Expertise of the Works Council: a Confirmed Right for Annual Accounts

Imagine: you are an elected member of the works council of a factory in Saint-Berthevin, Mayenne. Each year, you must examine the accounts of your establishment, but you feel that the figures presented by management do not tell you everything. You would like to call on an accountant to help you see clearly. But management tells you that only the central works committee has this right. What should you do? This is exactly the question put to the Cour de cassation in its judgment of 16 January 2019 (no. 17-26.660). And the answer is clear: yes, the works council may be assisted by an accountant for the annual examination of the accounts of its establishment. Analysis.

The facts: a story like many that happen every day

In a large company, the central works committee is competent to examine the economic and financial situation of the whole company. But what about works councils, the local bodies that represent employees at a particular site? In the case decided by the Cour de cassation, a works council wished to use an accountant to prepare for the annual examination of the accounts of its establishment. Management objected, arguing that only the central works committee could request an expert, and that the establishment did not have sufficient autonomy in personnel management and economic activity. The works council then brought the matter before the tribunal de grande instance, which ruled in its favour. Management appealed, but the court of appeal upheld the decision. Dissatisfied, management appealed to the Cour de cassation. The High Court dismissed the appeal, affirming the right of the works council to be assisted by an accountant for the examination of the establishment's accounts, without depriving the central works committee of its own prerogatives.

The reasoning of the court — explained

The Cour de cassation relies on several articles of the Labour Code, in the version then applicable: Articles L. 2323-12, L. 2325-35 and L. 2325-36. These provisions state that the works committee (or central committee) may be assisted by an accountant for the annual examination of accounts. But the question was whether this right also existed for the works council. The Court answers in the affirmative, relying on Article L. 2327-15 of the Labour Code (then applicable), which provides that the works council has the same powers as the works committee within the limits of the powers delegated to the head of the establishment. In other words, if the establishment has sufficient autonomy in personnel management and economic activity, the works council may exercise the same rights as the works committee, including the right to use an accountant. However, note that this does not mean that the works council can do anything. The expert must be useful for understanding the economic, social and financial situation of the establishment within the company as a whole and in relation to other establishments. The Court specifies that the right of the central works committee to be assisted for the annual examination of the company's economic and financial situation does not deprive the works council of its own right. In short, the two levels of expertise coexist, each within its own scope. undefined, I have come across cases where management attempted to limit the prerogatives of works councils by invoking the exclusive competence of the central works committee. This decision puts an end to such attempts.

What this changes for you — concretely

If you are an elected member of a works council in a company, this decision confirms your right to request an accounting expert to examine the accounts of your establishment. Concretely, you can request an accountant to assist you in the analysis of annual accounts, financial documents, or social indicators (wage bill, headcount, etc.). The cost of this expert is borne by the employer. For example, if your establishment in Mayenne employs 200 employees and you suspect anomalies in the accounts, you can call on an expert for an amount that may vary from €5,000 to €15,000 depending on complexity. For employees, this is a guarantee of transparency: elected representatives can better defend your interests. For management, it is a reminder: they must respect the autonomy of establishments and not hinder the right to expertise. If you are in this situation, you must act quickly: the expert must be requested before the annual meeting to examine the accounts. After this deadline, the right may be lost.

Four tips to avoid this type of dispute

• Check the autonomy of your establishment: Before requesting an expert, ensure that the establishment has sufficient autonomy in personnel management and economic activity. If not, the right to expertise may be challenged.
• Formalise your request in writing: Send a reasoned request to management, specifying the points on which the expert should focus. Keep a copy of the request and the acknowledgement of receipt.
• Respect deadlines: The request for an expert must be made in good time, i.e. before the annual meeting to examine the accounts. Generally, a deadline of 15 days before the meeting is considered reasonable.
• Seek legal recourse if refused: If management refuses your request, do not hesitate to apply to the judicial court (formerly TGI) for interim relief. The judge may order the expert under penalty.

Further information: related case law and developments

This decision is part of a line of case law favourable to the rights of works councils. Already, in a judgment of 13 November 2008 (no. 07-18.039), the Cour de cassation recognised the right of the works council to be informed and consulted on the company's strategic directions, insofar as they affect its establishment. More recently, the law of 29 March 2023 (known as the Labour Market Act) strengthened the role of establishment-level social and economic committees, broadening their powers. The trend is therefore clear: establishments are increasingly seen as autonomous entities with their own rights. In the future, we can expect courts to continue to interpret broadly the prerogatives of works councils, particularly in matters of expertise. What few people know is that this decision can also apply to establishment-level social and economic committees, which replaced works councils under the Macron ordinances of 2017. Indeed, the provisions relating to the establishment-level social and economic committee are similar.

What you absolutely must remember

FAQ:

• Can I request an expert for my establishment if the central works committee already has one? Yes, the works council's expert is independent of the central works committee's. Both can coexist.
• What costs should I expect? The expert is paid by the employer. You just need to justify the need.
• What if management refuses? Apply to the judicial court for interim relief. The judge may order the expert under penalty.
• Does this decision apply to social and economic committees? Yes, by analogy, establishment-level social and economic committees benefit from the same right.
• Is there a deadline to request the expert? Yes, before the annual meeting to examine the accounts. Act at least 15 days before.

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