Country report, gender equality : how are EU rules transposed into national law? : France 2017.
Date: 2017-06-14
Institutions: Directorate-General for Justice and Consumers
Subjects: France, age discrimination, anti-discriminatory measure, application of EU law, equal pay, equal treatment, gender equality, maternity leave, national law, parental leave, paternity leave, pension scheme, report, sexual discrimination, sexual harassment, social security

France 

2017 

1 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Gender equality 
Unit JUST/D2 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Gender equality 

How are EU rules transposed into 
national law? 

France 

Sylvaine Laulom 

Reporting period 1 April 2016 – 31 December 2016 

Directorate-General for Justice and Consumers 

2017 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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ISBN 978-92-79-69494-3   

doi:10.2838/64648 

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© European Union, 2017 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Gender equality – France - 2017 

Contents 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Introduction................................................................................................... 6 
1.1  Basic structure of the national legal system ............................................... 6 
1.2  List of the main legislation transposing and implementing Directives ............. 6 
General legal framework ................................................................................. 8 
2.1  Constitution ........................................................................................... 8 
2.2  Equal treatment legislation ...................................................................... 8 
Implementation of central concepts .................................................................. 9 
3.1  Sex/gender/transgender ......................................................................... 9 
3.2  Direct sex discrimination ......................................................................... 9 
3.3 
Indirect sex discrimination ..................................................................... 10 
3.4  Multiple discrimination and intersectional discrimination ............................ 11 
3.5  Positive action ...................................................................................... 12 
3.6  Harassment and sexual harassment ........................................................ 13 
3.7 
Instruction to discriminate ..................................................................... 14 
3.8  Other forms of discrimination ................................................................. 14 
Equal  pay  and  equal  treatment  at  work  (Article  157  TFEU  and  Recast  Directive 
2006/54)..................................................................................................... 15 
4.1  Equal pay ............................................................................................ 15 
4.2  Access to work and working conditions .................................................... 17 
Pregnancy,  maternity,  and  leave  related  to  work-life  balance  (Directive  92/85, 
relevant provisions of the Directives 2006/54 and 2010/18) .............................. 18 
5.1  Pregnancy and maternity protection ....................................................... 18 
5.2  Maternity leave .................................................................................... 18 
5.3  Adoption leave ..................................................................................... 20 
5.4  Parental leave ...................................................................................... 20 
5.5  Paternity leave ..................................................................................... 24 
5.6  Time off/care leave ............................................................................... 24 
5.7  Leave in relation to surrogacy ................................................................ 24 
5.8  Leave sharing arrangements .................................................................. 24 
5.9  Flexible working time arrangements........................................................ 25 
Occupational  social security schemes (Chapter 2 of Directive 2006/54) .............. 26 
6.1 
Is  direct  and  indirect  discrimination  on  grounds  of  sex  in  occupational  social 
security schemes prohibited in national law? ............................................ 26 
Is  the  personal  scope  of  national  law  relating  to  occupational  social  security 
schemes the  same, more  restricted, or broader than  specified in Article 6  of 
Directive 2006/54? Please explain and refer to relevant case law, if any. ..... 26 
Is  the  material  scope  of  national  law  relating  to  occupational  social  security 
schemes the  same, more  restricted, or broader than  specified in Article 7  of 
Directive 2006/54? Please explain and refer to relevant case law, if any. ..... 26 
6.4  Has national law applied the exclusions from the material scope as specified 
in Article 8 of Directive 2006/54? ........................................................... 26 
6.5  Are  there  laws  or  case  law  which  would  fall  under  the  examples  of  sex 
discrimination as mentioned in Article 9 of Directive 2006/54? ................... 26 
Is sex used as an actuarial factor in occupational social security schemes? .. 26 
6.6 
6.7  Are there specific difficulties in your country in relation to occupational social 
security schemes, for example due to the fact that security schemes in your 
country  are  not  comparable  to  either  statutory  social  security  schemes  or 
occupational  social  security  schemes?  If  so,  please  explain  with  reference  to 
relevant case law, if any. ....................................................................... 26 
Statutory schemes of social security (Directive 79/7) ........................................ 27 
7.1 
Is  the  principle  of  equal  treatment  for  men  and  women  in  matters  of  social 
security implemented in national legislation? ........................................... 27 
Is  the  personal  scope  of  national  law  relating  to  statutory  social  security 
schemes the  same, more  restricted, or broader than  specified in Article 2  of 
Directive 79/7? Please explain and refer to relevant case law, if any. .......... 27 

7.2 

6.3 

6.2 

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8. 

9. 

7.3 

Is  the  material  scope  of  national  law  relating  to  statutory  social  security 
schemes the same, more restricted, or broader than specified in Article 3 par. 
1  and  2  of  Directive  79/7?  Please  explain  and  refer  to  relevant  case  law,  if 
any. .................................................................................................... 27 
7.4  Has national law applied the exclusions from the material scope as specified 
in  Article  7  of  Directive  79/7?  Please  explain  (specifying  to  what  extent  the 
exclusions apply) and refer to relevant case law, if any. ............................ 27 
7.5  Are  there  specific  difficulties  in  your  country  in  relation  to  implementing 
Directive  79/7?  For  example  due  to  the  fact  that  security  schemes  in  your 
country  are  not  comparable  to  either  statutory  social  security  schemes  or 
occupational  social  security  schemes?  If  so,  please  explain  with  reference  to 
relevant case law, if any. ....................................................................... 27 
Self-employed workers (Directive 2010/41/EU and some relevant provisions of the 
Recast Directive) .......................................................................................... 28 
8.1  Has Directive 2010/41/EU been explicitly implemented in national law? ...... 28 
8.2  What is the personal scope related to self-employment in national legislation? 
Has  your  national  law  defined  self-employed  or  self-employment?  Please 
discuss  relevant  legislation  and  national  case  law  (see  Article  2  Directive 
2010/41/EU) ........................................................................................ 28 
8.3  Related  to  the  personal  scope,  please  specify  whether  all  self-employed 
workers  are  considered  part  of  the  same  category  and  whether  national 
legislation recognises life partners. ......................................................... 29 
8.4  How  has  national  law  implemented  Article  4  Directive  2010/41/EU?  Is  the 
material scope of national law relating to equal treatment in self-employment 
the  same,  more  restricted,  or  broader  than  specified  in  Article  4  Directive 
2010/41/EU? ....................................................................................... 29 
8.5  Has  your  State  taken  advantage  of  the  power  to  take  positive  action  (see 
Article 5 Directive 2010/41/EU)? If so, what positive action has your country 
taken? In your view, how effective has this been? .................................... 30 
8.6  Does  your  country  have  a  system  for  social  protection  of  self-employed 
workers (see Article 7 (Directive 2010/41/EU)? ........................................ 30 
8.7  Has  Article  8  Directive  2010/41/EU  regarding  maternity  benefits  for  self-
employed been implemented in national law? .......................................... 30 
8.8  Has  national  law  implemented  the  provisions  regarding  occupational  social 
security  for  self-employed  persons  (see  Article  10  of  Recast  Directive 
2006/54)? ........................................................................................... 31 
8.9  Has  national  law  made  use  of  the  exceptions  for  self-employed  persons 
regarding matters of occupational social security as mentioned in Article 11 of 
Recast Directive 2006/54? Please describe relevant law and case law. ........ 31 
8.10  Is  Article  14(1)(a)  of  Recast  Directive  2006/54  implemented  in  national  law 
as regards self-employment? ................................................................. 31 
Goods and services (Directive 2004/113) ........................................................ 32 
9.1  Does national law prohibit direct and indirect discrimination on grounds of sex 
in access to goods and services? ............................................................ 32 
Is the material scope of national law relating to access to goods and services 
more  restricted  or broader than specified in Article 3 of Directive 2004/113? 
Please explain and refer to relevant case law, if any. ................................ 32 
9.3  Has national law applied the exceptions from the material scope as specified 
in  Article  3(3)  of  Directive  2004/113,  regarding  the  content  of  media, 
advertising and education? .................................................................... 32 
9.4  Have differences in treatment in the provision of the goods and services been 
justified  in  national  law  (see  Article  4(5)  of  Directive  2004/113)?  Please 
provide references to relevant law and case law. ...................................... 32 
9.5  Does national law ensure that the use of sex as a factor in the calculation of 
premiums  and  benefits  for  the  purposes  of  insurance  and  related  financial 
services  shall  not  result  in  differences  in  individuals'  premiums  and  benefits 
(see Article 5(1) of Directive 2004/113)? ................................................. 32 

9.2 

4 

9.6  How has the exception of Article 5(2) of Directive 2004/113 been interpreted 
in  your  country?  Please  report  on  the  implementation  of  the  C-236/09  Test-
Achats ruling in national legislation. ........................................................ 32 
9.7  Has  your  country  adopted  positive  action  measures  in  relation  to  access  to 
and the supply of goods and services (see Article 6 of Directive 2004/113)? 33 
9.8  Are  there  specific  problems  of  discrimination  on  the  grounds  of  pregnancy, 
maternity  or  parenthood  in  your  country  in  relation  to  access  to  and  the 
supply of goods and services? Please briefly describe relevant case law. ...... 33 
10.  Violence  against  women  and  domestic  violence  in  relation  to  the  Istanbul 
Convention .................................................................................................. 34 
10.1  Has your country ratified the Istanbul Convention? ................................... 34 
11.  Enforcement and compliance aspects (horizontal provisions of all directives) ....... 35 
11.1  Victimisation ........................................................................................ 35 
11.2  Burden of proof .................................................................................... 35 
11.3  Remedies and Sanctions ........................................................................ 35 
11.4  Access to courts ................................................................................... 36 
11.5  Equality body ....................................................................................... 37 
11.6  Social partners ..................................................................................... 37 
11.7  Collective agreements ........................................................................... 37 
12.  Overall assessment ...................................................................................... 38 

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1. 

Introduction 

1.1  Basic structure of the national legal system 

France  has  a  long-standing  tradition  of  legislating  in  favour  of  gender  equality  in  the 
domain of employment and professional life. The principle of equality between men and 
women was first recognized in 1946 in the Preamble to the French Constitution. The law 
of 11 February 1950 first regulated the principle of equal pay between men and women 
and  states  that  this  principle  has  to  be  inserted  in  collective  agreements.  In  1972,  in 
order to integrate the ILO Convention into the French system, the principle of equal pay 
for work of equal value for men and women was introduced into the Labour Code. Since 
then,  at  least  12  laws  have  been  adopted  dealing  with  gender  equality.  Despite  this 
important  legislative  framework,  the  implementation  of  the  European  Directives  on 
equality has had a very deep influence in pushing the French legislature to address new 
issues and to adopt new measures, sometimes with some important delay. For example, 
until  May  2008,  the  main  concepts  of  EU  gender  discrimination  law  had  not  been 
properly implemented in France, as French legislation included no legal definition of the 
concepts  of  direct  and  indirect  discrimination,  although  the  courts  have  applied  the 
European definitions in some gender case law.  

If we look at the basic structure of the French legal system, it is important to note that 
the principle of equality between women and men has a constitutional value. In the field 
of employment and professional life, most of the rules can be found in the Labour  Code 
in  the  part  dealing  with  discrimination  in  general  (Art.  L  1132-1  et  seq.  of  the  Labour 
Code) and in the part specifically dealing with gender equality at work (Art. L 1141-1 et 
seq.  of  the  Labour  Code).  The  Labour  Code  only  applies  to  private  employment 
relationships.  In  the  public  sector,  specific  regulations  apply,  usually  with  a  similar 
content. Therefore the  two supreme  courts in France, the  Cour de  cassation  for private 
law  and  the  Conseil  d’Etat  for  public  law,  apply  the  rules  on  gender  equality  and 
sometimes  with  slightly  different  assessments  of  cases.  It  seems,  for  example,  much 
more  difficult  for  the  Conseil  d’Etat  to  integrate  the  concept  of  indirect  discrimination 
than  for  the  Cour  de  cassation.  An  important  piece  of  this  legislative  framework  is  the 
Act adopted on 15 May 2008 (Act. No 2008-496) implementing the various directives on 
discrimination.  Among  other  elements,  the  Act  finally  defines  direct  and  indirect 
discrimination  and it  applies  to  public  and  private  relationships.  Some  provisions  of  the 
Criminal Code also deal with penal sanctions for discrimination.  

Outside  the  influence  of  the  European  Union,  gender  equality  policies  in  France  could 
also follow their own agenda. For example, various acts have been adopted with the aim 
of  implementing  parity  in  politics  and  other  decision-making  bodies.  One  of  the  most 
important and recent developments in gender  equality policy is the adoption of Act  No. 
2014-873, 4 August 2014, on real equality between men and women. This law promotes 
an ‘integrated and transversal approach to sex equality.’ 

1.2  List of the main legislation transposing and implementing Directives 

The following texts are available on the Legifrance website.1  

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- 

- 

Act No. 2016-1547, 18 November 2016, on Modernization of XXIst Century Justice; 
Act  No.  2016-1088,  8  August  2016  on  Labour,  Modernization  of  Social  Dialogue 
and Securization of Career Paths;  
Act  No.  2014-873,  4  August  2014,  on  real  equality  between  men  and  women,  JO 
No. 179, 5 August 2014, p. 12949; 

1   http://www.legifrance.gouv.fr/ accessed 10 June 2016.  

