Background
France’s private not-for-profit healthcare and social services sector operates under multiple collective bargaining agreements (conventions collectives) that do not cover all workers uniformly. These include the CCN 51 (private hospitals and care facilities, dating to 1951), the CCN 66 (services for disabled persons, 1966), and the CCN for cancer research centers (1999). In 2005, social partners established the BASS—a broader sectoral framework agreement to address gaps in coverage and apply to the entire sector. Representativeness was measured separately for different agreements, with CFTC and CFE-CGC recognized as representative in CCN 51 and certain other agreements, while other unions (CFDT, CGT, FO, and Sud) held stronger positions at the BASS level.
In February 2022, social partners resolved to negotiate a single unified extended collective agreement (CCUE) intended to replace the existing agreements through “fusion of conventional fields by means of negotiation.” The resolution explicitly stated this would terminate ongoing negotiations at the level of CCN 51 and related agreements. CFTC and CFE-CGC requested participation in these negotiations, citing their recognized representative status in CCN 51. AXESS, the employers’ confederation leading negotiations, refused, arguing only unions representative at the BASS level could participate. In November 2022, the two federations sued for an injunction requiring their inclusion and for damages.
The Court’s Holding
The Court of Cassation partially reversed the lower court’s dismissal. The court held that when social partners decide to negotiate a single collective agreement intended to replace existing agreements in a sector—even absent formal invocation of the statutory “branch merger” procedure—unions representative in those existing agreements retain the right to participate in negotiations for the replacement agreement. This right flows from the constitutional principle of “concordance” (concordance principle), which ensures that unions representative in existing agreements cannot be excluded from discussions about their replacement, and from the fundamental right to collective bargaining under the French Constitution’s Preamble and the Declaration of Rights.
The court found critical that the February 17, 2022 resolution explicitly framed the negotiation as “fusion of conventional fields” and stated that the methodology would result in “cessation of negotiations” on CCN 51 and related agreements. This language, accepted in the lower court’s own findings, established that the CCUE was intended to replace those agreements. Because CFTC and CFE-CGC held recognized representative status in CCN 51, they were “founded, by application of the concordance principle,” to participate in negotiating the unified agreement that would supersede it. The court emphasized that Article L. 2261-34 of the Labor Code contains a constitutional reservation protecting the right of previously representative organizations to continue participating in discussions of replacement agreements, even if they lose representativeness at the new branch level—a safeguard the Constitutional Council had established in 2019.
Key Takeaways
- When a unified collective agreement is negotiated to replace multiple existing agreements in a sector, unions representative in those existing agreements have a constitutional right to participate in negotiations, regardless of representation levels at the broader sector level.
- Social partners cannot circumvent this participatory right by avoiding formal statutory “branch merger” procedures; substance (intent to replace) governs over procedural form.
- The “concordance principle” in collective bargaining protects minority unions from exclusion and ensures that sectoral restructuring involves all historically relevant representatives.
- Constitutional protections for collective bargaining rights cannot be waived by relabeling a de facto branch merger as a mere “new agreement” negotiation.
Why It Matters
This decision significantly strengthens procedural protections for minority unions in sectoral collective bargaining. By anchoring participation rights in constitutional principles rather than statutory technicalities, the Court prevented larger unions from unilaterally freezing smaller representative organizations out of negotiations that would directly affect their members. The ruling applies to any sector where social partners contemplate unified agreements to replace fragmented collective regimes, making it essential guidance for future restructurings in healthcare, social services, and other multi-agreement sectors.
The decision clarifies that good faith sectoral restructuring requires inclusive negotiation processes. It also implicitly rebukes the lower court for adopting a formalistic distinction—that the process avoided the statutory “merger” label—while ignoring the actual economic and legal substance: the unified agreement’s explicit purpose was to supplant existing agreements. For employers and lead unions, the ruling narrows tactical options in restructuring and requires accommodation of competitor unions at the negotiating table. The case now returns to the Court of Appeal to determine whether the injunction should issue and what damages, if any, the excluded federations merit.