Cancellation of a “serious risk” expert appraisal: it is up to the CSE to cover the costs of the procedure related to the cancellation of the appraisal

(Cass. soc., 19 October 2022 n° 21-15.165)

Within the framework of its various attributions, the Social and Economic Committee (CSE) can decide to call upon an expert. This is particularly the case within the framework of its permanent consultations, in the event of a major project modifying working conditions, or in the event of a serious risk.

However, such a designation is not without incidence for the employer who, as a reminder, finances the majority of these expertises, and consequently, has the possibility of contesting them.

However, when an expertise contested by the employer is finally annulled by the judicial judge, who is responsible for paying the costs of the procedure related to this annulment?

This was the question answered by the Court of Cassation in a decision of 19 October 2022 (II).

Before looking more closely at this decision, it is important to recall the rules relating to the financing of expert opinions (I), which are related to the solution adopted by the Cour de cassation.

I. Reminder of the rules relating to the financing of expert reports

In the past, with the exception of the annual consultation on the strategic orientations of the company, financed at 20% by the works council, it was up to the employer to pay the full cost of the expertise voted by the elected representatives -in particular by the CHSCT-, these rules have changed.

Indeed, since the abolition of the former staff representative institutions and the setting up of the CSE, the legislator wished to develop the co-financing of expertise. Thus, from now on, depending on their nature, expert reports are financed either entirely by the employer, or jointly by the employer and the CSE, or only by the latter.

A distinction must therefore be made between (C. trav. art. L. 2315-80) :

• expert opinions financed entirely by the employer.

These are the voted expertises:

• within the framework of the consultation of the CSE on the economic and financial situation of the company;
• within the framework of the consultation of the CSE on the company’s social policy, working conditions and employment;
• in case of collective redundancies for economic reasons ;
• in case of serious risk ;
• in companies with more than 300 employees, as part of the preparation of negotiations on professional equality, in the absence of any indicator relating to professional equality.
• expert appraisals for which the employer must pay 80% of the expert’s expenses, the remaining 20% being financed by the CSE from its operating budget, unless this is insufficient ( C. trav. art. L. 2315-80 3°).

This concerns in particular the expertise voted within the framework of the consultation of the CSE on the strategic orientations of the company, but also the expertise voted within the framework of the specific consultations of the CSE, apart from those already mentioned above.

• free” expert reports, the costs of which are fully covered by the CSE.

Finally, when the judicial judge proceeds to the annulment of the deliberation having decided to resort to an expertise, the expert must reimburse the employer the sums that he may have already received, unless the CSE decides to take them in charge (C. trav. art. L. 2315-86).

II. On the assumption of procedural costs in the context of a challenge to a serious risk assessment

If the question of the coverage of the costs of the expert appointed by the CSE has been settled by the Labor Code, this is not the case for the procedural costs of the body within the framework of a challenge of expertise, particularly when it is a serious risk expertise.

In the absence of a text on this point, the case law had therefore decided this question.

The High Court thus ruled that it was up to the employer to bear, in addition to the costs of the expertise, the costs of the possible contestation procedure, in the absence of abuse by the CHSCT (Cass. soc. 12 janv. 1999, no 97-12.794 ; Cass. soc. 8 déc. 2004, no 03-15.535 ; Cass. soc. 6 avr. 2005, no 02-19.414), since this former body did not have an operating budget.

However, the question arose as to whether, following the disappearance of the CHSCT, replaced by the CSE, such a solution could be maintained.

It is in this context that, in a decision of October 19, 2022, the High Court ruled that the CSE had to bear its own procedural costs resulting from the cancellation of a serious risk assessment.

More precisely, in this case, the works council of a company had voted to use such an expertise, following the suicide of an employee.

The employer, questioning the necessity of the latter, had then challenged the deliberation taken by the establishment’s CSE before the President of the Judicial Court of Nantes.

In a judgment dated March 18, 2021, the Court of First Instance ruled in favor of the employer, stating that the event in question was isolated and occurred outside the workplace and working hours, so that it did not constitute a serious risk within the meaning of Article L.2315-94 of the Labor Code.

The court had thus annulled the deliberation of the CSE which had voted to have recourse to an expertise for serious risk, while ordering the company to pay the costs as well as 3,600 euros (including tax) for the expertise.

The CSE then appealed against this decision. However, the Court dismissed this appeal in a judgment dated June 1^st, 2022, in which the Court again ordered the employer to pay costs.

However, following a request made by the President of the body, the Court, taking full account of the fact that the CSE has an operating budget and is therefore in a position to meet the procedural costs arising from the annulment of the expert opinion, decided, exceptionally, to partially revoke the decision of theJune 1^st, 2022.

Recalling that the annulment of the deliberation of the CSE deciding to use an expert for serious risk does not give rise to any expert fees, the Court rectified its ruling and :

• Ordered the CSE to pay the costs,
• Dismissed his claim under Article 700 of the Code of Civil Procedure.

Thus, the Court of Cassation takes the opposite view of previous rulings on the subject and concerning the CHSCT.

Through this common-sense reversal, the High Court has put the CSE face to face with its responsibilities, as the legislator has done by introducing co-financing of certain expert reports (I).

From now on, we can only hope that this unprecedented decision will soon be confirmed and that the courts will go even further, by systematically condemning to an article 700 the CSEs abusing their right to carry out an expertise for serious risk.