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- 

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- 

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Act  No.  2012-954,  6  August  2012,  on  sexual  harassment,  JO  No.  182,  7  August 
2012, p. 12921; 
Decree No. 2012-1061, 18 September 2012, modifying the rules on parental leave 
applicable to public servants, contractual civil servants, JO No. 218, 19 September 
2012, texte n°26;   
Act  No.  2011-103,  27  January  2011,  relating  to  a  Balanced  Participation  Between 
Men and Women on Company Boards, JO No. 23, 28 January 2011, p. 1680; 
Act No. 2011-334, 29 March 2011, on the Defender of Rights, JO No. 75, 30 March 
2011, p. 5504; 
Act No. 2010-1330, 9 November 2010, on the Reform of Pensions, JO No. 261, 19 
November 2010, p. 20034; 
Act  No.  2008-496,  27  May  2008,  implementing  the  various  directives  on 
discrimination, JO No. 123, 28 May 2008, p. 8801; 
Act No. 2007-1774, 17 December 2007, implementing various European provisions 
in economic and financial fields, JO No. 293, 18 December 2007 p. 20354; 
Act No. 2006-340, 23 March 2006, on Equal Pay between Men and Women, JO No. 
71, 24 March 2006 p. 4440; 
Act  No.  2004-1486,  30  December  2004,  creating  the  High  Authority  Against 
Discrimination and for Equality, JO No. 304, 31 December 2004, p. 22567; 
Act No. 2003-775 of 21 August 2003, Reforming Pensions, JO No. 193, 22 August 
2003, p. 14310; 
Act  No.  2001-1066,  16  November  2001,  concerning 
discrimination, JO No. 267, 17 November 2001, p. 18311; 
Act No. 2001-397, 9 May 2001, on Equality Between Men and Women, JO No. 108, 
10 May 2001, p. 7320; 
Act No. 83-635, 13 July 1983, the ‘Roudy’ Act, JO 14 July 1983, p. 2176; 
See also the Labour Code, Articles L.1131-1 to L.1134-4 concerning discrimination; 
Articles  L.1141-1  to  L.1144-3  concerning  equality  between  men  and  women; 
Articles L.1151-1 to L.1155-4 concerning harassment; Articles L.1225-1 to L.1225-
72  concerning  pregnancy,  maternity  protection,  and  maternity,  parental  and 
paternity  leave;  and  Articles  L.3221-1  to  L.3222-2  concerning  equal  pay  between 
women and men; 
See  also  the  Criminal  Code,  Articles  225-1  to  225-4;  Article  222-32;  Article  222-
33-2; and Article 432-7. 

fight  against 

the 

7 

 
2.  General legal framework 

2.1  Constitution 

2.1.1  Does your national Constitution prohibit sex discrimination?  

Yes.  According  to  the  Preamble  to  the  Constitution  of  27  October  1946,  ‘The  Law 
guarantees women equal rights to those of men in all spheres.’ 

2.1.2  Does the Constitution contain other Articles pertaining to equality between men 

and women? 

Yes.  According  to  Article  1  of  the  Constitution  ‘Statutes  shall  promote  equal  access  by 
women  and  men  to  elective  offices  and  posts  as  well  as  to  professional  and  social 
positions.’  This  paragraph  of  the  Constitution  was  first  introduced  in  1999  and  later 
modified in 2008 to allow positive actions in political elections (gender quotas in political 
decision making) and also in the professional sphere.   

2.1.3  Can  the  Article(s)  mentioned  in  the  two  previous  questions  be  invoked  in 

horizontal relations (between private parties)? 

Yes. 

2.2  Equal treatment legislation 

2.2.1  Does your country have specific equal treatment legislation? 

Yes.  The  Labour  Code  explicitly  prohibits  sex  discrimination  and  provides  for  equal 
treatment between men and women (Article L1132-1 and Articles L1142-1 et seq.). 

Other discrimination grounds are covered. Article L1132-1  of the Labour  Code prohibits 
discrimination  based  on  origin,  sex,  morals,  sexual  orientation  and identify,  age,  family 
situation or pregnancy, genetic characteristics, membership or non-membership, real or 
supposed, of an ethnicity, a nation or a race, political opinions, union activities, religious 
convictions,  physical  appearance,  family  name,  place  of  residence,  state  of  health  or 
disability.  This  list  is  regularly  modified  in  order  to  add  new  prohibited  grounds.  For 
example, in 2014 the ‘place of residence’ was added to the list. 

8 

 
 
 
 
 
 
 
 
 
 
 
 
 
3. 

Implementation of central concepts 

3.1  Sex/gender/transgender 

3.1.1  Are the terms gender/sex defined in your national legislation? 

No. 

3.1.2 

Is  discrimination  due  to  gender  reassignment  explicitly  prohibited  in  your 
national legislation?  

No.  Discrimination  based  on  gender  reassignment  is  not  explicitly  prohibited  in  French 
Law. However, the Labour Code prohibits discrimination based on the grounds of sexual 
identity.  In  a  decision  concerning  gender  reassignment  discrimination  (a  worker  was 
dismissed immediately after he informed his employer of his intention to undergo gender 
reassignment surgery), the High Authority for combating discrimination and for equality 
(now the Defender of Rights), referring to Directive 2006/54 and to its Recital 3, stated 
that discrimination based on gender reassignment is discrimination on the ground of sex 
and should be prohibited (deliberation No. 2008-29 of 18 February 2008).2  

3.2  Direct sex discrimination 

3.2.1 

Is direct sex discrimination explicitly prohibited in national legislation?  

Yes.  Article  1  of  the  Act  adopted  on  15  May  2008  defines  direct  discrimination  in 
accordance  with  the  European  definition.  The  Act  applies  to  public  and  private 
relationships.  According  to  this  Act,  there  is  direct  discrimination  where  one  person  is, 
has been or will be treated less favourably than another on the grounds of sex. The only 
difference between the French and the European definition is the use of ‘will be’ and not 
‘would be.’ However, this difference does not seem to be significant: the Courts interpret 
the French definition in compliance with its European counterpart and French judges find 
the existence of discrimination even with no comparator.  

Curiously,  the  definition  itself  has  not  been  integrated  into  the  Labour  Code  and  this 
could damage its visibility. 

3.2.2  Are pregnancy and maternity discrimination explicitly prohibited in legislation as 

forms of direct sex discrimination? 

Yes.  Article  L.  1132-1  of  the  Labour  Code  explicitly  prohibits  discrimination  on  the 
grounds  of  pregnancy.  Specific  articles  of  the  Labour  Code  also  prohibit  this 
discrimination (see Article L 1225-1 and L. 1225-2). These provisions comply with Article 
2(2)(c) of Directive 2006/54. 

3.2.3  Are there specific difficulties in your country in applying the concept of direct sex 
discrimination?  If  so,  please  explain  these  difficulties,  with  reference  to 
legislation and/or (national) case law if relevant 

No. 

2   http://www.defenseurdesdroits.fr/decisions/halde/HALDE_DEL_2008-29.pdf, last accessed 25 October 

2015. 

9 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
3.3  Indirect sex discrimination 

3.3.1 

Is indirect sex discrimination explicitly prohibited in national legislation?  

Yes.  Article  1  of  the  Act  adopted  on  15  May  2008  defines  indirect  discrimination  in 
accordance  with  the  European  definition.  According  to  this  Act,  the  following  constitute 
indirect discrimination: a provision, a criterion or a practice which is apparently neutral, 
but  which  could  disadvantage  a  person  on  the  grounds  of  sex  (and  other  prohibited 
criteria)  compared  with  other  persons,  unless  that  provision,  criterion  or  practice  is 
objectively  justified  by  a  legitimate  aim  and  the  means  of  achieving  that  aim  are 
appropriate and necessary. The French definition is similar to the European one. 

3.3.2 

Is  statistical  evidence  used  in  your  country  in order  to  establish  a  presumption 
of  indirect  sex  discrimination?  Please  provide  some  examples  of  cases,  if 
available. 

Until  recently  (2012),  there  have  been  very  few  cases  on  indirect  sex  discrimination. 
Statistical  evidence  can  be  used  and  is  sometimes  used  in  order  to  establish  a 
presumption of indirect sex discrimination. This has been done, for example, in Case no. 
10-2310  decided  by  the  Cour  de  cassation  on  3  July  2012,  where  the  French  Supreme 
Court  noted  that  in  the  company  in  question,  the  percentage  of  women  working  part 
time was about 81.45 %, while only 40 % of men were working part time. Of course, in 
this case, statistical evidence on part-time work was not difficult to establish.  

3.3.3 

Is  in  your  view  the  objective  justification  test  applied  correctly  by  national 
courts? Please provide some examples of cases, if available. 

Here again, as there are few cases on indirect discrimination, it is difficult to analyse how 
judges apply the objective justification test. It seems that they are applying it correctly 
(see,  for  example,  Cass.  Soc.  3  July  2012,  no.  10-23013  and  Cass.  Soc.  6  June  2012, 
no. 10-21489).  

However,  the  interpretation  by  the  Council  of  State  can  be  questionable  when  dealing 
with pension rights. Following the CJEU decision in July 2014 (Case C-173/13 Leone and 
Leone),  the  Conseil  d’Etat  has  reached  an  unexpected  decision  (27  March  2015, 
Quintanel,  no.  372426).  As  in  the  Leone  case,  the  decision  concerned  a  service  credit, 
which  is  determined  during  four  trimesters  and  awarded  for  the  calculation  of  the 
pension of any civil servant, for each child born or adopted prior to 1 January 2004, or 
taken into care before that date and nurtured for at least nine years, provided that the 
civil servant can demonstrate that he  or  she has taken a  career break for a continuous 
period  of  at  least  two  months,  in  the  form  of  maternity  leave,  adoption  leave,  parental 
leave, parental care leave or leave in order to be available to bring up a child of less than 
eight years  of age. The Conseil d’Etat used the same terms  as the  European Court and 
stated  that  if  the  CJEU  could  provide  guidance  to  enable  the  national  court  to  give  a 
judgment,  it  is  exclusively  for  the  national  judge  to  determine  whether  and  to  what 
extent the national provisions could be justified by a legitimate social policy. The Conseil 
d’Etat  then  proceeded  to  analyse  the  justification  for  and  the  proportionality  of  the 
measure  at  stake.  The  French  Government  considers  that  the  scheme  reflects  a 
legitimate aim as the purpose of the service credit in question is to compensate for the 
career-related  disadvantages  resulting  from  career  breaks  for  reasons  of  birth,  the 
arrival of an adoptive child in the home, or the raising of children. The CJEU rejected this 
argument  notably  because  maternity  and  adoption  leave  are  accompanied  by  the 
maintenance  of  acquired  pension  and  promotion  rights.  However,  according  to  the 
Conseil  d’Etat,  even  if  women  maintained  their  pension  and  promotion  rights  during 
maternity leave, the fact remains that women with one or more children progress slower 
in  their  careers  than  men,  and  their  pensions  are  lower.  Statistics  were  used  in  the 
decision to support this argument: without the service credit for a pension the difference 

10 

 
 
 
 
 
 
 
in the level of pensions between men and women would increase from 9.8 % to 12.7 % 
for one child; from 11.5 % to 17.3 % for two children; from 13.3 % to 19.3 % for three 
children; and from 23 % to 30 % for 4 children. The measure does  not aim to prevent 
unequal  treatment  but  to  partially  compensate  the  damage  and  harm  to  the  careers  of 
women. Another important element in the decision is the fact that the measure at stake 
is temporary as it is applied concerning children born, adopted, or taken into the home 
before  1  January  2004.  Thus  the  service  credit  scheme  for  pensions  can  be  objectively 
justified  by  a  legitimate  social  policy  aim,  and  it  is  both  appropriate  and  necessary  to 
achieve that aim. The Conseil d’Etat then analysed the scheme for early retirement with 
the immediate payment of a pension. Following exactly the same reasoning, the Conseil 
d’Etat came to the same conclusions on the early retirement scheme.  

Up  until  now,  the  Conseil  d’Etat  has  generally  avoided  considering  or  referring  to  the 
applicability  of  indirect  discrimination.  In  this  regard,  this  decision  is  important  as  the 
Conseil d’Etat directly refers to this concept, and analyses it using the same terms as the 
CJEU. If the decision does not formally contradict the decision of the CJEU and remains 
within the limits which the CJEU defined, the question is still open as to whether it is a 
correct  application  of  the  objective  justification  test.  The  Conseil  d’Etat  is  very  careful 
when justifying unequal treatment between men and women. The use of statistics clearly 
shows  that  the  differences  in  pensions  between  men  and  women  are  still  very  high. 
Paradoxically, the consequence of the Leone decision was to call into question those few 
rights  that  could  improve  the  position  of  women.  This  is  why  at  the  conclusion  of  the 
reasoning it seems that the Conseil d’Etat reached a balanced solution.  

3.3.4  Are there specific difficulties in your country in applying the concept  of indirect 
sex  discrimination?  If  so,  please  explain  these  difficulties,  with  reference  to 
legislation and/or (national) case law if relevant.  

The  Conseil  d’Etat  has  only  applied  the  concept  of  indirect  sex  discrimination  very 
recently and in a way which may seem to contradict the CJEU (see point 3.3.3). 

3.4  Multiple discrimination and intersectional discrimination 

3.4.1 

Is  multiple  discrimination  –  i.e.  discrimination  based  on  two  or  more  grounds 
simultaneously  –  and/or  intersectional  discrimination  –  i.e.  discrimination 
resulting  from  the  interaction  of  grounds  of  discrimination  which  interact  to 
produce  a  new  and  different  type  of  discrimination  -  explicitly  addressed  in 
national legislation? 

