of the new Civil Procedure Code that an Appeal Court, referred by the widow of a French citizen of Algerian origin, who had adopted Algerian nationality and undertaken a second marriage in Algeria, about a request seeking to obtain that the second wife would not be authorised to profit from her status as widow, decides that the Algerian widow may not make use, on French territory, of her status as widow except under conditions would not be contrary to public order .
1 st Civ.,6 th July 1988, : unless there are provisions to the contrary, the international agreements reserve the conflicting nature to the French conception of international public order ; that this conception is opposed to the polygamous marriage undertaken abroad by a man who is still the husband of a French woman producing its effect on this woman.
♦ Repudiation :
* Conflict with international public order : 1 st Civ., 04 th November 2009 : “The decision of a foreign jurisdiction observing a unilateral repudiation by the husband without giving judicial form to the possible opposition by the wife and depriving the competent authority of all power other than that of dealing with the financial consequences of this severance of this marital bond, is contrary to the equality of husband and wife at the dissolution of marriage laid down in article 5 of the Protocol of 22nd November 1984 n° VII, additional to the Convention for the safeguard of human rights which France is bound to guarantee to any person coming under its jurisdiction, and thereby to the international public order”.
♦ Relationships outside marriage :
*Gifts between partners : 1 st Civ., 3 rd February 1999
* The partner’s consent to artificial insemination : 1 st Civ. , 10 th July 1990
* Welfare rights granted to homosexuals and coming into force of the PACS : Soc, 11 th July 1989
* Homosexuals’ access to marriage : 1 st Civ., 13 th March 2007
* Homosexuality and the line of descent : 1 st Civ., 24 th February 2006
Article 377, 1st paragraph, of the Civil Code does not object to a mother, being the sole holder of parental authority , delegating all or part of it to the woman with whom she lives in a stable and continuous union, as soon as circumstances require it and the measure is in conformity with the best interests of the child. (Bull. 2006, 1, n° 101)
♦ Law of obligations :
- Contracts :
■ Form and validity
* Contract between absent persons : Com., 7 th January 1981
* Fundamental error : 1 st Civ., 13 th December 1983
* Determination of price : Plenary Session , 1 st December 1995
*Clause limiting responsibility : Com., 22 nd October 1996, Chronopost
* Unfair clauses : 1 st Civ., 14 th May 1991
* Immoral or unjust Cause : 1 st Civ., 7 th October 1998
* Comparative effect of contracts : Plenary Session, 12 th July 1991
*Principle of forbidding frustration ; 1 st Civ. , 6 th March 1876
■ The Sales contract
* Obligation to safety and responsibility for faulty products : 1 st Civ., 11 th June 1991
* Direct action against the manufacturer in a contract chain : Plenary Session, 7 th February 1986
■ The Lease Contract
* Lift accident and the responsibility of the lessor : 3 rd Civ., 1 st April 2009 :
“A Guarantee being owed to the leaseholder for all the flaws and defects of what is leased which prevent its use, even if the lessor was not aware of the matter at the time of the Lease, the tenant who demands compensation for their bodily injury, caused by a fall in a lift, from his lessor, is not required to prove that the latter has not taken the necessary steps for the maintenance of the equipment, but to establish that the equipment had a dysfunction which was the cause of his injury” .
“Whoever is responsible for the maintenance and upkeep of a lift is under an obligation to achieve a particular result in safety matters” .
