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                               Annual Report 2006
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-establishing-reforms-causes-dialogue-litigation-equity-simplifying-listening-rights-victims-remedy-concilia
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 -dialogue-litigation-equity-simplifying-listening-rights-victims-remedy-conciliation-fighting-inequalities-malfun
-publicservices-delegates-just-respect-solutions-informing-proximity-re-establishing-reforms-causes-dialogue-litig
-equity-simplifying-listening-rights-victims-remedy-conciliation-fighting-inequalities-malfunction-publicser
  -
  delegates-just-respect-solutions-informing-proximity-re-establishing-reforms-causes-dialogue-litigation-eq
-simplifying-listening-rights-victims-remedy-conciliation-fighting-inequalities-malfunction-publicservices-deleg
-just-respect-solutions-informing-proximity-re-establishing-reforms-causes-dialogue-litigation-equity-simpli
-listening-rights-victims-remedy-conciliation-fighting-inequalities-malfunction-publicservices-delegates-just-res
-solutions-informing-proximity-re-establishing-reforms-causes-dialogue-litigation-equity-simplifying-listening-r
 -victims-remedy-conciliation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solu
-informing-proximity-re-establishing-reforms-causes-dialogue-litigation-equity-simplifying-listening-rights-vic
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-conciliation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-proxim
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 -dialogue-litigation-equity-simplifying-listening-rights-victims-remedy-conciliation-fighting-inequalities-malfun
   An important player
   in the defence of
   public freedoms
                                Created in 1973, the office of the Mediator of the French
                                Republic is an independent body that uses its skills to assist
                                citizens, individuals or corporate bodies free of charge, with
                                aview to improving their relations with the administration
                                and public services. It handles disputes on a case-by-case
                                basis, checks whether the organisation concerned by a com-
                                plaint has acted in line with the public service mission entrus-
                                ted to it, points out existing malfunctions and restores the
                                complainant’s rights. When an administrative decision,
                                though legally founded, violates human rights, the Media-
                                tor of the French Republic is empowered to make recom-
                                mendations in all fairness. He may also use his injunction
                                power when the State fails to comply with a court decision
                                taken in favour of constituents. The Mediator of the French
                                Republic equally has an important reform-proposal power
                                with which he helps improve administrative and legal pro-
                                cedures so that the law can be adapted to social changes,
                                and iniquities stopped.
                                The institution owes its dynamism and efficiency to the qua-
                                lity of its employees at the headquarters, its national pre-
                                sence guaranteed by some 300 delegates, its flexibility and
                                networking. Appointed by decree of the Council of Minis-
                                ters, the Mediator of the French Republic has a single, irre-
                                vocable and immutable six-year mandate. The Mediator of the
                                French Republic is a member by right of the National Human
                                Rights Commission




The figures provided in this report concern the year 2006. The report was completed on 18 January 2007.
Médiateur de la République – 7,rue Saint-Florentin – 75008 Paris – Tél. :01 55 35 24 24 – Fax :01 55 35 24 25 – www.mediateur-republique.fr
Editorial
 When a society abandons dialogue, it ushers in violence. This is
 the danger facing our democracy. A lot of companies and
 communities have got it right. This is why they have created
 mediation centres. Citizens also need to be listened to and be
 heeded, just like politicians. Over the years, more especially in
 2006, the Institution of the Mediator of the French Republic has
 established itself as a place of dialogue, exchange and respect
 between players from different fields. By enabling them to join
 forces to fight for a common cause, devoid of any power struggle,
 it has served as a gateway for re-creating mutual trust between
 the constituent and the administration, between the citizen and
 the politician.

 In 2006, associations, members of parliament, and legal
 authorities turned to the Institution, to seek our help and            Jean-Paul Delevoye,
 opinion. From guardianship, handicap to bad credits, the               Mediator of the
 Institution serves as a forum for in-depth social debates. The         French Republic
 Institution is entering a new phase due to the extension of its
 responsibilities to various fields.

 In the social field, the government has asked the Mediator of the French Republic to appoint a
 delegate mediator in each departmental handicapped home. In the legal field, the draft organic law
 resulting from the Outreau affair provides for an extension of the powers of the Mediator of the
 French Republic. Any person who feels that the behaviour of a magistrate in a case he or she is involved
 in might constitute a disciplinary fault, may seek the help of the Mediator of the French Republic. No
 matter the methods applied, I think it is important to underline here two basic principles which must
 guide the on-going reflections. On the one hand, judicial independence and the independence of the
 Mediator of the French Republic must be respected. On the other hand, it is absolutely necessary to
 ensure a litigant that his or her complaints will be considered equitably and not in a situation of power
 struggle in which he or she will certainly have the impression of being in a legally weak position.
 Therefore, I remain particularly attentive to the implementation of this draft law.

 Another development is looming in the Human rights field: external control of places of detention.
 France will soon ratify the United Nations Convention against torture and must create, within a
 period of twelve months, an independent body to control prisons. The Council of Europe recommends
 to Member States to give this prerogative to ombudsmen. So, in France, the Mediator of the French
 Republic will be entrusted with this task. It is important to point out, however, that it is not about
 inspection power but rather an assessment mission, aimed at improving the actions to take with
 respect for Human dignity. I have already met with some players in the prison world: managements,
 personnel, chaplaincy services, psychiatrists, and I will be particularly vigilant about the resources
 provided to carry out this mission.

 These new developments will make the Mediator of the French Republic an ombudsman with similar
 prerogatives as most European ombudsmen. My ambition and the ambition of my officials for 2007 is
 to assume these responsibilities for total respect of Human dignity, vulnerable persons and justice.
     Contents
      í NOTEPAD                                                                             p. 3


      í THE YEAR IN FIGURES                                                                 p. 4


      í TABLE OF REFORMS                                                                    p. 8


      í ORIGIN OF A REFORM                                                                  p. 10


      í ISSUES HANDLED BY THE MEDIATOR                                                      p. 12
      The citizen at the heart of government policies
      § Adapting laws to the new situation in society                                       p. 13
      § Mobility and life course                                                            p. 21

      Protecting the weakest
      § Protecting the most vulnerable persons                                              p. 32
      § Protecting the interest of victims                                                  p. 43

      Making the law easily accessible and protecting individual liberties
      § Opening new channels of access to the law                                           p. 49
      § Protecting individual liberties                                                     p. 63
      § Bringing the values of mediation to the world                                       p. 69


      í DESCRIPTION OF THE INSTITUTION                                                      p. 71


      í ADMINISTRATIVE AND FINANCIAL MANAGEMENT FOR 2006                                    p. 80




      The quotations on pages 20, 22, 25 and 33 are extracts from Mr Delevoye’s speeches.




2   Annual Report 2006
Notepad
                                                                                by the committee in
p.14                      p.27                       p.41                       charge of this issue
                                                                                at the National
                                                                                                          p.61
IN THE ABSENCE            JOB-SEEKERS                DELEGATE                   Assembly. Obviously,      PRISONS:
OF MARRIAGE,              OPENING A                  MEDIATORS OF               the heterogeneity of      DEPRIVATION OF
NO TRACE OF               BUSINESS:                  THE FRENCH                 the rules applied by      FREEDOM IS NOT
STILLBORN BABIES          SUPPORTING                 REPUBLIC ACTIVE            the different schemes     SYNONYMOUS
Thanks to the             RISK-TAKING                IN DEPARTMEN-              results in unequal        WITH DEPRIVA-
Mediator’s efforts, a     It is paradoxical and      TAL HANDICAPPED            protection of asbestos    TION OF ACCESS
work group has been       unfair that job-           HOMES (MDPH)               workers.                  TO THE LAW
created to improve        seekers who have           Thanks to the                                        Handling the
the legal status of       taken the risk of          presence of delegate                                 problems
stillborn babies, in a
manner that is more
                          opening a business
                          instead of continuing
                                                     mediators of the
                                                     French Republic in         p.48                      encountered by
                                                                                                          detainees and their
favourable to families.   to benefit from their      MDPHs, it will be          FAIR LIMIT TO THE         family in their
                          status as indemnified      possible to observe        EXERCISE OF               relations with
                          job-seekers are            the actual conditions      SUBROGATION               administrations
p.18                      penalised when
                          obliged to fold their
                                                     for creating MDPHs
                                                     and the possible
                                                                                RIGHTS
                                                                                The Senate’s law
                                                                                                          prepares the
                                                                                                          detainees’ release
ALTERNATING               business.                  difficulties of applying   commission, upon          and their chances of
CUSTODY,                                             an ambitious and           the incentive of the      social reintegration.
INAPPROPRIATE                                        particularly complex       Mediator of the           Moreover, the Justice
SOCIAL SECURITY
CODE                      p.32                       law.                       French Republic,
                                                                                pushed through
                                                                                                          Minister has proposed
                                                                                                          that general control of
For some years now,       BAD CREDIT,                                           the adoption of an        prisons be entrusted
the Mediator of the
French Republic has
                          A NEW SOCIAL
                          EMERGENCY?                 p.42                       amendment
                                                                                governing strictly
                                                                                                          to the independent
                                                                                                          Institution of the
been studying the         The term "bad credit"      ESCHEATED LIFE             the action of the         Mediator of the
question of               is used instead of the     INSURANCE                  social security offices   French Republic. It
alternating custody,      term “excessive            POLICIES:                  pertaining to the         will be a new service,
and has been making       debts” to demonstrate      BETWEEN ETHICS             recovery of the           run by specially
proposals aimed at        better a reality that      AND BILLIONS               indemnity paid to         trained controllers
maintaining the link      has known significant      OF EUROS                   victims of accidents or   different from the
between children and      changes over the past      In the absence of a        aggression.               current delegates.
divorced parents, to      few years. To              constructive
enable these latter       understand this            reflection on this
to play their parental
roles.
                          phenomenon and
                          assess the solutions,
                                                     issue, the number of
                                                     beneficiaries found,       p.55                      p.63
                          the Mediator of the        in case of death of a      FINES:                    STIC AND JUDEX,
                          French Republic has        contracting party, will    RESPECTING                FILES THAT NEED
p.22                      held several meetings
                          with the institutional
                                                     remain very limited,
                                                     and the feeling of
                                                                                THE RIGHT OF
                                                                                CITIZENS TO
                                                                                                          TO BE IMPROVED
                                                                                                          Consulting Stic and
A POSSIBLE                and field players          prejudice will             DEFEND                    Judex files for
SOLUTION TO               handling this complex      continue to increase       THEMSELVES                administrative
THE PROBLEM               problem.                   among millions of          The need to repress       purposes does not
OF DOCTORS                                           potential                  highway-code-related      offer the same legal
WITH FOREIGN                                         beneficiaries of life      offences implies          guarantees as those
DIPLOMAS
Whereas these             p.38                       insurance policies.        reflecting on the
                                                                                method of contesting
                                                                                                          planned for the
                                                                                                          working of the police
doctors had come to       GUARDIANSHIP:                                         the inherent fines.       record. A workgroup
make up for the want
of medical personnel
                          CHRONICLE
                          OF A REFORM
                                                     p.46                       Today, laws make
                                                                                room for illegal
                                                                                                          was asked to propose
                                                                                                          solutions which can
in French hospitals,      In less than five years,   ASBESTOS, A                practices, and unfair     reconcile the
they found                France will probably       LASTING HEALTH             and forced fine           protection of life with
themselves in the         have one million           AND SOCIAL                 collection can only be    personal liberties. The
grotesque and unjust      persons under              TRAGEDY                    denounced.                group’s
situation of working      guardianship. How          Within the framework                                 recommendations
without official          can all the aspects of     of his reflection on the                             contain almost all the
authorisation.            these persons’ life and    indemnity due to                                     reform proposals
                          family circle be taken     victims of asbestos,                                 made by the Mediator
                          into account?              the Mediator of the                                  of the French
                                                     French Republic was                                  Republic.
                                                     received by the
                                                     inspectorate general
                                                     of social affairs,
                                                     attached to the
                                                     Health Ministry, and




                                                                                         Mediator of the French Republic    3
     The year in figures
      The Institution’s
      overall results
       In 2006, the number of cases referred to the Mediator of the French
       Republic, the central services and delegates, increased by 4.5%
       compared to 2005, with a total of 62,822 cases received. Information
       and orientation requests received by delegate Mediators of the
       French Republic rose by 4.3%, compared to the previous year. The
       Institution handled 33,824 complaints, 6,948 of which were handled via
       the central services of the Mediator of the French Republic, in Paris. In
       2006, 48.4% of the complaints received by the central services were
       sent to the Mediator of the French Republic in line with the indirect
       referral procedure, through a member of parliament or a senator.Note
       that this percentage includes 209 cases subsequently regularised by
       the parliament (i.e. 6.2%).




                                        Number of cases
                                         received by the
                                      Institution as a whole


                                      62,822
                                             (+ 4,5%)




                                               Information and
                                                                           28,998
                         Complaints
                                           orientation requests
                         33,824                  (handled by delegate
                                                     Mediators of the
                                                    French Republic)
                                                                                (+ 4,3%)
                          (+ 4,7%)



                                              6,948     handled by the central services
                                                         (Institution’s headquarters)




                                           26,876             handled by delegate Mediators
                                                              (at the local level)




4   Annual Report 2006
        Activity of the central services
        Number of complaints received

                     6,445          6,948
          5,778




            2004     2005           2006



        Methods used to refer complaints to the Institution’s headquarters

                                                                                        "Direct" referral
                                                                                        (by mail or e-mail)
              2005                                          2006
54,2%                       45,8%           48,4%                    51,6%              Complaints sent through members
                                                                                        of parliament
                                                                                        Complaints initially sent directly
                                                               C                        then regularised later
                                                                                        Via the parliament: 6.2%
                                                       6,2%



        Rate of successful mediations
    13,5%                                            20%


                                                                                        U
                                                                                        Successful mediations
              2005                                          2006
                            86,5%                                    80%                Unsuccessful mediations




        Classification of closed cases according to fields of intervention
    14,5%                                           13,1%
                      22,5%                                        22,1%
                                                                                        Justice
10,1%                                       14,6%                                       Social
              2005                                          2006
                                                                     15,5%              General matters

                         19,5%                                                          Civil servants - pension

  33,4%                                       34,7%                                     Taxation




                                                                             Mediator of the French Republic        5
     The year in figures




        The delegates’ activity                                             S


         Information
         Areas concerned
 28,5%                                       25%

                                                                            Requests concerning
                                                                            a public service
               2005                                  2006
                              71,5%                                75%      Private matters




        Complaints
        Classification according to fields of intervention
                      7%                     15%            6,5%
 18,5%                                                                      Justice

                                                                            Social
                                      6,5%
6%                            26%
                                                                            General matters
               2005                                  2006          31%      Civil servants - pension

                                                                            Taxation

 31%                                    32%                                 Town planning
                       8,5%
                3%                                     2% 7%                Foreigners



        Handling of the cases
            7,5%
    7%                                            6% 7%                     Cases examined
                                             4%                             O
3,5%                                                                        Other transmissions
                                       11%                                  Unjustified complaints
10%                           69%
               2005                                    2006         68%     Complaints abandoned/withdrawn
 3%                                      4%
                                                                            Cases sent to the headquarters
                                                                            (within the headquarters’ field ofcompetence)
                                                                            Cases rejected without follow-up
                                                                            (outside the scope of activities)


                      7
        Rate of successful mediations by the delegates
 23,6%                                       21,9%

                                                                            Successful mediations
               2005                                    2006
                              76,4%                                 78,1%   Unsuccessful mediations




 6    Annual Report 2006
Sociological study of
the requests sent to the Mediator
of the French Republic
At the request of the Mediator of the French Republic, Sciences Po Développement (a research
organisation) conducted a study (1) about the requests received by the Institution’s headquar-
ters from March to September 2006. The conclusions of this study will be made public in the
course of 2007. The figures below are extracts from this study.



Who refers cases to the Mediator of the French Republic?
Category
 Men: 55%
  Women: 39%
  Couples: 5%

Age and status
 1 out of 10 persons is aged below 30
 1 out of 4 persons is retired
 2 out of 3 persons are of working age

Place of residence
  4% of the complaints are from people living outside France
  22% are from people living in the Paris region
  74% are from people living in other parts of France (including the French overseas
administrative departments and territories)

Socio-economic background
  33% are from people from a modest background
  37% are from people from an average background
  23% are from people from a rich background



What do people request from him?
  2/3 of the requests are from people who ask the Mediator of the French Republic to help
them cancel an administrative decision,or to push through a pragmatic solution to a dispute.
They concern "ordinary consumerism or sense of civic responsibility" (2), where the adminis-
tration is held responsible for the wrong done to the complainant.

  1/3 of the requests are "pleas in favour of equity",in which the requestor acknowledges the
fact that he or she is partly responsible for the case in question. It is then surprising to note
that the complainant attributes an extraordinary power to the Mediator,including the power
to reverse the course of events.This procedure is considered by the complainant as a last resort.

(1) This study, conducted by Mr Alain Chenu, director of the Sociological Observatory of changes (OSC/Sciences Po),
and Mr Nicolas Herpin (CNRS/OSC),with the help of a doctorand at Sciences Po,made it possible to examine in detail
more than five hundred letters.This sample was relatively representative of the French population.

(2) Notion developed in the global study to be published sometime in 2007.




                                                                                                              Mediator of the French Republic   7
     Tableofreforms
      Reform proposals completed
      in 2006
      13 proposals adopted
      Subject                                                                                            Completion date

      Fixing a deadline for issuing building permits for building projects near a listed site                24.01.06

      Granting family allowances for children living regularly in France                                     26.01.06

      Maintaining for children the increase in housing allowance in case of alternating custody              01.02.06

      Harmonising the disability pension and old-age pension benefits of unsalaried                          16.03.06
      agricultural-sector workers

      Fighting against forced marriages                                                                      15.05.06

      Access to the pension-benefit adjustment system for spouses of farm managers with multiple             18.05.06
      pension schemes

      Extending the system of replacing the indemnity paid in case of redundancy                             22.05.06
      with old-age pension

      Harmonising the surface area reserved for subsistence farming                                          26.06.06

      Amicable partition of a succession when one of the beneficiaries is a minor                            26.07.06
      or a protected adult

      Modifying the rules for publicising the registration of de facto couples and the rules governing       26.07.06
      their property

      The social security contributions paid by agricultural holdings for their casual workers               13.10.06

      Including positron emission tomography in the nomenclature of medical acts                             16.10.06

      Subrogation rights of the national insurance                                                           31.12.06




      4 proposals not adopted
      Subject                                                                                            Completion date
      Taking account of previous services for the redeployment of research lecturers                         18.01.06

      Tariff for the writ of summons delivered by bailiffs                                                   05.04.06

      Benefits of spouses of policemen/women killed in the course of service                                 24.08.06

      Social welfare rights of job-seekers opening a business                                                31.12.06




8   Annual Report 2006
18 reform proposals made
in 2006
Subject                                                                                                Submission date

Introducing the right to seek the decision of a judge, while contesting traffic code-related fines          16.01.06
                                                                                                       initiated on 26.12.05

Obligation to pay social security contributions for indemnities paid to jurors.                             26.01.06

Modifying the rules for publicising the registration of de facto couples and the property law               24.02.06
applicable to them.                                                                                     closed successfully
                                                                                                            on 26.07.06

Income tax and joint solidarity of couples in the legal sense of it                                         08.03.06

Equal treatment of physical persons, especially between married couples and de facto couples                10.03.06

Organising the activity of the legal representatives and guardians of protected persons                     17.05.06

Sharing the survivors’ pension benefit resulting from the death of a civil servant in case of               17.05.06
multiple marriages and death of a beneficiary

Access by notaries public to the computerized bank-account file (Ficoba)                                    11.07.06

The response time to be given to tax authorities and the tax judge                                          11.07.06

How to grant and calculate early-retirement benefits to disabled social security contributors               25.07.06

Managing the estate of persons under guardianship and who have been banned from holding a                   23.08.06
bank account

Representing de facto couples at a court of first instance and at a local court                             23.08.06

Reinforcing the powers of the judge in the application of the consumer law                                  04.10.06

Using an equivalent of the French tax notice for EU citizens, for housing and other social                  12.10.06
advantages

Bonuses for services taken into account while calculating the old-age pension benefits of female            12.10.06
civil servants with one or more adopted children

Centralised data on the withdrawal of bank cards                                                            24.11.06

Exempting from death duties the indemnities for hepatitis C infection                                       12.12.06

Fraudulent acknowledgement of paternity                                                                     21.12.06




                                                                                             Mediator of the French Republic   9
      Originofareform
       From social reality to law:
       how a reform proposal comes
       into being
        Initiating a debate on what is right and what is not right is the self-assigned
        mission of the Mediator of the French Republic. From detecting iniquities
        to proposing reforms, his methods give priority to listening and dialogue.
        This is evidenced by the two big reforms of 2006: reform of guardianship and
        the debate on bad credit.

       All the reform proposals made by the Institution are          the association Crésus; in October he went to Laon to
       based on a common methodology. First, detecting the           understand the working of the Passerelle (gateway) (an
       iniquity situations which most reflect the citizens’ real-    association created by the bank Crédit Agricole, spe-
       ity, by examining the requests sent to the Mediator of        cialised in accompanying excessively indebted persons);
       the French Republic.                                          in November he went to Brussels to study the working
       This first impression is then confirmed through rigorous      of Banque nationale’s positive centre. At the same time,
       field observations and in-depth consultation with the         he met with magistrates, the national association of
       players,as well as by enhancing the reflection with experts   judges of court of first instance, as well as representa-
       and deeply analysing the problems.                            tives of finance companies and universities. Consulting
       Finally, opening the debate to the general public and         with regional directors of Banque de France made it pos-
       helping political leaders take the decisions they may         sible to have an overview of the situation of excessive
       deem necessary in view of the facts available to them.        debts in France and of the new categories of people
                                                                     affected by this. The Mediator of the French Republic also
                                                                     organised, on 15 November, a working day with 18 con-
       Detecting iniquities                                          sumer associations. Obviously, these numerous players
       The cases examined by the services of the Mediator of         had been working to fight against excessive debts with
       the French Republic often raise question of social            similar proposals. But their messages and actions
       changes or iniquities to which politicians and law-           remained extremely compartmentalised. Sometimes,
       makers must find answers. Beyond the isolated actions,        the attention of the Mediator of the French Republic is
       the Mediator of the French Republic, his delegates and        also drawn to a phenomenon by external players. This
       the experts in his central services are attentive to the      was the case for guardianships and the legal status of
       unjust character of each situation. Behind an individ-        so-called “incapable” persons. Alerted by two journalists
                                                                     (1)
       ual complaint is often a problem that calls for a collec-        , the Mediator of the French Republic examined in 2005
       tive response.                                                the unacceptable abuse and legal loopholes which under-
                                                                     mined the protection of the most fragile members of
                                                                     society. Before starting any reform proposal process, and
       Meeting players                                               to form an opinion of his own, the Mediator of the French
       and nourishing reflections                                    Republic held several meetings with judges of the court
       From the 62,000 cases handled in the course of the            of first instance,family associations,and private guardian-
       year by the Institution, some injustices emerge with          ship managers. He went to the Lyon region to see how
       striking obviousness; others reveal themselves and are        the Union Tutélaire Rhône-Alpes (union of guardians in
       confirmed with time.                                          the Rhône-Alpes region) actually worked, accompanied
                                                                     by a member of parliament.He also met several with min-
       The problems of bad credit, one facet of which was men-       isters and was auditioned by the National assembly’s law
       tioned in the 2005 Annual Report of the Mediator of the       and social-affairs commissions. All the players agreed on
       French Republic, resulted in sustained exchanges and          the urgent need for such a reform. Therefore, despite the
       improvement efforts in 2006. In June, Jean-Paul Delevoye      existence of first-rate documents,such as the Favart report,
       went to Dijon to participate in an excessive-debt com-        and the draft law by Elisabeth Guigou, a final step
       mission; in September he went to Strasbourg to meet           remained to be taken: making a political decision.



10   Annual Report 2006
Opening a debate to the general public                         Bad credit: preparing for a national debate
When it becomes clear that a cause brings together             The press conference on "Bad credit: a new social emer-
many players, sometimes with different opinions as             gency?”, held on 14 December 2006, was attended by:
to the actions to take, around converging positions, it        • Georges Gloukoviezoff, sociologist
merits to be taken to the political scene in order to find     • Emmanuel Constans, mediator of Minefi, Chairman
the right answers. The third step in a reform proposal           of CCSF
can then be taken.                                             • Michel Philippin, manager of LaSer Cofinoga
For the reform of guardianship, the Mediator of the            • Christian Noyer, governor of Banque de France
French Republic decided to make a solemn call for a            • Philippe Flores, judge of court of first instance, co-
political decision, on 25 April 2006: "There is an urgent        chairman of ANJI
need for reform". To this end, he organised a press con-       • Benoît Jolivet, mediator at Fédération Bancaire
ference in which members of parliament and associ-               Française (federation of French banks)
ations (ANJI, ANGT, FNAT, UNAF, UNAPEI, UNASEA)                • Jean-Louis Kiehl, delegate Mediator of the French
participated. A few months later, a draft law was sub-           Republic, Vice-chairman of Crésus Alsace, executive
mitted to the Council of State. Presented to the coun-           chairman of fédération française Crésus
cil of ministers on 28 November 2006, it is to be debated      • René Petit, chairman of Passerelle, an organisation
upon at the beginning of 2007.                                   created by Crédit Agricole
                                                               • Jean Hilgers and Pierre Dejemeppe, manager of
The topic "Bad credit: a new social emergency?" was              Banque nationale Belgium and chairman of the com-
opened to public discussion on 14 December 2006. At              mittee accompanying central positive
a press conference, the Mediator of the French Repub-          • Damien Guermonprez, general manager of banque
lic expressed the view of major players (see box) whose          Accord
proposals, concerning in particular offering social assis-     • François Villeroy de Galhau, chairman and general
tance to the affected persons, giving a sense of respon-         manager of Cetelem. í
sibility to the players, taking a loan inventory and as
well as loan ethics, are currently being examined.



