Background
Keolis Amiens and the FO union entered into an agreement on July 26, 2023, governing electronic voting in workplace elections. A pre-election agreement followed on October 12, 2023. For the first round of elections to the company’s social and economic committee, held electronically from November 6 through 9, 2023, Keolis used Kercia Solutions for the first time to deploy and operate the voting system.
CGT TPU 80 challenged the elections before the Amiens Judicial Court, arguing in particular that the electronic voting system had not undergone the independent expert review required by Article R. 2314-9 of the Labor Code. The trial court rejected the request to annul the first round, relying on a June 15, 2023 report concerning Kercia’s software and on a supplemental review completed on July 26, 2024, after the elections. CGT TPU 80 appealed to the Court of Cassation.
The Court’s Holding
The Court of Cassation held that the prior independent review required by Article R. 2314-9 must examine more than the general characteristics of a vendor’s voting software. It must also assess how the electronic voting system will be deployed for the particular company election, insofar as those arrangements could affect data confidentiality, ballot secrecy, vote integrity, voter authentication, the fairness of the electoral process, or the ability to conduct a subsequent audit.
The June 2023 review was insufficient because it was confined to the vendor’s software and did not examine the system’s specific implementation at Keolis Amiens. The July 2024 supplemental review could not cure that defect because it occurred after the challenged election. The Court therefore partially quashed the trial court’s judgment without remand and, deciding the merits itself, annulled the electronic elections held from November 6 through 9, 2023. It left intact the ruling that CGT TPU 80’s separate challenge to the July 26, 2023 company agreement was inadmissible.
Key Takeaways
- A vendor-level security assessment alone does not satisfy Article R. 2314-9; the independent expert must also evaluate the election-specific deployment.
- The required review must occur before the electronic voting system is implemented, and a post-election supplemental report cannot cure the absence of a compliant prior review.
- Failure to obtain the required deployment-specific review justified annulment of the social and economic committee elections.
Why It Matters
The decision clarifies that French employers cannot rely solely on a general certification or audit of an electronic voting product. Before using the system, they must ensure that an independent expert has reviewed both the underlying solution and the way it will operate in the specific workplace election.
The ruling also underscores the temporal nature of the safeguard: compliance must be established before voting begins. Employers and unions designing electronic election procedures should therefore build a company- and election-specific review into the pre-election timetable.