ODFLASH | The time limit for contesting an opinion of the Social and economic council runs from the day after the disputed decision

There are strict deadlines for contesting the expertise of the social and economic council (CSE).

Any such action must be introduced within 10 days, except in the case of the expertise taking place during a job preservation scheme (Labor Code, article R. 2315-49).

The starting point of this deadline for appeal depends on the subject of the dispute (Labor Code, article L. 2315-86); it is:

• The date of the deliberation of the CSE deciding on the use of expertise if the employer wishes to contest the need for it;
• The date of appointment of the expert by the CSE if the employer wishes to contest the choice of expert;
• Notification of the specifications to the employer if he wishes to contest the estimated cost, scope or duration of the expertise;
• Notification to the employer of the final cost, if he wishes to contest the final cost of the expertise.

In this decision of February 5, 2025 (French Supreme Court, February 5, 2025, no. 22-21.892), the Cour de cassation clarified the rules for calculating this time limit, based on the texts of the Code of Civil Procedure.

More specifically, in the case in point, the CSE decided to call in an expertise on the grounds of “serious risk” at a meeting held on April 6, 2022.

The employer contested the necessity of this decision on April 19, 2022, before the court.

This action must be brought before the president of the judicial court, ruling under the accelerated procedure on the merits. The Cour de cassation has specified that the date of referral is that of the summons and complaint (French Supreme Court, June 6, 2018, no. 16-28.026).

According to the CSE and the lower court, the 10-day time limit had not been respected, and the employer should have acted before April 16, 2022. The lower courts held that the 10-day period had begun to run on April 6, 2022, the date of the disputed deliberation.

However, the Cour de cassation refutes this reasoning: pursuant to articles 641 and 642 of the Code of Civil Procedure, the 10-day period:

• Starts running the day after the CSE’s deliberation;
• Extends to the next working day if it expires on a Saturday, Sunday or public holiday.

Applying this reasoning, the Cour de cassation ruled in favor of the employer: he had until April 19th to act, and his action was therefore admissible.

The 10-day period for contesting the use of the expertise began to run on the day following the CSE’s decision, i.e. April 7, 2022. The period should therefore have expired on April 17, 2022, but as this was a Saturday, the deadline was extended to the next working day, i.e. April 19, 2022 (Monday April 18, 2022 being Easter Monday).

It should be remembered that, according to the Cour de cassation, the time limit for contesting the need for an expert appraisal only runs from the day on which the employer was made aware of the nature and purpose of the appraisal (French Supreme Court, April 5, 2023, no. 21-23.347).