French Labour Law

Forfait-Jours in France: What Happens When the Applicable Collective Bargaining Agreement Changes? (Cass. soc., 25 March 2026, No. 24-22.129)

DAIRIA Law · Published · 9 min

Forfait-Jours in France: What Happens When the Applicable Collective Bargaining Agreement Changes? (Cass. soc., 25 March 2026, No. 24-22.129)

The Facts

For several years, a company had been applying a national collective bargaining agreement (convention collective nationale, or CCN) which allowed for the conclusion of individual day-based flat-rate working-time agreements over the year (conventions individuelles de forfait en jours), with a cap set at 218 working days. On this basis, several autonomous executive employees of the company had signed individual forfait agreements at 218 days.

An executive employee, subject to this forfait jours (day-based flat-rate working-time arrangement), challenged the application of that collective bargaining agreement to the company. He argued that the company’s actual and principal activity did not fall within the occupational scope of the CCN initially chosen, but in fact came under a different collective bargaining agreement whose scope actually matched the activity carried out.

Crucially, this genuinely applicable collective bargaining agreement provided for a forfait jours cap of fewer than 218 days. The employee inferred that he had worked beyond the authorised contractual cap and consequently claimed payment of salary arrears for the days worked in excess.

The lower courts sided with the employee on the question of the applicable collective bargaining agreement: the company’s principal activity did indeed come under a CCN different from the one initially applied. However, the Court of Appeal held that the change of collective bargaining 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 Cour de cassation (French Supreme Court), challenging the outright annulment of the individual forfait agreement. The employee filed a cross-appeal, taking the view that the financial consequences should have been greater.

The question submitted to the Cour de cassation was as follows: where it is held that a company’s activity falls under 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 precisely, 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 bargaining agreement, subject to an adjustment of the number of working days to the cap provided for by the genuinely applicable agreement.

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

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

The Cour de cassation’s Ruling

In 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 Supreme Court laid down a nuanced and pragmatic principle: where a company’s activity falls under a collective bargaining agreement different from the one initially applied, and where that agreement provides for a forfait jours 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 bargaining agreement.

In other words, the Cour de cassation refused to annul the individual forfait agreement as a whole. It held that the parties’ intention to use a forfait jours remains valid provided that the genuinely applicable collective bargaining agreement also authorises this arrangement. The applicable days cap, however, is that of the collective bargaining agreement which actually corresponds to the company’s activity.

The Court criticised the Court of Appeal for having declared the individual forfait agreement wholly null, when it should merely have reduced the number of days to the applicable contractual cap. This solution allows the forfait jours arrangement to be preserved while ensuring compliance with the applicable contractual provisions.

The concrete consequence is as follows: the employee may claim payment for the days worked beyond the cap of the genuinely applicable collective bargaining agreement, but he cannot obtain reclassification of his working time into the standard hourly regime over the entire period. The forfait jours 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 complete annulment of the forfait.

Context: Evolution or Confirmation?

This judgment constitutes a significant contribution to case law in forfait jours litigation, which has continued to develop over several years.

Until now, the Cour de cassation’s case law on forfait jours had focused mainly on the conditions for the validity of the individual agreement (the need for a collective agreement, sufficient stipulations regarding the monitoring of workload, respect for the right to health and rest) and on the consequences of invalidating such an agreement (reversion to the ordinary hourly regime with payment of overtime).

The question of a change in the applicable collective bargaining agreement, and its impact on the forfait jours, had not yet been settled so explicitly. Some courts of appeal had held the forfait to be wholly null, while others had adopted a more flexible approach by maintaining the forfait with an adjusted cap.

The Cour de cassation has come down in favour of the second, more pragmatic approach. It aligns with 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 must be preferred.

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

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

It should be noted, however, that this solution presupposes that the genuinely applicable collective bargaining agreement also authorises recourse to the forfait jours. 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 Bargaining Agreement

The determination of the applicable collective bargaining 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 changes. The determining criteria are:

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

2. Adapt Forfait Jours Agreements

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

3. Anticipate the Financial Consequences

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

4. Secure the Monitoring of Workload

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

5. Consult a Specialist Lawyer in Case of Doubt

The question of the applicable collective bargaining 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 rectify the situation before litigation arises.

FAQ

What happens if the genuinely applicable collective bargaining agreement does not provide for a forfait jours?

If the genuinely applicable collective bargaining agreement does not allow recourse to a forfait jours, the individual forfait agreement is null. The employee is then subject to the ordinary hourly regime (35 hours per week) and may claim payment of all overtime worked beyond that duration, within the three-year limitation period. The financial consequences can be considerable, including salary arrears, overtime uplifts, mandatory compensatory rest, and damages.

Can the employer rectify the situation by retroactively applying the correct collective bargaining agreement?

The application of a collective bargaining agreement is a matter of fact, determined by the company’s principal activity. The employer cannot retroactively choose to apply one agreement or another. On the other hand, it can rectify the situation for the future by henceforth applying the collective bargaining agreement corresponding to its actual activity, informing employees and employee representatives, and adapting the individual forfait agreements accordingly. For 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 his forfait?

The adjustment of the number of days results from the application of the genuinely applicable collective bargaining agreement. This is not a modification of the individual forfait agreement requiring the employee’s consent, but the application of a mandatory contractual standard. The employee cannot therefore object to the reduction in the number of days of his 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, since remuneration is an essential element of the employment contract.

Does the employer risk sanctions beyond the salary arrears?

In addition to salary arrears for days worked beyond the contractual cap, the employer may be exposed to damages for unfair performance of the employment contract, if the courts consider that the application of the wrong collective bargaining agreement resulted from a deliberate intention. Furthermore, non-compliance with the applicable collective bargaining agreement may give rise to sanctions from the labour inspectorate and constitute the criminal offence of obstruction (délit d’entrave) where employee representatives are concerned. The URSSAF risk must also be taken into account, since arrears of social security contributions may be claimed on the sums owed.

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