Extent of the expertise on the economic situation and documentation handed to the expert : the clarifications provided by the Court of Cassation

Cass. Soc., 8 January 2025, no. 23-19.403

As part of the consultation on the economic situation,

• the expert appointed by the CSE may not request documents that are more than two years old;
• it is up to the judge to determine how the expert’s requests relate to the subject of the consultation.

In 2022, during a periodic consultation on the company’s economic and financial situation, a works council will appoint an expert. In his draft engagement letter,

• requests information on salary trends between 2017 and 2019, in particular “standard employment contracts by position in 2019“;
• extends its analysis to “the sustainability of employees’ current and past remuneration” and “the profitability and negotiating leeway of employees“.

The company goes to court to contest the extent and scope of the expert assessment and the list of documents requested by the expert.

The lower court dismissed the company’s claim on the grounds that

• the documents requested by the expert are necessary insofar as they relate to the subject of the consultation;
• the issues addressed by the expert are linked to the analysis of the payroll burden and are therefore related to the subject of the consultation.

This (double) solution was censured by the Court of Cassation, which considered that

• The appraisal may only cover the current year and the two preceding years – by reference to the data contained in the BDESE – i.e. in this case the years 2020, 2021 and 2022.

Previous documentation does not have to be provided to the expert.

• The Court’s mere assertion of a link between the expert’s requests and the subject of the consultation is insufficient. It is up to the Court to establish how the expert’s requests are necessary to understand the accounts and assess the company’s situation – which it does not do.