Introduction

The reform of the law of obligations recently approved by the French government introduces a general remedy against “significantly imbalanced” terms in non-negotiated contracts. According to proposed Article 1171 CC “in a contract of adhesion, any term which creates a significant imbalance between the parties’ rights and obligations is considered as never written”. By virtue of its position, among the general rules on contractual content, the provision would apply to all non-negotiated contracts, including those which are not specifically regulated within the civil code.

This chapter explores the new rule's potential impact on one specific domain, namely the judicial control of employment (and, potentially, employment-like) contracts. The rule echoes two existing provisions belonging to the specialised domains of consumer and competition law, but the application to labour law that comes with its scope is unprecedented, and the option that the proposal embraces has not been discussed thoroughly in the French literature – although some authors, occasionally, had invoked or foreshadowed the possibility. At the same time, the paper will show, on occasion French courts already engage in activities that might resemble unfair terms control- be it by applying general contract law or labour law-specific tools.

If some form of control of specific terms in employment contracts under open norms is already in place in France, in order to assess the likely impact of the reform on this field, it is important to investigate the similarities and differences between the mechanisms in place and the one to come. Since, as said above, the proposed rule appears to resemble very strongly existing rules targeting unfair terms (clauses abusives) in consumer and commercial contracts, there may be reasons to believe that some commonality is to be expected between all these mechanisms – the one formally in place in the special codes, the one to come with the reform, and the one(s) to be found in the law in practice as developed by French labour courts.