As the director of a small company, you are often the manager, human resources manager and legal expert all rolled into one. This means you have to do a bit of everything, including drafting your own contracts.
Here are the top 5 mistakes we notice in this type of contract, when they are not submitted for litigation.
1. Lack of clarity
If you draft your own contract, you can be sure of drawing up a personalized contract that covers every aspect of your agreement with your co-contractor. However, you also run the risk of losing sight of the big picture, and of a contract that is perfectly clear and detailed at the time of drafting becoming unreadable in the event of a dispute.
The number of clauses, the lack of standardized language and the complexity of the provisions, which are sometimes the result of lengthy negotiations, make the contract difficult to read, and sometimes even lead to contradictory provisions.
This becomes a problem in the event of disagreement between the parties, and the need to submit the contract to a judge or arbitrator.
2. Lack of provisions to prevent or resolve conflicts
Many contracts contain incomplete clauses. The best example is the price renegotiation clause, which can be found several times in the same contract. It is often stipulated that in the event of any event whatsoever, the parties undertake to renegotiate the price, or one party may propose a price increase to the other.
In reality, however, and especially in financial matters, negotiations often fail. In such cases, the price revision clause makes no provision: does the contract continue? Is the contract terminated? Should a conciliator be appointed?
It is the role of the contract to provide for unforeseen circumstances, so that when they arise, the parties are not left in the dark. If the parties change their minds by mutual agreement, there will always be time to conclude an amendment to settle the dispute in another way.
3. The presence of illegal clauses
Even if commercial contracts can be drafted very freely, there are a few clauses that cannot be inserted and will not be applicable in the event of a dispute.
In this respect, we note excessive jurisdiction clauses, limitation of liability clauses or penalty clauses, poorly drafted retention of title clauses, and so on.
What’s more, in the absence of specific provisions, the presence of an unlawful clause can jeopardize the entire contract.
These clauses give the drafter a false sense of security, and are a nasty surprise when he or she tries to enforce them in the event of a dispute.
Whether you have doubts about the wording of a contract, or need help negotiating with an opposing party, we can help you. We recommend this even more strongly when your co-contractor is himself advised by a professional.
In principle, you are free to solicit your competitor’s employees to join your company. However, this practice can be considered as poaching if it is carried out unfairly, i.e. if you use unfair means to convince your competitor’s employees to leave their company.
You can therefore call on your competitor’s employees, but it’s important to respect the rules of fair competition.
try to recruit employees from a competing company,
with the effect of disorganizing the company.
– The existence of an active approach initiated by the new employer
With regard to the first condition, case law insists on several criteria. Firstly, the company claiming to be the victim of poaching must provide evidence of positive acts of canvassing of its employees by the new employer.
Secondly, there is no such thing as “poaching” an employee whose contract has been terminated by the original employer.
Nor can we speak of poaching if the almost concomitant departure of several employees is the result of the deteriorated social climate prevailing at the original employer.
Finally, the theory of poaching is also rejected if the hirings were the result either of classified advertisements in the local press, or of the initiative of employees who had spontaneously approached the new employer.
– The existence of a disorganizing effect for the latter.
Disorganization occurs when a company is disrupted to such an extent that it is no longer able to operate normally in the market and meet its obligations to customers.
Disorganization also implies that the original employer cannot easily compensate for the departures that affect him, and that he has difficulty recruiting replacements.
Can I call on my former colleagues?
If your competitor is your former employer, the rules on poaching apply, but there are a few extra precautions to take.
You can hire your former colleagues at your new company, provided this does not constitute a breach of your previous employment contract. Two clauses are particularly relevant.
If you have signed a non-competition clause with your previous employer, you must respect the terms of this clause, which may prohibit you from working for a competing company for a specified period. In this case, you must wait until the end of this period before joining a competing company, unless you obtain your former employer’s agreement.
In addition, your contract may contain a non-solicitation clause. A non-solicitation clause prohibits an employee from soliciting his or her former employer’s customers or suppliers for a specified period after leaving the company. This clause is designed to protect the company’s interests by preventing an employee from appropriating the company’s clientele or suppliers.
