France: new obligations to inform and consult French works councils on environmental issues

Ça y est … French works councils now formally have a potentially important new and official role as actors in environmental issues within the Company.

Following the enactment of the Law on Climate (Loi n° 2021-1104, 22 August 2021) companies will now have to include specific information and/or consultation of the works council on environmental issues in the following circumstances:

• A general information and consultation obligation also now on environmental matters (i.e. an opinion of the works council is required) on any questions which relate to the "management and economic and financial evolution of the business, the organisation of work, professional training and production methods" (Article L.2312-8 of the French Labour Code).

"Le comité social et économique a pour mission d'assurer une expression collective des salariés permettant la prise en compte permanente de leurs intérêts dans les décisions relatives à la gestion et à l'évolution économique et financière de l'entreprise, à l'organisation du travail, à la formation professionnelle et aux techniques de production, notamment au regard des conséquences environnementales de ces décisions."

In practice therefore when consulting on such questions before any decision is taken on the implementation of a project, employers will have to include specific information on the environmental impact of a project which falls within this category.

The consultation period is 1 month (2 months if the works council appoints an expert).  However this period could be extended if the works council alleges it does not have sufficient information to provide its opinion.  An allegation that there is an absence of sufficient information on environmental concerns may give the works council an excuse to seek to extend the consultation period.  Companies must therefore ensure that they provide the necessary information in order to avoid the risk of this further delay in consultation processes.

The works council does not however have the ability ultimately to veto a project – its opinion can be negative or positive.

• An information obligation in connection with the 3 annual mandatory consultations on:
  • Strategic orientations;
  • The economic and financial situation of the company; and
  • The social police of the company and working conditions.

(Article L.2312-17 of the French Labour Code)

Whilst there is no consultation obligation here (i.e. no opinion is required from the works council), it must be provided with information on the environmental impact in the course of each of these specific annual consultation processes.

A failure to comply with these obligations is a criminal offence (délit d'entrave).

Companies should be wary of these new obligations:

• Works council members now have the right to be specifically trained to deal with environmental issues and risk therefore being well informed to challenge the company on these points;
• The works council can appoint an expert to assist it – the expert firms are likely to occupy this territory as another source of revenue and instructions from works councils and again, employers risk being on the backfoot if they are not sufficiently prepared in advance.

In addition, the Climate Law imposes an obligation on companies to include in the information database available to works council members (the "BDES") specific information in relation to environmental matters (the BDES now becoming the "BDESE" – E being "Environmentale".  We don't yet have the relevant Décret specifying precisely what information will need to be included in this database in relation to environmental issues, but watch this space.

The expectation is that works councils and trade unions are going to actively use these new rights and employers would therefore be well advised to get on top of the subject to ensure that they do not fall foul of the new obligations.

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