A legal provision may be contrary to European law but respects the Constitution. The decision published this Thursday at the end of the day by the Constitutional Council in response to the primacy question of constitutionality testifies to this.
Wise Men was called upon to examine compliance with an article of the Labor Code that links the acquisition of 2.5 days of leave per month to “effective work” and therefore excludes sick leave. They also had to decide on the relevance of the second article which provides that when you are on sick leave due to a work accident or occupational disease, you can get leave rights but only for the first year.
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These provisions do not violate the principle of equality beyond ignoring the right to rest or the right to health protection, ruled the sages. This decision of the Constitutional Council, however, does not invalidate the jurisprudence of the Court of Cassation regarding the same articles of the Labor Code as defined in several judgments of September 13.
Senior magistrates ruled that these provisions did not respect either the 2003 directive on leave or the Charter of Fundamental Rights of the European Union, which affirms every worker’s right to “an annual period of paid leave”. Consequently statutory provisions contrary to the Charter of Fundamental Rights cannot be enforced even if the legislature does not delete them.
A little more room for maneuver
The decision of the Constitutional Council will therefore not exempt the government from drawing the consequences of this case law on the Labor Code. However, it gives the executive a little more room for maneuver.
The directive stipulates an obligation to grant at least four weeks of paid leave per year where in France it is five for employees who work year-round. However, the sages emphasized that “the principle of equality does not prevent the legislator from regulating different situations differently or from deviating from equality for reasons of general interest”.
Four weeks not five
This opens the way to limiting the leave that the law can give during sick leave to five weeks (ie 2 days per month and not 2.5) in a year instead of four. The executive had already made good progress on this topic but was missing this piece of the puzzle to complete his system.
“The constitutional conference will help us decide on the future,” people around the new Minister of Labour, Health and Solidarity, Catherine Vautrin, explained on Thursday, while stressing that they say “nothing on retroactivity.
This topic is a thorny issue for businesses, especially SMEs, but there appears to be no concrete way to limit costs. In the absence of provisions, concerned employees will have to go to court to recover these rights, knowing everything that can limit the impact for employers of the settlement of liabilities.
