Means of cassation against a judgment rendered on dismissal: now, cassation on cassation is valid!

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

Based on an 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 referring court is challenged by the same means (situation in which the referring court "resisted"), this rule was intended to protect a certain legal certainty by preventing the questioning of decisions in accordance with the judgments for reference and on the contrary by putting a definitive end to the disputes concerned.

Paradoxically, it could lead to a break in the unity of the case law and even to equal treatment between litigants when the solution reached in the order for reference has just been modified before the court making the reference rules.

Such was the case in the case submitted to the Plenary Assembly, in which an employee had obtained an appeal against his former employer's conviction for exposure to asbestos. The appeal judgment was quashed on the grounds that the establishment in question was not eligible for the specific system of compensation for victims of asbestos, which the referring court took note of by rejecting the request for compensation for the former employee.

In the meantime, the Court of Cassation has set the rule that employees exposed to asbestos in establishments not eligible for the specific compensation scheme can nevertheless be compensated according to the rules of common law.
Wishing to benefit from the new rule, the former employee had lodged an appeal in cassation, which his former employer raised as inadmissible on the grounds that one cannot appeal against an appeal decision which complies with the solution adopted in cassation.

In its decision of April 2, 2021, the Plenary Assembly rules that the former employee's appeal is admissible and cancels the appeal decision rendered on dismissal.

It is therefore now possible to appeal against a judgment for reference issued in accordance with its judgment of cassation, since the applicable standard has since changed.

However, it remains to be defined what is meant by change of standard (is a change in the law apart from any reversal on the part of the Court of Cassation eligible?), otherwise the breach opened by the Plenary Assembly could end up serving the objective of legal certainty initially pursued.