Actance Tribune
What's NEW under French Employment Law?
N° 21 – November 6, 2023
French economic, social and environmental databases (BDESE) There is no obligation for the employer to engage in prior negotiation!
The economic, social and environmental database (BDESE) gathers all of the information required for consultations and recurring information that the employer makes available to the social and economic committee (SEC) in companies with 50 or more employees (French Labour Code, art. L. 2312-18).
The organisation, architecture, and content of the economic, social and environmental database, as well as its use are defined by company agreement or, if there is no union delegate, by agreement between the employer and the SEC as adopted by a majority of the full members (French Labour Code, art. L. 2312-21).
If there is no agreement, articles R. 2312-8 and R. 2312-9 of the French Labour Code define the applicable additional provisions.
In a judgment handed down on October 4, 2023, the Court of Cassation clarified for the first time to our knowledge, that – in the absence of agreement – the content of the economic, social and environmental database being determined by the supplementary legal rules, the prior negotiation of an agreement concerning the database “is not obligatory” (Court of Cassation – social division, October 4, 2023, number 21-25.748).
In other words, the employer can set up the database by directly applying the supplementary provisions provided for by the French Labour Code, without being required to begin negotiations with the union organisations first.
In light of this case law, it therefore appears that negotiation in these circumstances is only a simple option.
Nevertheless, the negotiation of an agreement concerning the database is, in our opinion, of certain interest for the company because it allows its contents to be adapted to specific needs.
Setting objectives in French: no exceptions for companies commonly using a foreign language
With certain exceptions, the document defining the objectives required to calculate the variable salary of an employee in France must be written in French. Otherwise, it is not enforceable, even if another language is commonly used in the company and if the company is a subsidiary of an American company. This is the solution adopted by the Court of Cassation in a judgment on October 11, 2023 (number 22-13.770).
In this case, a “pre-sales resources project manager” working for the subsidiary of an American company where English is frequently used, appealed to the Labour Court following the termination of his work contract due to economic reasons in December 2017.
He highlighted the fact that the objectives defined for the calculation of his variable salary had been set in English and were therefore not binding for him.
He therefore requested a complement to his variable salary because, according to him, he should have received the variable part provided for at the maximum rate, as if he had fulfilled all of the objectives assigned.
The Court of Appeal dismissed the employee’s appeal on the grounds that the objectives necessary for calculating his variable salary were written in English and so could not applied to the employee, insofar as:
- English was the language used within the company;
- and that the company was a subsidiary of an American company.
The Court of Cassation is not of this same opinion.
They first recall the rule provided for in article L. 1321-6 of the French Labour Code according to which “any document containing obligations for the employee or provisions of which knowledge is necessary for the performance of their work must be written in French”. The court also adds that this rule is however, not applicable to documents received from abroad or intended for foreign nationals.
In this case, since the documents were not intended for a foreign national and the court of appeal did not find that they were received from abroad, they should have been written in French. It was therefore of no importance whether the company was a subsidiary of an American company or whether English was the language used within the company.
This solution, not a new one, aligns with the decisions previously rendered by the Court of Cassation (particularly a recent decision from June 7, 2023: Court of Cassation – social division, June 7, 2023, number 21-20.322)
In light of this judgment, it therefore appears preferable to ensure that the objectives defined for calculating employee salaries in France are written in French or are translated into French because even the daily use of a foreign language within the company in France does not authorise them to address objectives in this same language.
actance has moved home!
Since October 23, 2023, actance has a new address!
After 16 years at 152 bis rue de Longchamp, the entire Actance firm recently moved to new premises nearby at 41-43 rue Pergolèse Paris 16th arrondissement.
This move is part of the firm’s development strategy in France and abroad. actance now has more than 70 lawyers, including 16 partners and 12 counsels.
We are delighted and looking forward to welcoming you to our new premises!
