OD FLASH | Portability of employee benefits: extension by the French Supreme Court

Cass. 2^èmeciv, May 28, 2025, no. 23-13.796

The Second Civil Chamber of the French Supreme Court has ruled that employee benefits are to be maintained beyond the portability period when the event giving rise to them is linked to a medical condition that arose or was diagnosed during a period of effective coverage.

• Reminder of the legal framework

Under French law, employers are obliged to provide supplementary group benefits (death, provident, disability, incapacity, etc.) for their employees. These additional benefits are covered by insurance for employees for the duration of their employment contract. Under certain conditions, they are entitled to have these benefits maintained by the insurer after termination of their employment contract, for a maximum period of twelve months, in accordance with Article L. 911-8 of the Social Security Code.

Following the same logic of employee protection, Article 7 of Law no. 89-1009 of December 31, 1989, known as the “Evin” law, stipulates that the termination or non-renewal of an insurance contract taken out by the employer for the benefit of its employees has “no effect on the payment of immediate or deferred benefits, acquired or born during its execution“.

Case law has clarified this protective provision, stating that termination of the employment contract (except for gross negligence or resignation) does not prevent the continuation of benefits when the event giving rise to the entitlement to benefits is acquired or arose during the employment relationship.

The decision of May 28, 2025 marks a new stage in this legal and jurisprudential extension of the scope of group benefits, by enabling an employee to continue to receive benefits paid by the insurer, when the event giving rise to a benefit is acquired or arose during the portability period.

• The facts

An employee, who left the company in July 2016, benefited from the portability of group provident benefits in force at the company until January 2017. Placed on sick leave in October 2016, she received social security benefits and additional daily allowances from the insurer in respect of her incapacity for work until March 2018. She then received unemployment benefits between March 2018 and September 2018. In September 2018, she suffered a relapse of her illness, again resulting in incapacity for work, followed by a classification as disabled by the Social Security system in October 2019.

The insurer then refused to resume compensation for the period after March 2018, on the grounds that this new work stoppage in September 2018 had occurred after the end of the portability period in January 2017). The insurer points out that the employee was placed on sick leave in September 2018 and that, at that date, the link between this new work stoppage and her previous work stoppage is irrelevant, since this relapse occurred twelve months after the termination of the employment contract and therefore after the end of the group benefits portability period. The insurer – and the Court of Appeal – concluded that the employee was no longer covered by these benefits and therefore not entitled to them.

• Solution adopted by the French Supreme Court

In this decision, the French Supreme Court ruled that the insurer could not validly refuse to cover the disputed compensation, insofar as the incapacity for work and then the disability originated in a pathology declared and compensated during the period of coverage. While the work stoppage in September 2018 is certainly not included in the portability period, the French Supreme Court invites the court to determine whether the work stoppage in September 2018 and the classification as disability in October 2019 are not the result of the initial pathology that gave rise to the first work stoppage during the portability period, for which compensation was paid by the insurer.

It should be noted that the Court of Appeal’s decision was overturned for lack of legal basis, and not for breach of the law: the French Supreme Court thus asserts that it intends to exercise normative control over Court of Appeal decisions handed down pursuant to Article L.911-8 of the Social Security Code, inviting them to give careful reasons for their decisions.  

We also note the reasoning of the Second Civil Chamber, based on “the objectives pursued by the legislator” when it introduced portability, i.e. to facilitate professional transitions and secure career paths for employees whose employment contract is terminated under conditions entitling them to unemployment insurance.

In order to give full effect to these objectives, the High Court concludes that Article L. 911-8 of the Social Security Code must be interpreted as meaning that cessation of the period of portability of cover has no effect on the right to payment of benefits, whether immediate or deferred, as long as they are born or acquired during the employment relationship or during the period of portability.

Ultimately, this case law consolidates employees’ rights to supplementary social protection, even after they have left the company.