No. Legal scholars and also the Defender of Rights could refer to multiple discrimination 
but  there  are  no  pending  proposals  which  aim  to  incorporate  the  concept  of  multiple 
discrimination.  However,  it  seems  that  ‘there  is  scarce  research  and  no  specific  policy 
targeting  women  who  face  multiple  discrimination  and  their  access  to  employment  and 
economic independence. France seems to be lagging behind with respect to the analysis 
of intersectional discrimination that has been developed at the European level’ (Lépinard, 
E.,  Lieber,  E.  (2015),  The  Policy  on  Gender  Equality  in  France,  in  depth  analysis, 
European Parliament, Directorate General for Internal Policies department C PE 510.024)  

3.4.2 

Is  there  any  case 
intersectional discrimination (where gender is one of the grounds at stake)? 

law  that  addresses  multiple  discrimination  and/or 

Yes.  As  such,  there  is  no  relevant  case  law  referring  to  multiple  discrimination  or 
intersectional  discrimination.  However,  French 
law  prohibits  many  grounds  of 
discrimination  and  it  is  possible  to  combine  them  and  some  grounds  also  include  an 
overlap.  For  example,  the  Court  of  Appeal  of  Paris  has  recognized  discrimination  based 
on  one’s  state  of  health,  disability  and  trade  union  discrimination  (19  March  2015, 
n°12/10164,  12/10370)  Thus  some  case  law  could  be  interpreted  as  dealing  with 

11 

 
 
 
 
 
 
 
 
multiple  discrimination  (see  Cour  de  cassation  Soc.  3  Nov.  2011,  no.  10-20765  as 
interpreted  by  Mercat-Bruns,  M.  (2015),  ‘Les  discriminations  multiples  et  l’identité  au 
travail au croisement des questions d’égalité et de libertés’ Revue de droit du travail, p. 
28). 

3.5  Positive action 

3.5.1 

Is positive action explicitly allowed in national legislation?  

Yes.  The  Labour  Code  recognises  the  possibility  to  take  positive  action  through 
temporary measures laid down by decree  or by collective agreements at sectoral levels 
or  by  the  employer  when  establishing  a  plan  for  equality  between  men  and  women. 
Positive actions are defined as temporary measures which only benefit women with the 
aim  of  establishing  equal  opportunities  between  men  and  women  in  particular  in 
remedying  existing  inequalities  in  opportunities  between  men  and  women  (Article  L 
1142-4 of the Labour Code). The reform of the Constitution, adopted at the end of July 
2008, includes an amendment which facilitates positive actions and makes it possible to 
adopt  the  bill  on  the  representation  of  women  on  company  boards.  Article  L  1142-4  of 
the Labour Code seems to comply with the EU definition. 

3.5.2  Are there specific difficulties in your country in relation to positive action? If so, 
please  explain  these  difficulties,  with  reference  to  legislation  and/or  (national) 
case law if relevant. 

No. 

3.5.3  Has your country adopted measures that aim to improve the gender balance in 

company boards? 

Yes. The Bill aiming at improving gender balance on company boards was adopted on 27 
January  2011  (Act  No  2011-103).  The  bill  intends  to  improve  the  representation  of 
women  on  company  boards  and  it  imposes  a  quota.  Firms  which  have  more  than  500 
employees and revenue of over EUR 50 million have to ensure that each sex has at least 
20 % of boardroom seats by 2014, and 40 % by 2017. 

3.5.4  Has your country adopted other positive action measures to improve the gender 
balance  in  some  fields,  e.g.  in  political  candidate  lists  or  political  bodies?  If  so, 
please describe these measures.  

France  has  adopted  various  provisions  in  order  to  improve  gender  balance  in  political 
elections  and  also  in  various  other  fields.  Regarding  political  candidate  lists,  the  rules 
depend  on  the  type  of  elections.  For  example,  for  the  departmental  elections,  for  the 
first  time  this  year  the  law  states  that  there  must  be  two  candidates  for  each 
departmental  district,  a  man  and  a  woman.  Since  2000,  the  law  states  that  all  political 
parties  should  include  equal  numbers  of  men  and  women  on  party  lists  for  those 
elections conducted via proportional representation (European Parliament, municipal and 
regional  elections).  For  elections  to  the  National  Assembly,  political  parties  shall  also 
present the same number of candidates for each sex and non-compliance with that rule 
will  result  in  a  financial  penalty.  The  problem  here  is  that  it  does  not  impede  political 
parties from providing women with unwinnable seats. 

In 2012, a new law was also introduced imposing a 40 % gender quota to be reached by 
2018  for  nominations  to  executive  functions  in  the  public  service.  This  quota  applies  to 
administrative  and  supervisory  boards  of  public  institutions,  high  councils,  juries  and 
selection committees in public service procedures.  

12 

 
 
 
 
 
 
 
 
 
 
 
The 2014 Act for real equality has extended quotas to civil society organizations such as 
sport federations. 

Finally,  Act  No.  2015-994,  of  17  August  2015  on  social  dialogue  and  employment  also 
contains  some  provisions  regarding  parity  in  the  elections  of  workers’  representatives. 
The  lists  of  candidates  being  proposed  for  these  representative  positions  should  reflect 
the  gender  balance  of  the  employees  represented.  Thus  the  list  should  represent  the 
same proportion of men and women as the proportion of the electoral college.   

3.6  Harassment and sexual harassment 

3.6.1 

Is harassment explicitly prohibited in national legislation? 

Yes. At first, harassment was not defined in relation to discrimination. Thus, according to 
Article  L.1152-1  of  the  Labour  Code,  employees  shall  not  be  subjected  to  repeated 
actions  constituting  moral  harassment  the  aim  or  effect  of  which  may  result  in  a 
deterioration  of  their  working  conditions  and  which  are  likely  to  violate  their  rights  and 
dignity, impair their physical or mental health, or jeopardize their professional future. 

Article 1 of the 2008 Act adds a new definition, as required by EU law. According to this 
Article,  discrimination  includes  ‘any  action  relating  to  one  of  the  reasons  mentioned  in 
the first paragraph (including sex) and any action with a sexual connotation, to which a 
person  is  subjected,  with  the  purpose  or  effect  of  violating  their  dignity  or  creating  a 
hostile,  degrading,  humiliating  or  offensive  environment.’  This  definition  complies  with 
the  EU  definition.  The  2008  Act  has  not  repealed  the  existing  definition.  As  a  result, 
there are now two different definitions of moral harassment under French law, which are 
applicable in different circumstances.  

Since  the  Rebsamen  Law  of  17  August  2015,  sexist  behaviours  are  also  prohibited. 
Sexist behaviours are defined as every behaviour based on gender, with the purpose or 
effect  of  harming  dignity  or  creating  an  intimidating,  hostile,  degrading,  humiliating  or 
offensive work environment (see Article L.1142-2-1 of the Labour Code) 

3.6.2 

Please  specify  the  scope  of  the  prohibition  on  harassment  (e.g.  does  it  cover 
employment and access to goods and services; is it broader?). 

Article  1  of  the  2008  Act  has  the  same  scope  as  Directives  2006/54/EC  and 
2004/113/EC.  It covers working conditions (including access to employment, vocational 
training and promotion), the private and the public sector, and it now also covers access 
to  and  the  supply  of  goods  and  services.  Otherwise  moral  harassment  (not  defined  in 
relation  to  sex  discrimination)  has  a  broader  scope  and  is  prohibited  in  general  (Article 
222-33-2-2  of  the  Criminal  Code)  and  in  particular  in  family  relationships  (Article  222-
33-2-1). 

3.6.3 

Is sexual harassment explicitly prohibited in national legislation? 

Yes.  A  first  definition  of  sexual  harassment  was  found  to  be  unconstitutional  by  the 
French Constitutional Court, which stated that the definition was not sufficiently clear or 
precise (CC 4 May 2012, QPC, No. 2012-240). This decision came as a bombshell, as it 
removed  the  prohibition  on  sexual  harassment  from  the  French  Criminal  Code.  This 
decision and more importantly its consequences were clearly unexpected, as the decision 
left  a  legal  vacuum  in  the  Criminal  Code,  given  its  immediate  effect.  The  main 
consequence of this decision was that as from the date of its publication no one could be 
convicted  or  punished  on  the  ground  of  sexual  harassment,  as  the  offence  no  longer 
existed,  and  alleged  offenders  were  systematically  discharged.  The  new  French 
legislature  quickly  addressed  this  issue  and  a  new  law  was  adopted  in  August  2012.  It 
includes a new definition of sexual harassment which is very similar to the European one 

13 

 
 
 
 
 
 
 
 
 
 
(see  Article  222-33  of  the  Penal  Code  and  Article  L.  1153-1  of  the  Labour  Code).  The 
new law defines harassment as imposing on someone, in a repeated  manner, words  or 
actions that have a sexual connotation and either affecting the person’s dignity because 
of their degrading or humiliating nature or putting him or her in an intimidating, hostile 
or offensive situation. One single act can also give rise to prosecution where someone is 
using any kind of serious pressure, with the real or visible goal of obtaining an act of a 
sexual nature. 

3.6.4 

Please  specify  the  scope  of  the  prohibition  on  sexual  harassment  (e.g.  does  it 
cover employment and access to good and services; is it broader?). 

The  Criminal  Code  prohibits  sexual  harassment  in  general  and  not  only  in  employment 
relationships  (see  Article  222-33)  and  therefore  it  also  covers  access  to  goods  and 
services.  

3.6.5  Does national legislation specify that harassment and sexual harassment as well 
as  any  less  favourable  treatment  based  on  the  person’s  rejection  of  or 
submission  to  such  conduct  amounts  to  discrimination  (see  Article  2(2)(a)  of 
Directive 2006/54)?  

Article 3 of the 2008 Act states that any less  favourable treatment cannot be based  on 
the person’s rejection of or submission to such conduct. 

3.7  Instruction to discriminate 

3.7.1 

Is an instruction to discriminate explicitly prohibited in national legislation? 

Yes. Article 1 of the 2008 Act states that discrimination includes instructing someone to 
discriminate. 

3.7.2  Are  there  specific  difficulties  in  your  country  in  relation  to  the  concept  of 
instruction to discriminate? If so, please explain these difficulties, with reference 
to legislation and/or (national) case law if relevant. 

No. 

3.8  Other forms of discrimination 

Are  any  other  forms  of  discrimination  prohibited  in  national  law,  such  as  discrimination 
by association or assumed discrimination? 

Discrimination by association or assumed discrimination are not explicitly prohibited, but 
the  list  of  prohibited  grounds  is  long  and  can  be  used  to  prohibit  these  types  of 
discrimination. 

14 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
4. 

Equal  pay  and  equal  treatment  at  work  (Article  157  TFEU  and  Recast 
Directive 2006/54) 

4.1  Equal pay 

4.1.1 

Is the principle of equal pay for equal work or work of equal value implemented 
in national legislation? 

Yes. Article L. 3221-2 of the Labour Code provides for equal pay for men and women ‘for 
the same job or a job of equal value.’ 

4.1.2 

Is the concept of pay defined in national legislation? 

Yes. Article L. 3221-3 of the Labour Code provides exactly the same definition of pay as 
Article  157(2)  TFEU.  According  to  the  Labour  Code,  pay  means  the  ordinary  basic  or 
minimum wage or salary and any other consideration, whether in cash or in kind, which 
the worker receives directly or indirectly, in respect of his or her employment, from his 
or her employer. 

4.1.3  Does  national  law  explicitly  implement  Article  4  of  Recast  Directive  2006/54 
(prohibition of direct and indirect discrimination on grounds of sex with regard to 
all aspects and conditions of remuneration)? 

Yes.  Article  L  1132-1  of  the  Labour  Code  prohibits  direct  and  indirect  discrimination  on 
the grounds of sex in all aspects of employment and professional life, explicitly including 
remuneration.  Article  L3221-6  of  the  Labour  Code  also  states  that  a  job  classification 
system  shall  be  based  on  rules  allowing  for  the  implementation  of  the  equal  pay 
principle. 

4.1.4 

Is a comparator required in national law as regards equal pay? 

No. For the Cour de cassation, ‘the existence of discrimination does not necessarily imply 
a  comparison  with  other  workers.’3  Therefore,  there  is  not  really  any  need  for  a 
hypothetical comparator.  

4.1.5  Does  national  law  lay  down  parameters  for  establishing  the  equal  value  of  the 
work  performed,  such  as  the  nature  of  the  work,  training  and  working 
conditions?  

Yes.  According  to  Article  L3221-4  of  the  Labour  Code,  in  order  to  establish  the  equal 
value  of  a  job  the  parameters  which  could  be  taken  into  account  are  the  following:  a 
title,  diploma,  professional  experience,  responsibilities,  physical  or  mental  stress.  This 
list is not exhaustive. 

4.1.6  Does national (case) law address wage transparency in any way? 

Yes.  One  of  the  most  important  measures  obliging  employers  to  address  the  issue  of 
equal  pay  is  the  information  they  have  to  give  to  workers’  representatives  (works 
councils and trade union representatives) on equality. Businesses employing 50 or more 
staff  have  to  produce  a  written  annual  report  for  the  works  council  comparing  the 
situation of men and women in the company. This must comprise a comparative analysis 
in  terms  of  recruitment,  training,  qualifications,  pay,  working  conditions  and  a  balance 
between  professional  and  private  life,  supported  with  relevant  statistically-based 
indicators (Article L2323-17, Article L2323-8 and R.2323-12 of the Labour Code). 

3   See, for example, Cass. Soc. 12 June 2013, no. 12-14153, http://www.legifrance.gouv.fr/ accessed 19 

October 2015. 

15 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
The  employer  has  to  record  measures  taken  in  the  company  over  the  previous  year  to 
attain  employment  equality,  and  an  outline  of  the  objectives  for  the  year  ahead.  The 
publication of relevant indicators in the workplace is mandatory according to the law, so 
as to enable the report to be analysed in detail.  

