Balancing Energy Sobriety and Workers' Rights in France: Challenges and Obligations for Employers

On October 6, 2022, the Government presented an energy sobriety plan aimed at reducing France’s energy consumption by 10% over the next two years compared to 2019.

This plan, broken down into 15 key measures, is in particular:

- in the objective set for France, in line with the Paris climate agreement adopted in 2015 – which is a legally binding international treaty – to achieve carbon neutrality by 2050 (with an intermediate step of reducing emissions 57% in 2030);

- and, more recently, in the context of supply difficulties linked to the war in Ukraine, threatening France with power cuts.

If, for the Government, energy sobriety is a “simple concept: savings chosen rather than cuts suffered. It is an emergency response and a bulwark against more restrictive measures, of course. But, more broadly, sobriety is a new way of thinking and acting, which will be one of the keys to our ecological transition and our energy sovereignty.This concept is not without its difficulties in its practical application within companies.

Indeed, how can these two imperatives be reconciled and converged, which are, on the one hand, energy sobriety and more broadly the ecological transition, and, on the other, the obligations incumbent on the employer vis-à-vis his employees and staff representatives?

The more global question of ecological transition is also at the heart of the interprofessional discussions that began in July 2022 on the theme of ecological transition and social dialogue, which concluded on April 11 with a national interprofessional agreement – signed to date by the CFDT and the CFTC – whose stated objective is the involvement of employees and their representatives in the actions carried out in favor of the ecological transition, which is decisive for achieving the objectives set by the company. (1)

According to the social partners,social dialogue occupies an essential place in the anticipation, appropriation, acceptability and acceleration of the ecological transition, particularly with regard to the economic and social impacts linked to the transformation of activities, jobs and qualifications. Indeed, the actors of the social dialogue develop a global vision of the economic, social and environmental issues. It also contributes to the necessary involvement of employees in the implementation of the ecological transition in the company. […] Social dialogue actors have a decisive role to play in this matter; they must build solutions that combine economic, social and environmental performance”.

Staff representatives and employees therefore have a major role to play in this regard.

In this respect, it should be recalled that the so-called Climate and Resilience law (Law n°2021-1104 of August 22, 2021 on the fight against climate change and strengthening resilience to its effects) has added an environmental dimension to the mission of the CSE in companies with 50 or more employees.

In particular, the provisions of article L.2312-8 of the Labor Code provide that the CSE is now consulted on the decisions of the employer with regard to their environmental consequences.

The implementation of energy sobriety and the ecological transition can however be understood from a different angle: that of the working conditions of employees. Indeed, the CSE is informed and consulted on issues relating to the organization, management and general operation of the company and in particular on working conditions.

In this respect, can the employer, in application of government directives, take decisions having an impact on working conditions without first consulting the CSE when it exists?

The answer seems to be negative. Lowering lighting and heating or air conditioning in premises necessarily has an impact on the working conditions of employees. It therefore seems necessary that the CSE be consulted prior to the implementation of these measures.

It should be noted that in order to reduce energy consumption, the Government has just authorized employers, by decree n°2013-310 of April 24, 2023, to derogate from the rules of the Labor Code relating to the use of water hot in the workplace.

Thus, until June 30, 2024, employers can provide employees with water whose temperature is not adjustable (therefore unheated water). Such a measure must also be the subject of consultation with the CSE if it exists.

Nevertheless, the imperative of energy sobriety cannot allow the employer to freely take any decision.

Remember that the employer is bound by a general obligation to maintain the health and safety of its employees.

He cannot therefore take any decision that would put them in danger, at the risk of an employee seeking his responsibility if he manages to prove that his health has deteriorated or that an accident has happened to him due to a decision of the employer (for example, in the event of dim lighting).

Companies therefore have to deal with the interpenetration of ecological and energy issues and workers’ rights, which should only increase with regard to the legislative changes to come, particularly within the framework of the transposition of the European CSRD Directive on the corporate sustainability reporting of December 16, 2022. (2)

Caroline FROGER-MICHON, Associate Lawyer and Camille BAUMGARTEN, Lawyer, CMS Francis Lefebvre Avocats