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A « procès-verbal de carence » (stating that no employee representatives were elected for lack of candidates) established before the law dated August 2, 2005 (which doubled the term) is only valid for two years.

To support its argument that it was free of any obligation to consult staff delegates (before the termination of an employee held physically unfit) in March 2006, a company was using a « procès-verbal de carence » for the staff delegates’ elections dated October 31, 2002.

However, the French Supreme Court (Cass. soc., 11 mai 2016, n°14-12.169) decided that a « procès-verbal de carence » could not be used as supporting evidence after October 31, 2004. Indeed, it considered that the law of August 2, 2005 (by which the length of the staff delegates’ term went from two to four years) applied only to elections organized after the publication of the law. With this case, the Supreme Court addresses the question of the validity of a « procès-verbal de carence », by bringing it into alignment with the length of the staff delegates’ term.

Yet, it must be kept in mind that the employer is not necessarily exempted from organising the elections for four years (or two such as in the case at stake), for it is bound to organise the elections within one month following the request of an employee or a trade union, as illustrated by a case issued on March 17, 2004 (Cass. soc., 17 mars 2004, n°02-60.699).