New anti-discrimination body for France
On 31 December 2004, legislation establishing a new anti-discrimination authority was published in the French official journal. The legislation also amends the burden of proof in cases of discrimination based on race and brings French law fully into line with the EU's Race Directive.
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France has established an anti-discrimination body to combat discrimination on grounds of race, religion, sex, and sexual orientation.
The body was set up in accordance with the requirements of the EU race Directive and ensures that France is fully compliant with the EU race Directive.
The anti-discrimination authority has wide-ranging powers to address all forms of discrimination.
The authority comprises 11 members, who hold office for five years, nominated by various arms of the state including the prime minister and the judiciary.
Individuals can refer their case to the authority, in writing. An intermediary, such as a French member of the European parliament, can submit the case on the individual's behalf.
The authority can pursue cases without a case being referred to them, so long as the individual discriminated against has been informed and has no objections to the case being pursued.
The authority has wide-ranging powers to demand information on the cases that it deals with.
Assistance may be provided for individuals who wish to pursue a case.
Cases may be referred, by the authority, to mediation, which will be carried out by a member of the authority or an external mediator.
The authority also has power to make recommendations to eliminate any discrimination that it finds, and parties concerned have to report back on how they have responded to the recommendations.
The authority is also under a duty to promote equality, including the recommendation of legislative changes.
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The establishment of a new anti-discrimination authority is the realisation of president Jacques Chirac's long-standing personal commitment to allocate the highest priority to the introduction of measures to fight discrimination in France.
In a speech on 14 October 2002, Chirac said: "I want to set up an independent authority that will fight all forms of discrimination, whether on the grounds of race, religion, sex, or sexual orientation." In July 2003, he instructed Bernard Stasi, the state mediator, to examine the issues involved. Stasi delivered his report on 16 February 2004, after which he was instructed to draw up a blueprint for how such an institution would operate.
Subsequently, the draft Bill on the proposed new authority was submitted to the national assembly (France's lower house of parliament) in October 2004 and was adopted as law nos. 2004-1486 establishing a high-level authority to combat discrimination (haute autorité pour lutter contre les discriminations, Halde) on 30 December 2004. In line with Stasi's recommendations, the new authority will have a range of powers. These include dealing with individual claims of discrimination, promoting equal treatment by publishing guidelines and examples of good practice and advising the government on anti-discrimination legislation.
The anti-discrimination authority
The anti-discrimination authority was set up in line with the requirements of the EU Directive implementing the principle of equal treatment irrespective of racial or ethnic origin (2000/43/EC) of 29 June 2000. Its powers more than conform to the requirements of the Directive, which only stipulates that member states should "create one or more independent bodies to promote equal treatment". The French institution is an "independent, administrative authority" that will be impartial and will facilitate the participation of people of different origins and diverse abilities, while also offering the flexibility to adapt rapidly to problems.
The authority will address all forms of direct and indirect discrimination that are prohibited by law or by any other international agreement to which France is a signatory. It is designed to have powers that are wide-ranging. Direct and indirect discrimination are defined in the Directive as follows:
direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; and
indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
The members of the authority
The authority is composed of 11 members, of which:
eight are nominated by the state, as follows: two members are nominated by the president of the republic and include the president of the authority; two are nominated by the president of the senate; two are nominated by the president of the national assembly; and two are nominated by the prime minister;
two members are nominated by the representatives of the highest-level jurisdictions: one by the vice-president of the supreme administrative court; and one by the first president of the supreme court; and
one member is nominated by the economic and social council.
Further, the representatives nominated by the president of the republic, the leader of the senate, the leader of the national assembly and the prime minister must be equally made up of men and women.
The casting vote is held by the authority's president. The mandates of the president and the members of the authority are in place for five years and may not be revoked or renewed. Apart from the president, half the members of the authority will change every 30 months.
The 11 members of the new authority were appointed on 3 March 2005, under the leadership of the chief executive of Renault, Louis Schweitzer.
The authority will set up a consultative committee of appropriately qualified people, appointed by the members, and to include social partner representatives, professional organisation representatives and other people involved in the field of fighting discrimination and promoting equality.
The jurisdiction of the authority
Everyone who feels that they have been a victim of discrimination will be able to refer their own case to the anti-discrimination authority. The decree that will set out the details of the procedure is still in draft form. It will, however, stipulate that any representation will have to be made in writing and may either be submitted by the victim themselves or by an intermediary, such as a member of the national assembly, a member of the senate or a French member of the European parliament. It also envisages that all claims will be registered and acknowledged, even if they do not fall within the powers of the authority.
Further, any association that has been in existence for at least five years at the date of the discriminatory action and which has a mission to combat discrimination or assist people who feel that they have been victims of discrimination may refer a case to the anti-discrimination authority jointly with the alleged victim, providing that they have given their consent.
The authority may also pursue cases on its own, providing that the victim, if they have been identified, has been informed and has no objection.
Any actions brought before the authority may not interfere with any cases going through the courts; the bringing of a case will neither delay nor suspend any ongoing civil or criminal actions.
Powers of investigation
The anti-discrimination authority has the right to collect any information on the cases that come to its attention and may pursue three types of investigation:
it can demand explanations from people or organisations cited in cases brought before the authority;
it can demand information and documentation to support the cases brought to it; and
it can request the cooperation of anyone it thinks may be of assistance.