* Disturbance of enjoyment ascribable to the tenant and the termination of the lease : 3 rd Civ. 14 th October 2009 :
■ Responsibility for personal acts
* The criminal responsibility of minors : Plenary Session, 9 th May 1984
* The victim’s offense and shared responsibility : Plenary Session, 19 th June 1981
■ Responsibility concerning property
*Cumulative responsibility concerning material property and the event of destruction of buildings : Civ.2 nd, 23 rd March 2000
* Responsibility for the property of mentally disturbed persons and infants : Plenary Session, 9 th May 1984
* Exoneration of the custodian of property : Civ. 2 nd , 6 th April 1987
■ Responsibility for other people
*The presumption of parental responsibility : 2 ndCivil, 19 th February 1997
*Principal’s responsibility : (text)
- In the framework of the abuse of their powers : Plenary Session, 19 th May 1988
- Within the limits of their assignment : Plenary Session, 25 th February 2000
* The responsibility of persons for whom one stands surety : Plenary Session, 29 th March 1991 and Crim., 26 th March 1997
■ Road Accidents
* Implication of the driver of a vehicle and the chargeability of damages : 2 nd Civ., 21 st July 1986, 2 nd Civ., 25 th January 1995, 2 nd Civ., 24 th October 1990
* Inexcusable offense : 2 ndCiv., 20th July 1987
* Manslaughter cannot be committed against the foetus : Plenary Session, 29 th June 2001
■ Medical Responsibility
o Civil Responsibility :
*Mercier, Civ., 20 th May 1936, DP 1936.1.88, Josserand report, conclusion. Matter, note E.P.
- Contractual dimension to the obligation of care
- Obligation of care in accordance with the known scientif0ic facts
*Teyssier, Submission, 28 th January 1942, Gaz. Palais 28 th January 1942, 1942-1 p 177 (D. 1942. Jur. P. 63)
- Founded on respect for the human person
- Total compensation for prejudice
*1 st Civ., 25 th February 1997, appeal n°94-19 685, Bull. 1997, 1, n°75, p. 49 : Someone who is legally or contractually obliged to respect a particular disclosure requirement should provide proof of executing this obligation . In this way, it is incumbent on the doctor, who is required to respect a particular disclosure requirement with their patient, to prove that they have carried out this obligation.
* Modes of medical responsibility in the event of pluridisciplinarity : 1 st Civ., 18 th October 1960
* Perruche, Plenary Session, 17 th November 2000 : From the time that the errors committed by a doctor and a laboratory in carrying out contracts made with a pregnant woman had prevented her from exercising her right of choice to terminate her pregnancy in order to prevent the birth of a child suffering from a handicap, she may demand compensation for the injury resulting from this handicap and caused by the errors referred to .
*1 st Civ., 18 th July 2000
Mode of calculation to indemnify loss of chance.
*1 st Civ., 18 th Match 1997 Audat
Taking the code of ethics into account, general European movement.
* Care for hospital-acquired infections according to the law of 4 th March 2002 : 1 st Civ., 4 th April 2006 : “the law of 4 th March 2002 [has] laid down new principles for hospital-acquired infections ; [...] the doctor’s responsibility [may] not be committed except in the event of proven error and [...] article L. 1142-1 of the Public Health Code [is] applicable from the time when the procedure [is] underway from the publication date of this law” .
o Criminal Responsibility :
*Diagnostic failure : Crim. 29 th June 1999 : Error in diagnosis is an offence when it results from serious negligence . In this way the head of the gynaecology and obstetrics department of a hospital is guilty of manslaughter when during his visit the day after a birth he did not make a detailed medical examination of the patient in spite of their severe anaemia with tachycardia.
■ Environment :
* Actions by associations for protecting the environment : 3 rd Civ. 1 st July 2009 : “Having accepted that according to their statutes the aim of the association was to contribute to the protection of nature and that its president was its legal representative, the appeal court, having accepted that it was acting in accordance with its corporate purpose when it took action on the illegal clearance of more than one hundred hectares on the Maures plain, an area of natural and ecological interest, with type I fauna and flora, and of community interest for the birds and listed under Natura 2000, and claimed compensation for a collective injury resulting from these actions, have decided that according to the law that the action, undertaken by the president in the association’s name, was admissible” .
* The last occupier of a polluted industrial site’s obligation to clear pollution and provide compensation : 3 rd Civ. 9 th September 2009 : “Having accepted that the last operator of installations which were classed as being subject to authorisation found himself constrained by a definitive decree of the Prefect to undergo various stipulations about the surveillance and making safe of a polluted site, the court of appeal, which has accepted that a failure to respect the obligation to restore the site to such a state that it represents none of the dangers or problems mentioned in article L. 511-1 of the Environment Code constitutes a civil offence, was able to deduce that the previous operator should remedy the resulting direct and personal prejudice for the acquirer of the poor condition of the site, as he has been obliged, taking account of the impossibility of using the polluted plots of land and the restrictions on the use of the site resulting from the Prefect’s decree which was issued after its acquisition, to proceed to a readjustment of his project to extend a fire station, having necessitated additional works” .
