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 arising from an employment contract, Article L. 625-4 of the Commercial Code  requires it to make its refusal known to the legal representative, who immediately informs the employe …

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 arising from an employment contract, Article L. 625-4 of the Commercial Code  requires it to make its refusal known to the legal representative, who immediately informs the employees' representative and the employee concerned. There is no provision requiring the AGS to formulate a refusal to pay within the time periods set by Article L. 3253-21 of the Labor Code for paying to 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 is entitled to contest the scope of its guarantee in all cases where the conditions of the guarantee do not appear to have been met . It may therefore oppose the payment of claims that have been definitively established in proceedings to which it was neither a party nor represented . The third-party objection lodged by ASSEDIC and AGS against a decision fixing the amount of wage claims cannot be declared inadmissible, since these bodies 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 an employee claim as a privileged right by the bankruptcy judge does not prevent the AGS from contesting, for any reason whatsoever, the principle and amount of the guarantee .

Conversely, the AGS cannot invoke the irregularity of amendments to the employee's employment contract drawn up prior to the transfer of the business to justify a refusal of cover . Similarly, in the absence of fraud on the part of an 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 in recognition of such a transfer . The payment of compensation for loss caused by late payment of wages and failure to produce the documents required to regularize paid leave must be guaranteed by the AGS, provided that this claim is directly related to the employer's failure to perform obligations resulting directly from the employment contract .

Applicable to the receivership procedure on reference from art. L. 631-18.

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

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

Cass. soc., 1 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. com., 13 February 2008, LawLex202100003572JBJ (LJ).

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

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

Bankruptcy Law

544. Refusal to guarantee unpaid wages

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544. 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