The French Court of Cassation has made a significant shift in jurisprudence in a ruling dated December 22, 2023. It now accepts that civil judges may, under certain conditions, consider evidence obtained unfairly, thereby aligning with European jurisprudence (Cass. ass. plén. 22-12-2023 No. 20-20.648 BR, Sté Abaque bâtiment services v. B.; Cass. ass. plén. 22-12-2023 No. 21.11.330 BR, Sté Rexel Développement v. B.)
Court of Cassation evolved its position and thus conformed to European law
The Court of Cassation issued two awaited decisions on the admissibility (or non-admissibility) of evidence obtained “unfairly” (Friday, December 22, 2023) On this occasion, the Court of Cassation reversed its jurisprudence.
Covert recording as a means of proof
In the first case presented, a commercial manager contested his dismissal for gross misconduct. On appeal, the judges had declared inadmissible the evidence provided by the employer in support of the employee’s dismissal, as these proofs were collected through clandestine recordings of preliminary interviews, concluding that the dismissal of the employee was unjustified. These elements proved that the employee had expressly refused to provide his employer with the tracking of his commercial activity.
The employer filed an appeal in cassation, arguing “that audio recording, even when obtained without an employee’s knowledge, is admissible and can be produced and used in court as long as it does not infringe on the rights of the employee, that it is essential to the right to evidence and to the protection of the employer’s interests, and that it could be discussed in the context of a fair trial.“
A solution unchanged since 2011 in civil matters
The Court of Cassation was asked to answer the following question: “Should it be admitted, on the model of the European Court of Human Rights, that evidence obtained unfairly can, under certain conditions, be submitted to the civil judge?” The Court of Cassation emphasized in the communiqué attached to the two decisions of December 22, 2023, that “new technologies offer litigants additional perspectives on how to report proof of their rights, but they also present unprecedented risks of infringement on fundamental rights (privacy, professional secrecy, etc.).“
The position of the Court of Cassation, since a Plenary Assembly ruling of 2011, adhered to a rule: “when evidence is obtained unfairly, that is, when it is collected without a person’s knowledge, through a maneuver or a stratagem, a judge cannot take account of such evidence” (Cass. ass. plén. 7-1-2011 nos 09-14.316 and 09-14.667 PBRI: RJDA 7/11 no 653).
The Court of Cassation reverses its Jurisprudence
However, on the occasion of this litigation, it evolved its position and thus conformed to European law. In its response to the posed question, it recalled that “the European Court of Human Rights does not, as a principle, rule out the admissibility of evidence considered unfair.“
It also cited penal jurisprudence, according to which “no legal provision allows the criminal judge to exclude means of proof produced by individuals solely on the grounds that they were obtained illicitly or unfairly” (Cass. crim. 11-6-2002 No. 01-85.559 P).
Unfairly obtained evidence is admissible under certain conditions
The Court of Cassation thus decides that “in a civil trial, the illegality or unfairness in the obtaining or production of a means of proof does not necessarily lead to its exclusion from the debate. The judge must, when requested, assess whether such evidence affects the fairness of the overall procedure, weighing the right to evidence and the opposing rights involved, the right to evidence justifying the production of elements infringing on other rights provided that this production is indispensable to its exercise and that the infringement is strictly proportionate to the aim pursued.“
Even if unfairly obtained evidence is no longer automatically inadmissible, the conditions required by the Court of Cassation for its admissibility are very demanding: the judge must first inquire into the legitimacy of the control exercised by the employer and verify if there were concrete reasons justifying such recourse. He must then seek whether the employer could not achieve an identical result using other means more respectful of the employee’s personal life and must finally assess the proportionality of the infringement on personal life in relation to the pursued goal (Cass. soc. 8-3-2023 No. 21-20.798 FS-D, 21-17.802 FS-B, and 21-20.848 FS-B).
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Information by ALARIS AVOCATS, English speaking lawyers in France (Paris)