By a decision dated March 28, 2018, the social chamber of the French Supreme Court has provided unprecedented clarification concerning the rules for the computation of periods in terms of recurring consultations of the works council in the absence of the implementation of a BDES (Cass. Soc. March 28, 2018 No. 17-13.081)

As a reminder, Article R.2323-1 of the Labor Code states that the fixed periods of consultation of the works council only start as from the communication by the employer of information in view of the consultation or as from the information, by the latter, of their availability in the BDES (the mandatory economic and social database).

However, noting that:

- On the one hand, the BDES is a natural basis for the consultation on the company's strategic orientations (Article L.2323-7-1 and L.2323-7-2 of the Labor Code in their then-applicable versions)
- On the other hand, that the BDES was not implemented by the employer

The French Supreme Court concluded that the fixed periods of consultation for the consultation on the strategic orientations did not start and is therefore unenforceable against the works council.

The French Supreme Court goes even further by extending the effects of unenforceability of the fixed periods to a consultation on a reorganization project which was carried out immediately after the consultation on the strategic orientations.

Indeed, the French Supreme Court believes that this reorganization project was related to the strategic orientations of the company.

Consequences of the decision of the French Supreme Court:

  • The communication of information elements, excluding BDES, shall not amount to communication within the meaning of Article L.2323-3 when it is expressly provided that the BDES is the support of said consultation as is the case for the consultation on strategic orientations.
  • The effects of unenforceability of the periods in the event of a consultation on the strategic orientations can be extended to reorganization projects undertaken simultaneously or immediately after if they have a relation with the main consultation (note that in the case at hand the works council has only requested the extension of the consultation period). 

Is the principle laid down by the French Supreme Court applicable to all consultations?

A positive answer seems possible for the "recurring" consultations when the law or the collective agreement provides for the communication or the provision of certain documents.

Indeed, according to the Rebsamen law, the BDES is a natural support for the consultations on social policy (Article L.2323-17) and on the financial and economic situation of the company (ArticleL2323-13).

Can the principle laid down by the French Supreme Court be transferred to the CSE (social and economic committee)?

The answer seems once again to be positive: the new Article L.2312-18 provides that the BDES "gathers all the information required for the consultations and the recurring information that the employer provides to the CSE".

It must however be noted that the Macron orders have left a wide scope for negotiation to determine the content of the BDES.

What about in the case of a deficient BDES?

This purpose of this case law is to punish the employer's lack of action; the deficient nature of a BDES would not have such consequences.

The fixed periods would start and the works council would then be limited by the judge's ordinary referral periods in the event of a challenge.

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