Overview: After having arrested the foundations of divergence (1), we will see how the Criminal Division of the Supreme Court issued a position more consistent with that of the social chamber (2) and finally, what are the contributions of the Judgement of 16 June 2011 (3).
1 ° The basis of the divergence:
The admissibility of company documents provided by the employee as part of an employment tribunal proceedings raised the issue of the legality of this evidence, both before the employment tribunal judge but before the criminal judge since any appropriation by the employee, against the wishes of his employer, documents belonging to the enterprise, is a "fraudulent removal of property of another" or a flight within the meaning of Article 311-1 of the Penal Code.
Also, the Criminal Division, guided by the principle of freedom of proof of Article 427 of the Code of Criminal Procedure, was taken for a long time to consider that this production was a flight (08/01/1979 Crim. No. 77 93,038).
However, the doctrine criticized this position as it was returning to criminalize the exercise by the employees of their rights of defense.
Especially since it only to the Social Chamber of the High Court that subject to Article 9 of the Code of Civil Procedure which states that "it is for each party to prove, according to law, the facts necessary for the success of its claims, "it's long and understanding vis-à-vis the employee. According to her, it is legitimate for an employee, when strictly necessary to the exercise of his defense in a dispute with the employer, it can produce documents which he had knowledge on the occasion of his duties (Soc. 12/02/1998 No. 96-44258 and soc. 30/06/2004 No. 02-41720).
2 Alignment of jurisprudence:
Emphasis on the rights of defense of the employee on the property right of the employer, the Criminal Division has made a departure from precedent in two judgments of 11 May 2004 (crim, 05/11/2004 No. 03-80254 and No. 03-85521), in which it agreed with the social position of the chamber, assuming the exercise of the rights of the defense could justify such a practice. Provided, said she, in turn, that the employee was aware of the disputed documents in connection with his duties and that these documents are essential to the defense of the employee employment tribunal.
It should in this regard to note that this departure from precedent does not apply exclusively to labor disputes. Indeed, the theft of documents produced by the employee in the criminal proceedings against her employer does not object, from the repressive judges in the same understanding (crim, 09.06.2009 No. 08-86843).
Therefore, the production of documents belonging to the enterprise before the tribunal by the employee is not convicted of theft on two conditions:
- As he has obtained in the exercise of his functions,
- That their production before the judges is strictly necessary for his defense.
The condition for obtaining the performance of duties seems clearly not equally apply to all categories of employees. In addition, it is most relevant executives, because of their functions and their proximity to the company management, are more likely to have access to documents and evidence useful. As a reminder, all documents of the company (not the personal papers belonging to colleagues), and that whatever their medium (paper, computer, audio ...), including those normally covered by an obligation of discretion or secrecy are likely to be produced by the employee (Crim., 06/04/1994).
The second condition for documents whose production is strictly necessary for the exercise of the rights of the defense appears mentioned in Article 6 § 1 of the Convention for the Protection of Human Rights on fair trial. The employee should not be run by a different purpose (act of competition or harm the company). For example, is convicted of theft in relation to the employer, the employee resigned that carries with it sansibles records relating to transactions made by his company for several years, and commercial interest for the obvious 'competitor built by the employee immediately after his resignation (21/06/2011 Crim. No. 10-87671).
3 The contribution of the Judgement of the Criminal Division's June 16, 2011: (Crim., No. 10-85079 16/06/2011)
In this case, MX, CEO of the company Y, the project advised by his employer to break his contract, was apprehended documents which he had been aware at the time of the exercise of its functions by transferring on his personal email. Information on counts of theft and breach of trust was then initiated following the complaint with a civil society there against him. For the High Court, it appears that the documents seized by Mr. X that he was aware at the time of the exercise of its functions were strictly necessary for the performance of his defense in his employment tribunal proceedings engaged soon after. The Criminal Division rejects the appeal by the company Y against the decision of the investigating chamber of the Court of Appeal of Paris of May 7, 2010. Thus, when they are notified of the proposed employer to dismiss, employees may constitute evidence from company documents.
Two inputs can be drawn from this ruling.
First, it clarifies the time of appropriation. According to company Y, "the proof is based on the rights of the defense of the employee assumes a labor disputes existing at the time of the employee ownership documents from the employer." The fact was that when the employee transferred the documents on his personal email, no dismissal procedure was instituted against him and therefore no labor disputes were in progress. However, the above, strong to protect the employee and allow him an advance, remember that it is not necessary that labor disputes is in progress, it can not simply be qu'imminent.
On the other hand, the criminal takes a position that the mode of appropriation of the documents does not affect (or photocopy, as here, the transfer paper on personal mail).
08/05/2010
