Issues around discrimination do appear with some frequency in the law and jurisprudence in France, including Civil, Criminal and Administrative.

More

At Constitutional level, article 1 of the Constitution of 1958 solemnly states the equality of all citizens before the law.

Discrimination is covered by a number of criminal law norms included in the French Penal Code. Such norms have undergone a process of rapid and continuous amendment especially in the last decades.

Law 72/546 of 1972 amended the Penal Code by introducing Article 416. Conduct such as refusal to provide goods or services, refusal of employment and dismissal which were due to the victim’s belonging to a specific ethnic group nation race or religion were penalized through criminal sanctions.. In 1975 (law 75/625) and in 1989 and 1990 (law 89/19 and 90/602 respectively) the grounds for discrimination which were penalized through penal sanctions were extended to sex and family situation, customs and disability and state of health. In 1992, the reform of the Penal Code (which entered into force in 1994) led to the introduction of political opinion and union activities amongst the grounds of prohibited discrimination and to an increase in the penalties.

It also clarified the definition of discrimination, at least for the point of view of criminal law. Art 225.2 of the Penal Code lists the actions which are likely to be hit by criminal sanctions if they constitute discrimination. The list includes: refusal to provide goods and services, interference in the exercise of an economic activity, discriminatory refusal to hire or offer employment, discriminatory disciplinary sanctions and dismissal. Also, the Penal Code prohibits the storing of personal data which may lead to information about race, political or religious opinions, membership of unions or customs as such information may constitute basis for discrimination ( New Penal Code, art 226.19). The Code provides for an individual criminal responsibility for legal entities which are also covered by the prohibition and punishment of discrimination (art. 121.2, 225.4, 226.24). It also provides specifically, with heavy criminal sanctions , for discrimination perpetrated by public officers or representatives in the exercise of their duties.

However, the difficulty in providing proof of discrimination remains strong.

It has to be noted that discrimination is punished by criminal law also when perpetrated against a legal entity (art.225.1.2). However, legal entities may only be affected by discriminatory behavior against natural persons representing or in any case connected to them “Any distinction perpetrated between legal entities because of the origin …of members or certain members of these legal entities constitutes discrimination.”

Incitement to discrimination and racial hatred is punished by art. R 625-7 of the New Penal Code as well as by the Law of 1881 on freedom of the press.

Important provisions for protection against discrimination, which are of specific relevance to immigrants, are included in the main law regulating employment and rights and duties of employers and employees. A general clause against discrimination is included in Article 112.45 of the Labour Code “No person may be excluded from a recruitment procedure and no employee may be penalized or dismissed on the grounds of his or her origin, sex, customs, family situation, membership of an ethnic group, nation or race, political opinions, union activities or involvement in mutual benefit organizations or religious convictions […]” While the norms included in the Labour Code are of general application and regulate employment in the private sector, the Public Service Code includes specific provisions for the Public Sector. Art. 6 of the Public Service Code states that: “No distinction may be made between public servants on the grounds of their political, union, philosophical or religious opinions sex, state of health, disability or ethnic origin. […] “

It has to be noted that some major issues are particularly controversial as they are construed as examples of institutional discrimination against migrants. Some of these issues are common to other countries in Europe, for instance Germany. In the case of social security, for instance, non-nationals who work in France but return to their country of origin (outside the EU) before they reach the age of sixty and who no longer live in France when they reach retirement age, can not draw on their entitlements once they return to their countries, thus losing the right to old age pension , even if they have paid contributions for it.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

Hide