In a decision dated September 11, 2019 (Cass. soc., September 11, 2019, No. 18-23.764), the French Supreme Court ruled that an employee cannot, in a same body and at the same time, hold the deliberative duties of his mandate as CSE member and the advisory duties of his mandate as trade union representative.

1. A principle of incompatibility for incumbent and substitute members

As part of setting up the CSE (Economic and Social Committee), the French Supreme Court confirmed that an employee cannot serve simultaneously in the same CSE as elected member, whether incumbent or substitute, and trade union representative on such CSE.

The question arose whether the incompatibility between the duty of substitute employee representative and that of trade union representative such as case law had defined it with respect to works councils still had meaning with CSEs since there is no longer any automatic right for substitute members to participate in the various CSE meetings.

That said, the French Supreme Court decided that the establishment of this new personnel representative body accompanied by new rules did not justify revising the principle of non-plurality between the mandate as CSE elected member and that of trade union representative on the CSE. The substitute member, although he does not theoretically participate in the meetings, may need to attend such meetings in replacement of the absent incumbent member, so that he may find himself in a situation of plurality of representation of the employee community (right to vote) and representation of a trade union (right of discussion only).

2. Obligation to choose one of the mandates

If the plurality prohibition is breached, the appointment as trade union representative shall not automatically be invalidated. The court will let the employee choose, within a given timeframe as from the judgment (in this case one month), to maintain the mandate as CSE member or as trade union representative.

In the absence of choice expressed within this timeframe, the trade union representative mandate will then be considered null and void.

We remain at your disposal for any question you may have concerning the establishment of CSEs.