Interpreting Foreign Law in Accordance with EU Law: the Case of a (Former) Member State
In 2024 the French Cour de cassation submitted a request for a preliminary ruling to the Court of Justice on a subject with ties to private international law, although none of the questions raised focuses formally on a private international law instrument.
The case (C-350/24) is still ongoing. The request explaining the circumstances and legal background of the request can be found here.
The facts go back to 2007, when HJ and Crédit Agricole Corporate & Investment Bank concluded an employment contract governed by UK law. HJ worked for the Bank for a bit more than six years before being placed on sick leave.
In 2013, considering she had suffered discrimination on grounds of her sex and psychological harassment, she brought proceedings before the Conseil de prud’hommes (the French Labour Tribunal) seeking payment of various sums in respect of performance of the employment contract and by way of compensation.
The claims were dismissed by a judgment of 26 June 2019. HJ appealed. By a judgment of 27 May 2021, the Court of Appeal of Versailles held that HJ had failed to prove any relevant circumstances from which it would be appropriate to infer discrimination for the purposes of the applicable law. It also ruled that neither the existence of discriminatory harassment nor victimisation within the meaning of that law had been demonstrated.
HJ appealed to the Cour de Cassation, which, in turn, has sent three questions to the Court of Justice.
It should be noted that the applicability of the relevant UK legislation, i.e., the Equality Act 2010, is not disputed. It is also not contested that the said Act transposed correctly Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
Rather, the debate has been prompted by the interpretation given by the French courts to specific sections of the Equality Act 2010. It originates in the fact that, while at the time of the alleged discrimination Article 19 of the Directive was applicable to the proceedings, by the time the Versailles Court of Appeal ruled on the matter the UK had left the European Union.
According to the Cour de Cassation, this raises doubts, in the first place, as to whether the Withdrawal Agreement can have the effect of calling into question retroactively the application of EU law.
By its second question, the Cour de Cassation seeks to determine whether the obligation of a court of a Member State to interpret its own national law in conformity with EU law also applies where that court is required to apply the law of another Member State. A similar question has actually already been put to the Court of Justice, which did not reply on account of the specificities of the case (see C-577/21, HUK-COBURG). The Cour de Cassation considers nontheless that a positive answer is inferrable from two other cases, namely C-519/19, Ryanair, paragraph 51, and C-247/21, Luxury Trust Automobil, paragraph 67. As a counterargument, the Cour points to the potential mutual trust problems that would arise if a national court could cast doubts on any law of another Member State.
Finally, by its third question the Cour de Cassation is asking whether, in case a national court applying the law of another Member State finds it impossible to give an interpretation in conformity with EU law, said court has the same obligations and powers it has when it applies its own national law.
The decision to ask for a preliminary ruling was adopted by the Cour de Cassation sitting as a full court. This is probably a sign of a high degree of disagreement within the Cour, likely to exist as well among French scholars. However, differently from courts of other Member States, the Cour de Cassation is succinct in its explanations, and does not include any reference to literature.
A case to be followed.