Annual Report 2004 - Défenseur des Droits€¦ · A n n u a l R e p o r t 2 0 0 4. causes-dialogue-litigation-equity-simplifying-listening-rights-victims-remed...

c a u s e s d i a l o g u e l i t i g a t i o n e q u i t y s i m p l i f y i n g l i s t e n i n g r i g h t s v i c t i m s re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ingl i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r eestablishing-reformscauses-dialogue-litigat ion-equity-simplifying-listening-rightsv i c t i m s - re m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e sd e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n f o r m i n g - p r ox i m i t y- re - e s t a b l i s h i n g - re fo r m sc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing- reforms - causes- dia logue- l i t igat ion- equity-s impl i f y ingl i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r eestablishing-reformscauses-dialogue- l itigation-equity-simplifying-listening-rightsv i c t i m s - re m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e sd e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n fo r m i n g - p r ox i m i t y - re - e s t a b l i s h i n g - re fo r m sc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates- just-respect-so lutions-informingproximity-re- establ ishing-reformscauses- dia logue- l i t igat ion-equity-s impl i f y ingl i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r eestablishing-reformscauses-dialogue- l i t igation- equity-simplifying-listening-rightsvic t ims-remedy- conci l iat ion-f ighting- i n equa l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e sd e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n f o r m i n g - p r ox i m i t y- re - e s t a b l i s h i n g - re fo r m sc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i ty-re- establ ishing-reformscauses- dialoguelitigation-equity-simplifying-listening-r ights-vict ims - remedy- conci l iat ion-f ight inginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing-reforms-causes - d ia logue - l i t igat ion- equity-s impl i f y ingl i s t e n i n g - r i g ht s - v i c t i m s - r e m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r eestablishing-reformscauses-dialogue-litigation-equ ity-simplifying-listening-rightsv i c t i m s - re m e d y- c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e sd e l e g a t e s - j u s t- re s p e c t-so lut ions - i n fo r m i n g - p r ox i m i t y- re - e s t a b l i s h i n g - re fo r m sc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g ht s - v i c t i m s - re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -mal func t ion - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- r e - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ingl i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r eestablishing-reformscauses-dialogue-litigation-equity-simplifying-listening-rightsv i c t i m s - re m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e sd e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n fo r m i n g - p r ox i m i t y- re - e s t a b l i s h i n g - re fo r m sc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ing

a u s e s d i a l o g u e l i t i g a t i o n e q u i t y s i m p l i f y i n g l i s t e n i n g r i g h t s v i c t i m s r e m e d yonci l iat ion-f ighting- inequal it ies-malfunc tion-publ icser vices- delegates- just-respec t-o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u e - l i t i g at i o n -quity-simplifying-l istening-r ights-vict ims-remedy- conci l iat ion-f ighting-inequalit ies-alfunc tion-publ icser vices- delegates- just-respec t-solut ions- informing-proximity-re-

stabl ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s -

elegates-just-respect-solutions-informing-proximity-re- establishing-reformscauses-a l o g u e - l i t i g at i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n -g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g at e s - j u s t- re s p e c t- s o l u t i o n s -f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y -m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -alfunc tion-publ icser vices- delegates- just-respec t-solut ions- informing-proximity-re-













A n n u a l R e p o r t 2 0 0 4

c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d

c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s

re s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u

lit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightin

inequalities-malfunction-publicservices-delegates-just-respect-solutions-informin

proximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y in

l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o

p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e

c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g

l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n

f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o ncauses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-ju

respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- conci l iati

f ighting-inequalit ies-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igati

equity-simplifying-listening-rights-victims-remedy- concil iation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informi

c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e

m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e

d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e



c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p

s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t



� Editorial ................................................................................................................................................................................................ 2 - 5

� Major events .............................................................................................................................................................................. 6 - 7

� Key figures for the yearThe Institution's overall results .................................................................................................................................................... 8Examination of individual complaints by the central services ....................................................... 9 - 11The delegates' activity ............................................................................................................................................................ 12 - 13Reforms ................................................................................................................................................................................................................. 14The 2004 Budget ....................................................................................................................................................................................... 15

At the service of the citizens

Reducing injustice ................................................................................................................................................................................... 17

• Admissibility of demands ........................................................................................................................................... 18 - 19

• Examination on a case-by-case basis

• General matters ............................................................................................................................................................ 20 - 23

• Civil servants/pension benefits .................................................................................................................. 24 - 29

• Taxation ................................................................................................................................................................................. 30 - 33

• Justice ...................................................................................................................................................................................... 34 - 37

• Social issues ...................................................................................................................................................................... 38 - 43

• A generally accepted observation

• Legal inconsistencies and deficiencies ................................................................................................. 44 - 45

Getting closer and being more attentive to people ............................................................................... 46 - 47

• Mediators and facilitators .......................................................................................................................................... 48 - 52

• An increasingly tighter territorial network .............................................................................................. 53 - 55

A will to reform

From individual mediation to reform ................................................................................................................................. 57

• Four societal debates resulting from reform requests ................................................................ 58 - 59

• The Mediator’s new reform proposals .......................................................................................................... 60 - 63

• When the Mediator is proved right .................................................................................................................. 64 - 67

• Reform proposals to be publicized .................................................................................................................... 68 - 69

• Cases whose examination started in 2005 ............................................................................................ 70 - 71

Reinforcing democracy and human rights ........................................................................................................ 72 - 75

� AppendicesOrganisational chart of the central services ................................................................................................... 76 - 77Law No. 73-6 of 3 January 1973 ...................................................................................................................................78 - 79

C ontents

Editorial

auses- dialogue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- con

olutions-informing-proximity-re-establishing-reformscauses-dialogue-l it igation-eq

alfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re-ses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-

hting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re-establishing-reformscauses-dialogue-l it igation-eq

ximity-re-establishing-reforms

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s


The Mediator of the FrenchRepublic since April 2004, youare presenting here a report ofthe Institution's activity. Whatdoes this report represent foryou?

An activity report is an exercise that is solemn,

obligatory and usual at the same time.

However, that of 2004 is in my own opinion of par-

ticular importance.

First of all, it is the first report that I have the honour

to present since my nomination as the Mediator of

the French Republic on 13 April 2004. I immediately

felt the importance of the mission, the essential role

that the Institution can play, the high expectations it

raises and, thus, the big responsibility entrusted to

me by the President.

The Mediator's first function is to examine individual

complaints from physical persons and corporate bodies

regarding any administration or public service.

In each case referred to him, there may be a personal,

sometimes painful story, and often a strong feeling of

injustice; that of not being listened to or heeded by an

administrative "machine" that is hardly understand-

able to the citizen. Therefore, the Mediator is really

in a position to assess the questions, concerns, impa-

tience, and tensions arising across the French society.

His duty is to take them into account and make pro-

2 Annual Report 2004

posals that will render more acceptable for everyone

the inevitable administrative constraints. He has to

remain on the narrow path between what is right and

what is legal, and find a balance between the legiti-

mate expression of an individual injustice and the

obligation of a law that must be applied to all.

Listening and acting

Jean-Paul DelevoyeMediator of the French Republic

Editorial

ci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec

quity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalitie

-establishing-reformscauses-dialogue-litigation-equity-simplifying-listening-right-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iatio

quity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informin

s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i

- i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i

3Annual Report 2004

E d i t o r i a l

So, the Mediator's response mustmeet this high expectation of ourfellow citizens?

Yes, and that is why I wanted to define, before the end of

2004, together with the Institution's entire staff, a

method that would enable us render a still more effective

service to the French citizens.

This method is based on listening to the citizen but also

to the administration.

