Welkamp case: what lessons?

A blind civil servant seconded to the Maison Départementale des Personnes Handicapées du Nord (Departmental House for the Disabled in the North of France, hereinafter MDPH) had it convicted by the Lille Administrative Court for failing to adapt her workstation.

This judgment handed down in June has not been appealed, it is final, but although it may be invoked by other civil servants or public officials, it does not constitute case law even if it is well reasoned.

What sets the precedent?

It is worth recalling a few fundamentals. First of all, by distinguishing between Latin-Roman law and Anglo-Saxon law: French law is a written law whose reference is unquestionably the code, whose origins are in Latin-Roman law. In contrast, Anglo-Saxon law is based on case law or a body of court decisions. Next, recalling the hierarchy of the courts under French law: the highest court or supreme court is the Court of Cassation (and the Council of State for administrative law). It renders its decisions only in law. Next come the courts of appeal in each department: it is the courts of second instance which assess the situation in law and in fact. At the basic level are all the courts of first instance, which also assess the situation in law and in fact. This means that most often when one has to debate before a court of first instance, one refers not only to the law but also to the decisions of the courts of appeal as well as the court of cassation. This is what we could call precedents. In Anglo-Saxon law, only precedents are referred to in order to assert one's rights.

In the light of these fundamentals, what is the exact impact of the ruling handed down by the Lille administrative court on June 2, 2020?

The interest of this decision is to see the MDPH ordered to pay one of its employees the sum of €15,000 as compensation for his loss. Mr Welkamp, a State civil servant who had been made available, claimed compensation for the fact that his administration had not taken adequate and sufficient measures to adapt his workstation to his blindness and thus failed to fulfil its obligations under Articles 6 and 6e of the Law of 13 July 1983.

The question also arises as to who is actually responsible for the Northern MDPH? In other words, should the department whose Departmental Council President chairs the MDPH, or Mr Welkamp's employing State guarantee or pay for the condemnation of the MDPH?

It is quite interesting at this stage to make some comparisons. If an employee of a private establishment is found liable, very often the legal representative of that company will be jointly and severally liable alongside his subordinate. If a company goes bankrupt or undergoes a receivership, the liability of its legal representative may also be sought: this is the procession of management bans and personal bankruptcies pronounced.

However, the Lille court chose to consider that Mr Welkamp was the MDPH officer who alone should be convicted. However, this decision, which nonetheless condemns the Maison départementale des personnes handicapées du Nord to itself adapt the position of one of its employees to his disability - which between us is the last straw - results in the total impunity of the State, which in the end is cleared through customs, even though it should be remembered that it is the employer of Mr Welkamp, whom it made available to the MDPH. In my opinion, this is the real scope of this decision.

The employer is rehabilitated

Another parallel did indeed come to mind. In the mid-1990s, many shopkeepers in Parisian tourist districts were obliged to employ a certain number of relatives (distant cousins, in-laws, sisters-in-law, brothers-in-law, mother and father of the legal representatives) to open on Sundays without resorting to employees. At the same time, the department stores' Virgin Megastore then located on the Champs-Élysées could legally employ all its employees, including on Sundays. The reason why the labour inspector who was then in charge of the Marais district in Paris and the shopkeepers who had set up shop there continued to be so relentless was simple arithmetic. The turnover reached each weekend was obviously much higher than the fines, even accumulated and increased for recidivism, of the famous labour inspector, as well as the fees of their valiant advice.

The moral of the decision of the Administrative Court of Lille is the total impunity of the real superior of the Northern MDPH, the Departmental Council, and of the employing State which, in the overabundance, is there to enforce the law. The spirit of Montesquieu's laws, which advocated a balance between the legislative, the executive and the judiciary, is no longer intended to be studied by law students or by any student taking civic education courses?