'Outsourcing' a PSE may amount to fraud
Cass. soc., 15 April 2026, n° 24-21.678
"Outsourcing" a PSE may amount to fraud.
Timeline:
2007: Spie Batignolles acquires the company Groupe SPR, then sets up a "painting division";
2013: sale of the companies making up the painting division to a purchasing group;
November 2014 – February 2015: insolvency (cessation des paiements); court-ordered reorganization (redressement judiciaire) then court-ordered liquidation of the transferred companies;
March – May 2015: PSE approved, dismissals issued by the transferred companies in liquidation.
The employee argues that the sale of the "painting division" amounts to fraud committed by Spie Batignolles and Groupe SPR, which sought, "under cover of a repositioning of their activities, to avoid a costly job protection plan (PSE) while getting rid of employees with long service".
The court of appeal finds that such fraud exists and holds Spie Batignolles and Groupe SPR liable in non-contractual liability (Article 1240 of the Civil Code) — two entities that were neither the employer nor the co-employer of the employee at the time of the dismissal.
The French Supreme Court upholds this analysis, emphasizing in particular the following points:
the transferring companies were aware of the "irretrievably compromised" situation of the transferred companies;
they provided the buyer with misleading information about the situation of these companies, in order to mislead it as to the prospects of recovery;
they sold the companies at an undervalue, after artificial capital increases decided just before the sale;
a potential buyer had come forward for a price of 4 million euros, set aside in favor of a buyer whose recovery plan was doomed to fail, being an "empty shell";
continuing the business was not realistic, in the absence of the necessary migration of the IT system and of group support, even though the transferors had committed to it until the end of 2013.
The operation was intended, according to the French Supreme Court, to relieve the transferors of their legal obligations regarding dismissal: the sale and the transfers of employment contracts are, on that basis, fraudulent.
Source: French Supreme Court, 15 April 2026, appeal n° 24-21.678