Bankruptcy Law

When the Association for the management of the wage guarantee scheme (Association pour la gestion du régime de garantie des salaires (AGS)) refuses, for whatever reason, to pay a claim appearing on a statement of claims resulting from an employment contract, Article L. 625-4 of the Commercial Code requires it to make its refusal known to the legal representative, who must immediately inform the em …

Refusal to guarantee unpaid wages

When the Association for the management of the wage guarantee scheme (Association pour la gestion du régime de garantie des salaires (AGS)) refuses, for whatever reason, to pay a claim appearing on a statement of claims resulting from an employment contract, Article L. 625-4 of the Commercial Code requires it to make its refusal known to the legal representative, who must immediately inform the employees' representative and the employee concerned. There is no provision requiring the AGS to formulate a refusal to pay within the time-limits set by Article L. 3253-21 of the Labor Code to pay the legal representative the sums appearing on the statements of employee claims .

As a third party to the lawsuit between the employee and the company placed in insolvency procedure, the AGS has the right to contest the scope of its guarantee in all cases where the conditions of the guarantee do not seem to be met . The AGS may therefore oppose the payment of claims that have been definitively established in proceedings to which it was neither party nor represented . The third-party objection filed by the ASSEDIC (Association for Employment in Industry and Trade) and the AGS against a decision that sets the amount of wage claims cannot be declared inadmissible, since these organizations cannot be considered as having been represented in the proceedings by the employer and, given the conditions under which the wage guarantee may be invoked, they justify an interest distinct from that of the employer or the employee .

In order to refuse its guarantee, the AGS may, in particular, rely on non-compliance with the provisions of Article L. 1221-3 of the Labor Code and the nullity of a non-competition clause . The admission of a wage claim as a general privilege by the bankruptcy judge does not prevent the guarantee body for the recovery of wage claims from challenging, for whatever reason, the principle and amount of the guarantee .

A contrario, the AGS cannot invoke the irregularity of the amendments to the employee's employment contract drawn up before the transfer of the company to justify a refusal of the guarantee . Similarly, in the absence of fraud on the part of the employee who does not request the transfer of his or her employment contract to the transferee of his or her employer's business, the AGS has no right of its own to refuse its guarantee . The payment of an indemnity to compensate for the harm caused by delays in the payment of wages and the failure to produce the documents necessary for the regularization of paid leave must be guaranteed by the AGS, since this claim is directly related to the employer's failure to perform obligations resulting directly from the employment contract .

Cass. soc., 20 May 1992, LawLex202100003556JBJ (LJ).

Cass. soc., 5 January 1995, LawLex202200003987JBJ (RJ).

Cass. soc., 1st December 1999, LawLex202100003548JBJ (LJ).

Cass. soc., 3 May 1978, LawLex202100003564JBJ (LJ).

Cass. soc., 13 June 2001, LawLex202100003565JBJ (LJ).

Cass. soc., 14 March 2000, LawLex202200003991JBJ (RJ).

Cass. soc., 13 February 2008, LawLex202100003572JBJ (LJ).

Cass. soc., 8 December 2016, LawLex202200005846JBJ (LJ).

Cass. soc., 27 June 2001, LawLex202100003758JBJ (LJ).

Bankruptcy Law

242. Refusal to guarantee unpaid wages

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242. Refusal to guarantee unpaid wages

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise