The expert appointed by the health and safety committee should no longer be paid by the employer if the appointment is validly challenged

In some cases, the health and safety council can decide to hire a certified expert. Pursuant to the French Labour Code, the employer is meant to bear the costs of the expertise even if the said appointment may be challenged.

The French Supreme Court considers that the employer must bear such cost even if the employer has secured the annulment of the health and safety committee’s decision to appoint the expert. (Cass. Soc. 15 mai 2013 n°11-24218 – such litigation is still ongoing)

Such case-law was questionable.

On 27 November 2015, the French Constitutional Council actually quashed this case-law: the provisions of the French Labour Code do not comply with the right to property and with the right to an effective remedy before a court, both guaranteed by the French Constitution, insofar as the expert may carry out his mission notwithstanding the employer’s action for annulment, and there is no time limit for the judge to rule. (Cons. Const. QPC 27 novembre 2015 n°2015-500)

The declaration of unconstitutionality will take effect as of 1 January 2017.

Meanwhile, the lawmaker is expected to consider alternative options (we believe it may consider to create a budget dedicated to the health and safety committee or provide with an action for annulment with a suspensive effect, a time limit for the judge to rule).