Law No. 2021-1104 of August 22, 2021 on the fight against climate disruption and reinforcing resilience to its effects introduced provisions in the French Labor Code intended to involve more closely CSEs and trade union organizations in the fight against climate disruption.

New powers given to the CSE

In the past, prerogatives on environmental matters had been granted to works councils for listed companies (NRE law No. 2011-420) and CHSCTs in certain cases but these measures were barely used.

In accordance with the climate law, CSEs of companies with more than 50 employees are now involved in the fight against climate disruption in the context of:

• their general remit: in the context of its general remit as mentioned in Article L.2312-8 of the French Labor Code, it is now specified that the CSE’s mission of guaranteeing a collective expression of the employees to ensure that their interests are constantly being taken into account in the decisions on the company’s management and economic and financial evolution, the work organization, occupational training and production techniques is carried out notably “in light of the environmental consequences of these decisions”.
  
  
• ad hoc consultations: new Article L.2312-8 III of the French Labor Code states that the CSE is now informed and consulted on the environmental consequences of measures affecting the organization, management and general running of the company: for each project submitted to the CSE’s consultation, the project’s environmental impact will have to be brought to the CSE’s attention.
  
  
• recurring consultations: in the context of the three mandatory consultations, the CSE has to be informed of the environmental consequences of the company’s activity.

These provisions are reproduced in both the Code’s public policy and supplementary provisions so that it will not be possible to circumvent these obligations through a collective agreement.

To allow the CSE members to understand the environmental challenges on which they have to be consulted, it is now stipulated that the initial economic training course from which they benefit “may” now include the environmental consequences of the companies’ activity (Art. L 2315-63 French Labor Code).

Moreover, the missions assigned to the CSE’s expert in the context of the three recurring consultations are now extended to environmental consequences.

The BDES is completed by the theme of climate transition

In addition to the 8 themes that have to be included in the contractual BDES (economic and social database) or the 10 themes that are to be covered by the supplementary BDES, there is a new theme: “environmental consequences of the company’s activity”.

As recognition of this new theme, the BDES becomes the BDESE: “economic, social and environmental database”.

Trade union organizations are also impacted

The economic, social and trade union training leave now includes an environmental component: in this respect, the leave becomes the “economic, social, environmental and trade union training leave” (Art. L 2145-1 French Labor Code).

Finally, in the context of the company’s periodic negotiation on GPEC, trade union organizations will also have to take into account the challenges of ecologic transition.

The vagueness of certain expressions (absence of details on the nature of the information to be communicated in the context of the BDESE, vagueness of the notion of “environmental impact or consequences” or “company’s activity”) could be a source of litigation.

In view of this risk and also to make these new obligations effective, it would be contemplated to negotiate adjustment agreements on the BDESE, or providing the grant of additional delegation hours dedicated to environmental challenges etc...