Grounds for appeal against a judgment rendered on referral: henceforth, appeals against appeals are valid!

Cass., ass. plen., April 2, 2021, P+R, n° 19-18.814

Based on an interpretation a contrario of article L.431-6 of the code of judicial organization , according to which referral to the plenary assembly is required when, after cassation, the decision rendered by the referral court is challenged by the same means (a situation in which the referral court has "resisted"), this rule was intended to protect a certain legal certainty by preventing the questioning of decisions in accordance with referral rulings and by putting a definitive end to the dispute concerned.

Paradoxically, it could lead to a break in the unity of case law and even to equal treatment between litigants when the solution reached in the referral judgment is modified before the referring court rules.

This was the case in the matter submitted to the Plenary Assembly, in which an employee had obtained a judgment on appeal against his former employer due to asbestos exposure. The appeal judgment was overturned on the grounds that the establishment in question was not eligible for the specific compensation scheme for asbestos victims, a fact acknowledged by the referral court when it rejected the former employee's claim for compensation.

Meanwhile, the Court of Cassation established the rule that employees exposed to asbestos in establishments ineligible for the specific compensation scheme can nevertheless be compensated under the general rules of law.
Wishing to benefit from this new rule, the former employee filed an appeal to the Court of Cassation, which his former employer argued was inadmissible on the grounds that an appeal cannot be lodged against a lower court decision that conforms to the solution adopted by the Court of Cassation.

In its decision of April 2, 2021, the Plenary Assembly deemed the appeal of the former employee admissible and annulled the appeal judgment rendered on referral.

It is therefore now possible to appeal against a referral order issued in accordance with its cassation ruling, provided that the applicable standard has since changed.

However, it remains to be defined what is meant by a change of standard (is a change in the law without any reversal by the Court of Cassation eligible?), otherwise the breach opened by the Plenary Assembly could end up undermining the objective of legal certainty initially pursued.