2. Cass. com., 15 octobre 2025, 23 19.705, Société Facility Park
Article(s) in Directive 2014/24/EU: Art. 46.
Topic: Division of contracts into lots; Employment Law (staff re-employment).
Member State: FR
Court/rev. board: Cour de cassation, chambre commerciale
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
The article 46 of the Directive 2014/24/EU was implemented by the Code de la commande publique (CCP), with the articles L. 2113-10.
2. FACTS
On 16 February 2012, following the compulsory liquidation of Park Expert Services, the company to which it had awarded the contract for cleaning, security and surveillance at several of car parks, SEMEPA, a semi-public company, placed a temporary order for the same services with Gestipark, pending the launch of a tender process to find a new service provider.
SEMEPA, the organisation responsible for managing the car parks of Aix-en-Provence, launched a call for tenders on 27 July 2012, dividing the previous contract into three separate lots:
- Lot No. 1: ‘on-site presence in car parks’;
- Lot No. 2: ‘cleaning of car parks’;
- Lot No. 3: ‘first-level breakdown assistance’.
As these lots were not awarded to the outgoing company and the successful bidders for these lots refused to take on the outgoing company’s employees, the latter brought summary proceedings before the employment tribunal, which, by order of 22 February 2013, which was upheld on appeal, ruled that the employment contracts had not been transferred and that the outgoing company remained the employer of the employees.
The outgoing company contends that the division of the contract into three separate lots served no other purpose than to prevent the automatic transfer of its employees to the new contractors. It considers that SEMEPA and the contractors committed fraud. For this reason, the outgoing company brought proceedings against them to seek compensation for the loss it had suffered. Having failed to succeed on appeal, the outgoing company lodged an appeal to the Cour de cassation. In the judgment under discussion, the Cour de cassation dismissed its appeal, upholding the judgment of the Court of Appeal.
3. JUDGMENT
The Code du travail (Art. L. 1224-1) provides that where a change occurs in the employer’s legal status, in particular through succession, sale, merger, reorganization of the business or incorporation of the undertaking, all employment contracts in force on the date of the change shall continue to apply between the new employer and the undertaking’s staff. This is the case in public procurement, where there is a succession of successful tenderers.
In the view of the Cour de cassation, the division of a public contract into lots could constitute a breach of the obligation to take on the staff of the outgoing company. However, for this to be the case, it must be demonstrated that the division of a contract which was previously a single, comprehensive contract is intended to prevent the implementation of the provisions of article L. 1224-1 of the Code du travail. However, the mere fact that such a division prevents the transfer of an autonomous economic entity between the previous contractor and the new contractors is not sufficient to constitute such fraud.
In this case, whilst the ground of appeal alleging fraud was dismissed by the judges, this was not because it was ineffective, but because it was unfounded in the light of the facts. Furthermore, the Cour de cassation considers, following an analysis of the relevance of dividing the workforce into groups, that this division into lots is justified in view of the specialisation of tasks and the low levels of satisfaction amongst the former, non-specialised staff.
If the argument based on fraud under this section is rejected, it is not because it is ineffective, but because it is unfounded in this case. Therefore, to rule out fraudulent intent, the Court of Appeals and the Cour de cassation analyse the appropriateness of the job allocation. And the job allocation is justified considering the specialization of tasks and the low level of satisfaction among the former, non-specialized staff.
It is true that the three categories appear relevant: what do physical presence—which is similar to security guard work and requires a specific certification (SSIAP 1)—cleaning, and minor repairs have in common? Furthermore, since this subdivision appears relevant, there is no basis for finding fraud. However, one can compare the Cour de cassation’s approach with that of the Conseil d’État, which appears to be stricter than the latter’s. On the one hand, it does not mention that division into lots is the general rule, whereas the 2006 Code des marches publics does. It is true that the case involved a semi-public company (SEM), which was therefore subject to the now-defunct ordinance of June 6, 2005, which did not provide for division into lots as a general rule. It was not until the ordinance of July 23, 2015, and its Article 32 that the obligation to divide contracts into lots was extended to contracting authorities other than public entities subject to the Code de la commande publique. However, it is doubtful that the Cour de cassation took this distinction into account. In other words, it is highly likely that, in the case of a contract entered into after the ordinance of July 23, 2015, took effect, the reasoning would have been the same.
It should also be noted that there is no mention of a review for manifest error of judgment, which is what the Conseil d’État does when it reviews how lots are divided. While it is true that this is a technique specific to administrative courts, it does not appear that the Court applies an equivalent standard in this case.
Finally, one might have expected the Court to apply a more lenient standard of review as well, given that it acts as a court of cassation. The Labor Chamber has in fact already held that fraud in violation of the provisions of Article L. 1224-1 of the Code du travail falls within the discretion of the trial judges (Cass. Soc., June 28, 2023, 22-14.834, Bull.). No reference is made here to this sovereign assessment by the Commercial, Economic, and Financial Chamber of the Cour de cassation.
It should be noted that the judicial court logically had jurisdiction, since the action was directed against legal entities governed by private law, including the contracting authority (SEM). Had the entity in question been a legal entity governed by public law, the administrative court would have had jurisdiction, especially since it is unclear how the companies awarded the new lots could have been held liable for the division into lots.
Ultimately, while the claim of fraud is rejected here on the grounds that the division into lots was justified, this suggests that strict oversight of the allocation process will be required going forward—at least when a judicial court has jurisdiction.