It is a result of demands, since each case may have very

serious personal consequences.

It involves reactivity, since some cases referred to us are

due to high distress situations. It is rather to examine

them with the required promptness that I have created an

emergency unit.

It also entails pedagogy, because a complainant is not

necessarily right, but will be in a better position to accept

the decision taken against him if it is explained to him.

Finally, it involves exchanges and being open to others:

the need for mediation is highly present in our society and

explains the growing interest shown in different activity

sectors for this conflict settlement method. In the face of

this tendency, the Mediator of the French Republic must

not feel that he has a monopoly on the values of media-

tion and ignore what mediators and conciliators in com-

panies or public services, social organisations and

communities are doing in their own fields and at their

own levels.

Precisely, how do you define thesevalues which are specific to medi-ation?

I will cite three of them. Independence, that is the

ability to act regardless of one's personal convictions,

friendship, opinions and judgements. It is at this price

that the Mediator can really be a credible "third-player"

who will propose a solution that is acceptable to the

two parties. Humanity, because behind a complaint

there might be a real personal tragedy, which the com-

plainant does not mention out of decency or pride. And

finally, pedagogy, as I said earlier, because to explain

is also to respect.

These are the values that I try to apply, and they are all

shared by my colleagues. I must say that I was touched,

when I assumed this function, not only by the remarkable

professionalism of the staff of the Institution, but also by

the considerable importance they attached to their mission

and public service. Nothing would be possible without

them.

Editor








What are the means used progressively to support thisdirect contact method which isnot only more effective, but alsomore human?

I intend, above all, to encourage the sharing of infor-

mation, networking of competences, and synergy of

actions: in the end, it is the user of administrative serv-

ices that will benefit from them.

It was in this state of mind that I wanted to speed up,

first within the Institution, an investment programme for

mail management, which guarantees mail traceability, as

well as the networking of all our colleagues. This tool will

encourage exchanges between colleagues and the head-

quarters, but also between the delegates themselves, in

order to take full advantage of their complementarity.

Outside the Institution, this choice of working as a net-

work will be concretised through a series of agreements

with social security organisations (CNAF, CNAM,

UNEDIC). As early as last December, I signed, together

with all the public service mediators, a reference charter

on the values that are common to us. Finally, I wish to

establish close links with universities and professional

organisations that can help the Mediator to refine his

reform proposals.

How do you intend to use thisreform proposal power conferredby law on the Mediator of theFrench Republic?

The Mediator is highly influential in this domain

and I intend to fully exercise this power. By agree-

ing to talk to the media, first, when it is necessary to

trigger off a public debate; and then by maintaining

both with the Government and the Parliament long-

term, constructive relations based on trust and mutual

respect. The Mediator does not replace the legislator,


but it is his task to clarify his choices, to prevent the

undesirable consequences of a text and suggest modi-

fications that can help remedy the situation.

Is this a new state of mind youare advocating for concerningthe Institution?

Yes, a state of mind characterised by openness to

debates that cut across the French society, and avail-

ability to all those (public services, universities, associ-

ations) that are conscious of the need to reform our

administrative behaviours. This is the reason for our

reflection on the handicap that can make it difficult to

have access to rights, and for the experiment decided

upon together with the Justice Minister to have Media-

tors in prisons. It is also in this state of mind that I intend

to fully play my role within the National Human Rights

Commission, as well as in the international instances

that strive for cooperation between European Media-

tors, and where I have to defend democracy and Human

rights together with my counterparts from Southern

countries.

Does France have a goodadministration?

W e obviously do not have to be ashamed of the

quality of the French administration. An extra-

ordinary modernisation and adaptation effort has been

made within the administration over the past few years,

which has not been duly applauded. Moreover, the

administrations are served by absolutely remarkable

men and women, who sometimes work in difficult sit-

uations and who would like these situations to be

improved, and certain structural malfunctions corrected.

So, let us be clear about this: the Mediator's role is not to

act as the users' advocate or the administration's prosecutor.

His role will be to offer advice, via his local delegates, or to

try to find a solution if a case is referred to him as a last

resort. In my own view, his mission is to propose a fair

ial







5Annual Report 2004

differently from one part of the country to the other. The

Mediator, who can only act within the framework of the

rule of law and who is one of its guarantors, cannot be

insensitive to that. If the law is not perceived, both in

its objectives and its application, in the clearest and

most just manner, it is the principle of the social con-

tract that is in danger.

Therefore, this first activity report is also that of an obser-

vation: that of a worried society that is unsure of its val-

ues. A society which more than ever needs to recover

its self-confidence, and which expresses an extremely

strong desire to be respected, understood and heeded.

A privileged observatory for social advancements and a

moral authority whose independence is recognised by

all, the Institution of the Mediator of the French Repub-

lic must strive to restore this confidence.

Jean-Paul DelevoyeMediator of the French Republic

settlement of disputes, in a totally independent manner. It is

also to dare to say what is just or unjust, and I intend to use

this interpellation power conferred on me by the lawmaker.

I will make reform proposals each time it will be useful, I

will inspect when necessary and sanction when indispen-

sable. Thus, I had to go to Nantes to visit the Civil Status

office for people born outside France: we know that the

transmission of certain documents can take such a long

time, or how painful it is to some people to be obliged to

prove their nationality because they were born outside

France. I did not find there any malfunction or any attitude

worthy of criticism, but an administration with a considerable

work load and which would like to be heeded and assisted

in its desire to render the most effective service to the citi-

zens. This visit has been useful, and I will like each of my

actions to be inspired by the same concern for effectiveness.

On the other hand, for the Mediator of the French Republic,

there will be no taboo topic, concealed reality, or protected

service or organisation. There are perennial issues such as

police brutality, the reliability of legal expertise, the scan-

dal of wandering children or the validity, under certain cir-

cumstances, of the medical secret. I will bring them up, if

need be, in 2005, and I will participate in the debates they will

give rise to.

It seems that the citizens tendto immediately turn to theMediator, whereas he is onlysupposed to be the last resort…

I t is indeed another assessment to be made of this

short first year of my mandate. I am conscious of the

fact that the Mediator of the French Republic is increas-

ingly being turned to as the first instead of last resort. For

me, it is a sign of growing concern and of a decrease in

the trust people had in public authorities and the Justice.

It also shows the relative fragility of the law. The law is

often considered by our fellow-countrymen/ women as

something that defends the interests of the strong

instead of protecting the weakest; it is both wordy and

unclear; its authority is undermined when legal

decisions are not implemented, when texts are applied

E d i t o r i a l






ximity-re-establishing-reformscauses-dialogue-litigation-equity-simplifying-listening-rights-victims-remedy-conciliation-fighting-inequalities-malfunction



Major events

Towards a partnershipwith the central civilstatus office On 21 September 2004, the Mediator of the French Republic

went to the central civil status office with the public

prosecutor of Nantes and the assistant director for

naturalisation at the Ministry of Employment. This meeting

was an opportunity to reflect on a possible connection

between the central civil status office and the services of

the Mediator, in order to improve the processing of requests

and quickly meet citizens' expectations.

Clarifyingthe status ofdelegatesThe order of 25 March 2004 completed Art-icle 6-1 of the law of 1973, by underliningthe voluntary nature of the delegates' activ-ity, and the possibility to indemnify thembased on expenses. To extend this legisla-tive progress, the Mediator of the FrenchRepublic has drafted a document whichdefines the rights and obligations of the dele-gates in their relations with the generalpublic and with the Institution, and which isin a way a draft "Delegate's Charter".

