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Can questions and answers issued by public officials be challenged in court?

In labor law, many standards impose obligations on you: the constitution, the law, the convention and the collective agreement, the employment contract, and so on. To learn more about the various sources of labor law, we recommend the “Simplified Personnel Management” document.

This is called the “hard” law and is a “soft” law without binding value. Yet capable of creating legal consequences. It is especially fed by public officials. They provide multiple documents for their services or for citizens, whether they are activated or not. This includes circulars, instructions, recommendations, notes, presentations, or explanations of applicable law.

Thus the Ministry of Labor publishes many documents on its website. In particular, in the questions and answers, various themes related to labor law (bonus-mall of unemployment insurance, termination of collective agreement, pay of trainees, etc.).

The Official Social Security Bulletin (BOSS) brings together regulations that can be implemented on the basis of social security contributions and contributions and the principle of ministry administration.

They can sometimes be generic and have significant implications for your rights or your circumstances. Especially when they have the nature of compulsions or guidelines.

Under these circumstances, the question may arise as to whether they can be challenged in court with a view to revoking them. The State Council recently adjudicated this question in connection with a question and answer posted on the site of the National Commission for Computing and Freedom (CNIL).

In the case submitted to the State Council, CNIL posted a series of questions and answers on its website about “guidelines and recommendations” for cookies and other tracers. “

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A National Trade Union and a Collective Executive Judge have been arrested for seeking to have this question-answer canceled. CNIL considered this request unacceptable. According to him, this question and answer (as he refused to withdraw it) could not be the subject of a request for cancellation.

The State Council issued a completely different opinion. According to him, general documents (circulars, instructions, recommendations, references, presentations or interpretations of the Positive Law) issued by public authorities, whether or not they are enforced by a judge in violation of authority.

But only when they have a significant effect on the rights or circumstances of persons other than the agents responsible for enforcing them. It considers that the nature of the compulsion or guidelines in these documents are particularly likely to have such consequences. The controversial question-and-answer was really just that.

The judge must then examine any deficiencies that may affect the legality of the document. The power to appreciate the power it exerts, taking into account its nature and its characteristics. Therefore action should be allowed, in particular:

  • If he fixes the new rule tainted by incompetence;
  • If the interpretation of positive law is misunderstood its meaning and purpose;
  • Or if taken with a view to enforcing a provision contrary to the rule of law.

In this case, the State Council considered that CNIL actually had the necessary qualifications to elaborate on these questions and answers. And it does not violate the provisions of the Data Protection Act. So the question and answer is not canceled.

The result can be downloaded below.

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State Council, Chambers 10 – 9, April 8, 2022, n ° 452668 (Requests for revocation of public application documents from public authorities may have a significant impact on the rights when the situation of persons other than the agents responsible for enforcing them may be examined , Such effects are particularly compelling or guideline in these documents.)