The non-solicitation clause can also apply to employees who leave the company to set up their own business, to prevent them from soliciting their former company’s customers or suppliers for the benefit of their new company.
How can you be sure you’re not taking a risk?
If you’re planning to hire and are concerned about approaching the legal limits of fair competition, don’t hesitate to contact us. We can advise you on your recruitment process and help you secure the development of your team.
Competition is generally seen as beneficial for consumers, businesses and the economy as a whole. It would encourage innovation and lead to better quality products and services and lower prices.
Competition is therefore encouraged and protected by French law. However, certain practices that distort or restrict competition are prohibited. More specifically, the law prohibits “unfair competition”, which refers to a set of abusive commercial practices by one company against one or more other companies.
The 4 most common unfair competition offences
Parasitism” in business law
Parasitism is a legal term used to describe a situation in which a company takes undue advantage of the reputation, goodwill or investments of another company in order to develop without the latter’s consent or participation.
This practice can take many different forms, such as copying a product, plagiarizing a brand name or logo, imitating product packaging, or reproducing a competitor’s advertising and communication campaigns.
One example of a case of parasitism is that of La Manif Pour Tous, which was condemned for having used the visual codes and hashtags of a SPA advertising campaign, without the latter’s authorization. La Manif Pour Tous was ordered to pay 15,000 euros to the SPA.
This type of practice can have negative legal consequences for the offending company, including fines, damages and even criminal sanctions. It is therefore important to understand the rules governing parasitism to avoid any negative consequences for your company’s business.
Counterfeiting in business law
Counterfeiting is the illegal practice of manufacturing, distributing or selling products bearing a trademark, patent or copyright without the authorization of the owner of these rights. It can have major economic consequences for the companies owning the counterfeit rights, such as loss of revenue, damage to their brand image and risks to consumer safety.
Counterfeiting doesn’t just concern little-known brands that have been condemned for reproducing the designs of famous and expensive brands. For example, Louis Vuitton was ordered to pay 800,000 euros in damages to a designer for using a clasp of its own creation without her authorization.
Counterfeiting can result in negative legal consequences for the offending company, including fines, damages and even criminal sanctions. Companies must therefore be aware of the legal risks associated with counterfeiting, and take steps to protect their intellectual property rights. It is important to comply with counterfeiting laws to avoid any negative consequences for your company’s business.
Disorganization in business law
Disorganization is a legal concept that refers to an unfair practice aimed at disrupting the operation of a competing business by creating obstacles or difficulties in its normal activities. This practice can take several forms, such as obstructing access to resources essential to the business, disseminating false information about the company or its products, or disrupting commercial relations between the company and its partners.
One of the best-known acts of disorganization is to launch a campaign to poach a competitor’s staff or customers.
For example, companies competing with the SNCF, set up by a former SNCF executive, were convicted of poaching 16 employees, even though the latter represented only a small proportion of the SNCF workforce.
Denigration in business law
Disparagement is an unfair practice that consists of making false or misleading statements or disseminating false or misleading information about a company or its products or services, with the aim of damaging its reputation and brand image.
Denigration can take many forms, such as spreading false rumors, publishing defamatory or malicious comments on social networks or online forums, or running misleading comparative ads that present the company or its products in a negative light.
You need to be particularly careful about how you communicate about your competitors, both to the public and on your social networks, for example.
For example, the start-up Matera, which competes with professional condominium managers, was ordered to pay €70,000 to several managers because its advertising campaign denigrated them.
If you have a development strategy that you think may flirt with unfair competition, we invite you to consult us before implementing it. Similarly, if you feel that one of your competitors is engaging in unfair competition, we can work with you to find the best way to put a stop to it and obtain compensation.
Communicating and securing acceptance of the General Terms and Conditions of Sale
Having General Sales Conditions (GSC) is good. Communicating them to your customers and getting them to accept them is even better.
In fact, it’s not enough to have GTCs for them to apply to all your transactions. There are two conditions for your customers to respect them: they must have read them, and they must have accepted them.
It is the seller’s or service provider’s responsibility to ensure that these two conditions are met.
