Case summary

Deciding Body
Court of Cassation
Cour de Cassation
France
National case details
Date of decision: 13.02.19
Registration ID: 18-17.042
Instance: Cassation (review)
Case status: Final
Area of law
Non-discrimination


Identification of the case

Fundamental rights involved
  • Non-discrimination (art. 21 CFREU)
  • Equality between women and men (art. 23 CFREU)
National law sources
  • Article L.2314-30, L. 2324-23 and L. 2324-10 of the French Labour Code resulting from the Law n° 2015-994 of 17 August 2015
EU law sources
  • Articles 21 and 23 CFREU
ECHR provisions
Articles 8 and 14 ECHR

Summary of the case

Facts of the case

Elections were held for the establishment committee of a company. The Fédération communication conseil culture (F3C-CFDT) had brought an action before a first degree Court seeking to annul the election of two female candidates, arguing that the list of the CFE-CGC union’s titular and substitute members did not respect the balanced distribution of men and women since it included five female candidates instead of four. Indeed, the French Law No. 2015-994 of 17 August 2015 requires that, for each electoral college with several candidates, the lists of candidates, whether titular or substitute, be composed of a number of women and men corresponding to the share of women and men registered on the electoral list established for the college in question. In addition, the lists are composed alternately of one candidate of each sex until the number of candidates of one sex is exhausted. This requirement for a balanced representation of women and men has been transposed to the French Labour Code (articles L. 2314-30, articles L. 2324-23 et L. 2324-10).

The first degree Court annulled the election of the two women candidates.

Challenging this judgment before the Court of Cassation, the CFE-CGC union argued, on the one hand, that the legal provision disproportionately infringed the principle of freedom of association, which presupposes the free choice by trade unions of their representatives, and that, on the other hand, the annulment of the election would be contrary to the legislator's objective of rebalancing gender representation.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Annulment of a decision cancelling the election of candidates.

Reasoning (legal principles applied)

The social chamber of the Court of Cassation examined the compliance of the French law with international norms, which oblige trade union organisations to present lists of candidates of each sex for election until all candidates of the under-represented sex are exhausted. The social chamber rejected the appeal of the CFE-CGC union and confirmed the decision of the first-degree Court.

The contested provisions of the French Labour Code on the arrangements for electing employee representatives implement, within the meaning of Article 51 of the Charter, the provisions of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community.

The reasoning of the social chamber is based on the freedom of association and the free choice by a trade union of its representatives which are principles affirmed in Article 3 of International Labour Organization (ILO) Convention No. 87, Article 4 of ILO Convention No. 98 and Article 5 of ILO Convention No. 135. However, the Court specifies that such principles are not absolute and must be conciliated with the principle of non-discrimination between men and women in the light of Article 21 of the Charter of Fundamental Rights - which prohibits any discrimination based on the sex and to which the Court of Justice has recognised direct effect (CJEU, 17 April 2018, Egenberger, C-414/16) - but also of Article 23 of the same Charter and of Articles 8 and 14 of the ECHR and Article 1 of ILO Convention No. 111.

Thus, the fact that the legislator has sought to strike a balance between these two principles by establishing respect for parity does not constitute a disproportionate infringement of the principle of freedom of association.

Moreover, according to the Court of Cassation, the sanction provided for by the legislator in the event that the trade union organisations do not respect the rule of proportionality, namely the annulment of elected representatives who are supernumerary to that rule, appears justified and legitimate in the light of the objective pursued. In other words, the cancellation does not concern all the elected representatives on the list. Furthermore, since the decision of the Constitutional Council of 13 July 2018 (No. 2018-720 to 2018/726 QPC), it is possible to hold by-elections to fill the vacant seats due to the cancellation of a significant number of elected representatives.

The Court thus concludes that the provisions of the French Labour Code do not constitute a disproportionate infringement of the freedom of association and the free choice of the union of its representatives and achieves a necessary and balanced reconciliation with the fundamental right to equality between the sexes established by the provisions of European and international law.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

The provisions of the French Labour Code on the arrangements for electing employee representatives implement, within the meaning of Article 51 of the Charter, the provisions of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community. Within the scope of Union European law, any discrimination on grounds of sex in terms of working conditions is prohibited under article 21 and 23 of the Charter.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
Cited CJEU
  • CJEU C-414/16, Egenberger

Additional notes on the decision

External links

Case author

Thibaut Fleury-Graff and Inès Giauffret , University Versailles Saint Quentin-en-Yvelines

Published by Chiara Patera on 18 September 2020