French Constitutional Law CCL student Zokirjon Abdusattarov

The Principle of Equality in French Constitutional Law

The right to equality is an essential right in all countries respecting the rule of law. It has

been universally recognized and embodied in the Universal Declaration of Human Rights,

European Convention on Human Rights and in a number of international instruments. Below I

will describe the development of this right in the case of French constitutional law in following

order, similar to Oliver Jouanjan’s: Constitutional base and foundation; Recognition,

Identification and Interpretation in the practice of French Constitutional Court.

Constitutional Basis and Foundation.

The right to equality is one of the fundamental rights which dates back its origin to the

early constitutional texts of France, Déclaration des droits de l'Homme et du citoyen of 1879.

Incorporating it in the beginning of the constitution, in the first article, represents the importance

of the right to the drafters of the constitution. In this article, the equality of the rights of men was

declared and the social distinctions were allowed provided that it is necessary for the common

good. This general statement is expanded through describing specific areas of protection of equal

rights in later articles. The law, article 6 states, “must be the same for all, whether it protects or

punishes. All citizens, being equal in its eyes, shall be equally eligible to all high offices, public

positions and employments, according to their ability, and without other distinctions than that of

their virtues and talents.” Articles 13 establishes equality in tax payment for all citizens, making

it proportional according to ability of the citizens to pay. In further articles it assumes equality

through using other phrases, like ‘all’(article 14 “all citizens have the right….) or ‘every’(article

9 “every man is presumed innocent…) or “no man” (article 7 “no man may be accused, arrested

or …”).

The basis for including these provisions was the will and intentions of the French people

to get rid of long existed class regime which put the bourgeoisie and the king in an advantageous

position. The layers in the society were removed every citizen was given equal opportunity in

participating in public affairs. Of course, it is contentious as in practice rich people remained in

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French Constitutional Law CCL student Zokirjon Abdusattarov
the power. Almost the same elites were governing the state. However, it was a quantum leap

towards democratic state in comparison with what the French people were entitled so far and still

widely existing feudalism and absolute monarchy around the world.

Next step in the development of equality principle in France came with the adoption of

the Constitution in 1946. If the first constitution was meant for abolishing the monarchy regime

and establishing a state where all individuals can take part in polity building, this constitution

was adopted to recognize newly emerging form of human rights, namely, social and cultural

rights, and enhancement of state mechanism. As to the guarantees of equality principle, it was

mainly concerned with social rights rather than political rights. Essential ingredients of the

equality principle were provided in more comprehensive form, and more importantly, most of

them were embodied in the very Preamble of the Constitution as a main goal of the French

people towards building a socially oriented state. To the best of my knowledge, this is the only

constitution in the world which contains so many provisions for the equality principle in the

preamble.

For the first time with clear statements the Constitution of 1946 removed the distinction

of race, religion, or belief (§ 1 of the preamble) and inequality of men and women in all domains

(§ 3 of the preamble). Everyone was granted equality in matter relating to labor rights, namely,

right to obtain employment and to strike, right to trade unions and some other related rights (§ 5-

8 of the preamble). In paragraph 13, equal access to education was provided without distinction

as to the age. Moreover, it doesn’t make distinction between the people who reside in the

territory of France in overseas and Western Europe. Thus, the rights set in the constitution

belong to the people living in overseas as well.

Though the Constitution of 1789 indirectly recognized the right to equal suffrage through

providing to all citizens the right to participation in law making process, it didn’t give a clear

constitutional value as the Constitution of 1958 does in article 3. Basically, the current French

Constitution comprises all the equality principles through partly reiterating and referring to them

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French Constitutional Law CCL student Zokirjon Abdusattarov
in the Preamble. Initially, the constitutional force of the preamble and its reference to the earlier

constitutions being questioned, later it was fully recognized by the Decision 44 DC of 16 July

1971. Since that time various aspects of the equality have been recognized in the case law

practice of Constitutional Council and Counsel d’ Etat.

Recognition, Identification and Interpretation

In practice, how are the abovementioned rights applied in a concrete situation? how are

these rights narrowly or broadly interpreted by constitutional judges? Have constitutional judges

recognized or identified new rights connected with equality that are implicitly mentioned in the

constitution? And how are they are restricting, or widening the scope of application? What is the

test applied by the French Constitutional judges, is that the proportionality test, like German

constitutional judges do or strict scrutiny test of American judges? Generally, the answers to

these questions as follows:

1.) The Constitutional Council by the decision 232 DC, “Mutualisation de la Caisse

nationale de Credit agricole” identified the scope of the equality principle, which reads:

“The principle of equality does not prevent the legislators from settling different situations in

different ways nor from contravening equality for reasons of general interest provided that , in

either case, the resulting difference of treatment is in accordance with the purpose of the law that

establishes it.”