We have recently assisted two customers in disputes in which the terms and conditions of the General Terms and Conditions were central.
Inclusion in the quotation of the requirement to read and accept the General Terms and Conditions.
In the first case, our customer wishes to sue an IT service provider who is alleged to have committed faults in the performance of his services. These errors have caused our customer a significant loss of sales, which he intends to hold the service provider liable for.
However, in accepting the service provider’s quotation, our customer ticked a very common box stating that he had “read and accepted the General Terms and Conditions”.
When we become aware of them, these same terms and conditions contain a so-called “limitation of liability” clause which prohibits our customer from holding the service provider liable for any damage arising from the service, such as loss of sales.
If he hadn’t accepted such conditions, we wouldn’t have been forced to look for other, more complex defense options.
Don’t forget that you’re never obliged to accept terms and conditions, especially when you’re working on a B-to-B basis.
Sending the terms and conditions with the quotation for signature
Our second customer is an IT service provider with GTCs drawn up by a legal professional, in this case DESRUMAUX AVOCATS. He sends out his GTCs with his quotations and asks customers to sign them. But sometimes (not to say often), he forgets.
Faced with a non-paying customer, he cannot enforce all the clauses in his GTCs that would enable him to settle the dispute more quickly, and in particular the very important jurisdiction clause.
Instead of litigating in BORDEAUX, our customer was forced to take his case to a court in Eastern FRANCE, with all the costs and uncertainties that a distant procedure entails.
What’s more, if the customer were to dispute the quality of his service, he could not invoke an obligation-of-means clause or a clause limiting his liability to defend himself if he had not had his GTCs signed, which provided for such restrictions.
How do I communicate my terms and conditions to my customers?
The terms and conditions must be communicated to the customer, who must acknowledge having read and accepted them.
Please note that this must be done before the sale or the start of the service, otherwise the GTCS do not apply to this sale or service.
Apart from that, there is no real rule. In practice, however, GTCs are often communicated in the form of a link, with a box to be ticked signifying reading and acceptance, at the time of purchase or when a quotation is signed. However, there’s nothing to prevent you from adopting other means of communication, such as having them signed directly by the customer via a digital signature platform, like Yousign, for example.
If you have any doubts about the content of your terms and conditions or the way in which you communicate them to your customers, don’t hesitate to ask for our assistance.
The first mistake in General Sales Conditions (GSC) is not knowing who you’re talking to!
Our firm recently carried out a mission to proofread and correct the GTCs of dozens of e-commerce sites, and we often noticed this basic error: our customers want to sell only to consumers or only to professionals, but this is not clearly specified in their GTCs.
In fact, we recently defended a business customer before the Commercial Court, who had bought on a site dedicated to private individuals, benefiting from attractive conditions reserved for private individuals, without knowing that the offer was not aimed at him.
The seller had not clearly defined the clientele he was targeting, but was claiming tens of thousands of euros in damages from our customer.
We relied on the customer’s own General Terms and Conditions of Sale to assert his good faith, and obtained a decision in his favor.
Why is it important to specify the target clientele in your GTCS?
General terms and conditions of sale vary according to the clientele you are targeting. If you’re targeting professionals, you might consider including exclusive warranty clauses for hidden defects or a jurisdiction clause, which will greatly reduce the risk and cost of future litigation.
If you’re dealing with consumer customers, then there’s a long list of compulsory clauses that you must include in your GTCS, on pain of penalties.
Is it possible to have several versions of the GTC?
Apart from legal obligations, your T&Cs reflect your business rules, which may differ depending on your target audience.
As a no-show restaurateur, you can ask for pre-payment by credit card for any table booked by a private customer. But if the customer is a professional organizing a business lunch with a specific menu, the reservation and deposit payment process is likely to be quite different.
To be effective both before and in the event of a dispute, terms and conditions must be extremely clear. Even better is to segment them according to the target clientele.
How do I know if my GTCS are compliant?
Several customers had purchased model GTCs from legaltech websites. These were neither complete nor compliant, and even included clauses that worked against them. Other customers had home-made GTCs, which would not have protected them very well in the event of a dispute.
