Introduction

• Author: Latraverse, Sophie
• Pages: 13-15

13

INTRODUCTION

The national legal system

Laws are the main source of rights in France. They may be proposed by Government (bills)

or by Parliament (proposed laws), which is made up of two chambers, the National

Assembly and the Senate. Before a law is enacted by the President of France, the

Constitutional Council may, at the request of members of Parliament, verify its consistency

with the Constitution. The effective implementation of enacted legislation also depends on

the regulatory section of the Supreme Administrative Court (Conseil d’Etat) adopting

secondary legislation, such as decrees.

International conventions ratified by France can be directly invoked before the courts which

have the duty to monitor the conformity of national legislation.

The jurisdictional order is made up of two branches:

- administrative courts have jurisdiction over all administrative litigation ;

- judicial courts have jurisdiction over criminal and private law.

In private law, the general legal regime relating to discrimination is to be found in codified

law i.e. the Labour Code (LC), the Penal Code (PC), the Civil Code (CC) and Law No. 2008-

496 of 27 May 2008 on various provisions implementing Comm unity anti-discriminat ion

Law.45

Administrative law, on the other hand, is mostly jurisprudential, and based on the

implementation of a formal theory of equali ty: rules are held to meet the requirement of

equality if they are the same for everyone. However, the Law of 27 May 2008 also applies

to public agents, social protection, access to education and public service.

The law grants uniform and impartial protection to all individuals, and to their beliefs and

allegiances, but th is applies solely to them a s individuals. For legal purposes, g roups

defined by such beliefs or all egiances simply do not exist. As a consequence, France has

systematically rejected clauses in international conventions or declarations that imply that

individuals should be granted rights on th e basis of their m embership of a minority, thus

constituting a legal category on the basis of origin.

Since the S econd World War, the long-standing abstract principle of equality h as been

enshrined in a range of instruments, including the Constitutions of 1946 and 1958, as well

as comprehensive criminal penalties for racism and xenophobia. The resultin g French

approach has developed along two complementary lines: the condemnation of racism and

the refusal to us e criteria of ‘origin’, ‘ethnicity’, ‘race’ or religion for policy and

administrative purposes.

The broader principle of non-discrimination as applicable to administrative, civil and labour

law, has been introduced more recently, and derives largely from EU law.

In France, since most of the legislation applies to all grounds of discrimin ation, cases are

referred to as precedents whether or not they discuss issues related to the same ground

of discrimination. Generally speaking, whether or not they apply EU law, they seldom refer

to the EU directives.

45 Law No. 2008-496 of 27 May 2008 Implementing Community Law in Relation to the Fight Against

Discrimination (Loi No. 2008-496 du 27 mai 2008 portant diverses dispositions d'adaptation au droit

communautaire dans le domaine de la lutte contre les discriminations), available at:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000018877783.