Labor Law in France and in Europe - Tax Law: The European Corporate Tax System

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- Parliament vote to decide if agree to send it to ordonnances. If agrees, then the law is signed by the prime minister and the minister, the president. If disagrees, the ordonnances will not be applied.

Agree – the ordonnances will become the law.

Disagree – the ordonnances will still be applied, but as regulation.

- The parliament can only vote for agree or disagree, but not change the content.

If you want to change the law, it needs a law. The regulation can be changed by law.

- Hierarchy: the constitution – international treaties – law – regulations – collective agreement labor code

- Judicial decisions

Common law: The main sources are coming from previous decision. (US)

Roman law: most of the laws are written. (France)

- For a judgment, if one doesn’t agree, he can appeal to the second court. in case of disagreement again, he can go to the supreme court. But in the supreme court, the judge never judges the case, only give the meaning of the text. And then it will be judged one more time from the first court. And then to the second court. But they could not judge according to the meaning given by the supreme court. (In fact, it’s better to follow the explanation given by the supreme court, but it’s not obligation.) For the third time, the court has to follow the decision of supreme court. in this way, we say that the supreme court is creating law.

- In roman law, the traditional sources will not be considered. Same situation, same solution. But if there is little distinction between two cases, the judge can change the solution.

- The judge is always free. But the supreme court will not have the power to decide the last solution.

- Work rules in the enterprise

- Collective agreement – It’s specific in labor law, only in labor law.

- The employers are quite, but not totally free to decide the rules.

- Collective agreements

- Agreement between representatives of employers and employees. They decide laws, and these laws is going to applied as laws. It’s contractual law, making by the agreement of employees and employers.

- Inter-professional collective agreement will be applied for every branches.

- You can change the rules, (such as salaries), but the labor code is the minimum, you have to give the employees more, no less than the labor code.

- If an employee is going to know his rights in a company, he will check:

- Contract (the basic, if the point is in the contract, you have to respect this point.)[pic 1]

- Work rules in the company

- Collective agreement +/-

- Inter-professional collective agreement

- Labor code

Now, we have the new law that we can give more or less to employees than the labor code. But if you give less to employees, you have to give them compensations.

- Individual labor disputes

- specific courts

first degree court

Second degree court

conseil de prud’hommes

Cour d’appel(上诉法院)

tribunal de grande instance

Judges are elected. Two by representatives of employees and two by representatives of employers. The president of the court changes every year. The first year, the employee selects the president and the next year the employer selects the president.

- specific procedure

- you can go to the court by yourself, not necessarily by paying a lawyer for CPH. But you will need a lawyer for cour d’appel.

- judges are voting. They vote the decision. When the vote is 2-2, there is another judge - the professional judge from tribunal de grande instance and make a decision.

Difficulties:

- the judges sometimes doesn’t follow the law

- the procedure takes very long time

To the court – give the identity – what you want – the first audience [pic 2]

Find an agreement, if not, go to the court

You might wait for several months even two years for the solution. If the employers don't accept the solution of CPH, they go to the cour d’appel and it takes two years again. So the employer doesn’t need to pay anything to the employees in four years.

- specific jurisdiction

The question of labor contract is central.

Chapter I – The formation of the labor contract for an unspecified period

- Definition and criteria of the labor contract for an unspecified period (or the “default” contract) – CDI

In CDD, if some of the provisions are not fulfilled, then it becomes CDI. That’s why it is called default contract.

- Normally a legal contract has to be CDI

- In some specific situation, it can have another legal contract, like CDD.

CDD – respect some provisions. (ex: replace the employee sick for a fixed term. In one of these cases, you could have CDD. )

- Consequence: if one signs a CDD, but the employer needs him to work for more days than the contract. Then the contract will become CDI automatically.

- Definition and criteria:

Criteria of labor contract: subordination. The judge could qualify a contract as labor contract according to the subordination.

- Subordination