Worried you might be affected? We can review your terms and conditions and suggest any improvements that will help you defend yourself in the event of a dispute.
Communicating General Sales Conditions in the hospitality sector
The obligation to communicate General Sales Conditions (“GSC”)
There is no per se obligation to communicate GTCs to a customer.
If your customer is a professional, Article L. 441-1 of the French Commercial Code applies: “any person engaged in production, distribution or service activities who draws up general terms and conditions of sale is required to communicate them to any buyer who requests them for a professional activity”.
This means that GTCs must only be provided at the request of the business customer, and only if GTCs exist.
If your customer is a consumer, then Article L 111-1 of the French Consumer Code applies. This sets out a list of information that you must provide to your customer before concluding a contract. This information may be provided in the form of a general terms and conditions of sale, or in any other form.
Although the drafting and communication of GTCs is not compulsory, it is strongly recommended, and is standard practice in the business world. In the event of a dispute with a customer, your GCS will protect you.
However, if you have drawn up GTCs and wish them to apply, in accordance with article 1119 of the French Civil Code, you must :
(i) to have brought them to your customer’s attention
(ii) And your customer must have accepted them
The form of communication of the GCS to a customer
The most common way of communicating GTCs to a customer is electronically. This poses no particular problem, as long as you can ensure that the customer accepts them.
For example, when ordering over the Internet, it is customary to have the customer tick a box indicating that he “accepts the General Terms and Conditions of Sale”, while indicating where he can read them if he has not yet done so.
Acceptance of the General Terms and Conditions may also be evidenced by a signature on an order form, stating that the customer has read and accepted the General Terms and Conditions.
To ensure the enforceability of each clause, they must all appear in the General Terms and Conditions accepted at the time of signature. The fact that a condition was included or known when a previous contract was concluded, for example, is not sufficient to render it enforceable in a more recent contract.
Similarly, no clause may be included in an appendix to the contract or to the GTC that has not been signed or electronically accepted by the customer.
Please note that some clauses are subject to special formalities.
Because of their sensitive nature, they must be presented with particular care. This is the case, for example, with the retention of title clause, which must be agreed in writing, at the latest, at the time of delivery.
If you would like to draw up or revise your General Terms and Conditions of Sale, or if you would like advice on how to present them to your customers and obtain their consent, please do not hesitate to contact us.
According to article L 441-1 of the French Commercial Code, general sales conditions are the “sole basis for commercial negotiation”. They contain all the conditions under which you and your customer are bound. It is therefore particularly important that your General Terms and Conditions of Sale contain not only the mandatory clauses defined by law, but also any additional clauses that may protect you in the event of a dispute. Incomplete or poorly drafted General Sales Conditions can backfire.
Mandatory information in the General Terms and Conditions of Sale for services
Elements of price determination
Your general terms and conditions of sale must indicate how your prices are set. For example, for a hotel service, you could specify that prices are set according to room type, number of nights, booking dates, etc., and that the price of each room is available on the establishment’s website.
For a catering service, you can specify that prices are set according to the menu of the day, available on site and/or online, and that these prices include all taxes.
It’s also in this section that you can anticipate additional costs, for adding a bed to a room for example.
Terms of payment
Terms of payment cover a range of information: accepted payment methods, payment deadlines, conditions of application and interest rate for late payment penalties, the amount of the fixed indemnity for collection costs, etc. These clauses are not to be neglected. These clauses are not to be neglected: while they protect you in the event of litigation, they can also deter dishonest partners and prevent disputes.
This section also includes information on deposits and other pre-authorized payments you may be required to make when booking a hotel or restaurant. The general terms and conditions of sale must specify the amount to be paid on reservation, the terms of payment, and any conditions for reimbursement of these sums. Once again, these clauses protect you from cancellations and other dishonest partners.
Information specified in article L 111-2 of the French Consumer Code
The French Consumer Code requires service providers to supply their customers and other partners with information on their contact details, their service provision activity and other contractual terms and conditions, the list and content of which are set by decree by the Conseil d’Etat.