Guardianship: chronicle of a reform
• 23 November 2005: audition of Jean-Paul Delevoye
  by the Social Affairs section of the Economic and
  Social Council.
First semester of 2006:
• Meeting with Pascal Clément, the Justice Minister,
  and the minister in charge of families and elderly
  people
• Meeting with a member of the National Assembly’s
  social affairs commission
• 25.04.06: press conference on "Reform of guardian-
  ship: an urgent need"
• 22.05.06: speech by Jean-Paul Delevoye at the
  102nd congress of notaries public on the topic "Vul-
  nerable persons"
• Summer 2006: submission of the text to the Coun-
  cil of State                                                                          í LAW OF
• October 2006: Economic and Social Council report                                      3 JANUARY 1973
• 28.11.06: presentation of the reform proposal to the                                  “When it appears to the
  council of ministers                                                                  Mediator of the French
• 13.12.06: audition by the president of the National                                   Republic that the application
  Assembly’s law commission                                                             of a law or regulations results
• January 2007: opening the debate at the National                                      in injustice, he may suggest
  Assembly                                                                              such modifications to the law
(1) Linda Bendali and Nathalie Topalov, authors of La France                            or regulations as he deems fit”.
des Incapables, Cherche-Midi.




                                                                                          Mediator of the French Republic   11
      Cases treated
      bythe Mediator
                          It seems necessary for the citizen to become again
                          thefocus of public politics. Blended families, cross-border
                          migration, professional development are examples
                          ofissues which, within the current legal framework,
                          giveriseto deprivation of rights and increased inequalities.
                          The individual and social insecurities arising from bad
                          credit or increasing lifespan, for instance, call for a
                          reform. More than ever, protecting the weakest members
                          of society should be a concern for the politician and
                          law-maker.
                          Finally, in an increasingly complex society, access to law
                          isoften a real problem. Here again, it is not fair that the
                          most helpless be the first to be penalised.




                             The citizen at the heart of government policies
                             Adapting laws to the new situation in society     p. 13
                             Mobility and life course                          p. 21

                             Protecting the weakest
                             Protecting the most vulnerable persons            p. 32
                             Protecting the interest of victims                p. 43

                             Making the law easily accessible
                             and protecting individual freedoms
                             Opening new channels of access to the law         p. 49
                             Protecting individual freedoms                    p. 63

                             Bringing the values of mediation
                             to the world                                      p. 69
12   Annual Report 2006
THE CITIZEN AT THE HEART
OF GOVERNMENT POLICIES

  Adapting laws to
  the new situation
  in society
  Although the family is still the first circle of proximity,affection and protection,
  its representation has changed significantly. It has become a chosen and
  multiple-choice lifestyle. The legal statuses it is assuming and the blood ties
  it no longer necessarily covers blur the traditional boundaries. The law is
  increasingly tending towards a social reality characterised by births out of
  wedlock, blended families, voluntary separations or separate homes,
  imposed by professional life, etc. The Mediator of the French Republic is
  striving to have the law adapted to the 21st century family.His reform
  proposals contribute to the indispensable development of the law on
  issues like shared custody, taxation, fathers’ right, and the notion of couple.



  Harmonising the notion of couple
  The notion of couple:                             In fact, the right to and the amount of these
  a source of iniquities?                           welfare payments are subject to the “family
  § The minimum allowances paid to those            status” of the beneficiary. In some cases, the
  without any other income are multiplying          notion of family is strictly limited to the party
  and comprise today close to ten different         concerned and his or her spouse. In other
  types of allowances. This complex system is       cases,the notion is extended to the applicant
  equally a source of iniquities: some people       and his or her “de facto spouse”,“the person
  have access to allowances while others do         with whom he or she is living as man and
  not, and there is no difference in the situa-     wife”or with whom “he or she constitutes a
  tion of the parties concerned to justify such     family”.These are different expressions which
  an inequality. The Mediator of the French         result in inequality.The Mediator of the French
  Republic has,therefore,proposed a harmon-         Republic has, therefore, proposed to retain a
  isation of the resources applicable to the min-   single definition of “couple” that suits the
  imum benefits,especially the notion of couple.    recent changes in cohabitation practices.




                                                                                                 Mediator of the French Republic   13
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES


                                Regarding the welfare payment associated                Beyond this right to parentage,the non-recog-
                                with the retirement pension and disability              nition of stillborn babies is a source of another
                                benefits,this harmonisation of the notion of            iniquity between mothers and fathers. The
                                family is granted thanks to the creation of a           Mediator of the French Republic has thus been


             @
                                single welfare payment:the solidarity grant             alerted to the fact that fathers of stillborn
                                for elderly people,which will finally become            babies are refused the daily allowances
                                applicable early 2007. The notion of family             payable during paternity leave. Whereas, in
                                will thus be extended to married couples,de             the same situation, mothers are systemati-
         To see the cases
           handled by           facto spouses, and partners.                            cally granted their maternity leave, fathers
          the delegates                                                                 are only granted their paternity leave upon
        and specialists of                                                              presentation of a birth certificate attesting to
          the Mediator          In the absence of marriage,                             parentage, which is not issued for stillborn
          of the French         no trace of stillborn babies                            babies. Meanwhile, paternity leave can be
         Republic, go to:       § Changes in society and the slower legal               granted to the father of a baby who dies very
        www.mediateur-          changes sometimes lead to the emergence                 shortly after being born,but for which a birth
          republique.fr
                                of no-go areas and particularly cruel situa-            certificate has been issued. Therefore, the
                                tions. Thus, unmarried couples do not have              Mediator has asked that the fathers of these
                                any family-record book before the birth of              children be allowed to benefit from the daily
                                their first child. If said first child is a stillborn   allowances payable within the framework of
                                baby,no document will bear any trace thereof.           paternity leave.In October 2006,this proposal
                                According to the general Instruction on civil           was accepted by the ministry in charge of
                                status (IGREC), a stillborn cannot be recog-            social security.A decree is expected in Febru-
                                nised. To allow legal recognition and facili-           ary 2007.
        í LORRAINE
                                tate the parents’ mourning processes, the
        A father,
                                Mediator of the French Republic has recom-
        temporarily
        without any             mended that parents of stillborn babies,both            Married couples or de facto
        resident permit,        married and unmarried ones without any                  couples: the same property law?
        wishes to bury his      other child,be allowed to have a family-record          § An unexpected consequence of the cre-
        son in his country      book to record their dead child,and to recog-           ation of the civil solidarity pact (PACS) has
        of origin. The          nise the baby so that it can have parentage             shown how the notion of official couple still
        delegate Mediator       and a name. In view of the legal problems               needed to be harmonised. In January 2006,
        of the Vosges           arising from this sensitive issue, the Media-           the Mediator of the French Republic was
        intervenes at the
                                tor of the French Republic has created a work           alerted by the national association of judges
        prefecture.
                                group to really examine the possibilities of            of court of first instance (Anji) to the spectac-
                                improving the legal status of stillborn babies          ular rise in the number of requests for nulli-
                                to suit families most.A comparison with Euro-           fication of civil solidarity pacts at courts of
                                pean legislations shows that the French law             first instance. The number of these requests
        í SOCIAL
                                is behind on this issue. The Mediator of the            has doubled within three years! Why? This
        Mrs L. has already
        given birth to a girl   French Republic does not necessarily wish to            is because notaries public wish to protect them-
        (today aged 7), a       call to question the minimum threshold                  selves against future liability,since Article 515-5
        boy (stillborn) and     defined by the circular of 30 November 2001             of the Civil Code provides that any property
        will soon have a        and which was fixed on the basis of the rec-            acquired by partners of a civil solidarity pact
        third child.            ommendations made by the World Health                   is supposed to be subject to coparcenary,
        Nevertheless, she       Organisation (WHO).                                     unlike partners in a traditional marriage. In
        is refused the                                                                  view of this situation, the Mediator of the
        maternity leave for
                                                                                        French Republic proposed a reform of the
        the third child,
                                                                                        property law applicable to partners of the
        which is longest.
        The non-viable                                                                  civil solidarity pact wishing to opt for sepa-
        child is not taken                                                              rate estate instead of coparcenary. This pro-
        into account.                                                                   posal was taken into account in Law 2006-728
                                                                                        of 23 June 2006 on the reform of successions
                                                                                        and bounties.




14   Annual Report 2006
Spouse, de facto spouse, partner …                  de facto spouse if allowed. To comply with
Let us agree on one                                 the principles of accessibility and proximity,
§ In the citizens’mind,the word “spouse”is          which characterise the working of these
more and more equated with de facto spouse,         courts, the Mediator of the French Republic,
translating well the societal changes in this       therefore, proposed that Article 828 of the
respect.Now,a number of laws do not reflect         new civil procedural code be completed by
such changes and their application results          including de facto spouses and partners of a
in some misunderstanding on the part of the         civil solidarity pact as those authorised to
citizens.Thus,the persons authorised to rep-        represent a party at a court of first instance
resent a party at a court of first instance and     and a local court.This proposal also concerns
local court are, in addition to the lawyer, the     all the civil jurisdictions where representa-
spouse, parents or relatives up to uncles or        tion by a lawyer is not obligatory (industrial
nephews,and a civil servant.However,there           tribunal,jurisdictional court,agricultural rent
are no provisions for de facto couples or part-     tribunal,social court,courts handling disabil-
ners of a civil solidarity pact.Therefore,they      ity-related disputes).The justice ministry and
cannot represent their “spouse” at courts of        the ministry in charge of budget and State
first instance or local courts.Now,the national     reform have expressed their agreement with
association of judges of courts of first instance   this reform proposal. í
thinks that close to one-third of citizens wish-
ing to be represented before a court of first       The commission for administrative simplifica-
instance would like to be represented by a          tions (Cosa) is also in favour of this proposal.




                                                                                                 Mediator of the French Republic   15
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



                          Couples and the tax authorities
                          After the 2005 summer break, the National           by the report of the National Auditors Depart-
                          Auditors Department presented a study of            ment dated 21 September 2005.Finally,it does
                          the taxation scheme for couples, requested          not take account of geographic professional
                          by the Mediator of the French Republic.With-        mobility, one of the causes of separate resi-
                          out questioning the joint taxation scheme,          dence,independent of the existence of a dis-
                          this report showed that the currency ten-           agreement between the parties concerned.
                          dency towards new couple-formation modes
                          requires some tax reforms.In 2006,the Medi-
                          ator of the French Republic submitted sev-          Inconsistencies
                          eral proposals in this respect.                     in the income splitting system
                                                                              § The treatment given to widows or wid-
                                                                              owers depends on whether or not the
                          Married but not living under                        child/children resulted from a marriage with
                          the same roof!                                      the deceased. Thus, for a widow living alone
                          § Two delegate Mediators of the French              with a dependent child,the number of parts
                          Republic in the Vaucluse and the Var handled        may vary from 2 to 2.5. According to the
                          acomplaint from Mrs G.against the tax author-       National Auditors Department,“this distinc-
                          ities of Seyne-sur-Mer, which had refused to        tion between children had while married or
                          send to her husband, domiciled in the Vau-          out of wedlock […] is no longer adapted to
                          cluse, the council tax he was ready to pay for      the changes in society”. In fact, the income
                          agarage he had boughtas a separate property         splitting system has lost its consistency with
                          at his wife’s residence.The couple was,in fact,     the granting of additional half parts, espe-
                          married under the separate estate scheme and        cially to “bachelors or spinsters, divorcees or
                          is not living together (he lives in the Vaucluse    widows and widowers without any depend-
                          while she lives in the Var). Mrs G.’s husband       ent child” and living alone without any
                          had bought the garage at her residence in order     dependent children.
                          to park a boat he used only in summer.A first
                          intervention by the delegate Mediators made         To end this discrimination between “legiti-
                          it possible to clarify the situation with the tax   mate” children and “illegitimate” ones, the
                          authorities: the tax authorities were ready to      Mediator of the French Republic has proposed
                          meet the requesters’need,provided they prove        to remove the provision of Article 194 of the
                          that the garage was only used by the husband        General Tax Code so as to eliminate the dis-
                          living in another department. An affidavit          crimination based on the origin of a child for
                          signed by the husband and forwarded by the          a widow/widower.This proposal is in accor-
                          delegate Mediator was enough to have the tax        dance with decree 2005-759 of 4 July 2005 on
                          authority reimburse Mrs G. the unduly col-          the reform of parentage,which has done away
                          lected tax.                                         with the distinction between “legitimate”
                                                                              and “illegitimate” children.
                          In the name of the principle of reality,
                          the Mediator of the French Republic has sug-        The institution has also proposed that the
                          gested that certain inconsistencies be removed      system of granting an additional half part be
                          from the tax law,especially the specifications      replaced with a system of abatement, to
                          of Article 6 of the General Tax Code:“Spouses       decrease the amount of tax payable,for bach-
                          shall be subject to distinct taxation if married    elors, divorcees or widows without any
                          under the separate estate scheme and if they        dependent children or with adult children no
                          do not live under the same roof […]”. In fact,      longer fiscally attached to them.
                          this provision, equally applicable to de facto
                          couples, is the only provision of the General
                          Tax Code that uses matrimonial relationship
                          to determine the separate taxation of cou-
                          ples if said couples are not living under the
                          same roof. It "can create situations of iniq-
                          uity" in terms of income tax, as underlined




16   Annual Report 2006
De facto couples and married                     When misfortune drains finances                      í TAXATION
couples: still some tax iniquities               § It is obvious that in case of misfortune,espe-     In Seine-Maritime,
§ Inequitable tax situations exist between       cially for married couples,the weakest is some-      Mr A., a divorcee,
de facto couples and married couples.One of      times not protected.The Mediator of the French       has custody of
                                                                                                      his children and
them concerns,especially,the tax exemption       Republic handled this problem already in his
                                                                                                      pays alimony to
for the capital gain made from the sale of a     2004 annual report. The same problem was
                                                                                                      his ex-wife. He is
main home. For separated or divorced cou-        equally treated in the 2005 report of the Medi-      granted 3.5 parts,
ples, when any of the parties is obliged to      ator of the Economic ministry, according to          but he is not
leave the matrimonial home, the adminis-         which "the attention given to requests for           allowed to deduct
tration applies the exemption to the sale of     release from joint responsibility for taxation       the alimony.
their home, provided the home was the            reflects the insufficientconsideration of changes    He is surprised
spouses' main home during the separation,        in family situations. Special attention should       about this.
and that the sale, motivated by the separa-      be paid to requests for release from responsi-
tion, takes place after a normal sale period     bility. At least, the requestor should not be
usually estimated at one year. On the other      required to pay penalties for the reprehensi-
hand,for de facto couples or couples formed      ble behaviour of his or her spouse if it cannot
under a civil solidarity pact, the one leaving   be established that the requestor had partici-
the home has to pay tax on his or her own        pated in the said behaviour".The joint respon-
share of the capital gain from the sale! More-   sibility of spouses,provided for in Article 1685
over,the difference in the taxation procedure    of the General Tax Code, may have dramatic
for the sharing of a property jointly acquired   human consequences for an ex-spouse. This
by de facto couples and which is not their       is why the Mediator of the French Republic
main home, and the exemption of married          recommends that it be made obligatory to
couples from this tax, is an injustice against   notify the other spouse about the existence
de facto couples.                                and results of an investigation,indicating the
Therefore,the Mediator of the French Repub-      nature and extent of his or her joint responsi-
lic has proposed that an end be put to these     bility for the income tax. No text actually
fiscal differences, by extending to de facto     requires the administration to send to the per-
couples the same system applied by the           son deemed jointly responsible with his or her
administration for separated or divorced cou-    spouse a warning indicating the taxes due by
ples in terms of the capital gain made from      this latter after a tax investigation. Further-
the sale of their main homes, and the shar-      more,the Mediator of the French Republic pro-
ing of a property jointly owned by de facto      poses that the joint responsibility of an
couples or civil solidarity pact partners.       ex-spouse be limited only to the payment of
                                                 simple fees, once he or she establishes his or
                                                 her good faith. This is important in that fines
                                                 and increments may represent a high percent-
                                                 age of the amounts the payment of which is
                                                 required. í




                                                                                              Mediator of the French Republic   17
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



        í SOCIAL FIELD         Shared custody: customary
        Mr F., waiting to
        obtain a divorce,      but not (yet) legalised
        receives his
        children in his        For some years now,the Mediator of the French      The Mediator has,therefore,made a proposal
        home once every        Republic has been studying the question of         to reform the method of paying family
        two weeks.             alternating custody,and has been making pro-       allowances to parents when alternating cus-
        He employs a           posals aimed at maintaining the link between       tody is retained during divorce or separation.
        childminder but
                               children and divorced parents to enable these
        cannot obtain any
                               latter to play their parental roles.               In January 2006,the decision of the Court of
        help: only one
        parent is entitled                                                        Appeal was sought by social security courts
        to family                                                                 in a case in this connection. Without prece-
        allowances.            Shared custody: inappropriate                      dent and exceptionally, the Mediator of the
                               Social Security Code                               French Republic and the ministerial delega-
                               § The law of 4 March 2002 clearly recognised       tion for families helped the Appeal Court in
                               alternating custody.This solution reflects the     its preparatory work and issued a joint reflec-
                               changes in our society and takes account of        tion. On 26 June 2006, the Appeal Court
                               the wish of fathers to continue raising their      decided in favour of granting family
                               children.In France,alternating custody is prac-    allowances on a turn-by-turn basis to divorced
                               tised by 10.3% of divorcees.However,the rules      parents in case of alternating custody.
                               governing the payment of family allowance
        í SOCIAL FIELD         in case of alternating custody still contradicts
        Mr and Mrs S. are      the general development of the family law.         New developments in 2007
        separated. The         A lot of fathers have complained to the Medi-      § The relevant ministers have informed the
        court has decided      ator of the French Republic about this unjust      Mediator of the French Republic that they are
        in favour of sharing   situation:why should only one of the divorced      in favour of a fairer distribution of family
        the children’s
                               or separated parents be paid the family            allowances. Thus, the law on the funding of
        custody and family
                               allowance in case of alternating custody,          social security for 2007 provides that family
        allowances. But
        Mrs S. keeps           whereas both of them share equally the result-     allowances may be shared between fathers
        everything, and        ant expenses? Most often fathers are disad-        and mothers practising alternating custody
        Mr S. cannot obtain    vantaged by this illogicality.                     of their children. This is the first significant
        his own share from                                                        progress for the families concerned.However,
        the social security    An example is the case of Mr F. Waiting to         the practical modalities of this sharing have
        office (CAF).          obtain a divorce for the past two years, Mr F.     not yet been defined,neither has this system
                               receives his children in his home once every       been extended to other types of family
                               two weeks. Since his wife is not working, he       allowances. These are missions entrusted to
                               accepts that she be the one to claim the fam-      a workgroup created by the Social Security
                               ily allowance to enable her receive family         Minister and in which the Mediator of the
                               allowances and housing benefits. Mr F.             French Republic is participating.
                               employs a childminder when he has custody
                               of his children,due to his professional obliga-
                               tions. In view of the existing law,which pro-
                               vides that only one person identified as
                               beneficiary is entitled to the family allowance
                               payable for the same child,he has been unable
                               to obtain any allowance in connection with
                               his children’s custody.




18   Annual Report 2006
Teachers: alternating custody
now recognised
§ For divorced or separated teachers having
                                                  Other measures recommended by the Medi-
                                                  ator of the French Republic for civil servants:
                                                  his attention was drawn to the need to com-
                                                                                                                      @
                                                                                                                  To see the cases
alternating custody of their children,the Medi-   plete the regulations on the modalities for
                                                                                                                    handled by
ator of the French Republic had proposed that     granting family income supplement (FIS) in
                                                                                                                   the delegates
the increment of the housing allowance (IRL)      order to take account of the situations of                     and specialists of
for dependent children be maintained.It has       divorce where ex-spouses have alternating                        the Mediator
to be specified here that the IRL is payable by   custody of their children.In fact,no provision                   of the French
the municipality if it cannot provide accom-      seems to have been made for a seemingly                         Republic, go to:
modation for its employees.An increment of        frequent situation of joint custody of a child,                www.mediateur-
this allowance is planned for married teach-      with alternating homes.This reform proposal                      republique.fr
ers with or without dependent children, as        is still awaiting adoption. í
well as for unmarried ones, widows or
divorcees with dependent children. In case
of divorce or separation, the teacher lost this
increment if the child was fiscally attached
to the other parent,even when the expenses
for this child were shared equally by both par-
ents. This anomaly was remedied by Decree
2006-24 of 3 January 2006.The increment of
IRL is henceforth granted to "a divorced or
separated teacher having alternating custody
of at least one of his or her children”. This
applies to both parents if both of them are
teachers. The reform became effective on
1st February 2006.




                                                                                                    Mediator of the French Republic   19
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



                          Fathers’ right increasingly visible
                          Prior to the pension law of 2003,only female      The French Council of State,in a ruling issued
                          civil servants with three children could be       on 29 July 2002,stated that civil service pen-
                          granted some bonuses while calculating their      sions were payments and that “the French
                          pension benefits. But not men.                    civil service pensions rule was incompati-
                                                                            ble with the equal pay principle, in that it
                          The European Court of Justice’s (ECJ) Gries-      adds one year to a female civil servant’s
                          mar decision of 29 November 2001 has made         working life,for the purposes of pension cal-
                          its mark. Joseph Griesmar, a male civil ser-      culation, for each child she has, but not to
                          vant and father of three children, claiming       her male colleagues who had also educated
                          to be a victim of sexual discrimination per-      their children”.
                          taining to the calculation of his pension enti-
                          tlements,filed an appeal with the European        Therefore, the law on civil service pensions
                          Court of Justice and the Council of State.        reform dated 21 August 2003 extended to
                                                                            male civil servants the one-year bonus pre-
                                                                            viously available only to their female col-
                                                                            leagues. Nevertheless, to be entitled to this
                                                                            bonus, a civil servant has to interrupt his or
                                                                            her activity for at least two months to raise
                                                                            a child,either within the framework of mater-
                                                                            nity leave,adoption,or parental presence,or
                                                                            temporary leave. The same thing applies to
                                                                            early retirement after fifteen years of serv-
                                                                            ice, with immediate effect and previously



                          “
                                                                            reserved only for female civil servants with
                               Since European laws                          three children without any particular condi-
                          have not yet been                                 tion;this was extended to male civil servants
                          harmonised, consumers of                          by the financial lawamendmentof 30Decem-
                          welfare benefits tend to                          ber 2004,subject to an obligatory two-month
                                                                            interruption of activity for each child.
                          choose their rights and
                          lifestyle. In one country,                        While handling the numerous individual
                          social protection will be                         complaints, the Mediator had the opportu-
                          more interesting for them,                        nity to explain the field of application of these
                          and in another taxation, etc.                     new provisions. í
                          Nomadism of consumer-
                          citizens is a recent but real
                          development in Europe.”




20   Annual Report 2006
Mobility
and life course
Mobility is at the heart of modern life. When people move to a foreign
country to study, work or stay with their spouse, they are faced with
different laws and legal systems, especially for their professional and social
integration. When they return to France, it is sometimes difficult for these
persons to have their diplomas and rights recognised, even when their
movements had been limited to Europe. Therefore, there is sometimes
a wide gap between the advocated “European mobility” and actual
harmonisation of the different laws… Moreover, mobility is not just geographic.
It can be sectoral. This is the case of people who, in the course of their
professional life, change from being a private-sector employee to a civil
servant or self-employed worker.
This change of status often results in a number of problems, which in turn
leads to the increasing number of complaints received by the Mediator of
the French Republic. They concern such issues as taxation, pension,
unemployment benefits, recognition of professional experience and diplomas.


