How to Lawfully Terminate a Collective Bargaining Agreement in France
The termination (dénonciation) of a collective bargaining agreement or a collective accord is a major legal act that ends the application of a negotiated instrument. Whether the initiative comes from the employer or from trade unions, this procedure is strictly governed by the French Labour Code and by the case law of the Cour de cassation (French Supreme Court). An irregular termination is unenforceable against the parties and may expose its author to liability.
For the employer, termination may be driven by economic considerations (adapting to a competitive environment), organisational ones (harmonising employment statuses after a merger) or legal ones (compliance with new statutory provisions). For trade unions, it constitutes a lever for renegotiation when the terms of the instrument in force no longer meet employees’ expectations.
In this article, DAIRIA Avocats sets out the rules applicable to the termination of collective agreements and accords, the effects of termination on employees’ rights, and the essential precautions to carry out this procedure with full legal security.
What is the termination of a collective bargaining agreement?
Termination (dénonciation) is the unilateral act by which a signatory party expresses its intention to no longer be bound by a collective agreement or accord. It is provided for in Articles L.2261-9 to L.2261-13 of the French Labour Code.
It is essential to distinguish termination from revision: revision (révision) aims to amend the instrument in force while keeping it, whereas termination (dénonciation) aims to end it, in whole or in part. Termination is therefore a far more radical act, whose consequences for employees are significant.
Who may terminate?
Only the signatory parties (or those who subsequently acceded to the agreement) may terminate a collective agreement or accord. On the employer side, this means the employer (for a company-level accord) or the signatory employers’ organisation (for a sector-wide agreement). On the employee side, this means the signatory or acceding trade unions.
The Cour de cassation has held that, to produce its full effects, termination must necessarily come from all signatories on the same side (employer or unions). If only one of the signatory trade unions terminates the agreement, it continues to apply between the other signatories (Cass. soc., 5 March 2008, No. 06-46.367).
Full termination and partial termination
Full termination
Full termination covers the entire collective agreement or accord. This is the most common and the legally simplest case. Article L.2261-9 of the French Labour Code provides that the agreement or accord may be terminated by all the employer signatories or by all the employee signatories.
Partial termination
Termination may cover only certain clauses or certain chapters of the agreement, provided that the agreement expressly allows this or that the provisions concerned form a self-contained and coherent whole. Article L.2261-11 of the French Labour Code provides that where termination comes from only some of the signatories, it does not prevent the instrument from remaining in force between the other signatory parties.
Case law is nonetheless strict: partial termination is only possible where the terminated clauses can be severed from the rest of the agreement without altering its overall balance (Cass. soc., 12 October 2005, No. 04-13.587). The court verifies that the partial termination does not deprive the agreement of its substance and does not create an unjustified imbalance between the parties.
The termination procedure: the mandatory steps
Termination is subject to a formal procedure, non-compliance with which renders the termination unenforceable. Below are the steps that must be scrupulously followed.
Step 1: notification to the co-signatories
Article L.2261-9 of the French Labour Code requires that the termination be notified to all signatories (and acceding parties) of the agreement or accord. This notification must be made by registered letter with acknowledgement of receipt, or by any means giving the notification a certain date.
The notification must be clear and unequivocal: it must express, without ambiguity, the intention to end the negotiated instrument. Mere criticism of the provisions in force or a request for renegotiation does not constitute a termination (Cass. soc., 5 December 2007, No. 06-17.761).
Step 2: compliance with the notice period
Termination only takes effect upon expiry of a three-month notice period, unless a contractual clause provides for a different period (Article L.2261-9, paragraph 2). This three-month notice period runs from the notification. During this period, the agreement continues to apply normally.
The purpose of the notice period is to allow negotiations to open with a view to concluding a replacement accord (accord de substitution). The Cour de cassation has held that the terminating party is required to comply with the notice period and cannot unilaterally waive it, even by invoking urgency (Cass. soc., 17 September 2003, No. 01-44.707).
Step 3: filing the termination
The termination must be filed with the DREETS (formerly DIRECCTE) and with the registry of the labour court (conseil de prud’hommes), following the same formalities as the accord itself (Article D.2231-8 of the French Labour Code). In practice, filing is now carried out on the TéléAccords platform.
Failure to file does not render the termination void, but it makes it unenforceable against third parties, i.e. against employees who have not been informed and who may continue to claim the application of the terminated instrument.
The effects of termination: survival and salary guarantee
The termination of a collective bargaining agreement does not immediately end employees’ rights. The French Labour Code sets up a two-stage protective mechanism.
The 12-month survival period
Upon expiry of the 3-month notice period, the terminated agreement continues to produce its effects for a maximum period of 12 months (Article L.2261-10 of the French Labour Code). In total, employees therefore benefit from a period of 15 months (3 months’ notice + 12 months’ survival) during which the agreement continues to apply.
The purpose of this survival period is to give the parties time to negotiate a replacement accord (accord de substitution) that will replace the terminated agreement. If a replacement accord is concluded before the expiry of the 15 months, it immediately replaces the terminated agreement.
The salary guarantee introduced by the 2016 Labour Act
Before the Labour Act of 8 August 2016 (Act No. 2016-1088), employees retained, upon expiry of the survival period and in the absence of a replacement accord, the benefit of acquired individual advantages (avantages individuels acquis). This concept, developed by case law, gave rise to considerable practical difficulties owing to its vagueness and its litigious nature.
Since the 2016 Labour Act, the mechanism has been clarified. Article L.2261-13 of the French Labour Code now provides that, where no replacement accord has been concluded upon expiry of the survival period, employees retain a salary guarantee whose annual amount may not be lower than the remuneration paid, under the terminated agreement or accord and the employment contract, over the last twelve months.