The Mediator attentiveto prisoners anddisabled persons The Mediator of the French Republic intends to ensureequal access to rights, regardless of individual situation. Law 2005-102 of 11 February 2005 on the equality of rightsand opportunities, the participation and citizenship of disabled persons provides for the introduction of a contact person in departmental disabled persons' homes. Ten test prisons will receive a delegate Mediator of theFrench Republic on a permanent basis for 18 experi-mental months, in keeping with an agreement signed on16 March 2005 with the Justice Minister.

The Mediator at Ecole Nationalede la MagistratureOn 1st February 2005, Jean-Paul Delevoye was invited by the direc-tor of Ecole nationale de la magistrature to be the big witness forthe students graduating in 2005. Before 250 new judge's assis-tants and future magistrates, he expressed his opinion on thefunction of the Mediator of the French Republic, the status of theelected representative, the relations between the politician and thejudiciary, and the place of justice in our society.

Nomination of the new Mediator ofthe French Republic By decree of the Council of Ministers, the President of France,

Jacques Chirac, appointed Jean-Paul Delevoye as the Medi-

ator of the French Republic. On 13 April 2004, Jean-Paul

Delevoye succeeded Bernard Stasi as the 7th person to hold

this post and to be in charge of this Institution for a period of

six years.





n-publicservices-delegates-just-respect-solutions-informing-proximity-re-establishing-reforms-causes-dialogue-litigation-equity-simplifying-listening-righ



7Annual Report 2004

M a j o r e v e n t s

Meetings with the European MediatorAt a meeting in Strasbourg on 15 June 2004, the Mediator of the French Republic and the European Mediator, Mr Niko-foros Diamandouros, decided to reinforce their cooperation in all fields of common interest. The Mediator of the FrenchRepublic emphasised, in particular, the need for a joint reflection by European mediators and ombudsmen on the valuesof the fundamental rights Charter in connection with the future European constitution. In response to Jean-Paul Delevoye'sinvitation, Mr Nikoforos Diamandouros came to Paris on 1st and 2nd December 2004 to meet the staff of the Institutionand create awareness concerning what are at stake in terms of mediation at the European level.

8th congressof the Internationalinstitute ofOmbudsmenThe Mediator of the French Republic participated in Quebec,from 6 to 10 September 2004, in the 8th congress of the Inter-national institute of Ombudsmen. The topic of this meeting"Balancing individual rights and responsibilities in the exer-cise of citizenship – the role of ombudsmen or mediators", wasa particularly acute topical issue in view of an ever pressingneed for security worldwide within the context of "post-11 Sep-tember".

Draft agreement

with CNAM To fulfil his mission, the Mediator of the French Republicwishes to work closely with social security organisations.This desire is given concrete expression through the con-clusion of draft agreements based on the establishmentof direct relations between the contact persons appointedwithin local establishments and the delegate Mediatorsof the French Republic, but also on close collaboration atthe national level, especially in terms of reform propos-als. In line with the first agreement signed in 2000 with theMediator of the agricultural scheme, a draft agreementwill be signed in 2005 by the Mediator of the French Repub-lic and the State health insurance office. Moreover, a pro-ject is being finalised with the unemployment insuranceoffice and contacts have been established, with the sameobjective, with the State family allowance office.

Creationof anemergencyunitIn September 2004 an emergencyunit was created in the Admissibilitysection, in order to respond withoutdelay to citizens in delicate situa-tions, who seek the help of theMediator of the French Republic andfor whom a file with a "closing" datemay render their situations still moredifficult.

Implementationof the IntranetnetworkThe Intranet network was imple-

mented at the end of the first

semester of 2004. 99 delegates were

connected to it by the end of 2004.

All the delegates should be

equipped and connected by the

summer of 2005.

Reform attainedafter 13 years of perseverance A decree dated 30 December 2004 has abrogated thenearest-hospital rule. Social security contributors nolonger have to pay any possible tariff difference if theychoose to be treated in a hospital other than the oneclosest to their place of residence. The Mediator of theFrench Republic has been asking for this reform since1991.


With 56,971 cases received in 2004, the results for the entire institution – both thecentral and delegated services – show a 2.4% increase in its activity compared to theprevious year. This increase is, above all, a sign of the imperfections of the texts, the

difficulties inherent in their application, and the administrative malfunctions observed

by the Institution. It makes it possible to understand the needs for reform stressed upon

by the Mediator and intensifies his action in this domain. It also shows the trust that

our fellow-countrymen/women have in the Mediator of the French Republic and his

increasing role in the settlement of disputes arising between them and the

administration.

Key figuresfor the year

The Institution's overall results

56,971

Number of cases received

by the Institution as a whole

28,672complaints

cases were handled by the central services(the Institution's headquarters)

cases were handled by the delegates(at the local level)

informationand orientation

requests(handled by the delegate

Mediators of the French Republic)

5,778

22,894

28,299

9Annual Report 2004

Key figures for the year

Examination of individualcomplaints by the centralservices

The nature of the complaints handled and brought to a close in 2004shows some evolutions. In fact, it shows a growing number ofcomplaints pertaining to social issues (27.8% of the total) and legal ornationality-related questions (23.1%). On the other hand, the numberof complaints handled in connection with civil servants and pensionbenefits fell in 2004 (9.5% of thecases handled). The number ofcomplaints about taxation orgeneral matters remained relativelystable.

(a) General matters: agriculture, local authorities, commerce and the

craft industry, culture, education, industry, interior affairs, youths

and sports, post and telecommunications, market public services

and transport, town planning, environment and equipment.

(b) Social issues: health and pensions related issues, personalized

housing benefits, social security benefits and minimum benefits,

healthcare professions, national employment agency and

unemployment benefits, employment assistance, vocational

training.

(c) Justice: legal justice, legal and judicial professions, foreign

affairs, foreigners’ rights, nationality.

(d) Tax issues: taxation, television licence, indemnification of

repatriated French citizens

(e) Civil servants/pension benefits:

• social welfare of civil servants in the three governmental

functions: healthcare, occupational accidents and diseases,

disability, civilian and military pension benefits, unemployment

benefits,

• entitlements and rights of veterans and war victims.

Socialissues

Generalmatters

Civil servants/pension benefits

Taxation

Justice

(a)

(c)

(d)

(b)

22.8% 9.5%

27.8%

23.1%

16.8%

(e)

Complaints received

by the central services

a

In 2004, the number of individual complaints sent to the central services was

5,778 (i.e. + 15.1%). 4,674 complaints were brought to a close. The average

processing time was stable. The stock of complaints still under examination

amounted to 2,151 by the end of 2004, i.e. twice that of the previous year. This

rise must be, among others, due to the increase in complaints relating to

unforeseen events: natural disasters and complaints pertaining to the

imposition of traffic related fines.

Classification of the closed cases according to fields of intervention


Complainttransmission modes

2004 was characterised, as from the second semes-

ter, by an increasing recurrence of the question as to

whether it is appropriate to maintain what could be

called the "parliamentary filter", i.e. the citizens'

obligation, in the sense of Article 6 of the law dated

3 January 1973, to file their individual complaints to

the Mediator of the French Republic via a member of

parliament, deputy or senator. In view of these ques-

tions, it is interesting to note that 32% of the com-plaints were, in fact, sent directly to the centralservices, either by mail or e-mail. Nevertheless,

if the complaint is not filed via a member of parlia-

ment and is considered acceptable, the complainant

is asked to regularise his demand to comply with

this obligation.

Transmissionvia membersof parliamentand senators

“Direct”transmission(by mail or e-mail)

32%

68%

Examination and processing of complaints

by the headquarters' sections

b

Based on this reservation, 68% of the complaints

were sent to the Institution's headquarters by mem-

bers of parliament and senators.