Employers  also  have  to  provide  information  on  equality  in  annual  negotiations.  They 
have  to  give  month-by-month  data  on  trends  regarding  the  number  of  staff  and  their 
qualifications  according  to  sex,  and  to  state  the  number  of  employees  on  permanent 
contracts,  the  number  of  fixed-term  contracts  and  the  number  of  part-time  employees 
(Article L2242-5 of the Labour Code). 

At the first meeting in compliance with the annual obligation for unions and employers to 
negotiate  at  enterprise  level,  the  employer  has  to  provide  trade  union  representatives 
with information that enables them to carry  out a comparative analysis of the  situation 
of men and women in jobs, qualifications, pay, the hours worked and the organisation of 
working time. The accompanying information has to explain the situation reflected in the 
statistics.  Companies  with  fewer  than  300  employees  can  conclude  an  agreement  with 
the  State  to  receive  financial  assistance  to  carry  out  a  study  of  their  employment 
equality  situation  and  of  the  measures  they  would  need  to  take  to  ensure  equal 
opportunities between men and women (Article R 1143-1 of the Labour Code). 

4.1.7 

Is  the  European  Commission’s  Recommendation  of  7  March  2014  on 
strengthening  the  principle  of  equal  pay  between  men  and  women  through 
transparency applied in your country? If so, how? 

Most of the recommendations of the European Commission have been adopted by France 
(see point 4.1.6.). Therefore there was no need to revise the law in order to implement 
it. 

4.1.8  Which  justifications  for  pay  differences  are  allowed  in  legislation  and/or  case 

law? 

Pay  differentials  can  only  be  justified  if  the  work  is  not  of  the  same  value.  Therefore 
judges concentrate on the value of jobs and not really on the justification in the context 
of sex discrimination.  

4.1.9  Are  there  specific  difficulties  related  to  the  application  of  the  principle  of  equal 
pay for equal work and work of equal value in practice? For example in case of 
out-sourcing? 

Of  course,  the  application  of  the  principle  of  equal  pay  for  equal  work  is  difficult  in 
general  and  a  very  limited  number  of  victims  actually  lodge  complaints  for  various 
reasons. 

Judgment of the Cour de Cassation of 12 February 1997, No. 95-41694: The Court was 
faced with an equal pay claim from a female mushroom packer comparing her work with 
more  highly  paid  male  packers.  The  Court  stated  that  it  was  clear  that  women  packers 
were  systematically  paid  less  than  their  male  counterparts.  For  the  Cour  de  cassation, 
men  and  women  were  doing  the  same  work  and  the  employer  could  not  give  any 
objective reasons for paying them differently. 

Judgment of the Cour de Cassation of 6 July 2010, No. 09-40021: In this case, a female 
employee held the position of ‘Human Resources, Legal and Office Department Manager.’ 
Following her dismissal, the employee decided to file a claim for back pay on the grounds 
that there had been sexual discrimination against her. The employee provided evidence 
that her salary, despite an equal classification, and more seniority than her direct male 
colleagues,  was  substantially  lower  than  that  of  her  male  colleagues.  For  the  French 

16 

 
 
 
 
 
 
 
 
 
 
Supreme  Court,  the  functions  of  the  employee  and  those  of  her  direct  colleagues  were 
identical  as  to  their  hierarchical level,  classification  and  responsibilities.  Moreover,  their 
importance  was  comparable  with  regard  to  the  functioning  of  the  company,  as  each  of 
the  managerial  positions  required  comparable  qualifications  and  involved  a  comparable 
level of stress. The French Supreme Court concluded that the employees performed work 
of equal value. 

Judgment of the Cour de Cassation of 22 October 2014, No. 13-18362. Here again, the 
decision  concerned  a  female  employee  who  held  the  position  of  ‘Human  Resources 
Manager’  and  who  claimed  that  she  was  paid  less  than  male  colleagues,  who  were 
members of the executive board. The Cour de Cassation decided that the decision of the 
Court of Appeal was not well founded and it did not compare the situation of the woman 
in  terms  of  functions  and  responsibilities  to  find  that  the  jobs  compared  were  not  of 
equal value (also see Cour de Cassation of 25 March 2015, No. 14-10149). The case was 
then referred back to the Court of Appeal. 

4.2  Access to work and working conditions 

4.2.1 

Is  the  personal  scope  in  relation  to  access  to  employment,  vocational  training, 
working  conditions  etc.  defined  in  national  law  (see  Article  14  of  Directive 
2006/54)? 

Yes. Article 5 of the 2008 Act states that the Act applies to all private and public bodies. 

Traditionally, there is no legal definition of a worker. 

4.2.2 

Is  the  material  scope  in  relation  to  (access  to)  employment  defined  in  national 
law (see Article 14(1) of the Recast Directive 2006/54)? 

Yes. The protection of employees from sex discrimination covers every aspect of working 
life.  Article  L1131-1  of  the  Labour  Code  covers  hiring  practices,  training,  remuneration, 
appointment,  promotion,  transfer,  classification  of  qualifications,  the  renewal  of 
contracts, redeployment and dismissals 

4.2.3  Has the exception on occupational activities been implemented into national law 

(see Article 14(2) of Recast Directive 2006/54)? 

Yes.  Article  L.1142-2  states  that  the  prohibition  of  discrimination  does  not  apply  when 
the  sex  of  the  worker  constitutes  a  determining  factor  in  employment  and  that  the 
objective sought is proportionate and the exception is also proportionate. Article R1142-
1 of the Labour Code has also defined the types of employment concerned: it only covers 
actors  and  models.  Some  other  exceptions  existed  on  submarines  and  in  some  specific 
police forces. These jobs have finally been opened to women.  

4.2.4  Has the  exception on protection for women, in particular as regards pregnancy 
and  maternity,  been  implemented  in  national  law  (see  Article  28(1)  of  Recast 
Directive 2006/54)? 

The exception as such has not been implemented but, of course, it does not impede the 
definition of some specific rules for pregnant women (see 5.1.2 of this report). 

4.2.5  Are there particular difficulties related to the personal and/or material scope of 
national  law  in  relation  to  access  to  work,  vocational  training,  employment, 
working conditions etc.?  

There  are  no  particular  difficulties  related  to  the  personal  or  material  scope  of  French 
Law. 

17 

 
 
 
 
 
 
 
 
 
 
 
 
 
5. 

Pregnancy,  maternity,  and  leave  related  to  work-life  balance  (Directive 
92/85, relevant provisions of the Directives 2006/54 and 2010/18) 

5.1  Pregnancy and maternity protection 

5.1.1  Does national law define a pregnant worker? 

No.  

5.1.2  Are  the  protective  measures  mentioned  in  the  Articles  4-7  of  Directive  92/85 

implemented in national law? 

Yes.  Article  L  1225-7  of  the  Labour  Code  states  that  a  pregnant  woman  can  be 
temporarily  assigned  to  another  job  if  this  is  necessary.  Article  L1225-9  of  the  Labour 
Code also provides that a pregnant woman can be asked to work during the day, during 
her  pregnancy  and  after  her  maternity  leave.  She  has  to  be  transferred  to  day  work  if 
the  company  doctor  states  that  night  work  is  incompatible  with  her  pregnancy.  This 
protection can be extended after her maternity leave when required and for a maximum 
of  one  month.  This  change  cannot  have  any  consequences  for  her  wages.  According  to 
Article  L1225-6,  when  this  transfer  is  not  possible,  the  employer  must  inform  her  and 
the  company  doctor  about  this  impossibility  and  the  reasons  why  it  is  not  possible  to 
transfer her. In this case, the contract of employment is suspended with no modification 
of her remuneration. Article L1225-12 also provides for specific protection in the case of 
exposure to specific risks. The principles are the same as for night work. The protection 
granted by French law complies with the requirements of the Directive. 

5.1.3 

Is dismissal prohibited in national law from the beginning of the pregnancy until 
the end of the maternity leave (see Article 10(1) of Directive 92/85)? 

Yes.  Article  L  1225-4  of  the  Labour  Code  prohibits  the  dismissal  of  an  employee  when 
she  has  been  medically  certified  as  being  pregnant.  The  dismissal  will  also  be  null  and 
void  if  the  employee  sends  a  certificate  proclaiming  her  pregnancy  in  the  two  weeks 
following  the  notification  of  her  dismissal.  The  prohibition  on  dismissing  a  pregnant 
employee  also  applies  during  maternity  leave  and  during  the  following  four  weeks.  A 
dismissal is only possible in the case of gross misconduct which is not connected to her 
condition  or  if  the  employer  cannot  maintain  the  contract  of  employment  for  a  reason 
not connected to her condition. In any case, the dismissal cannot be notified during the 
periods  of  the  suspension  of  the  contract  of  employment.  Thus  an  employee  cannot  be 
made redundant during maternity leave.  

5.1.4 

In cases of dismissal from the beginning of pregnancy until the end of maternity 
leave,  is  the  employer  obliged  to  indicate  substantiated  grounds  for  the 
dismissal in writing (see Article 10(2) of Directive 92/85)? 

Yes. According to the general and procedural rules on dismissal, the employer is obliged 
to  indicate  the  grounds  for  the  dismissal  in  the  letter  notifying  the  employee  of  the 
dismissal (Article L1232-2). 

5.2  Maternity leave 

5.2.1  How  long  (in  days  or  weeks)  is  maternity  leave?  Please  specify  the  relevant 

legislation and Article(s). 

The period of maternity leave is six weeks before the presumed date of confinement and 
ten  weeks  thereafter  (Article  L  1225-17);  the  same  provisions  apply  to  civil  servants 
(Article 34 of the 1984 Act, No. 84-16). 

18 

 
 
 
 
 
 
 
 
 
 
 
 
5.2.2 

Is there an obligatory period of maternity leave before and/or after birth? 

Yes.  The  obligatory  period  of  maternity  leave  is  eight  weeks,  with  a  minimum  of  six 
weeks after the birth (L1225-29 of the Labour Code). 

5.2.3 

Is  there  a  legal  provision  insuring  that  the  employment  rights  relating  to  the 
employment contract are ensured in the cases referred to in Articles 5, 6 and 7 
of Directive 92/85?  

Yes. According to Articles L1225-7, L1225-9, L1225-10 and L1225-13, in the case of the 
suspension of the contract of employment or a change of job during the pregnancy, the 
wage should be maintained. 

5.2.4 

Is  there  a  legal  provision  that  ensures  the  employment  rights  relating  to  the 
employment  contract  (including  pay  or  an  adequate  allowance)  during  the 
pregnancy and maternity leave? 

Yes. During pregnancy Articles L1225-7, L1225-9, L1225-10 and L1225-13 of the Labour 
Code  ensure  the  employment  rights  of  a  pregnant  woman.  During  her  maternity leave, 
the  worker  is  entitled  to  maternity  benefits  subject  to  the  condition  that  she  has  been 
registered under the social security system for at least ten months on the presumed date 
of confinement (Article L331-3 of the Social Security Code). The amount of the maternity 
benefit  is  calculated  on  the  basis  of  the  average  salary  received  over  the  last  three 
months.  Many  collective  agreements  nevertheless  provide  that  the  worker  receives  full 
pay  during  maternity  leave.  The  wages  must  be  increased  after  the  maternity  leave  in 
order  to  follow  any  general  increases  received  by  individual  co-workers  of  the  same 
category  during  the  period  of  the  employee’s  leave.  In  general,  the  worker  is  also 
entitled to all the advantages which have occurred during her leave that she would have 
been  entitled  to  if  she  had  not  taken  maternity  leave.  She  is  entitled  to  normal  paid 
leave and to the normal rights to vocational training as if she had not been absent. 

5.2.5 

Is  pay  or  an  allowance  during  the  pregnancy  and  maternity  leave  at  the  same 
level as sick leave or is it higher? 

The allowance during pregnancy is higher than the allowance in the case of sick leave, as 
the amount of the maternity benefit is based on the average salary (with a ceiling). Thus 
the maternity leave is 100 % of the average wage of the woman concerned up until the 
ceiling of EUR 82.32 per day. 

5.2.6  Are  statutory  maternity  benefits  supplemented  by  some  employers  up  to  the 

normal remuneration? 

Yes.  Many  collective  agreements  provide  that  the  worker  receives  full  pay  during 
maternity leave. In this case, wages are paid directly by the employer to the worker, and 
the social security system reimburses the employer. 

5.2.7  Are  there  conditions  for  eligibility  for  benefits  applicable  in  national  legislation 

(see Article 11(4) of Directive 92/85)? 

Yes. In order to be eligible for benefits, pregnant women have to be registered under the 
social security system for at least ten months on the presumed date of confinement and 
have worked at least 150 hours during the last three months before the beginning of the 
pregnancy  or  have  paid  social  contributions  on  a  wage  of  at  least  equal  to  1015  times 
the minimum hourly wage (R. 313-2 et seq. of the Social Security Code). 

5.2.8 

In  national  law,  is  there  a  provision  that  guarantees  the  right  of  a  woman  to 
return  after  maternity  leave  to  her  job  or  to  an  equivalent  job,  on  terms  and 

19 

 
 
 
 
 
 
 
 
 
 
 
 
conditions  that  are  no  less  favourable  to  her,  and  to  benefit  from  any 
improvement  in  working  conditions  to  which  she  would  have  been  entitled 
during her absence (see Article 15 of Directive 2006/54)? 

