OD Flash | Professional elections: inadmissibility of contestation actions by the candidate of a trade union having participated in the elections without reservations.

French Supreme Court, September 11, 2024, n°23-15.822

Pursuant to article L. 2314-6 of the French Labor Code, the validity of the pre-election agreement depends on its signature by the majority of trade union organizations that participated in its negotiation, including representative trade union organizations that secured the majority of votes in the last professional elections or, failing that, the majority of representative organizations within the company. Once signed in accordance with the required conditions, the pre-election agreement can only be contested on the grounds of stipulations contrary to public order.

In a decision dated September 11, 2024, the Social Division of the French Supreme Court ruled that, as they had not expressed any reservations regarding the pre-election agreement, neither the trade union that signed it nor the candidates themselves could contest the validity of the pre-election agreement or request the annulment of the elections, even if they claimed that the rules of public order relating to the pre-election agreement had been disregarded.

In this case, a pre-election agreement was validly signed by almost all unions in a company, including the CFTC. The agreement stipulated that ballots would be conducted by electronic vote, in accordance with a company collective agreement. Although the FO union did not sign the pre-election agreement, it subsequently presented candidates for the elections without expressing any reservations about the voting procedures stipulated in the agreement. Following the election results, both the CFTC and FO unions, along with several of their candidates, requested the annulment of the elections, contesting the validity of the pre-election agreement.

The question submitted to the French Supreme Court was therefore whether the unions and their candidates could legitimately contest the regularity of the elections based on the violation of a public order rule within the stipulations of the pre-election agreement, despite the absence of reservations when the agreement was signed and when the candidates were presented.

The French Supreme Court’s answer is in the negative, limiting the challenge both to unions that have not expressed reservations and to their candidates, even in cases where the stipulations of the pre-election agreement do not comply with the general principles of electoral law regarding the personal exercise of the right to vote.

• Regarding the restriction for unions that have not expressed reservations: It is established case law that unions which signed the pre-election agreement without making any reservations, as well as unions that, although not signatories to the pre-election agreement, put forward candidates without making any reservations, cannot contest the agreement (French Supreme Court, March 20, 2024, 22-23.929).
• Regarding the restriction on candidates: The novelty of this ruling lies in the fact that the French Supreme Court considers, for the first time, that the inability to contest the pre-election agreement, which applies to unions that have not expressed any reservations, also extends to any employee, candidate, or elected official appearing on a list of these unions, even if they cite a violation of public order rules by the agreement.

This restriction is far-reaching, as it establishes a direct link between the conduct of the union and the ability of its members to contest the elections.