The local branch of the CGT union applied to the Magistrates’ Court of Martigues for an order cancelling pre-election memoranda of understanding and the elections of staff representatives and members of the works committee.

As its claims were dismissed by the Magistrates’ Court, the CGT filed an appeal with the French Supreme Court.

By way of a reminder, Article L.2314-3-1 of the Labour Code stipulates that the validity of a pre-election memorandum of understanding concluded by the employer and the union organisations concerned is subject to its signature by the majority of the union organisations having taken part in the negotiation thereof, including the representative union organisations which obtained the majority of votes cast at the previous works elections or, whenever such results are not available, the majority of the union organisations representing employees within the company.

In support of its appeal to the French Supreme Court, the CGT argued that the conditions stipulated by the Labour Code were not satisfied and that the Magistrates’ Court had not verified whether or not the CFTC, a union which had signed the pre-election memoranda of understanding, actually represented employees within the meaning of the statutory provisions.

The French Supreme Court dismissed the appeal of the local CGT branch.

It found that “save for any statutory provision to the contrary, the provisions of a pre-election memorandum of understanding are subject to the conditions governing its validity as set out in Articles L. 2314-3-1 and L. 2324-4-1 of the Labour Code; it follows, on the one hand, that whenever the pre-election memorandum of understanding satisfies such conditions, it may only be challenged before the courts to the extent that it contains provisions contrary to public policy, in particular insofar as they fail to comply with the general principles of electoral law; on the other hand, whenever such conditions are not satisfied, this fact does not render the pre-election memorandum of understanding irregular but has the effect of permitting an interested party to bring an action before a trial judge with an application for an order stipulating the procedures for the organisation and conduct of the ballot.”

By ruling that the lack of a majority does not make a memorandum of understanding irregular, the French Supreme Court upheld its decisions prior to the Law of 20 August 2008 relating to the reform of democracy in the workplace and working hours (Cass. Soc. 6 October 2011, no. 11-60035).