Yes.  According  to  Article  L  1225-25  of  the  Labour  Code  the  employee  has  the  right  to 
return  to  the  same  or  similar  job  after  maternity  leave  with  at  least  a  similar 
remuneration.  The  wages  must  also  be  increased  after  the  maternity  leave  in  order  to 
follow  any  general  increases  received  by  individual  co-workers  of  the  same  category 
during  the  period  of  the  employee’s  leave.  In  general,  the  worker  is  also  entitled  to  all 
the advantages which have occurred during her leave that she would have been entitled 
to if she had not taken maternity leave. She is entitled to normal paid leave and to the 
normal rights to vocational training as if she had not been absent. 

5.3  Adoption leave 

5.3.1  Does national legislation provide for adoption leave? 

Yes.  Adoption  leave  is  10  weeks,  or  22  weeks  for  the  adoption  of  more  than  one  child 
(Article  L1225-37  of  the  Labour  Code).  The  allowance  is  the  same  as  in  the  case  of 
maternity leave and the conditions are the same. 

5.3.2  Does national legislation provide for protection against dismissal of workers who 
take  adoption  leave  and/or  specify  their  rights  after  the  end  of  adoption  leave 
(see Article 16 of Directive 2006/54)? 

Yes.  According  to  Article  L1225-38,  the  parents  have  the  same  protection  against 
dismissal as women  on maternity leave and they  also have the same  right to return to 
the  same  or  similar  job  (L.1225-43).  The  same  rules  also  apply  to  wages.  The  parent 
shall benefit from any improvement in working conditions to which she or he would have 
been entitled during her or his absence. 

5.4  Parental leave 

5.4.1  Has Directive 2010/18 been explicitly implemented in your country?  

Yes.  The  only  measure  implementing  Directive  2010/18  is  a  Decree  adopted  on  18 
September 2012, No.  2012-1061, which modifies the rules for parental leave for public 
servants. The Decree recognises parental leave as an individual right. Before this, in the 
case of public servants the mother and the father could take the parental leave or could 
share it but could not take it simultaneously. This is now possible. 

5.4.2 

Is  the  national  legislation  applicable  to  both  the  public  and  the  private  sector 
(see Clause 1 of Directive 2010/18)? 

The national legislation applies to both the public and the private sector. 

5.4.3  Does  the  scope  of  the  national  transposing  legislation  include  contracts  of 
employment  or  employment  relationships  related  to  part-time  workers,  fixed-
term contract workers or persons with a contract of employment or employment 
relationship with a temporary agency? 

French  legislation  applies  to  part-time  workers,  fixed-term  contracts  and  temporary 
workers (but there is a condition of seniority which makes it difficult for them to exercise 
this right). 

20 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.4.4  What is the total duration of parental leave? If the provisions regarding duration 
differ between the public and the private sector, please address the two sectors 
separately.  

The duration of parental leave is the same in the public and in the private sector even if 
two different types of legislation are applicable. The initial period of parental leave is one 
year  and  it  can  be  renewed  twice  until  the  child  is  three  years  old.  In  the  case  of 
adoption,  parental  leave  can  also  last  for  a  maximum  of  three  years  after  the  child’s 
arrival if the child was younger than three when adopted. In other cases, parental leave  
is for a maximum of one year. 

5.4.5 

Is the right of parental leave individual for each of the parents? 

The  right  to  parental  leave  is  an  individual  right  and  it  can  be  taken  by  both  parents. 
Parental  leave  is  not  available  in  the  case  of  surrogacy,  as  surrogacy  is  not  legal  in 
France. 

5.4.6  What form  can parental leave take (full-time or part-time, piecemeal, or in the 
form of a time-credit system)? Do the various available options allow taking into 
account  the  needs  of  both  employers  and  workers  and  if  so,  how  is  that  done 
(see Clause 3 of Directive 2010/18)? 

Parental leave can be granted on a full-time or part-time basis, although part-time leave 
must allow for at least 16 working hours per week. 

5.4.7 

Is  there  a  notice  period  and  if  so,  how  long  is  it?  Does  the  national  legislation 
take sufficient account of the interests of workers and of employers in specifying 
the  length  of  such  notice  periods  and  how  is  that  done?  (see  Clause  3  of 
Directive 2010/18)? 

The  employee  must  inform  her/his  employer  of  the  starting  date  and  the  intended 
duration  of  the  period  during  which  he/she  intends  to  benefit  from  the  parental  leave 
either  on  a  full-time  or  part-time  basis.  When  parental  leave  is  taken  immediately 
following the maternity or adoption leave, the employee shall provide this information at 
least  one  month  before  the  beginning  of  the  leave  (two  months  for  public  servants), 
otherwise  this  information  must  be  given  at  least  two  months  beforehand.  When  an 
employee  wants  to  extend  her/his  parental  leave  or  to  take  it  full  time  (if  the  parental 
leave was initially part time) or part time, he/she must inform the employer one month 
before  the  initial term.  When  the  parental leave  is  on  a  part-time  basis,  the  number  of 
hours worked per week cannot be modified without the employer’s approval unless this 
is  explicitly  provided  by  a  collective  agreement  (Article  L.1225-51  of  the  Labour  Code). 
Determining  the  work  schedule  is  a  task  for  the  employer  which  is  a  way  to  take  into 
account the needs of both employers and workers. 

5.4.8  Did  the  Government  take  measures  to  address  the  specific  needs  of  adoptive 

parents (see Clause 4 of Directive 2010/18)? 

The  Government  did  not  take  any  specific  measures  but  the  adoption  leave  is  very 
similar to maternity leave. 

5.4.9 

Is  there  a  work  and/or  length  of  service  requirement  in  order  to  benefit  from 
parental leave?  

Yes. The length of service requirement in order to benefit from parental leave is one year 
before the birth of a child. In the case of successive fixed-term contracts with the same 
employer, the sum of these contracts is taken into account for the purpose of calculating 
the qualifying period. For public servants, there is no length of service condition. 

21 

 
 
 
 
 
 
 
 
 
 
 
5.4.10  Are there situations where the granting of parental leave may be postponed for 

justifiable reasons related to the operation of the organisation? 

Parental leave cannot be refused on any grounds, and there are no specific provisions for 
small firms. 

5.4.11  Are there special arrangements for small firms? 

No.  

5.4.12  Are  there  any  special  rules/exceptional  conditions  for  access  and  modalities  of 
application of parental leave to the needs of parents of children with a disability 
or a long-term illness? 

Yes.  If  a  child  is  seriously  ill  or  disabled,  parental  leave  can  be  extended  by  a  year 
(Article L1225-48 of the Labour Code).  

5.4.13  Are  there  provisions  to  protect  workers  against  less  favourable  treatment  or 
dismissal  on  the  grounds  of  an  application  for,  or  the  taking  of,  parental  leave 
(see Clause 5 of Directive 2010/18)? 

No. During parental leave, the employment contract is suspended. The employer cannot 
dismiss a worker because he/she is on parental leave. Even if this right is not expressly 
recognized  in  the  Labour  Code,  the  Cour  de  cassation  uses  the  articles  of  the  Labour 
Code  on  parental  leave  to  state  that  the  reason  to  dismiss  should  not  be  linked  to 
parental  leave.  It  could  also  be  possible  to  consider  that  being  on  parental  leave  could 
not be considered as a genuine and serious reason for dismissal (Cass. Soc. 18 October 
1989, No. 87-45724, and Cass. Soc. 12 February 1997, No. 93-42510). 

5.4.14  Do workers benefitting from parental leave have the right to return to the same 
job or, if this is not possible, to an equivalent or similar job consistent with their 
employment contract or relationship? 

After parental leave, the worker has the right to return to the same job or, if this is not 
possible,  to  an  equivalent  or  similar  job,  where  the  same  advantages  apply  as  before. 
She/he  also  has  the  right  to  training  if  working  techniques  or  methods  have  changed. 
The employer should offer the possibility of a special interview after the period of leave 
in order to discuss the worker’s career path. 

5.4.15  Are  rights  acquired  or  in  the  process  of  being  acquired  by  the  worker  on  the 
date  on  which  parental  leave  starts  maintained  as  they  stand  until  the  end  of 
the parental leave? 

The  rights  acquired  or  in  the  process  of  being  acquired  by  the  worker  on  the  date  on 
which parental leave starts are maintained as they continue to apply until the end of the 
parental  leave.  During  the  leave,  half  of  the  seniority  rights  will  accumulate.  This 
measure intends to limit some of the consequences of the suspension of the contract of 
employment during parental leave. 

5.4.16  What  is  the  status  of  the  employment  contract  or  employment  relationship  for 

the period of the parental leave? 

The contract of employment is suspended during the period of the parental leave. 

5.4.17  Is  there  continuity  of  the  entitlements  to  social  security  cover  under  the 

different schemes, in particular healthcare, during the period of parental leave? 

22 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
There is a continuity of the entitlements to social security cover, in particular healthcare 
and maternity during the parental leave. During parental leave, workers are still covered 
by the social security system for healthcare and maternity. 

5.4.18  Is parental leave  remunerated by the  employer?  If so, how much and in which 

sectors?  

Parental  leave  is  not  remunerated  by  the  employer.  However,  there  are  some 
mechanisms that could help finance some of the leave. For example, some ‘time-saving 
schemes’ which are widely included in collective agreements allow for blocks of time off 
to be saved up which may be used as parental leave (in this case a short one). 

5.4.19  Does the social security system in your country provide for an allowance during 

parental leave? If so, how much and in which sectors? 

The  social  security  system  provides  for  an  allowance  during  some  of  the  period  of 
parental  leave.  A  childcare  allowance  called  the  ‘supplement  for  free  choice  of  working 
time’ (Complément de libre choix d’activité; here referred to as the ‘CLCA’), paid by the 
National Family Allowance Fund, is available to parents who choose to take partial or full 
leave during these three years. The CLCA is paid for six months for a family’s first child. 
This  CLCA  is  paid  for  a  further  six  months  for  a  family’s  first  child  if  the  other  parent 
takes this extension of the parental leave. So, a period of one year of paid parental leave 
is  recognised  for  the  first  child  if  both  parents  share  parental  leave.  For  later  children, 
the CLCA is now two and a half years and it will be paid for three years, if the parental 
leave is shared. CLCA payments vary depending on how much a parent works during this 
time.  Parents  receive  EUR  576.83  per  month  if  they  take  full  leave,  EUR  438.62  per 
month  if  they  work  no  more  than  50  %,  and  EUR  331.35  per  month  if  they  work 
between 50 and 80 % of a full work schedule (the allowance is less important if parents 
receive the general family allowance paid for children under the age of three whether the 
parents are working or not, in this case: EUR 390.92, EUR 252.71 and EUR 145.78).  

Finally, parents of at least three children who take  full-time leave to care for them may 
opt  to  receive  the  ‘optional  supplement  for  free  choice  of  working  time’  (Complément 
optionnel de libre choix d’activité; COLCA) instead of the CLCA. The COLCA pays a higher 
rate (EUR 819.14 per month) than the CLCA, but only lasts for one year. This is a way to 
encourage  shorter parental leave (only one year but with higher payments). To  receive 
CLCA or COLCA payments, parents must first meet a job tenure requirement: two years 
of  continuous  employment  for  a  parent's  first  child,  two  years  of  employment  over  the 
previous  four  years  for  a  parent’s  second  child,  or  two  years  of  employment  over  the 
previous five years for a parent’s third child and beyond. 

5.4.20  In  your  view,  regarding  which  issues  does  the  national  legislation  apply  or 

introduce more favourable provisions (see Clause 8 of Directive 2010/18)? 

French  parental  leave  is  much  longer  than  the  one  provided  by  the  Directive,  as  it  can 
last  for  three  years.  Moreover,  this  is  an  unrestricted  right  and  the  social  security 
systems provide for an allowance for the parents to be able to take this parental leave. 
However,  some  of  the  detrimental  effects  of  the  parental  leave  scheme  have  been 
demonstrated.  The argument is well known: an extended leave,  especially for unskilled 
women, may have a negative impact on women’s careers and  earning profiles. For this 
reason, there is a growing debate in France as to whether parental leave should not be 
shorter and better paid. 

23 

 
 
 
 
 
 
 
 
5.5  Paternity leave 

5.5.1  Does national legislation provide for paternity leave? 

Yes. Since 2001, paternity leave has been recognised for all fathers who are employees 
and  civil  servants.  Since  2013,  this  leave  can  also  be  taken  by  the  husband  of  the 
mother  (even  if  he  is  not  the  father)  and  by  the  spouse  or  the  partner  of  the  mother. 
This leave  is  now  called  ‘Paternity leave  and  settling-in leave’  (Article L  1225-35  of  the 
Labour Code). Paternity leave is eleven consecutive days  for the birth of a single baby. 
Paternity leave is paid by the social security scheme up to a ceiling and could therefore 
be  unattractive  for  executives.  Some  companies  have  adopted  full  pay  for  fathers  in 
terms of a ‘parent-friendly’ measure. There is no condition as to the length of service.  

5.5.2  Does national legislation provide for protection against dismissal of workers who 
take  paternity  leave  and/or  specify  their  rights  after  the  end  of  paternity  leave 
(see Article 16 of Directive 2006/54)? 

No. There is no specific protection against dismissal but the reason to dismiss should not 
be linked to the paternity leave. After paternity leave, the worker has the right to return 
to the same job or, if this is not possible, to an equivalent or similar job, where the same 
advantages apply as before (Article L 1225-36 of the Labour Code). 

5.6  Time off/care leave 

5.6.1  Does  national  legislation  entitle  workers  to  time  off  from  work  on  grounds  of 
force  majeure  for  urgent  family  reasons  in  case  of  sickness  or  accident  (see 
Clause 7 of Directive 2010/18)? 