♦ Conflict of juridictions :
* 1 st Civ., 30 th October 1962, Dame Scheffel : Principle of extending the rules of internal territorial jurisdiction to international situations
♦ Exequatur :
* Forbidding revision on the merits of the case : 1 st Civ., 7 th January 1964
* List of conditions for the recognition of judgments coming from States which are not members of the European Union : 1 st Civ., 20 th February 2007 : “To grant exequatur outside the framework of any international agreement, the French judge should make sure that three conditions are fulfilled, these being the indirect competence of the foreign judge, based on the applicability of the litigation for the referred judge, the conformity with international public order of the substance and procedure, and the absence of legal fraud ; the judge of the exequatur is not therefore required to verify that the law applied by the foreign judge is that designated by the rule of conflict in French law .
* Indirect competence of the foreign judge : 1 st Civ., 6 th February 1985, : Every time that the French rule for the solution of conflicts between jurisdictions does not ascribe exclusive competence to the French courts, the foreign court should be recognised as competent, if the litigation is related in a manner characteristic to the country about which the judge has been referred and if the choice of jurisdiction has not been fraudulent”.
* Recognition of judgments and article 14 of the Civil Code : 1 st Civ., 22 nd May 2007 : non-obligatory and non-exclusive nature of the competence of French jurisdictions on the basis of the nationality of the claimant .
* Recognition of the judgments and article 15 of the Civil Code : 1 st Civ., 23 rd May 2006 : non-obligatory and non- exclusive nature of the competence of French jurisdictions on the basis of the nationality of the claimant.
* Recognition of judgments and clause attributing jurisdiction : 1 st Civ., 14 th February 2009.
For welfare affairs
♦ The wage earner’s personal life :
* Concept of personal life : Soc, 16 th December 1997, Bull Civ V, n°441 : substitution of the term personal life for the term private life .
* Personal life outside the framework of professional work : Soc, 17 th April 1991, Painsecq, Bull 201 : the employer may not take exception to anything concerning the personal life of the wage earner unless it provokes a distinct difficulty for the enterprise, taking into account the nature of their functions and the object of the enterprise.
* Personal life within a professional framework :
Soc, 2 nd October 2001, Nikon, Bull. 2001, V, n° 291 : “the wage earner has the right, even during working hours at the place of work, to the respect of their private life”.
Soc, 28 th May 2003, Bull. 2003, V, n° 178 : the right to limit the freedom of dress.
Soc, 18 th September 2002, Bull. 2002, V, n° 239 : non-competition clauses treated on the basis of the former article L 120-2 of the Work Code (new article L1121-l of the Work Code).
Soc, 12 th January1999, Bull. 1999 : mobility clauses accepted in principal, while respecting the principal of proportionality, in the case in point a clause obliging the wage earner to transfer their place of domicile is not valid except on condition that it is indispensable for protecting the legitimate interests of the enterprise and proportionate, taking account of the post occupied and the work required, to the object sought.
♦ Health at work :
* Asbestos : Soc, 28 th February2002, appeal n°99-18 389
* Addiction to smoking : Soc, 29 th June 2005, decision n° 01698 Bull. V, n°219, p. 192 : this decree has transcended the rules of the Public Health Code concerning the prevention of addiction to smoking to establish the protection of wage earners from passive smoking as a safety obligation to achieve a particular result by the employer. In fact, the question concerned whether the ban on smoking laid down by the law n° 91-32 of 10th January 1991 known as the loiEvin (Evin law) and the various regulatory articles of the Public Health Code applied to shared offices , the Social Division of the Cour de cassation has gone beyond this way of treating the issue by considering the question in a much wider perspective of the safety obligation to achieve a particular result which the employer owes to his wage earners concerning protection from addiction to smoking.
