Professional Elections: Seat Allocation in the Second Round Must Respect Proportional Representation

Imagine: you are the owner of a small building in Roquebrune-Cap-Martin, with three employees for maintenance. The staff representative elections are approaching. In the second round, an individual candidate stands against a union list. Who wins the seats? Intuitively, one might think that the candidate elected individually with the most votes wins. But the law decides otherwise. This 1985 decision of the Court of Cassation reminds us of a fundamental rule: the second round is conducted by list voting with proportional representation using the highest average method, just like the first round. An individual candidacy is considered a list. Allocating seats according to the highest number of votes is illegal. In other words, even for a small group, the calculation method changes everything. What few people know is that this rule also applies to elections of CSE (Social and Economic Committee) members today. So, how to avoid litigation?

The Facts: A Story Like Many Others

Mr. X, a union representative in a company in the Nice region, challenges the results of the staff representative elections. In the second round, two lists are competing: a union list and an individual candidate. The local court, promptly seised, notes an irregularity: the allocation of seats was made based on the highest number of votes obtained by each candidate, and not according to the rule of proportional representation with the highest average method. Mr. X requests a modification of the results. The court rules in his favour: it allocates the seats according to proportional representation. The opposing party appeals to the Court of Cassation, arguing that an individual candidacy cannot be equated with a list. The Court of Cassation dismisses the appeal. In short, the judges confirm that the second round is a list vote, even if only one person stands. This case illustrates a classic twist: a methodological error can invalidate the entire election. Imagine a building in Beaulieu-sur-Mer where co-owners elect their managing agent: if the calculation method is erroneous, the legitimacy of the vote is compromised.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article L. 423-13 of the Labour Code (formerly L. 133-2) which governs professional elections. It recalls that the second round is identical to the first: a two-round list vote with proportional representation using the highest average method. An individual candidacy must be treated as a list. In other words, seats cannot be allocated to the candidates with the highest individual votes, as that would amount to a majoritarian vote, prohibited by law. The reasoning is simple: the law makes no distinction between the two rounds. If proportional representation applies in the first round, it also applies in the second. This solution has been constant since 1985. The judges reject the argument that an individual candidacy is different: it constitutes a list of a single name. undefined, I have encountered cases where employers attempted to favour an individual candidate by counting votes individually. The courts have always dismissed such attempts. In 2023, the same principle applied to CSE elections. Note however: if an individual candidate obtains more votes than a list, he may still lose if the proportional calculation allocates fewer seats to him. That is the logic of the system.

What This Means for You — Practically

For employers and unions: you must organise the second round strictly respecting proportional representation. For example, if a union list receives 60% of the votes and an individual candidate 40%, with 3 seats to fill, the list obtains 2 seats (60% × 3 = 1.8, rounded to 2) and the candidate 1 seat. If you allocate seats to the three candidates with the most votes, the result may differ. For a building in Beaulieu-sur-Mer with 5 employees, a calculation error can lead to an annulment claim. For employees: if you believe the counting is flawed, you may seise the judicial court within 15 days of the proclamation of results. The judge can modify the seat allocation. For landlord owners: even if not directly concerned, elections of staff representatives in condominiums employing staff (caretaker, cleaner) follow the same rules. A wrong calculation can lead to nullity of the election and costs of new elections.

Four Tips to Avoid This Type of Dispute

• Check the voting method from the first round. The internal regulations or pre-election agreement must specify that the second round is conducted by proportional representation with the highest average method. Do not leave room for ambiguity.
• Train the polling officials in proportional calculation. A simple division error can distort everything. Use approved software or call on a chartered accountant.
• Keep all ballot papers and minutes. In case of a challenge, you will need to prove the regularity of the election. Keep the evidence for at least one year.
• Anticipate individual candidacies. If a single candidate stands, treat him as a full-fledged list. Allocate a seat if his quotient allows.

Further Reading: Related Case Law and Developments

This 1985 decision has been confirmed by consistent case law. For example, in a judgment of 28 March 2000 (No. 98-60.456), the Court of Cassation reaffirmed that the second round of staff representative elections is a list vote with proportional representation. More recently, for CSE elections, the same rule applies (Cass. soc., 12 June 2019, No. 18-60.218). The trend is clear: judges are attached to proportional representation to ensure fair representation of lists. An exception? If the pre-election agreement provides for a different voting method, provided it is validated by all unions. But in the absence of an agreement, proportional representation prevails. In the future, with the digitisation of voting, calculation errors may decrease, but vigilance remains necessary.

What You Must Absolutely Remember

FAQ:

• Q: Is an individual candidate in the second round a list? A: Yes, he is considered a list of a single name. Seat allocation is by proportional representation with the highest average method.
• Q: Can I challenge the results if the calculation method is wrong? A: Yes, within 15 days of the proclamation, before the judicial court. The judge can modify the seat allocation.
• Q: What if the employer allocates seats according to the highest number of votes? A: Immediately seise the court. The case law is clear: it is illegal.
• Q: Does this rule apply to CSE elections? A: Yes, since 2017, CSE elections follow the same principles.

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