Country report non-discrimination [Recurso electrónico] : Transposition and implementation at national level of Council Directives 2000/43 and 2000/78: France / Sophie Latraverse

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 research categories on the basis of which differential treatment could be evaluated. 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, 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 Council 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.

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