How to Legally Terminate a Collective Bargaining Agreement in France
The termination (“dénonciation”) of a collective agreement or a collective bargaining agreement 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 cannot be enforced against the parties and may trigger the liability of its author.
For the employer, termination may respond to economic motives (adapting to a competitive environment), organisational motives (harmonising employee statuses after a merger), or legal motives (bringing arrangements into line with new statutory provisions). For trade unions, it constitutes a lever for renegotiation when the terms of the instrument in force no longer match employees’ expectations.
In this article, DAIRIA Avocats sets out the rules applicable to the termination of collective agreements, the effects of termination on employees’ rights, and the essential precautions for conducting this procedure in complete legal security.
What is the termination of a collective agreement?
Termination is the unilateral act by which a signatory party expresses its intention to no longer be bound by a collective agreement. It is governed by Articles L.2261-9 to L.2261-13 of the French Labour Code.
It is essential to distinguish termination from revision: revision aims to amend the instrument in force while keeping it in place, whereas termination aims to end it, in whole or in part. Termination is therefore a far more radical act, with significant consequences for employees.
Who may terminate?
Only the signatory parties (or those who subsequently acceded to the agreement) may terminate a collective agreement. On the employer side, this means the employer (for a company-level agreement) or the signatory employers’ organisation (for a sector-wide/branch agreement). On the employee side, this means the signatory or acceding trade unions.
The Cour de cassation has specified that, in order to produce its full effects, termination must necessarily emanate from all signatories on the same side (employer or unions). If only one of the signatory trade unions terminates the agreement, the agreement continues to apply between the other signatories (Cass. soc., 3 December 2008, no. 06-46.367).
Full termination and partial termination
Full termination
Full termination covers the entirety of the collective agreement. This is the most frequent case and the simplest legally. Article L.2261-9 of the French Labour Code provides that the agreement 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 in question constitute a self-contained and coherent whole. Article L.2261-11 of the French Labour Code provides that where termination emanates from 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 if the terminated clauses are separable from the rest of the agreement without altering its overall structure. The court verifies that the partial termination does not empty 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, the failure to comply with which renders the termination unenforceable. Below are the steps that must be scrupulously followed.
Step 1: notification to the co-contracting parties
Article L.2261-9 of the French Labour Code requires that the termination be notified to all signatories (and acceding parties) of the agreement. This notification must be carried out by registered letter with acknowledgement of receipt, or by any means allowing the notification to be given 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.
Step 2: compliance with the notice period
Termination only takes effect upon expiry of a three-month notice period, unless a clause in the agreement provides for a different period (Article L.2261-9, paragraph 2). This three-month notice period runs from the date of 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 agreement (“accord de substitution”). The Cour de cassation has held that the terminating party must comply with the notice period and cannot unilaterally dispense with it, even by invoking urgency (Cass. soc., 15 June 2004, no. 01-44.707).
Step 3: filing of 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 agreement 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 null and void, but it makes the termination unenforceable against third parties, that is to say against employees who were not informed and who may continue to claim the application of the terminated instrument.
The effects of termination: survival period and salary guarantee
The termination of a collective agreement does not immediately end employees’ rights. The French Labour Code organises a protective mechanism in two stages.
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 agreement that will replace the terminated agreement. If a replacement agreement is concluded before the expiry of the 15 months, it immediately replaces the terminated agreement.
The salary guarantee introduced by the 2016 Labour Law
Before the Labour Law of 8 August 2016 (Law no. 2016-1088), employees retained, upon expiry of the survival period and in the absence of a replacement agreement, the benefit of acquired individual advantages (“avantages individuels acquis”). This concept, developed by case law, gave rise to considerable practical difficulties due to its vague and litigious nature.
Since the 2016 Labour Law, the mechanism has been clarified. Article L.2261-13 of the French Labour Code now provides that, where no replacement agreement has been concluded upon expiry of the survival period, employees retain a salary guarantee the annual amount of which may not be lower than the remuneration paid, under the terminated agreement and under the employment contract, during the last twelve months.
