Cass. Soc. January 8, 2025, n°24-11.781
There is no legal provision imposing an order or positioning of candidacies on the lists of candidates presented by the trade unions during the professional elections for the Social and Economic Committee (CSE).
The alternation rule does not, for example, require the first candidate on the list to be of the majority gender (except in the case of one gender being completely excluded).
It was against this backdrop that, in the facts of this case, the social partners had decided, via the conclusion of the pre-electoral protocol agreement (PAP), to precisely define the order of alternation of women and men on the candidate lists.
In particular, it was stipulated for the 3rd college of managers (with a proportion of one woman and two men) that the lists of candidates had to alternate as follows: M-W-M.
However, this rule was not followed by one union organization, which decided to present a list of candidates headed by a woman, in the following order: W-M-M.
The Court of First Instance disagreed, on the grounds that the list submitted did not comply with the provisions of the protocol concerning the order of alternation in this college.
This position was challenged by the Social Division of the Cour de cassation, which pointed out that Article L.2314-30 of the Labor Code is of absolute public policy: a pre-electoral protocol cannot impose an alternation order on trade union organizations.
This means that a pre-electoral protocol cannot impose an order of alternation on the trade union organizations. Vigilance is therefore called for when initiatives are initially designed to facilitate the application of implicit rules resulting from legal provisions of public order; all the more so when dealing with a subject such as the professional elections of the CSE, which are subject to legal provisions and strict case law.