Commercial lease and night work: when the Court of Cassation clarifies the limits of the night period

Imagine: you are the owner of a commercial premises in Dinan, let to a ready-to-wear chain. The shopping centre imposes opening until 10pm, and the landlord must ensure that the tenant complies with employment law. But what happens if the collective agreement setting night work is challenged? That is exactly the question put to the Court of Cassation on 29 May 2024, in a case between a shopping centre and its tenant.

The question every owner asks: can I impose night opening hours on my tenant without risking litigation? And the tenant: am I obliged to observe night hours if the collective agreement is not valid?

The Court of Cassation gives a clear answer: a night work period different from the legal slot (9pm-6am) can only be validly set if the company has the right to use night work. In other words, no night opening without a solid legal or contractual basis. A decision that resonates particularly in the jurisdiction of Rennes, where shopping centres flourish and disputes too.

The facts: a story like many others

On 4 July 2012, the company Shd-Immo granted a commercial lease to the company Zara France for premises in a shopping centre near Rennes. By this lease, Zara joined the economic interest grouping (GIE) of the centre's retailers. The GIE's role is to manage common areas and organise opening hours. A disagreement soon arose: the GIE imposed openings until 9.30pm, even 10pm, which constitutes night work for some employees.

Zara challenged this: the collective agreement setting the night work period (from 9pm to 6am) is not valid because it does not meet the legal conditions. Is the company entitled to use night work? This question is crucial for the landlord Shd-Immo, which receives rent indexed to the centre's turnover.

The dispute progressed: first to the Commercial Court of Rennes, then to the Court of Appeal of Rennes (judgment of 15 March 2022), which ruled in favour of Zara. Shd-Immo appealed to the Court of Cassation. But the Court of Cassation dismissed its appeal on 29 May 2024, confirming that night work cannot be imposed without a valid collective agreement or authorisation from the labour inspector.

The reasoning of the court — broken down

The judges of the Court of Cassation relied on several provisions of the Labour Code. Article L. 3122-29 (in its version prior to the law of 8 August 2016) and Articles L. 3122-15, L. 3122-20 and L. 3122-22 (in their later version) are at the heart of the debate. In plain language: the law sets a default night work period: from 9pm to 6am. But a collective agreement or authorisation from the labour inspector may provide for a different period, provided that the company has the right to use night work.

The Court clarifies that the right to use night work is not automatic. It is subject to specific justifications: need for continuity of service, seasonal activity, etc. In this case, the GIE had not demonstrated that the shopping centre had this right. Result: the different night period set by the collective agreement was invalid.

Shd-Immo's arguments? The company argued that the collective agreement was valid because it met the formal conditions. But the Court of Cassation dismissed this argument: substance prevails over form. Even if the agreement is signed, it must be based on a pre-existing right to night work. This is a confirmation of previous case law, not a reversal. The judges remind that the protection of workers is a priority.

What this means for you — in practice

If you are a landlord-owner of commercial premises: check that the shopping centre or GIE has indeed obtained a valid collective agreement or authorisation from the labour inspector before imposing night hours. Otherwise, you risk your tenant refusing to comply with the hours, and you could lose rent indexed to turnover. Example: a landlord in Betton who imposes opening until 10pm without a valid agreement could see his tenant request a rent reduction or nullity of the hours clause.

If you are a tenant: you can challenge any obligation of night work if the collective agreement is not compliant. You are not obliged to observe a night period different from the legal slot if the company does not have the right to use night work. Note: if you have joined the GIE, your contractual obligations may be limited by employment law.

If you are a buyer of premises in a shopping centre: before signing, ask to see the collective agreement on night work. If it is not valid, you could inherit a dispute. A quantified example: premises rented at €50,000 per year, if the tenant refuses night hours, turnover can drop by 20%, i.e. €10,000 less rent.

Four tips to avoid this type of dispute

• Check the collective agreement before signing a lease: ask the landlord or GIE to provide you with the agreement setting the hours and the night work period. Ensure it mentions the company's right to use night work.
• Consult a lawyer specialised in employment law and commercial leases: in Dinan or elsewhere, a professional can analyse the validity of night hours clauses and advise you on risks.
• Negotiate a safeguard clause: in the lease, provide that if the collective agreement is invalidated, the hours revert to the legal period (9pm-6am) without penalty for the tenant.
• Anticipate legal action: in case of dispute, promptly refer the matter to the employment tribunal or the judicial court. Do not wait for the situation to worsen.

Further reading: related case law and developments

This decision is in line with a series of Court of Cassation rulings protecting employees against abuses of night work. For example, in a judgment of 12 June 2019 (No. 18-10.123), the Court had already ruled that the employer cannot impose night work without justification. Here, the Court goes further by specifying that the collective agreement cannot create a right to night work where it does not exist.

The trend is clear: courts are increasingly strict on the validity of collective agreements. For owners and managers of shopping centres, this means being legally irreproachable. In the future, judges may require a concrete demonstration of the necessity of night work, which could reduce night opening hours in some centres.

Frequently asked questions

1. Can I impose opening until 10pm in my commercial premises? Yes, if the company has the right to use night work and if a collective agreement or authorisation from the labour inspector provides for it. Otherwise, no.

2. What should I do if my tenant refuses night hours? First check the validity of the collective agreement. If it is invalid, you cannot compel them. If you believe it is valid, consult a lawyer to take action.

3. What are the time limits to challenge a collective agreement? Generally, you have 5 years from the signing of the agreement. But in practice, act as soon as you become aware of the problem.

4. Can I claim damages if my landlord imposed illegal hours on me? Yes, if you suffer harm (loss of turnover, legal costs). You can seek compensation under Article 1240 of the Civil Code (liability for fault).

5. Is a sector-level collective agreement sufficient? No, a sector agreement cannot authorise night work in a company that is not entitled to it. A company or establishment agreement remains necessary.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →