Sensitive or controversial issues

AuthorLatraverse, Sophie
11.1 Potential breaches of the directives at the national leve l
Even if the courts will not hesitate to proceed by way of direct application of the Directives,
some discrepancies remain in national legislation and the indications they provide for
those who enforce them.
Law No. 83-634 regulating employment law in the public services, which was amended to
cover discrimination by the above-mentioned tr ansposition legislation, states at Article 3
that, in conformity with Article 64 of the Constitution of 1958, it does not cover the status
of magistrates, who are not considered to be civil servants. Ordinance No. 58-1270 of 22
December 1958 regulates the rules applicable to both prosecution and state magistrates
and judges on the bench. Moreover, public servants working within Parliament are
similarly not subject to Law No. 83-634 and are also governed by application of Article 3
of the Law by separate in-house rules of Parliament. Finally, all contractual public servants
who hold one of the various statuses that are excluded from the application of Law No.
84-16 of 11 November 1984 on the status of state contractual agents at Article 3,
paragraph 5, are also excluded from all protections against discrimination for public
servants provided by Law No. 83-634. None of these texts have been amended to
implement Directive 2000/ 78/EC or Directive 2000/43/EC and do not contain any
protection against discrimination on any grounds. It is important to note that all public
servants who are not covered by the laws of transposition do not benefit from the
protection of the anti-discrimination legal framework implemented through Directive
2000/78 or 2000/43 unless they seek enforcement by the courts, since the Conseil d’État
decided that the anti-discrimination directives are of direct application before
administrative courts.390
The definition of direct discrimination still does not expressly include the possibility of
proceeding by means of hypothetical comparison. This appears not to comply with the
directive. There have been no cases arguing the possibility of proceeding by way of such
comparison on the basis of a direct application of the directive.
Law 2008-496 completes the framework of protection against victimisation for all Article
19(1) TFEU grounds (Article 3). However, this definition provides no indication as to the
applicable burden of proof and seems to remain inadequate.
Whereas in former legislation, the French state had not availed itself of the possibility of
providing for exceptions based on professional requirements, except on the ground of age,
Article 6 of Law 2008- 496 adds Article L1133-1 to the Labour Code which allows the
employer to justify as a professional requirement any characteristic ba sed on any of the
prohibited grounds as long as its objective is legitimate and the requirement
proportionate. This framework allowing any employer to unilaterally create their own
professional requirements does not appear to conform to the requirements of the
There have b een constant debates in France to allow employers to restrict the display of
religious symbols. During discussion of Law No. 2016-1088 of 8 August 2016 on
employment, the modernisation of social dialogue and the protection of professional
careers, Parliament adopted Article 2 which am ends the Labour Code to create Article L
1321-2-1. This a rticle provides that an employer’s in-house regulations can set out the
principle of neutrality as a rule and stipulate restrictions to the principle of religious freedom
for employees. However, these restrictions must be justified by the exercise of other
fundamental rights and liberties or by the necessities of the good functioning of the service
390 Council of State, No. 298348, 30 October 2009, available at: https://www.conseil-

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