Professional circle:
which recognition for diplomas?
Stateless diplomas                                versity of Sarajevo,Bosnia-Herzegovina should
§ Mr T.obtained his Architecture diploma at       have applied officially for the recognition of
the University of Sarajevo in 1978.This diploma   their diplomas. But even if it had,Mr T. could
was issued to him in the name of the Repub-       not have benefited from such recognition
lic of Yugoslavia – Republic of Bosnia-Herze-     since he had never had the Bosnian nation-
govina. Mr T. lives in France as a political      ality… When this problem was referred to
refugee but his diploma is not recognised         him, the Mediator of the French Republic
because, since the division of his country of     argued that whether it had been issued by
origin in 1992,diplomas from the University       the University of Belgrade or that of Sarajevo,
of Sarajevo are no longer recognised. Only        the diploma at that time came from the same
diplomas from the University of Belgrade are      State. It had, therefore, been issued in the
again recognised since 2002. For Mr T.’s          name of a united Yugoslavia. Although the
diploma to be recognised in France, the Uni-      recognition of diplomas is determined by the




                                                                                             Mediator of the French Republic   21
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



        í GENERAL             date of the relevant decision and not by the      appointments commission. Another impor-
        MATTERS               date on which the diplomas have been              tant development: holders of Certificat de
        This foreign female   obtained,the Ministry exceptionally allowed       synthèse clinique et thérapeutique (a certifi-
        doctor, married to
                              Mr T.to be registered with the association of     cate required by non-residential medical stu-
        a French citizen,
                              licensed architects,thus enabling him to exer-    dents to replace a general practitioner) will
        cannot practise
        medicine in France.   cise his profession in France, in view of his     be exempted from this exam, since the
        She must wait for     status as a political refugee and the fact that   exams for this certificate are the same. The
        the new tests         his diploma had been issued by a country          application modalities for this system will
        planned for 2007      which was then unified.                           be defined by decree and in conjunction with
        within the scope of                                                     the parties concerned. The Mediator of the
        the new approval                                                        French Republic will remain vigilant regard-
        procedures.           Foreign doctors:                                  ing the application of this reform.
                              recruited but not recognised
                              § This is a very frequent situation among
                              doctors and other healthcare workers with         No-go areas still exist
                              diplomas from non European Union coun-            § Some cases of doctors with non-European
                              tries. All along 2006, the Mediator of the        Union diplomas are not covered by any sys-
                              French Republic strove to find a solution to      tem. This is the case of this midwife who,
                              the problems of doctors whose status mer-         although married to a French citizen since
                              ited to be protected both for their sake and      1989, has only been able to gain admission
        í GENERAL             for the sake of the hospitals employing them      into the national school of midwifery as a
        MATTERS               in conditions that had become illegal in the      foreign student,since she was granted French
        Despite his
                              sense of the 1999 law on universal medical        citizenship a year later. As a result, she only
        diploma from the
        University of Dakar   coverage. Whereas these doctors had come          had a “school leaving certificate” and could
        and further           to make up for the want of medical person-        not work in France. Since her husband had
        training in France,   nel in French hospitals, they found them-         been sent on a mission to Cape Verde Islands,
        this oral surgeon     selves in the grotesque and unjust situation      she was able to work there for ten years.
        cannot exercise his   of working without official authorisation.        When she returned to France, she went for
        profession in         Some trade unions referred the matter to          a four-year training course in France, passed
        France. He must       the Mediator, who met several times with          her final year examination with honours,
        wait for the new
                              the Health Minister on this issue. A fair solu-   coupled with the ten years professional expe-
        regulations…
                              tion is proposed in the law on the funding        rience acquired in a foreign country. Still she
                              of the social security for 2007, which pro-       was not allowed to exercise her profession
                              vides for a derogatory procedure authoris-        in France. She has been invited for aptitude
                              ing foreign doctors recruited before 10 June      tests which will take place in 2007. í
                              2004, the date of the application decree of
                              the 1999 universal medical coverage law, to
                              work in France. The measure institutes an



                                                                                “
                              examination by profession,discipline or spe-
                                                                                     We are in a society
                              cialty – and no longer a competitive test,
                              which will be reserved for them. The practi-
                                                                                clearly tending towards
                              cal modalities for this test should make it       the inversion between
                              possible to better take account of already        the community and the
                              acquired professional experience. Accepted        individual.
                              candidates will then be assessed by the           Previously, it was the
                                                                                community that made and
                                                                                protected the individual.
                                                                                Today, emphasis is fully
                                                                                on the individual. The
                                                                                individual is given maximum
                                                                                freedom, and is thus prone
                                                                                to maximum fragility.”




22   Annual Report 2006
Uniform European laws
No tax notice, no access                           Profession: different                                      í SOCIAL FIELD
to welfare benefits!                               definition between France                                  A French couple
§ In France,for you to have access to various      and the European Union                                     moves to work for
welfare benefits (social housing, zero-rate        § What happens when the definition of a                    four years in
loans, etc.), you must present an income tax       profession differs from one country to the
                                                                                                              Canada. When they
                                                                                                              returned to France,
notice. Now, for EU citizens and French citi-      other and from the national to Community
                                                                                                              Assedic (the
zens working in another European Union             levels? This is the case for Mr Y.,a dental lab-           organization
country, it may be impossible to meet this         oratory technician, whose micro-enterprise                 managing
requirement.Still no law had made any pro-         status was reversed after an inland-revenue                unemployment
vision for this situation.In other words,if the    inspection.In France the definition of a den-              contributions and
regulations are strictly applied by the organ-     tal laboratory technician covers two activity              payments in
isations in charge of council flats,France will    types: manufacturing and service. For the                  France) refused
not be able to provide social housing for these    status of micro-enterprise, the French taxa-               them the
residents,even if their taxable income in the      tion law fixes the maximum income limit
                                                                                                              allowance offered
                                                                                                              to people wishing
EU member-State where they lived previ-            for each of these two activities.The distribu-
                                                                                                              to return to work
ously did not exceed the ceiling fixed by inter-   tion of Mr Y.’s income was not compliant with              (ARE).
nal regulations.                                   this rule. Contesting this decision based on
                                                   the fact that the activity of a dental labora-
This situation could be interpreted by the
Community judge as a de facto discrimina-
tion against Community citizens living in
                                                   tory technician consisted only of manufac-
                                                   turing,Mr Y.sought the help of the Mediator
                                                   of the French Republic. Upon examination
                                                                                                                  @
France or against French nationals who have        of the case,it was confirmed that the assess-             To see the cases
lived outside France for several years.There-      ment made by the tax inspection service con-                handled by
fore,it is incompatible with the Community         cerning Mr Y.'s activity was in line with the              the delegates
law. This is why the Mediator of the French        existing taxation rules. However, this posi-             and specialists of
                                                                                                              the Mediator
Republic has proposed a reform which takes         tion of the French administration turned out
                                                                                                              of the French
account of a document that is equivalent to        to be incompatible with a higher standard:
                                                                                                             Republic, go to:
the French income tax notice for granting a        a European directive defining the activity of            www.mediateur-
council flat or access to other social benefits.   a manufacturing dental laboratory techni-                  republique.fr
                                                   cian. On 13 June 2006, the Economic Minis-
                                                   ter modified the position of the French tax
                                                   administration about the qualification of the
                                                   activity of a dental laboratory technician.
                                                   Thanks to this modification,the situation of
                                                   Mr Y. was re-examined, and the new provi-
                                                   sions applied exceptionally to the reminders
                                                   sent to him for 2001 and 2002. í




                                                                                               Mediator of the French Republic   23
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



                          Professional mobility and compartmentalisation
                          of social security schemes

                          The changing working world, professional          Impact of “jumping”
                          developments,and lifestyles,both chosen and       from one status to the other!
                          unchosen, are compelling more and more            § In a country where social welfare is based
                          people to change their status successively        on historically rather fixed professional status,
                          from employee, business creator, service          the recent changes may result in loss of social
                          employee,self-employed worker,or even job-        rights,even for those that have never stopped
                          seeker or social benefit beneficiary.             working. This is the case of Mr R. who had
                                                                            worked for twenty years as a self-employed
                                                                            craftsman but had to sell his business.
                          Double mobility:                                  Since he wanted to continue working,he took
                          geographic and sectoral                           up a salaried job and was affiliated to the local
                          §The delegate Mediator of the French Repub-       sickness insurance fund as from 1st October
                          lic in the Loire handled a typical case involv-   2004. Hospitalised for serious infection on
                          ing the double problem of geographic              1st April 2005, he received daily sickness ben-
                          mobility and sectoral mobility,showing that       efit until 30 September 2005. As from this
                          the status of employer and the nature of work     date the daily sickness benefit was suspended,
                          contract are too quickly lumped together.The      because the conditions for receiving this ben-
                          proof: Mrs L., who lives in Eastern France,       efit requires,as from the seventh month,200
                          worked as a nurse at a hospital centre in Lux-    working hours as an employee within the
                          embourg until April when she stopped work-        first quarter of the year preceding the sick
                          ing there because she had to follow her           leave…, which would be difficult for Mr R. to
                          husband who had been transferred to the           show since he was still a self-employed crafts-
                          Loire. Since she wished to find a job, she reg-   man at the period in question! The amicable
                          istered with Assedic and accepted a tempo-        settlement board to which the matter was
                          rary employment from July to September.           referred by Mr R.’s spouse confirmed the deci-
                          She then applied for the allowance granted        sion of the insurance fund,stating that there
                          to those wishing to return to work (ARE), for     was no coordination between the fund for
                          May, June, October and November. She was          non-salaried workers and the general insur-
                          surprised to receive a letter from Assedic,       ance scheme! In fact, although the period of
                          rejecting her application for ARE because her     insurance in the social security scheme for
                          employer in Luxembourg was a public-              self-employed workers is already taken into
                          sector employer… But Mrs L. had been              account for the invalidity insurance, it has
                          recruited as a private-sector nurse. Still this   not been translated into law to give access to
                          argument remained without any response            the daily sickness benefit payable within the
                          until Mrs L. sought the help of the delegate      scope of the general insurance scheme.Unfor-
                          Mediator in the Loire.The delegate Mediator       tunately,Mr R.’s state has not stabilised,which
                          then notices the error of which Mrs L. had        is a prerequisite for being declared invalid.So,
                          been a victim,contacts the director of Assedic    because he had taken up a salaried job and
                          to draw his attention to the contestable con-     is thus covered by the general social security
                          fusion between the status of employer and         scheme, the social-security contributor is
                          the nature of work contract,and asks him to       excluded from a right acquired under his pre-
                          re-examine the matter. A few months later,        vious scheme and which he could have
                          the director of Assedic notified the delegate     retained had he remained inactive.
                          Mediator that Mrs L.’s application for ARE had
                          been approved and informed Mrs L.that she         This situation seems fully unfair.To solve this
                          would receive a backpay of the correspon-         kind of problem, the Mediator of the French
                          ding allowance,that is one year after her ini-    Republic plans to propose that full coordina-
                          tial request.Meanwhile,Mrs L had fortunately      tion be introduced between the health insur-
                          found a new job.                                  ance scheme of self-employed workers and
                                                                            that of employees.




24   Annual Report 2006
The pernicious impact of                           It also has to be specified that the new laws
employing private-sector workers                   have had a pernicious effect, especially for
in the public sector...                            small communities.Contrary to the expected
§ In the spring of 2006,the mayor of a town        result, they have slowed down the employ-
in Pas-de-Calais alerted the Mediator of the       ment of private-sector workers due to inher-
French Republic to the difficulties arising        ent the additional costs…
from new laws concerning the career of cat-
egory C regional employees, although the           The Mediator of the French Republic has,
purpose of said laws is to adapt better the        therefore,alerted the government and mem-
redeployment possibilities for employees           bers of parliament to this situation. í
who have just been given a permanent sta-
tus:civil servants,contract civil servants under
public law, or private-sector employees.

These new laws are actually intended to encour-
age the employment of private sector workers
and to create a gateway between the private
sector and the public sector. They offer three
redeployment possibilities:for former civil ser-
vants:resuming full-time services;for contract
civil servants: resuming three-quarter of the
                                                   “    We have noticed that
                                                   Europe has done away with
                                                   its monetary borders but
                                                   has built legal borders.
services;finally,for employees from the private    There might be some legal
sector:resuming half of the service.               conflicts. The European
                                                   mobility may weaken the
                                                   situation of French workers.”




                                                                                             Mediator of the French Republic   25
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



                               Coordinating the social security schemes
                               of civil servants

        í PENSION              The coexistence of three categories of civil      Some civil servants are
        BENEFITS OF CIVIL      servants whose statuses,regulations,schemes       automatically sent on sick leave,
        SERVANTS               and laws are not always compatible some-          others not!
        Mrs C. is separated    times creates situations of injustice to which    § Government employees,regional employ-
        from her husband,
                               the Mediator of the French Republic was           ees and hospital employees have a special
        a railway worker.
                               again alerted in 2006.                            social security scheme. The application of
        When her husband
        died, SNCF (the                                                          these three schemes differs from that of the
        French national                                                          general social security scheme in that admin-
        railway company)       Contested career reconstitution                   istrations are entrusted with implementing
        refused to pay         § At the beginning of 2006, the attention         them in accordance with the provisions of
        her the widow’s        of the Mediator of the French Republic was        existing articles, but also in line with some-
        pension.               drawn to the situation of 130 doctors work-       times scattered laws which are not always
        Nevertheless, this     ing with the Education Ministry, who had          known to their services… This situation cre-
        should be brought
                               been reclassified under very unfavourable         ates inequality of treatments, especially for
        into line with the
                               conditions after being granted permanent          regional and hospital employees. This is
        general social
        security scheme,       staff status following a special competitive      because,although the rules on sick leave are
        which is more          exam organised in 1993. The parties con-          properly applied, the same thing does not
        advantageous…          cerned had been classified as grade 2 Educa-      obtain when the employees have used up
                               tion Ministry doctors whereas some of them        their statutory rights. These civil servants
                               had worked for over twenty years as tempo-        then find themselves in a very irregular sit-
                               rary employees!                                   uation and are sometimes deprived of their
        í SOCIAL FIELD                                                           rights, thereby not receiving any payment,
        In the course of his
                               Alerted to this situation,the Mediator of the     or special social security benefit… Thus,very
        professional life,
        Mr V. was affiliated   French Republic notified the Education min-       recently, the Mediator of the French Repub-
        to the general         ister about this, emphasising the need to         lic obtained that a regional employee be
        social security        reform this classification. This classification   finally sent on sick leave automatically,after
        scheme, then           conferred on said doctors a very unfavourable     four and half years,and that he or she be paid
        the civil service      career, compared to other members of the          cash benefits retroactively. In view of these
        scheme. But            medical profession, whereas they fulfilled        complaints and within the framework of his
        the rules for          the same missions. The Mediator of the            reform powers, the Mediator of the French
        calculating old-age
                               French Republic was heeded since a decree         Republic proposed that the provisions of the
        pension are
                               dated 27 July 2006 was published in the Offi-     special social security scheme be integrated,
        different and his
        pension is             cial Journal of 29 June 2006, modifying the       for civil servants, into the statutory provi-
        reduced…               statutory decree of 27 November 1991.             sions,and that decree 86-442 on the mainte-
                                                                                 nance of half pay for government employees
                                                                                 be extended to the three categories of civil
                                                                                 servants,in accordance with equality of treat-
                                                                                 ment. Part of this reform proposal was
                                                                                 received favourably for public hospital
                                                                                 employees (Decree 2006-1466 of 27 Novem-
                                                                                 ber 2006). í




26   Annual Report 2006
Work contracts in the private sector                                                                          í PENSION
                                                                                                              BENEFITS OF CIVIL
                                                                                                              SERVANTS
Penalising job-seekers                              less favourable protection… especially if the             Mururoa was then
opening a business                                  contributions to the scheme for the self-                 a French territory…
§ Indemnified job-seekers who decide to             employed have not been paid in full... which              At retirement age,
open a business but fail in their initiative suf-   is almost always the case when the created                the servicemen on
fer some penalties, which is not encourag-          business fails! In fact, in this situation, no            secondment in the
ing for those wishing to return to work.Thus,       cash benefits (daily sickness benefit,invalid-            Pacific remember
                                                                                                              this, but not the
when after closing their business, the per-         ity benefit) can be paid.
                                                                                                              administration.
sons concerned exercise their right to unem-
                                                                                                              The intervention
ployment benefits to which they may be              It is paradoxical and unjust that after taking            of the Mediator
entitled as a result of their previous salaried     the risk of opening a business instead of con-            of the French
work, they retain the welfare benefits pro-         tinuing to benefit from their status of indem-            Republic has been
vided by the scheme to which they were pre-         nified job-seekers, these job-seekers are                 necessary.
viously affiliated. That is, the scheme for         penalised when obliged to fold their business.
non-salaried workers if in the business             Therefore,the Mediator of the French Repub-
opened, the parties concerned had chosen
this status.Although they are again allowed
access to the unemployment benefits they
                                                    lic has proposed to improve the protection of
                                                    job-seekers opening a business by allowing
                                                    them to benefit from the general social secu-
                                                                                                                   @
had constituted as employees, the parties           rity scheme for the period during which they              To see the cases
concerned are attached to the scheme for the        may exercise their right to unemployment                    handled by
self-employed to which they were only affil-        benefits again: a period of three years after              the delegates
iated for a while,and which may offer them          interruption of the unemployment benefit.                and specialists of
                                                                                                               the Mediator
                                                                                                               of the French
                                                                                                              Republic, go to:
                                                                                                             www.mediateur-
                                                                                                               republique.fr



                                                                                               Mediator of the French Republic    27
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES



        í PENSION               Now, the law on the funding of the social         ers were recruited within the framework of
        BENEFITS OF CIVIL       security for 2007 contains a provision the        one or more fixed-term contracts,over a period
        SERVANTS                impacts of which are radically the opposite,      of one hundred and fifty-four consecutive or
        Mrs W., a resident      since it requires all persons opening a busi-     non-consecutive calendar days, within one
        of the Bas-Rhin,
                                ness to be immediately affiliated to the social   calendar year.Nevertheless,if within the year
        wishes to have her
        civil-service years     security scheme to which they are attached        the holdings decide to offer an open-ended
        re-established by       by virtue of their status (social security        contract to these same workers, they loose
        the general social      scheme for the self-employed or more rarely       this reduction.
        security office.        the general social security scheme).The Medi-
        This is acceptable      ator of the French Republic has alerted,with-     To correct this malfunction, the Mediator of
        provided she            out success, the government and members           the French Republic had proposed a modifi-
        reimburses the          of parliament to the negative impacts of such     cation of the decree in question to encourage
        sums she had            a reform on the situation of job-seekers open-    the holdings concerned to create long-term
        already received:
                                ing a business.He plans,however,to re-exam-       jobs,without changing the one hundred and
        it is forbidden to
        accumulate              ine this issue with the relevant ministries,      fifty-four calendar days rule.
        disability pension      with a view to aligning better the social secu-
        of the same origin      rity schemes for salaried and self-employed       Law 2006-11 of 25 January 2006 on agricul-
        under two               workers. The objective is to ensure that a        tural orientation introduced a new provision
        different schemes!      change of affiliation does not penalise job-      that allows the reduction of social security
                                seekers opening their business and loosing,       contributions to be maintained when a fixed-
                                as a result, their general social security cov-   term contract is changed to an open-ended
                                erage.                                            contract.It also ushered in new reductions in
                                                                                  the employer and employee social security
                                                                                  contributions payable for casual workers,and
                                Helping create long-term                          exempts persons aged below 26 from pay-
                                employment for casual workers                     ing employee social security contributions
                                in the agricultural sector                        for a maximum period of one month. These
                                § Decree 95-703 of 9 May 1995 provided,for        new laws encourage the holdings to convert
                                agricultural holdings,a reduction in the social   certain short-term work contracts to long-
                                security contributions inherent in the salaries   term contracts, in line with the proposal by
                                of their casual workers, if said casual work-     the Mediator of the French Republic. í




                                 When the retirement age arrives…
        í PENSION
        BENEFITS OF CIVIL       Long career and early retirement:                 L.351-1-1, D. 351-1-1 and R. 351-27 of the Social
        SERVANTS                conditions not always well under-                 Security Code,there are some conditions for
        Mr F., of the Haute-    stood                                             paying retirement benefits before the age
        Garonne, started –
                                § In view of the massive arrival at retire-       of 60. They concern the duration of insur-
        and ended – his
        career with the         ment age of the post-war generations, and         ance (at least 168 validated quarters), the
        national police         considering the increasing lifespan,pension       duration of social security contribution
        force. But the          reform law 2003-775 of 21 August 2003 was         (which varies according to the age at which
        records for his first   passed to maintain the equity and spirit of       one’s career was started and the retirement
        employment have         social justice which characterise our pen-        age) and the start of activity.Without impact-
        apparently been         sion schemes. This law introduced, among          ing the rule about the legal minimum retire-
        lost. The Mediator      others, new guarantees such as taking into        ment age (60 years), the law of 21 August
        of the French           account long-term careers.This right to early     2003, thus, introduced a possibility of dis-
        Republic assists
                                retirement, provided for in Article 23, con-      pensation on these three conditions. Now,
        him to recompile
        his record so he        cerns people who started working before           this notion of accumulation of conditions
        can claim the full      the age of 17. These workers may exercise         has led to some complaints. For example,
        pension benefits        their right to full pension benefits before the   Mr N., aged 58, applied for early retirement
        he is entitled to.      age of 60. Nevertheless,pursuant to Articles      at the regional pension fund (CRAV). Since




28   Annual Report 2006
he had paid his social security contributions    tunately, Mr K. was not entitled to this "dis-
for five quarters before the end of the calen-   ability-based" early retirement since his dis-
dar year of his sixteenth birthday, and for a    ability was only recognised on the day he
total of 164 quarters, his application was       became a job-seeker. He could not benefit
rejected by CRAV on grounds that he did not      from “long-career-based” early retirement
meet the valid insurance-duration condition.     either, because on the date of his request, he
                                                 met only one of the three conditions required.
Outside this provision, the law on pension
reform also introduced an early retirement
possibility for highly disabled workers. In
fact,a worker suffering 80% permanent dis-
ability may ask to go on retirement before
the age of 60,provided he or she has the min-
imum number of quarters required for con-
tributions, and validated quarters. The
Mediator of the French Republic received a
complaint in this connection from Mr K.,fol-
lowing the rejection of his application for
early retirement whereas his status as a dis-
abled worker had been recognised by the
technical commission for orientation and
occupational reclassification (Cotorep).Unfor-




                                                                                            Mediator of the French Republic   29
     THE CITIZEN AT THE HEART OF GOVERNMENT POLICIES


                          Insufficient harmonisation                          noticed a conflict of rights resulting in iniq-
                          of pension schemes                                  uity, the Mediator of the French Republic
                          § In June 2006, during the Consignments             asked the relevant government authority to
                          and Loans Fund forum, the Mediator of the           modify the law to allow these public servants
                          French Republic expressed his opinion on the        to be paid their pension benefits once their
                          definition of adequate pension.In particular,       “long-career-based”pension benefits are cal-
                          he expressed his concern about the challenge        culated,no matter the scheme they are affil-
                          of an ageing population and the solutions to        iated to when they file their application.
                          bring in with respect to maintaining the liv-
                          ing standard of retired persons, trans-
                          generation relations,and the funding of public      Pension reform: multiple pension
                          social security schemes. Regarding the gap          schemes not understood
                          emerging between active and retired per-            § The attention of the Mediator of the French
                          sons, he advocated for increased solidarity,        Republic was drawn to the situation of
                          going beyond institutional divides.For exam-        spouses of farm managers with multiple pen-
                          ple:professional mobility seems to be recog-        sion schemes and who had retired before
                          nised for long careers…                             1st January 1998, and to the conditions for
                                                                              increasing the small retirement benefits of
                          The pension-reform law of 2003 instituted a         unsalaried workers in the agricultural sec-
                          system of early retirement before the age of        tors.When they had contributed to pension
                          60 for employees who had started working            funds other than the agricultural scheme
                          at a young age.This provision became appli-         during their professional life, these spouses
                          cable on 1st January 2004 for those affiliated      received pension benefits below the mini-
                          to the general social security scheme,and on        mum agricultural pension benefits they
                          1st January 2005 for civil servants. Now, the       would have received if their incomplete farm-
                          Mediator of the French Republic has received        ing career alone had been taken into account.
                          complaints from former public servants,who          This paradoxical situation resulted from the
                          had started their career in the administra-         application of a law and regulations before
                          tion and who,currently private-sector employ-       the law of 21 August 2003.The objective was
                          ees,meet the conditions for early retirement        then to allow the spouses of farmers with
                          within the framework of the general social          multiple pension schemes better access to
                          security scheme… however,without benefit-           the increased pension benefits.However,due
                          ing from their public servants’superannua-          to the set of rules applied within the scope
                          tion. In fact, the pension fund refuses to pay      of the five-year agricultural pension revalori-
                          them their pension benefits: since their            sation plan (1997-2002),spouses of farm man-
                          names had been removed from the books,              agers with 27.5 to 32.5 years career in the
                          they cannot benefit from a measure which            agricultural sector and who received pension
                          became effective on 1st January 2005 for active     benefits from another scheme,found them-
                          public servants. Moreover, since their pen-         selves excluded from this revalorisation plan.
                          sion benefits had been calculated more than
                          one year before, they can only receive said
                          benefits as from their 60th birthday. There-
                          fore,the interpretation of the civilian and mil-
                          itary pension code seems to prevent them
                          from having immediate access to their pen-
                          sion benefit, since failure to contest the evi-
                          dence of entitlement to pension within one
                          year after reception results in its irreversibil-
                          ity.So,the public servants are potentially enti-
                          tled to early retirement.Yet,they cannot have
                          it due to a law the objective of which is pre-
                          cisely to protect the right to pension. More-
                          over, there is no coordination between the
                          general scheme,the special schemes and the
                          inconveniences of professional mobility,
                          whereas this latter is encouraged. When he




30   Annual Report 2006
The Mediator of the French Republic, there-       Biological and adoptive mothers:
fore, called for a review of the conditions for   inequality in terms of pension
access to the pension revalorisation for          § For female civil servants, pension-reform
spouses of farm managers with multiple pen-       law 2003-775 of 21 August 2003 causes
sion schemes. Agricultural-orientation law        unequal treatment between biological moth-
2006-11 of 5 January 2006 introduced, in its      ers and adoptive mothers.In fact,it modified
Article 24, new provisions using the periods      the conditions for granting this bonus by sub-
of contribution to the general social security    jecting it to continued interruption of activ-
fund for the disabled to determine a person's     ity for at least two months. Now, these
access to the revalorisation plan,while main-     conditions are hard to meet by women who
taining the person's right to the correspon-      had adopted a child before 10 July 1976 since
ding pension benefits of the general scheme.      the principle of adoption leave did not exist
The adoption of this so-called “pension ben-
efits for housewives”(AVPF) has enlarged sig-
nificantly the access of spouses of farm
                                                  prior to this date. Moreover, for two children
                                                  adopted before 1995, only one to two years’
                                                  bonus is granted, compared to several years
                                                                                                                 @
managers with multiple pension schemes to         (five years maximum) for maternity.                        To see the cases
the revalorised pension of unsalaried agricul-                                                                 handled by
tural workers.                                    The Mediator of the French Republic, there-                 the delegates
                                                  fore, drew the attention of the government                and specialists of
                                                                                                              the Mediator
Moreover,the Mediator of the French Repub-        and members of parliament to the need for
                                                                                                              of the French
lic had made a reform proposal to put an end      equal rights among both biological and adop-               Republic, go to:
to the inconveniences inherent in the quar-       tive mothers,and for them to be granted the               www.mediateur-
terly payment of disability pension and “nor-     same pension bonuses.However,his reform                     republique.fr
mal” pension benefit by the scheme for            proposal was not adopted since, this time, it
unsalaried agricultural workers.This reform       would create inequality to the detriment of
proposal was adopted on two occasions:pen-        those civil servants who had wanted or had
sion-reform law 2003-775 of 21 August 2003        been obliged to interrupt their activity to raise
provided for monthly payment of the pen-          their children and whose career would thus
sion benefits of unsalaried agricultural          have been hampered, unlike those civil ser-
workers,while decree 2005-1782 of 30 Decem-       vants who had not had this interruption.Nev-
ber 2005 applied this monthly payment             ertheless,the Mediator of the French Republic
method to the disability pension paid to          has reopened this debate, because during
unsalaried agricultural workers.                  maternity leave and adoption leave,the career
                                                  of the civil servants in question takes its nor-
                                                  mal course, and inequality supposedly con-
                                                  cerns only agents that have asked for leave
                                                  to raise their children. í




                                                                                               Mediator of the French Republic   31
                      PROTECTING THE
                      WEAKEST

                          Protecting the most
                          vulnerable persons
                          Any of us can suffer misfortune, we are all potentially vulnerable.
                          Moreover, the increasing lifespan is a sign of progress, but also a source
                          of concern - about possible dependence due to old age.
                          A study conducted during the 2006 congress of French notaries public
                          showed to what extent we are concerned about this: 78% of the persons
                          polled are afraid of loosing their independence in future… But this poll also
                          highlighted our scepticism concerning the effectiveness of our solidarity
                          system and of the protection currently offered to vulnerable persons.
                          In a system which tends to neglect the fragile, our duty is to strive, without
                          naivety, for their protection.



