Executive summary

• Author: Latraverse, Sophie
• Pages: 5-12

5

EXECUTIVE SUMMARY

1. Introduction

The key to the French legal approach to racism and discrimination is the abstract,

universalist, formal concept of equality, enshrined in a range of instruments, including the

Constitutions of 1946 and 1958. As a result, the legal framework has developed along two

complementary lines: the condemnation of inequality based on ‘origin’, on the one hand,

and the parallel refusal to use the criteria of ‘origin’ for policy and administrative purposes,

even in combating discrimination (confirmed by the Constitutional Council) , on the other.

In 2007, for the first time, the Constitutional Council explicitly endorsed the refusal by

French doctrine to recognise the concepts of ethnic origin or race as legal, administrative

or res earch categories on the basis of which differential treatment could be evaluated.1

Any approach relating to origin must be based on objective indications, such as nationality

of parents and grandparents, in order to objectivise the construction of comparative

categories.

Although there is no constitutional text expressly prohibiting discrimination on the basis of

age, disability, health or sexual orientation, according to the Constitutional Council the list

of prohibited grounds of discrimination in the Constitution is an open one. However, the

social chamber of the Court of Cassation held in a decision of 15 November 2017,2 in a

case relating to the extent of compensation for discrimination on the ground of age, that

non-discrimination on the ground of age did not constitute a fundamental right and

freedom protected by the French Constitution. This position has not been decided on by

the Conseil d’État or the Constitutional Council.

The Constitutional C ouncil has not yet explicitly protected sexual orientation as a ground

of prohibited discrimination covered by the Constitution; rather, it has referred the issue

of equal treatment to Parliament.3

The pra ctising Muslim community in France in 2019 is estimated by the Observatory of

Secularism to represent 3 % of the population,4 persons born outside Europe represent

6.4 % of the population and persons with at least one parent of foreign descent represent

11.2 % of the population.5

Around 95 % of Roma in France are French citizens, designated in the law as Trav ellers,6

who represent approximately 700 000 people. Foreign Roma are mostly migrants from

Romania and Bulgaria and are estimated to number 20 000.7 The problems they experience

and their relations with public services are very different. Historically, all French citizens

who pursue a travelling way of life (including French Roma and non-Roma) had a specific

legal and administrative status. It was declared unconstitutional by the Constitutional

1 Constitutional Council, 2007-557, 15 November 2007, available at: http://www.conseil-

constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-

1959/2007/2007-557-dc/decision-n-2007-557-dc-du-15-novembre-2007.1183.html.

2 Court of Cassation, social chamber, No. 16-14.281, 15 November 2017, available at:

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000036053048&f

astReqId=387503508&fastPos=1.

3 Constitutional Council QPC No. 2010-39, 6 October 2010, available at: https://www.conseil-

constitutionnel.fr/decision/2010/201039QPC.htm.

4 Observatory of Secularism (2020), Chiffres-clefs, (Key numbers) January 2020, available at :

https://www.gouvernement.fr/rapport-des-francais-a-la-religion-et-aux-convictions-chiffres-cles.

5 Carcillo, S., Valfort, A-M (2018), Les discriminations au travail, Presses de Sciences Po.

6 In France, the Law and administrative categories do not refer to the term Roma but names French Roma as

Travellers (gens du voyage).

7 Auditor General (2012) L’accueil et l’accompagnement des gens du voyage (Accommodation and support for

Travellers), available at: http://www.gouvernement.fr/sites/default/files/contenu/piece-

jointe/2016/05/ccomptes_rapport_thematique_gens_du_voyage.pdf.