Cass. Soc., October 4, 2023, no. 22-10.716
On January 7, 2020, a Social and Economic Committee (CSE) brought an action against its company before the Court of First Instance, seeking a ruling that “the freedom of expression of its elected representatives precludes any reformulation, anonymization of authors or grouping of their questions by the employer when drawing up the agenda“.
The Court of Appeal of Rennes upheld the CSE’s request, considering :
– The CSE’s internal rules of procedure referred to the legal provisions governing the setting of the agenda “so that nothing prevents questions put by members of the CSEE from appearing on the agenda“,
– And that the elected members have the right “to participate in the drawing up the agenda, which the Chairman and Secretary are responsible for establishing“.
To support its reasoning, the Court of Appeal considered that questions from elected members must be faithfully transcribed, without any rewording, onto the agenda drawn up by the chairman and secretary of the CSE, unless they fall within the remit of a health, safety and working conditions committee.
The Court of Cassation held that this was not the case, and that the agenda results solely from the agreement between the chairman and the secretary of the CSE.
The Chambre sociale further ruled that a faithful transcription of questions raised by elected representatives, excluding a possibility of rewording by the chairman and secretary, “infringes the legal prerogatives” of both parties.
Setting the agenda – which involves finding the right wording for the questions submitted by elected representatives – is an absolute prerogative of the chairman and secretary, and one that they must be able to seize.
When it comes to litigation, courts carry out a sharp review of the CSE minutes. Questions of a biased nature skew the reading. It is therefore important to allow a reformulation. So there’s a definite advantage in taking the sting out by rewording them.