This salary guarantee is understood as an overall annual amount and not as an item-by-item maintenance of each component of remuneration. The employer may therefore restructure the composition of remuneration (remove a bonus, increase the base salary) provided that the overall annual amount does not decrease.
The fate of non-salary clauses
The salary guarantee covers only remuneration components in the strict sense. Other contractual advantages (additional leave, rest days, working conditions, severance indemnities above the statutory minimum) are not covered by this guarantee and cease to apply upon expiry of the survival period, in the absence of a replacement accord.
This is an often overlooked point that may have significant consequences for employees. For example, if the terminated agreement provided for a severance indemnity higher than the statutory minimum, this enhanced indemnity will no longer apply after the survival period, unless it is carried over into a replacement accord or into the individual employment contract.
Negotiating a replacement accord
Article L.2261-10 of the French Labour Code requires that fresh negotiations be opened at the request of one of the interested parties within three months following the date of termination. This obligation applies both to the author of the termination and to the other parties.
The negotiation of the replacement accord is open to all representative trade unions, and not only to the signatories of the terminated agreement. This broadening of the circle of negotiators is consistent with the fact that termination ends the agreement for all employees.
The replacement accord may have any content freely determined by the parties: it is not required to reproduce the provisions of the terminated agreement. It may be less favourable than the previous instrument, subject to compliance with public-policy provisions and with the stipulations of the sector-wide agreement in the matters falling within “bloc 1” (Article L.2253-1 of the French Labour Code).
If the negotiations succeed, the replacement accord takes effect from its entry into force and replaces the terminated agreement. If the negotiations fail, the salary-guarantee regime applies.
Points requiring particular attention
The termination of a collective bargaining agreement is a sensitive operation that requires careful preparation. Here are the main points to watch:
- Verify signatory status: only signatories (or acceding parties) may terminate. An employer that voluntarily applies an agreement without being legally bound by it cannot terminate it within the meaning of Article L.2261-9; it must instead proceed by terminating a unilateral undertaking (engagement unilatéral) or a custom (usage).
- Scrupulously comply with the procedure: notification, notice period, filing. Any irregularity renders the termination unenforceable.
- Anticipate the social consequences: termination may be perceived negatively by employees and staff representatives. Transparent communication about the reasons and the prospects of renegotiation is essential.
- Prepare for replacement negotiations: do not wait until the end of the notice period to open discussions. The 15 months of survival pass quickly, and the absence of a replacement accord can have serious financial consequences (maintenance of the salary guarantee).
- Audit individual employment contracts: certain contractual clauses may have been incorporated into employment contracts (by reference or by express restatement). These contractual clauses survive the termination of the agreement and can only be amended with the employee’s consent.
- Distinguish termination from carry-over challenge (mise en cause): in the event of a transfer of undertaking (Article L.1224-1), merger or disposal, the agreement is not terminated but called into question (mise en cause). The regime is similar (15 months of survival, replacement negotiation) but the triggering event is different (Article L.2261-14 of the French Labour Code).
DAIRIA Avocats assists you at every stage of termination, from the preliminary assessment of its advisability to the drafting of the replacement accord, including the management of notifications and filing. Our expertise in collective labour law ensures the legal security of your operations.
FAQ
Can an employer unilaterally terminate a sector-wide collective bargaining agreement?
No. An individual employer cannot terminate a sector-wide collective agreement, which is negotiated and signed by the representative employers’ organisations of the sector. Only a signatory employers’ organisation (or all the signatory employers’ organisations) may terminate a sector-wide agreement. An employer may, however, unilaterally terminate a company-level accord that it has signed, subject to compliance with the statutory procedure (notification, notice period, filing).
What happens to contractual advantages after the survival period?
Since the Labour Act of 8 August 2016, employees benefit from a salary guarantee (Article L.2261-13 of the French Labour Code): their annual remuneration may not be lower than that received over the 12 months preceding the expiry of the survival period. Non-salary advantages (additional leave, rest days, enhanced severance indemnities), by contrast, cease to apply unless they have been carried over into a replacement accord or into the individual employment contract.
Can a termination be withdrawn?
The question is debated among legal scholars. The Cour de cassation has not ruled on it definitively. In principle, since termination is a unilateral act, it produces its effects as soon as it is notified to the co-signatories and should not be capable of being withdrawn without the agreement of all the parties. However, if all signatories consent to the withdrawal before the expiry of the notice period, an amicable cancellation appears possible. It is advisable to formalise such a withdrawal in writing and to carry out a new filing.
What is the difference between termination and carry-over challenge (mise en cause) of a collective agreement?
Termination is a voluntary act by a signatory party that decides to end the agreement. The carry-over challenge (mise en cause), provided for in Article L.2261-14 of the French Labour Code, results automatically from an external event: transfer of undertaking, merger, demerger, or change of activity leading to the application of a new agreement. The effects are similar (3-month notice period, 12-month survival, replacement negotiation, salary guarantee), but the triggering event is different. A carry-over challenge requires no notification formality since it operates automatically.
Can a fixed-term collective agreement be terminated?
In principle, no. A fixed-term agreement cannot be terminated before its term, unless a contractual clause expressly provides otherwise (Article L.2222-4 of the French Labour Code). It ceases to produce its effects on the arrival of the agreed term. However, since the 2016 Labour Act, collective agreements and accords whose duration is not expressly stipulated are deemed to be concluded for a term of 5 years (rather than for an indefinite duration), which significantly changes the practical usefulness of termination.