Social right. The administration is subject to the principle of responsibility, which obliges it, except for acts known as “of government”, to repair the damage caused by its fact. Thus, administrative courts have condemned the State to repair “ecological damage” caused by the pesticides whose use it is struggling to reduce, or that linked to an insufficient stock of surgical masks before the Covid-19 epidemic.
In addition to these cases, there is the possibility of engaging the State’s liability to obtain compensation for damages suffered as a result of the application of a law contrary to France’s international – and in particular European – commitments.
Under French law, unless otherwise agreed or provided by agreement, employees do not acquire the right to paid leave during work stoppages for non-occupational illness. Article L. 3141-3 of the Labor Code grants 2.5 days of leave per month of actual work and Article L. 3141-5 which equates certain periods of suspension with actual work does not cover absences due to illness .
It is on this basis that the State was condemned again, on July 17, 2023, for non-application of the directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organization of working time.
For its part, the European text provides for a right to paid leave of at least four weeks. Two interpretative judgments of the Court of Justice of the European Union in 2009 and 2012 quite logically considered that the article in question made no distinction between workers who are absent from work by virtue of sick leave and those who actually worked during the period. It follows that the right to paid annual leave conferred by this directive on all workers cannot be made subject by a Member State to the obligation of having actually worked during the period.
On March 13, 2013, the Court of Cassation ruled that the directive had no“horizontal effect”, that it could not therefore be applied in a dispute between individuals. However, in a judgment of September 15, 2021, the Court of Cassation approved a court of appeal which, interpreting the texts of a collective agreement in accordance with the directive, granted the request for paid leave of an employee who had been off work due to a non-occupational illness.
Union action in court
Three unions (CGT, Solidaires and FO) in turn wanted to obtain redress for this non-compliance. After a few adventures concerning the ability of a union to act in this matter – decided positively by the Council of State on December 15, 2011 – the Administrative Court of Appeal of Versailles, on July 17, 2023, considered that the provisions of the Labor Code are incompatible with Article 7 of Directive 2003/88/EC, and that such a delay in transposition engages the State’s liability in compensation for the non-material damage suffered as a result by the employees represented the applicant trade unions.
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