Facts
Decision
Comment


On 21 September 2022, the French Supreme Court settled the question of whether an employer undergoing a restructuring process must carry out its recurrent strategic orientation consultation with its Social and Economic Committee (SEC) prior to consulting the SEC on its restructure.(1)

Facts

A Catholic education management organisation informed its SEC of a project to close a high school. The SEC was also due to be consulted, a few days later, on the strategic orientation of the organisation.

The SEC contested the timing of the consultations and lodged a claim with the courts. According to the SEC, the consultation on the proposed closure of the high school should have been preceded by the consultation on the strategic orientations.

The tribunal, and then the Paris Court of Appeal, agreed. The consultation on the closure project was suspended until the consultation on the strategic orientations was completed.

Decision

The French Supreme Court overturned this reasoning. It held that punctual consultations on the modification of the economic or legal organisation of a company, or the restructuring and reduction of its workforce, are not subordinate to the prior consultation of the SEC on the strategic orientations of the company.

The Court recalled that consultation on strategic orientations has been defined by the legislature as independent from punctual consultations. It differs from the latter by:

  • its object – it must allow a prospective discussion on the general future of the company, whereas specific consultations concern a certain project; and
  • its temporality – it takes place every year unless an agreement provides otherwise (such a consultation must take place at least every three years).

Comment

This decision follows a decision handed down on 30 September 2009,(2) which stated that the consultation of the SEC on a project of economic dismissal and the consultation of the SEC on the annual evolution of jobs and qualifications were autonomous.

For further information on this topic please contact Alexandra Tuil or Hélène De Nazelle at Hogan Lovells by telephone (+33 1 53 67 47 47) or email ([email protected] or [email protected]). The Hogan Lovells website can be accessed at www.hoganlovells.com.

Endnotes

(1) No. 20-23.660.

(2) No. 07-20.525.