OD FLASH | Economic alert right: recourse to expert appraisal by the Social and Economic Council (CSE) may be abusive

Court of Cassation, Civil, Social Division, September 11, 2024, 23-12.500

As a reminder, as part of its economic alert rights, the Social and Economic Council (CSE) has the option of appointing a chartered accountant in accordance with articles L. 2312-63 et seq. of the French Labor Code.

In this case, on July 25, 2022, the company’s CSE decided to appoint a chartered accountant to exercise its economic alert right.

A few days later, the employer brought the case before the president of the judicial court, requesting the annulment of this deliberation as well as the appointment of the expert, arguing that this expertise was not justified for the following reasons:

• The appointment in question had been preceded, less than two months earlier, by the appointment of the same firm of experts to carry out an appraisal as part of the annual information-consultation on the company’s economic and financial situation, and it appeared important to rationalize costs in view of the company’s economic difficulties;

• The committee had already appointed fourteen expert reports over a period of two and a half years, including three within the framework of the economic alert right.

In a ruling handed down on January 23, 2023, the president of the Nanterre judicial court upheld the employer’s request and annulled the deliberations and the appointment of the chartered accountant.

The CSE and the expert appealed against this decision, arguing in particular that the judge had “added to the law” and that the expert appraisal linked to the economic alert right could be carried out simultaneously with that carried out as part of the annual information-consultation on the company’s economic and financial situation.

The French Supreme Court dismissed the appeal, stating that, while the president of the judicial court is not required to rule on the merits of the economic alert exercised by the CSE, he does have the power to assess the need for an expert opinion. In this case, the Court validated the analysis of the president of the judicial court, who had considered that the expert opinion was not necessary, “the committee having already been adequately informed” by the expert opinions previously carried out.

This ruling is welcome and helps to limit certain abuses of expert appraisal. The French Supreme Court reminds us that recourse to expert appraisal must meet a real need and cannot be systematic.