French Labour Law

Forfait-Jours Agreements and a Change in Applicable Collective Bargaining Agreement (French Supreme Court, 25 March 2026, No. 24-22.129)

DAIRIA Law · 2026-09-08 · 9 min

Forfait-Jours Agreements and a Change in Applicable Collective Bargaining Agreement (French Supreme Court, 25 March 2026, No. 24-22.129)

The Facts

A company had for several years applied a national collective bargaining agreement (convention collective nationale, or “CCN”) that allowed for the conclusion of individual annualised day-based working arrangements — known as conventions individuelles de forfait en jours (individual fixed-days working agreements) — with a cap set at 218 working days per year. On this basis, several autonomous managerial employees of the company signed individual forfait-jours agreements set at 218 days.

A managerial employee subject to this forfait-jours arrangement challenged the application of that collective agreement to the company. He argued that the company’s actual and principal activity did not fall within the professional scope of the CCN initially applied, but in fact fell within the scope of a different collective agreement whose scope genuinely corresponded to the activity carried on.

However, this genuinely applicable collective agreement provided for a forfait-jours cap lower than 218 days. The employee inferred that he had worked beyond the authorised contractual cap and, accordingly, claimed payment of salary arrears for the excess days worked.

The lower courts sided with the employee on the question of the applicable collective agreement: the company’s principal activity did indeed fall within a CCN different from the one initially applied. However, the Court of Appeal held that the change of collective agreement rendered the individual forfait-jours agreement null and void, on the ground that it had been concluded on the basis of an inapplicable collective text.

The employer lodged an appeal before the French Supreme Court (Cour de cassation), contesting the outright annulment of the individual forfait agreement. The employee filed a cross-appeal, arguing that the financial consequences should have been greater.

The question submitted to the Cour de cassation was the following: where it is held that a company’s activity falls within a collective bargaining agreement different from the one initially applied, and where this new agreement provides for a lower forfait-jours cap, what becomes of the individual forfait-jours agreement concluded with the employee?

More specifically, the Court had to determine whether the individual forfait agreement must be annulled in its entirety, or whether it can survive the change of applicable collective agreement, subject to an adjustment of the number of working days to the cap provided by the genuinely applicable agreement.

This question is of considerable practical significance, as many companies apply a collective agreement that does not correspond to their principal activity — sometimes in good faith, sometimes out of convenience. The consequences of such a change on existing forfait agreements can be very financially burdensome.

The issue also concerns the intrinsic validity of the individual agreement: does its validity require that the collective agreement serving as its basis be genuinely applicable, or is it sufficient that there exists a collective agreement authorising recourse to forfait-jours arrangements?

The Cour de cassation’s Ruling

By a judgment of 25 March 2026 (No. 24-22.129), the Social Chamber of the Cour de cassation partially quashed the Court of Appeal’s decision.

The Court laid down a nuanced and pragmatic principle: where a company’s activity falls within a collective bargaining agreement different from the one initially applied, and where that agreement provides for a forfait-jours arrangement with a lower cap, the individual forfait agreement concluded between the parties remains valid, but the number of working days must be reduced to the cap set by the genuinely applicable collective agreement.

In other words, the Cour de cassation declined to annul the individual forfait agreement as a whole. It held that the parties’ intention to use a forfait-jours arrangement remains valid provided that the genuinely applicable collective agreement also authorises this mechanism. However, the applicable day cap is that of the collective agreement that genuinely corresponds to the company’s activity.

The Court criticised the Court of Appeal for declaring the individual forfait agreement wholly void, when it was sufficient simply to reduce the number of days to the applicable contractual cap. This solution allows the forfait-jours mechanism to be preserved while ensuring compliance with the applicable collective provisions.

The practical consequence is as follows: the employee may claim payment for the days worked beyond the cap of the genuinely applicable collective agreement, but he cannot obtain the reclassification of his working time into an ordinary hourly regime for the entire period. The forfait-jours arrangement survives, but is capped differently.

This solution strikes a balance between the protection of the employee’s rights and the employer’s legal certainty, avoiding the disproportionate consequences of a total annulment of the forfait arrangement.

Context: Development or Confirmation?

This judgment represents a significant jurisprudential contribution to forfait-jours litigation, which has continued to develop for several years.

Until now, the Cour de cassation’s case law on forfait-jours arrangements had focused primarily on the conditions for the validity of the individual agreement (the need for a collective agreement, adequate provisions for monitoring workload, and compliance with the right to health and rest) and on the consequences of the invalidation of that agreement (reversion to the ordinary hourly regime with payment of overtime).

