France: The impact of the information and consultation Directive
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Question 1: National implementation of the Directive
Has the information and consultation Directive been implemented in your country? If so, did this require:
France transposed the Directive via so-called Social Cohesion Law (loi de programmation de la cohesion sociale) N° 2005-32. It constitutes a phase in the development of a national debate. European issues are referred to without really being a driving force in these developments.
Since 1945, France has had a system of workers’ information and consultation in place that is based essentially on works councils (comités d’entreprise, CE). The creation of a works council is technically mandatory as soon as companies reach the threshold of 50 employees. Over the decades – and especially since the crisis of the 1970s – this representation body, which is elected by all employees, has been given greater prerogatives in cases of economic difficulties.
Works councils (for companies with a single site) and central works councils (comité central d’entreprise, CCE) (for companies with several distinct sites) must receive essential information about the commercial, financial, structural and technical nature that are needed in order to understand company developments. When decisions about numbers of employees and company structures are envisaged, the employer must consult the elected members. The result of such consultations is not binding, but the employer’s decision can be invalidated by a tribunal if this procedure is not respected.
The social partners have differing views on existing measures. The employers consider that they are often onerous and lead to paralysis, while at the same time recognising that they make it possible to ensure there is social dialogue, which is necessary in times of crisis. The trade unions – which do not demand, or even oppose, co-management types of measures – insist on the need to have deadlines that give enough time to make it possible to really take into account the positions of employee representatives in times of serious crisis.
Since 1945, the CEs and/or CCEs have the right to call upon a chartered accountant each year, who draws up – at the company’s expense – a report on the financial, commercial and social state of the company. The report is then discussed by the CE/CCE
Since 1982 (Auroux laws), the CEs and/or CCEs have the ‘right of warning’ (droit d’alerte), which authorises them to call upon experts if they feel that the worsened situation in the company is not revealed by information provided by the employer.
Question 2: Infringement proceedings
Not applicable.
Question 3: Views of the social partners
(a) How did national employers’ groups and trade unions react
Longstanding measures, which already exist and are widely used in France, have drawn attention to different legislation and practices within Europe, rather than to measures that are available in France. The main concern of unions has been centred on the conformity of European rights in line with rights and practices that already exist in France.
In fact, discussions on the European Directive followed, simultaneously, discussions that began at the end of the 1990s on changes to rights to consultation in France regarding redundancies (the so-called social modernisation law 2002-73). The then left-wing government wanted to make redundancies more difficult. It tried to promote the involvement of employees in economic issues, before consequences in terms of employment are envisaged.
These rights were adapted over time in line with political developments. After the election of a parliament with a right-wing majority in 2002, the social modernisation law was amended (Law 2003-6 adopted on 3 January 2003). The draft of the new law ‘on relaunching collective bargaining regarding redundancies’ aimed at opening a long period of experiments via ‘agreements on methods’ (accords de méthodes). The social partners met over a period of about 18 months on this topic, without being able to agree. This period thus led to a new Social Cohesion Law that was adopted on 18 January 2005 – the so-called Borloo law. This law limits the opportunity for works councils to intervene in employers’ plans. It also withdrew the rights they had been given concerning the economic appropriateness of envisaged measures and limits these rights more strictly to the development of employment.
The employers were very pleased about these measures, which they consider to be necessary, both in order to speed up the implementation of decisions and to render redundancy and/or restructuring procedures legally secure.
Unions have denounced what they consider to be a worsening of employee representatives’ rights, which are now far removed from the improvements that they had hoped would be made to the 2002 law.
Question 4: Impact of the Directive on industrial relations practice
What impacts on industrial relations practice has the implementation of the Directive had in your country?
Purely national issues related to reforms of rights concerning redundancies have largely overshadowed European debates on the Directive. During this period, surveys carried out by the Ministry of Labour (Réponse) show that rights provided in France are formally increasingly respected.
In France, the situation and public opinion were, above all, marked by a series of high-profile collective redundancies in and around 2000 (Michelin, Marks and Spencer, Danone and so forth). The effectiveness of labour law in this area became a topic of political division in a period of cohabitation between a right-wing president and a left-wing government.
Question 5: Interface with other national information and consultation provisions
Please comment on the relationship between national provisions implementing Directive 2002/14/EC (general framework) and those implementing Directives 98/59/EC (collective redundancies), 2001/23/EC (business transfers) and 94/45/EC (European Works Councils).
The rights of works councils are inscribed in the French Labour Code (Code du travail). Originally, the term ‘employment’ did not figure in legal documents. Over the years, changes to the law regarding redundancies and restructuring became important. Likewise, human resources planning has gained in importance. Today, rights regarding employment and the economic situation of companies are inscribed in different books of the Labour Code. There is, thus, a differentiation between, on the one hand, the measures in ‘Book III’, which concern procedures regarding redundancies and/or safeguarding employment, and, on the other hand, procedures in ‘Book IV’, which define those regarding plans for restructuring. The relationship between the rights pertaining to one or other Book is very complicated and leads to much litigation.
It is, thus, possible to say today that the legal rules concerning collective redundancies and restructuring have become harsher, at least formally speaking. The authorities responsible for ensuring that labour law is respected (labour inspectors and tribunals), pay special attention to this aspect of procedures. Employers must pay special attention to the consequences of their decisions arising from consultation procedures that are not carried out properly. Unions, on the contrary, use procedural rules in order to obtain information and exchanges with employers during crisis periods.
Question 6: Commentary by the national centres
The genesis of the European Directive – which was put on the agenda by France in 2000 – and its links with the Renault Vilvoorde crisis highlight the remarkable gap in France between legislative measures and actual practice. Information and consultation procedures can be very exemplary in legal texts, but their effects can be greatly inhibited by practices. Management’s decision-making procedures are able to only attribute a formal role to consultations with employee representatives. Surveys carried out in France have been saying this for a long time already, namely that it is very possible to respect the law in this area without such respect leading to any consequence at all on the actual decisions that are made.
Christian Dufour, Institute for Economic and Social Research (IRES)