Yes. Parents are entitled to three days per year to take care of sick children who are less 
than 16 years old. They are entitled to five days if the child is aged less than one year or 
if they have at least three children (Article L 1225-61 of the Labour Code). 

In  cases  of  the  serious  disability  or  illness  of  a  child  under  20,  every  employee  with  at 
least  one  year  of  employment  with  an  employer  is  entitled  to  unpaid  leave  to  care  for 
his/her  child  or  to  work  part  time  for  a  period  of  up  to  three  years  (Article  1225-61  of 
the Labour Code). A period of leave for six months is possible for employees who need to 
care for a relative (either a child or a parent living in the same house) who is at the end 
of his or her life. In this case, the Labour Code explicitly provides that this leave can be 
taken  in  the  form  of  part-time  working,  with  the  agreement  of  the  employer  (Article 
L.3142-16 of the Labour Code). 

Since  2014,  employees  can  also  donate  their  day  off  to  a  parent  of  a  seriously  ill  child 
(Article L1225-65-1). 

5.7  Leave in relation to surrogacy 

5.7.1 

Is parental leave available in case of surrogacy?  

No. Surrogacy is not legal in France, so parental leave could not be available. 

5.8  Leave sharing arrangements 

5.8.1  Does national law provide a legal right to share (part of) maternity leave? 

No.  

24 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.8.2 

Is there a possibility for one parent to transfer part of the parental leave to the 
other parent ?  

Parental leave is an individual right and there is no transfer of part of the parental leave 
to the other parent. 

5.9  Flexible working time arrangements 

5.9.1  Does national law provide workers with  a legal right (temporarily or  otherwise) 

to reduce working time on request? 

Yes.  The  Labour  Code  recognises  the  right  for  a  worker  to  work  part  time  (Article 
L.3123-2 of the Labour Code). That right should preferably be organised by a collective 
agreement  (Article  L.3123-17  of  the  Labour  Code),  but  in  the  absence  of  any  such 
agreement  the  law  prescribes  the  procedure  to  be  followed  (Article  L.3123-26  of  the 
Labour  Code  and  D3123-3).  This  right  is  recognized  for  every  worker  without  any 
specific  condition  being  attached.  The  employee  concerned  initiates  the  procedure  by 
informing the employer in writing of his or her wish to transfer to a part-time job, stating 
in  that  letter  the  desired  working  hours  and  the  date  envisaged  for  their  introduction. 
The  letter  of  request  must  be  sent  at  least  six  months  in  advance.  The  employer  is 
required  to  reply  within  three  months  and  can  refuse  such  a  request  on  two  grounds: 
either  because  no  comparable  job  exists  in  the  company,  or  because  he  or  she  can 
demonstrate that the transfer  requested will have harmful consequences for production 
and  the  company’s  satisfactory  operation.  The  decision  of  an  employer  to  refuse  the 
request can be challenged in court, but there have been no known decisions by the Cour 
de cassation on this issue.  It is difficult to ascertain whether this right is actually being 
used by workers or not. For public servants this right is also recognized and seems to be 
more  effective.  Public  servants  can  ask  to  work  part  time  and  the  administration  can 
only  refuse  if  such  a  refusal  is  based  on  the  needs  of  the  service;  a  refusal  can  be 
challenged before a joint administrative committee (Article 24, Law no. 84-16). 

Workers  can  also  request  annualised  part-time  hours  (Article  L.  3123-2  of  the  Labour 
Code). On the basis of their family commitments, employees can request a reduction in 
their working hours in the form of a leave of absence for one or more weeks. This offers 
employees  with  dependent  children,  for  example,  the  opportunity  to  reduce  their 
working time to correspond with the dates of the school year.  

5.9.2  Does  national  law  provide  workers  with  a  legal  right  to  adjust  working  time 

patterns (temporarily or otherwise) on request? 

No.  French  law  does  not  provide  workers  with  a  legal  right  to  adjust  working  time 
patterns on request; however, collective agreements could provide some specific rights. 

5.9.3  Does  national  law  provide  workers  with  a  legal  right  to  work  from  home  or 

remotely (temporarily or otherwise) on request? 

No.  French  law  does  not  provide  workers  with  a  legal  right  to  work  from  home  or 
remotely on request. 

5.9.4  Are  there  any  other  legal  rights  to  flexible  working  arrangements,  such  as 
arrangements by which workers can “bank” hours to take time off in the future? 

No.  

25 

 
 
 
 
 
 
 
 
 
 
 
 
 
6.  Occupational  social security schemes (Chapter 2 of Directive 2006/54) 

6.1  Is  direct  and  indirect  discrimination  on  grounds  of  sex  in  occupational 

social security schemes prohibited in national law? 

Yes, Article L.913-1 of the Code of Social Security ensures the implementation of Recast 
Directive  2006/54/EC  and  states  that  any  clauses  in  agreements,  decisions,  and 
contracts which are in breach of the principle of non-discrimination are null and void. 

6.2  Is  the  personal  scope  of  national  law  relating  to  occupational  social 
security  schemes  the  same,  more  restricted,  or  broader  than  specified  in 
Article  6  of  Directive  2006/54?  Please  explain  and  refer  to  relevant  case 
law, if any. 

As  provided  by  the  Directive,  the  prohibition  of  discrimination  in  occupational  social 
security schemes applies to the working population including the self-employed. 

6.3  Is  the  material  scope  of  national  law  relating  to  occupational  social 
security  schemes  the  same,  more  restricted,  or  broader  than  specified  in 
Article  7  of  Directive  2006/54?  Please  explain  and  refer  to  relevant  case 
law, if any. 

The material scope of French law is the same as Article 7 of the Directive.  

6.4  Has  national  law  applied  the  exclusions  from  the  material  scope  as 

specified in Article 8 of Directive 2006/54? 

No.  

6.5  Are  there  laws  or  case  law  which  would  fall  under  the  examples  of  sex 

discrimination as mentioned in Article 9 of Directive 2006/54?  

No. 

6.6  Is sex used as an actuarial factor in occupational social security schemes?  

No, men and women pay the same contributions and receive the same benefit. 

6.7  Are  there  specific  difficulties  in  your  country  in  relation  to  occupational 
social security schemes, for example due to the fact that security schemes 
in  your  country  are  not  comparable  to  either  statutory  social  security 
schemes  or  occupational  social  security  schemes?  If  so,  please  explain 
with reference to relevant case law, if any. 

The  Griesmar  case  (C-366/99)  and  now  the  Leone  case  (C-173/13)  clearly  highlight 
some  of  the  French  difficulties  in  implementing  the  Directive  in  occupational  pension 
schemes (see point 3.3.3. of the report). See further the answer to 3.3.3 of this report, 
above.  

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
7. 

Statutory schemes of social security (Directive 79/7) 

7.1  Is the principle of equal treatment for men and women in matters of social 

security implemented in national legislation? 

As  such,  the  principle  of  equal  treatment  for  men  and  women  in  matters  of  social 
security  is  not  expressly  implemented.  For  example,  there  is  no  such  principle  in  the 
Social  Security  Code.  However,  the  general  principle  is  recognized  in  the  Constitution 
and it directly applies. 

7.2  Is  the  personal  scope  of  national  law  relating  to  statutory  social  security 
schemes  the  same,  more  restricted,  or  broader  than  specified  in  Article  2 
of Directive 79/7? Please explain and refer to relevant case law, if any. 

The personal scope of national law is the same. 

7.3  Is  the  material  scope  of  national  law  relating  to  statutory  social  security 
schemes  the  same,  more  restricted,  or  broader  than  specified  in  Article  3 
par.  1  and  2  of  Directive  79/7?  Please  explain  and  refer  to  relevant  case 
law, if any. 

The material scope is the same. 

7.4  Has  national  law  applied  the  exclusions  from  the  material  scope  as 
specified in Article 7 of Directive 79/7? Please explain (specifying to what 
extent the exclusions apply) and refer to relevant case law, if any. 

Yes.  For  a  long  time  the  French  legislator  has  chosen  to  implement  the  exception  in 
Article  7(b)  of  Directive  79/7/EEC  according  to  which  Member  States  can  exclude  from 
the  scope  of  their  legislation  the  advantages  in  respect  of  old-age  pension  schemes 
granted to persons who have brought up children and also the exceptions in Article 7(c) 
(see Article L351-4 of the Social Security Code before 2010).  

7.5  Are  there  specific  difficulties  in  your  country  in  relation  to  implementing 
Directive 79/7? For example due to the fact that security schemes in your 
country are not comparable to either statutory social security schemes or 
occupational social security schemes? If so, please explain with reference 
to relevant case law, if any. 

The French legislator has chosen to implement the exception in Article 7(b) of Directive 
79/7/EEC  according  to  which  Member  States  can  exclude  from  the  scope  of  their 
legislation  the  advantages  in  respect  of  old-age  pension  schemes  granted  to  persons 
who have brought up children. However, a new provision included in the law to finance 
social  security  in  2010  was  adopted  in  December  2009.  As  for  civil  servants,  a  specific 
right for women linked to maternity has been maintained: increased insurance coverage 
for pensions in the private sector for a maximum of one year for women who have given 
birth  to  one  or  more  children.  For  the  second  year,  the  mother  will  continue  to  benefit 
from  another  increase  in  insurance  coverage  for  children  born  before  1  January  2010, 
except  if  fathers  can  prove,  in  the  year  following  the  publication  of  the  law,  that  they 
have  raised  their  children  on  their  own.  For  children  born  after  1  January  2010,  the 
mother will continue to benefit from increased insurance  coverage for a  second year, if 
there  is  agreement  between  the  father  and  the  mother,  expressed  in  the  six  months 
following the child’s fourth birthday. If there is  a disagreement between the parents, the 
advantage will be granted to the parent who can prove that he/she has contributed more 
and  for  a  longer  period  to  the  education  of  the  child.  If  both  parents  have  contributed 
equally to the child’s education, the benefit will be divided into two. 

27 

 
 
 
 
 
 
 
 
 
 
 
8. 

Self-employed  workers  (Directive  2010/41/EU  and  some  relevant 
provisions of the Recast Directive) 

8.1  Has Directive 2010/41/EU been explicitly implemented in national law? 

Yes.  France  has  requested  an  additional  period  as  mentioned  in  Article  16(2)  of  the 
Directive to comply with Article 7. The transposition was made by Decree No. 2014-20 of 
9 January 2014. It is not clear why France needed this additional period. The Decree is 
just  about  a  very  specific  problem  (health  insurance  of  a  specific  regime  of  the 
collaborating  partner  of  independent  workers).  Except  for  this  Decree,  France  has  not 
provided any explicit instruments formally implementing the Directive. The Act of 27 May 
2008,  no.  2008/496,  implementing  the  various  directives  on  discrimination,  transposes 
both Directive 2006/54/EC and Directive 2004/113. It states in its Article 5 that the law 
applies  to  every  public  and  private  person  including  those  carrying  out  an  independent 
activity.  It  seems  that  this  provision  could  also  be  analysed  as  implementing  Directive 
2010/41. This could explain the absence of any formal transposition of this Directive. 

8.2  What  is  the  personal  scope  related  to  self-employment  in  national 
legislation?  Has  your  national 
law  defined  self-employed  or  self-
employment?  Please  discuss  relevant  legislation  and  national  case  law 
(see Article 2 Directive 2010/41/EU) 

There  has  been  no  explicit  transposition  of  Article  2(a)  in  France.  There  is  no  legal 
definition  of  a  self-employed  person  or  self-employment  in  France.  Similar  to  many 
labour laws in other countries, the French Labour Law is built around the ‘binary divide’ 
labour  and 
between  employment  and  self-employment,  between  subordinated 
independent  or  autonomous  work,  while  a  self-employed  person  can  be  defined  as  a 
person who is not a worker. The French Labour Code does not contain any definition of 
what is an employee or a definition of subordinate employment. However, certain criteria 
have  been  determined  by  the  Cour  de  Cassation,  the  French  Supreme  Court.4  An 
employment  contract  exists  when  a  person  undertakes  to  work  in  the  name  and  under 
the  supervision  of  another  in  return  for  remuneration.  Three  elements,  which  are 
required to prove the existence of an employment contract, emerge from this definition: 
the  performance  of  an  activity,  in  return  for  remuneration  and  the  existence  of  a 
hierarchical  relationship  between  the  parties  (a  link  of  legal  subordination).  This  last 
criterion  is  the  most  important  one.  According  to  the  case  law,  the  legal  superior-
subordinate  relationship  means  that  a  job  is  performed  under  the  authority  of  an 
employer,  who  has  the  power  to  give  orders  and  instructions,  to  supervise  the 
performance of the said work and to impose sanctions in case of a failure or breaches by 
its  subordinate.  A  self-employed  person  can  therefore  be  defined  as  a  person  who 
provides services to another party in an independent and non-subordinate manner.  

As  regards  the  application  of  the  principle  of  non-discrimination,  the  absence  of  a 
definition of self-employed does not seem to be a problem and it seems that there is no 
risk that people like ‘small entrepreneurs’ or ‘business persons’ will not be covered.  

Indeed,  Directive  2004/113/EC  was  implemented  in  France  by  the  2008  Act.  This  Act 
provides a general prohibition of direct or indirect discrimination based on sex in access 
to and the  supply of goods and services. Article 5 of the Act simply states that the Act 
applies  to  every  private  and  public  entity,  including  those  carrying  out  an  independent 
activity. This Article therefore makes no distinction between self-employed persons and 
workers. 

