OD FLASH | The pre-election agreement cannot impose a gender-based alternating order (man/woman) in candidate lists

Supreme Court – January 8, 2025 / No. 24-11.781

By a judgment dated January 8, 2025, the French Supreme Court, was called upon to determine whether a pre-election agreement could impose a specific alternation order of genders in candidate lists for elections to the Social and Economic Council (CSE).

In this case, a pre-election agreement had been signed by several trade unions as part of the elections for CSE members. This agreement specified the distribution of seats between men and women, as well as the alternation order of candidates for each electoral college. One of the signatory unions failed to comply with this order, leading the employer to exclude it.

Following the elections, one of the signatory unions contested the results for the third electoral college, arguing that the alternation rule does not require the first candidate on the list to be of a determined gender or to belong to the majority gender and that the pre-election agreement cannot determine the specific alternation order of candidates.

The Judicial Court of Saint-Denis de la Réunion rejected the union’s claim, leading it to file an appeal before the Supreme Court.

The question before the Supreme Court was as follows: Can a pre-election agreement impose a specific alternation order of genders, given that Article L. 2314-30 of the French Labor Code, which governs the composition of electoral lists for CSE elections, does not provide for such an order?

The Supreme Court answered in the negative, stating that Article L. 2314-30 of the French Labor Code, which is of mandatory public order, requires an alternation between genders on candidate lists but does not specify any particular order for such alternation. Consequently, a pre-election agreement cannot impose a specific alternation order, as was the case in the agreement signed by the unions in this matter.

This ruling clarifies two essential points:

• First, a pre-election agreement cannot derogate from Article L. 2314-30 of the French Labor Code, even if the parties have unanimously agreed to do so. This position aligns with previous case law from the Supreme Court, which has consistently reaffirmed that these provisions are of mandatory public order (Supreme Cour, December 11, 2019, No. 19-10.826).

• Second, it confirms the principle that a pre-election agreement cannot impose a specific alternation order on trade union organizations, as the French Labor Code does not mandate any particular position or order (Supreme Court, May 27, 2020, No. 19-60.147; and March 17, 2021, No. 19-23.344).