Remedies and enforcement

• Author: Latraverse, Sophie
• Pages: 83-97

83

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In France, the following procedures exist for enforcing the principle of equal treatment

(judicial, administrative and alternative dispute resolution such as mediation).

There are judicial and non-judicial means of legal action in France.

Administrative procedure for access to disabled people’s rights

Article 64 of the Law No. 2005-102 on Disabili ty creates a Departmental Centre (Maison

départementale) for people with disabilities that is intended to centralise all administrative

procedures for enforcing the rights of disabled people. It further creates a claim reference

person with in these Departmental Centres (Article 146-13 CSW), who will transmit the

disabled person’s claim to the competent authority or jurisdiction. The decree establishing

these Departmental Centres was adopted on 19 December 2005 (Decree No. 2005-

1587).299

Non-judicial means of intervention

Both private and public employers can initiate a non-judicial in-house inquiry if a victim of

harassment brings to their attention, or i f they suspect, an incidence of discrimination, as

they must guarantee a working environment free of such practices.

Staff representatives, the human resources manager or work councils (Comité

d’entreprise) also have the power to request social dialogue on the integration of disabled

workers (L2241-5, L2242-13 and L2242 -14 of the Labour Code (LC)) and w orking

conditions (L2241-3 and L2241-44 LC).

Labour Inspectors have reinforced investigative powers. They can enter all premises

(Article L8113-5 LC), obtain communication of any document or information providing

evidence of the facts, wh ether on paper, computeris ed or other (L8113-4. LC). They may

also draft a contravention report certifying their observations (L8113-7 LC) and submit this

report to the Public Prosecutor (Article 40 Code of Penal Procedure, CPP).

With regard to mediation, Articles 21 and 131 of the New Code of Civil Procedure expressly

refer to the duty of the judge to favour mediation and to designate a third-party mediator

upon obtaining the consent of the parties to that end. Conciliation is proposed to all parties

as the first stage of any legal action before the Employment Tribunal in application of Article

L1423-13 LC. The labour inspector (L611-1 ff.) can also initiate these non-judicial means

of action. However, it is not compulsory.

Article 6 quinquies of Law No. 83-634 sets out the principle of disciplinary sanction against

any public servant committing discriminatory actions.

With respect to claims against the public service, mediation can be pursued by the

Defender of Rights (Défenseur des droits) or one of the many medi ators put in place by

specific public services relating to social protection, education, public transport, the postal

service, finance etc. This mediation is pursued without prejudice to the administrative legal

action, which must be pursued independently.

299 Decree No. 2005-1587 of 19 December 2005 on the creation of the departmental centre for disabled people

(Décret No. 2005-1587 du 19 décembre 2005 relatif à la maison départementale des personnes

handicapées),available at: http://www.legifrance.gouv.fr/eli/decret/2005/12/19/SANA0524615D/jo.