                          Bad credit and protection of citizens
                          Excessive debt most often falls within the       The middle class
                          legal proceedings in which the Mediator of       increasingly affected
                          the French Republic may not intervene, in        § The term "bad credit" is used instead of
                          accordance with Article 11 of the law of 1973.   “excessive debts”to demonstrate better a real-
                          In this case, the services of the Mediator of    ity that has known significant changes over
                          the French Republic explain, inform and          these past few years. In fact,abuse of credits
                          advise the persons contacting them through       resulting in excessive debts has decreased
                          the regional delegates and the admissibility     significantly.On the other hand,according to
                          department. Due to the common character-         studies conducted by Banque de France,bad
                          istics of these cases handled, the malfunc-      credits due to misfortune have increased and
                          tions or iniquities they reveal, the Mediator    is the case for a vast majority of the families
                          of the French Republic has made several          in difficulty:70%.A situation of excessive debt
                          reform proposals.                                may quickly arise. For example, after a sepa-
                                                                           ration:situations of excessive debts are mostly
                                                                           common among women saddled with debt
                                                                           after a divorce.Another example with illness




32   Annual Report 2006
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nibh euismod tincidunt ut laoreet dolore magna aliquam erat volutpat. Ut wisi
enim ad minim veniam, quis nostrud exerci tation ullamcorper suscipit lobortis
nisl ut aliquip ex ea commodo.




          and accidents: Mrs A. borrowed the sum of        Improving the balance between
          90,000 euros to pay the medical expenses         the consumer and the opposing
          required to take care of her 18-year daughter,   party
          disabled after a cerebrovascular accident.       § A consumer involved in a dispute against
          There is also a growing number of elderly per-   a professional (a finance company, for
          sons sometimes excessively indebted in order     instance) may find him/herself in an eco-
          to support a relation or grandchildren. With     nomically and legally weak position. In fact,
          more than one million households concerned,      disputes arising from consumer law are most
          bad credit is increasingly affecting the mid-    often settled in district courts. Now, before
          dle class.                                       these courts, representation by a lawyer is
                                                           not obligatory,and the consumer is not always
                                                           aware of the technical provisions made in his
                                                           or her favour by the consumer law. At the
                                                           moment, the judge may not assist the con-



          “    How good is a society
          that cannot maintain its
          cohesion by protecting the
          most fragile?”
                                                           sumer by indicating at his initiative a legal
                                                           means favourable to the consumer,since an
                                                           Appeal Court’s decision forbids him to do so.
                                                           However,this position of the Court of Appeal
                                                           seems weakened. In fact, it seems that this
                                                           decision is incompatible with the specifica-
                                                           tions of the new code of civil procedure, the
                                                           European Convention on Human Rights,and
                                                           the Community law. In October 2006, the
                                                           Mediator of the French Republic, therefore,
                                                           proposed that a judge be allowed to highlight
                                                           without consultation the application of the
                                                           consumer-protection provision, in order to
                                                           re-create a balance between the parties.




                                                                                                     Mediator of the French Republic   33
     PROTECTING THE WEAKEST


                               Preventing files from speeding up                   In favour of a debate on the
                               exclusion                                           opportunity of the positive
                               § The Mediator of the French Republic has           register
                               highlighted some loopholes in the applica-          § There are two types of registers for fight-
                               tion of the so-called “personal recovery”pro-       ing against bad credit. The first one, known
                               cedure,the objective of which is to enable an       as the "negative register”and which concerns
                               excessively indebted person to resurface by         payment incidents,applies only to France.As
                               wiping off his or her debt following the wind-      for the second one,the "positive register",avail-
        í GENERAL              ing up of his or her personal estate by deci-       able in nine European countries,the question
        MATTERS
        A private person       sion of the court. He has recommended, in           of its creation is currently a topic of debate.
        contests the           particular,that the maximum period during           The aim of this register is to draw up an inven-
        decision of the        which the names of excessively indebted per-        tory of the credit outstanding used by private
        excessive-debt         sons are stored in the FICP (fichier national       persons.Today,the question of its creation is
        commission: in the     des incidents de remboursement des crédits          a controversial issue. Defenders of the posi-
        rehabilitation plan,   aux particuliers),the national register for inci-   tive register (Unaf,CLCV,UFCS,CNAFC) see it
        it did not take into   dents pertaining to the repayment of loans          as a tool for the future, upstream excessive
        account all the
                               to private persons, be reduced to five years.       debt,since it gives more sense of responsibil-
        complainant’s
                               Being registered in the FICP for eight years        ity to lending agencies while streamlining
        obligations.
                               may have some pernicious effects, because           their relations with the client. The parties
                               this file is accessible to banks. For people        against (CSF,CGT Indecosa,Afoc,ADEIC-FEN,
                               whose names appear in this register, this           UFC-Que Choisir) stress on the risk of misuse
                               implies that it will almost be impossible for       for commercial purposes, the complexity of
                               them to be granted any loan during this             the system and also the possible violation of
                               period,or even to open a bank account despite       personal freedoms.
                               the existence of a legal right to a bank account.
                               Now,a bank ban often leads to a wider social        The CNIL (the national commission for infor-
        í GENERAL              exclusion.                                          mation technology and civil liberties), on its
        MATTERS                                                                    own part,thinks that examples in other coun-
        To discourage          Moreover,little or no additional means were         tries have shown how difficult it is to contain
        a civil servant’s
                               given to the relevant jurisdictions to make         the positive centres within the limits guar-
        creditors, a
                               up for the increase in their tasks due to the       anteeing personal rights and the need to pro-
        pensions fund
        confiscated this       implementation of the "personal recovery”           tect data privacy. Before any debate on
        civil servant’s        procedure.The Mediator of the French Repub-         whether or not to introduce a positive centre
        income in              lic underlines the problems of these relevant       in France,it deems it necessary to define pre-
        accordance with        jurisdictions which receive 20,000 cases            cisely the targeted objective. Said objective
        a payment plan         annually.                                           must be unique and coherent. Finally, the
        worked out by                                                              CNIL asks the decision-makers the following
        the excessive-debt                                                         question:regardless of the defined objective,
        commission.
                                                                                   and no matter its legitimacy and supposed
        In view of this
                                                                                   effectiveness,can it justify establishing a file
        situation, he
        could ask for a                                                            on almost the entire adult population in
        re-examination                                                             France? If yes, on what conditions?
        of his case.
                                                                                   To enhance the debate on positive centres,
                                                                                   the Mediator of the French Republic went to
                                                                                   Belgium on 26 November 2006. The Belgian
                                                                                   model,managed by Banque National,seems
                                                                                   to be exemplary both in terms of prevention
                                                                                   and respect of liberties.




34   Annual Report 2006
Close cooperation between                         creditors so as to work out a financial reha-
the Mediator and political                        bilitation plan.Excessively indebted persons
and social players                                are offered psychological and financial sup-
§ To better understand this phenomenon            port at Passerelle’s 35 reception centres.
and assess the solutions,the Mediator of the
French Republic held several meetings with        Finally, on 14 December 2006, the Mediator
institutional and field players handling this     of the French Republic organised a press con-
issue: Banque de France, the excessive-debt       ference in which participated the governor
commission,the personal-recovery-plan eval-
uation committee presided over by Guy
Canivet, the national association of district
                                                  of Banque de France,the manager of Banque
                                                  Nationale Belgium,the vice-chairman of the
                                                  association Crésus,the chairman of the asso-
                                                                                                                @
judges,the Economic and Social Council,the        ciation Passerelle,the mediator of Minefi,the             To see the cases
Federation of French banks, etc. He also met      mediator at the Federation of French banks,                 handled by
                                                                                                             the delegates
with associations such as Crésus,a participa-     a sociologist,the manager of LaSer Conifoga,
                                                                                                           and specialists of
tory association created in 1992,which in addi-   the manager of banque Accord,the co-chair-
                                                                                                             the Mediator
tion to a legal and financial activity, places    man of the national association of district                of the French
emphasis on social and psychological sup-         judges, and the chairman and managing                     Republic, go to:
port. Its recent actions include social micro-    director of Cetelem.The mobilisation of these            www.mediateur-
credits,and days of “education on money”.In       leading institutional and association players              republique.fr
October 2006, the Mediator of the French          at a press conference marked the start of a
Republic equally met with leaders of              wide public debate on all the aspects of exces-
Passerelle,an organisation created by Crédit      sive debts and strong willingness to draw the
Agricole in 1997 to listen to and guide exces-    attention of the government to the reforms
sively indebted persons. In 90% of the cases,     that need to be made in this field. í
the association plays a mediation role among




                                                                                              Mediator of the French Republic   35
     PROTECTING THE WEAKEST



                          Helpless before social security organisations
                          Presumptive income assessment:                   The current system of presumptive income
                          highly unfair                                    assessment creates a lot of problems, with
                          § Mrs L. was notified by the social security     very unfair consequences.People who would
                          office about the end of her entitlement to       have been entitled to the maximum benefit
                          family-related housing benefit (ALF). Since      amount had their real income for the refer-
                          she did not understand this decision, espe-      ence year been taken into account are paid
                          cially as the financial situation of her part-   less benefit or even deprived of their housing
                          ner, a farmer, had deteriorated strongly, she    benefit due to the application of presump-
                          appealed to the amicable settlement board,       tive income assessment.The Mediator of the
                          which confirmed the decision of the social       French Republic, who had already received
                          security office,given that the interruption of   similar complaints, proposed to stop using
                          the benefit had to do with the presumptive       presumptive income assessment to calculate
                          assessment of the family’s income.Mrs L.then     the family allowance and housing benefits
                          sought the help of the Mediator of the French    paid on the basis of resources, but to return
                          Republic. After analysing her case and dis-      to the application of common law,that is cal-
                          cussing with the social security office, the     culating family and housing allowance based
                          services of the Mediator of the French Repub-    on the real income for reference year N-1.This
                          lic could only confirm to Mrs L.that the secu-   proposal is supported by the social security
                          rity office had applied the rules correctly.     offices and is among the recommendations
                                                                           of the Economic and Social Council. More-
                                                                           over, the report on "rationalising the man-
                                                                           agement of housing benefits", presented by
                                                                           the modernisation audit mission in October
                                                                           2006,made a negative assessment of this sys-
                                                                           tem.Yet,the proposal has not yet been taken
                                                                           into account by the relevant ministries.

                                                                           The commission for administrative simplifica-
                                                                           tions (Cosa) is also in favour of this proposal.




36   Annual Report 2006
24-euros allowance never paid.                     borne by the relevantorganisations due to the
A soft-law rule?                                   payment of these little benefits on a monthly
§ Mr M. was paid the personalised housing          basis could be averted by paying them on a
benefit up to 1st July 2006.After his rights had   quarterly,half-yearly or yearly basis.
been examined according to the new family
allowance scale,he received a letter from the      The members of parliament have heeded
social security office informing him that he       this message and have also called for a can-
was no longer entitled to any benefit as from      cellation of this threshold. A lot of written
1st July 2006. Mr M. asked for specifications      questions sent to the government by mem-
concerning the methods of calculating this         bers of parliament and senators, as well as
allowance. The social security office replied      amendments in line with this request,have
him that he was no longer entitled to any hous-    shown the support of members of parlia-
ing benefit since "the benefit amount was below    ments from all political sides for this meas-
the payment threshold fixed at 24 euros”.          ure in favour of justice. The national social
                                                   security office, also in favour of cancelling
If the law does not fix any limit,an allowance     this threshold, sought the assistance of the
should be granted as from the first euros if the   Mediator of the French Republic in the name
conditions are met by the beneficiary.Now,a        of its governing board.
simple decree institutes the non-payment of
allowances below 24 euros… It is amazing that      Thanks to this mobilisation, the government
the regulatory power can thus limit the rights     accepted,during discussions on the draft Finance
conferred on the citizens by law.                  Act for 2007, a Senate amendment aimed at
                                                   bringing down this non-payment threshold
When his attention was drawn to this denial        from 24 to 15 euros. Some 120,000 families
of rights,the Mediator of the French Republic      should benefit from this measure,which will
asked for a cancellation of this law prevent-      restore their entitlements.The Mediator of the
ing the payment of housing benefits when           French Republic will ensure quick implemen-
they are below a certain threshold.He argued       tation of this measure,which requires the pub-
that the financial and administrative burden       lication of adequate regulations. í




                                                                                                Mediator of the French Republic   37
     PROTECTING THE WEAKEST



                               Guardianship:
                               a matter of concern
                               In less than five years, France will probably     Simplifying the work of guardians
                               have one million persons under guardian-          § Today, 80 full-time guardianship judges
                               ship.This figure is growing constantly because    must cover some 700,000 guardianship
                               of the increasing lifespan and development        measures.There is,therefore,an urgent need
        í JUSTICE
        Mrs W. is worried      of old age-related illnesses. Therefore, there    to simplify these procedures each time that
        about the              is an urgent need to reform our guardianship      the protection of vulnerable persons and their
        management             system, on the verge of explosion.                interest allows this! Thus,the Mediator of the
        of her uncle and                                                         French Republic had made a proposal on the
        aunt's property        No status for half of the administrators,insuf-   modalities of sharing a succession amicably
        by third parties.      ficient means of research, overworked juris-      when one of the beneficiaries is a minor or a
        What to do?            dictions… The law,which dates back to 1968,       protected adult.In theory,a succession must
                               is totally ill-adapted.In June 2006,the reform    be shared at a law court. Nevertheless, the
                               of guardianship finally appeared on the par-      law allows, with the consent of the family
                               liamentary agenda.This global reform of the       council or a guardianship judge, the succes-
                               system of protecting vulnerable adults,           sion to be shared amicably,provided the state-
                               debated upon at the National Assembly in          ment of realisation and liquidation issued by
                               January 2007,reflects some proposals made         the notary public is approved by the court of
                               by the Mediator of the French Republic. In        first instance.
                               fact,this draft law contains specifications on
                               the organisation of the activities of the legal   The reform proposal of the Mediator of the
                               representatives and guardians of protected        French Republic aimed to simplify the pro-
                               persons,and a provision facilitating the man-     cedure for sharing amicably a succession
                               agement of the property of persons banned         involving a minor or a protected adult.He had
                               from holding a bank account.                      proposed,among others,to cancel the approval
                                                                                 by the court of first instance of the statement
                               Throughout 2006, members of parliament,           of realisation and liquidation issued by a
                               associations, judges and the Mediator of the      notary public, and to subject it rather to the
        í JUSTICE              French Republic worked together to have           approval of the family council or a guardian-
        Mr H., both his        the reform of guardianship included on the        ship judge.Law 2006-728 of 23 June 2006 on
        grandmother’s          National Assembly’s agenda. The draft             the reform of successions and gifts, applica-
        grandchild and         amendment presented at the council of min-        ble since 1st January 2007,modifies Article 466
        guardian, cannot
                               isters on 28 November 2006 will be debated        of the Civil Code,by specifying the conditions
        decide alone to sell
                               upon early 2007.                                  for sharing a succession when one of the ben-
        his grandmother’s
        property. He is                                                          eficiaries is a minor.In fact,the authorisation
        surprised, but the                                                       to resort to amicable sharing is still given by
        law is clear on this                                                     the family council;pursuant to Article 466 of
        matter.                                                                  the Civil Code, this council is responsible for
                                                                                 approving the statement of realisation and
                                                                                 liquidation. Moreover,when the social secu-
                                                                                 rity scheme for minors is not organised in
                                                                                 form of family council, Article 389-5 of the
                                                                                 amended Civil Code mandates the guardian-
                                                                                 ship judge to issue the authorisation to resort
                                                                                 to amicable sharing, and then approve the
                                                                                 statement of realisation and liquidation.While
                                                                                 waiting for the adoption of the reforms on
                                                                                 legally protected adults,these provisions are
                                                                                 bound to apply to adults under guardianship.
                                                                                 Therefore,these legal provisions satisfy fully
                                                                                 the reform proposals made by the Mediator
                                                                                 of the French Republic.




38   Annual Report 2006
Banking ban lifted but                              Better control of the activity
under judicial control                              of guardians
§ The Mediator of the French Republic has           § For a long time,the activities of a guardian
also had to examine this phenomenon result-         were to a great extent performed within the
ing from banning a person or the organisa-          scope of voluntary work.But this activity has
tion in charge of legally protecting the assets     been developed and structured over the past
of an adult under reinforced guardianship           few years.For many of these special admin-
from issuing cheques on the account of the          istrators,it has become a real profession.This
protected person if this latter is facing a bank-   activity now has to be controlled in the inter-
ing ban.In the absence of any specific provi-       est of the personal under guardianship. The
sions in this situation, the guardianship           Mediator of the French Republic regularly
managers are subject to Article L131-72 of the      receives complaints concerning the increas-
monetary and financial code, which bans             ing suspicion of guardians, regardless of
banks from issuing cheque books to an               whether or not they are family members.
account holder or his or her legal represen-
tative if any payment incident has been reg-        So, in May 2006, the Mediator of the French
istered in his or her name due to insufficient      Republic proposed the definition of an annual
fund and if he or she has failed to remedy the      procedure enabling the public prosecutor to
situation.                                          draw a list of professionals in charge of the
                                                    legal protection of adults. He requested that
In August 2006, the Mediator of the French          regulations be used to redefine certain guar-
Republic,therefore,proposed to introduce an         antees required for registration on this list:
exception to the banking ban law,by allow-          conditions of qualification, duration of reg-
ing banks to issue guardianship managers,           istration,institution of appeals,etc.The nec-
in their position as legal representatives,
cheque books on the account of the protected
person facing a banking ban.This reform pro-
                                                    essary control of this profession requires that
                                                    people providing legal protection, individu-
                                                    ally, within an organisation or association,
                                                                                                                  @
posal is reflected in the draft law on the legal    be subjected to similar conditions of access              To see the cases
protection of adults, which provides that "a        such as morals,professional experience,and                  handled by
                                                                                                               the delegates
guardian may, with the authorisation of the         training.Moreover,access to this profession,
                                                                                                             and specialists of
judge or family council, if created, run under      in accordance with the social action and med-
                                                                                                               the Mediator
his or her signature the accounts held by a pro-    ical social assistance law,must be subjected               of the French
tected person if this latter is banned from issu-   to public control through approval for phys-              Republic, go to:
ing cheques".                                       ical persons,and authorisation for organisa-             www.mediateur-
                                                    tions. In a letter dated 2 October 2006, the               republique.fr
                                                    Minister of Health and Solidarity spoke in
                                                    favour of adopting the recommendations of
                                                    the Mediator of the French Republic. í




                                                                                                Mediator of the French Republic   39
     PROTECTING THE WEAKEST



        í PENSION             Disabled persons: let us remain vigilant
        BENEFITS OF CIVIL
        SERVANTS
         An unconfirmed       Creating a disability compensation benefit,         A secretly implemented reform
        art education         reforming the disabled adults’benefit,promot-       § The instruction letter dated 20 February
        teacher was           ing social integration,improving mobility by        2006, sent by the Minister of Health to the
        assigned to areas     relaxing the conditions for issuing parking         relevant organisations,replaced by a circular
        not accessible in     cards,facilitating access to citizenship and vot-   of 21 August 2006 from the national pensions
        a wheelchair,         ing right… The law of 11 February 2005 on equal     fund (CNAV), takes account of this problem
        which amounted
                              rights and equal opportunities, participation       in that it enlarges significantly the categories
        to indirect
        dismissal.            and citizenship of disabled persons opens real      of disabled workers entitled to this scheme,
                              prospects for better integration of disabled per-   in order to better guarantee the contributors’
                              sons and respect of their rights. But we have       right to information about their pension.How-
                              to be attentive to the results of implementa-       ever, the Mediator of the French Republic
                              tion and even possible developments. Some           deems it necessary that these innovations be
                              important decrees are still expected.               introduced in the relevant regulations…

                                                                                  Another iniquity:the law of 11 February 2005
        í PENSION             Early retirement:                                   instituted an increment in the pension appli-
        BENEFITS OF CIVIL     still some loopholes                                cable to disabled workers entitled to early
        SERVANTS              § The attention of the Mediator of the French       retirement.Published on 30 December 2005,
        A disabled non-
                              Republic was drawn, in accordance with his          the decree on this regulations provides for an
        permanent worker
                              reform proposal power,to the two loopholes          additional quarter to be validated free of
        could not be
        appointed in the      in the early retirement scheme for disabled         charge for four quarters of social security con-
        absence of reserved   persons.For example,the case of Mr L.,a recip-      tributions (so that 120 semesters of contribu-
        employment in         ient of pension for accident at work, whose         tion will amount to 160). Nevertheless, this
        the Equipment         request for retirement before the age of 60         very advantageous calculation method is only
        administration        was rejected because his case had never been        applicable to retirement benefits taking effect
        that had recruited    examined by the technical commission for            after 31 December 2005. The government,
        him.                  orientation and occupational reclassification       however,allowed that,within the framework
                              (Cotorep), the only organisation authorised         of the above-mentioned letter,this increment
                              to recognise the 80% disability rate neces-         be granted on demand to disabled persons
                              sary to access early retirement, pursuant to        on early retirement since 1st March 2005,when
                              Article L.351-1-3 of the Social Security Code.      the law of 11 February 2005 took effect.
                              The consequence of this provision is that only
                              the social security contributors who can pro-       However,the government thought it impos-
                              duce the document from Cotorep certifying           sible to extend the retroactivity of this meas-
                              80% disability are entitled to early retirement.    ure to early retirement taken since 1st July
                              Mr L.’s certificate indicating his pension for      2004,date on which the decree on the reduc-
                              accident at work, no matter the level, could        tion of the retirement age for disabled adults
                              not be taken into account.                          became effective, because it was not possi-
        í TAXATION
                                                                                  ble to cancel already granted pension. The
        The tax law
        penalises disabled    In July 2006, the Mediator of the French            non-retroactivity of this increment poses a
        persons who prefer    Republic made a proposal aimed at improv-           real problem of equity. The Mediator of the
        to work rather than   ing the system of early retirement for dis-         French Republic,therefore,asked the relevant
        being take care of    abled workers. In fact, some conditions of          ministries to reconsider their position on this
        by the community;     access seem to be too restrictive and may           point, to ensure equal treatment for all dis-
        the case of Miss V.   prevent a good number of disabled workers           abled workers eligible for early retirement.
                              from benefiting from this measure,who,like
                              Mr L.,have not had their disability recognised
                              by Cotorep.It is,therefore,necessary to adjust
                              this provision so that all persons with the same
                              level of disability may go on early retirement.




