Prior information of employees in the event of the transfer of social rights or goodwill

The system for informing employees prior to any transfer of goodwill, shares, shares or securities giving access to the majority of the capital established by the law relating to the social and solidarity economy and supplemented by decree n ° 2014 -1254 of October 28, 2014 aims to allow employees to submit a takeover offer in the event of a disposal project.

Failing this, provision had been made for the sale made in disregard of these provisions to be canceled at the request of any employee, the action for nullity being time-barred by two months from an alternative starting point: the date of the publication of the sale of the stake or the date on which all employees were informed. A priority question of constitutionality relating to this device has been formulated.
The applicant first claimed that the obligation to inform employees was in itself contrary to freedom of enterprise and the right to property.
The Constitutional Council, in its decision of July 17, 2015, rejected such an argument on the grounds that the mechanism pursues an objective of general interest. The Constitutional Council nevertheless considered that " with regard to the purpose of the obligation to inform " and " the consequences of the nullity of the assignment for the assignor and the assignee ", this action for nullity carried a manifestly disproportionate freedom of enterprise and declared that the fourth and fifth paragraphs of Article L. 23-10-1 and the third and fourth paragraphs of Article L. 23-10-7 of the French Commercial Code , applicable in cases of transfer of company, were not in conformity with the Constitution.
The Constitutional Council specified that its decision took effect from the publication of the decision and that it was applicable to all cases not finally judged on this date. The scope of this decision should be limited by the entry into force of article 204 of the Macron law, insofar as this article replaces the penalty of nullity of the sale, by a civil fine whose amount cannot exceed 2 % of the sale amount.
Pending the entry into force of this text, it should be noted that failure to comply with the employee information system applicable in the event of the sale of shares, shares or securities is no longer sanctioned by the nullity .
On the other hand, this penalty remains applicable, as it stands, in the event of the transfer of goodwill insofar as this is provided for by Articles L.141-23 and L.141-28 of the Commercial Code, which have not been the subject of the same appeal before the Constitutional Council. Within six months from the promulgation of the Macron law, on a date set by decree, the information system will be modified.
The purpose of informing employees will be to relate not only to the legal conditions for the takeover of a business by employees, to its advantages and its difficulties, as well as to the assistance schemes from which they can benefit, but also to the orientations of the company relating to the holding of its capital, in particular on the context and the conditions of a transfer of this one and, if necessary, on the context and the conditions of a substantial capital change. However, the system will not be applicable if, during the twelve months preceding the sale, it has already given rise to information for employees.
It will be up to the operator or the business manager, when they are not the owners of the social rights, to notify the latter of any purchase offer presented by employees.
The publication of the aforementioned decree will finally have the effect of putting an end to the application of the sanction of nullity in the event of non-compliance with the system for the transfer of business assets.