This matter is of great importance because the commencement of proceedings to recover remuneration after the expiry of the limitation period enables the defendant to object that the claim is out of time and should be declared inadmissible.
Article L.221-2 of the Labour Code provides that “an action for payment of remuneration of any kind due to an employee is time-barred after three years pursuant to Article 2277 of the Civil Code.”
Thus, after the expiry of three years, the debtor is released from his debt and the claimant can no longer bring proceedings for payment.
However, certain events mean that the period of three years can be interrupted.
Thus, in the terms of Article 2244 of the Civil Code, “a summons to appear in court, an order or a seizure notice, served on any person who seeks to avoid a limitation period, constitutes a civil interruption”.
To clarify:
- a summons to enter an appearance in court is an originating summons requiring the addressee to appear before the Magistrates' Court (Justice de Paix), which is brought to the notice of the defendant by a registered letter with a return receipt delivered by a process-server (huissier de justice),
- an order is a document served by a process-server whereby that public officer calls on the debtor to fulfil his obligation.
Acts-in-the-law which interrupt a limitation period are exhaustively indicated in Article 2244 of the Civil Code, mentioned above, so that no other ground for interruption is possible.
Within the category of originating summonses, mention may also be made of applications. According to consistent case law, a limitation period is likewise interrupted by the filing of an application before the Labour Court. In such case, following the filing of the application at the registry of the labour court, the registrar convenes the parties by postal registered letter, informing them of the day, time and place of the hearing.
The same applies to the summons, which is the way that proceedings before district courts (tribunaux d'arrondissement) are commenced, in the form of a document served by a process-server by which the claimant officially calls upon the opposite party to appear before the judge, and which also allows interruption of the limitation period. Notice of the summons is given by the service of a document, that is to say by delivery by the process-server of a copy of the document.
It follows that the three-year limitation period is not interrupted, for example, by simple written complaints or warnings addressed to the employer or grievances notified to the ITM. Grievances cannot be regarded as acts interrupting the above-mentioned limitation period.
In any event, if grounds for interruption of the limitation period are established, it is the day of filing and not the day of processing which is to be taken into account.
It should be noted that the date of delivery of the above-mentioned legal documents to the defendant marks, from the procedural point of view, the starting point of the time limits for entering an appearance and the start of the period from which default interest begins to accrue.
Similarly, such a document must be sent to the person who is to interrupt the limitation period and not to a third party.
Finally, Article 2248 of the Civil Code provides that “a limitation period is interrupted by an acknowledgement made by the debtor of the right vested in the person against whom he invoked the limitation period”. The acknowledgement, which may be express or tacit, is an interrupting event if it clearly expresses the debtor’s willingness to recognise the right of the creditor. It may be evidenced either by written documents which leave no doubt as to the intention of the author, or by any event which implies an acknowledgement by the debtor of the existence of the creditor’s right.