The public authorities and other public service bodies are required to instruct their employees to cooperate with the authority as appropriate. People who have to appear before the anti-discrimination authority are entitled to be accompanied by a person of their choice and a transcript of the hearing will be provided. Public bodies themselves are also obliged to assist the anti-discrimination authority and provide any information requested. Further, it can expect ministers to carry out requests within their areas of competence, such as commissioning studies or setting up investigations or committees. Ministers are required to tell the anti-discrimination authority how they plan to fulfil its demands.
If the authority does not receive the information it demands, it can insist that the person or organisation from whom it has requested it, whether they are in the public or private sector, responds within a given timescale. If this does not happen and it still does not receive the information, the president of the authority has the power to embark on a referral procedure that may lead to a civil judge ordering the disclosure of the information required.
The authority may ask one or more of its members or agents to proceed with investigations on site and anyone who is likely to be able to provide information may be called on.
When carrying out such investigations, the authority must adhere to the following conditions:
it must inform in advance the people affected and obtain their consent;
it may only carry out investigations at three types of establishment: local authorities, public transport premises and dedicated business premises; and
agents of the authority who will be carrying out these investigations must be authorised by the public prosecutor at the appeal court that is nearest to where they live.
Assistance and mediation roles
The anti-discrimination authority will be able to assist discrimination victims in drawing up their case and identifying which procedures are appropriate. It may also refer cases to mediation. However, information received during the course of mediation may not be used retrospectively in any civil or administrative procedures without the agreement of the people concerned. At the same time, the authority is obliged to bring to the attention of the state prosecutor any criminal acts or other offences it uncovers.
The mediation procedures will be set out in a decree, the draft of which at present envisages that mediation may only take place according to the following conditions:
with the agreement of the parties concerned;
that it will be carried out by a member of the anti-discrimination authority or by an external mediator; and
that it will not exceed a duration of three months, which may be renewed once on the demand of the mediator.
According to the draft decree, the mediator will convene the people concerned and may, with the agreement of the parties, invite additional people to participate. Finally, the mediator may terminate the mediation at any time, on the request of one of the parties or on their own initiative.
Recommendations
The anti-discrimination authority has the power to make recommendations to rectify any situations or practices it considers discriminatory that fall within its jurisdiction. Such recommendations may be made public, under terms that will be set out in a decree. The parties concerned are obliged to report on how they have responded to the recommendations within a given time limit.
If the parties do not submit this report or if the authority considers, after seeing the report, that its recommendations have not been fulfilled, it can publish a special report in the French official journal.
Promotion of equality
The authority is also entrusted with a general mission to promote equality as follows:
to provide appropriate information and training;
to conduct and coordinate relevant studies and research;
to launch and support all public and private sector initiatives to promote equality; and
to identify and promote good practice in the matter of equal opportunities and equal treatment.
It may recommend legislative amendments or changes to regulations and will be consulted by the government on any draft anti-discrimination and equality legislation. If requested by the prime minister, the authority may represent France in appropriate international or EU organisations.
Finally, the anti-discrimination authority is required to submit an annual report to the president. This report will be made public.
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The legislation establishing the anti-discrimination authority permits the release of confidential information to the authority that falls within its remit (with the exception of information covered by the confidentiality clause between lawyers and their clients). Anyone divulging such information is protected from criminal prosecution, according to arts. 226-13 of the Penal Code, which provides for breaches of confidentiality to be punished by one year in prison and a fine of €15,000. For their part, the members of the anti-discrimination
authority, their representatives and any experts they have called on are
bound by a duty of confidentiality as regards any information they obtain in
the course of their work, apart from information they have received and used
to provide advice, make recommendations and compile reports. |
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The Directive implementing the principle of equal treatment irrespective of racial or ethnic origin (2000/43/EC) of 29 June 2000 (the race Directive) had only been partially transposed into French national legislation. Previous anti-discrimination legislation implementing elements of the Directive was passed on 16 November 2001, complementing rights contained in the labour code. Earlier legislation relating to the rights and obligations of civil servants dates from 13 July 1983. Additionally, social modernisation legislation passed on 17 January 2002 has, among other things, transposed the measures in the Directive relating to psychological harassment, which is considered a form of discrimination. It also contains clauses relating to discrimination in access to housing. This new legislation (law 2004-1486) completes the process of implementing the EU Directive. As well as creating the anti-discrimination authority, it amends the conditions relating to the burden of proof in cases of alleged discrimination based on race or ethnic origin. In future, everyone, regardless of their national origin or their actual or presumed membership or non-membership of a particular ethnic group or race, is entitled to equal treatment in relation to: social protection; healthcare; other social advantages; education; access to goods or services or the supply of goods or services; membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; access to employment; employment; and independent or unpaid work. In addition, the legislation amends (without reversing) the burden of proof as follows: anyone who believes that they have been a victim of direct or indirect discrimination on grounds listed above must establish a prima facie case of discrimination; and it is then up to the defendant (the alleged discriminator) to prove that the action they took was justified by objective criteria and therefore does not constitute discrimination. This does not, however, apply in cases of
discrimination on grounds of sex, cultural customs or physical appearance.
Finally, the amendment to the burden of proof does not apply in criminal
cases. |
