France: Information and consultation with French works councils – precisions on the minimum periods for obtaining an opinion

Reminder : an opinion of the French works council must be obtained in advance of making final decisions in relation to certain matters affecting the French business/French employees -  a breach of such obligation is a criminal offence.  The time period for such consultation process must therefore be taken into account and this has previously been potentially problematic, given that French works councils were able to delay giving their opinion, thus delaying the ability to take certain decisions in France and causing uncertainty.

On 14 June 2013 a new law came into force providing for maximum time periods for such consultation processes – thus removing the uncertainty on timing (see our previous blog item).

A Circular has now been published in relation to this law, giving further precision on the timing of information and consultation with French works councils (Circulaire DGT 2014/1 18 March 2014).  This gives the following three key precisions to supplement the law of 14 June 2013:

• Deemed opinions – where no opinion is given by the works council and where there is no collective agreement between the company and a majority of the members of the works council setting out the minimum period for consultation – the works council is deemed to have given a negative opinion after the following minimum periods:
  • 1 month
  • 2 months if an expert is appointed by the works council
  • 3 months if it is necessary also to inform and consult with the health and safety committee
  • 4 months if a coordination committee between health and safety committees is in place.

The time period starts to run from the time that the works council has been given all the necessary information to enable the works council to consider the matter (or the date on which all such information is made available in the data base of information accessible to the works council members).

Practical tip – to ensure that information and consultation can be completed as quickly as possible, the employer should ensure that the works council is immediately provided with the detailed and all relevant information to avoid a subsequent successful argument by the works council that the above minimum time periods have not yet started to run.

•  If an opinion is given by the works council – this can be given at any time (i.e. there is no minimum time period for this) – previously it was considered that the law of 14 June 2013 may have provided for a minimum period of at least 15 days – this is now clarified in the Circular.
• If there is a collective agreement in place specifying a maximum time period for giving an opinion – this agreement cannot provide that the opinion must be given  within a period of less than 15 days.  However, it would appear that if the works council do voluntarily give their opinion earlier than the period specified in the agreement, this can be validly given in less than 15 days.