4   For instance, see for example, Cass. Soc. 13 Nov. 1996, Dr. Soc. 1996. 1067. 

28 

 
 
 
 
 
 
 
                                                
8.3  Related  to  the  personal  scope,  please  specify  whether  all  self-employed 
workers  are  considered  part  of  the  same  category  and  whether  national 
legislation recognises life partners. 

If  self-employed  workers  can  be  considered  part  of  the  same  category,  the  social 
protection of self-employed workers is subject  to separate regulations (even if they are 
very similar, see point 8.6).  

For social protection issues, life partners are recognised. French law recognises persons 
engaged in a civil union (PACS) and people with a conjugal relationship living together as 
life partners.  

8.4  How has national law implemented Article 4 Directive 2010/41/EU? Is the 
material  scope  of  national  law  relating  to  equal  treatment  in  self-
employment the same, more restricted, or broader than specified in Article 
4 Directive 2010/41/EU? 

As such, Article 4 of the Directive has not been implemented. However, it seems that the 
same result is reached with Article 5 of the 2008 Act which states that the Act applies to 
every private and public entity, including those carrying out an independent activity. 
Moreover,  the  Penal  Code  prohibits  discrimination  in  very  general  terms.  Article  225-1 
states the following: 

‘Discrimination  comprises  any  distinction  applied  between  natural  persons  by 
reason  of  their  origin,  sex,  family  situation,  pregnancy,  physical  appearance  or 
patronymic,  state  of  health,  handicap,  genetic  characteristics,  sexual  morals  or 
orientation,  age,  political  opinions,  union  activities,  or  their  membership  or  non-
membership, true or supposed, of a given ethnic group, nation, race or religion.’ 

‘Discrimination  also  comprises  any  distinction  applied  between  legal  persons  by 
reason of the origin, sex, family situation, physical appearance or patronymic, state 
of  health,  handicap,  genetic  characteristics,  sexual  morals  or  orientation,  age, 
political  opinions,  union  activities,  membership  or  non-membership,  true  or 
supposed, of a given ethnic group, nation, race or religion of one or more members 
of these legal persons.’ 

Article 225-2 adds: 

‘Discrimination  defined  by  Article  225-1,  committed  against  a  natural  or  legal 
person, is punished by three years’ imprisonment and a fine of EUR 45 000 where 
it consists: 
1. of the refusal to supply goods or services; 
2. of obstructing the normal exercise of any given economic activity;  
3. of the refusal to hire, to sanction or to dismiss a person; 
4. of subjecting the supply of goods or services to a condition based on one of the 
factors referred to under Article 225-1; 
5.  of  subjecting  an  offer  of  employment,  an  application  for  a  course  or  a  training 
period to a condition based on one of the factors referred to under Article 225-1; 
6.  of  refusing  to  accept  a  person  onto  one  of  the  courses  referred  to  under  2.  of 
Article L412-8 of the Social Security Code.’ 

Here,  the  protection  against  discrimination  is  largely  defined  and  can  include  self-
employment. 

29 

 
 
 
 
 
 
 
 
 
 
8.5  Has your State taken advantage of the power to take  positive  action (see 
Article  5  Directive  2010/41/EU)?  If  so,  what  positive  action  has  your 
country taken? In your view, how effective has this been? 

Even  if  they  are  not  specifically  related  to  Directive  2010/41,  some  policies  regarding 
equal  treatment  for  self-employed  persons  exist  in  France.  For  example,  a  fund  for 
women’s  initiatives  was  created  in  1989  to  support  the  setting  up  of  businesses  by 
women.5  Today,  this  fund  can  guarantee  loans  for  women  for  the  creation  or  the 
development of their business. 

8.6  Does  your  country  have  a  system  for  social  protection  of  self-employed 

workers (see Article 7 (Directive 2010/41/EU)? 

Yes. France has social protection for the self-employed. This social protection is subject 
to  separate  regulations  (even  if  they  are  very  similar).  Farmers  come  under  the 
agricultural  system.  Craftsmen,  retailers  and  manufacturers  fall  within  the  scope  of  the 
Social  Protection  Scheme  for  the  Self-employed  (RSI),  while  practitioners  of  the  liberal 
professions are covered by  separate schemes.  However, liberal professionals also come 
under  the  RSI  insofar  as  sickness  insurance  is  concerned.  The  schemes  are  funded  by 
social contributions and they cover benefits and pensions related to sickness, maternity, 
invalidity, survivors’ benefits, accidents at work and occupational diseases. The schemes 
are  mandatory  and  most  of  them  are  complemented  by  compulsory  supplementary 
systems governed by the same funds.  

Spouses and life partners (registered by a Pacte Civil de Solidarité: PACS, the contract of 
civil union) can choose between three different statuses: a dependent worker, a partner 
or a collaborating spouse. Since 2005, there is an obligation to choose one of these three 
options.  Spouses  or  life  partners  who  have  chosen  the  status  of  a  collaborating  spouse 
will  benefit,  on  an  obligatory  basis,  from  social  protection:  old  age,  maternity  and 
invalidity.  Since  1  January  2014,  the  right  to  sickness  benefits  in  cash  has  been 
improved  in  order  to  implement  Directive  2010/41.  Collaborating  spouses  and  life 
partners will now contribute and have the right to sickness benefits in cash in the case of 
sickness,  which  was  not  previously  the  case.  However,  this  provision  does  not  seem  to 
apply  to  spouses  and  life  partners  in  the  liberal  professions.  Partners  who  are  not 
married  or  registered  by  a  PACS,  if  they  participate in  the  activity  of  the  business,  can 
voluntarily benefit from social protection. 

8.7  Has  Article  8  Directive  2010/41/EU  regarding maternity  benefits  for  self-

employed been implemented in national law?  

Yes. There are some minor differences between the schemes and as a consequence the 
whole  system  is  complex.  For  farmers,  benefits  for  replacement  may  be  paid  to 
compensate the fees paid to ensure the replacement of the woman farmer in farm work 
(Articles L732-10 et seq. of the Rural Code). The duration of the payment of the benefits 
for replacement is the same as the period of maternity leave for employees (16 weeks). 

For crafts, commerce and manufacturing as well as the liberal professions, self-employed 
women have a right to a lump-sum payment for resting, which is aimed at compensating 
the decrease in their activity (Articles L. 611-1 et seq.; L. 615-19 et seq.; and D. 615-4 
et seq. of the Social Security Code). The first half of this allowance is paid at the end of 
the  seventh  month  of  pregnancy  and  the  second  half  after  the  birth  of  the  child.  Its 
amount for 2014 is EUR 3 129. Furthermore, self-employed women have a right to daily 
maternity  benefits  for  a  period  of  44  days,  a  period  which  can  be  extended  on  two 
occasions at most, for 15 days each. The maximum period for these benefits is therefore 

5   http://femmes.gouv.fr/fgif/, accessed 9 November 2015. 

30 

 
 
 
 
 
 
 
                                                
74 days, which is less than the 14 weeks provided by Directive 2010/41/EU. The amount 
of  these  benefits  for  2016  is  EUR  2  237.60  for  44  days,  EUR  3121.10  for  59  days  and 
EUR 3 914.60 for 74 days.  

Spouses and life partners also have a right to a lump-sum payment for resting which is 
aimed at compensating the decrease in their activity and the duration of the payment of 
these benefits is 16 weeks.  

Some  specific  rules  can  also  apply  to  various  categories  of  self-employed  workers. 
Lawyers  and  advocates  have  concluded  an  agreement  in  order  to  extend  the  right  to 
maternity leave to 16 weeks (as opposed to 12 weeks previously). The extension of this 
period is a result of Directive 2010/41. 

Even  if  the  French  maternity  allowances  meet  the  requirement  of  sufficiency  under  the 
Directive (as it is as least equivalent to the allowance which the person concerned would 
receive  in  the  event  of  a  break  in  her  activities  or  grounds  connected  with  her  state  of 
health),  in  practice  the  main  problem  for  self-employed  women  is  the  fact  that  the 
benefits  do  not  amount  to  much  and  are  only  paid  during  a  short  period.  Therefore, 
many self-employed women do not interrupt their activities for pregnancy or maternity-
related reasons (the interruption is not mandatory) or do so only for a very short period 
of  time,  even  if  temporary  replacements  are  available.  For  example,  if  women  are 
craftspersons, retailers or manufacturers, 90 % of the cost of hiring a person to replace 
the pregnant woman will be covered. 

8.8  Has national law implemented the provisions regarding occupational social 
security  for  self-employed  persons  (see  Article  10  of  Recast  Directive 
2006/54)? 

No, but the principle of equality applies. 

8.9  Has  national  law  made  use  of  the  exceptions  for  self-employed  persons 
regarding  matters  of  occupational  social  security  as  mentioned  in  Article 
11  of  Recast  Directive  2006/54?  Please  describe  relevant  law  and  case 
law. 

No. 

8.10 Is  Article  14(1)(a)  of  Recast  Directive  2006/54  implemented  in  national 

law as regards self-employment? 

Yes.  Act  No.  2008-496  of  27  May  2008,  implementing  the  various  directives  on 
discrimination, provides a general prohibition of direct or indirect discrimination based on 
sex in access to and the supply of goods and services. Article 5 of the Act simply states 
that  the  Act  applies  to  every  private  and  public  entity,  including  those  carrying  out  an 
independent activity. This Article therefore makes no distinction between self-employed 
persons and workers. 

31 

 
 
 
 
 
 
 
 
 
 
 
9.  Goods and services (Directive 2004/113) 

9.1  Does national law prohibit direct and indirect discrimination on grounds of 

sex in access to goods and services? 

Yes.  The  2008  Act  provides  a  general  prohibition  of  direct  and  indirect  discrimination 
based on sex in access to and the supply of goods and services.  

9.2  Is  the  material  scope  of  national  law  relating  to  access  to  goods  and 
services more restricted or broader than specified in Article 3 of Directive 
2004/113? Please explain and refer to relevant case law, if any. 

The  material  scope  of  national  law  is  broader  as  the  exceptions  have  not  been  strictly 
implemented.  Thus,  the  Act  does  not  exclude,  as  the  Directive  does,  the  non-
discrimination  principle  for  the  content  of  media  or  advertising.  Concerning  public  or 
private  education,  the  Act  merely  states  that  the  non-discrimination  principle  does  not 
prohibit the organisation of non-mixed schools. 

9.3  Has  national  law  applied  the  exceptions  from  the  material  scope  as 
specified  in  Article  3(3)  of  Directive  2004/113,  regarding  the  content  of 
media, advertising and education? 

Not  entirely  (see  point 9.2).  However,  the  Act  does  not  exclude,  as  the  Directive  does, 
the  non-discrimination  principle  for  the  content  of  media  or  advertising.  Concerning 
public  or  private  education,  the  Act  merely  states  that  the  non-discrimination  principle 
does not prohibit the organisation of non-mixed schools. 

9.4  Have  differences  in  treatment  in  the  provision  of  the  goods  and  services 
been  justified  in  national  law  (see  Article  4(5)  of  Directive  2004/113)? 
Please provide references to relevant law and case law. 

Article 4 (2) of the 2008 Act states that differences based on sex can be admitted when 
the  provision  of  goods  and  services  to  one  sex  is  justified  by  a  legitimate  aim  and  the 
means  for  achieving  that  aim  are  appropriate  and  proportionate.  Apparently  there  has 
been no case law on the interpretation of this article. 

9.5  Does national law ensure that the use of sex as a factor in the calculation 
of  premiums  and  benefits  for  the  purposes  of  insurance  and  related 
financial  services  shall  not  result  in  differences  in  individuals'  premiums 
and benefits (see Article 5(1) of Directive 2004/113)? 

Yes. See Section 9.6 of this report, below. 

9.6  How  has  the  exception  of  Article  5(2)  of  Directive  2004/113  been 
interpreted in your country? Please report on the implementation of the C-
236/09 Test-Achats ruling in national legislation. 

French legislation has made use of the exemption from the principle of equal treatment 
allowed  by  Article  5  Paragraph  2  of  Directive  2004/113/EC.  The  Test-Achats  ruling  was 
enforced  in  December  2012.  A  ministerial  order  adopted  on  18  December  2012  states 
that  gender  differentiations  can  only  apply  to  insurance  contracts  concluded  before  20 
December  2012  or  those  which  are  tacitly  renewed  (Order  of  18  December  2012  on 
equality  between  men  and  women  in  insurances,  JO  20  December  2012).  The 
implementation of the Test-Achats ruling occurred at the last possible moment. Several 
months  later,  a  Bill  was  adopted  (Act  No.  2013-672,  July  2013,  on  the  regulation  of 
banking activities) thereby modifying Article L 111-7 of the Insurance Code, in order to 
delete  any  reference  to  gender  differentiations.  The  implementation  of  Directive 

32 

 
 
 
 
 
 
 
 
 
 
 
 
2004/113/EC  seems  to  be  satisfactory  and  the  Test-Achats  ruling  has  been  taken  into 
account.  

9.7  Has your country adopted positive action measures in relation to access to 
and  the  supply  of  goods  and  services  (see  Article  6  of  Directive 
2004/113)? 

No. 

9.8  Are there specific problems of discrimination on the grounds of pregnancy, 
maternity  or  parenthood  in  your  country  in  relation  to  access  to  and  the 
supply of goods and services? Please briefly describe relevant case law. 

No. 

