MBA Social Alert - February 2020 : Merger and BDES

Christine Hillig-Poudevigne, associate lawyer of the MBA firm - Moisand, Boutin & Associés - February 22, 2020

As a reminder, the employer must make available to the Social and Economic Committee (CSE, ex-works council) an economic and social database (BDES) gathering the information necessary for consultation and recurrent information. In the absence of a company agreement defining the contours of the BDES, the information in the BDES must relate to the current year, the two previous years and must also integrate the prospects for the following three years. According to the Court of Cassation, in the event of a merger, the BDES must include the information of the companies involved in the merger operation for the years in question. More specifically, in this case, the merger had an effective date of 1 January 2015. In the context of the annual consultation on social policy, working conditions and employment for the year 2015 within the merged company, certain information concerning the merged companies for the two previous years (2013 and 2014) had not been communicated to the central works council and the expert. The judges were wrong to consider that the content of the BDES should also include the information of the merged companies for the two years prior to the merger. Therefore, in the context of a merger, it is important to complete the SED of the acquiring company (or of the company resulting from the merger) and to include information from the company or companies being acquired. Otherwise, in addition to the risk of hindering the functioning of the ESC, the acquiring company risks losing valuable time in the context of its recurring annual consultations.