How to send complaints

to the Mediator's headquarters

Admissibility of complaints

The change introduced by the Institution's head-

quarters in the second semester of 2004 concerning

the procedure for determining the admissibility and

urgency of complaints had certain consequences. It

enabled the Institution to determine the "malfunction"

to be handled urgently and which, if the law of 3

January were to be interpreted literally, would have

met with rejection for inadmissibility due to the form

of the request itself.

Moreover, out of all the complaints received by the

headquarters of the Mediator of the French Repub-

lic, 51.6% were deemed admissible, i.e. a 5.3%increase compared to 2003.

7.5% of them, i.e., a decrease compared to 2003, were

considered as "out of the Institution's scope of activity"

and rejected for a fundamental reason.

The absence of malfunction, the private character of the dispute

(Article 1 of the law of 1973), the involvement of active civil ser-

vants vis-à-vis their administration (Article 8 of the law), or the

contesting of a legal decision (Article 11 of the law) are basically

the main reasons why a complaint is deemed to be outside the

Institution's scope of activity.

The first reason for inadmissibility as a result of form remains the

non-respect of the "parliamentary filter" rule.

Finally, 40.9% of the complaints received were

deemed inadmissible for reasons of form, i.e. a sta-

ble result compared to the previous year.

Out of the Institution'sscope of activity

Admissible

Inadmissible

51.6%

7.5%40.9%

Admissibility of complaints

11Annual Report 2004


Case examination results

In 2004, out of the complaints examined by the cen-

tral services sections, the proportion of requests

"rejected without intervention" or which were "aban-

doned" was up to 20%. This percentage represents

a 1/5 decrease compared to 2003, which highlights

the Mediator of the French Republic's renewed call

to intervene on more cases despite the difficulties.

The other complaints are divided into three categories:

� a first category, representing 39.5% in 2004, gen-

erally result in the sending of "information and rec-

ommendations" to the complainants. In so doing, the

Mediator of the French Republic is playing the "ped-agogical" role often highlighted by commentators.

This is an important role in that it makes it easy for

the complainants to accept the rules of law;

� a second category results in an intervention before

being rejected. This was the case for 16% of the

complaints received in 2004;

� a third category represents the core of theexamination activity. It is all about "attemptedmediations", which represented 24.5% of the com-

plaints handled, i.e. a stable figure compared to

2003.

Rejection after

intervention*

Attemptedmediations

Rejection withoutintervention**or withdrawal***

Informationand recommendations

to the complainants

20%

24.5%

16%

39.5%

Case examination results

81.2 % of the mediation attempts were crownedwith success – a similar figure for 2003. The num-

ber of successful mediation attempts may seem mod-

est, given the total number of complaints received

by the Institution's headquarters, but it merits to be

considered because if these mediation attempts had

not been made, the complainants would only have

won their case through out-of-court settlement or

legal action.

* Rejection after intervention: the Institution must have contacted the

organisation concerned to check that there had been no malfunction or

unjust treatment of the complainant.

** Rejection without intervention: when the Institution rejects an

individual claim without contacting the administration in question.

*** Withdrawal: the citizen voluntarily abandons his claims, either because

he has won his case, or because he has become aware of the fact that

his chances of succeeding are objectively slim.


51,193 cases were handled in 2004 by the delegateMediators of the French Republic. This represents a 1%increase in the figure for 2003 and 19% increase comparedto 2002. This high figure is due to the accessibility andproximity of the delegates. 98% of the cases were directly referred to them by the

persons concerned, while 85% of the cases were referred to them during directcontact (meeting, telephone call). The average processing time is 56 days.

Informationand orientation

28,299 information and orientation requests

were made in 2004 (compared to 29,460 in

2003).

Since 2002, this figure only includes requests

corresponding to the delegates' significant activ-

ity, and which involve spending time and doing

pedagogical work with the persons concerned.

The role of the delegate Mediators of the French

Republic seems relatively well identified, since

67% of the information requests concerned a

public service (whereas 33% of the various

requests came from the private domain). (1)

In 45.5% of the cases, these public service

related requests were made prior to any con-

flict (requests for information about the condi-

tions for the payment of a benefit or a procedure,

for example). In 40.5% of the cases, the said

requests were made before taking any nece-

ssary step to seek an amicable settlement from

the Institution (2).

In all the cases, the delegates gave the parties

concerned information that helped in the pro-

cessing of their requests, regardless of whether

or not they concerned the working of a public

service. Basically, for them it was all about indi-

cating to the persons concerned the steps to

take (48%) or directing them to the relevant

officials or organisations (31%). (3).

The delegates’activity

Informationand orientation requests

Complaints in the real sense of it

57.5%

42.5%

Type of cases handled by the delegates

Privatematters

Requestsconcerning

a public service 67%

33%

1 Fields concerned

Demandswithoutprior

steps

Litigation(incompletedossiers)

Demandsfor orientation

and assistance

14%

40.5%

45.5%

2 Subject of public service related demands

Informationon the state of an

administrative case Informationon the steps to take

Orientationto a third party

11.5%48%

9.5%

31%

Explanations abouta decision

3 Information provided



Rejections with no action(outside the scope of activity)

Casesexamined

Cases referredto third parties

70%

8.5%

3.5%

Unjustifiablecomplaints

Abandonments/withrawals

Cases referred to the headquarters(within the headquarters' scope of activity)

10%

2%

6%

2 Intervention

Attemptedmediation

No mediationattempt

Transmission to the headquarters after

examination

1.6%

16.1%82.3%

3 Intervention of delegates after examination

Successfulmediations

Unsuccessfulmediations 74.7%25.3%

4 Delegates’ rate of success

Taxation

Town planning

GeneralmattersJustice

24.5%

3%

8%19%

Civil servant/pensions

Foreigners

Socialfield

32.5%

5%

8%

(a)

1 Distribution according to fields of intervention

(a) General matters include, among others, matters relating to agriculture, local

authorities, commerce and the craft industry, culture, education, industry, inte-

rior affairs, youths and sports, post and telecommunications, market public

services, and transport.

Handling of complaints

22,894 complaints were received in 2004 by the dele-

gate Mediators of the French Republic (compared to

21,159 in 2003).

20,972 of them were closed (compared to 19,360 in

2003).

It is important to note that requests considered as

complaints are those that call to question the working

of a public service in its relations with a constituent,

and which report a real dispute between the admini-

stration and the claimant.

The distribution of the complaints received accord-

ing to fields is noticeably the same as for the previous

years. (1)

Over 80% of the complaints brought to a close in 2004

fell within the framework of the delegates' activity,

and were handled locally: 10% of the complaints were

not justifiable (no administrative malfunction or error),

70% resulted in in-depth examination.

The remaining complaints were either cases of incom-

petence resulting in a rejection with no action (8.5%),

or were cases exclusively within the scope of the

headquarters' activity (especially complaints about

central or national administrations) and were referred

to the headquarters via a legislator (6%), or cases

within the scope of another delegate or mediator's

activity (2%).

3.5% of the complainants withdrew or abandoned

their complaints with the delegates at this stage,

while another 600 complaints were abandoned in the

investigation phase. (2)

At the end of the investigation phase, 16.1% of the

complaints did not result in mediation, since they did

not reveal any administrative malfunction or error.

1.6% of the complaints were finally directed to the

Institution's central services, given their complexity, or

because they raised a question of principle, while

82.3% of them resulted in a mediation attempt at the

organisations concerned. The cases examined by the

delegates were mainly complaints about the decen-

tralised services (39.5%) and organisations vested

with a public service mission (31%), especially social

services organisations. (3)

When they intervened to make a mediation attempt at

the local level, the delegates obtained satisfaction in

74.7% of the cases (4). In general, the average

intervention period (time between the date a

matter was referred to them and the date on

which the matter was closed) was 56 days.


New demands

93 new reform demands were made in 2004: this figure, which

represents a 10% increase compared to the previous year,

shows that the Mediator of the French Republic is regarded as

a promoter of debates and a vehicle of new ideas.

Evolution of the number

of new reform demands

Origin of reform demands

Since the "DCRA" law 2000-321 of 12 April 2000, citizens may

send their reform demands directly to the Mediator of the

French Republic. This direct demand tends to be established

and now represents close to 44% of new reform demands.

At the same time, reform demands made at the initiative of

the Mediator himself, the sections examining individual com-

plaints, or delegates represent 35% of the total new demands.

Demands from the Institution itself has thus increased by 50%.

It is important to note that even though members of parlia-

ment initiate laws, they sometimes submit reform demands to

the Mediator of the French Republic. These demands gener-

ally concern issues the solution of which falls within the regu-

latory power.

Processing of demands

87 reform demands sent to the Mediator of the French Repub-

lic were examined in 2004. This examination either led to a

rejection or to the formulation of a reform proposal.

66 reform demands were rejected in 2004. The grounds for rejec-

tion have to do with the subject-matter of the demand – which

fall within the framework of private law or collective bargaining

between the social partners, the absence of repeated public

service malfunction, absence of an inequitable situation, or, more

rarely, a recent intervention of the legislator or the authority

vested with regulatory power on the issue, or the impact of the

requested reform on government finance. Finally, sometimes a

demand may correspond to a reform proposal already made by the

Institution.

No matter the outcome of the examination, the claimant always

receives a detailed explanation for it.

New proposals

21 new reform proposals were made in 2004, i.e. slightly

above the figure for 2003. This figure shows the Mediator of

the French Republic's concern for rigour and efficiency; each

reform proposal is subjected to a validation work before

being formulated.

Classification of the new reform proposals

according to fields of intervention

The classification of the reform proposals according to fields

of intervention is almost the same as the one for individual

complaints examined by the institution, as can be seen on the

diagram below.

(a) "General matters" include proposals that do not concern any of the

other sectors.

Follow-up of reform proposals

71 proposals were still being examined by public authori-

ties by the end of the 2004 business year.

Following up reform proposals previously made by the Insti-

tution is a key task. Pursuant to Article 12 of the law dated

3 January 1973, "ministers and public authorities must facili-

tate the task of the Mediator of the French Republic". The

ministerial committees in charge of following up reform

proposals from the Mediator of the French Republic meet

regularly to discuss an agenda fixed by the Institution. These

meetings offer the representatives of the various ministers

concerned the opportunity to express their opinion on the

reform proposals. Such committee meetings took place on 23

March 2004 and on 26 January 2005.

17 reform proposals met with success.

Directrefferal

Others(includinglocalrepresentatives,the EuropeanMediator, etc…)

Membersof Parliament

44%

4%

35%

Reformsdemands

initiatedby the Mediator

(includingthe sections

and delegates)

17%

Generalmatters

Socialissues

Justice

19%34%

14%Taxation

19% 14%

Civil servants/pension benefits

(a)

Reforms

52 84 93

2002 20042003



The Institution, whose budget had considerably increased in the

previous years (high rise in the number of delegates, especially

within the framework of the urban policy, and the transfer to

the new premises in Rue Saint-Florentin), wished to take a

break and re-channel its investments and actions for more

transparency, effectiveness and reactivity.

The main lines of the initial budget

Operations

� Staff payments (employees working

under contract, incumbents, reimbursements 1,969,400€

to social security organisations):

� Delegates' allowances: 1,260,000€

� Social security charges: 411,000€

� Other staff related expenses

(transport, allowances)91,000€

� Training of staff and delegates: 67,000€

� General premises management expenses

(including rents):2,311,400€

� General operations: 627,000€

Investment 531,000€

� Equipping the headquarters: 236,000€

� Equipping the delegates: 295,000€

The new orientations for 2004

The budget was modified in the course of the year around long-term

priorities.

Reinforcing the effectiveness and reception of services for users

� Training the headquarters staff, with implementation of a

training plan and credits increased by 48,000€

� Improving the telephone reception service, with reinforcement

of time slots and externalisation: 60,000€

� Creating an emergency unit, through staff redeployment and

reassignment

� Replacing the file management software. This operation, which

was started at the beginning of 2004, was reinforced and sped

up (55,000€ readjustment on an initial budget of 150 000€).

� Replacing the entire computer equipment at the headquarters,

initially planned for two fiscal years (2004/2005); it seemed

more pertinent to renew all the systems in 2004 (initial budget:

100,000€, readjustment: 60,000€).

Improving the resources of all the delegates

Initially planned to be spread over several years, the operation

which consists in equipping each delegate with a computer work-

station was sped up and reinforced, with a credit adjustment from

100,000€ to 300,000€. To this operation is added the renegotia-

tion of the contract signed with a service-provider for the provi-

sion of an Internet connection for networking.

Making the Institution known

To change from a logic of a counter still reserved sometimes for the

initiated to a logic of a more open offer, the Institution decided to:

� redesign its website; budget readjustment: 58,000€

� publish a monthly newsletter; budget readjustment: 70,000€

Securing the premises

� Introducing a monitoring system for the premises;

budget readjustment: 25,000€

� Securing staircases: 20,000€

Applying the principle of caution

The Institution decided to work out a long-term investment plan and

a capacity to renew its equipment and repair its installations, through

appropriation for contingences and amortisation expense, with an

entry of 263,000€.

All these adjustments were possible thanks to the use of the accu-

mulated surplus for the previous years which amounted to 606,000€,

thus bringing the readjusted 2004 budget to 8,548,000€.

The 2004 Budget

The staff of the Mediator of the French Republic: according to staff category (for 2004)

Total A B C

Staff provided by the administrations 58 38 9 11

Staff from state and regional health 8 3 5

insurance offices (CPAM and CRAMIF)

Seconded staff 3 1 2

Staff working under contract 24 16 8

Staff assigned by the General Services 4 4

division of the Government

Total 97 58 9 30

a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d y-

o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t -

e s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u e -

tigation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-

nequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-

roximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ing-

s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o n -

u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e -

a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g -

i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n -

i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n -uses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-

spect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- conci l iation-

hting-inequalit ies-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation-

uity-simplifying-listening-rights-victims-remedy- concil iation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-

u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -

a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s -

a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -



dialoguel i s t e n i n g

l i t i g einjustices

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t -

u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -



At the serviceof the citizens




















C a u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h t s – v i c t i m s – r e m e d y – c o n c i l i a t i o n – f i g h t i n g – i n e q u a l i t i e s – m a l f u n c t i o n – p u b l i c s e r v i c

d e l e g a t e s – j u s t – r e s p e c t – s o l u t i o n s – i n f o r m i n g – p r o x i m i t y – r e - e s t a b l i s h i n g – r e f o r m s – C a u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h


c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s pThe Mediator of the French Republic is in charge of improving relations

between the citizens and government offices. Any individual, regardless of his

nationality and place of residence, or any corporate body, involved in litigation

with government offices or local authorities, public establishments and any

other bodies vested with a public service mission may send him a complaint,

via a member of Parliament.

The intervention of the Mediator of the French

Republic presupposes that there has been a

malfunction in the government office or public

service, or that a decision taken by these latter

– although legally justified – has caused an

iniquity to the complainant.

Each complaint follows a well determined

circuit: if declared acceptable, it is deeply

examined by the examination section

concerned, to enable the Mediator propose a

conciliation solution.