First, from the wording of the text it follows that legislator can adopt a law which isn’t

necessarily compatible with the principle of equality through applying double standard

(regulating different situations differently) within the purpose of the law that establishes it.

Second, equality principle can be restricted when the question of general interest is concerned

provided that resulting difference of treatment is in accordance with the purpose of the law that

establishes it. Roughly saying, means (restrictions) taken to achieve an end (purpose of the law)

must be proportionate if we compare it with the German Constitutional Court practice. Here arise

two problems: the vague formulation of ‘general interest’ and scope of the limitation, which

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must be within the purposes of law. For example, in Decision 333 DC of 21 January 1994 “the

interests of private radio and television operators are considered to justify a departure from

equality between private competitors in the name of general interest.”1 As to the second problem,

there is no strict criterion for the measure which restricts the equality. Should it be necessary for

reaching the goal (general interest) or is it enough if it is achievable through this measure? Also,

no specification is made as to whose interests are affected, namely, different sexes, races or

faiths of the people.

However, in practice we can see some developments of this criterion. In Decision 232

DC, the Constitutional Council found as a violation of equality of certain people with different

identities. Moreover, the Constitutional Council refused the existence of minorities in France2

and declared that ethnical, cultural and linguistic or religious identity is an inadmissible criterion

for providing collective rights to any of such groups3. However not recognizing minorities causes

to some problems. Though de jure minorities do not exist and are not discriminated, de facto4

they suffer because of no affirmative action is taken. The right to practice one’s religion becomes

difficult if the state doesn’t recognize religious minorities5. Praying five times a day or wearing a

scarf will not be possible, if the state doesn’t treat differently based on the religious faith. Or for

linguistic minorities it will be impossible to study in their native language. As Aristotle

mentioned, equality means treating likes alike and unlikes unlike.

2.) The principle of equality, theoretically, can be divided into two categories6: objective

principles and subjective principles. Objective principle means enjoying certain rights, such as,

equality in access to education, to public office. In Ex Officio Taxation case of 27 December,

1973, the Constitutional Council found that to create a discrimination between citizens with

regard to the possibility of presenting evidence against a decision of ex officio taxation by the

1
Oliver Jouanjan “Equality” in “International Encyclopedia of laws” Vol II, Constitutional Laws, 2000, p. 833
2
Decision 290 DC of 9 May 1991
3
Decision 412 DC of 15 June 1999
4
See http://no-pasaran.blogspot.com/2005/09/no-minorities-in-france-and-no-racial.html
5
See http://www.humanrights-france.org/hearings/index.htm and
http://atheism.about.com/b/a/219454.htm
6
See O.Jouanjan: Le principe d’egalite devant la loi en droit allemande, op. cit., p. 213

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French Constitutional Law CCL student Zokirjon Abdusattarov
administration concerning them infringes the principle of equality before the law contained in the

Declartion of the Rights of Man of 1789 and solemnly reaffirmed by the Preamble to the

Constitution…

And subjective principle is concerned with preventing the use of subjective criteria in

order to establish a difference7. In nationalization case of 16 January 1982, the Constitutional

Council ruled based on the second criteria, that is, it assessed the identity of the subjects (legal

entities) in reaching a decision. . Noteworthy development in this case is the Court recognized

the right of legal entities to equal treatment. So far, the equality principle applied only to

individuals. The Court considered that the principle of equality is no less applicable between

legal persons as between physical persons, because, legal persons consist of groupings of

physical persons.

As the constitution uses the words “citizens”, “any person”, “every person” in providing

rights and guarantees, it is difficult to identify the subject of the right holder, whether it belongs

to foreign nationals or not. In Miscellaneous Social measures case of 22 January 1990, the

Constitutional Council recognized the rights of foreigners to additional benefits and to the certain

fundamental constitutional rights.

We can see the further development in Privatization case of 26 June, 1986. In this case

the Constitutional Council recognized the equality between public and private properties.

Unlike in other countries, the Constitutional Council does not support affirmative action

for the benefit of women. In Feminine Quotas case of 18 November 1982, the Court found that

establishing quotas taking into account the sex, is a violation of equality principle.

My overall assessment of equality principle in French constitutional law is that it goes

beyond the constitutional texts, it recognizes implicitly mentioned or even not existing rights

(legal entity’s) in the basic law and at the same time it restricts the rights based on its vague

formula. Moreover, the issue of minority rights is left contentious.

7
ibid