Should the industrial tribunal convictions be understood in gross or net when the judgment does not specify anything? This is the question to be answered by the Court of Cassation.
In a decision of July 3rd 2019 (No. 18-12149) published in the Bulletin, the Court of Cassation states that when "the decision on which the prosecution was based did not decide on the attribution of social contributions and social contributions", the employer must proceed to the prepayment of the contributions and social contributions owed by the employee on the sentence pronounced.
Sums of a wage nature are subject to social security contributions. As a result, before they are paid to the employee, the employer must deduct the compulsory contributions and social contributions.
Conversely, those of a compensatory nature are exempt from social contributions within the limits provided for in Article L.242-1 of the Social Security Code.
This difference of nature may raise a difficulty at the time of the execution of a labor tribunal conviction.
Indeed, in the absence of precision in the judgment, the question arises as to whether the sentence is expressed in gross or in net.
On this point, in a decision of 19 May 2004, the Court of Cassation had held that in the absence of an express provision in the appeal judgment on the possibility of deducting from social security contributions the amount of the sentence, the conviction was in favor of the employee (Cass Soc 19 May 2004, No. 02-42447).
Nevertheless, in the decisions of 19 May 2016 and 16 May 2018, the Court of Cassation considered that if the judge had not pronounced expressly on the attribution of the social contributions, the sentence was necessarily expressed in gross (Cass. May 19, 2016, No. 15-10954 and Cass., May 16, 2018, No. 16-26448).
2) Facts and procedure
In this case, an employee is hired by a company in 2000. She is dismissed thirteen years later and files suit with the labour tribunal.
By a decision of March 30, 2016 of the labor court, the company is condemned to pay him various sums:
- As a reminder of overtime and related paid vacation;
- As compensation for dismissal without cause real and serious.
The company pays the employee a sum corresponding to the convictions handed down after deduction of the compulsory social contributions.
The employee has a command issued and an attachment is made to the employer's bank account.
The latter then seized a judge of the execution of a dispute tending to see that the conviction amounted to a gross sum.
An appeal is lodged by the employer who wishes to have the order to pay null and terminate the seizure.
To dismiss his claims, in a judgment of December 14, 2017, the Court of Appeal retained that:
- The employee has made a request for a conviction in net and not in gross and that the labor court has been seized of such a request;
- That no provision requires a court to pronounce all convictions on the same basis, all in net or all in gross.
Thus, the Court of Appeal of Paris considered that by granting right without further details to the request of the employee, the industrial tribunal, which did not dismiss the claim of the employee who wished to obtain a net indemnity, pronounced a clear sentence.
The company has appealed in cassation.
3) Solution and analysis
On the approval of Articles R. 121-1 of the Code of Civil Enforcement Procedures and Article 1351 of the Civil Code as drafted prior to the order of 10 February 2016, the Court of Cassation breaks the judgment of the Court of Appeal.
She asserts that the Paris Court of Appeal, which "found that the decision on which the prosecution was based did not decide on the attribution of contributions and social contributions", has, under the guise of interpretation, modified the decision submitted to him.
It concludes that in the absence of details on the attribution of social charges "the employer had to proceed to the prepayment of sums due by the employee on the sentence pronounced".
This decision is a confirmation of case law that allows for a necessary clarification.
c. cass. July 3rd 2019, n°18-12149
Article L.242-1 du Code de la sécurité sociale :
Cass. Soc. May 19th 2004, n°02-42447 :
Cass. Soc. May 19th, 2016, n°15-10954 :
Cass. Soc. May 16th, 2018, n°16-26448 :
Frédéric CHHUM, lawyer and member of the Paris Bar Council (conseil de l’ordre des avocats de Paris)
CHHUM AVOCATS (Paris, Nantes, Lille)
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