40   Annual Report 2006
Delegate Mediators of the French                 this decision to be quickly implemented,the              í ADMISSIBILITY
Republic active in departmental                  Mediator of the French Republic has directly             Mrs P., physically
handicapped homes                                informed each General Council chairman                   weakened by an
§ Some of the innovations introduced by          about the appointment of a delegate in his               invalidating
the law of 11 February 2005 are: informing,      or her department.At the same time,he has                sclerosis, has her
receiving and allowing disabled people and       asked all the delegates concerned to take the            housing benefit
their family access to the law. The creation     initiative of contacting the elected represen-           and supplementary
                                                                                                          disabled adult
of a departmental handicapped home in each       tatives and the services responsible for apply-
                                                                                                          benefit cancelled
department (MDPH) meets this objective.          ing the new measure,so that the players will
                                                                                                          without any
The purpose of these homes is to offer a         be clearly identified to each other.                     explanation. Her
unique access to all the rights and benefits                                                              (erroneously
concerning disabled persons, and to facili-      Quickly operational, the network of depart-              cancelled) benefits
tate all the procedures relating to the situa-   mental correspondents should enhance the                 could only be
tion of disabled persons.                        effectiveness of amicable settlement of dis-             restored after the
                                                 putes. The delegates concerned have all                  intervention of the
Nevertheless, disputes may arise between         received adequate training. Thanks to the                Mediator of the
                                                                                                          French Republic.
the commissions in charge of taking deci-        presence of delegate Mediators of the French
sions on demands for benefits and the ben-       Republic in MDPHs, under the motto qual-
eficiaries. Internal conciliation mechanisms     ity,proximity and accessibility,it will be pos-
inside the MDPH have been provided for by        sible to observe the actual conditions for
                                                                                                          í NORTH
                                                                                                          Thanks to the
the law.But in case of failure,the matter may    creating MDPHs and the possible difficulties
                                                                                                          delegate’s
be referred to the Mediator of the French        of applying an ambitious and particularly                intervention, Mrs
Republic. In each department, the Mediator       complex law. In 2007, the Mediator of the                N. finally receives
of the French Republic has appointed a cor-      French Republic will hold a meeting with all             the ANAH grant.
responding MDPH delegate who can quickly         the field workers on the operation of depart-            Her file had been
treat any complaints sent to him or her. For     mental handicapped homes. í                              misplaced…




                                                                                             Mediator of the French Republic    41
     PROTECTING THE WEAKEST



        í GENERAL
        MATTERS                Escheated life insurance policies:
        The parents of a
        little girl with
                               between ethics and billions of euros
        multiple
        disabilities           Today, the 22 million life-insurance policies       Moreover, there is an important psychologi-
        requested for a
                               taken out in France amount to over 1,000 bil-       cal and ethical restraint to asking possible
        deduction of the
                               lion euros. Despite the death of some sub-          beneficiaries to make a pro-active search
        council tax on the
        equipment to be        scribers,an important part of this amount is        request.
        used to create the     not redistributed to the beneficiaries indi-        To remedy this situation, insurance compa-
        area required to       cated in the policies. These are so-called          nies should be made to adopt a pro-active
        accommodate            escheated insurance policies. According to          attitude on potentially escheated life insur-
        disabled persons.      the Federation of French insurance compa-           ance policies, based on different criteria: the
        But the absence        nies,they range between 150,000 to 170,000          subscriber’s age, absence of exchanges with
        of an application      and amount to one billion euros. But these          the subscriber over the preceding years... If
        decree impeded
                               figures date back to more than seven years,         the subscriber turns out to be dead,it would
        the implementation
                               at a time when the outstanding insurance            be the responsibility of the insurance com-
        of this deduction.
        Since the decree       policy amounts were estimated at 564 billion        pany to notify the beneficiaries; if the bene-
        was passed five        euros… Every year, several billions of euros        ficiaries are not named, reachable or even
        years after the law,   are thus withheld by insurance companies,           alive,it would be necessary to conduct a clas-
        the claimants only     whereas they should have been paid out to           sical search for heirs. It is only after these
        obtained a partial     beneficiaries, according to the wish of the         stages that the policy may be declared
        deduction of this      deceased subscribers.This is an ethically unac-     escheated. Currently,there is no general obli-
        tax, retroactively     ceptable situation.                                 gation for insurance companies to notify the
        and exceptionally.
                                                                                   beneficiaries.In fact,ArticleL.132-8 of the insur-
                               Article 18-III of the law on the funding of the     ance code only imposes this search if the ben-
                               social security for 2007 provides for the assign-   eficiary’saddresses are indicated on the policy.
                               ment to the pension reserve fund the sums           In the face of this loophole,the Mediator of the
                               resulting from life insurance policies, not         French Republic plans to make a reform pro-
                               claimed after a period of thirty years. This        posal instituting a general obligation for insur-
                               measure,which is sensible since it will allow       ers to notify and search for beneficiaries.
                               this money to be used in the general inter-
                               est, does not solve the problems resulting          In the absence of a constructive reflection on
                               from lack of information to the beneficiary         this issue,the number of beneficiaries found
                               of a life-insurance policy, a problem very          will remain very limited, and the feeling of
                               imperfectly solved through the creation of          prejudice will be growing among millions
                               Agira (an organisation in charge of search-         of potential beneficiaries of life insurance
                               ing for beneficiaries), in May 2006.                policies. í

                               Although the creation of Agira seems to be a
                               good idea, the results at the end of the first
                               six months are disappointing. Out of some
                               thousands of requests received by Agira and
                               reflected on all the subscribers, the positive
                               replies do not exceed a few hundreds.In most
                               cases, the companies seem to be technically
                               unable to meet the demand provided for in
                               Article L132-9-2 of the insurance code.




42   Annual Report 2006
Protecting the interest
of victims
There are some extreme situations where common sense would require that
we intervene rapidly and humanely, to help endangered persons. Compelled
to act immediately, the victims sometimes find themselves in an awkward
position in the face of contradictory laws. Sometimes, they also have to deal
with very powerful and sometimes inconsistent laws. In the private field,
as well as the public health field, it is the duty of politicians and law-makers
to propose the necessary framework allowing the victims' rights to be
respected equally.


When the family turns violent
The family is more than ever a value and a        Against forced marriages
refuge. But, unfortunately, there are cases       § On several occasions Défenseure des
where family link is no longer based on one’s     enfants received complaints concerning the
attachment to the other, but on his or her        situation of young girls trying to escape from
“profitability”.In such situations,a partner is   forced marriages that they did not want. In
no longer considered as an end but a means.       general, these are young girls, aged 16 to 18,
It is all about forced marriages,domestic vio-    with French or dual citizenships,whose par-
lence,etc.These situations are often met while    ents want to marry to men about whom they
examining the complaints received by the          know little or nothing.Most often,these men
Mediator of the French Republic.                  are older and foreigners. The marriage fre-




                                                                                             Mediator of the French Republic   43
     PROTECTING THE WEAKEST


                            quently takes place outside France.The Medi-        Domestic violence: difficult
                            ator of the French Republic and Défenseure          to reconcile the rights of fathers
                            des enfants had, therefore, decided to make         and mothers
                            a joint reform proposal making it possible to       § Associations for women’s interests have
                            reinforce the laws which guarantee, for the         drawn the attention of the Mediator of the
                            validity of a marriage, that the consent of         French Republic to the difficulty of protect-
                            future spouses is obtained.This proposal con-       ing victims of domestic violence,and the right
                            tained several measures:fixing the minimum          of a father to have access to his children.
                            age for marriage at 18 both for boys and girls,
                            interviewing future spouses more system-            In a crisis situation, the associations argue
                            atically,extending the possibility to file at the   that the best way to protect the victim is to
                            public prosecutor's office a marriage revoca-       place her in a secure place (a home or emer-
                            tion action on grounds of vitiated consent,         gency accommodation centre).Moreover,this
                            extending the deadline for revocation action        place should remain unknown to the violent
                            by the aggrieved spouse, informing future           spouse,which should not be a problem,except
                            spouses about their rights and obligations          where the spouses have children.In fact,fail-
                            inherent in marriage, raising the awareness         ing to communicate the address of the chil-
                            of this reality among all the social players that   dren to the other, violent, parent may be
                            may be concerned…                                   deemed a deprival of the right to exercise the
                                                                                father’s parental authority. This situation is
                            Their proposals were included in the law of         all the more difficult since failure to repre-
                            4 April 2006 which reinforces the measures          sent a child may be deemed a criminal
                            to prevent and repress violence among cou-          offence.
                            ples or against minors.
                                                                                The Mediator of the French Republic has,
                            Actions are yet to be taken to make these           therefore, drawn the attention of members
                            measures more effective,especially in terms         of parliament to this problem within the
                            of training the staff of the civil status offices   scope of the debate on the proposed law
                            and providing information to spouses.               against domestic violence.

                                                                                In addition to the protective measures which
                                                                                the family judge may take in such situations,
                                                                                another solution is to organise meetings

             @                                                                  between the parents and children on "neu-
                                                                                tral grounds". The link between the children
                                                                                and each of the parents is thus preserved
        To see the cases                                                        without undermining the woman’s security.
          handled by                                                            Nevertheless,it would be necessary to develop
         the delegates                                                          these structures, by specifying their status
       and specialists of
                                                                                and reviewing their funding. í
         the Mediator
         of the French
        Republic, go to:
       www.mediateur-
         republique.fr




44   Annual Report 2006
Unequal treatment of professional victims
In terms of work accident or occupational          more than two years before he could, after                í SOCIAL FIELD
diseases,the French system is more than one        the decision of the medical committee,exer-               Mrs M, a school bus
century old. It was then based on the pre-         cise his right to retirement for disability.Dur-          driver suffering
sumption of imputabilty to the employer and        ing this period, the civil servant did not                from ankle
almost automatic indemnification of the            receive any daily sickness benefit to which               traumatism,
harm suffered. However, this indemnifica-          he was entitled.                                          contests the
                                                                                                             decision of CPAM
tion remained limited and was based on
                                                                                                             (the health
lump-sum compensation. Today, some vic-            Another example: some civil servants have
                                                                                                             insurance office)
tims are able to obtain full indemnity for the     their names removed from the book and                     which is contesting
harm suffered,whereas the law is still based       then sent on retirement for disability since              the professional
on lump-sum compensation. There is an              they are deemed totally and definitely unfit              character of her
urgent need to reform and unify the scheme         to exercise their functions. Before taking                accident.
for work accident and occupational diseases.       such a decision, the administrations are,
                                                   however, obliged to examine the possibil-
                                                   ity of redeploying such employees for a job
Civil service: some rights                         that is compatible with their state of health:
exist only in theory                               an obligation rarely complied with. The
§ The Mediator of the French Republic often        Mediator of the French Republic thus
receives individual complaints from civil ser-     obtained the redeployment of a hospital
vants concerning the recognition of occu-          employee who, despite his illness, wished
pational diseases or work accidents and the        to continue his career in a function more
inherent rights: stopping work as long as          suited to his state of health.
the person’s state of health requires, main-
tenance of payment by the administration,          These examples show the urgency of the
re-integration or reclassification obligation,     reform proposed by the Mediator of the
information concerning the procedure…              French Republic to harmonise the schemes
                                                   for the civil service sectors.
For example, a regional employee was sent
on sick leave at the end of his official long
illness-related leave. This situation lasted for




                                                                                                Mediator of the French Republic   45
     PROTECTING THE WEAKEST


                              Private – public sector: not every-                    What is the situation of civil servants? The
                              one who thinks he or she is privi-                     Council of State first relaxed the traditional
                              lege actually is                                       lump-sum compensation rule, by allowing
                              § Today,victims of work accidents and occu-            victims of work accident to ask for additional
                              pational diseases in the private sector may            compensation according to the specifications
                              obtain compensation for the harm suffered,in           of the common law on responsibility, if the
                              four different ways,depending on the circum-           work accident is aggravated through the
                              stances surrounding the harm.One is through            administration's fault.In its decision of 4 July
                              the State health insurance offices, within the         2003, the Council of State went further by
                              framework of the AT-MP law (law on work acci-          making it possible to compensate for losses
                              dent and occupational diseases) which is based         not strictly financial,based on no-fault liabil-
                              on lump-sum and automatic compensation.                ity, and full compensation in case of admin-
                              Another way is through the state health insur-         istrative fault… Obviously, it is necessary to
                              ance offices and the social security tribunal,in       end the difference in the cause-based com-
                              addition to the lump-sum and automatic com-            pensation plans, by using common-law lia-
                              pensation, in case of inexcusable and inten-           bility as basis for indemnifying work accidents
                              tional fault.Through the automobile guarantee          and occupational diseases. í
                              fund, if it is all about a traffic accident. In this
                              case,the harm is to be compensated for in full.
                              Through the asbestos victims compensation
                              fund.Here too,it is all about full compensation
                              for the harm suffered.Over the past few years,
                              the jurisprudence has improved and enables
                              victims of work accidents and occupational dis-
                              eases to be compensated in full for the harm
                              suffered,no matter the circumstances surround-
                              ing the harm.




                              Asbestos: a lasting health and social tragedy
        í PENSION             According to studies, exposure to asbestos             Access to Acaata: inequality
        BENEFITS OF CIVIL     has already caused 35,000 deaths.60,000 to             between schemes
        SERVANTS              100,000 other deaths are expected between              § The Mediator of the French Republic has
        A widow cannot        now and 2030. Today, asbestos is the cause             raised the issue of the differences existing
        obtain the            of more than half of the cases of professional         within the different insurance schemes.
        payment of the        cancer.                                                Some special schemes do not cover the spe-
        life annuity for                                                             cific risk inherent in exposure to asbestos and
        her husband who
                                                                                     do not give access to Acaata. This is the case
        is a victim of
        occupational
                              Early retirement: inequitable and                      for civil servants (except public-sector work-
        disease. But the      incoherent conditions of access                        ers employed by the Defence ministry),
        pension fund          § Workers coming in contact with                       employees covered by the miner's scheme
        receives favourably   asbestos can benefit from the early retire-            and self-employed workers, etc. Moreover,
        the arguments of      ment scheme introduced by the 1999 law                 when Acaata is applicable,the modalities for
        the Mediator of the   on the funding of the social security, which           granting it depend on the scheme in ques-
        French Republic…      allows them access to the early retirement             tion. Some schemes cover victims of an
                              benefit paid to asbestos workers (the so-              asbestos-related occupational disease and
                              called Acaata benefit) until they fulfil the           those prone to this risk even if they have not
                              conditions for full pension benefits and               developed any illness. Others only pay the
                              provided they completely stop their pro-               allowance to workers recognised as suffer-
                              fessional activities.                                  ing from an asbestos-related occupational




46   Annual Report 2006
disease.It is important to add that within the     the different schemes in a way that favours             í SOCIAL FIELD
same group, different rules may be applied         the asbestos victims most. Finally, reciproc-           The general social
to employees exposed to asbestos, based on         ity measures may be introduced between the              security scheme
their professional status.Thus,priority is given   different health insurance schemes so that              refuses to grant
to autonomy and the internal logics of the         each of them can accumulate all the periods             the Acaata benefit
                                                                                                           to a person
schemes over an individual’s interests.            of activity giving access to Acaata.
                                                                                                           suffering from an
                                                                                                           asbestos-related
Obviously, the heterogeneity of the rules          Within the framework of his reflection per-             disease, arguing
applied by the different schemes results in        taining to the indemnity due to victims of              that the person
unequal protection of asbestos workers. The        asbestos, the Mediator of the French Repub-             was covered by the
main difficulty stems from the absence of          lic was auditioned by the inspectorate gen-             miners' scheme.
provisions on the reciprocity of the regimes.      eral of social affairs, attached to the Health
                                                   Ministry,and by the committee in charge of              í SOCIAL FIELD
                                                   this issue at the National Assembly. Their              Mr P. cannot
Clarifying the social                              reports,presented in December 2005 and Feb-             benefit from
security provisions                                ruary 2006,include the observations and rec-            Acaata: the
§ To remedy the difficulties ascertained,the       ommendations of the Mediator of the French              company with
Mediator of the French Republic has recom-         Republic.It would be desirable that the global          which he worked
mended several ways of improving the Acaata        review of the plan for occupational diseases            was not included
plan.First of all,it would be necessary to cre-    and work accidents be an opportunity to intro-          in the list of
                                                                                                           companies giving
ate equity between the persons exposed to          duce a more equitable coverage for workers
                                                                                                           access to Acaata.
asbestos in their professional activity,and to     exposed to asbestos. í                                  He would be
guarantee them the same level of social pro-                                                               entitled to Acaata
tection. It is also necessary to harmonise the                                                             only if his company
conditions for granting the allowance within                                                               is registered on
                                                                                                           this list.




                                                                                              Mediator of the French Republic   47
     PROTECTING THE WEAKEST



                            Hepatitis C: indemnification
                            imposed by death duties
                            The Mediator of the French Republic received       asbestos-related diseases. To remedy this
                            a complaint from Mrs B. after the death of         inequality of the tax-related treatment given
                            her son. The deceased son had received             to the indemnities paid to victims of hepati-
                            through judicial proceedings a compensa-           tis C infection due to blood transfusion or the
                            tion for hepatitis C infection. Now, this com-     exercise of their profession, the Mediator of
                            pensation has been included in the list of         the French Republic has made a reform pro-
                            inherited assets subject to death duties,          posal aimed at extending the exemption pro-
                            unlike other types of contaminations. In fact,     vided for in the foregoing Article 775 B to
                            Article 775 B of the General Tax Code con-         compensations paid to hepatitis C victims. í
                            tains a list of indemnities exempted from

             @              death duties.Included in the list are the nom-
                            inal value of indemnities paid or payable to
                            persons infected, in certain conditions, by
        To see the cases    the HIV virus, Creutzfeldt-Jakob disease and
          handled by
                            its new variant, and persons suffering from
         the delegates
       and specialists of
         the Mediator
         of the French
        Republic, go to:
       www.mediateur-
                            Equitable limits to subrogation rights
         republique.fr
                            When a person is a victim of road accident,        Sensitive to the arguments of the Mediator
                            aggression, etc., a judge grants him or her a      of the French Republic, the Senate law com-
                            lump sum for the physical and/or moral injury      mission pushed through an amendment gov-
                            suffered. Now, since 1984, the social security     erning strictly the action of Social Security
                            office may ask the person to reimburse the         offices. In fact, subrogation rights should be
                            sums advanced for his or her treatment,and         exercised on a case-by-case basis only on the
                            even to be paid the indemnities it did not         compensation for injuries paid for by the
                            advance! When he was alerted to this, the          social security offices, excluding personal
                            Mediator of the French Republic proposed to        injuries. Moreover, if the victim is only par-
                            modify Articles L376-1 of the Social Security      tially indemnified, he or she could exercise
                            Code and 31 of Law 85-677 dated 5 July 1985,       his or her rights at the organisation in charge,
                            so that subrogation rights may only be exer-       preferably the surrogated fund. The Media-
                            cised on the compensation paid for injuries        tor of the French Republic is very pleased that
                            the treatment of which the social security         the Parliament has legalised this progress in
                            office had actually paid for.He also proposed      terms of victims’ right. í
                            that partial compensation be opposable to
                            payment by third-party payers.

                            The commission for administrative simplifica-
                            tions (Cosa) is also in favour of this proposal.




48   Annual Report 2006
MAKING THE LAW EASILY
ACCESSIBLE AND PROTECTING
INDIVIDUAL LIBERTIES

  Opening new channels
  of access to the law
  There is an obvious reality: for many citizens, access to the law is a problem.
  "Ignorance of the law is no excuse", but the complexity of laws and the
  labyrinth of procedures often constitute insurmountable barriers, thus
  creating painful inequality. The Mediator of the French Republic is
  particularly aware of the fact that the individuals most affected by this
  situation are the most helpless, those who need public support most but
  who, in a lot cases, do not even have access to clear and updated information
  about their rights. At the same time, new channels of access to the law seem
  to be emerging. This is reflected in the planned reform of the judicial system
  and the introduction of independent control for prisons. All along 2006, the
  Mediator of the French Republic contributed to the reflections and
  experimentations made by the government.


  Guarantee of rights and stability of the norm

  Emergence of “social                             vate situations… The complaints received by
  consumerism” in the new French                   the Mediator of the French Republic do not
  legal system                                     only highlight malfunctions.They also show
  § In view of the current accumulation of         that the actual application of laws is some-
  laws, evidence of the fact that our society is   times far from the aims pursued by the law-
  getting increasingly complex, some reflec-       maker. Therefore,the need for reflections on
  tions need to be made. We need to ask our-       and studies of the impact on the implemen-
  selves,among others things,whether certain       tation of public policies cannot be overem-
  decrees or amendments do not tend to aggra-      phasised.




                                                                                            Mediator of the French Republic   49
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES



        í THE AUVERGNE         In a situation where the norm becomes               The negative impacts of the
        The Chief French       unstable,and access to the law complicated,         proliferating town-planning laws
        Government             individual attitudes reflect, in particular, a      § Town planning laws have been subjected
        Architect              growing demand for the law and rules to be          to a lot of modifications.Town councils,tech-
        disapproves the        used in the citizens' interests. For example,       nical services, and regional directorates of
        construction of a      complaints sent to the Mediator of the French       equipment are finding it difficult to meet up,
        wooden garage...       Republic in connection with pension reform          which may result in clumsy decisions and
        Encouraged by
                               show that each complainant seems to con-            much dissatisfaction and disputes… However,
        the delegate
        mediator of the        sider unjust any situation where his or her         the sometimes excessive use of appeal chan-
        Puy-de-Dôme to         own interests are not optimised, either             nels also contributes to the instability of the
        go to the site and     because changes in the norm deprive him             building permits issued to users. This is the
        assess the request,    or her of his or her previously acquired right,     case of these persons who are constantly pre-
        he changes his         or because,as a pensioner,he or she does not        vented from selling their property because
        decision…              have access to new rights!                          their neighbours keep taking legal actions
                                                                                   against them,claiming that the building per-
                                                                                   mit issued to the potential buyers is illegal.
                               The pension reform clearly reflects this new        Although this type of dispute does not fall
                               type of social contributors’ attitude to legal      within the competence of the Mediator of
                               changes. Thus, the idea that future reforms         the French Republic, such situations are fre-
        í GENERAL              may be less favourable would make some              quent.Moreover,individuals and authorities
        MATTERS
        Mayor and sub-         people to be on their guard against future          have the possibility to appeal. For example,
        prefect take a         impoverishment of the norm. This is at least        it is perhaps a State representative (prefect,
        conflicting decision   one of the arguments used to explain the suc-       sub-prefect,etc.) who intervenes to cancel the
        on the application     cess of the "long career" plan which allows         housing permit issued by a mayor… In the
        of the costal law      social security contributors to go on retire-       past,anybody granted a building permit ran
        and issuing of a       ment at the age of 56,57 and 58.On the other        the risk of losing it if he or she failed to start
        building permit.       hand,the reform encouraging people to post-         building before the permit was contested at
        The dispute is         pone their retirement would have more than          a law court. But pursuant to the decree of
        referred to the
                               moderate effects... Does this result in a god-      31 July 2006,if a complaint is lodged with the
        administrative
        court, and the         send effect for the “social consumer” who           administrative jurisdiction or civil jurisdic-
        beneficiary must       takes advantage of the present “promotions”?        tion,the period of validity of the permit is sus-
        wait…                                                                      pended until an irrevocable decision is taken
                               The institutions of the Republic are meant to       by the jurisdiction.This helps secure the build-
                               be of general interest.It is essential to support   ing permit.
                               this dimension which characterises our Repub-
                               lic,despite a certain tendency which is loom-       Another progress made at the beginning of
                               ing… In fact, people no longer fight for their      2006: the legal development made it possi-
                               rights,rather they wish to exercise their rights    ble to attain the objectives of a reform request
                               to the detriment of others; people no longer        made by the Mediator of the French Repub-
                               expect the judge to say what is right,but that      lic. This proposal was aimed at simplifying
                               he becomes an instrument of personal                the applicable rules by fixing,among others,
                               vengeance;people no longer ask for equal treat-     a deadline for issuing a building permit in a
                               ment or equity, instead they defend their           listed neighbourhood.
                               personal interests… These are very typical
                               behaviours in the field of town planning where
                               the right of appeal is widely capitalised on.




