Role of the Social and Economic Committee in the context of restructuring or downsizing – .

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Role of the Social and Economic Committee in the context of restructuring or downsizing – .


In addition to the information and consultation obligations linked to their general responsibilities,1 The Social and Economic Committees (“CSE”) of French companies, which replace and merge all the employee representative bodies, employee representatives, works council and health, safety and working conditions committee, must be informed and consulted. in the event of “restructuring and downsizing”.2 What is their scope of intervention?
Cases requiring consultation

Consulting the CSE is relevant in a wide range of situations, some of which require specific procedures to be put in place.

First of all, it should be noted that the consultation of the CSE is only necessary if the employer wishes to implement a project which may affect the size or structure of the workforce.3

The cases are varied and cover various situations, such as:

  • economic layoffs4;
  • a collective termination of the agreement or a collective performance agreement. Please note that the consultation does not focus on the draft agreement, but on the reasons that led to the reorganization project, its schedule and the impact on working conditions;
  • more generally, any regular and significant reduction in the workforce of a company over a given period as part of a proactive strategy.5

Possible involvement during the study phase of the project

French labor code6 specifies that the CSE “must be informed in right time restructuring and downsizing projects. »

This notion of “timelyIs particularly difficult to determine when it comes to a restructuring and downsizing project prepared several weeks or months in advance.

It is clear that the CSE can only require its consultation if a specific project really exists, and not for preliminary studies (which are essential for the development of a project). While some companies involve employee representatives from the study phase, this is certainly not out of legal obligation, but out of a desire to promote the most transparent social dialogue possible.

This involvement allows staff representatives to be informed upstream, which makes it easier for them to understand the objectives and principles of the project.

However, this should not encourage the social partners to adopt a form of “”German-style co-management »System. The objective is not to establish a right of co-decision.

In any case, this involvement should be treated with caution. On the one hand because it necessarily creates a “precedent”, even if not all projects lend themselves to it, and on the other hand because the involvement of the CSE at this stage can lead to difficulties or even tensions with elected employees. Thus, the involvement of the CSE from the study phase will also depend on the quality and maturity of the social dialogue within the company.

To note: In our opinion, the extrajudicial intervention of the CSE during this phase must be structured by privileging the negotiation and the signature of an agreement of method which is a collective agreement concluded in order to define beforehand the mode of negotiation and / or of information / consultation of the CSE.

Involvement during the information-consultation phase

During this phase, the involvement of the CSE is crucial, because it can:

  • demand the communication (possibly in court) of precise information concerning the project
  • decide to call in an expert whose financing and operating conditions will depend on the framework of this appeal;
  • make proposals for improvements or alternatives to the project
  • communicate with employees;
  • be a privileged interlocutor of the labor administration, to which it will communicate its opinion.7

A collective agreement (or, in the absence of a union delegate, an agreement between the employer and the CSE adopted by a majority of members) may govern the information-consultation procedure of the CSE.8

This agreement makes it possible to define:

  • the content of the information-consultation procedure in compliance with the provisions of public order;
  • the details of this procedure and more particularly the number of meetings; and
  • consultation times.

During the implementation of the project, the CSE can participate in a project monitoring committee.

The prior information and consultation of the CSE on the strategic planning of the company: a compulsory prerequisite?

In recent years, a “movement»Emerged, consisting in wanting to impose another information-consultation process on an employer’s strategic planning before launching an information-consultation process on a one-off restructuring and workforce reduction project.

However, the recurring information-consultation procedures, and those of an ad hoc nature, fall under a separate regime. There is no legal or contractual provision or rule imposing coordination between recurrent information-consultation procedures (in particular that relating to strategic planning) and ad hoc information-consultation procedures.

On the contrary, the French Court of Cassation has already ruled in favor of the independent nature of recurrent consultations in the area of ​​forward planning of employment and skills (GPEC- Forward planning of jobs and skills) and ad hoc consultations with the works council (now CSE) on a redundancy plan.9 In our opinion, this case law is perfectly applicable to distinguish mandatory recurring consultations on strategic planning from ad hoc consultations.

It is also in this sense that the lower courts have repeatedly ruled in favor of a separation between consultations on strategic planning and ad hoc consultations on a specific project.dix

In 2018, the Créteil tribunal de grande instance recalled that “no rule of positive law obliges the employer to consult the works council on strategic planning before initiating or terminating the consultation on a specific project.« 11

In a more recent decision, the Paris Court of Appeal confirmed this principle by ruling that an employer could not be required to respect a priority by carrying out a consultation on strategic planning before a specific consultation on a particular project, as such a hierarchy does not result from legal or contractual provisions.12

However, two decisions issued by the Nanterre tribunal de grande instance,13 in which the judge suspended the one-off project until the mandatory recurrent consultation on strategic planning has been arranged, are sometimes used to attempt to suspend a one-off project.

However, at no time did these decisions establish the principle of suspending the project. until the end recurring legally required consultation on strategic orientations.

In addition, none of these decisions oblige the employer to carry out, prior to the specific information-consultation procedure relating to a given project, an update of the strategic planning. In fact, the court only imposed the implementation of the judicial process on strategic planning which had not been undertaken during the year under review.14; the decision would have been different, in our opinion, if the company had fulfilled its obligation to inform and consult on strategic planning.

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