OD FLASH | Social and Economic Council: The French Supreme Court Reaffirms the Temporal Limits of Consultations

French Supreme Court, January 8, 2025, No. 23-19.403

The expertise requested by the Social and Economic Council (CSE) under Article L. 2315-88 of the French Labor Code for the annual consultation on the company’s economic and financial situation may only cover the year under consultation and the two preceding years, as well as information related to those years.

In this case, the central committee of an Economic and Social Unit (UES) appointed an auditor to assist in consultations concerning social policy, working conditions, and employment, as well as the company’s economic and financial situation and strategic orientations.

The companies composing the UES and the president of the central committee summoned the central committee and the auditing firm before the President of the Judicial Tribunal. They primarily sought to annul the resolution appointing the auditor, alternatively argued that the use of the expertise was unfounded and abusive, and, as a last resort, requested a reduction in the scope, duration, and estimated cost of the expertise. They also sought a revision of the list of documents requested by the auditor.

After the tribunal dismissed their claims, the companies and the president of the central committee appealed to the French Supreme Court. The Court was asked to rule on the scope of the auditor’s mission, the production of documents that did not exist or were not mandatory for the company, and the temporal limits of the documents provided for the expertise. Only the latter point will be discussed here.

The companies and the president of the central CSE argued that the auditor’s mission for assisting the CSE in its consultation on the company’s economic and financial situation must respect the temporal limits defined by Article R. 2312-10 of the French Labor Code. This provision requires that the documents in the economic and social database (BDESE) cover the current year and the two preceding years. In this case, the companies contended that the requested documents extended over a period of three to five years prior to the consultation. By dismissing their objection and allowing the communication of documents beyond the current year and the two previous years, the tribunal, according to the companies, violated Articles L. 2312-36, R. 2312-10, and related provisions of the French Labor Code.

In its ruling, the French Supreme Court reaffirmed that, under Article L. 2312-18 of the French Labor Code, the database must include all necessary information for recurring consultations provided to the CSE by the employer. Furthermore, Article R. 2312-10 specifies that, absent an agreement under Article L. 2312-21, the database must contain information for the current year, the two preceding years, and, prospectively, the three subsequent years. Consequently, the expertise conducted under Article L. 2315-88 is limited to the current year and the two preceding years, as well as information pertaining to those years.

By rejecting the UES’s objection regarding the communication of information beyond these limits, the tribunal violated the provisions. As a result, the French Supreme Court overturned the tribunal’s judgment in part, ruling in favor of the companies contesting the scope of the expertise.

This decision aligns with previous rulings, such as the June 1, 2023, decision (No. 21-23.393), which similarly upheld these principles. It further clarifies the boundaries of the auditor’s prerogatives in the context of recurring CSE consultations.