Common list of affiliated trade unions: the Court of Cassation clarifies the rules for appointing trade union delegates

Imagine: you own a small building in Loches, and two trade unions, both affiliated to the CGT, decide to present a common list for the professional elections. They obtain elected members, then each claims the right to appoint a separate trade union delegate, arguing that the common list allows them to pool their strength. But is this legal? The question is crucial for any employer or property professional facing trade union demands.

This decision of the Court of Cassation of 10 May 2012 provides a clear answer: no, a list presented by two trade unions affiliated to the same confederation is not a “common list” within the meaning of Article L. 2122-3 of the Labour Code. Consequently, the votes obtained cannot be divided between them to give them their own representativeness, and they cannot appoint more delegates than the number provided for by law.

For a landlord in Saint-Pierre-des-Corps managing a small business, or for a tenant involved in representative bodies, this case law is an essential safeguard. It prevents affiliated unions from artificially multiplying their representatives.

The facts: a story that happens every day

In this case, two trade unions, both members of the same trade union confederation (the CGT), presented a list of candidates under the name “common list” during the professional elections of a company. This list obtained elected members. Based on this result, each union then appointed its own trade union delegate, bringing the total number of delegates to two, whereas the law (Article L. 2143-12 of the Labour Code) only allows one trade union delegate in this company, in the absence of a more favourable collective agreement.

The employer, contesting this dual appointment, brought the matter before the Paris Tribunal d'Instance. He argued that the two unions, being affiliated to the same confederation, could not validly present a common list and that, in any event, they could not appoint more than one trade union delegate. The unions, for their part, argued that the law allows common lists between unions, and that each union retains its individual right to appoint a delegate.

The Tribunal d'Instance ruled in favour of the employer. The unions appealed to the Court of Cassation. The Court of Cassation upheld the judgment, rejecting their argument.

The reasoning of the court — dissected

The Court of Cassation relied on Article L. 2122-3 of the Labour Code. This provision provides that trade unions may present common lists for professional elections. But the Court specifies that this concept of “common list” implies that the unions present a single list, without it being possible to distinguish each union's contribution. In this case, the two unions were affiliated to the same confederation: they formed a single trade union entity. Presenting a list under the label “common list” therefore had no legal meaning, because they could not be attributed votes separately.

In other words, the Court considered that this list was not a “common list”, but simply a single list presented by the confederation itself. Consequently, the votes obtained could not be divided between the two unions to allow each to claim its own representativeness. Each union could not, individually, rely on the results to appoint a trade union delegate.

Next, the Court recalled that the number of trade union delegates is fixed by law (Article L. 2143-12) or by a more favourable collective agreement. In the absence of an agreement, the employer is only required to allow the appointment of one delegate per confederation. Here, the two unions, belonging to the same confederation, could together appoint only one delegate. The dual appointment was therefore illegal.

This decision is a confirmation of previous case law: affiliated unions cannot circumvent legal limits by presenting themselves as separate entities.

What this means for you — concretely

For landlord/employers: Do you manage a property with employees? For example, in Saint-Pierre-des-Corps, you own a small building and employ a caretaker. If two CGT unions stand for professional elections, you can refuse to recognise two separate trade union delegates if they are affiliated to the same confederation. You are only required to grant one delegate per confederation, unless there is a contrary collective agreement. This saves you from multiplying interlocutors and obligations.

For tenants and employees: If you are elected on a list presented by two unions of the same confederation, know that you cannot appoint two trade union delegates. This limits the number of representatives, but also guarantees that your union cannot abuse the situation. In practice, only one delegate will be appointed to represent the whole.

For co-owners and property managers: In a co-ownership, the elections of employee representatives (if the building employs staff) are concerned. You must ensure that the lists presented comply with affiliation rules. If the same union presents two lists under different names, you can challenge them.

Numerical example: a company of 50 employees in Tours, without a collective agreement, can only have one CGT trade union delegate. If two CGT union sections each claim to appoint one, the employer can oppose this and bring the matter to court to have the second appointment annulled.

Four tips to avoid this type of dispute

• Check trade union affiliations: During elections, ask the candidate organisations to specify their confederal membership. A union affiliated to the CGT, CFDT, etc., cannot present itself as independent to multiply lists.
• Consult applicable collective agreements: Some branch or company agreements may provide for a higher number of delegates than the law. Make sure you know these provisions before challenging an appointment.
• If in doubt, apply to the judicial court: If an appointment seems excessive, you have 15 days from notification to challenge it before the judicial court (formerly tribunal d'instance).
• Document the facts: Keep electoral lists, results, and any communication from the unions. This evidence will be essential in case of a dispute.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. In a judgment of 13 February 2008 (n° 07-60.028), it had already ruled that unions affiliated to the same confederation cannot present separate lists to benefit from separate representativeness. The 2012 judgment confirms and clarifies this principle for “common lists”.

Since then, the 2016 Labour Law has modified the rules of representativeness, but the principle remains unchanged: affiliation to a confederation prevents splitting the votes. The courts continue to apply this case law, particularly in disputes over the appointment of trade union delegates.

For the future, it is likely that the Court will maintain this position, as it avoids the artificial fragmentation of trade union representation. Employers can therefore rely on this case law to secure their relations with unions.

In practice: what to do

FAQ:

1. What if two unions affiliated to the same confederation each appoint a trade union delegate? Challenge the second appointment within 15 days before the judicial court. You can also ask the union to clarify its affiliation.
2. Can I refuse to negotiate with an irregularly appointed delegate? Yes, but be careful: it is better to challenge through legal channels to avoid social conflict. A unilateral refusal could be considered an obstruction.
3. What is the cost of a challenge? Legal costs (lawyer, stamp) may vary. A consultation with a specialised lawyer costs between €150 and €300, but can save you from abusive appointments.
4. What if a collective agreement provides for more delegates? The agreement prevails over the law. Check the exact terms: some agreements allow several delegates per organisation, even within the same confederation.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →