Institute of Global Law

On 18 January 2005, legislation to promote the rights of disabled people had its second reading in the Lower House of the French Parliament. Under the legislation, disabled people will receive more financial support including a special allowance to compensate them for extra expenses (home carer, special equipment, etc.) arising from their disability. Suggestions during the first reading of the legislation that there should be prerequisites as to age and means have not been adopted. In addition, disabled people who are no longer able to work will be guaranteed minimum State benefits amounting to at least 80% of the minimum monthly wage. Finally, to facilitate daily living, a dedicated central phone line will be established for all queries from disabled people and a target will be set to ensure that all public transport and public buildings are accessible to disabled people within ten years. The text still needs to be examined by the Parliamentary Commission.

On 3 December, the Court of appeal in Paris turned down an appeal against the decision of the Tribunal de Grande Instance of Paris on 18 October 2004 to allow the Histoire channel to broadcast the Papon case relating to crimes against humanity. The Court concurred with the lower court’s ruling that Maurice Papon was not entitled to a say as to whether his trial should be broadcast and in what form. The Court considered that Histoire was a serious channel which would give a faithful presentation of the hearings in spite of the fact that it would be impossible to broadcast each one.

On 7 December 2004, the Criminal Division of the Cour de cassation convicted two publishers and an author for writing in praise of war crimes committed during the Algerian war. The Court’s decision was founded on 1881 legislation and was also pursuant to international law, which forbids torture and summary executions.

On 19 November 2004, the Conseil constitutionnel indicated which provisions of the European Constitution required an amendment of the French Constitution before the possible ratification of the European Constitution by France. They are the provisions which transfer powers to the European Union relating to “freedom, security and justice” and to “common foreign and security policy”, or modify the mode of exercise of these powers (allowing, for instance, a qualified majority vote instead of unanimity in the European Council of Ministers). Among these provisions are also those referring to the new powers granted to national parliaments to refuse a simplified revision of the European Constitution or to ensure compliance with the “principle of subsidiarity.” On the other hand, the Conseil constitutionnel considered that the provision asserting the primacy of Community Law on national law, as well as the Charter of Fundamental Rights of the European Union (which constitutes the second part of the European Constitution) did not require any revision of the French Constitution.

On 27 November 2004, the Administrative Court of Appeal of Lyon judged that a civil servant who wore the Islamic veil and refused to take it off was guilty of a serious misconduct. The court considered that such a behaviour infringed the principle of secularity of the Republic and the principle of neutrality of public services that protects the rights of the users of such services. The court added that this behaviour was also against professional honour.

On 4 November 2004, the Second Civil Division of the Cour de cassation asserted that the principle of the freedom of press entailed freedom to choose the pictures to be used as illustration of a generally debated topic so long as the dignity of the human being was respected. The court did not consider that the picture of a child killed in a road accident and covered in blood infringed the its dignity.

On 8 October 2004, the Conseil d’Etat dismissed a request for the annulment of a circular stipulating the measures required for the enforcement of the 15 March 2004 Act on secularity. According to the CE, the circular only gives an interpretation of this Act by prohibiting, for example, the Islamic veil, kippas and large crosses at school. Furthermore, the CE indicated that administrative courts had no jurisdiction to examine compliance of such a circular with the Constitution and the French Declaration of Human Rights of 1789. The CE also held that the circular did not excessively interfere with Article 9 of the ECHR and Article 18 of the International Covenant on Civil and Political Rights relating to the freedom of thought, conscience and religion insofar as it ensures the principle of secularity in state schools, which is an objective of general public interest.

As a result of a decision rendered by the Conseil d’Etat on 7 February 2003, a decree of 4 October 2004 annulled the decree of 6 May 1939 relating to the control of the foreign press. In the GISTI case, the CE judged that, according to the ECHR’s case-law, the decree of 1939 infringed Article 10 of the European Convention on Human Rights on the freedom of opinion and expression. Pursuant to the new text, circulation of foreign publications may only be forbidden by a special decision taken by the Council of Ministers, and the Minister of the Interior has the power to forbid the circulation of only one edition of a foreign newspaper.

On 5 October 2004, the Assemblée nationale adopted the government’s proposal to create an independent body against discrimination, la Haute autorité de lutte contre les discriminations et pour l’égalité (see Legislation June 2004).

On 18 October 2004, the Tribunal de grande instance (TGI) of Paris authorized the broadcasting of the Papon case relating to crimes against humanity during the Second World War. The authorisation of any broadcasting was previously refused in 2002/2003 on the grounds that the condemnation of Maurice Papon was not yet final and that the accused should still be presumed innocent. But since the appeal of Maurice Papon had been dismissed by the Cour de cassation in June 2004, there were no longer reasons to refuse the request. Indeed, pursuant to the 11 July 1985 Act, trials relating to crimes against humanity have an historical interest and can be broadcasted after authorisation by the President of the TGI of Paris. In addition, the TGI indicated that Papon could not influence the thrust of the broadcast.

On 10 June, the Conseil constitutionnel rendered a decision relating to the articulation of legislative sources with directives. The Conseil was asked to examine the constitutional validity of legislation implementing a European directive on the liability of web providers. The piece of legislation in question reflected exactly the provisions of the directive. Consequently, the Conseil held that examining the constitutional validity of such legislation would in fact entail reviewing European directives, a task that the Conseil declined to assume, indicating that the legality of directives could only be questioned in Luxemburg. This leaves open the possibility of review in cases where domestic legislation departs from the exact wording of directives. Moreover, the Conseil states that in circumstances where the directive in question expressly contradicts a constitutional provision, the Constitution would prevail. Consequently, legislation conforming with the Constitution but violating a directive would in such exceptional instances be approved by the Conseil. Asserting the predominance of EU law, the Conseil constitutionnel thus still refers to the Constitution: in exceptional cases of explicit conflict, the Constitution will prevail over EU directives; in ordinary cases, EU law will receive primacy over all domestic law (including constitutional norms) by virtue of the Constitution itself (art. 88-1).

In an interview given on 3 June, the Minister of Justice (Dominique Perben) promised a proposal for legislation against homophobia before Summer 2004. However, he did not envisage an acceptance of gay marriages, despite the provocative celebration of a wedding between two males by MP and maire of the small town of Bègles (Gironde), Noël Mamère, on 5 June. Noël Mamère claims that, in the absence of any explicit prohibition in the French Code civil, his act was not illegal. Disciplinary proceedings were nevertheless instituted against him because he had ignored the préfet’s order not to go through with the wedding. As a result, he was dismissed.

On 4 June, the National Consultative Committee on Human Rights started to examine the government’s proposal to create an independent body against discrimination (La Haute Autorité contre les discriminations et pour l’égalité). This new body, composed of eleven permanent members (two of them appointed by the French President of the Republic, six by the President of the Assemblée nationale, six by the President of the Sénat, three by members of the Conseil d’Etat, three by members of the Cour de cassation and three by the Conseil économique et social) would have three main tasks: examination of individual grievances, promotion of equality and execution of research projects to track down discriminatory practices.

On 4 June, the main union organization for head teachers issued guidelines for the future application of the 15 March 2004 Act prohibiting noticeable religious attires in State schools. An automatic ban on all types of head scarf was not recommended, but previous tolerance of the Islamic veil is to be abandoned as it is no longer compatible with legislation.

On 15 June, the Lower House of the French Parliament reviewed the government proposal for legislation promoting handicapped people’s rights. The scope of the financial support granted by the initial proposal for special needs flowing from a handicap was extended.

On 25 May 2004, the Lower House of French Parliament debated upon the proposed constitutional Environmental Charter. According to the proposal, the Charter would have constitutional standing. The Charter, in rather abstract general terms, grants individuals the right to live in well balanced and healthy surroundings and imposes on everyone the duty to preserve and improve their environment. Article 5 of the Charter allows public authorities to take temporary and proportionate measures to avoid the possible occurrence of a serious and irretrievable damage to the environment.

On 12 May 2004, the Conseil d’Etat overruled its decision of 28 May 1971 (in the Ville de Saint-Jean de Maurienne case) whereby State liability for damages caused on local roads was restricted to cases of faulty behaviour committed by local agents in carrying out orders. From now on, State liability will not be subject to any special restrictions.

On 7 May 2004, the Cour de cassation in its full formation shifted the balance between ownership rights over the image of one’s property and freedom of expression in favour of the latter. On 10 March 1999, the First Civil Section had held in favour of the owner’s rights, stating that the use of the image of someone’s property interfered with rights of full ownership. On 2 May 2001, this position was already affected by introduction of the requirement of proof of “uncontested nuisance” caused to the owner’s rights to full enjoyment. This restriction is now differently phrased as the Cour de cassation now demands proof of “abnormal nuisance” to the owner’s rights. The mere fact of taking a picture and using it afterwards, even for commercial purposes, cannot in itself constitute abnormal nuisance. Special circumstances (yet to be determined) need to be shown.

On 25 February 2004, the Third Civil Section of the Cour de cassation held that visits to a flat rented out by a tenant who had given notice could not be arranged by an estate agent without the tenant’s prior consent. Failure to obtain such consent justified the award of damages for breach of privacy.