50   Annual Report 2006
Nevertheless,it seems difficult both for com-      tecting the interests of victims,page 48);rep-
munities and individuals to avoid every dis-       resentation of de facto couples or partners of
pute, given the many appeal channels. For          a social solidarity pact before a court of first
example, when a completed building is              instance and district court (cf.Adapting laws
declared illegal by the administrative court       to the new situation in society, page 15);
judge,third parties,who feel aggrieved,have        removing the names of people who have
a period of two years to ask for its demolition    cleared their debts from the excessive debtors
or compensation for the harm suffered. The         register (cf. Protecting vulnerable persons,
beneficiaries of the illegal permit may also       page 34),as well as the repeated demand for
apply for a regularisation of the building or      the payment of housing benefits below
for compensation by the community for issu-        24 euros (cf. Protecting vulnerable persons,
ing an illegal building permit... Finally, we      page 37).Regarding the social welfare of job-
have to underline the recurrent problem of         seekers opening a business,Cosa reserved its
buildings located at the edge of a village or      opinion,arguing that this question was part
an existing town,or close to agricultural enter-   of the more general problems posed by the
                                                                                                              í GENERAL
                                                                                                              MATTERS
prises.                                            social welfare of entrepreneurs (cf. Mobility              A complainant
                                                   and life course, page 27).                                 buys a land with
Striving for simplification                                                                                   a positive town-
§ At the beginning of 2006,the Mediator of         Be it to simplify procedures, make life easier             planning
the French Republic called for a simplifica-       for citizens,harmonise schemes or generalise               certificate. He also
tion of laws and condemned the stack of            a plan, the Mediator of the French Republic                obtains a building
                                                                                                              permit. But during
sometimes contradicting laws and regula-           continues his reform proposals, which aim
                                                                                                              a legality check,
tions. On 26 June 2006, the Mediator of the        for transparency and legal equity.
                                                                                                              the sub-prefect
French Republic was invited to participate in                                                                 asked the mayor
the meeting of the commission for adminis-                                                                    to cancel the
trative simplification (Cosa), where he pre-                                                                  town-planning
sented several reform proposals which were                                                                    certificate as well
adopted by Cosa. The proposals include the                                                                    as the building
proposal to stop using presumptive income                                                                     permit! The mayor
assessment to calculate family allowances                                                                     refuses. The
                                                                                                              administrative
(cf. Protecting vulnerable persons, page 36);
                                                                                                              court cancels the
limiting the exercise of subrogation rights by
                                                                                                              building permit
social security organisations and third par-                                                                  granted.
ties against victims of personal injury (cf.Pro-




                                                                                                Mediator of the French Republic   51
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES



        í GENERAL              Simplifying appeal channels                        Making the pensioners’ life easy
        MATTERS                by making them very clear                          § To make life easy for pensioners and end
        Two neighbours         § Some procedures turn out be a real head-         the inconveniences inherent in the quarterly
        clash over a permit    ache for administrations. This is the case of      payment of disability and pension benefits
        to extend a cattle-    appeal deadlines. Complaints sent to the           within the framework of the plan for non
        breeding site. The
                               Mediator of the French Republic by civil ser-      salaried agricultural workers, the Mediator
        law imposes 50 m
                               vants often reveal the complexity, if not the      of the French Republic had made a reform
        for an agricultural
        enterprise. A          confusion, of the procedures and rules to be       proposal. The decree of 10 January 2006 on
        decree has just        respected, not only for the user or agent but      the payment dates for disability benefit under
        changed this           also for the administration. Thus, the two-        the health insurance scheme, the disability
        provision: the         month deadline for appeal opposable to the         and maternity benefits of non salaried agri-
        cattle-breeding site   author of a request to an administrative           cultural workers provides for payment on the
        in question is         authority amounts to rejection if the admin-       eighth day of the following month.
        henceforth             istration remains silent throughout said
        governed by the
                               period. Now, it turns out that in such a case,
        regional healthcare
        regulations which      the acknowledgement of receipt is obliga-          Simplifying the schemes
        only impose a          tory,except if it concerns a problem between       by harmonising them
        distance of 5 m…       a civil servant and his or her administration.     § The diversity of existing laws is sometimes
                               Moreover, this acknowledgement of receipt          unjustified and, in some cases, generates
                               must mention the date of reception,the date        inequality before the law. The attention of
                               on which,in the absence of a formal decision,      the Mediator of the French Republic was
                               it will the deemed rejected or accepted.           drawn to the disparity between the sizes of
                               Nevertheless,even in the absence of acknowl-       the plots of land the different categories of
                               edgement of receipt amounting to tacit rejec-      retired farmers are authorised to use for so-
                               tion,the user may still file an appeal… As the     called subsistence farming. In fact,four plots
                               law is not very clear on this matter, neither      had been allowed for subsistence farming
                               the users nor the ministerial employees are        depending on the categories concerned:gen-
                               aware of this. This is why they oppose,often       eral scheme, special scheme for retired per-
                               wrongly,when the user files an appeal upon         sons, special scheme for beneficiaries of
        í GENERAL
        MATTERS                expiration of the deadlines,unless the dead-       old-age pension instead of disability benefit,
        In an almost           lines and possible appeal channels had been        special scheme for farmers receiving early
        similar case,          clearly mentioned in the rejection letter,gen-     retirement benefits… In May 2006, a draft
        complainants           erally not sent…                                   decree from the ministry of agriculture trig-
        cannot win the                                                            gered off the gradual alignment of the spe-
        case. They are
                               The services of the Mediator of the French         cial schemes with the general scheme.
        asking to be
                               Republic are currently examining a proposal
        compensated for
        an illegal building    to simplify laws and practices in order to con-
        permit issued by       tribute to the administrations’efforts to facil-
        the administration,    itate users’ access to information and make
        but they have been     the appeal channels more effective and trans-
        referred to a judge    parent.
        who will fix,
        if need be, the
        compensation
        amount.




52   Annual Report 2006
Simplifying things by introducing                Educating the citizens about laws
automatic switchover                             § In fact,almost half of the complaints sent
§ Drawing inspiration from a method that is      to the Mediator of the French Republic con-
working already: this is the sense of the pro-   cern a need for information. And problems
posal made by the Mediator of the French         are often solved through explanations. Peo-
Republic upon noticing the situation of per-     ple tend not to accept decisions they consider
sons deprived of all resources for several       as arbitrary.Explaining why such an admin-
months for failing to submit their request for   istration has taken such and such decisions,
pension-benefit calculation on time. His pro-    or why the court has decided in favour of a
posal aimed to extend to all unemployment
benefits the intermediary plan used for dis-
ability pension beneficiaries. It is meant to
                                                 specific solution helps people to understand
                                                 - even if they fail to accept - the fact that the
                                                 decision is in line with the law and respects
                                                                                                                @
guarantee the rights of people loosing their     peoples’ rights. A lot of complainants, who                To see the cases
entitlement to unemployment benefits once        thought they were right,regularly thank del-                 handled by
they are entitled to full old-age pension. He    egate mediators and the services of the Medi-               the delegates
suggested,among others,that the automatic        ator of the French Republic for explaining to             and specialists of
                                                                                                             the Mediator
switchover system reserved for disabled per-     them why they were wrong, something
                                                                                                             of the French
sons should be extended to indemnified job-      nobody had done in the past…                               Republic, go to:
seekers.Old-age insurance and unemployment                                                                 www.mediateur-
benefit officials have gradually made some       Access to law is first access to information                republique.fr
progress in terms of institutional communi-      about administrative activities,including for
cation and provision of information to bene-     the most distressed members of society. It is
ficiaries.Although other means are used,these    also understanding the mechanisms of access
developments are in line with the objectives     to the law through a systematic pedagogical
of the reform proposal made by the Mediator      procedure. It is within this logic of listening
of the French Republic.                          and offering assistance that the delegates
                                                 and services of the Mediator of the French
                                                 Republic are working and often make up for
                                                 the insufficient application of the law of
                                                 12 April 2000 pertaining to information and
                                                 orientation for citizens.




                                                                                              Mediator of the French Republic   53
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                          When court decisions                               wage guarantee is only applicable if the fund
                          are not applied… Case of AGS                       in the liquidator's possession is not sufficient.
                          (wage-guarantee insurance)                         Now, only the trustee has the information
                          § The attention of the Mediator of the French      used to determine this insufficiency; the
                          Republic has been drawn to the non-execu-          employees are helpless in this respect.In case
                          tion of certain court decisions,which is some-     of silence, inaction or refusal on the part of
                          times the case with the wage-guarantee             the trustee,the employee must refer the case
                          insurance (AGS). When an employer is sub-          to the industrial tribunal so that the amount
                          jected to a collective procedure ending in         due to him or her can be determined through
                          compulsory liquidation due to insufficiency        the legal channel. According to a magistrate
                          of assets, the rights of employees are nor-        interviewed by the services of the Mediator
                          mally protected by AGS. Assessing the right        of the French Republic, “this problem seems
                          of employees requires the intervention of the      to be due, in a good number of cases, to the
                          trustee, who must prepare a statement of           fact that the liquidator, in the absence of any
                          loans and credits within a specific period and     realisable asset and any hope of being remu-
                          ask the AGS for the corresponding advance          nerated for his mission, fails to immediately
                          payments. In a normal situation, AGS sends         perform tasks that would not be beneficial to
                          the advance to the trustee, who must trans-        him…”. The Mediator of the French Repub-
                          fer the sums immediately to the employees…         lic, therefore, proposes to examine this mat-
                          However,in a certain number of cases where         ter to find solutions that would enable
                          the amounts involved are subjected to com-         employees to be quickly indemnified, in cer-
                          pulsory liquidation,the employees find them-       tain cases through direct payment to the
                          selves in a situation where the trustee, and       beneficiary. í
                          thus AGS, does not take any action. In fact,




                          Reminding the administrations of the law

                          Is the pyramid of norms                            The law is violated when a decree
                          being reversed?                                    or letter limits its application
                          § The influx of legal measures seems some-         § Every month,200,000 families are deprived
                          times to change the order which confers more       of a right:the right to receive the housing ben-
                          authority on the constitution than on the law,     efit granted to them by law due to their low
                          and gives the law priority over the decree,etc.    income.In fact,two statutory instruments of
                          Now,we are having more cases where a min-          April and May 2004 stipulate that the hous-
                          isterial letter departs from a decree,or where     ing benefit is not payable when it is less than
                          a decree contradicts the law,or where the law      24 euros. The Mediator of the French Repub-
                          remains inapplicable in the absence of the         lic insists on seeking ways to stop this unjust
                          necessary regulations… The fact that such          rule which is contrary to the wish of the law-
                          infringements have become more common-             maker who had not fixed any threshold. He
                          place probably contributes to the growing          has partially been proved right since this
                          feeling of legal instability and results to mis-   threshold has been brought down to 15 euros,
                          trust and opportunism to which the legal           thanks to a parliamentary amendment
                          authority should normally not be exposed in        (cf. page 37).
                          the rule of law.
                                                                             Undermining the right of disabled persons
                          Of what use is a law that cannot be applied?       to information concerning the possibility to
                          What is the value of a right which cannot be       go on early retirement: the Mediator of the
                          exercised? What is a public service where you      French Republic continues his action in order
                          have no-go areas? There are too many rea-          to clarify and ensure full equity of the early
                          sons to ask this type of questions.                retirement plan for disabled workers.In fact,




54   Annual Report 2006
a simple ministerial instruction letter of         The law is not respected
24 February 2006 enlarges the categories of        when it becomes impossible
disabled workers entitled to this scheme.But       to contest fines
in the absence of being introduced to the          § We can only encourage the efforts made                    í ALSACE
appropriate regulatory level,these provisions      in terms of limiting speed on motorways.Yet                 Mrs H. is fined for
are only known to particularly well-informed       some malfunctions,which affect the process-                 overspeeding. She
persons…                                           ing of fines and rights of appeal, must be                  pays the fine but
                                                   underlined.6.7 million driving-penalty-point                receives a reminder
Children are still not attached to the health-     endorsements were made within the first six                 six months later…
                                                                                                               Thanks to the
insurance cards of their two parents,whereas       months of 2006. Every year, some 9 million
                                                                                                               intervention of the
the law of 4 March 2002 makes it possible!         fines result in thousands of complaints.                    delegate Mediator
But this law only exists in theory. In fact, the   Although the error rate remains limited, the                of the Haut-Rhin,
decree governing its application has still not     administration must handle a large number                   an error is detected
been issued...Therefore,the forms circulated       of litigation. But the complexity and opacity               in the fining
by the CNAM (the State health insurance            of the procedures for contesting the fines lead             procedure
office) so that insurers can attach their fam-     to serious malfunctions.
ily members to enable them benefit from the
health insurance coverage contains incom-          If fact,the current procedure is also aimed at
plete information,in that it does not mention      dissuading offenders from contesting their
                                                                                                               í PICARDY
anywhere that children may be attached to          fines, by imposing a very high increment in                 A farmer in the Oise
each parent.There are two possibilities:either     case of non-payment within 45 days.It,thus,                 receives an
the law-maker has wished to create a law           restricts the possibilities of contesting the               increased fine for
which must be made applicable through exec-        fines before a judge by introducing the prin-               parking wrongly in
utive powers,or this law gives rise to too many    ciple according to which paying the fine nul-               Paris. The vehicle
problems, and it is then the duty of the law-      lifies the appeal,but also implies recognising              registration
maker to declare it inappropriate.Come what        the offence.In more serious cases,the admis-                indicated on the
                                                                                                               report was that of
may,this issue,which impacts the day-to-day        sibility of claims is subject to the obligation
                                                                                                               a farm vehicle...
life of millions of persons, must not be left      to record the required penalty amount.Apart                 With the help of
pending like this.                                 from these limitations of access to the judge,              the delegate
                                                   there is also the illegal practice of public pros-          mediator of the
                                                   ecutors,who directly give a ruling on the legit-            Oise the matter is
                                                   imacy of complaints sent to them,instead of                 closed within eight
                                                   forwarding them to the relevant court.                      days.




                                                                                                 Mediator of the French Republic   55
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES



        í THE MIDI-            The need to repress highway-code-related          Fines: laws make room
        PYRÉNÉES               offences implies reflecting on the method of      for illegal practices
        A disabled driver      contesting the inherent fines.Given the large     § The delegate Mediators of the French
        is wrongly fined       number of complaints sent to him,the Medi-        Republic and the sections examining com-
        for non-conformity     ator of the French Republic made,in January       plaints at the Institution’s headquarters have
        of his GIC/GIG card
                               2006,a proposal aimed at improving the exer-      noticed that the processing of fines remains
        (disabled persons’
                               cise of the right to appeal to a judge to con-    a real source of dissatisfaction. A good num-
        parking card).
        Initially rejected     test highway-code-related fines.This appeal       ber of offenders flashed by an automatic
        by the public          must be filed by referring the matter,through     speed camera while overspeeding are required
        prosecutor, his        the public prosecutor,to the local court which    to pay a fixed fine with immediate increment,
        complaint is finally   will decide,either according to the procedure     sometimes without being notified first about
        considered             without audience of the criminal court rul-       a demand to pay this fixed fine, or without
        following the          ing, or through a judgement. The Mediator         receiving a photograph proving this offence,
        intervention off       of the French Republic also called for the cre-   or sometimes even without a copy of the
        the delegate
                               ation of a work group to be run by the min-       report compiled against them!
        mediator for the
                               istry of justice. In a letter dated 28 February
        Haute-Garonne.
                               2006,the Interior Minister approved the cre-      Apart from cases where the honesty of the
                               ation of this group.A ministerial circular of 7   offenders is not very obvious and where the
                               April 2006 reminded public prosecutors of         vehicle ownership certificate has not been
                               the exact range of their prerogatives.            updated,a lot of complainants are obliged to
                                                                                 seek the help of the Mediator of the French
                               Finally, we have to point out that the very       Republic after trying in vain two or three
                               numerous cases handled by the Mediator of         times and by registered mail to obtain the
                               the French Republic have revealed the con-        basic proof of the offence. In the mean time,
                               sequences of fine-related cases closed with-      they should have filed an appeal with deposit
                               out any action. They may be important for         which, in the absence of tangible proof, will
                               low-income earners. In fact, although the         be illegally rejected by the public prosecutor.
                               Treasury reimburses the unduly paid penalty       In fact,this latter is a police official and not a
                               amount following an appeal, the expenses          magistrate. He is not authorised to issue a
                               resulting from this procedure,that is 90 euros,   penalty.
        í PICARDY              remain partially payable by the user who
        An employee of         must try to obtain its reimbursement through      Moreover,since the appeal has been rejected,
        EDF (a French          his or her bank or the Treasury.                  the deposit will then be considered as “pay-
        electricity                                                              ment”for the fine.This is sometimes imposed
        company)                                                                 illegally on complainants to prevent them
        expresses his
                                                                                 from contesting the fine later.Now,the avail-
        gratitude and “best
                                                                                 ability of a picture is all the more necessary
        regards" to the
        delegate mediator                                                        as cheats do not hesitate to usurp plate num-
        of the Aisne. The                                                        bers. This exposes the real vehicle owners to
        delegate mediator                                                        heavy fines and penalty-point endorsements.
        had had to                                                               In fact, Article L 223-1 of the Highway Code
        intervene firmly                                                         was formulated in such a way that the real-
        and with                                                                 ity of an offence resulting in a penalty-point
        perseverance to                                                          endorsement is established not only through
        have the public
                                                                                 the payment of the fixed fine, but also by
        prosecutor cancel a
                                                                                 merely “issuing an executory title for the
        wrongly issued
        fine.                                                                    increased fixed fine”. The only thing that
                                                                                 remains is to contest the increased fixed fine
                                                                                 which, according to the law, is supposed to
                                                                                 lead to the cancellation of the executory title
                                                                                 and examination of the matter by a law court.




56   Annual Report 2006
Unfair and forced fine collection                   Moreover, the simultaneous seizure of all
§ In December 2004, the Mediator of the             accounts held by a debtor by the public
French Republic drew the attention of public        accountant – who has the power but is not
accountants to the need to stop the use of third-   obliged to do so – may result in unjustified
party notification to collect police fines. This    charges for the users. Therefore, the Media-
proposal has been heeded,given that the Eco-        tor of the French Republic has also proposed
nomic ministry has replaced third-party recov-      successive rather than simultaneous notifi-
ery with administrative opposition for fines.       cations for low debt amounts,in order to pre-
Arguing that some branches of financial insti-      vent the pernicious effects of simultaneous
tutions block all the accounts held by offend-      notifications.On this point,an e-mail has been
ers,and not just the amount corresponding to        sent to all public accountants instructing
the fine as stipulated by law, the Mediator of      them to first confiscate the most recent bank
the French Republic made several proposals,         account (they can obtain this information
in June 2005, concerning bank charges and           from the Ficoba file – a file on bank accounts
forced debt recovery by the Treasury.               and similar accounts). On the other hand,
                                                    even if the computer software used to man-
The first proposal aims to get financial insti-     age the actions has been programmed for


                                                                                                                 @
tutions to limit the commission they collect        notification on just one account, public
during the execution of administrative actions.     accountants still have the possibility to man-
The current situation is that the commission        ually request for a notification on “all” the
charged by banks during the execution of            accounts.
                                                                                                             To see the cases
administrative actions has nothing to do with                                                                  handled by
the amount owed to the Treasury. These fixed                                                                  the delegates
and non-proportional charges may range                                                                      and specialists of
between 47 euros and close to 120 euros.Due                                                                   the Mediator
to the divergent opinions of the different play-                                                              of the French
ers, this issue of limiting the commission                                                                   Republic, go to:
charged by banks is still a topic of debate.                                                                www.mediateur-
                                                                                                              republique.fr




                                                                                               Mediator of the French Republic   57
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                            Response time: unfair imbalance                      The obligation which would require tax
                            in favour of tax authorities                         authorities to respond to litigation within
                            § The attention of the Mediator of the French        strict deadlines – possibly determined accord-
                            Republic has been drawn to the fact that no          ing to the complexity of the case –,as well as
                            deadlines are imposed on tax authorities for         the obligation for the administrative judge
                            procedures concerning taxpayers.The situa-           to record the case in the register upon recep-
                            tion of tax authorities and taxpayers may not        tion would reduce the time taken by the pro-
                            be comparable.Yet,there is a huge difference         ceedings and result in quicker tax collection,
                            between the strict deadlines always imposed          since appeal is not suspensive. Such a devel-
                            on taxpayers and the absence of deadlines            opment would be in favour of taxpayers and
                            for tax authorities in connection with the pro-      meet the need for legal security. í
                            cedure prior to litigation.In the jurisdictional
                            phase, the chairman of the administrative
                            court is empowered to grant tax authorities
                            extra response time beyond the six-month
                            deadline, and to fix a strict deadline for tax-
                            payers. This may result in long and often
                            excessive waiting time for a judgement before
                            the administrative courts.

                            This is the case of a complainant who reports

             @              that it took a director of tax services four years
                            to reply, in three pages, to her request, two
                            days before her case was to be examined by
        To see the cases    the administrative court! This example shows
          handled by        the need for a fair and equitable procedure
         the delegates      guaranteeing a balance between the rights
       and specialists of   of both parties.This is why in view of the ide-
         the Mediator
                            ological criticisms and the position of the
         of the French
                            European Court of Justice,it seems necessary
        Republic, go to:
       www.mediateur-       to reduce the overall waiting time for amica-
         republique.fr      ble settlement proceedings, and litigation.




58   Annual Report 2006
Reform of the judicial system, and new missions
for the Mediator of the French Republic
In keeping with the report of the National          lic if he deems it within the Mediator’s field of
Assembly Commission created after the Out-          competence.
reau affair, Mr Pascal Clément, the Justice         "The Mediator shall seek for the necessary infor-
Minister, presented three draft laws to the         mation from the first appeal court chairmen
Council of ministers on 24 October 2006. The        and from the public prosecutors of said courts,
first one concerns the training and responsi-       or from the chairmen of high courts of appeal
bility of magistrates;the second one tends to       and State prosecutors of said courts.
reinforce the balance of the criminal proce-        "He may not give any assessment pertaining
dure;the third one modifies the law of 3 Jan-       to the magistrates’ jurisdictional actions.
uary 1973 instituting the Mediator of the           Where he feels that it may receive a discipli-
French Republic.                                    nary qualification,the Mediator of the French
                                                    Republic shall forward the complaint to the
                                                    Justice Minister.In this case,he shall notify the
The role of the Mediator of the                     complainant and the magistrate in question
French Republic in disciplinary                     about the action he has taken.
procedures against magistrates                      "A copy of the documents sent by the Media-
§ The three draft laws on the reform of the         tor of the French Republic to the Justice Min-
judicial system mentioned above have been           ister shall also be sent to the magistrate
a subject of a general debate.                      concerned.
The draft organic law "Recruitment, training        "The Justice Minister shall ask the relevant serv-
and responsibility of magistrates”, adopted at      ices to conduct an enquiry. "The Justice Minis-             í THE NORD –
the National Assembly on Thursday 14 Decem-         ter may take disciplinary measures pursuant                 PAS-DE-CALAIS
ber 2006,contains the following provisions:         to Article 50-1 and paragraph one of Article 63.            A detainee,
"After the foregoing Article 48 of decree 58-1270   The Justice Minister shall notify the Mediator              a former
dated 22 December 1958,a new Article 48-2 has       of the French Republic about the results of the             construction
                                                                                                                worker, cannot
been inserted thus:                                 enquiry and the next steps to be taken.
                                                                                                                obtain his career
"Art. 48-2 –– Any natural person or corporate       "Where the Justice Minister decides not to take
                                                                                                                record from the
body, who feels that the behaviour of a mag-        any disciplinary action, he shall inform the                relevant services.
istrate in a case he or it is involved in might     Mediator of the French Republic about it,spec-              The delegate
constitute a disciplinary fault,may send a com-     ifying the reasons for his decision. This latter            mediator at the
plaint to a Member of Parliament. The Mem-          may compile a special report which shall be                 prison helps him
ber of Parliament shall forward the complaint       published in the Official Journal of the French             to obtain said
directly to the Mediator of the French Repub-       Republic”.                                                  record.




                                                                                                  Mediator of the French Republic    59
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                               From time to time, the Mediator                       Restoring the necessary trust
                               calls the attention of the Justice                    § We know how this reform is being
                               Minister                                              expected and to what extent, in particular,
                               § Reflections are being made since 1998 on            the Outreau affair has undermined the trust
        í THE ÎLE-
        DE-FRANCE              the role which the Mediator of the French             the citizens have in their judiciary.In this area,
        A detainee who has     Republic could play in disciplinary procedures        it seems important to reaffirm two princi-
        been in prison for     stemming from malfunctions in the public              ples. In the first place, the independence of
        three years is         service of the judiciary.Since 1999,as evidenced      the judicial authority as a constitutional prin-
        threatened to have     by his report, the Mediator of the French             ciple and basis of our rule of law.But also the
        his bank accounts      Republic calls the attention of the Justice Min-      protection of a litigant against possible mal-
        confiscated            ister from time to time to the particularly           functions which may change the legal sys-
        because of debts
                               alarming situation of such and such jurisdic-         tem.The case in point is not the extension of
        incurred in the
        mean time by his       tion and the need to reinforce his means.             the Mediator’s field of competence or the
        wife. He seeks the     Therefore,the Mediator of the French Repub-           urgent need to make the legal institution
        help of the            lic may examine disputes between a natural            more transparent,more accessible and more
        delegate mediator      person or corporate body and a public serv-           humane.It is all about restoring people’s trust
        of the Seine-et-       ice of the judiciary,without intervening in the       in the legal system, which is indispensable
        Marne prison, who      judicial activity in the real sense of it.The Medi-   to French democracy.
        educates him on        ator of the French Republic may thus handle
        his rights and         any activity resulting from the administra-
        obligations and
        assists him in
                               tive task of these jurisdictions:citizenship,civil    Improving the legal system by
        compiling an           status,jurisdictional assistance,etc.He inter-        protecting the players involved
        excessive debt file.   venes in case of malfunction in the judicial or       § The attention of the Mediator of the French
                               non-judicial administrative measures taken            Republic was drawn to the absence of social
                               by the public service of the judiciary.               security contributions for jurors selected for
        í THE RHÔNE-
        ALPES                                                                        a court session.This is how the Mediator got
        A former detainee      Moreover, to examine the complaints han-              to know about the case of an employee
        notices that           dled by the justice section, the Mediator of          selected as juror in the lawsuit filed against
        the period of          the French Republic first consults with the           Mr Maurice Papon.The trial had lasted for six
        remunerated            service or professional. If necessary, he may         months. It turns out that during this period,
        activities in prison   consult,via his ministerial correspondent,the         no social security contribution had been paid
        has not been taken
                               directorate general of the legal services, the        by his employer as a result of the suspension
        into account by the
        CRAM. A delegate       head of the court or ordinal authorities before       of his payment,nor by the Ministry of Justice
        mediator helps         intervening with the legal representative of          for the indemnities paid in relation thereto.
        him to take the        the Treasury or the insurance company of              This absence of contribution resulted in the
        necessary steps        the professional concerned,especially when            loss of two quarters of contributions to the
        that he did not        lawyers or notaries public are involved.              general pension scheme while calculating
        have the courage                                                             his pension entitlements.The Ministry of Jus-
        to take alone.         In 2006, the "Justice" section of the services        tice also received similar complaints from
                               of the Mediator of the French Republic han-           jurors appointed to participate in a pae-
                               dled 22.1 % of the cases closed. For the three        dophilia trial in Angers and which had lasted
                               hundred delegate Mediators of the French              several months.In this situation,the Ministry
                               Republic, the field of intervention “Justice”         of Justice has accepted, with the consent of
                               represents 6.5 % of their activity for 2006.          the budget department of the Economic Min-
                                                                                     istry, to reimburse the social security contri-
                                                                                     butions which these jurors had voluntarily
                                                                                     paid to URSSAF.