Admissibility of demands ........................................ p. 18

Examination on a case-by-case basis ........... p. 20

• General matters

• Civil servants – pension benefits

• Taxation

• Justice

• Social issues

A generally acceptedobservation ................................... p. 44

17Rapport annuel 2004

R educing injustice

Mediationauses- dialogue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- con






Once the urgent complaints have been iden-tified, all the other complaints are filtered bythe Admissibility section. This consists inchecking whether these complaints haverespected the forms provided for by Law 73-6 of 3 January 1973, and whether the litigationin question falls within the competence ofthe Mediator of the French Republic (admis-sibility in terms of content), as defined by thesame law. As regards form, there are three grounds forinadmissibility, each of which is not exclusive:

� The complainant had not sent his complaint

via a member of Parliament (a deputy or a sena-

tor), as required by Article 6 of the law of 1973. In

this case, he is asked by mail to regularise his

demand, but his case continues to receive fur-

ther attention if admissible on all the other points.

� The complainant had not complained to the

government authority or public service concerned

before seeking the help of the Mediator (Arti-

cle 7 of the law of 1973). This case is frequent.

Thus, an increasing number of people living out-

side France directly seek the help of the Medi-

ator of the French Republic to obtain either the

French nationality, or financial assistance for

military services rendered by their parents.

A letter is then sent to the complainants, speci-

fying to them the steps to take beforehand and

the referral modalities of the administration

concerned.

� The dossier is incomplete, thus making it

impossible to assess the legitimacy of the com-

plaint (Article 9 of the foregoing law). A letter is

then sent to the complainant, asking him to

complete it. Or he is advised to contact the

Mediator closest to the his place of residence,

who can help him to draft his complaint and try,

if possible, to solve the problem at the local

level if the dispute does not involve a central

administration.

Alert,

emergency !

The emergency unit is logically

the entry point taken by all the

complaints submitted to the

Mediator of the French Republic.

It tries to immediately identify

distress situations and to give

them immediate attention.

Basically, it is all about

complaints from people facing

serious social and financial

problems, expulsion, or a

power/water supply cut-off; or

people deprived of resources

following the suspension of an

allowance or the blocking of their

account by tax authorities

wishing to recover a debt. The

emergency unit is not meant to

replace the social services, or to

deeply examine cases like the

Mediator's examination sections.

But after assessing the

complainant's good faith, it tries –

either directly, or in collaboration

with the examination section, or

together with the delegate closest

to the complainant's place of

residence – to quickly end the

deadlock created by an

administrative malfunction, a

sincere incomprehension of rules,

or the strict application of a

measure which, in a specific case,

may have disproportionate

consequences.

The Admissibility section is in a way the central registryof the Mediator of the French Republic. It receivesseveral dozens of requests everyday, by post or byelectronic mail. These requests are subjected to a first,attentive and rigorous examination, then channelled, ifadmissible, to one of the five examination sections.Since September 2004, the section has an emergencyunit that enables it to address distress situations withoutdelay.

Three grounds for inadmissibility as a result of form

Analysis ofconditions ofform and content

18 Rapport annuel 2004

A d m i s s i b i l i t y o f d e m a n d sThere was a

15.1%

increase in the number

of complaints sent

to the Mediator of the French

Republic in 2004


Listenici l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec






Assessing the admissibility of content

HANDING OVER

A COMPLAINT

TO THE FIVE

EXAMINATION SECTIONSTo be admissible, the complaints must fallwithin the competence of the Mediator of the French Republic, as stipulated in Arti-cles 1, 6, 8 and 11 of the law dated 3 January1973.

� It must concern a dispute with a public

character. Nevertheless, the Mediator of the

French Republic is regularly contacted for pri-

vate disputes between private individuals and

companies, or for divorce related problems,

neighbourhood conflicts, disputes between pri-

vate tenants and lessors, debts, etc. The

Admissibility section tries to channel these

complaints to the relevant bodies (the media-

tor of the company in question, consumer asso-

c iat ions, departmental

associat ion for housing

related information, social

services, the French Central

bank's excessive-debt com-

mission…).

� It must not concern a dis-

pute between an active civil

servant and his administration.

Otherwise, the Admissibility

section gives the complainant

the details of the Mediator

within his administration, if

such a position exists (Educa-

tion ministry's mediator, local education author-

ity's mediator, Economic ministry's mediator…).

� The Mediator of the French Republic may not

intervene in any proceedings brought before a

court nor question the soundness of a court deci-

sion, but he is entitled to make recommendations

to the body or organisation concerned. He must

also refrain from intervening in conflicts con-

cerning a medical assessment and, since he has

no investigative powers, in complaints the exam-

ination of which would require checking the mate-

rial exactitude of the facts mentioned.

� It must not concern a conflict between a com-

plainant and a foreign government authority.


R e d u c i n g i n j u s t i c e

� At the end of this

examination, each complaint

deemed admissible is sent to the

relevant examination section.

There are five such sections:

General matters, Civil

servants/pension benefits,

Taxation, Justice and Social

sections.

Each section is under the

responsibility of an adviser, and

comprises several special

assistants who are specialised in

the legislation, regulations and

procedures relating to their field

of competence.

When their content is examined,

some complaints turn out to be

unfounded, since there has been

no administrative malfunction.

The citizens that sent such

complaints still nursed a feeling

of injustice. The increasing

complexity of the law, the

growing number of laws, the

little explanation and

information effort made by the

services result in a lot of

incomprehension. The role of the

Mediator is then to explain the

contested decision in the most

clearly and simplest manner

possible. This type of intervention

is also a form of mediation since

it enables the complainant to

understand an administrative

decision that appeared unjust

and unfounded to him. For other

complaints, the sections contact

the service(s) or organisation(s)

concerned in order to try to find a

solution to the conflict.

“All cases are given

the same attention,

regardless of the nature

of the litigation

or the amount of money

involved. Sometimes,

the first steps are enough

to remedy the situation.

On the other hand,

for other cases, mediation

requires patience

and perseverance.”









Generalist and, at the same time,specialist in severalfields

Examination on a case-by-case basis


� Mediation may result in a draft agreement between parties. This document establishes anagreement between the parties and determines the conditions for ending a disagreement (waiver,undertakings, application modality, transactional indemnity). Countersigned by the parties, itconstitutes an undertaking that has the value of the decision of a judge. In view of this rule of law,the adopted solution takes on a definite character, and it is with all guarantee that the partiesconcerned may decide not to refer the case to a judge. This settlement method is generally used ifthe conflict is old and particularly exacerbated, and when a lot is at stake. The role of the Mediatorof the French Republic consists in listening, "objectifying" the terms of the dispute with a view toestablishing dialogue between the parties, and helping them to formulate their desiderata andabandon a certain number of legally unfounded claims in order to finally define together a set ofrules that shall be fixed by the draft agreement. As guarantor of the transaction, the Mediator of theFrench Republic must ensure that the aggrieved party is fully indemnified. Thanks to the Mediator'sintervention, a draft agreement was thus signed between the French Railway Network and farmersin the Seine-et-Marne region. Since the creation of the high-speed train connection betweenNorthern and Eastern France, the said farmers had been finding it difficult to cultivate their lands,which had become almost inaccessible since their farming vehicles must get there via the trunkroad. Dissatisfied with the French railway network's compensation offer, the farmers sought theMediator's intervention. The French railway network then accepted to reconsider its position andto compromise on a more favourable basis, via a draft agreement.

The intervention field of the General matters section isvast: town planning, environment, national planning,transport, road, rail and waterways network, public workscontract, agriculture, education, local and departmentalpublic services, regulated professions, road traffic, etc. Itincludes any matter that does not fall within othersections' scope of activity. Although town planning, theenvironment and public works represent about 40% of itsactivity, the other cases examined are very diverse andoften concern disputes pertaining to special cases.

