The reorganization measures of the company not involving dismissals can be implemented before the approval of the related PSE

In a decision dated March 23, 2022 (n°20-15.370), the Court of Cassation sheds light on the sequencing of a reorganization project involving the implementation of a PSE.

It thus censured a decision of the Court of Appeal of Aix-en-Provence pronouncing the judicial termination of an employee's employment contract on the grounds that the dispensation from activity which he had been granted and which resulted from the implementation of a reorganization project, had occurred before the date of approval of the PSE by the administrative authority.

Referring to the articles governing the procedure for informing and consulting the works council (formerly known as the social and economic committee), the Court of Cassation recalled that "if the works council must be informed in good time of restructuring and workforce reduction projects, the reorganization may be implemented before the date of approval of the employment protection plan by the administrative authority".

A CSE or a trade union can invoke the exception of illegality of a collective agreement to defend their own right

The action for nullity of a collective agreement is strictly regulated by the provisions of article

L. 2262-14 of the French Labor Code, and is time-barred within two months. If the judge recognizes the nullity of a collective agreement, it is retroactive and enforceable against third parties.

But what if such an action has not been initiated within the time limit even though a collective agreement is tainted by illegality? Is any action futile and who can initiate it?  

By three separate rulings rendered on March 2, 2022 by the Plenary Chamber of the Court of Cassation, recognizes (n°20-16.002, n°20-18.442 and 20-16.002) the right of the CSE and of the trade unions that are not signatories of a collective agreement to challenge by way of exception and without any time limit, the illegality of a clause of a collective agreement, when this clause is invoked in order to oppose the exercise of their own rights resulting from the prerogatives that are recognized by the law.

If the illegality of the agreement is recognized by way of exception, the sanction is the unenforceability (and not the nullity) of the agreement with respect to the petitioners only.

Employment protection plan (PSE) and collective bargaining agreement (RCC): can they be reconciled?

In a groundbreaking decision, the Paris Court of Appeal (CAA Paris, 14 mars 2022, n°21PA06607) has ruled that a PSE can succeed a CCR and has provided some interesting insights.

The Court confirms the decision of the Montreuil Administrative Court rejecting the request of several trade unions to annul a decision to approve a PSE, even though the collective redundancy project was the result of a project to modify the employment contract which succeeded, by barely one month, a CCR.

However, the Court considers that :

• In its control for the purpose of approving the PSE, the administration does not have to verify the conditions of negotiation of the CCR (the applicants invoked the unfairness of the company in the collective negotiations);
• Article L. 1237-19 of the French Labor Code (RCC) does not prevent the conclusion and implementation of a PSE, as long as "the latter respects the stipulations of this agreement which are applicable to it" and that the PSE respects the period of employment guarantee fixed by the RCC.