The question of a change of applicable collective agreement, and its impact on the forfait-jours arrangement, had not yet been decided so explicitly. Some courts of appeal had held the entire forfait arrangement void, while others had adopted a more flexible approach by maintaining the forfait with an adjusted cap.

The Cour de cassation decided in favour of the second, more pragmatic approach. It falls within a logic of preserving legal acts: where it is possible to save an act by correcting it rather than annulling it, the least destructive solution should be preferred.

This approach is consistent with the general trend of employment case law, which increasingly seeks to strike a balance between the protection of employees’ rights and the legal predictability that businesses require.

This solution may also be compared with the case law on the effects of the challenge to (mise en cause) a collective agreement (Article L. 2261-14 of the French Labour Code), which provides for a substitution mechanism rather than an abrupt disappearance of collective benefits.

It should be noted, however, that this solution presupposes that the genuinely applicable collective agreement also authorises recourse to forfait-jours arrangements. Otherwise, the individual forfait agreement could not be maintained and would have to be annulled, with the usual consequences in terms of reclassification into the hourly regime.

Practical Implications for Employers

This judgment requires employers to exercise heightened vigilance on several key points.

1. Verify the Genuinely Applicable Collective Agreement

The determination of the applicable collective agreement is based on the company’s principal activity. It is essential to carry out a regular audit of this question, particularly where the activity evolves. The determining criteria are:

  • The company’s actual principal activity (and not the one declared at the time of incorporation);
  • The APE code (business activity classification code), which is merely an indicator and does not bind the courts;
  • The turnover generated by each activity where there are multiple activities;
  • The number of employees assigned to each activity.

2. Adapt Forfait-Jours Agreements

Where there is doubt as to the applicable collective agreement, it is advisable to ensure that the individual forfait-jours agreements comply with the lowest cap among the potentially applicable collective agreements. This precaution helps limit financial exposure in the event of litigation.

3. Anticipate the Financial Consequences

Where the applicable collective agreement changes, the days worked beyond the contractual cap will have to be paid with the corresponding increases. It is therefore essential to quantify this financial exposure as early as possible and to make provisions accordingly.

4. Secure Workload Monitoring

Regardless of the question of the applicable collective agreement, the employer must ensure that the workload-monitoring mechanisms provided by the genuinely applicable collective agreement are actually implemented. A failure to monitor may render the forfait-jours arrangement void, regardless of the number of days set.

5. Consult a Specialist Lawyer in Case of Doubt

The question of the applicable collective agreement is technically complex and its financial stakes are considerable. DAIRIA Avocats recommends that any company with a doubt on this point promptly carry out a compliance audit, in order to regularise the situation before any litigation arises.

FAQ

What happens if the genuinely applicable collective agreement does not provide for forfait-jours arrangements?

If the genuinely applicable collective agreement does not allow recourse to forfait-jours arrangements, the individual forfait agreement is void. The employee is then subject to the ordinary hourly regime (35 hours per week) and may claim payment for all overtime worked beyond this duration, within the three-year limitation period. The financial consequences may be considerable, including salary arrears, overtime premiums, mandatory rest compensation, and damages.

Can the employer regularise the situation by retroactively applying the correct collective agreement?

The application of a collective agreement is a question of fact, determined by the company’s principal activity. The employer cannot retroactively choose to apply one agreement or another. It may, however, regularise the situation for the future by henceforth applying the collective agreement corresponding to its actual activity, informing the employees and staff representatives, and adapting the individual forfait agreements accordingly. As regards the past, any salary arrears due will have to be settled within the limits of the limitation period.

Can the employee refuse the adjustment of the number of days in the forfait arrangement?

The adjustment of the number of days results from the application of the genuinely applicable collective agreement. This is not a modification of the individual forfait agreement requiring the employee’s consent, but the application of a mandatory collective standard. The employee therefore cannot object to the reduction in the number of days of the forfait — which is, moreover, favourable to him. However, if the adjustment were to lead to a reduction in remuneration, the employee’s consent would be required, as remuneration is an essential element of the employment contract.

Does the employer risk sanctions beyond the salary arrears?

Beyond the salary arrears for days worked above the contractual cap, the employer may be exposed to damages for unfair performance of the employment contract, if the courts find that the application of the wrong collective agreement resulted from a deliberate intention. Furthermore, failure to comply with the applicable collective agreement may give rise to sanctions from the labour inspectorate and may constitute the criminal offence of obstruction (délit d’entrave) where staff representatives are concerned. The URSSAF risk must also be taken into account, as social security contribution arrears may be claimed on the sums due.

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