This salary guarantee is understood as an overall annual amount and not as the maintenance, item by item, of each component of remuneration. The employer may therefore reorganise the structure of remuneration (removing a bonus, increasing the base salary) provided that the overall annual amount does not decrease.
The fate of non-salary clauses
The salary guarantee only covers remuneration components in the strict sense. The other contractual advantages (additional leave, rest days, working conditions, termination 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 agreement.
This is an often-overlooked point that may have significant consequences for employees. For example, if the terminated agreement provided for a dismissal indemnity above the statutory minimum, this increased indemnity will no longer apply after the survival period, unless it is carried over into a replacement agreement or into the individual employment contract.
Negotiating a replacement agreement
Article L.2261-10 of the French Labour Code requires that a new negotiation be opened at the request of one of the interested parties within three months following the date of termination. This obligation falls on both the author of the termination and the other parties.
The negotiation of the replacement agreement 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 agreement may have 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 branch agreement in matters falling within “bloc 1” (Article L.2253-1 of the French Labour Code).
If the negotiations succeed, the replacement agreement takes effect as of 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 agreement is a sensitive operation that requires rigorous preparation. Below are the main points to watch:
- Verify signatory status: only signatories (or acceding parties) may terminate. An employer who voluntarily applies an agreement without being legally bound to do so cannot terminate it within the meaning of Article L.2261-9; it must proceed by way of terminating a unilateral undertaking 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 employee representatives. Transparent communication on the reasons and the prospects for renegotiation is essential.
- Prepare the replacement negotiation: do not wait for the notice period to expire before opening discussions. The 15 months of survival pass quickly, and the absence of a replacement agreement may have heavy financial consequences (maintenance of the salary guarantee).
- Audit individual employment contracts: certain provisions of the collective agreement may have been incorporated into employment contracts (by reference or by express reproduction). These contractual clauses survive the termination of the agreement and may only be modified with the employee’s consent.
- Distinguish termination from “mise en cause” (transfer-related challenge): in the event of a transfer of undertaking (Article L.1224-1), merger or disposal, the agreement is not terminated but “mise en cause” (put in issue). The regime is similar (15 months’ 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 the termination process, from the preliminary opportunity analysis to the drafting of the replacement agreement, including the management of notifications and filing. Our expertise in collective labour law guarantees the legal security of your operations.
FAQ
Can an employer unilaterally terminate a branch-level collective agreement?
No. An individual employer cannot terminate a branch-level collective agreement, which is negotiated and signed by the representative employers’ organisations of the branch. Only a signatory employers’ organisation (or all the signatory employers’ organisations) may terminate a branch agreement. However, an employer may unilaterally terminate a company-level agreement that it has signed, subject to complying with the statutory procedure (notification, notice period, filing).
What happens to contractual advantages after the survival period?
Since the Labour Law 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 during the 12 months preceding the expiry of the survival period. On the other hand, non-salary advantages (additional leave, rest days, increased termination indemnities) cease to apply unless they have been carried over into a replacement agreement or into the individual employment contract.
Can a termination be withdrawn?
The question is debated in legal doctrine. 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-contracting parties and should not be capable of being withdrawn without the agreement of all parties. However, if all signatories consent to the withdrawal before the expiry of the notice period, an amicable cancellation appears conceivable. It is recommended to formalise such a withdrawal in writing and to proceed with a new filing.
What is the difference between termination and “mise en cause” of a collective agreement?
Termination is a voluntary act by a signatory party that decides to end the agreement. “Mise en cause” (put in issue), 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. “Mise en cause” does not require any notification formality since it operates automatically by operation of law.
Can a fixed-term collective agreement be terminated?
In principle, no. A fixed-term agreement cannot be terminated before its term, unless a clause in the agreement expressly provides for this (Article L.2222-4 of the French Labour Code). It ceases to produce its effects when the agreed term is reached. However, since the 2016 Labour Law, collective agreements whose duration is not expressly stipulated are deemed to be concluded for a period of 5 years (and no longer for an indefinite duration), which significantly changes the practical relevance of termination.