33 

 
 
 
 
 
 
10.  Violence  against  women  and domestic violence  in  relation to  the Istanbul 

Convention 

10.1 Has your country ratified the Istanbul Convention? 

Yes.  France  has  ratified  the  IC  with  Law  no.  2014-476  of  14  May  2014  authorizing  the 
ratification  of  the  Convention.  Before  the  adoption  of  the  IC,  two  laws  from  2006  (Law 
no.  2006-399)  and  2010  (Law  no.  2010-769)  had  been  adopted  to  protect  women 
against  violence  and  this  pre-existing  legal  framework  was  considered  to  be  partly  in 
compliance  with  the  obligations  under  the  Convention.  Before  the  ratification,  Law  no. 
2013-711  of  5  August  2013  was  adopted  notably  to  ensure  compliance  with  the 
Convention.  Just  after  the  ratification,  Law  no.  2014-873  for  Real  Equality  between 
Women and Men was adopted and it also contains some provisions dealing with violence 
against women in order to complete the transposition of the Convention. The Penal Code 
was modified in order to implement Article 37 § 2 of the Convention (the criminalisation 
of the intentional conduct of luring an adult or a child to the territory of a Party or State 
other than the one she or he resides in with the purpose of forcing this adult or child to 
enter  into  a  marriage),  Article  38  c  (inciting,  coercing  or  procuring  a  girl  to  undergo 
sexual mutilation), Article 39 (performing an abortion on a woman without her prior and 
informed  consent)  and  Article  41  §  1.  The  legal  framework  is  completed  by  an  active 
state  policy,  expressed  by  the  adoption  of  plans  of  action  since  2004.  The  4 th  inter-
ministerial  governmental  plan  to  prevent  and  combat  violence  against  women,  2014-
2016, was adopted in 2013 and it doubles the budget for policies against gender-based 
violence. 

34 

 
 
 
 
11.  Enforcement  and  compliance  aspects  (horizontal  provisions  of  all 

directives)  

11.1 Victimisation 

11.1.1  Are  the  provisions  on  victimisation  implemented  in  national  legislation  and 

interpreted in case law?  

Yes.  Concerning  victimisation,  the  Labour  Code  states  that  no  employee  can  be  the 
subject  of  disciplinary  action,  be  dismissed  or  be  subject  to  a  discriminatory  act  for 
having testified to having witnessed discrimination or having talked about this (Article L 
1132-3) and the 2008 Act has extended the scope of this provision to the public sector. 
The protection against victimisation complies with the Directives. 

11.2 Burden of proof 

11.2.1  Does  national  legislation  and/or  case  law  provide  for  a  shift  of  the  burden  of 

proof in sex discrimination cases? 

Yes.  Employees  or  job  applicants  who  feel  that  they  have  been  discriminated  against 
must  present  the  court  with  evidence  ‘that  leads  one  to  believe  that  direct  or  indirect 
discrimination has taken place.’ In the light of this evidence, it is up to the defendant to 
‘prove  that  the  decision  taken  was  justifiable  according  to  objective  facts  that  had  no 
connection with any form of discrimination’ (Article L1132-3-3). Article 4 of the 2008 Act 
extends the application of this principle to civil and administrative procedures. Thus the 
same  rules  apply  in  the  administrative  courts  (see,  for  example,  Conseil  d’Etat,  10 
January  2011,  No.  325268).  The  Cour  de  cassation  has  heard  a  case  which  is  very 
similar  to  the  Meister  case  (Cass.  Soc.  19  December  2012,  No.  10-20526).  Two 
employees  asked  the  judges  to  oblige  the  employer  to  provide  the  information  needed 
about the remuneration of other employees in order to establish a case of discrimination. 
The legal basis of their claim was Article 145 of the Code of Civil Procedure which states 
that ‘If there is a legitimate reason to preserve or to establish, before any legal process, 
the  evidence  of  the  facts  upon  which  the  resolution  of  the  dispute  depends,  legally 
permissible preparatory inquiries may be ordered at the request of any interested party, 
by  way  of  a  petition  or  by  way  of  a  summary  procedure’.  In  applying  this  article,  the 
Court of Cassation stated that respecting an employee’s personal life and respecting the 
employer’s business secrets are not in themselves an obstacle to the application of this 
article  when  a  national Court  finds  that  the  requested  measures  are  legitimate  and  are 
necessary  for  the  protection  of  the  rights  of  the  party  who  has  requested  them.  The 
Court  of  Appeal  was  right  in  deciding  that  the  employees  had  a  legitimate  aim  in 
demanding the communication of information necessary for the protection of their rights, 
information that only the employer had access to and that he refused to communicate. 

11.3 Remedies and Sanctions  

11.3.1  What  types  of  remedies  and  sanctions  (e.g.  compensation,  reinstatement, 
criminal  sanctions,  administrative  fines  etc.)  exist  in  your  country  for  breaches 
of EU gender equality law? Please specify the applicable legislation. 

Any  discriminatory  actions  by  employers  are  regarded  as  null  and  void,  and  the 
employee retains all previously held rights. In the context of a dismissal, this means that 
any dismissal on discriminatory grounds could be annulled and a worker dismissed on a 
discriminatory ground can claim her/his reinstatement and he/she is regarded as never 
having left the job. This is a specific sanction for discriminatory acts. In a case where the 
employee  does  not  want  to  continue  the  employment  relationship,  he  or  she  is  eligible 
for  a  compensatory  payment  which is  equal  to at  least  the  previous  six  months’  wages 
as  well  as  compensation  granted  for  unlawful  dismissal.  In  situations  other  than 

35 

 
 
 
 
 
 
 
 
 
dismissal  the  sanction  is  compensation  that  should  entirely  compensate  the  damage. 
Penal sanctions are also possible even if they are rarely used. Under the Labour Code the 
employer risks a maximum of one year imprisonment and a fine of EUR 3 750 (Article L 
1146-1 of the Labour Code). Under the Criminal Code (Article 225-2), any discrimination 
can  be  punished  with  a  maximum  of  three  years’  imprisonment  and  a  fine  of  EUR  45 
000. 

11.3.2  In  your  opinion,  do  the  remedies  and  sanctions  meet  the  standards  of  being 
effective,  proportionate  and  dissuasive?  Please  explain,  if  possible  referring  to 
relevant legislation or case law.   

As  for  remedies  and  sanctions,  in  France  these  meet  the  European  standards  and  they 
are proportionate and effective. 

11.4 Access to courts 

11.4.1  In  your  opinion,  is  the  access  to  courts  safeguarded  for  alleged  victims  of  sex 
discrimination?  Please  explain  and  discuss  particular  difficulties  and  barriers 
victims of sex discrimination have encountered.  Refer to relevant legislation and 
case law. 

‘normal’  access  to  the  courts.  Moreover, 
Victims  of  sex  discrimination  have 
representative trade unions can also act for an employee who claims to be the  victim of 
discrimination without having to have a mandate to that effect. This trade union right of 
action is subject  only to the condition that the employee is given written notification of 
the  action  and  does  not  oppose  the  union  action  within  a  15-day  period.  Furthermore, 
associations legally established for at least five years, and whose purpose is combating 
discrimination,  may  bring  legal  proceedings  on  behalf  of  an  employee.  In  such  cases, 
unlike  those  brought  by  trade  unions,  the  employee  concerned  must  give  her  written 
consent.  Victims  can  also  present  their  case  directly  to  the  Defender  of  Rights.  Despite 
these rights, it is always difficult for alleged victims to go to Court.  

A  new  class  action  was  introduced  by  Act  No.  2016-1547,  18  November  2016,  on 
Modernization of XXIst Century Justice (see Article L.1134-7 et seq. of the Labour Code). 
The action can be introduced before the civil court by a representative trade union or an 
association  involved  in  combating  discrimination  or  working  in  the  field  of  disability, 
registered  for  at  least  five  years.  The  action  can  be  introduced  before  the  civil  court, 
when  several  people  placed  in  a  similar  situation  have  suffered  damage  caused  by  the 
same  entity,  in  order  to  establish  that  candidates  for  employment,  training  or  work 
experience, or employees are discriminated against, directly or indirectly, on the basis of 
a  recognised  reason  and  by  the  same  employer.  The  action  must  be  the  subject  of  a 
prior request for the cessation of the discrimination and may  therefore be initiated only 
after the expiry of a period of six months from the date of the request or from the date 
of the notification of the rejection of the application by the employer.  

11.4.2  In  your  opinion, 

for  anti-
discrimination/gender  equality  interest  groups  or  other  legal  entities?  Please 
explain and refer to relevant legislation and case law. 

courts  safeguarded 

the  access 

to 

is 

There are some differences between trade unions and associations in their right of action 
(see 11.4.2). The condition of having existed for five years is supposed to guarantee the 
seriousness of the association, but this could be considered as being too long.  

11.4.3  What kind of legal aid is available for alleged victims of gender discrimination? 

36 

 
 
 
 
 
 
 
 
 
 
Alleged  victims  of  gender  discrimination  can  benefit  from  trade  union  support, 
association support, and support from the Defender of Rights. They can also benefit from 
legal aid if they lack sufficient resources. The maximum net income in 2015 which is the 
cut-off  point  in  order  to  qualify  for  legal  aid  at  the  rate  of  100%  for  a  single  person  is 
EUR 941 per month.  

11.5 Equality body  

11.5.1  Does  your  country  have  an  equality  body  that  seeks  to  implement  the 

requirements of EU gender equality law? 

Yes.  The  Defender  of  Rights  (which  replaced  the  former  HALDE)  is  an  independent 
administrative body (http://www.defenseurdesdroits.fr/). Its mandate covers all forms of 
direct  and  indirect  discrimination  prohibited  by  French  legislation  or  in  international 
agreements ratified by France. Victims of discrimination may directly present their case 
to  the  Defender  of  Rights.  Without  replacing  the  traditional  channels  for  redressing 
discrimination within the legal system, the Defender of Rights can identify discriminatory 
practices. The Defender of Rights can also help victims to make a case against agents of 
discrimination and, thanks to special powers, can carry out an investigation and demand 
explanations  from  defendants,  by  conducting  hearings  and  collecting  other  evidence, 
including the gathering of information on site. It can issue recommendations and publish 
them thus encouraging the defendant to comply therewith. 

11.6 Social partners  

11.6.1  What  kind  of  role  do  the  social  partners  in  your  country  play  in  ensuring 
compliance  with  and  enforcement  of  gender  equality  law?  Are  there  any 
legislative provisions in this respect? 

There has been a long tradition in France of involving the social partners mainly through 
the obligation to annually negotiate on equality and on the gender gap (Article L2242-8 
of the Labour Code). The legislator intends to induce the social partners to play an active 
role  in  the  implementation  of  gender  equality  law.  Since  2012,  sanctions  are  also 
possible  if  companies  do  not  respect  their  obligation  to  negotiate  and  to  conclude 
agreements on gender equality. As a consequence, gender equality has become an issue 
of negotiation at plant and at sectoral level. 

11.7 Collective agreements 

11.7.1  To what  extent does your country have  collective agreements that are  used as 
means to implement EU gender equality law? Please indicate the legal status of 
collective agreements in your country (binding/non-binding, usually declared to 
be generally applicable or not).  

Collective  agreements  have  been  used  as  a  means  to  implement  EU  gender  equality 
principles.  Collective  agreements  have  an  erga  omnes  effect  in  France.  At  branch  level 
they  are  mostly  generally  applicable  to  all  companies  in  the  sector.  However,  even  if 
some collective agreements contain innovative measures, some are merely formal. They 
refer  to  the  principle  of  non-discrimination  and  declare  their  willingness  to  respect  the 
law without any concrete measures having been taken. 

37 

 
 
 
 
 
 
 
 
 
 
 
12.  Overall assessment  

Although  the  process  of  implementing  the  directives  has  been  a  long  one,  the  overall 
implementation seems to be satisfactory. In some respects, French law goes further than 
the  European  obligations,  for  example  in  providing  for  longer  parental  leave,  for 
paternity leave, or by obliging the social partners to negotiate on the pay gap. However, 
even if the situation is formally satisfactory, for years there has been very little litigation 
on equality issues and, moreover, most of the litigation has concerned men claiming the 
same rights as women (see, for example, the Griesmar and Leone cases in section 3.3 of 
this report, above). But some elements reveal a certain evolution. Generally, the number 
of cases  on discrimination brought before the  courts is increasing. Lawyers, judges and 
the  legal  literature  are  becoming  more  familiar  with  the  instruments  on  regulating 
discrimination and this will have consequences for sex discrimination. 

38 

 
 
Annexes 

Bibliography 

- 

- 

- 

- 

- 

- 

(2008), 

‘Discrimination: 

Calves,  G.  (2009),  ‘Deux  décennies  mouvementées  pour  les  politiques  françaises 
de discrimination française à l’égard des femmes” RDSS, p. 991. 
Hennette-Vauchez,  S.,  Pichard,  M.,  Roman,  D.  (2014),  La  loi  et  le  Genre,  Etudes 
critiques de droit français, CNRS Edition. 
Lanquetin,  M.-Th. 
communautaire du 27 mai 2008,’ Droit social, p. 778. 
Laulom,  S.  (2009),  ‘The  gender  pay  gap  in  France’  in:  The  European  Network  of 
Legal  Experts  in  the  Field  of  Gender  Equality,  European  Gender  Equality  Law 
Review  No.  1/2009  pp.  5-15,  European  Commission,  available  at 
http://ec.europa.eu/justice/gender-equality/files/egelr_2009-1_en.pdf, 
accessed 
19 September 2015. 
Mercat-Bruns,  M.  (2015),  ‘Les  discriminations  multiples  et  l’identité  au  travail  au 
croisement des questions d’égalité et de libertés’ Revue de droit du travail, p. 28. 
M. Miné, Droit des discriminations dans l’emploi et le travail, Larcier, 2016. 

loi  d’adaptation  au  droit 

la 

39 

 
 
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