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Sylvaine Laulom
This article asks whether, given that France is a civil law country, it possible to find rulings in French case law demonstrating that French judges also take into account the issue of compliance with labor legislation and that they have a role to play in improving compliance.1 One of the first possible ways identified by Guy Davidov and Edo Eshet for judges to promote compliance, is to raise awareness about the law. On this point, there is no doubt that the French Court of Cassation explicitly fulfils this function. The Court has various procedural means at its disposal and uses them, as can be demonstrated by various examples in labor law. There is also no doubt that the Court of Cassation is currently engaged in a policy of communication aimed at both lawyers and the general public, which strives to make its most important decisions, those with normative content, better known.
Davidov and Eshet also identify other ways in which judges can improve employers' compliance with labor law: they can prefer rules to standards; they can place liability on a third party rather than simply on the employer and, finally, they can play on sanctions. While raising awareness about the law mainly involves procedural tools, these other examples are intended to demonstrate that the wording of the rule itself or its content can promote compliance with the law. Although it is possible to find examples in French case law, similar to the Israeli examples cited by Davidov and Eshet, they are more difficult to identify, certainly because in these situations, the court will never, or very rarely, justify its interpretation by referring to the issue of compliance, which remains implicit. This is particularly true in the French context, where decisions by the court of cassation, at least until recently, have been poorly explained and the opinions of the advocates general are rarely published. If it is possible to evaluate the effect of a ruling on compliance, it will not, or very rarely, be possible to conclude that the judges' objective in adopting a particular interpretation was to ensure better compliance with the law. However, it is not so difficult to identify rulings that may have the effect of affecting compliance with the law, regardless of whether this was the intention.
In this paper, I will first present the French procedural means of raising awareness about the law and second how the court can contribute to compliance through substantive rules. Before and to conclude this short introduction, I will present a very unusual ruling, which is not widely known, but which clearly illustrates what a judge can do to improve or worsen compliance with the rule of law. The decision is recent and has been published,2 although it has not yet attracted much attention from lawyers. The French Labor code still contains some old provisions (relatively speaking) which have survived without being repealed. Repeal through abeyance or disuse is not recognized in the French system. The case involves the application of certain provisions of the French Labor code dating from 1917. These provisions require companies employing one hundred female workers or more to set up "breastfeeding" rooms which are, in reality, company childcare facilities, as the law provides that babies should be cared for while their mother' s work. No one has ever applied this rule or bothered to enforce it, until recently when a trade union asked a company to set up a breastfeeding room. The matter was referred to the Court of Cassation. It was asked whether a company, in the midst of a pandemic, could be expected to respect an obligation which was undeniably costly, which had never been respected, and which had been forgotten. In its decision, the Court of Cassation chose to leave it to the labor inspector to enforce the rule.3 Clearly, another choice could have led to much better compliance with the rule. The Court chose not to do that here, precisely because, in this case, non-compliance with the rule could appear to be a better solution. undeniably, the Court was here concerned with the issue of compliance.