Monitoring activity in 2004

Encouraging the conclusion of a draft agreement

40%of the cases handled by the

General matters section are

related to town planning, the

environment and public works.

10%of them concern agricultural law.

• General matters

• Civil servants/pension benefits

• Taxation

• Justice

• Social









ProximityMr and Mrs R lost their son in a car accident in 1987. Their son had had inthe car a young soldier, who got injured. The insurer of the said vehicleargued that the insurance contract was vitiated by irregularity, given thatthe insurance had been taken out by Mr R, whereas the car belonged to hisson. After ten years of legal battles, and after exhaustion of legal remedies,the insurance contract was definitely declared null and void. The Defenceministry, which had borne the hospital and medical care expenses for andhad paid the injured soldier during his period of unavailability, then tried torecover the said expenses from Mr R, father of the victim and owner ofthe vehicle. Faced with the reimbursement of over 46,000 €, Mr and Mrs Rsought the help of the Mediator of the French Republic. Intervening in allfairness, the Mediator was able to have this special case re-examinedfrom a humane point of view. Considering the economic situation of Mrand Mrs R, the Defence Ministry exceptionally accepted to abandon therecovery of the debt.

In May 2003, Mr L was fined whileparking his vehicle, which had aGIG/GIC sticker on it, in a spacereserved for highly disabled persons.Reason: the GIG/GIC sticker on hiswindscreen was not valid. On thesame day, Mr L applied for annulmentof the fine, considering that he actu-ally owned a GIG/GIC sticker as wellas a European parking card for dis-abled persons, even though it was not

visible on his vehicle. His request was rejected, and he later received aformal demand to pay a fixed amount of fine, plus extra charges, which hepaid immediately to avoid the seizure of his account. He then sought thehelp of the Mediator of the French Republic in order get the said amountreimbursed. And the amount was eventually reimbursed; the public prose-cutor's office had accepted to change its decision. Mr L's misadventure isnot an isolated case. Other registered highly disabled ex-servicemen havehad the unpleasant surprised of being fined despite the GIG/GIC sticker ontheir vehicle. These errors are due to conflicting rules on regulated parkingspaces: the GIG/GIC sticker, which is still valid, and the European parkingcard issued for the past two years. Although the GIG/GIC sticker is bound todisappear, the law cancelling this system has not yet been passed. Thecity police, as well as the public prosecutor's office, seem to be badlyinformed about the attitude to adopt when a person, who had been wronglyfined, files a complaint.

Fined despite

the GIG sticker

Easing the feeling of arbitrariness Current affairs may lead to a series of disputes.

The heat wave in the summer of 2003 resulted

in cracks and the subsidence of foundations in

buildings and apartment blocks. Some 6,900

towns asked to be classified as natural disaster

areas. Their applications were examined in June

and July 2004 by a ministerial committee. The

decisions, on which depended the indemnifica-

tion of the victims of this damage, appeared unjus-

tified when towns located close to one another

were assigned different statuses. They were partly

based on the opinion of the Met Office, but

remarks concerning the seriousness and excep-

tional character of the phenomenon may vary for

areas located only a few kilometres apart. The

Mediator asked for a re-examination of the cases

referred to him, and that the technical criteria be

generally enlarged. A new decree was published

on 1st February 2005, recognising the classifica-

tion of 873 new towns. Moreover, an inspection

mission was created in the ministries concerned.

This example really illustrates a basic tendency:

more than the inconsistencies – over the past

thirty years, the administration has rather

improved its practices – it is the complexity of

the regulation that poses a problem and results in

incomprehension. The Mediator's role is, there-

fore, to explain the law, something that the

administrative services rarely make out time to

do: explaining, for instance, why a mayor rightly

refuses to issue a building permit, or why the

coastal law applies in an area where the sea is

not visible. This way, the Mediator can ease the

feeling of arbitrariness among citizens and help

restore a certain sense of civic responsibility.

An important legal

watchdog function

The specificity of the section obliges it tocombine the qualities of a generalist with theexpertise of a specialist, and requires fromit considerable legal monitoring work andhigh reactivity. New laws and regulationsalmost always result in complaints, eitherbecause the application text is taking a longtime to be released, like the decree on theorganisation of new selection tests for for-eign doctors (Decree 2004-508 of 8 June2004), or because the stipulations are notclear enough, as was the case for the vali-dation of (professional) experience to obtaina professional diploma, introduced throughthe social modernisation law of 17 January2002.

Significa

ntmediations

Adding debt to sorrow









�Agriculture-related litigation represents about 10%of the cases handled per section. Farmers aresubjected to very strict rules that almost deprive themof their independence in their choice of operationmode or the nature of their productions. A big part ofthe complaints referred to the Mediator of the FrenchRepublic concern the Community subsidies grantedwithin the framework of the Common AgriculturalPolicy (CAP), meant to coordinate and controlproductions (subsidy for animals, for crops, set-asideof agricultural land, milk quota, tobacco quota,uprooting of vines, etc.). The farmers live mainly on these subsidies which are granted to them based on the annualdeclaration made at the departmental directorates for agriculture and forestry, decentralised services of the Agricultureministry. Although the forms, which the farmers must fill, are accompanied with an explanatory note, they are often verycomplicated, just like the bulk of European texts governing this system of subsidies and the control of their grants at thenational level by the services of the Agriculture minister and other administrative authorities. However, providing anyincorrect information may deprive the farmers of the subsidies they may be entitled to, and even expose them to penaltiesfor all the subsidies they are applying for. Since the right to make mistakes does not exist in this field, the Mediator does nothave much room for manoeuvre when the matter is referred to him. Nevertheless, on two occasions, unjustly rejected subsidies were restored by attentively reading the European regulations.A farmer, whose two bovines that were eligible for the special male bovine subsidy had been killed and cut up at night, afterreporting the matter to the police, informed the departmental directorates for agriculture and forestry about the accidentalloss of her animals. She asked to be paid the entire subsidy she thought she was entitled to, citing a case "of force majeureor exceptional circumstances" tantamount to exemption from financial sanctions. But the services of the Ministry ofAgriculture considered that the two animals had died due to "natural circumstances", and the subsidy was reduced inproportion to the number of missing animals. The Mediator was able to assert the claim that the death of the two animals,which were killed and cut up on site, as the police had confirmed through their investigation, seemed to be more of anunforeseen and exceptional event that a natural death! The farmer was thus able to recover the entire subsidy. Another farmer was refused an animal subsidy called "extensification payment", because of an error in connection withthe national database recording of the number of male bovines on his farm. Actually, the information provided by thefarmer himself had been correct and had been correctly recorded at the departmental level. Nevertheless, the ministryof agriculture rejected his complaint stating that, pursuant to the Community regulations, the farmer remainedresponsible for the data sent to the relevant authority! By deeply analysing this regulation, the Mediator was able toassert the fact that no reduction of subsidy or exclusion from it may be applied "when the farmer has submitted correctinformation on facts or when he/she can prove that an error is not attributable to him/her".

European subsidies:

an obstacle course


Refe

“The general matters section has a

vast field of intervention and must be

highly proficient in legal matters to be

able to handle the complaints referred

to it. This is particularly the case for

disputes arising in connection with

agricultural law, which is probably the

most obvious example of a regulation

that is so complex that it is difficult to

counter it with the still popular saying

that ‘ignorance of the law is no

excuse’.”


