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Case:
L.P.A., n° 244, 8 Dec. 1999, 9 Case Groupement d’intérêt économique Mumm – Perrier – Jouet
Date:
28 July 1999
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

Given that article L.341-6 of the Labour Code provides that no person, either personally or through an intermediary, may enlist, retain as an employee or employ for any period whatever a foreigner who has no permit to do paid work in France, and that article L.341-7 provides that “a special levy, in an amount of not less than five hundred times the minimum hourly wage laid down by article L.141-8, is payable to the Office of Immigration, independently of any judicial proceedings which may be taken against him, by any employer who retains a foreign worker in violation of the provisions of L. 341-6(1). The operation of this article will be the subject of a decree from the Conseil d’État”;

Given that article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as listed therein provides that “In the determination of his civil rights and obligations or of any criminal charge everyone is entitled to a …fair … hearing by a… tribunal ….”,

Given that the special levy laid down in article L.341-7 of the Labour Code amounts to a penalty designed to prevent the repetition of the conduct it aims at and not merely to provide pecuniary compensation for harm done, and so, notwithstanding that the law leaves it to the administrative authorities to establish the offence and certify its occurrence, it is a penalty which falls within the phrase “criminal charge” of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms already cited,;

Given that it follows that in holding that the levy in question did not fall under article 6-1 of the Convention and that the arguments to the contrary adduced by the Groupement d’intérêt économique Mumm-Perrier-Jouet were invalid the administrative court of appeal of Nancy was guilty of an error of law in its decision of 15 May 1997 rejecting the request of Mumm-Perrier-Jouet, which is therefore qualified to seek its annulment;

Given that it is open to the Conseil d’’État, under article 11 of the Law of 31 December 1987, when annulling a final decision of an administrative court to “decide on the merits of the case if the good administration of justice so requires in the circumstances”; that in the circumstances of this case it is appropriate to do so;

Given that on learning, from an inspection of the operation of the employment laws in the agricultural sector, that the Groupement d’intérêt économique Mumm-Perrier-Jouet had been employing fifty-nine foreigners with no work permit, the Director of the Office of Immigration issued, under the articles of the Labour Code already cited, a peremptory order requiring them to pay the sum of FF 483,505;

On the ground that the decision of the criminal court had been disregarded:

Given that findings of fact made by a criminal court are binding on the administration, no less than on the administrative judge, if the decision is unappealable and the findings were essential to it, this is not true when a prosecution is held to fail on the ground that the facts alleged were not proved or that there was some doubt about them, for then it is for the administrative authority to decide whether those facts are sufficiently established and, if so, whether they justify the application of an administrative sanction;

Given that the applicant argues that the administration violated the principle of the binding nature of decisions of criminal courts and to this extent misapplied the provisions of articles L. 341-6 and L. 341-7 of the Labour Code by founding on facts which were inexact, but that this argument must be rejected since the dismissal on 15 February 1993 by the tribunal de grande instance of Rheims of the case against Jean-Pierre Barillière, director of the group, for employing fifty-nine foreign workers without a work permit was based on the ground that as against him the facts were not sufficiently established though other officers of the group were admittedly guilty, so that the facts on the basis of which the Director of the Office of Immigration raised the levy against the group are not inconsistent with those found by the criminal court;

On the argument based on article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that the sanction applied was disproportionate to the offences in question, which were not very serious;

Given that according to article R.341-35 of the Labour Code which is based on and applies the provisions of article L.341-7 already cited, the levy payable in respect of each foreigner improperly employed “is a thousand times the minimum hourly rate under article L. 141-8 on the day of the offence; if only an offence under article L. 341-6(1) is involved the Director of the Office of Immigration may … reduce the multiplier to five hundred. As against an employer who has already been subject to a special levy in the preceding five years the multiplier is raised to two thousand.”

Given that the administrative judge seised of objections, as here, to an executory demand based on articles L. 341-7 and R. 341-35 of the Labour Code, must decide in the light of his appreciation of the facts and his evaluation of the administration’s view of them either to affirm the amount of the levy or substitute either of the two other amounts, if legally proper, or even, if the employer is not proven guilty of an offence under article L. 341-6(1) of the Labour Code , to remit the levy altogether, neither he nor the administration is permitted by the texts to substitute any other tariff, nor is any power to moderate the tariffs so fixed conferred by article 6 of the Convention; thus the argument that the levy of five hundred times the minimum hourly wage raised against the applicant was disproportionate to the gravity of the offences must be rejected;

On the other arguments:

Given that it emerges from the dossier that for three consecutive years the applicant had been paying two of its staff to recruit workers to help with the grape-harvest, the numbers involved, fifty-nine in 1991, not being such as to exonerate the employer from its duty to ascertain their nationality and to ensure that any foreigner among them had a work permit; and given that the seriousness of the employer’s fault is not mitigated by the fact emerging from the judgment of the tribunal de grande instance of Rheims dated 15 February 1993 that the applicant’s staff fraudulently concealed the true nationality of the persons they recruited; and that any disregard of a circular of 12 March 1982 is irrelevant;

Given that it follows that the applicant Mumm-Perrier-Jouet cannot impugn the judgment of the administrative tribunal which rejected their objections to the executory order which the Director of the Office of Immigration levied against it on 22 March 1993 under article L. 341-7 of the Labour Code on account of their improper employment of fifty-nine foreign workers;

 

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