Background
APFS, a single-member simplified joint-stock company operating in the Lyon area, initiated in 2024 the negotiation of a pre-electoral protocol to organize elections to its Social and Economic Committee (CSE). Multiple trade unions — including the CFDT, CFE-CGC, CFTC, CGT, FO, and others — participated in those negotiations. The parties were unable to reach the double majority required to validate a pre-electoral protocol, so APFS invoked Article L. 2314-13 of the Labor Code and, on October 10, 2024, referred the matter to the Departmental Directorate for Employment, Labor and Solidarity of the Rhône (DDETS) and asked it to determine the allocation of employees across electoral colleges and the distribution of seats among employee categories.
On December 20, 2024, the DDETS issued a formal rejection, notified on December 24, 2024, refusing to make the allocation APFS had proposed. The DDETS grounded its refusal largely on doubts about the loyalty and seriousness of the employer’s negotiations, citing in particular the failure to communicate sufficient documentation regarding the employment status of one worker, referred to as M. [T], whose inclusion in the electoral rolls was disputed. APFS challenged that decision before the Lyon tribunal judiciaire on December 28, 2024, seeking both its annulment and a court-ordered allocation of personnel and seats to electoral colleges.
The Lyon tribunal dismissed all of APFS’s claims on April 18, 2025. It found, among other things, that providing only the personnel register (registre unique du personnel) after the first negotiation meeting was insufficient to demonstrate loyal and serious negotiations, that questions about M. [T]’s status remained unanswered across three subsequent meetings, and that documents received from third-party companies (City One and GSF) identifying workers who wished to vote had not been shared with the unions. APFS appealed to the Court of Cassation.
The Court’s Holding
The Court of Cassation addressed two distinct lines of argument. On the first — that the DDETS decision was procedurally flawed for failure to observe the adversarial process (contradictoire) — the Court ruled the ground was simply inoperable. Under Articles L. 121-1 and L. 211-2 of the Code governing relations between the public and the administration (CRPA), the prior adversarial procedure requirement applies only to individual adverse administrative decisions that must be formally reasoned. The Court held that the DDETS decision allocating personnel to electoral colleges is not such a decision, and therefore no prior adversarial procedure was legally required. The argument that the DDETS relied on a document-communication issue that had never been raised during the proceedings could not, for that reason, invalidate the decision.
On the substantive loyalty obligation, however, the Court quashed the Lyon judgment. The Court reaffirmed that under Article L. 2314-13, combined with Article L. 2314-6 of the Labor Code, the employer’s duty of loyalty in pre-electoral negotiations is to furnish unions, upon their request, the documents necessary to verify workforce composition and the regularity of electoral lists. Administrative referral under Article L. 2314-13 is only permissible when negotiations have been conducted loyally but no agreement has been reached. The tribunal had itself expressly found that “the respondent trade union organizations do not prove that they requested the production of specific additional documents beyond the personnel register” that APFS had already provided after the first meeting. Despite this factual finding, the tribunal nonetheless concluded that APFS had violated its loyalty obligation — a legal contradiction that the Court of Cassation could not sustain.
The Court held that the tribunal violated Article L. 2314-13 by finding an employer disloyal for failing to spontaneously supply documents that the unions had never specifically requested. It quashed and annulled the April 18, 2025 judgment in its entirety and referred the case to the Saint-Etienne tribunal judiciaire for fresh determination.
Key Takeaways
- The employer’s duty of loyalty in pre-electoral CSE negotiations is triggered by union requests: the employer must provide, upon demand, documents necessary to verify workforce headcount and electoral list regularity, but is not obliged to spontaneously produce every document that might conceivably be useful.
- A tribunal cannot simultaneously find that unions failed to request specific additional documents and also find that the employer breached its loyalty obligation by not providing those documents — the two findings are legally irreconcilable under Article L. 2314-13 of the Labor Code.
- The DDETS decision allocating personnel to electoral colleges is not an “individual adverse administrative decision” within the meaning of Articles L. 121-1 and L. 211-2 CRPA, and is therefore not subject to a mandatory prior adversarial procedure before the administrative authority issues its ruling.
- Administrative referral under Article L. 2314-13 requires that negotiations have genuinely been attempted in good faith; the threshold for establishing a breach of loyalty is, however, tied to what unions actually asked for, not to a general duty of proactive disclosure.
Why It Matters
This decision provides important clarity for employers navigating CSE election procedures in France. It draws a precise boundary around the loyalty obligation in pre-electoral negotiations: the duty is reactive, not proactive. Employers who respond adequately to union requests and supply the personnel register are not automatically exposed to a finding of disloyalty simply because additional documents — never specifically demanded — were not volunteered. This limits the risk that an administrative authority or a court can block the electoral process by imputing bad faith to an employer based on inferences rather than demonstrated failures to comply with concrete union requests.
The ruling also settles a procedural question of general significance: because the DDETS’s allocation decision is not classified as an individual adverse administrative decision requiring mandatory reasoning, the procedural guarantees of the CRPA’s adversarial process do not apply to it. Employers and unions challenging such decisions must therefore focus their arguments on the substance of the allocation and the lawfulness of the underlying negotiations rather than on administrative procedural defects.