Meetings of the ETSB: the Court of Cassation validates the modification of the agenda at the beginning of the meeting with the unanimity of the elected members

In a recent judgment of 13 September 2022, the Criminal Chamber of the Court of Cassation ruled that a modification of the agenda, adopted unanimously by the members present at the beginning of a meeting of the Central Works Council (now the Central Social and Economic Committee), can validly authorise the committee to vote on a deliberation authorising its secretary to take legal action for the crime of obstruction (Cass. crim. 13 September 2022, n° 21-83914).

One can only hope that such a position – clearly removing any role for the President in joint agenda setting – is not taken up by the Social Division of the High Court…

• The facts of the case

In this case, the Central Works Council (CCE) of a company had the company and the President of the Group summoned to appear before the Criminal Court on charges of obstruction for having “failed to inform and consult the CCE prior to the implementation […] of the staff review within the company”.

In its defence, the company argued that the committee’s civil action was inadmissible on the grounds that the deliberation authorising the secretary to take legal action on the grounds of obstruction was irregular (and that the secretary had therefore been given a mandate to institute criminal proceedings for obstruction).

The company thus argued that the deliberation of the CCE was irregular on two counts:

• The deliberation had not been previously included in the agenda of the committee meeting as the secretary had added it at the beginning of the meeting;
• and it was not related to the issues to be discussed.

This is the classic case law in this area.

The Criminal Court and then the Paris Court of Appeal successively dismissed the objection of inadmissibility of the CCE’s civil action, the appeal judges noting that “At the CCE meeting of 1 October 2015, its secretary Mr [N] intervened at the beginning of the meeting to request the addition of an item to the agenda: “vote on a mandate for the secretary of the CCE to take legal action for obstruction” and that, moreover, “at the CCE meeting of 7 April 2016, a resolution designating the law firm in charge of the action was placed on the agenda and adopted unanimously”.

The company, which was found guilty of the alleged offences, then appealed to the Supreme Court.

• The solution: a very surprising rejection of the company’s appeal

The Criminal Division held, in a particularly questionable reasoning, that in noting that the secretary had intervened at the beginning of the meeting to request the addition of an item to the agenda, the Court of Appeal had justified its decision.

Such a position leaves one breathless…

For this reason, the Criminal Division tries to justify itself in two steps:

• It notes in the first instance – and for the 1^first time to our knowledge – that The legal deadline of 8 days for the communication of the CCE agenda is enacted in the interest of its members, in order to allow them to examine and reflect on the issues on the agenda;

• and adds secondly that since the amendment had been adopted unanimously by the members present, it followed that the latter had agreed, without objection, to discuss the matter, thereby demonstrating that they had been notified in good time.

The Criminal Division thus returned to its case law on the subject (Cass. crim. 5 September 2006 n° 05-85895)In its ruling, the Court considered inadmissible the CCE’s decision to initiate, unanimously by the full members present, criminal proceedings for obstruction, on the grounds that the issue was not on the agenda of the committee meeting and had no necessary connection with the subjects on the agenda and to be discussed.

It should be noted that the new position of the Criminal Chamber, which one may legitimately assume would not have been the same if the amendment had not been accepted unanimously but by a simple majority of the members, tends to be in line with that of the Council of State, according to which failure to comply with the time limit for communicating the agenda only renders the deliberation irregular if it prevented the Council of State from taking a decision in full awareness.

Although this decision was handed down in relation to a CCE, it is undoubtedly transposable to the Central Social and Economic Committee (CSEC), as Article L. 2316-17 of the Labour Code, relating to the agenda of the CSEC, is identical to the one formerly applicable to the CCE.

• A contra legem decision?

The position of the Criminal Chamber nevertheless raises questions: what about the legal principle of joint preparation of the agenda by the secretary and the president?

The Criminal Chamber totally excludes the role of the Chairman of the committee in its reasoning, who can therefore be imposed at the drop of a hat – without any means of defence – the modification of the agenda of the meeting that he presides over (!)

It should be remembered that Article L. 2316-17 of the Labour Code (formerly L. 2327-14, now repealed) provides that the agenda of the CSEC is “decided by the President and the Secretary”.The Court of Cassation has recalled on numerous occasions the principle of joint preparation and double signature of the agenda (Cass. crim. 15 May 2007 n° 06-84318; Cass. soc. 12 July 2010 n° 08-40821).

The parallelism of forms would therefore logically require that the modification of the agenda can only take place with the agreement of the two signatories…and therefore of the employer.

However, for the Criminal Chamber, this is not the case, as the employer is thus denied any power with regard to the decision to unilaterally modify the agenda, which can therefore be imposed on him – at the last moment – by the unanimous vote of the members present.

Obviously, one can only regret such a decision, which, although it certainly aims to simplify the operating rules of the body, nevertheless creates a clear imbalance between its protagonists, to the detriment of the employer… once again.

It is also to be feared, even if this remains to be confirmed, that this position – limited in this case to the meetings of the CCE/CSEC, which are less numerous in practice – will be extended to the company’s social and economic committee (CSE) and to the social and economic committee of the company’s establishment, since the reasoning followed by the Criminal Chamber can perfectly well be transposed to these bodies.

It remains to be seen whether the Social Chamber will rule on such a matter, and to hope that it will maintain its current case law, according to which the committee may only deliberate on matters included on the agenda or related to them (Cass. soc. 27 May 2021 N^o 19-24.344).