COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResChS(2006)5
Collective complaint No. 24/2004
by SUD Travail Affaires sociales against France

(Adopted by the Committee of Ministers on 12 July 2006
at the 971st meeting of the Ministers' Deputies)

The Committee of Ministers,1

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints,

Taking into consideration the complaint lodged on 6 February 2004 by SUD Travail Affaires sociales against France,

Having regard to the report transmitted by the European Committee of Social Rights, in which the European Committee of Social Rights concluded:

- by 8 votes to 3 that there is a violation of Article 1§2 of the revised Charter as the alleviation of the burden of proof is not guaranteed in respect of public employees in a manner consistent with the requirements of this provision.

The Committee notes that, from the point of view of effective application of rules on protection against discrimination, the purpose of rules on alleviation of the burden of proof is to enable courts to deal with discrimination in the light of the effects produced by a rule, act or practice. The Committee observes that it is the administrative courts that are the competent courts in discrimination cases involving civil servants, as well as public servants without tenure and employees of ANPE. It also observes that the administrative courts apply an “inquisitorial procedure” in which issues of burden of proof may present themselves differently from in adversarial litigation. However, the Committee is forced to note that it is unable to see that for the categories of employees concerned in the present context French law contains statutory provisions geared to guarantee the alleviation of the burden of proof consistent with the requirements of Article 1§2 of the revised Charter. The government has adduced no evidence or submitted no reference to any statutory text or case law to show that the situation in law is in accordance with the obligations incumbent on it pursuant to Article 1§2.

Having regard to the information communicated by the French delegation during the 969th meeting of the Ministers’ Deputies (see Appendix to this resolution) ,

1. Takes note of the report;

2. Takes note of the information provided by the respondent government.

Appendix to Resolution ResChS(2006)5

Information provided by the Permanent Representative of France on Collective Complaint No.24/2004 by letter of 29 May 2006

“In addition to the information contained in the ECSR decision, I should like to give the following details of the French legal framework in force.

The ECSR concluded that the situation was not in conformity with Article 1§2 of the revised Charter because the alleviation of the burden of proof was not provided in respect of public employees in cases concerning discrimination in employment, on certain grounds of prohibited discrimination.

We believe that in its decision the Committee did not take account of several arguments which are nevertheless of fundamental importance:

Ÿ The Committee refers to two directives of the Commission of the European Union and states that French law has not incorporated all the provisions of these directives. On this point, my government first wishes to emphasise that the provisions in question have indeed been transposed; and secondly, that the legislation prohibiting discrimination goes further than the measures provided for by the EU texts, for the benefit of all French employees.

Ÿ Directives 2000/43 (Article 8) and 2000/78 (Article 10) introduce a procedure for the alleviation of the burden of proof which ensures that the latter rests jointly with the applicant and the respondent.

Ÿ However, paragraph 5 of these two articles provides for an optional derogation to the application of this mechanism. The derogation provides that “member states need not apply paragraph 1 [concerning the burden of proof] to proceedings in which it is for the court or competent body to investigate the facts of the case”.

The administrative court proceedings to which public employees are subject fall precisely within the scope of the derogation provided for, since they are inquisitorial. This means that the administrative court responsible for investigating the case is empowered to put forward, of its own motion, all the relevant legal arguments and to seek to determine whether the decision was taken on the basis of objective facts.

Ÿ France has made use of the derogation provided for by Article 5 of Directive 2000/78 in transposing the latter in respect of the civil service.

I would add that it is not planned to remove the grounds of discrimination covered by Directive 2000/78 or Article E of the revised Charter from the derogation framework in which judicial proceedings in respect of public employees are currently placed.

However, the government doubts whether this can constitute a violation of Article 1§2 of the Charter, since the inquisitorial proceedings applicable under the judicial rules governing the civil service satisfy the requirements of the alleviation of the burden of proof provided for by the EU directives.

Ÿ As regards the transposition of Directive 2000/43, the French Government considers that the Committee’s findings against it are likewise unfounded.

When transposing this directive, parliament did not wish to expressly exclude public employees from the alleviation of the burden of proof concerning racial or ethnic discrimination provided for by the directive. Section 19 of the law of 30 December 2004 establishing the Haute autorité de lutte contre les discriminations therefore transposed the provisions of Directive 2000/43 on the burden of proof in respect of all employees, including public employees, although this alleviation of the burden of proof was not necessary in view of the specific nature of administrative proceedings. While Section 19 of the 2004 law expressly refers to discrimination on ethnic grounds, in accordance with the directive that it transposes, Section 1 of the same law provides that “the Haute autorité shall be empowered to deal with all forms of discrimination, whether direct or indirect, which are prohibited by law or by an international instrument to which France is party.” The grounds of discrimination censured by this Haute autorité thus substantially exceed those expressly provided for in Directives 2000/43 and 2000/78.”

Note 1 In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Contracting Parties to the European Social Charter or to the Revised Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey and United Kingdom.


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