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Case:
C.E., Sect., Case Fédération CFDT Interco.
Date:
10 July 2002
Translated by:
J T Brown
Copyright:
Professor B. S. Markesinis

In view of the petition filed on 2 April 2001 in the secretariat of the court of the Council of State and made on behalf of the Fédération CFDT Interco, whose head office is at 47-49 avenue Simon Bolivar Paris (75019), represented by its general secretary for the time being; the Fédération petitions the Council of State to quash on the grounds of ultra vires (“excès de pouvoir”) implicit decisions by which the Prime Minister rejected its requests to cancel and modify the Decree dated 30 May 1985 relating to the joint technical committees of local authorities and their public establishments, particularly Article 8;

(…)

Given that, on the one hand, (1) pursuant to the provisions of Article 2 of the Directive of the Council of the Communities relating to measures aimed at promoting the improvement of the security and health of workers in the work place: “(i) This Directive applies to all sectors of activity (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). (ii) This Directive does not apply if peculiarities which are inherent to certain specific activities in the public services, for example in the armed forces or the police, or to certain specific activities in civil defence services (“services de protection civile”) constitute unavoidable obstacles to it (…)”; (2) pursuant to Article 3 of that Directive: “For the purposes of this Directive: (a) “worker” means any person employed by an employer as well as trainees and apprentices, but excluding domestic personnel; (..) (c) “workers’ representative with a specific responsibility in the area of the protection of the safety and health of workers” means any person elected, chosen or designated, in accordance with national law and /or practice, to be the delegate of the workers concerning problems of protection of the safety and health of workers in the workplace (…)”; (3) finally, pursuant to Article 11 of that same Directive: “Employers shall consult their workers and/or their representatives and allow them to participate in the framework of all questions relating to safety and health at work. That means: - consultation of workers;
- the right of workers or their representatives to make proposals;
- balanced participation in accordance with national law and/or practices (…)”;
and (4) it flows from the interpretation of these provisions by the Court of Justice of the European Communities that the obligation of employers to consult their workers or the representatives of the latter and to allow them to participate in questions relating to safety and health at work applies to public bodies corporate if no peculiarity inherent to their activities constitutes an obstacle thereto;

Given, on the other hand, that (1) pursuant to the provisions of Article 32 of the Law of 26 January 1984 as amended laying down statutory provisions relating to local authority services. “A joint technical committee shall be set up in each authority or establishment which employs at least 50 employees, and in each management centre for authorities and affiliated establishments which employs less than 50 employees. (…) Members representing the personnel shall be elected in a list-based election with two rounds and proportional representation (…)”; (2) pursuant to Article 33 of this same law: “Joint technical committees shall be consulted for their opinion on questions relating to: (…) (v) problems of hygiene and safety (..)” and finally (3) pursuant to the provisions of Article 8 of the Decree of 30 May 1985 relating to joint technical committees of local authorities and their public establishments, issued for the application of these provisions: “For the purposes of the designation of the representatives of the personnel in the joint technical committee of a local authority or a public establishment the electors shall the employees of that authority or that establishment who hold a permanent position, whether or not (a) they hold titular rights, (b) they are employed full time or part time, or (c) they are in activity or on parental leave (…);

Given that when a competent authority is seized of a request for the cancellation or the amendment of an illegal regulation, that authority is obliged to comply, whether that regulation was illegal from the date of its signature, or whether the illegality stemmed from circumstances of law or fact arising after that date;

Given that it flows from the above that (1) if the consultation of workers on questions of hygiene and safety is assured only through an elected organisation, the right for each worker to be consulted on and to participate in questions relating to safety and health at work, as provided by the Directive of 12 June 1989, necessarily implies that the representatives of the personnel in that organisation be elected by all categories of employees; (2) consequently, the Government could not legally maintain in effect, after 31 December 1992, the expiry date for transposing the Directive, provisions which prevented the representation, within joint technical committees of local authorities and their establishments, of non-titular employees without a permanent position, as well as employees subject to private law; and (3) it flows from the above that the Fédération has good grounds for petitioning for the quashing of the implicit decisions by which the Prime Minister refused to cancel or to amend Article 8 of the said Decree of 30 May 1985, to the extent that it excludes from the electoral body non-titular employees without a permanent position and employees subject to private law;

DECIDES:

Article 1: The implicit decisions by which the Prime Minister refused to cancel or amend Article 8 of the Decree of 8 May 1985, to the extent that it excludes from the electoral body non-titular employees without a permanent position and employees subject to private law;
(…)

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