Mandatory information in General Terms and Conditions of Sale for consumers
Articles R 111-1 et seq. and R 221-1 et seq. of the French Consumer Code list a range of information that professionals must provide to their consumer customers.
Optional information that can be added to your General Terms and Conditions of Sale
In addition to the compulsory information, the General Sales Conditions may contain a set of clauses which also regulate the relationship between you and your customers or partners.
Cancellation clause
It’s up to you to define the conditions under which you will accept a customer’s cancellation of a hotel or restaurant reservation, and the financial terms involved. In the case of accommodation or catering services, consumers do not have the 14-day right of withdrawal provided for distance contracts.
Customer default clause
Particularly in the hotel sector, this clause can include a security deposit or bank imprint to cover any damage or theft committed by the customer during their stay.
Limitation of liability
It limits the amount of damages that can be claimed in the event of the seller failing to meet one of its commitments. For example, if you are unable to find your customers a cab to take them to the station at the end of their stay, you cannot be held responsible if they miss their flight.
Jurisdiction clause
Jurisdiction clauses determine which court in which city is to be seized in the event of a dispute. In principle, these clauses can only be applied to business customers. This means that, in the event of a dispute being brought before a court, you won’t have to endure proceedings far from your head office.
Your General Terms and Conditions of Sale are intended to apply to all your transactions, and will form the basis of any dispute. It is essential that they are complete and intelligible. We can help you draw them up so that they not only comply with legal requirements, but also reflect the terms and conditions you wish to put in place.
You are negotiating a contract with a current or future business partner. You’ve been negotiating for months, incurring various costs in the process. Suddenly, your partner no longer wishes to commit to you and puts an end to your negotiations.
Your business partner may not be in the right. We explain how to identify an abusive breach of business relations and limit your financial losses.
Who is affected?
The main players in commercial relations are companies and their partners. These partners may be customers, suppliers, producers or distributors. Whether they are SMEs or major groups, solid commercial relationships are essential to business development.
What are “talks”?
Discussions, also known as the “contractual negotiation phase”, are characterized by written or oral exchanges that take place before the parties conclude a contract. Depending on the complexity of the relationship between the parties, and the financial and economic stakes of the contract to be formed, the negotiation phase can be more or less lengthy.
In principle, this pre-contractual phase is characterized by a principle of freedom. In other words, each party is free to propose what it wishes, ask for what it wishes, and terminate negotiations.
There are, however, certain rules governing negotiations, such as the obligation to provide information and confidentiality, as well as the termination of talks.
In this way, the party who terminates negotiations may be held extra-contractually liable (also known as liable in tort) for improperly terminating talks.
What is meant by “abusive termination of talks”?
Pre-contractual negotiations must be conducted in good faith (article 1104 of the French Civil Code). In application of this rule, a fault during the talks may give rise to extra-contractual liability (in tort).
To identify a fault, judges take into account the reasons given for the breach, the legitimate expectations of the other party in concluding the contract, the means/expenses already made available to the other party, the duration and progress of the talks, the complexity of the negotiations and the absence of legitimate reasons for the breach.
In all cases, if a fault is identified, in order to engage the liability of a party, it is also necessary to identify damage (harm suffered by the other party) and a causal link between the two. These are the conditions laid down in Article 1240 of the French Civil Code.
In concrete terms, you’ve been talking to one of your prospects for 8 months with a view to signing a contract. You’ve even started making investments to be able to honor the future contract: buying larger premises, purchasing more equipment, etc.
Penalties for abusive termination of commercial relations
If a party is able to demonstrate a fault in the breach of talks, a prejudice and a causal link between the two, the judge may admit the abusive nature of the breach.
In this case, as the parties are not bound by a contract, only delictual liability can be engaged. This means that the prejudice suffered by the party who suffered the breach will be compensated by damages.
The compensable prejudice may take the form of costs incurred during the negotiation phase, or the cost of cancelling the contract. On the other hand, the compensable loss cannot correspond to what a party could have gained from the conclusion of the contract, since no contract has been concluded.
How do I break off talks?
It is therefore possible to break off talks freely, provided you do not do so abusively.
