The French Supreme Court, meeting in Plenary Assembly, just overruled the praetorian rule, dating from 1971, according to which it is not possible to appeal against a decision made in a case referred back by French Supreme Court insofar as such decision merely complies with solution adopted in the referral.

Based on an a contrario reading  of Article L.431-6 of the Code of the judicial organization, according to which referral to the Plenary Assembly of the French Supreme Court is required when, after annulment, the decision made by the referring court is challenged on the same grounds as the first time (which corresponds to the situation in which the referring court is in fact in opposition to the annulment), this rule was intended to protect the legal certainty by preventing decisions rendered in accordance with the annulment decision made by the French Supreme Court from being called into question and, on the contrary, by putting a final end to the ongoing litigation.

Paradoxically, it could lead to a breakdown in the unity of the case-law and even to a breach of equal treatment between litigants when the solution adopted in the annulment decision is being amended or overruled before the referring court rules.

This was the case in the case submitted to the Plenary Assembly, in which an employee had obtained in appeal the ordering of his former employee to compensate the prejudice resulting from exposure to asbestos. The appeal decision had nevertheless been annulled by the French Supreme Court on the ground that that the premisses where the employee had been exposed to asbestos was not eligible to the legal compensation scheme applicable to victims of asbestos and, in turn, the referred court of appeal had rejected the employee’s claim on that same ground.

In the meantime, the French Supreme Court ruled that employees exposed to asbestos in premisses which are not eligible to the legal compensation scheme may nevertheless be granted compensation on the ground of the common rules on torts.

Wishing to benefit from the new rule set by the French Supreme Court, the claimant decided to challenge the decision made by the court of appeal, but the admissibility of the complaint was questioned by the defendant on the ground that one cannot challenge a decision made in compliance with the French Supreme Court’s annulment decision.

In its decision of April 2, 2021, the Plenary Assembly finds admissible the complaint for annulment filed by the former employee and finally annulled the decision made by the referred court of appeal.

It is therefore now possible to appeal against a decision made in accordance with an annulment decision made by the French Supreme Court, insofar as the solution adopted by the latter has since changed.

However, it remains to define what is meant by a change in the solution adopted by the French Supreme Court (would a change in law, apart from any further decision made by the French Supreme Court, be eligible?). Otherwise the breach opened by the Plenary Assembly could end up undermining the objective of legal certainty initially pursued.