* Moral harassment : Soc, 21 st June 2006 , appeal n° 05-43.914 : on the basis of former article L. 230-2 of the Work Code (new article L 4121-1) interpreted in the light of directive CE n° 89/391 of 12th June 1989, the decree states that the employer is obliged to maintain towards their wage earners a safety obligation to obtain a particular result for the protection of health and the safety of workers in the enterprise , “especially concerning moral harassment” .
♦ Fairness :
* The principle : Soc, 16 th January 1991, Bulletin 1991 V N° 15 : this principle of loyalty applies between employers and wage earners, so the employer should there for not make use of provocation to lead the wage earner into committing an offense.
* Fairness of proof :
Soc, 20 th November 1991, Bulletin 1991 V N° 519 : the arrangements for closed circuit television surveillance should be brought to the attention of the wage earner ;
- Soc, 18 th March 2008 (EDF employees) : prohibition of stratagem.
► Welfare benefits and prohibition of discrimination :
* Soc, 14 th January 1999 : the States which have signed the European Convention for the Protection of Human Rights and Fundamental Liberties recognise that each person coming under their jurisdiction may enjoy the rights and liberties recognised by the convention, such as the distribution of the supplementary allocation of the national solidarity Fund. The Court affirms that a distinction or discrimination based solely on national origin and foreign nationality is contrary to article 14 of the European Convention, but it is also based on article 1 of Protocol n° 1, and the interpretation which the European Court has given these texts. (Cf. also : Soc., 2 nd December 1999, appeal n° 98-17.350), Soc., 31st January 2002, Bull. 2002, V, n° 44).
*Plenary Session, 16 th April 2004, Bull. 2004, Plenary Session n° 8 : the interpretation of article L. 512-1 of the Social Security Code in the light of European jurisprudence : the enjoyment of welfare benefits like family benefits, should, unless there are pressing reasons and objectives, be provided without any distinction, notably those based on national origin.
* Legal definition of the facts : Crim, 16 th May 2001, Bull. n°128
* Principle of the equality of offenses and punishments ; Plenary Session, 29 th June 2001 : Approves the acquittal of the driver of a vehicle pronounced by the judges on the substance of a charge of intentional attack on the life of an unborn child : “The principle of the legality of offenses and punishments, which requires a strict interpretation of criminal law, objects to what indictment under article 221-6 of the Criminal Code would make provision for, repressing manslaughter of another person, being extended to the case of an unborn child, whose judicial status is derived from particular texts about the embryo or the foetus”.
* Rights of the defence :
- Hearing counsel in the absence of the accused : Plenary Session, 2 nd March 2001, Bull. n°56
- Right to hear witnesses : Plenary Session, 2 nd December 2005, Bull. n°3
- Telephone tapping between lawyer and client : Crim, 17 th September 2008, Bull 191
* On proof :
- Recording a minor’s testimony : Crim, 26 th March 2008, Bull., n°77
- Publication of telephone tapping : Crim, 7 th December 2005, n°05-85876
- On the fairness of proof, private recording of a telephone conversation : Crim, 31 st January 2007 , Bull, crim, n°27
* On custody and detention :
- Delay in the notification of rights : Crim, 30 th April 1996, Bull. n° 182 or Crim,
06 th May 2003 , Bull.n°93 -
- Rights while in custody : lawyer and article 105 CPP : Crim, 28 th April 2004, Bull, n° 102
- Provisional detention : Crim, 26 th February 2003, Bull. n° 55.
Non-representation of a child
* Crim. 29 th April 1976 : The element of contravention of non-representation derives from the mere fact of refusing representation, in a passive way. A form of inertia is therefore constitutive of the facts of the case.
* The best interests of the child : 1 st Civ., 14 th June 2005 : Circumstances liable to create an obstacle to the return of the child, within the framework of implementation of the Hague Convention of 25 th October 1980 concerning the civil aspects of the international kidnapping of children, should be made with “the overriding consideration of the child’s best interest”.
