OD FLASH | The Social and Economic Committee does not need to be consulted on the environmental impact of the redundancy plan.

CAA Paris, 3 mai 2024, n°24PA00549

In a decision dated 3 May 2024, the Paris Administrative Court of Appeal ruled that the administrative authority was not required to verify that the Comité Social et Economique (CSE) had been regularly informed and consulted on the environmental impact of the Plan de Sauvegarde de l’Emploi (PSE) when it was asked to validate an agreement under the PSE.

The facts. In this case, a company initiated an information and consultation procedure with its CSE concerning a reorganisation project justified on economic grounds in order to maintain the competitiveness of the subsidiaries of the group to which it belonged and to reduce production and operating costs. The proposed reorganisation involved the implementation of a PSE involving the termination of a maximum of fifty employment contracts at the company’s two sites and the closure of one of the sites.

The DRIEETS validated the partial agreement setting out the content of the PSE, and approved the unilateral document supplementing the partial agreement, setting out the categories of workers concerned, the criteria for ordering the redundancies, their weighting and their scope.

The procedure. Several employees sought the annulment of the DRIEETS decision in so far as it confirmed the partial agreement and approved the unilateral document.

The Administrative Court of Montreuil rejected their claims.

They therefore lodged an appeal against this decision. In particular, they argued that

(i) The contested decision should be annulled on the grounds that its author lacked jurisdiction.

(ii) The employer had breached its safety obligation.

(iii) The occupational categories had been incorrectly determined.

(iv) The CSE had not been properly informed and consulted on the reorganisation and activities following the implementation of the economic restructuring plan, on the environmental consequences of this project and on the search for a buyer.

Solution. The Paris Administrative Court of Appeal partially upheld the decision of the Montreuil Administrative Court.

It ruled that

(i) The author’s plea of lack of jurisdiction had to be rejected.

(ii) The employer’s duty to ensure safety had been fulfilled in that the CSE had been consulted on the updating of the single risk assessment document and the annual programme for the prevention of risks and the improvement of working conditions.

(iii) The decision of the DRIEETS approving the unilateral document concerning, in particular, the classification of the professional categories had to be annulled in so far as the professional categories did not group the employees according to their professional experience, which went beyond the employer’s obligation to adapt.

(iv) The site affected by the closure could not be considered as an economic entity subject to the obligation to set up a CSE. Therefore, the applicants could not validly claim that the CSE had not been informed in order to find a buyer in accordance with Article L.1233-57-14 of the French Labour Code. In addition, it was held that there was no legal provision requiring the administrative authority, when asked to validate an agreement under Article L. 1233-24-1 of the Labour Code, to ensure that the works council had been duly informed and consulted under Article L. 2312-8 of the same Code on the environmental consequences of the proposed reorganisation.

As a result, the judgment of the Administrative Court of Montreuil was annulled, but only in so far as it dismissed the action for annulment of the DRIEETS decision approving the unilateral document supplementing the partial collective agreement.

This OD Flash deals only with point (iv), and more specifically with the failure of the administration to monitor the information and consultation of the CSE on the environmental consequences of the reorganisation project.

On this point, the Court of Appeal recalled that it is the employer’s responsibility to ensure that the works council is duly informed, consulted and given the opportunity to give its opinion (i) on the project, (ii) on the proposed collective redundancies and the job protection plan, and (iii) on the closure of one of the company’s establishments and the possible search for a buyer (Articles L. 1233-57-3, L. 1233-57-9 and L. 1233-57-14 of the Labour Code).

In this case, the appellants considered that the employer had failed to fulfil its obligation to inform the CSE of its search for a potential buyer for one of the sites to be closed. However, the Paris Administrative Court of Appeal found that the site in question was not an economic entity subject to the obligation to set up a CSE and that it could not be classified as an establishment, so that the failure to inform the CSE could not be invoked.

Finally, with regard to the environmental impact, the Paris Administrative Court of Appeal considered that “there is no text to suggest that it is the responsibility of the administrative authority to ensure that the ESC has been regularly informed and consulted on the environmental impact of the reorganisation project when it is approached with a request to validate a PSE agreement”.

As a result, the judgment was upheld to the extent that it dismissed the employees’ application to annul the validation of the partial collective agreement.

This is an important decision as, to our knowledge, it is the first ruling by an administrative appeal court on the issue of consultation of the works council on the environmental impact of a restructuring plan and the Conseil d’Etat has not yet had the opportunity to rule on this issue.