French Labour Law

CSE Elections: Limited Impact of Gender Alternation Violations on Election Results

DAIRIA Law · 2026-07-14 · 11 min

CSE Elections: Limited Impact of Gender Alternation Violations on Election Results

A ruling dated June 10, 2025 (Cass. soc., June 10, 2025, n° 23-21.234) provides crucial clarification for employers and trade unions regarding the consequences of defects affecting the composition of an electoral list for the Comité Social et Économique (CSE). The Cour de cassation (Court of Cassation) determined that non-compliance with the gender alternation requirement on a trade union list does not result in the global annulment of all candidates placed after the first irregularly positioned candidate, but only the annulment of the first incorrectly designated candidate. This jurisprudence thus eliminates an extensive interpretation that would have led to the overall annulment of the election due to a formal lack of parity.

Article L. 2314-30 of the French Labour Code requires candidate lists presented by trade unions to have an alternating composition of women and men, until candidates of one gender are exhausted. This obligation aims to ensure balanced representation within the CSE, a key institution for social dialogue since the Macron ordinances of 2017.

The pre-electoral agreement protocol (PAP) establishes the conventional framework for this obligation. It defines the number of seats to be filled, the distribution of electoral colleges, and the application modalities of the representation rules. When a trade union submits a non-compliant list, the extent of the defect affecting the designations comes into question.

Attempt at Global Annulment Based on a Formal Defect

In the case reviewed by the Cour de cassation, a trade union sought the annulment of the election, claiming that a competing list positioned a male candidate third while a female candidate was already in first position, violating the strict alternation principle embedded in the PAP.

The contentious strategy was to seek the annulment of all candidates positioned from the third place onwards (the incorrectly placed candidate and all those following them on the list), on the grounds that the initial defect contaminated the entire subsequent sequence. This extensive approach could have resulted in the annulment of several elected officials and significantly altered the final composition of the CSE.

Rejection by the Cour de cassation: Limited Impact of Composition Defect

The social chamber of the Cour de cassation rejects this extensive interpretation. It holds that the defect affecting the composition of the list only leads to the annulment of the first irregularly placed candidate, without extending its effects to the subsequent candidates.

Ratio Decidendi: The Defect Does Not Contaminate the Whole List

The Court applies a two-step reasoning:

First Step: Identification of the formal defect. Non-compliance with the gender alternation constitutes an irregularity under the PAP and Article L. 2314-30 of the Labour Code. The disputed list indeed violated the alternation principle by placing a male candidate after a female candidate, failing to adhere to the required sequencing.

Second Step: Limitation of annulment effects. The Court confines the effect of the defect to the only incorrectly positioned candidate (the third on the list, in this case). Following candidates are not affected by the nullity, as their positioning is not directly contrary to the PAP. In other words, the irregularity does not lead to a cascading nullity.

The Labour Code does not explicitly provide that a defect affecting one candidate results in the annulment of all subsequent candidates. Article L. 2314-26 of the Labour Code states that the judicial court rules on all disputes related to the electorate, the regularity of electoral operations, and the designation of trade union representatives to the CSE. Article L. 2324-22-1 of the Labour Code specifies that the judicial judge has exclusive competence for disputes related to elections.

In the absence of a text mandating extended annulment, the Cour de cassation adopts a strict interpretation: only the designation of the candidate directly contrary to the PAP is null. This position aligns with a jurisprudential trend aimed at ensuring the stability of employee representative institutions and limiting electoral annulments to substantial irregularities only.

Practical Implications for Employers and Human Resources Management

Securing the Electoral Process and Role of the PAP

The ruling of June 10, 2025 provides HR directors and employers with insight into the concrete implications of formal defects affecting trade union lists. Three operational lessons emerge:

1. Rigorous Control of PAP Compliance When Submitting Lists

The employer must verify, prior to the election, that each list strictly adheres to the gender alternation required by the PAP. This verification is a procedural obligation, non-compliance with which can lead to subsequent disputes. The management should document this control (signature on each list, verification note initialed, email exchanges with trade unions).

If an employer detects a defect prior to the election, they must inform the concerned trade union, granting them a reasonable period to rectify the list. This period, typically set at 48 hours in practice, should be included in the PAP or addressed in a procedural agreement appended to the PAP.

2. Limiting Risks of Global Annulment

The solution adopted by the Cour de cassation reduces the risk of massive annulment of elected officials from a trade union list. Only the irregularly positioned candidate is excluded, preserving the overall representativeness of the trade union and the stability of the CSE.

For the employer, this jurisprudence means that a formal defect affecting a competing list does not automatically justify the annulment of multiple seats. Therefore, it is crucial to calibrate contentious approaches accordingly and not to overestimate the effects of an isolated composition defect.

3. Evidential Documentation in Case of Disputes

In the event of a challenge post-election, the employer must be able to produce:

  • The PAP signed by all representative trade unions, containing the clause of gender alternation;
  • The lists submitted by each trade union, dated and initialed;
  • The minutes of the counting of the first round and, if applicable, the second round, indicating the number of votes received by each candidate;
  • Written exchanges (emails, registered letters) related to compliance control of the lists.

This documentation helps to trace the chain of compliance and proves that the employer has met their procedural obligations without interfering in the selection of candidates by trade unions.

Scope of the Jurisprudence and Open Questions

Limited Annulment: A Principle Applicable to All Electoral Colleges?

The ruling of June 10, 2025 does not expressly state whether the principle limiting annulment to the only irregular candidate applies indiscriminately to all electoral colleges (workers/employees, executives, supervisory agents). However, Article L. 2314-30 of the Labour Code mandates alternation for all lists, regardless of the college. Therefore, the ratio decidendi of the ruling seems applicable across all colleges.

What About Annulment in Cases of Substantial Defects Affecting the Election Itself?