It is important to avoid causing prejudice to the potential co-contractor, particularly if he has already advanced funds, made improvements or if breaking off negotiations will have numerous consequences for him, particularly financial.
In order to break off negotiations while avoiding causing the other party any prejudice likely to engage your liability in tort, it is entirely possible to reimburse the expenses incurred by the other party, for example.
What can I do if I suffer prejudice as a result of an abusive breach of contract?
Abusive breaches of contract may enable you to hold the person with whom you intended to enter into a contract liable in tort.
If you consider that the breakdown of the talks is abusive and causes you financial prejudice, you can sue the other party for reimbursement of the sums advanced or payment of damages.
For further information, please do not hesitate to contact us.
Precautions to be taken during the performance of an employee’s employment contract under the SYNTEC agreement.
The “SYNTEC” agreement includes provisions relating to the implementation of fixed-rate day agreements. Employers covered by this agreement must refer to the April 1, 2014 rider and not to the agreement dated June 22, 1999 relating to working hours, which was ruled to be non-compliant by the Court of Cassation (Cass. Soc. April 24, 2013, n°11-28.398) (see ____).
Once the package has been set up and our three recommendations have been complied with (___), we need to monitor the implementation of this package agreement during the performance of the employment contract.
The main difficulty and danger in implementing such agreements lies in managing and monitoring employee workloads.
Even if employees are autonomous, it is important to ensure that maximum working hours are respected.
1st precaution: set up a workload monitoring and control document
Under the terms of the SYNTEC collective bargaining agreement, the employer must set up objective, reliable and contradictory monitoring procedures.
It is up to the employer to draw up a document showing the number and date of days worked by the employee, as well as the positioning and classification of days not worked as weekly rest days, paid vacations, etc.
In practice, this document takes the form of a table.
This follow-up is drawn up by the employee, who must complete it under the employer’s supervision.
Wherever possible, it is preferable to ensure that the employer receives this table on a monthly basis, to ensure effective monitoring of the employee’s working hours.
This monitoring is carried out in the employee’s interest, to safeguard his or her health.
failure to comply with this obligation may result in the nullity of the fixed-rate day agreement.
The employee could then legitimately claim overtime pay before the Conseil de Prud’hommes, which could prove particularly costly for the company (see below).
2nd precaution: setting up annual interviews with employees covered by a fixed-day agreement
The SYNTEC agreement provides for a minimum of two meetings per year with the employee subject to a fixed-duration agreement, in addition to a specific individual meeting in the event of unusual difficulties.
In particular, this meeting must address the employee’s individual workload, the organization of work within the company, the work-life balance, and the employee’s remuneration.
It also involves taking stock of how the employee’s work is organized, his individual workload, and so on.
The employee and his/her manager take advantage of this meeting to take the necessary steps to prevent and resolve any difficulties. For example, if during this meeting the employee points out a difficulty linked to workload, a solution should quickly be proposed by the employer (workload adjustment, follow-up, etc.).
A report on these annual reviews must be drawn up, containing any solutions and measures taken to address any difficulties raised by the employee during the review.
3rd precaution: guaranteeing the employee’s right to rest and disconnection
The SYNTEC Agreement expressly stipulates the rest periods that must be respected by employees on fixed-term contracts, i.e. a minimum of 11 consecutive hours and a minimum weekly rest period of 35 consecutive hours (24 hours + 11 hours).
Compliance with these minimum times implies an obligation to disconnect from remote communication tools.
It is up to the employer to set up a monitoring tool to ensure that the employee’s daily and weekly rest periods are respected.
4th precaution: monitoring workload and working day amplitude, and the employee’s right to be alerted
The employer of an employee with a fixed number of days must regularly monitor the organization of the employee’s work, his workload and the amplitude of his working day.
In the event of unusual difficulties concerning the organization of their workload, employees have the option of alerting their employer in writing.
The latter must then receive the employee within eight days and set out in writing the measures that will be put in place to ensure that the difficulty encountered by the employee is dealt with effectively. These measures must be the subject of a written report and follow-up.
