TGI Nanterre, 17 July 2015, Ordinance No. 15/01828, Total
FRANCE - Two trade unions, the Fnic CGT and a British trade union filed a claim against the "juges des référés" of the court of first instance of Nanterre, asserting that the European Works Council of the company Total had not been adequately informed and consulted on two projects, which violated the collective agreement on the implementation of the consultation procedure. This collective agreement specifies that the European Works Council must be consulted via an information and deliberation procedure on transnational questions that concern "at least two companies of the group located in different Member States", as well as on questions relevant to "consequent strategic developments that have an impact on the European staff ".
According to trade unions, if a given amount of information about the projects is transmitted to a group constituted within the committee, which then informs the European Works Council about the projects in an ordinary meeting, the latter is not adequately consulted; moreover, no notice of authority had been expressed. Based on Article L. 2132-3 of the Labour Code, the trade unions sought to suspend the implementation of these two projects until the European Works Council had held another meeting.
The question was whether such an action involving compliance with the procedure and the rights of the European Works Council could actually be initiated by a trade union.
The judges determined that if, in accordance with Article L.2132-3 of the Labour Code, trade unions can file a claim regarding compliance with the legal provisions imposing a procedure of information and consultation of a representative body in the company, they cannot substitute that body to determine whether the modalities of the procedure were effectively implemented.
As regards the works council, it has been ruled that when the employer is to take the initiative for the procedure of information and consultation, a trade union cannot argue that the information delivered to the works council was insufficient and require from the employer to provide new or additional information to the latter; this action is a right of the works council.
"Attendu que pour dire l'action du syndicat recevable, l'arrêt retient que le syndicat a qualité et intérêt à ce que le comité d'entreprise bénéficie des informations qui lui sont destinées en application de l'article L. 2323-57 du code du travail et d'un accord d'entreprise;
Qu'en statuant ainsi, alors que les documents exigés de l'employeur étaient destinés au comité d'entreprise, lequel n'en sollicitait pas la communication et ne s'était pas associé à la demande du syndicat, la cour d'appel a violé le texte susvisé" (Court of Cassation, Social Chamber, 16 December 2014, No. 13-22.308).
In the present case, the Court ruled that the European Works Council was adequately informed about the projects by the internal committee and at the next ordinary meeting. Consequently, since the European Works Council had not called into question the compliance with the modalities of the procedure of information by requesting further consultation on the projects, the trade unions could not substitute this body and contest the relevance and the modalities of the information procedure already initiated.
As the European Works Council was not party to the trade unions’ claim, it was declared inadmissible.