60   Annual Report 2006
Therefore,the Mediator of the French Repub-       up against the opposition of the Justice Min-               í THE ÎLE-DE-
lic has proposed to introduce an obligation       istry, especially because of the occasional                 FRANCE AND
to pay social security contributions for indem-   nature of the contribution of jurors and the                PROVENCE-
nities paid to jurors. Although acceptable to     nature of the indemnities paid to them. í                   ALPES-CÔTE
the Health Ministry, this proposal has come
                                                                                                              D’AZUR
                                                                                                              Questioned in a
                                                                                                              Parisian street,
                                                                                                              Mr L. is obliged to
                                                                                                              abandon his van
Prisons: deprivation of freedom is not synonymous                                                             which is then
with deprivation of access to the law                                                                         impounded. As
                                                                                                              a result of an
                                                                                                              administrative
                                                                                                              error, the judge’s
At the beginning of 2006, reports about the       Giving detainees access
                                                                                                              authorisation to
situations of French prisons were particularly    to the law and reintegrating                                send the vehicle
alarming. On 15 February 2006, Alvaro Gil-        them into society                                           keys to his partner
Robles,the Council of Europe's Human Rights       § The agreement signed on 16 March 2005                     does not reach
commissioner,published his report,followed        between the Mediator of the French Republic                 said partner, thus
on 24 May,by the International Prison Obser-      and the Minister of Justice kick-started the open-          prolonging the
vatory report,which deplored the sometimes        ing of delegate-mediator offices,on an experi-              confiscation of
disgraceful states of French prisons. In the      mental basis, in ten prisons. The presence of               the vehicle and
aftermath of this, there was an assessment        delegate Mediators of the French Republic on                increasing the
                                                                                                              inherent fines.
of the general situation of prisons, with the     site,once a week,helps improve concretely the
                                                                                                              Since Mr L. is
participation of delegate Mediators of the        access of 7,500 detainees to the law.It is not the          apparently not
French Republic. One hundred and thirty           fact that they are deprived of it,but rather their          responsible for
seven delegate Mediators of the French Repub-     detention, that makes it difficult for them to              this delay, the
lic volunteered to distribute questionnaires      have access to information, to the complaint                intervention of the
to some 45,000 detainees and ensured that         procedures and to the services of the Mediator              delegate mediators
the 15,600 answers were returned for pro-         of the French Republic. The Mediator of the                 of Aix and of Paris
cessing, according to the rules of confiden-      French Republic also sees a second objective in             helps him to
tiality.                                          it: facilitating their reintegration into society.          reduce his debt.
                                                  Handling the problems encountered by
                                                  detainees and their family in their relations with
                                                  administrations prepares the detainees’release
                                                  and their chances of social reintegration.




                                                                                                Mediator of the French Republic   61
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                          In the experimental phase, delegate media-          It should be noted that the demands received
                          tors have exactly the same powers inside and        by delegate mediators from prisoners have
                          outside prisons. No administration, includ-         made it possible to place emphasis on some
                          ing the prison administration, is excluded          administrative malfunctions which the Medi-
                          from their field of intervention.The delegates      ator can try to correct through his reform pro-
                          have the Institution’s entire prerogatives,start-   posal powers.Furthermore,while examining
                          ing with independence.They are answerable           the situation of a prisoner, cases pertaining
                          in their mission only to the Mediator of the        to his or her family outside are often handled,
                          French Republic who appointed them.To opti-         and the prisoner is better prepared for rein-
                          mise the effectiveness of their action,the del-     tegration into society.
                          egates work in organisations in which
                          "legal-access points" exist and which provide       Moreover, according to prison directors, the
                          detainees with "general" legal information          presence of delegate Mediators of the French
                          and thus enable the delegate mediators to           Republic may be an important factor in reduc-
                          focus on their actual mission: settling dis-        ing tensions and preventing conflicts. Listen-
                          putes with administrations.                         ing,taking account of complaints and helping
                                                                              to resolve the difficulties encountered with
                                                                              social, tax, or prison authorities are a major
                          From experimentation                                progress in terms of prisoners’access to the law.
                          to generalisation
                          § Three main lessons have been learnt from
                          the experimentation.Firstly,having delegate         Towards external control of
                          offices in prisons meets a real need:the num-       prisons and detention centres
                          ber of complaints received in a year was about      § Today, if France ratifies the optional UN
                          700,that is from 10 % of the detainees in the       Convention against torture,it must introduce
                          10 sites (1).Moreover,the intervention of del-      external control of prisons, which is equally
                          egates was effective because it then became         recommended by the Council of Europe and
                          possible to handle disputes which could not         the European Parliament. This new control
                          be settled through any other channel, espe-         may be entrusted to the independent author-
                          cially cases involving prison administrations.      ity of the Mediator of the French Republic,as
                          They represent 30 % of the complaints: loss         stated by the Justice Minister in October 2006.
                          of personal items,request for transfer or man-      In November 2006,the Mediator of the French
                          agement of allowance, for example.                  Republic started a series of consultations with
                                                                              the major players in the field,especially in the
                          Since the result of the experimentation had         prison world. í
                          been positive,the Justice Minister announced
                          on 19 October 2006 that offices of delegate         (1) The prisons in Fresnes,Marseille-Les Baumettes,Aix-
                                                                              en-Provence–Luynes,Saint-Étienne,the detention cen-
                          Mediators of the French Republic would be           tres in Melun and Bapaume, the prisons in Poissy,
                          created in all French prisons.Twenty-five new       Nanterre, Épinal and Toulon–La Farlède.
                          offices will be created in prisons with more
                          than 300 detainees, especially in the Fleury-
                          Mérogis prison. 60 % of prisoners in France
                          should thus have direct access to a delegate
                          Mediator of the French Republic. The Justice
                          Minister also proposed that general control
                          of prisons be entrusted to the independent
                          Institution of the Mediator of the French
                          Republic.It will be a new service,run by spe-
                          cially trained controllers different from the
                          current delegates.




62   Annual Report 2006
Protecting individual
liberties
The use of defensive means sometimes undermines individual liberties.
Does the protection of public safety impede access to employment? Must
selective immigration be accompanied by disrespect for personal dignity?
                                                                                                                  @
The current situation calls for increased vigilance. Although the individual                                  To see the cases
is often the focus of debates, said individual is sometimes deprived of his or                                  handled by
                                                                                                               the delegates
her personal and family rights.                                                                              and specialists of
                                                                                                               the Mediator
                                                                                                               of the French
                                                                                                              Republic, go to:
Individual liberties and files                                                                               www.mediateur-
                                                                                                               republique.fr

STIC and JUDEX, files that need                     sions are taken (conviction,discharge,acquit-
to be improved                                      tal,dismissal),in the absence of regular trans-
§ Different laws have instituted and created        mission of these legal decisions by the public
the possibility to consult judiciary-police files   prosecutor to the file managers.Both the Stic
within the framework of a preliminary inves-        and Judex files will be combined at the begin-            í PROVENCE-
                                                                                                              ALPES- CÔTE
tigation prior to an administrative decision        ning of 2007,with the creation of a common
                                                                                                              D’AZUR
on access to certain jobs, especially in the        judiciary-police file called Ariane.                      Mr Z. cannot work
security and defence fields. These files are                                                                  as a security guard
also consulted while processing applications        All along 2006, the services of the Mediator              because the
for French citizenship or stay permits. The         of the French Republic received a growing                 prefectoral
main purpose of the offence processing sys-         number of complaints concerning the relia-                services rejected
tem (Stic), for the national police force, and      bility, verification and updating of the data             his application. The
                                                                                                              intervention of the
the legal documentation and operation sys-          contained in these files. These complaints
                                                                                                              delegate Mediator
tem (Judex),for the Gendarmerie,is to group         meet with a particular response due to                    of the Alpes-
together information from investigation             a recent development. In fact, the law of                 Maritimes shows
reports compiled after initiating a criminal        23 January 2006 modifies the system of                    that the Stic file
procedure. It contains a record of offences,        recruiting security agents by private secu-               had not been
but these files are not updated after legal deci-   rity companies. They were 11,000 in 1982,                 updated…




                                                                                                Mediator of the French Republic   63
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                             78,000 in 2006… Henceforth, prefects may           Which information right for
                             reject an applicant not only on grounds of the     families? The case of Ficoba files
                             objective criterion of the existence or non-       § The attention of the Mediator of the French
                             existence of data in the police record,but also    Republic was drawn to the impossibility, for
                             on the basis of more subjective criteria con-      notaries public, to access the computerised
                             cerning the behaviour or morals of the appli-      Ficoba file – a file on bank accounts and sim-
                             cant. This information is available, among         ilar accounts, especially in order to establish
                             others, in Stic and Judex files. Diverted from     declarations of succession.This situation can
                             their initial objective,these two systems seem     be absurd in that some inheritors must pay a
                             to serve as “an unofficial police record”.Now,     fine (for involuntarily omitted bank accounts),
                             consulting the Stic and Judex files for admin-     because of a piece of information that the
                             istrative purposes does not offer the same         administration had refused to communicate
                             guarantees as the police record.                   to them!
                                                                                In July 2006, the Mediator of the French


             @               The Mediator of the French Republic has,
                             therefore, called for an improvement of the
                             conditions for transmitting legal decisions
                                                                                Republic, therefore, proposed to extend the
                                                                                Ficoba file to the already existing informa-
                                                                                tion access solutions used for other files.
         To see the cases    from the public prosecutor’s office, and the
           handled by        introduction of guarantees for citizens that
          the delegates      may be subject to an administrative enquiry        File, excessive debts and
        and specialists of   for which the Stic and Judex files may be con-     confidentiality: an impossible
          the Mediator       sulted.At the plenary assembly of the National     equation?
          of the French
                             Human Rights Commission in February 2006,          § Using certain files to prevent excessive
         Republic, go to:
        www.mediateur-       the Mediator of the French Republic presented      debts may also quickly undermine individ-
          republique.fr      the amendment summarising all his con-             ual liberties.This is the subject-matter of the
                             cerns in this field,and then met with the chair-   on-going discussions on positive and nega-
                             man of CNIL (the national commission for           tive files (cf. paragraph “For a debate on the
                             information technology and civil liberties).       opportunity of the positive file”, page 34). í
                             On 20 April 2006, he visited the division of
                             the technical and scientific police located in
                             Écully to see how the Stic file works.
                             On 15 June 2006, Mr Nicolas Sarkozy asked
                             Mr Alain Bauer, chairman of the orientation
                             committee at the national crime Observa-
                             tory, to create a work group entrusted with
                             finding,within six months,solutions that can
                             reconcile personal protection with individ-
                             ual liberties. The Mediator of the French
                             Republic participates in this work group. On
                             23 November 2006,the chairman of the work
                             group submitted his report to the Interior
                             Minister.The group’s recommendations con-
                             tain almost all the reform proposals made by
                             the Mediator of the French Republic.




64   Annual Report 2006
Immigration and foreigners’ rights

Towards selective immigration:                      vides for the principles of “selective immigra-
a path to mark out with signals                     tion”.It gives priority,among others,to receiv-
§ Mr B.,aRussian student,lives with his French      ing “the most motivated students intending
mother. When he obtains his postgraduate            to pursue higher education”.The procedures
degree, he requests for a change of status as       are facilitated for students meeting the
the company where he had done his intern-           defined criteria. Moreover, the "competence
ship wishes to employ him. But he is refused        and talent" card, valid for three years, facili-
the stay permit. Reason: there are too many         tates the admission of foreigners with higher
candidates, and there are not enough jobs in        potentials.At the same time,this law defines
the department.The appeal filed with the sup-       yet more strict conditions especially for fam-
port of the company that wishes to employ           ily reunification, for which the minimum
him is equally rejected. The help of the dele-      period of stay before application has been
gate Mediator of the Haute-Garonne then             increased from twelve to eighteen months.
becomes necessary. He calls the administra-         Family reunification has also been subjected
tion’s attention to the circular from the Employ-   to the notion of "republican integration”.
ment Minister, dated 15 January 2002, which         Finally,foreigners living in France for ten years
asked prefects “to examine with benevolence         are no longer automatically issued a stay per-
the applications for a change of status filed by    mit.Any foreigner not issued with a stay per-
foreign students at the end of their university     mit or whose demand for stay permit renewal
studies when said students present an employ-       is rejected shall be obliged to leave the coun-
ment proposal or contract from a French com-        try within one month;the foreigner shall have
pany for which this recruitment would be of         a suspensive right of appeal.
technological and business interest”. The real
equation between the proposed employment            The Mediator of the French Republic is very
and Mr B.’s training is proved and he is issued     vigilant about the application of this law of
a one-year temporary stay and work permit.          24 July 2006.Although it is necessary to con-
                                                    trol immigration,it is also necessary to be vig-
The thirteenth important immigration law            ilant about the respect of the right of
reform in France since 1980,the law of 24 July      foreigners living regularly in France to a pri-
2006 on immigration and integration pro-            vate and family life.




                                                                                                 Mediator of the French Republic   65
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


        í THE ÎLE-             Regularising the situation                        allowance be granted to foreigners holding
        DE-FRANCE              of children: unduly limiting                      a temporary stay permit granted on grounds
        Due to the historic
                               conditions                                        of respect for private and family life or terri-
        circumstances
                               § Mr T.,a Russian,applied to the social secu-     torial asylum. Within the framework of the
        surrounding her
        country of origin,     rity office for family allowance for his three    draft law on the funding of social security for
        Mrs F. cannot          children,Canadian nationals,who had arrived       2006, the government pushed through an
        provide her            in France with his wife in February. He           amendment aimed at specifying the rules
        parents' marriage      received a rejection letter, which was con-       for granting family allowances to foreigners
        certificate required   firmed at the end of an amicable settlement,      living in France. This new law contains the
        to complete her        because there was no proof that his children      basic recommendations made by the Medi-
        application for        had arrived and stayed in France pursuant to      ator of the French Republic. Nevertheless, it
        naturalisation.
                               the law on family allowance, by producing,        seemed necessary to alert the Interior min-
        The delegate
                               among others,the medical certificate issued       istry in charge of defining the application
        Mediator of the
        Hauts-de-Seine         by the international migration office.On the      rules so that these rules respect strictly the
        intervenes at the      recommendation of the Mediator of the             legal provisions and not reduce its range
        prefecture.            French Republic, he then sent to the social       through the particular requirement of the
                               security office the DCEM (the document for        items enumerated restrictively.
                               the movement of underage foreigners) issued
                               in November.The social security office recog-
        í JUSTICE              nised his right to family allowance in Decem-
        Mrs E., a French
                               ber,one month later.But he was not paid any
        citizen born in
                               family allowance for the period of March to
        Egypt, cannot
        provide the birth      November as the children’s stay had not been
        certificate required   recognised through an official document.Yet
        to renew her           the parents had been staying legally in France.
        identity card. A       The attention of the Mediator of the French
        favourable solution    Republic was then drawn to the fact that cer-
        is found thanks to     tain criteria for assessing the regularity of
        the intervention of    children’s entry and stay in France were
        the Mediator of the
                               unduly restrictive. He proposed that the
        French Republic.



        í JUSTICE
        Mrs A. complains
        about the
        difficulties she is
        having to
        regularise the
        situation of the
        father of her
        children, with
        whom she is living.
        The Mediator of
        the French
        Republic
        underlines the
        private and family
        character of the
        demand. A one-year
        permit is issued.




66   Annual Report 2006
Visas: marriages of convenience                 foreign marriage certificate in the French                 í JUSTICE
in the line of sight                            civil status registers. It is then the responsi-           Mr K.’s receives a
§ Some people get married just to obtain a      bility of the consular or diplomatic authori-              positive reply to
visa for France. For example, a marriage cel-   ties to notify the French authorities if they
                                                                                                           his demand to
                                                                                                           abrogate the
ebrated in Turkey between a Turk and a          assume that said marriage is bogus. If after
                                                                                                           deportation
French. This latter had had two short stays     six months the public prosecutor has not                   measure taken
in Turkey and claimed that they corre-          given a ruling on the nullity of the marriage,             against him for the
sponded and phoned each other regularly         the consular or diplomatic authorities must                past three years. In
through a third party as they did not have      transcribe the marriage certificate. It is only            view of the elements
any common language… The entry visa for         after this formality that the foreigner may                in Mr K.’s file, the
France was refused by the relevant author-      apply for a visa.Nevertheless,even if the mar-             Mediator of the
ity.Therefore,if a marriage between a French    riage certificate has not been contested, the              French Republic
citizen and a foreigner has been celebrated     consular authorities may refuse to issue the
                                                                                                           asks for the
                                                                                                           situation of Mr K.
outside France, it is essential to record the   visa if the marriage seems fraudulent.
                                                                                                           to be examined
                                                                                                           benevolently.



                                                                                             Mediator of the French Republic   67
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                              Fraudulent acknowledgement                         from the acts themselves make them unlikely,
                              of paternity: a shocking misuse of                 or in case of fraud”. Moreover, as said earlier
                              procedure!                                         on,the procedure for obtaining a stay permit
                              § Fraudulent use of civil status records may       from prefectures require that the father must
                              undermine for a long time the right of a child     prove that he actually contributes to the child’s
                              to real parentage. This is the tragedy of          upbringing and education.The fulfilment of
                              acknowledging paternity for a sum of money         this condition is actually verified by the rel-
                              paid to the mother of a child born in France.      evant services.
                              This is a seemingly enduring situation as
                              shown by some cases reported to the Medi-
                              ator of the French Republic. The law of            Which access to the law
                                                                                 for foreigners?
              @
                              26 November 2003 on immigration control,
                              the stay of foreigners in France, and citizen-     § Insufficient training and information,over-
                              ship has made a first attempt to curb these        worked services… A certain number of com-
          To see the cases    practices,by abolishing the automatic deliv-       plaints sent to the Mediator of the French
            handled by        ery of a (ten-year) residence permit to a for-     Republic attest to a quality of reception and
           the delegates      eign parent of a French child.Henceforth,the       service with little or no respect for the prin-
         and specialists of   presumed father must prove that he actually        ciple of access to law and equity. For exam-
           the Mediator       contributes to the child’s upbringing and edu-     ple, an Algerian had to pay a 55 euros tax in
           of the French      cation.Moreover,Law 2006-911 of 24 July 2006       order to have his residence certificate renewed,
          Republic, go to:    on immigration and integration has corrected       whereas since 1st January 2003, Algerian cit-
         www.mediateur-       an astonishing imbalance which existed in          izens with residence certificates, which are
           republique.fr
                              the criminal law, because in the past bogus        valid for ten years, are exempted from this
                              acknowledgement of paternity was not an            tax! Thanks to the intervention of the dele-
                              offence, whereas a party to such a false dec-      gate mediator of Moselle, the Algerian was
                              laration was liable to legal proceedings           reimbursed said sum by the prefecture.
                              pursuant to Article L. 622-1 of the law on for-    The attention of the Mediator of the French
                              eigners’ entry and stay, and right to asylum.      Republic has also been drawn to the delays
                              An analysis of the existing law reveals other      observed for the submission of naturalisa-
                              “loopholes” in the paternity-acknowledge-          tion-application related files at prefectures.
                              ment procedures,especially as a result of the      Some prefectures summon the parties con-
                              limited powers of civil status officers.In fact,   cerned for interview in 2008! Others do not
                              they cannot complain to the public prosecu-        offer any telephone contact possibility which
                              tor if they doubt the validity of the acknowl-     would facilitate the processing of claims. í
                              edgment of paternity, whereas they have
                              such a prerogative in terms of marriage.This
                              renders unstable the control power of the
                              public prosecutor provided for in Article 336
                              of the Civil Code, which allows him to con-
                              test a legally established parentage “if facts




68   Annual Report 2006
Bringing the values
of mediation to the world
In a society increasingly considered as a forum for confrontation and conflict,
mediation is getting ever more important and mediators or ombudsmen tend
to be always at the heart of social debates. Anxious to open these debates and
enhance his proposals, the Mediator of the French Republic actively maintains
his networks at ministries, universities that can contribute to the reflections
and debates, and among professionals and associations, both at the national
and international levels.


Promoting Human rights with                      deplored the disgraceful situation of French
the Human Rights Commission                      prisons, ushered in assessments of the gen-
§ Since 1993, the Mediator of the French         eral situation of prisons, under the auspices
Republic is a member of the National             the Mediator of the French Republic, Jean-
Human Rights Commission. Created in 1974,        Paul Delevoye, and Robert Badinter, a for-
this Commission is made up of representa-        mer Justice Minister. Objective: propose to
tives of NGOs, Human rights organisations        political leaders ways to improve a situa-
and qualified personalities as well as lay       tion which many national and international
people and representatives of religions. The     authorities consider as unsatisfactory.
National Human Rights Commission is con-         Alerted by social workers, the Mediator of
sulted and makes recommendations for the         the French Republic had already started for
government on draft laws, national and           eighteen months an innovative experiment
international laws, and participates in social   in prisons, by sending his delegates there.
debates. In the course of 2006, the Commis-      This experiment will continue in 2007.
sion continued its engagement on issues
pertaining to any form of discrimination,        Moreover,the Mediator of the French Repub-
but also bioethics, arms sales, administra-      lic remains very attentive to issues with
tive retention, racism and xenophobia.           direct impact on the respect of human dig-
Although the law of 1973 does not confer         nity and fundamental human rights. He is
on him any particular prerogative in the         following with great attention the imple-
field of Human rights, the Mediator of the       mentation of certain laws, especially the
French Republic participated actively in         law of 24 July 2006 on immigration and
these big debates. In February 2006, the         integration of foreigners.
report of the Human Rights commissioner,
Alvaro Gil-Robles, followed by the Interna-
tional Prison Observatory report, which




                                                                                           Mediator of the French Republic   69
     MAKING THE LAW EASILY ACCESSIBLE AND PROTECTING INDIVIDUAL LIBERTIES


                          Thinking Europe of law with                      AOMF (Association of Francophone
                          European ombudsmen                               Mediators and Ombudsmen):
                          § InEurope,the Mediator of the French Repub-     bringing the values of democracy
                          lic maintains regular relations with some one    to the world
                          hundred counterparts and contacts,federated      § Jean-Paul Delevoye is the secretary gen-
                          by the European Mediator. Mediators and          eral of AOMF, the Association of Francoph-
                          ombudsmen from member States of the Euro-        one Mediators and Ombudsmen, and, as a
                          pean Union and European Economic Area            result,participated in several of its assemblies
                          meet every two years.Thanks to this network,     in 2006. Apart from the linguistic ties, this
                          cases such as the problems of cross-border       organisation brings together countries which
                          workers are easier to handle together. Feder-    share the same democratic and Human rights
                          ated under the auspices of Nikiforos Diaman-     values. In 2006, the Mediator of the French
                          douros,the European Mediator,this network        Republic took several initiatives to help the
                          is also an enormous knowledge base and a         member States develop their own mediation
                          forum for exchange of information and expe-      system: reception and training, exchange of
                          riences which fuel debates prior to any reform   skills, provision of computer resources, etc.
                          proposal.For example,within the scope of the     He received,among others,the mediators of
                          on-going reflections on excessive debts, the     Djibouti and Morocco,and mediation teams
                          Mediator of the French Republic went to Bel-     from Senegal and Mali. In December 2006,
                          gium to understand better the role of positive   the Mediator of the French Republic went
                          files there. Furthermore, in keeping with the    personally to Senegal to witness the inaugu-
                          reform of the French judicial system,the Medi-   ration,in Bamako,of the headquarters of the
                          ator of the French Republic also contacted his   Mediator of the Republic of Mali, as well as
                          European counterparts in order to compare        the 11th edition of the Democratic discussion
                          effectively different legal systems and learn    forum.
                          from successful experiences.The Mediator of
                          the French Republic has also asked his coun-
                          terparts to open a debate on the problems of     Mediation in the world
                          immigration,integration and foreigners’right.    § A number of organisations and personal-
                                                                           ities around the globe are showing interest
                          At the European level, the Mediator of the       in the Institution, and are learning from the
                          French Republic strives for better harmonisa-    Mediator of the French Republic about his
                          tion of national and Community laws. In the      role and activities.In 2006,the services of the
                          course of 2006, the Mediator of the French       Mediator of the French Republic received suc-
                          Republic called,on many occasions,the atten-     cessively three Chinese delegations.They also
                          tion of politicians to the differences between   received the chairman of the Human rights
                          French laws and European laws.                   section of the Turkish Prime Minster’s cabi-
                                                                           net, as well as Becky J. Hoover, an American
                          In Vienna, in June 2006, the Mediator of the     lawyer and academic. í
                          French Republic participated in the European
                          conference of ombudsmen.France will be host-
                          ing in Strasbourg in 2007 the next meeting of
                          the national mediators and ombudsmen of
                          European member States.




70   Annual Report 2006
About the
Institution
    Whether or not it is admissible, each complaint sent to
    theMediator of the French Republic is replied to, with
    arguments in support of the reply. To guarantee fair access
    to law and information, and examine the most complex
    cases, departmental delegate mediators and experts at the
    central services perform a really laborious task. When
    individual complaints reveal general malfunctions or
    iniquities, there is the need not only for sporadic actions,
    but also for in-depth analyses and broader reflections.
    Therefore, all the reform proposals made by the Mediator
    of the French Republic reflect the day-to-day realities of
    French citizens and are based on the expertise and field
    work of jurists and the Institution’s delegates.