This appointment can also be made at the employer’s initiative, if the latter becomes aware that the employee’s work organization or workload is leading to abnormal situations.
Once a year, the employer informs employee representatives of the number of alerts issued by employees, and the measures taken to deal with them.
To meet your obligations in this area, it’s best to set up a real process within your company.
DESRUMAUX AVOCATS can help you with this process and the associated support.
5th precaution: remuneration of employees on fixed-term contracts in the SYNTEC agreement
The SYNTEC collective bargaining agreement provides for annual compensation of at least 120% of the contractual minimum for the employee’s category.
Thus, each year, the employer must ensure that all employees on a fixed-day contract receive compensation at least equal to 120% of the collective bargaining minimum, depending on their coefficient.
As a reminder, in application of the SYNTEC agreement, only managerial staff with at least position 3 in the classification grid provided for in the agreement can benefit from fixed-day agreements, which is not the case for vacation bonuses, for example.
Under the terms of the agreement, managers in position 3.1 must receive a minimum gross salary of €3,490.10.
If these managers are subject to a fixed-day contract, their remuneration must be at least €4,188.12 (€3,490.10 * 1.2 = €4,188.12).
The SYNTEC agreement is particularly favorable to employees on this point, and particular care must be taken, as failure to comply with these provisions may result in the flat-rate agreement being declared null and void, with all the attendant consequences.
What are the risks if an employee’s fixed-term workweek agreement is declared null and void?
If a fixed-rate agreement is declared null and void, then, as mentioned above, the employee can claim payment for all hours worked in excess of 35 hours, which, in the case of employees on a fixed-rate day contract, can sometimes represent a considerable number of hours, and an equally significant back-pay for the employer.
The employer may also be ordered to pay compensation for undeclared work, amounting to six months’ salary.
Of course, this reminder of overtime will be possible subject to proof of the hours actually worked (shared proof in overtime matters).
Is it possible to adapt the rules contained in the SYNTEC agreement to my company? Since September 2017, new rules have come into force for collective bargaining.
The main aim of these new provisions was to give the company agreement genuine primacy over the branch agreement.
As a result, since these texts came into force, company agreements have generally taken precedence over branch agreements, except in certain areas in which company agreements cannot override branch agreements, such as minimum wages, professional equality between men and women, and supplementary guarantees.
In other areas, however, company agreements take precedence.
It is therefore perfectly possible for your company to conclude a fixed-days agreement with executives whose position is lower than that covered by the SYNTEC agreement.
DESRUMAUX AVOCATS can also help you draw up and implement such an agreement in your company.
In a ruling handed down on January 26, 2022[1], the Social Division of the French Supreme Court (Cour de cassation) declared that “the mere fact that the maximum working time has been exceeded gives rise to a right to compensation “.
In support of this decision, it appears that the mere fact of exceeding the 48-hour maximum working time entitles the employee to compensation.
In this ruling, an employee complained that the Court of Appeal had dismissed his claim for damages for violation of maximum working hours, on the grounds that he had not demonstrated the existence of any prejudice.
The employee then appealed to the French Supreme Court, claiming infringement of the provisions of article L. 3121-35 of the French Labor Code, as well as article 6 b) of directive 2008/88/EC of November 4, 2003.
Article L. 3121-35 of the French Labor Code transposes the aforementioned article of the Directive into domestic law. This article provides, in the version applicable to the dispute (prior to the law of August 8, 2016), that over the course of a single week, working hours may not exceed 48 hours.
In the past, the Court of Justice of the European Union has already ruled that exceeding the maximum average weekly working time set by the Directive constitutes a breach of this provision, without the need to demonstrate the existence of damage.
The French Supreme Court (Cour de cassation) expressly referred to these rulings by the European Court of Justice, before going on to issue a similar ruling, stating in its operative part that ” the mere fact of having exceeded the maximum working time entitles the employee to compensation “.
In addition to the necessary protection of employee health which requires compliance with such provisions, employers will automatically be liable to pay damages to their employees if these provisions are not complied with.
failure to comply with this obligation may result in the nullity of the fixed-rate day agreement.