OD FLASH | Gender Equality between Women and Men: The absence of a trade union section does not exempt companies with at least 50 employees from the obligation to draw up an action plan, under penalty of sanctions.

Council of State, October 1, 2025, No. 495549
As a reminder, the French Labour Code requires companies in which one or more trade union sections have been established to conclude an agreement on gender equality between women and men, or, failing that, to adopt an action plan. Companies with at least 50 employees that are covered neither by a collective agreement nor by an action plan are subject to a financial penalty (Articles L. 2242-1, L. 2242-3, L. 2242-8 of the Labour Code).

In this case, a company employing more than fifty employees but without a trade union section was formally ordered by the administration to conclude a collective agreement on gender equality or, failing that, to establish an action plan. The labour inspectorate considered that the plans submitted (notably in December 2016, June 2017, November 2018, and February 2019) did not meet the statutory requirements and consequently imposed, on May 16, 2017, a financial penalty of €72,452 on the company.

The company challenged this decision and brought the matter before the Administrative Court of Paris, seeking annulment of the penalty. By a judgment dated November 2, 2022, the court dismissed the application. The Paris Administrative Court of Appeal, subsequently seized, annulled the judgment only with regard to the collection order but rejected the rest of the company’s claims in a ruling dated April 29, 2024.

The company then lodged an appeal in cassation before the Council of State, arguing in particular that, in the absence of a trade union section, it was not required to negotiate a collective agreement or to establish an action plan. It also argued that the submission of a compliant action plan should justify the annulment or, at least, the reduction of the penalty.

The Council of State rejected the first argument, ruling that companies with more than 50 employees are required to draw up an action plan on gender equality, even in the absence of a trade union section.

It further held that it is for the administration to verify the presence of all mandatory measures, without assessing their appropriateness or relevance. In this case, the Council of State noted that the plans submitted as of June 29, 2017, met these requirements. By merely referring to the labour inspectorate’s rejection of the action plans without reviewing them itself, the Administrative Court of Appeal distorted the case file. The decision was therefore annulled, and the case remitted to the court for reconsideration.