Expert Accountant for the Works Council: Appointment After Information Meeting, No Forfeiture

You are the treasurer of the works council of your company in Olivet, and the annual accounts have just been handed to you. The information meeting took place three weeks ago. Do you still have the right to request an expert accountant at the employer's expense? The question seems simple, but it divided the judges until the Court of Cassation. The answer hinges on a key concept: reasonable time.

Picture the scene: on 21 February 2007, the works council of Banque Populaire Rives de Paris receives the accounts for the 2006 financial year. The information meeting is held the same day. But it is only on 25 April following, more than two months later, that the council appoints an expert accountant to assist it in reviewing these accounts. The employer challenges this: according to him, the appointment should have been made during the meeting. The council, for its part, considers that it acted within a reasonable time.

In a judgment of 15 December 2009, the Court of Cassation rules in favour of the council. It holds that no text requires an immediate appointment: the right to use an expert arises when the accounts are communicated, but the decision may be taken later, provided it is not belated. A decision that reassures elected representatives and reminds that the consultation of accounts is not limited to a specific moment.

The Facts: A Story That Happens Every Day

At the heart of this case is a classic conflict between an employer keen to control costs and a works council keen to fully exercise its prerogatives. Banque Populaire Rives de Paris communicates its 2006 accounts to its works council on 21 February 2007. On that day, an information meeting is held. The elected representatives take note of the documents but do not immediately appoint an expert accountant. It is not until 25 April 2007, 63 days later, that the council mandates an expert. The employer refuses to pay the fees, arguing that the appointment is late and that the right to use an expert expires at the end of the meeting.

The council brings the matter before the Tribunal de Grande Instance of Paris, which rules in its favour at first instance. The bank appeals. The Paris Court of Appeal, in a judgment of 28 May 2008, upholds the judgment: the appointment is not late, as it was made within a reasonable time. The employer appeals to the Court of Cassation. The Social Chamber of the Court of Cassation dismisses the appeal on 15 December 2009, validating the reasoning of the lower courts.

This case perfectly illustrates the tensions that can arise around the information and consultation rights of the works council. In Gien as in Paris, employers sometimes try to limit these rights by imposing time constraints that the law does not provide. The Court of Cassation puts an end to such attempts: the council has a reasonable time to appoint its expert, and this time runs from the communication of the accounts, not from the meeting.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Articles L. 2325-35, L. 2325-36, L. 2325-37 and L. 2325-40 of the Labour Code (which govern the use of an expert accountant by the works council for the annual review of accounts). It interprets them in the light of European Directive No. 2002/14/EC of 11 March 2002, which establishes a general framework for informing and consulting employees in the European Union. This directive requires Member States to ensure effective information and consultation, which implies that employee representatives have the necessary time to analyse documents and make an informed decision.

The judges' reasoning is as follows: the right to use an expert arises when the accounts are communicated, but the actual appointment may occur later. No text requires the decision to be taken during the information meeting. The only limit is that the appointment must not be belated, i.e., it must be made within a reasonable time in the circumstances. In this case, the Court of Appeal held, as a matter of fact, that the two-month period was reasonable, given the complexity of a bank's accounts and the need for the elected representatives to consult among themselves.

This decision confirms previous case law that tends to protect the rights of works councils against employers who would seek to restrict them. It marks a refusal of any formalistic interpretation: the essential point is that elected representatives can carry out their supervisory role under satisfactory conditions, not that they comply with an arbitrary deadline imposed by the employer.

What This Changes for You — Practically

For elected representatives of the works council (or the Social and Economic Committee (CSE) since the Macron ordinances) in Olivet or elsewhere, this decision is a breath of fresh air. You are no longer obliged to make a decision on the spot during the information meeting. You can take the time to study the accounts, consult your colleagues, and appoint an expert within a reasonable time — generally a few weeks to a few months, depending on the complexity of the documents. However, be careful not to delay: if you wait six months without justification, the judge may consider the appointment late.

For employers, this decision requires you to accept that the council has a reasonable time to appoint an expert. You can no longer demand an immediate decision under threat of refusing to pay the fees. However, you may challenge an appointment that occurs too late, for example, after the close of the following financial year. But you will have to prove that the council acted with abnormal slowness.

Let's take a concrete example: a small business in Gien communicates its accounts on 1 March. The council meets on 15 March and does not appoint an expert. On 15 April, it mandates an expert. The employer refuses to pay, considering the appointment late. Thanks to this judgment, the council can succeed, unless the employer demonstrates that this one-month period was excessive given the size of the company and the simplicity of the accounts.

Four Tips to Avoid This Type of Dispute

• Set a provisional timetable: as soon as the accounts are communicated, agree with the employer on a deadline for appointing the expert. This avoids any later disagreement.
• Justify the delay: if you take more than a few weeks, record in the minutes of the meeting the reasons for the delay (complexity of the accounts, absence of a member, etc.). This strengthens your position in case of a challenge.
• Do not wait for the next meeting: if the appointment was not made at the first meeting, quickly convene a dedicated meeting or make a decision in writing (electronic vote, consultation by email).
• Consult a specialist lawyer: if in doubt about the time limit, seek legal advice. In Olivet as in Gien, a quick consultation can avoid costly litigation.

Further Reading: Related Case Law and Developments

This decision is part of a line of case law protective of the rights of works councils. In an earlier judgment of 17 March 2004 (No. 02-13.303), the Court of Cassation had already held that the council could use an expert even after the information meeting, provided it had not already given its opinion on the accounts. More recently, in a judgment of 22 January 2014 (No. 12-20.193), it specified that the reasonable time is assessed on a case-by-case basis, depending on the nature and complexity of the documents.

Since Ordinance No. 2017-1386 of 22 September 2017, the works council has been replaced by the Social and Economic Committee (CSE). The provisions relating to expertise have been taken over in Articles L. 2315-81 et seq. of the Labour Code. The previous case law remains applicable, as the principles are identical. Thus, this 2009 decision continues to be authoritative for CSEs.

The trend of the courts is therefore clear: they favour a flexible interpretation of time limits, in order to guarantee effective information and consultation of employee representatives. Employers who attempt to oppose an appointment made within a reasonable time risk being dismissed.

What You Absolutely Must Remember

Practical FAQ

• Q: Can I appoint an expert accountant several weeks after the information meeting? A: Yes, as long as the time is reasonable. A two-month period was considered acceptable in this case, but it all depends on the circumstances.
• Q: What if the employer refuses to pay the expert, citing a delay? A: You can bring the matter before the judicial court (formerly the TGI) to obtain payment. You will need to justify that the time was reasonable (complexity of the accounts, need for consultation, etc.).
• Q: Is there a maximum time limit not to be exceeded? A: No text sets a precise time limit. Case law uses a reasonable time, generally a few weeks to a few months. Beyond three months, the risk of challenge increases.
• Q: Does this decision apply to the CSE? A: Yes, the rules are the same for the Social and Economic Committee, which succeeded the works council.
• Q: Can the employer impose a time limit in the CSE's internal rules? A: No, a time limit that is too short (e.g., 48 hours) would be contrary to the European directive and case law. However, a reasonable time limit negotiated between the parties is valid.

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