The Cour de cassation limits its solution to the defect of composition of a list. It does not address situations where the election itself is tainted by substantial irregularities (irregular mail voting, lack of guarantee of voting secrecy, pressure on voters).

In these cases, established jurisprudence requires the annulment of the election in its entirety when the irregularity may have affected the result (Cass. soc., June 17, 2015, n° 14-17.551). The ruling of June 10, 2025 does not undermine this solution.

Coordination with Rectification During the Term

Article L. 2314-37 of the Labour Code organizes the replacement of CSE members whose mandate ends before its normal term. In the event of annulment of the first incorrectly positioned candidate, the next candidate on the list (who was not elected) could theoretically be declared elected in replacement.

However, this mechanism presupposes that the next candidate received a sufficient number of votes to be elected. If the annulment of the irregular candidate does not alter the number of seats obtained by the list, the seat becomes vacant, and the rule of replacement by the next candidate from the same list applies (subject to compliance with the gender alternation).

Operational Recommendations for Managing CSE Elections

Comprehensive Formalization of the Pre-Electoral Agreement Protocol

The PAP must detail unequivocally:

  • The number of seats to be filled by electoral college;
  • The distinction between titular and substitute seats;
  • The practical modalities for submitting lists (deadline, format, supporting documents);
  • The principle of gender alternation, specifying the applicable sanction in the event of non-compliance (annulment of the improperly positioned candidate or annulment of the entire list);
  • The control modalities by the employer and the timeframe provided for trade unions to rectify.

This formalization avoids subsequent interpretive disputes and provides evidence that the employer has honored their loyalty obligations in the electoral process.

Durable Evidential Archiving

All documents related to the electoral process (PAP, submitted lists, minutes, correspondence) must be archived for the entire duration of the CSE mandate (four years as per Article L. 2314-33 of the Labour Code), extended by the prescription period for annulment actions (five years from the proclamation of results according to established jurisprudence).

In practice, archiving should be maintained for nine years from the proclamation of results. This archiving can be electronic, provided that the integrity and longevity of files are guaranteed (timestamping, electronic signature, secure hosting).

Dispute Management: Tailored Procedural Strategy

When a trade union contests the regularity of a competing list for lack of alternation, the employer must:

  • Precisely analyze the alleged defect (which candidate, what positioning, which norm violated);
  • Assess the actual impact on the composition of the CSE (number of potentially annulled seats, modification of the majority within the CSE);
  • Compile a complete evidential dossier (PAP, submitted lists, minutes, correspondence);
  • If the defect is proven, avoid defending the indefensible: acknowledge the irregularity of the improperly positioned candidate and seek to limit the annulment to this only candidate, relying on the ruling of June 10, 2025;
  • If the defect is contestable, argue about the absence of impact on the election result and the substantial respect of the principle of alternation.

The DAIRIA firm assists employers in structuring these disputes, providing rigorous procedural analysis, and intervening before the judicial court to secure compliance with electoral processes.

Articulation with Other Gender Parity and Representation Rules

Obligation for Balanced Representation within the Established CSE

Beyond the composition of lists, Article L. 2314-30 of the Labour Code also imposes balanced representation within the constituted CSE. Elections must aim for a gender representation proportional to each sex’s distribution within the electoral colleges.

This obligation does not fall on the employer but on the trade unions when constituting their lists. However, the employer must take this into account during the formal verification of the submitted lists and in drafting the PAP.

Distinction from Balanced Representation on the Executive Board

Article L. 1142-8 of the Labour Code mandates, for companies with more than 1,000 employees, balanced representation of women and men on management bodies. This obligation is distinct from that applicable to the CSE and falls outside the same normative framework.

HR directors must ensure that they do not confuse these two regimes and apply the specific rules relevant to each institution.

Towards Harmonization of Practices: The Role of Social Dialogue

The ruling of June 10, 2025 encourages social partners to clarify in future PAPs the precise consequences of non-compliance with gender alternation. Three areas for improvement emerge:

1. Pre-Election Rectification Clause

The PAP may stipulate that if an irregularity in the composition of a list is detected, the trade union has a period of 48 hours for rectification (removing the irregular candidate, adding a candidate of the required gender, re-sequencing the list). This clause should specify that, failing rectification, only the irregular candidate will be excluded from the election.

2. Clause for Graduated Consequences Based on the Seriousness of the Defect

The PAP may distinguish:

  • The isolated formal defect (one incorrectly positioned candidate) → annulment of only the irregular candidate;
  • The systematic substantial defect (whole list not respecting alternation) → annulment of the entire list.

This gradation allows the sanction to be scaled according to the severity of the breach and preserves union representativeness when the defect is minor.

3. Pre-Litigation Mediation

The PAP may establish a mandatory mediation phase prior to any referral to the judicial court, entrusted to an external mediator (labor inspector, mediator appointed by representative trade unions). This mediation facilitates the amicable resolution of minor disputes and alleviates electoral litigation.

  • French Labour Code, Article L. 2314-26 (disputes related to the electorate and electoral operations’ regularity)
  • French Labour Code, Article L. 2314-30 (alternating composition of candidate lists)
  • French Labour Code, Article L. 2314-33 (duration of the CSE mandate)
  • French Labour Code, Article L. 2314-37 (replacement of CSE members)
  • French Labour Code, Article L. 2324-22-1 (exclusive jurisdiction of the judicial judge for electoral disputes)
  • French Labour Code, Article L. 1142-8 (balanced representation within management bodies)
  • Cass. soc., June 10, 2025, n° 23-21.234 (limitation of annulment to the only irregularly positioned candidate in case of lack of gender alternation)
  • Cass. soc., June 17, 2015, n° 14-17.551 (annulment of the election in case of substantial irregularity affecting the result)
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