OD FLASH | Personal data and the right to evidence: greater judicial control

French Supreme Court, Second Civil Division, October 3, 2024, no. 21-20.979

In a judgment handed down on October 3, 2024, on the advice of the Social Division, the Second Civil Division of the French Supreme Court (Cour de cassation) had to rule on the proof of trade union discrimination, in the light of the General Data Protection Regulation (GDPR), clarifying the judge’s role in the matter.

An employee claiming to be victim of syndical discrimination brought claims for compensation and back pay before the labor court (conseil de prud’hommes). In a preliminary ruling, the industrial tribunal ordered the company to produce the career histories and pay slips of nine named employees. The company appealed against this ruling, which upheld the lower court’s decision. It then appealed to the French Supreme Court.

The company claimed that the judgment should order the production, in the hands of the employee claiming to be the victim of union discrimination, of the career histories of several agents as well as their pay slips, invoking the right to respect for these employees’ personal data, guaranteed by the RGPD. In a ruling dated November 30, 2023 (2nd Civ., November 30, 2023, appeal no. 21-20.979), the Second Civil Chamber of the Court of Cassation referred the case to the Social Division for an opinion on various issues. The latter delivered its opinion on April 24, 2024.

Endorsing the conclusions of the social chamber’s opinion, the2nd civil division of the French Supreme Court first considers that the RGPD, in particular its Article 6 on the requirement of lawfulness of data processing, is applicable to the production of documents containing personal data such as pay slips as well as a career history of certain employees, as evidence in industrial tribunal litigation.

According to the court, such production constitutes the processing of data for a purpose other than the initial one for which it was collected. Consequently, it points out that the communication of such documents by the employer:

– must be based on national law,

– must constitute a necessary and proportionate measure, within the meaning of Article 6, § 4, of the GDPR,

– must guarantee one of the objectives referred to in Article 23, § 1 of the RGPD, among which is, in particular, the protection of the independence of justice and judicial proceedings.

The French Supreme Court considers that these conditions have been met in this case, since national law prohibits discrimination, including trade union discrimination (under Article L. 1132-1 of the French Labor Code), and requires the employee, in the event of litigation, to present factual elements suggesting the existence of such discrimination, which enable the judge to pronounce, in this matter, investigative measures subject to proportionality control (under Article L. 1134-1 of the same code).

It therefore ruled that the processing of personal data, resulting from the employer’s communication of employees’ pay slips and career history, to establish proof of discrimination, met the requirements of lawfulness within the meaning of Articles 6 and 23 of the RGPD.

Having rejected:

– The plea seeking to consider that communication should have been ordered in the hands of the judge and not directly to the employee, on the grounds that the content of the documents (pay slips) was legally determined ;

– The argument that article 14 of the Code of Civil Procedure, under which no party may be judged without having been heard or called, cannot be applied to persons whose documents containing their personal data have been requested, as these persons are third parties to the dispute, and are not indivisible from the data controller;

The French Supreme Court (Cour de cassation) has – and this is the contribution of the ruling – clarified the role of the judge hearing a request for communication of documents containing personal data for the purpose of characterizing discrimination.

The French Supreme Court gives the following instructions for use:

1. The search for the necessity of the communication for the exercise of the right of evidence, and its proportionality to the aim pursued;
2. Limiting the scope of production of the documents requested to the facts invoked, if necessary ex officio;
3. Respecting the principle of minimizing personal data, by ordering the deletion of all personal data not essential to the exercise of the right to evidence;
4. Injunction to the parties to use such data exclusively for the purposes of the discrimination action.

It was on this last ground, raised ex officio, that the Second Civil Division overturned the judgment handed down by the Court of Appeal, arguing that the latter had not carried out such a review, in that it had not ensured the principle of minimization of personal data, or even enjoined the parties to use such data only for the purposes of the discrimination action. This decision by the French Supreme Court illustrates the fact that, even if the existence of discrimination does not necessarily imply a comparison with the situation of other employees (Cass. Soc. September 20, 2023 no. 22-16.130), it may be unavoidable, particularly in disputes relating to career development or remuneration, in which unequal treatment between employees in a similar situation may suggest discrimination.

Until then, the French Supreme Court had adopted a position in line with that of the plenary meeting on the right of evidence, leaving it up to the trial judges to assess whether the production of information affecting the personal lives of other employees was (i) essential to the exercise of the right of evidence and (ii) proportionate to the aim pursued, if necessary by limiting the scope of the production of the documents requested. These principles had already been recognized in cases similar to the present one, such as the production of non-anonymized pay slips to demonstrate unequal treatment or union discrimination (Cass. soc. March 8, 2023 no. 21-12.492; soc. June 1, 2023 no. 22-13.244).

The French Supreme Court has added a new requirement to the judge’s control. It is no longer sufficient for him that the Court of Appeal “confines the scope of the data produced”, but he will also have to “minimize this data”, pursuant to Article 5 of the RGPD.