       The Regional Development section
       Bringing the Institution closer to all                  p. 72
       The Admissibility section
       A central legal-access point                            p. 73
       The General Matters section
       Putting the day-to-day life under
       the microscope so as to correct malfunctions            p. 74
       The Civil Servants/Pension Benefits section
       Making public-sector employers face up
       to their responsibilities                               p. 75
       The Justice section
       Explaining the law and encouraging
       amicable settlements                                    p. 76
       The Social section
       Managing emergency situations in the labyrinth
       of the social security scheme                           p. 77
       The Taxation section
       The French and taxation: a great need for education     p. 78
       The Reforms section
       Reform proposals: at the heart of public debates        p. 79
                                                             Mediator of the French Republic   71
     THE REGIONAL DEVELOPMENT SECTION




                              Bringing the Institution
                              closer to all
                              If the buzzwords for the activities of the 270 delegate mediators are proximity,
                              efficiency and rapidity, the quality of the services they render to the population
                              in their daily life makes these voluntary civil servants a network of reliable
                              partners, whose support is highly sought by citizens who have problems with
                              administrations.


        Within the services   The delegates handle 90% of the                   Reacting quickly,
        of the Mediator       cases referred to the Institution                 while remaining vigilant…
        of the French         § Traditionally present in prefectures, dele-     § Emergency situations are handled properly
        Republic, the
                              gate Mediators also have offices in the heart     thanks to the organisation of the delegates
        Regional
        Development           of sensitive neighbourhoods, in local organ-      into a network, and the contacts established
        section manages       isations (such as legal-information centres       in local administrations.The delegate media-
        a dense network       and municipal centres) and, since 2005, in        tors know how to quickly decode administra-
        of delegate           prisons.                                          tive procedures and channels since they used
        mediators.                                                              to work with them. Former civil servants or
                                                                                retired company executives, or even young
                              Listening to, settling disputes                   doctorands, they all have good legal training
                              between and informing citizens                    or a public-sector experience. In 2006, the
                              puzzled by the complexity of                      Regional Development section organised for
                              administrative procedures                         them 250 general training (computer, legal
                              § The proximity of the delegates’offices,the      training,etc.) days or specific training (on dis-
                              fact that their services are free of charge,and   ability,detention) days.
                              their readiness to listen reassure the persons
                              puzzled by complex procedures and anony-          They are equipped with laptop PCs and an
                              mous voice servers; they thus help to ease        Internet connection,and can thus communi-
                              often tensed situations, through clear and        cate with each other and with the Institution.
                              impartial explanations.                           This is how it was possible to organise the dis-
                                                                                tribution of a questionnaire to 45,000 detainees
                              52% of the cases handled by delegate medi-        within a short time. The network structure is
                              ators are information and orientation requests    particularly suited to the handling of emer-
                              made by a population overwhelmed by the           gencies:thanks to the contacts set up with the

       270     delegate
       mediators
                              complexity of laws and the administrative
                              organisation,a form of malfunction dreaded
                                                                                administrations and between the delegates,
                                                                                quick solutions are found for sensitive prob-
                              by the most vulnerable and least informed         lems.
                              members of society.
       55,874                                                                   As observers of administrative practices, the
                                                                                delegates detect malfunctions and also try to
       cases received
                                                                                correct them with the services concerned,thus
       in 2006
                                                                                helping to improve the public service. í

       338      public
       reception centres




72   Annual Report 2006
THE ADMISSIBILITY SECTION




A central
legal-access point
Telephone, e-mails, and emergency unit: the Admissibility section adapts
the referral modalities of the Mediator of the French Republic to the
citizens’ new practices and the urgency of certain situations.
This complainant reception and orientation platform also examines
non-admissible complaints.



The Admissibility section performs two dis-         Mediator of the French Republic,therefore,ini-            Within the services
tinct functions.The first one consists in receiv-   tiated a rapprochement which will gradually               of the Mediator
ing and examining the requests sent to the          make it possible to work more closely with                of the French
Mediator of the French Republic. Admissible         these services.                                           Republic, the
complaints are then forwarded to one of the                                                                   Admissibility
                                                                                                              section receives
Institution’s five examination sections, or to
                                                                                                              and channels
regional delegates.Thus,the Admissibility sec-      Taking new practices into account                         complaints to the
tion received and handled the 6948 requests         § Pursuant to the law of 3 January 1973,com-              relevant sections.
which arrived at the central services in 2006.      plaints must be sent indirectly to the Medi-              It also examines
                                                    ator of the French Republic through a senator             non-admissible
The second function of the Admissibility sec-       or a member of parliament.Now,the urgency                 complaints.
tion corresponds more particularly to the objec-    of certain situations or referrals through such
tives of the Mediator of the French Republic in     means of communication as telephone and
terms of access to the law,proximity and edu-       e-mails must henceforth be taken into
cation.It is all about handling complaints which
are not admissible in accordance with the law
                                                    account. In 2006, the Admissibility section
                                                    thus received 3,119 e-mails. Out of principle,           3,033         cases
of 3 January 1973. The non-admissible cases         the Admissibility section does not reject any            closed by the
handled in 2006 basically concerned fines,          request not sent through a member of par-                central services
town planning and private disputes: family          liament, but asks the complainants to regu-
problems,relations between tenants and land-
lords, consumer law, on-going legal proceed-
                                                    larise their procedure.
                                                                                                             41%       outside
ings,etc.                                           Moreover, the Admissibility section may                  the Mediator’s field
                                                    detect the urgency of a complaint upon its               of competence
                                                    reception: risk of expulsion, blocked bank
Making the law easily accessible
§Non-admissible cases are examined in order
                                                    accounts, non-payment of a minimum
                                                    income, etc. In this case, its emergency unit            209      cases
                                                                                                             handled by the
to give each complainant the clearest, most         handles the matter. This was, for instance,
comprehensive and most useful answer pos-           the case for a self-employed craftsman whose             emergency unit
sible.Therefore,reach reply specifies why the       bank accounts had been blocked for an
Mediator of the French Republic is not empow-
ered to intervene in such a case, which steps
                                                    allegedly unpaid 85 euros hospital bill.Within
                                                    one hour, the emergency unit highlighted a               3,119
the complainant should have taken – or can          malfunction between the hospital adminis-                complaints received
still take –,the addresses of the organisations     tration and the Treasury,and obtained a can-             by e-mail, that is
or persons to contact, if need be. In fact, the     cellation of the banking ban and the inherent            + 100 % compared
Admissibility section has noticed that the gen-     charges. í                                               to 2005
eral public has a poor knowledge of services
such as 3939 or CIRA (inter-ministerial centres
for administrative information). In 2006, the




                                                                                                Mediator of the French Republic   73
     THE GENERAL-MATTERS SECTION




                              Putting the day-to-day
                              life under the
                              microscope so as to
                              correct malfunctions
                              Enumerating the areas covered by the General-matters section would
                              amount to drawing a list like Prévert of everyday tragedies and the big
                              matters of principle which punctuate everyone’s life. This is a section
                              where legal rigour and initiatives are combined to effectively examine
                              admissible complaints.


        Within the services   § The people in charge of the General-mat-           as a result of silence or refusal on the part of
        of the Mediator       ters section are from the legal services of the      the administration involved,the Mediator of
        of the French         central administrations,regional authorities         the French Republic exercised the power con-
        Republic, the         or public organisations. They combine their          ferred on him by law to publicise his recom-
        General-matters       knowledge of administrative life with their          mendations so as to finally persuade the
        section examines
                              wish to support complaints which merit a             parties to come to an understanding.
        complaints
                              mediation so as to find fair solutions,in keep-
        covering 35
        different areas.      ing with the legal framework and the inter-          For the most important or frequent issues,
                              est of the parties involved. This is a rigorous      the General-matters section compiles tech-
                              and creative work,which may neither accuse           nical and topical notes highlighting the main
                              an administration,nor undermine the polit-           lines of a reform to envisage. í
                              ical liberty of elected representatives.It encour-
                              ages, if necessary, the administration or
                              authority to modify its practices.                   Areas covered
                                                                                   by the General-matters section
                              Quite often,it is necessary to “dissect”a situ-      Agriculture – Regrouping of lands – Regional
       1,390         cases
       were closed in 2006
                              ation which has become complex over the
                              years,before finding a legal and fair solution.
                                                                                   authorities – Public works contract – Press
                                                                                   and communication – Public liberties – Econ-
                              The Mediator of the French Republic cannot           omy and various subsidies – Public services –
                              impose any solution. Since he is neither part        Education and professional training – Recog-
       A special assistant
                              of the dispute,nor the legal representative of       nition of diplomas – Access to regulated
       examines an
                              either parties,nor a judge,he follows matters        professions – Culture – Environment – Expro-
       average of
                              from a distance, which enables him to offer          priations – Town planning – National plan-
       175
       a year
                 cases        the service he is offering free of charge to com-
                              plainants,and to find an agreement between
                                                                                   ning – Road – Domaniality – Public works –
                                                                                   Transport and road traffic – Tourism – Health-
                              the parties involved on a solution which closes      care – Administrative responsibility – Admin-
                              the past and opens the present.This requires         istrative police – Execution of legal decisions
       20%        of the      the readiness to listen and … a lot of time.         taken by the administrative jurisdiction…
       disputes concern
       town planning,         In fact, a large number of cases are settled
       environment, the       thanks to the good cooperation of regional
       public domain,         authorities and public administrations.Nev-
       public works and       ertheless,in 2006,in two cases where a solu-
       roads                  tion seemed possible but could not be found




74   Annual Report 2006
THE CIVIL SERVANTS/PENSION BENEFITS SECTION




Making public-sector employers
face up to their responsibilities
Alot of clichés are changed by cases handled by the civil servants/Pension
benefits section.
Situations of unemployment reveal a lack of coordination between the social
security schemes; the payment of pension benefits is often impeded by belated
publication of application decrees, while disability may result in total absence
ofincome. Insecurity and urgency are now part of the life of civil servants.


§The Civil servants/Pension benefits section        handled by the section are often precarious               Within the services
examines complaints filed by civil servants         and urgent,but are resolved by the Mediator               of the Mediator of
from three public-service levels (the State,        of the French Republic.                                   the French
regions,hospitals),who are in disagreement                                                                    Republic, the Civil
                                                                                                              servants – Pension
with their administration.Nevertheless,these        Immediate pensioning for disability or unfit-
                                                                                                              benefits section
complaints must not call to question the exer-      ness for function is also a source of a good
                                                                                                              examines
cise of hierarchical and disciplinary power by      number of disputes, basically due to the                  complaints sent
the administrative authority (Article 8 of the      absence of (the obligatory) redeployment of               in by civil servants
law dated January 1973).                            the civil servant for another function com-               from the three
                                                    patible with his or her state of health. More-            levels of civil
In 2006,a lot of requests concerning the right      over, this is often because of the delayed                service.
to civilian pension benefits were filed by active   decision of the administrations in charge of
civil servants.Concern about this issue seems       recognising the civil servants’ unfitness for
to be rising more than in the previous years,       their function,or on the possible payment of
due to the changes ushered in by the 2003
pension reform, and as a result of the grad-
                                                    pension.This makes it impossible for the par-
                                                    ties concerned to get paid.Therefore,the Medi-           585      cases
                                                                                                             were closed in 2006
ual and sometimes late publication of appli-        ator of the French Republic intervened on
cation decrees. Many people complained              several occasions at some administrations to
about the administrations’sluggishness and
information gaps, which may hamper the
                                                    check that the procedures were properly
                                                    applied. Furthermore, he proposed that the               50%        cases
payment of their pension benefits.Moreover,         same law be used for the three public serv-              concerned civilian
there is still a growing number of complaints       ice levels, and this reform proposal was                 and military pension
about sexual discrimination in terms of retire-     received favourably for public hospital                  benefits
ment pension and widow’s pension.                   employees. The only reform proposal yet to

The second most frequent case referred to
                                                    be adopted is cancelling the obligation to pass
                                                    through the Economic ministry, which does                45%
the Mediator of the French Republic concerns        not exist for the other two civil service levels         concerned the
the payment of unemployment benefits to             and which, in case of rejection, may deprive             career of civil
contract civil servants and regional and hos-       the civil servant, whose name is removed                 servants
pital employees.The law on this matter is so        from the books, of any income. í
complex that public-sector employers have
a poor knowledge thereof,thus generating a                                                                   5%      concerned
                                                                                                             recruitment
good number of complaints. The most fre-
quent disputes arise from the legitimacy of
a civil servant’s resignation, the period of
indemnity, and the lack of coordination
between the unemployment insurance
scheme and the public sector.The situations




                                                                                                Mediator of the French Republic   75
     THE JUSTICE SECTION




                              Explaining the law
                              and encouraging
                              amicable settlements
                              Second section in terms of the number of complaints received, the Justice
                              section noticed a very high increase in the number of requests concerning
                              protected adults. The feeling of arbitrariness sometimes expressed in the
                              complaints lodged by foreigners was given sustained attention in order to
                              explain the decisions and point out the elements not sufficiently taken into
                              account by prefectural services.


        Within the services   § The Justice section handles disputes             Matters pertaining to civil status,citizenship,
        of the Mediator       between natural persons or corporate bod-          guardianship, court officers, as well as crim-
        of the French         ies and the public service of the judiciary.This   inal and civil cases represent 38 % of the cases
        Republic, the         activity covers the three components of the        examined by the section. Although they are
        Justice section
                              Justice ministry: courts, prisons and judicial     particularly complex,civil status-related case
        handles disputes
                              means of protecting the youths. It also cov-       are sometimes resolved within forty-eight
        between natural
        persons or            ers the administrative judicial tasks handled      hours. In general, the examination periods
        corporate bodies      by members of the jurisdictions, as well as        do not exceed four months. Note: the num-
        and the public        the activities of the professionals that partic-   ber of disputes concerning adults under
        service of the        ipate in the jurisdictional and legal proce-       guardianship is rising quickly, with a 50%
        judiciary, as well    dures (lawyers, solicitors, notaries public,       increase in the number of cases received in
        as questions about    sworn experts). The Justice section also han-      2006.
        civil status and      dles cases concerning people’s civil status or
        foreigners’ rights.
                              the legislation relating to foreigners.            Also in 2006, the intervention of the Media-
                                                                                 tor of the French Republic in prisons was con-
                              With 60% of the cases handled, foreigners’         sidered a success.This innovative experiment
                              right is the largest part of the activity of the   will be extended to all the French prisons in
                              Justice section, which is destined to accom-       2007. í

       885      cases
       were closed in 2006
                              pany foreigners all along their life: visa, stay
                              permit, family reunification, naturalisation,
                              etc. The Justice section performs an impor-
                              tant educational mission.The Justice section
       A 50%
       increase in the
                              generally works with the foreigners’office of
                              prefectures, the central civil status office of
       number of cases        Foreign Ministries,Public prosecutors,clerks
       pertaining to          at the citizenship department of the Justice
       protected adults       Ministry, etc.




76   Annual Report 2006
THE SOCIAL SECTION




Managing emergency
situations in the labyrinth of
the social security scheme
Social security and welfare schemes are having problems adapting to
theunstable professional and private situations. Old age and unemployment
arethe most frequent issues handled by the Social section. The cases examined
reveal an urgent need for laws, especially in favour of dependent persons or
people in precarious situations.


§ Explanation is the word that characterises        The increasing complexity of laws and their                Within the services
the activities of the Social section. In the        application makes it more difficult to exam-               of the Mediator of
labyrinth of the social security procedures and     ine the complaints sent to the Social section.             the French Republic,
laws,the requestor is often helpless or appalled.   The multiple professional situations associ-               the Social section
                                                                                                               examines
Peopledo not understand whythey are refused         ated with different schemes, as well as the
                                                                                                               complaints
a support or why a benefit is cancelled with-       law on pension reform, give rise to an ever
                                                                                                               pertaining to the
out prior notification, or explanation. While       increasing number of complaints. Further-                  obligatory social
examining cases referred to it, the Social sec-     more,complaints sent in by disabled persons                welfare coverage of
tion often has the opportunity to explain social    or parents of disabled children highlight the              the entire
security regulations and their application.         emerging needs of disabled persons: special                population, except
                                                    education allowance, reimbursement of                      civil servants. It is
Another characteristic of the Social section is     accommodation and transport expenses,dis-                  basically all about
its method of working as a network with its         ability cards, compensations, fixing the rate              disputes arising
                                                                                                               from the social
correspondents in social security organisa-         of disability.The Social section is particularly
                                                                                                               security benefits of
tions and administrations, or with regional         striving to create links with departmental
                                                                                                               the general scheme,
delegate Mediators of the French Republic           handicapped homes (MDPH) and the national                  the social security
who are often closest to the complainants.It        solidarity office for autonomy.It works closely            scheme for self-
is, therefore, the responsibility of the Social     with delegate referents of the MDPHs.                      employed workers
section to strive for maximum efficiency in                                                                    and farmers,
its actions, by choosing the most pertinent         To extend its activities to the largest part of            contributions,
contacts and working method according to            the population, the Social section organises               pension benefits,
the urgency of the cases to be treated.             training sessions and offers technical assis-              family and welfare
                                                                                                               benefits, minimum
                                                    tance to regional delegate mediators of the
                                                                                                               income, housing
                                                    French Republic. í
                                                                                                               benefits,
                                                                                                               employment aid,
                                                                                                               and unemployment
                                                                                                               benefit.




                                                                                                              620       cases were
                                                                                                              closed in 2006




                                                                                                 Mediator of the French Republic   77
     THE TAXATION SECTION




                              The French and
                              taxation: a great need
                              for education
                              Education is an essential aspect of the work of the taxation section. Once a
                              complainant understands the position of the administration and no longer
                              considers himself or herself a victim of injustice, he or she generally gives up
                              anylegal action. Only one out of two cases requires the intervention of the
                              Mediator of the French Republic at the administration, and possibilities of free
                              review are less and less frequent.


        Within the services   § 90% of the cases examined by the Taxa-          So,the activity of the Taxation section is basi-
        of the Mediator       tion section concern State or council tax.The     cally State finance administration oriented
        of the French         complaints are filed by natural persons or cor-   (taxes,public accounts,and customs).Its con-
        Republic, the         porate bodies (companies, associations) due       tacts are their central services or those located
        taxation section      to disagreement between them and admin-           in the regions:tax services,Treasury offices…
        handles complaints
                              istrations.30 % of the complaints come from       The Taxation section also intervenes in some
        filed by natural
                              companies. The nature of these cases may          organisations attached to the Economic min-
        persons or
        corporate bodies.     vary a lot. Presented at all stages of adminis-   istry, such as the national agency in charge
                              trative and litigation procedures, they result    of indemnifying French citizens overseas,and
                              from very diverse situations with a lot of eco-   for various local taxes and fees –atthe regional
                              nomic,financial and social implications,rang-     authorities.
       527       cases        ing from a few euros to the survival of a
                              company and the future of its employees.          Finally, other cases handled by the section,
       were closed in 2006
                              Cases of inland-revenue inspection in com-        that is 10% of its activity, are not tax related:
                              panies and the social consequences occupy         land registry, mortgage, indemnification of
       90%        of the
       cases concerned
                              a large space,with more than one third of the
                              complaints received.As for personal taxation,
                                                                                repatriated French citizens, but also televi-
                                                                                sion licence. í
       taxation               they are generally linked to family situations,
                              be it for divorce (deduction of alimonies,

       30%                    increase in dependents' allowance, etc.), or
                              for inter-generation solidarity. Finally, com-
       of the tax-related     plaints involving regional authorities basi-
       complaints came        cally concern changes in their taxes and fees,
       from companies         especially in connection with the collection
                              of household refuse.
       10%                    In addition to the solutions of compromise,
       of the cases were
                              tax relief or deduction brought to the
       in connection with
                              complainants, the replies also contribute
       fees and various
                              immensely to pedagogy and explanation of
       compensations
                              administrative decisions,especially when the
                              case leaves no room for mediation or free
       80%        of
       the mediations
                              review, which is now frequent.

       are successful




78   Annual Report 2006
THE REFORM SECTION




Reform proposals:
at the heart of public
debates
In a legislative landscape where escalating laws may hamper the authority
of law and generate certain confusion, the reform-proposal power of the
Mediator of the French Republic is basically exercised in two areas: searching
for equity and correcting malfunctions in the public service. In so doing,
he helps to make administrative procedures and practices fairer and simpler.



§ The laws of 3 January 1973 and of                    When the examination of a reform request                  Within the services
12 April 2000 confer on the Mediator of the            does not result in a reform proposal in the               of the Mediator
French Republic the power to make reform               real sense of it,but the problem raised is real,          of the French
proposals himself,through direct referral from         the Mediator of the French Republic alerts                Republic, the
a citizen,a member of parliament or another            the relevant ministries to it so as to possibly           Reform
                                                                                                                 Examination
independent authority.The reform proposal              make a reform at the level of these ministries.
                                                                                                                 section reviews
mission is a logical extension of the individ-         In 2006, 27 cases were thus reported; they
                                                                                                                 reform requests
ual mediation task. In fact, this makes the            concern, among others, the payment of dis-                and, if need be,
Mediator of the French Republic an observer            ability pension to repatriated persons, the               makes proposals
of the social realities that fuel any useful reflec-   issuing of passports to underage children of              for the attention
tion with a view to improving our laws.                divorced couples,leave for parental presence,             of the ministers
                                                       surcharged numbers, affiliating children to               concerned or
In terms of reform,the Mediator of the French          the health-insurance card of each of their par-           members of
Republic has a large field of action at the heart      ents, the situation of doctors with a foreign             Parliament.
of on-going debates: changes in the family,            diploma.
professional mobility,harmonisation of Euro-
pean and national laws,protection of citizens          In 2006,the Mediator of the French Republic
and consumers,disabled persons,work acci-
dents,and occupational diseases.The reform
                                                       made eighteen reform proposals, aimed at
                                                       protecting people (welfare, fundamental                  103      open
proposals of the Mediator of the French                rights,vulnerable persons),or improving pub-             reform requests
Republic are either aimed at correcting the
malfunctions in a public service or in an
                                                       lic systems (taxation, the legal system, etc.).
                                                       Thirteen reform proposals were adopted. í                101      closed
administration,or reducing the situations of                                                                    reform requests
iniquity resulting from the application of a
regulatory or legal standard.                                                                                   18   open reform
                                                                                                                proposals

                                                                                                                13    adopted
                                                                                                                reform proposals




                                                                                                   Mediator of the French Republic   79
      Administrative and financial
      management for 2006


       BUDGETARY MEANS: 11 056 000                                      Creating a Charter for the Institution
                                                                       At the beginning of 2006, the "Charter for the Institution” of
        Staff (salaries - charges- training)                           the Mediator of the French Republic was created. This char-
        (officials and delegates)                        7 166 000     ter presents the service commitments with, in particular, a
       • Salaries of headquarters staff                                development in terms of reception at the Institution, inform-
         (among others, temporary staff                                ing and assisting citizens in their administrative procedures,
         and reimbursed expenses, including                            the modalities for handling cases, as well as the reform pow-
         social security contributions)                  5 834 000     ers of the Mediator of the French Republic.
       • Allowances for delegate
         mediators of the French Republic                1 180 000
       • Training of staff and delegates                   152 000      Staff training
                                                                       The long-term training plan for delegates and headquarters’
        Operating expenses                                             staff continued in 2006 with, for the first time, the provision
        (excluding staff-related expenses)               3 528 000     of special training for each section. This will be intensified
                                                                       in 2007.
       • General premises management expenses
            – (including rent)                           2 223 000
            – General operations                           728 000     Moreover, the new objectives fixed by the Institution led to
       • Miscellaneous expenses                                        the development of two new orientations in 2006:
         (including contingences and amortisement)         577 000     • training of delegate mediators in prisons;
                                                                       • training of the headquarters’ staff upon the arrival of a pub-
        Investments                                        362 000
                                                                         lic accountant.

                                                                       Transparency of human resources management
       NEW ORIENTATIONS FOR 2006                                       To comply with the specification of the LOLF, with a view to
                                                                       clarity in his action, and transparency, the Mediator of the
        Obligations of result and performance indicators               French Republic reimbursed the salaries of the staff placed
       Within the framework of the implementation of the LOLF          at his disposal and who had been transferred to him in 2006,
       (organic law on the Finance Act), the Mediator of the French    which explains the wage bill of 2005 to 2006.
       Republic fixed for the services some obligations of result,
       especially with regard to response time, the quality of medi-
       ation and of reform proposals.                                  The staff of the Mediator
                                                                       of the French Republic
       As a result, apart from the performance indicator contained     (as of 31 December 2006)
       in the Finance Act, other internal management indicators
                                                                                                                      CATEGORIES
       and guidelines were implemented and sent to parliamen-
       tary commissions in 2006.                                                                          TOTAL        A     B      C
                                                                       Staff placed
                                                                       at his disposal                         47    32      8      7
        File traceability
                                                                       Staff from state and regional
       Following the acquisition of a new data-processing soft-
                                                                       health insurance offices
       ware solution in 2005, efforts were geared in 2006 towards      (CPAM and CRAMIF)                        5     0      0      5
       developing the traceability of files, using several criteria:   Seconded staff                          15    11      0      4
       classification by subject, and by geographic area, including    Staff working under contract            23    16      0      7
       in the Admissibility section.                                   Staff assigned
                                                                       by the Government Office
                                                                       of Secretary General                     4     0      1      3
                                                                       TOTAL                                   94    59      9     26




80   Annual Report 2006
TO FIND THE CASES CITED IN THIS REPORT,
THE ORGANISATIONAL CHART, THE LAW
OF 3 JANUARY 1973 AND NEWS ABOUT THE
INSTITUTION:

 WWW.MEDIATEUR-REPUBLIQUE.FR




Mediator of the French Republic
Publication manager: Christian Le Roux
Design – production: Polynôme Communication – RCS Nanterre B 398 289 629
Author: the services of the Mediator of the French Republic; Emmanuelle Chen-Huard
Photographs: David Delaporte
Printing: La Fertoise – 72405 La Ferté-Bernard
Legal deposit: 1st quarter of 2007
Translation: Benjamin O. Onah
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