Childminder in Alsace-Moselle: does local law apply?

Imagine: you live in Lessay, in the Manche department, and you employ a childminder to look after your child. Everything goes well until the day a dispute arises over the payment of holiday pay or notice pay. You ask around, and you are told about the Labour Code. But if you are in Strasbourg, Metz or Colmar, another rule applies: local Alsace-Moselle law. So, which one takes precedence?

This question is one that many ask without finding a clear answer. On 13 April 2005, the Court of Cassation ruled in a decision that directly concerns childminders employed in the departments of Bas-Rhin, Haut-Rhin and Moselle. And the answer is not as simple as one might think.

In essence, the High Court held that the specific regime for childminders (Articles L. 773-1 et seq. of the Labour Code) does not preclude the application of Article 616 of the Local Civil Code, which provides for specific rules on notice periods and compensation. A decision that requires the two texts to be combined, and which has very concrete consequences for the employers and employees concerned.

The facts: a story like many that happen every day

Mrs X works as a registered childminder in Strasbourg, in the Bas-Rhin department. She is employed by a family to look after their child. The employment contract complies with ordinary law, but a disagreement arises upon termination: the family pays her a notice indemnity calculated under the Labour Code. Mrs X believes that the calculation should take into account Article 616 of the Local Civil Code, which is more favourable to the employee.

The Strasbourg employment tribunal (conseil de prud'hommes) is seised. The first-instance judges rule in favour of the childminder: they apply local law, which provides for a longer notice period and a higher indemnity. The employer challenges this and appeals to the Court of Cassation. His argument? That the employment contract of childminders is subject to a derogatory regime (Articles L. 773-1 et seq.), which would exclude all other rules, including local law.

But the Court of Cassation does not follow him. It upholds the employment tribunal's judgment and dismisses the appeal. For the Court, the legislature intended a specific regime for childminders, but this does not exclude the application of local provisions which are maintained in force by the law of 1 June 1924. In other words, the two texts coexist: the Labour Code sets the general framework, and local law supplements it on points it does not cover or provides for differently.

The court's reasoning — dissected

To understand the decision, one must first know the texts involved. On the one hand, Articles L. 773-1 et seq. of the Labour Code (former, now taken up in the Social Action and Families Code) establish a specific status for childminders: working time, remuneration, holidays, etc. On the other hand, Article 616 of the Local Civil Code, maintained by the law of 1 June 1924, sets out specific rules for employment contracts in the three Alsatian-Moselle departments, particularly regarding notice periods and redundancy pay.

The question was therefore: is the regime for childminders exclusive, i.e. does it replace all other provisions, including local law? The Court of Cassation answers no. It relies on the fact that the law of 1 June 1924 maintained Article 616 in force, and that nothing in Articles L. 773-1 et seq. indicates an intention to repeal it. The judges specify that the particular regime is only a set of specific rules, but it does not have the effect of excluding local texts that apply generally to all employment contracts in the region.

Concretely, this means that the employer and the childminder must comply with both the Labour Code (for working time, minimum wage, etc.) and Article 616 of the Local Civil Code (for notice and indemnity). If the two texts conflict, the more favourable to the employee prevails, as per the principle of favour in labour law. Here, local law was more protective for the childminder.

This solution is not a surprise: it follows a consistent line of case law from the Court of Cassation that protects local Alsace-Moselle law, considered an acquired right. But it has the merit of clarifying a point that could have been confusing for childminders.

What this changes for you — concretely

If you are an employer of a childminder in Bas-Rhin, Haut-Rhin or Moselle, you must now ensure that your contract complies with Article 616 of the Local Civil Code. Concretely, this mainly concerns the notice period and redundancy pay.

Let's take a numerical example: you live in Carentan (but you are in Moselle for the example). You dismiss your childminder after two years of service. Under the Labour Code, the notice period is one month. But under Article 616 of local law, it is six weeks for two to five years of service. You must apply the more favourable: six weeks. The redundancy pay is also higher: 1/12th of gross remuneration per year of service (compared to 1/5th in the Labour Code, but with a different cap). A difference that can amount to several hundred euros.

For the childminder, this decision is a security: she knows that local law continues to protect her, even if her contract falls under a special regime. In case of a dispute, she can invoke Article 616 if it is more favourable to her.

Caution: this rule only applies in the three departments concerned. If you are in Lessay or elsewhere in France, only the Labour Code applies. But for Alsatian-Moselle employers, it is crucial to incorporate these specificities into the contract and calculations.

Four tips to avoid this type of dispute

• Inform yourself about local law: before drafting a childminder contract in Alsace-Moselle, consult Article 616 of the Local Civil Code. It is accessible online or through a specialised lawyer. Do not rely solely on national templates.
• Include a compliant notice clause: in the contract, clearly state the notice period by referencing both texts (Labour Code and local law) and specify that the more favourable applies. This avoids any later contestation.
• Calculate the redundancy pay carefully: in case of termination, make two calculations (one under the Labour Code, one under local law) and apply the higher one. Keep a written record of your reasoning.
• Consult a professional if in doubt: if you are unsure about the application of local law, or if a dispute arises, do not hesitate to seek advice. A calculation error can be costly (several thousand euros in some cases).

Further exploration: related case law and developments

This decision is part of a line of rulings protecting local Alsace-Moselle law. For example, in a decision of 19 February 2003 (No. 00-45.861), the Court of Cassation had already held that Article 616 of the Local Civil Code applied to employment contracts of home help workers, despite the existence of a national collective agreement. More recently, in a decision of 8 July 2020 (No. 19-13.872), it recalled that local law prevails over less favourable provisions of the Labour Code, unless national law expressly provides for its repeal.

The trend is therefore clear: local law remains a pillar in the three departments, and the judges ensure its maintenance. For childminders, this means that their hybrid status (between the Labour Code and local law) is durable. In the future, it is unlikely that the legislature will change this balance, as it is a strong historical heritage.

Note, however, that the law of 1 June 1924 is not static: some provisions have been repealed or amended. It is therefore important to check the version in force of Article 616. But in principle, the coexistence of the two regimes is firmly established.

Frequently asked questions

What is Article 616 of the Local Civil Code?
It is a provision of local Alsace-Moselle law that sets specific rules for employment contracts: notice periods, redundancy payments, etc. It is more favourable to the employee than ordinary law in some cases.

My childminder is registered, but I do not live in Alsace-Moselle. Am I concerned?
No. This decision only concerns employment contracts performed in Bas-Rhin, Haut-Rhin or Moselle. Elsewhere, only the Labour Code applies.

Can I choose to apply the Labour Code instead of local law if it is less restrictive?
No. The principle of favour requires applying the most advantageous rule for the employee. You cannot unilaterally exclude local law if it is more protective.

What if I already have a contract that does not mention local law?
You can modify it by addendum, specifying that local law applies for points not covered by the Labour Code. It is recommended to do so to secure the relationship.

Are there other articles of local law that apply to childminders?
Yes, particularly regarding paid leave (Article 616a) or public holidays. It is advisable to seek professional assistance to verify all applicable rules.

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