France: Excluding Employees assimilated to the Employer in Works Council Elections is Unconstitutional
In an ex-post constitutional review, the Constitutional Council questioned, on 19 November, the case law of the French Supreme court excluding from the electorate employees assimilated to the head of the company, by virtue of a particular delegation of authority established in writing, and those effectively representing it before the staff representative bodies. Pointing to an infringement of the principle of participation, the council concluded that Article L. 2314-18 of the Labour Code, which served as the textual basis for this case law, should be repealed, but deferred until 31 October 2022.
Recently, the Supreme Court sent a new matter for Constitutional Review to the Constitutional Council.
The Council declared that Article L. 2314-18 of the Labour Code, which sets the conditions for electing the works council, was not compliant with the Constitution. In fact, the jurisprudential construction developed from this provision is targeted by the council.
Going beyond the letter of the law, the Supreme Court has consistently ruled that certain employees who are members of company management and are assimilated to the employer are not eligible to vote and therefore do not participate in the ballot linked to the establishment of the Works Councils (Social and Economic Committees – CSE). According to the Constitutional Council, this is a clear infringement of the principle of participation set out in the preamble of the French constitution, which means that the national legislator will have to intervene between now and 31 October 2022, in order to provide a more precise framework for the conditions of electorate and to enable these employees to participate in the ballot as voters.
The Supreme Court’s ban was intended to “avoid placing the persons concerned in the contradictory position of participating in the business of a representative institution while at the same time being likely to play the role of interlocutor of the elected representatives or the trade unions” according to a report from 2001. This overall exclusion, from both election and eligibility, was the crux of the challenge brought by the trade union in the case at hand, which concerned supermarket directors of the retail giant Carrefour.
Key Action Points for Human Resources and In-house Counsel
Businesses should look out for changes in the coming months to the legislation delineating works council (CSE) elections and the rules of eligibility.