On 19 February 2004, the Conseil d’Etat reached a final decision in the Chevrol case, following very protracted proceedings. On 9 April 1999, Mme Chevrol had been denied the right to practice as a GP in France because her qualifications were obtained in Algeria. She challenged the decision before the European Court of Human Rights and the Court found that – because the Conseil d’Etat had relied exclusively on the Government’s interpretation of the relevant international text (the Evian Agreement) in reaching its decision, hence refusing to give its own interpretation – it had denied the plaintiff the right of access to a tribunal as guaranteed by article 6, paragraph 1 of the European Convention of Human Rights. However, in its February 2004 decision, the Conseil d’Etat stated that, in spite of the ECHR’s censure, Mme Chevrol’s claim could not be re-examined because domestic proceedings had come to an end prior to the decision and the plaintiff’s case could not therefore be reopened.

On 2 March 2004, the Second Civil Section of the Cour de cassation quashed the decision of a Court of Appeal concerning an alleged violation of article 6, paragraph 1 of the European Convention of Human Rights, which grants the right of access to a tribunal. In this case, due to industrial action being taken by the Bar profession, neither the plaintiff nor his barrister were present at the hearing. The plaintiff’s barrister had requested an adjournment on the day of the hearing but the request had been refused. Nevertheless, the Court of Appeal had rejected the plaintiff’s opposition to the judgment, which was therefore reached in his barrister’s absence. The Cour de cassation quashed the decision.

The report of the Conseil d’Etat for the year 2004 was made public on 19 March 2004. General Comments relate to the issue of laïcité (Secular State) and go back on a century of debates about this issue since the 1905 Act on the Separation of Church and State Matters.

Legislative proposals on laïcité (banning noticeable religious signs from all State primary and secondary schools) were approved by the Upper House of the Parliament on 3 March 2004 and were enacted on 15 March 2004. The proposals were carried by a very large majority (496 votes to 36) when they were debated in the Lower House in February of last year, and the majority in the Upper House was similarly substantial (276 votes to 20). The new ban will come into effect in schools from September 2004.

The Lower House of the French Houses of Parliament voted on 10 February 2004 in favour of the proposed ban on all noticeable religious signs in French primary and secondary state schools. Two amendments have, however, been made to the original text. First, a preliminary negotiating stage between a headmaster and a pupil wearing an ostentatious religious sign must be gone through before any penalties can be inflicted on the pupil. Secondly, a review of the application of the Act is to be made after a year of enforcement. The text must now be discussed by the Upper House and will presumably come into force in September 2004.

Since the President of the Republic’s call for legislation banning all noticeable religious signs in French State schools, the issue of laïcité (secular State) has been at the centre of a huge controversy. From a legal point of view, the proposed legislation is mainly criticized for its absolute and too abstract approach. Unlike the casuistic basis favoured by the Conseil d’Etat in its opinion of 27 November 1989 (A.J.D.A. 1990, 39), all ostentatious religious signs would fall under the new prohibition, irrespective of their practical impact on the running of classes. This a priori and abstract application of the principle of laïcité contrasts with the balancing process usually adopted to solve conflicts between individual rights and liberties (e.g., freedom of religion v. the principle of laïcité). Its rationale is to spare headmasters the difficult task of weighing conflicting interests by giving clear national guidelines.

On 16 December 2003, the European Court of Human Rights held against France on a parental responsibility issue that had implications on freedom of religion. In view of their mother’s strong links with Jehovah’s witnesses, French Courts had ordered two children’s habitual residence to be changed from their mother’s to their father’s home. Acknowledging that French Courts were pursuing a legitimate goal (protecting the children’s welfare), the ECHR nevertheless held that the change of residence was not a proportionate means to achieve this goal. Indeed, in the absence of any investigation made at the mother’s home or of any specific element justifying such a move, the decision was solely grounded on abstract sweeping statements. French judges had therefore failed to reach the required balance – under article 9(2) of the Convention – between the concern for children’s interests and the protection of freedom of religion.

On the issue of laïcité (secular State), the President of the French Republic, M. Jacques Chirac, declared on 17 December 2003 to be in favour of legislation banning all noticeable religious or political signs at school. M. Jacques Chirac rejected the idea of extra bank holidays on Aïd el-Kebir and Kippour, but added that exams should not take place on these days. He also called for legislation prohibiting proceedings against doctors or nurses for disregarding a pateint’s reluctance to receive treatment from someone of the opposite sex.

The Second Civil Section of the Cour de cassation on 9 October 2003 reiterated the ruling of the Assemblée plénière of 12 July 2000, stating that the exercise of the right of freedom of expression by the Press cannot be the subject of compensation under article 1382 of the Code civil, i.e. under the general law of torts. Liability of the Press can only be considered under the special provisions contained in the 19 July 1881 Act.