The criminal responsibility of legal entities
* Conditions under which legal entities are liable to engage their criminal responsibility : Crim, 2 nd December 1997 : As a result of article 121-2 of the Criminal Code, legal entities may not be declared criminally responsible unless it is established that an offence has been committed, on their behalf, by their organs or representatives. This mechanism implies that that the offence alleged against the moral entity should be distinguished by all its elements, especially moral elements, concerning an organ or representative. The declaration of guilt by this organ or representative is however in no way necessary (implied solution).
*The application of French criminal law in space and moral entities : Crim, 3 rd June 2004 : The accusation of illegal use of corporate funds in French criminal law is inapplicable when the company which is a victim is, by the geographical situation of its head office, foreign, even though the embezzlement took place on French territory.
For commercial affairs
♦ Commercial Law :
* Intangible right to goodwill : Com., 16 th February. 1993, Bulletin 1993 IV N° 63 : the goodwill is a moveable.
* Franchise holder and the business : 3 rd Civ., 27 th March 2002, Bulletin civil 2002, III, n° 77 : any franchise holder is the person entitled to the goodwill.
* Transfer of the clientele of the goodwill of a liberal profession : 1 st Civ ., 7 th November 2000, Bulletin civil 2000, I, n° 283 : assertion of the existence of goodwill from exercising a liberal profession, which thus creates a distinction with the goodwill with which it cannot be completely identified . Principle that it remains licit to transfer the clientele of such goodwill of a liberal profession, while recalling at all times the vital condition under which neither agreement to transfer, nor the means of carrying it out, limit the patient’s freedom of choice of their doctor.
*Abrupt break in established business relationships :
- 2 nd Civ., 6 th October 2005, Bull. 2005, II, n° 236 : determination by a judge of a competent jurisdiction to hear an action based on an abrupt break in established business relationships.
Com, 16 th December 2008, appeal n° 07-15.589, Bull. 2008, IV, n° 207 : lack of an established business relationship between the principal and a sub-contractor as soon as the relationship between these companies derives from independent contracts, acting in accordance with the opening of sites obtained by the principal , who had not made a framework agreement with the sub-contractor.
* Penalties for delay following the non-payment of invoices : Com., 3 rd March 2009, appeal n° 07-16527 : the penalties for delay following the non-payment of invoices are due with the full force of law without need for a reminder and without having to be indicated in the general conditions of contracts. The law of 15th May 2001 is applied, modifying article L 441-6 of the Commercial Code for contracts in force.
* Com., 12 th February 2008, Bull. 2008, IV, n° 32 : suit for unfair competition : requires the mere existence of illegal acts causing a prejudice , although it required the existence of previous competition between operators.
♦ The Law of Collective Practices :
*Extension of a collective procedure : Com, 4 th January 2000, Bull. n° 3 : The decree sets out the limits under which a collective procedure may be extended on the basis of the merger of inheritances or of the fictitiousness of another person, themself subject to a collective procedure.
A procedure for receivership may be extended to a person in receivership, unless a receivership plan has been announced.
A receivership procedure may be extended to another person in official receivership or receivership, unless receivership plan has been announced.
* Bankruptcy abroad :
Com, 11 th April 1995, Bulletin 1995 IV N° 126 : Foreign companies falling under collective procedures : the foreign companies which have an establishment or branch on French national territory may be the object in France of a collective procedure on condition that a collective procedure commenced on their behalf abroad has not been the object of an exequatur decision by French jurisdictions.
Com, 18thJanuary 2000, revue critique de droit international privé (critical review of international private law) 2000 p 442 : A foreign decision launching a collective procedure for a non-business person, as soon as it is in conformity with international public order , may be the object of a decision of exequatur in France.
Com., 21 st March 2006, Bull n° 74 : contribution to the definition of rules for the competence of French jurisdictions, in common law, to make known the procedures for bankruptcy for companies not having their head office on French territory.
Com, 27 th June 2006 , Bull. 2006, IV, n° 149 : the commercial chamber is applying for the first time in this decree (EC) ruling n° 1346/2000 of 29 th May 2000 on insolvency procedures, coming into force on 31 st May 2002.