• General matters


• Taxation

• Justice

• Social


Bitter fines








In search of lost salaries

erralVictims

Adoption:better control ofauthorisation refusal

The Mediator's action accom-

panied a major evolution of

jurisprudence on such a hot

social issue as adoption. A

couple wishing to adopt a child

had filed an application, in

accordance with the stipula-

tions of Article L.225-2 of the

social work and family code, with the services of

the departmental directorate for healthcare and

social work at the relevant departmental coun-

cil. This latter rejected the couple's authorisation

application, arguing, among others, that the cou-

ple's planned adoption was based "on an idea-

lised view of adoption". Their application was

rejected by the administrative court, but this

decision was reversed by the administrative

court of appeal, which deemed the authorisa-

tion refusal unjustified. The departmental coun-

cil concerned referred the case to the Council

of State, wishing to obtain a specification of

the judges' control in terms of issuing adoption

authorisation. The couple, on its own part,

sought the help of the Mediator of the French

Republic to obtain an amicable solution.

Thanks to the Mediator's action, the requested

authorisation was first issued on a temporary

basis, even before the decision of the Council

of State. The Mediator drew the attention of

the Council of State to the fact that this decision

to issue a temporary authorisation served as a

precedent, and that the ongoing legal proceed-

ings did not prevent the couple concerned from

starting the adoption procedures immediately.

Thus, in August 2004, the couple started with

international organisations the necessary for-

malities for turning their project into a reality.

Through its decision of 20 October 2004, the

Council of State confirmed the analysis of the

administrative court of appeal. This decision

basically gives judges "normal" and no longer

"restrained" control of the conditions for issu-

ing adoption authorisation. In future, this turn-

around in jurisprudence should limit rejection

decisions to really problematic cases and

encourage more reflection on the matter, based

mainly on the interest of the child.

Agricultural goods transported within the European Union must be accompaniedby a special document used to check their destination and transformation. Sincecompany C had failed to produce the required document attesting to this desti-nation, the relevant intervention bureau required from it the entire amountdeposited as guarantee. The Mediator of the French Republic intervened both atthe Ministry of Agriculture and at the European Commission so that the absenceof the document in question be considered as a "subordinate" requirement,sanctioned only through the confiscation of 15% of the amount paid as depositby the defaulting operator, if the agricultural products received the statutoryattestation of destination. Gain for the company: 121,866 €.

Mr C was fined for a series of highway code related offences committed afterthe sale of his vehicle to a private individual, who had failed to change thevehicle ownership certificate. Even though he had lodged a complaint with thepublic prosecutor's office within the stipulated deadline, a third partynotification was sent by the Treasury to his banks for three fixed fines, plusextra charges, for offences he did not commit. This third party notificationgenerated some bank charges that the Treasury refused to reimburse him,stating that the cancellation of the three fines in question through a decision ofthe public prosecutor had taken place after the third party notification had beensent to his banks. When the Mediator intervened, arguing that this situation wasnot Mr C's fault, given that he had filed his complaint within the stipulateddeadline, but the fault of the prosecutor's office, which had failed to process MrC's complaint early enough, the Treasury reversed its decision, and Mr C wasreimbursed the charges relating to a case that actually did not concern him!

Mrs C, a child entrusted to the regional social services department (DDASS), hadworked as a domestic employee, successively in two families, from 1970 to the begin-ning of 1974. She was underage at that time. Her salaries were, therefore, paid to theregional social services department, which was in charge of depositing them in a sav-ings account so that she would recover them when she was of age. Mrs C claims thatthe said sums had never been paid to her. After years of unsuccessful attempts torecover this money, Mrs C referred the matter to the Mediator. Several documentsattested to her activities as a domestic employee while underage (employment con-tracts, payslips, employers' attestations, CRAM career record, report of the last children's homes mentioning the employment contracts). On the other hand, the admini-strative services cannot determine what has become of the salary amounts. Arguingon these special circumstances and the difficulties that Mrs C must have faced in thecourse of her life, the Mediator asked the Minister for solidarity, health and family to set-tle this matter in all fairness in accordance with Article 9 of the law dated 3 January 1973, to enable Mrs C recover the salaries received by the State on herbehalf while she was underage, plus the legal interests applicable when she becameof age, as well as damages for the moral prejudice suffered.

Significa

ntmediations

Intra-Community trade

and financial sanctions










Equal rights for men and women?


The civil servants/pension benefits section examinescomplaints filed by civil servants from three public servicelevels (central, regional, hospital) in disagreement with

their administration. These disagreements, which ought not to affect the exerciseof the administrative authority's hierarchical and disciplinary power (Article 8 ofthe law dated 3 January 1973), concern mainly the conditions for employment, theconsequences of loss of employment, especially with regard to unemploymentbenefit rights, respect of the civil servants' welfare rights, and old-age ordisability pensions. The section also handles disputes pertaining to theapplication of the military and war-victims pensions code.

R

Guarantor of goamong civil serv

� The law of 21 August 2003 on pensions reform resulted throughout 2004 in a lot ofcomplaints from active civil servants. Many of them complained about thesluggishness of their administration or malfunctions that deprived them of reliableand comprehensive information. Prime among their concerns was the inequality between men and women in terms ofold-age and survivors' benefits pensions. Male civil servants, relying on the conclusionof the "Griesmar and Llorca " decisions taken by the European Court of Justice on 29 November 2001, and by the Council of State on 26 July 2003, are asking to begranted the same rights as female civil servants with three children, to enjoyimmediate pensions benefits after fifteen years of service and bonuses fordependent children. The Mediator of the French Republic had to provide informationabout the exact terms of the decisions, specify their scope which is limited to individual applicants and explain the newprovisions of the civilian and military pensions code.In fact, the law of 21 August 2003 adopted part of the principles emanating from recent jurisprudence. The new ArticleL.12 (which became effective on 28 May 2003) grants all civil servants a bonus of one year per child born prior to 1st

January 2004, provided their activity is interrupted for at least two months. On the other hand, the payment of pensionbenefits after fifteen years of service remains possible, after 60 years, only for female civil servants. This is also possiblefor male civil servants since the publication of financial law amendment No. 20046-1485 of 30 December 2004, providedthere is interruption of service for each child.The section also processed several applications from widows entitled to survivors' benefits pensions which are onlypayable as from their 60th birthday. In fact, the afore-mentioned new Article L.56 of the law of 2003 has cancelled, forthis type of situation, the previous 60 years requirement for this pension. But this measure is not retroactive.

• General matters


• Taxation

• Justice

• Social










RecognitionRights

“The pensions reform

instituted by the law

of 21 August 2003

gave rise to a lot

of questions and

complaints.

The Mediator of the

French Republic

had to assume

an information role

that had been

insufficiently

handled by the

administrations.

On the other hand, many disputes highlight

the weaknesses of the public sector

employers' unemployment self-insurance

scheme.”

od practices ants

Disputes concerning the valida-tion of services and immediatepensioning

� Several disputes concern the difficulties of

validating auxiliary services in order to open the

reference period for granting civilian pensions.

These difficulties are recurrent for civil servants

employed on a part-time basis. Thus, an auxil-

iary teacher who had worked on a part-time basis,

between 1976 and 1982, was refused the vali-

dation of this period, due to her employer. Reason:

she had not worked continuously on a full-time

basis for more than one year, and had not applied

for authorisation to work on a part-time basis. A

meter checker working 31 hours with a local gov-

ernment also had his request for the validation of

three years rejected because his working hours

were below the affiliation threshold fixed by

CNRACL (the state insurance fund for local gov-

ernment workers) since 1st November 1982. After

the pensions reform, the new Article R.7 of the

civilian and military pensions code must hence-

forth allow the positive settlement of such

situations.

� Immediate pensioning for disability or unfit-

ness for public function or office is also a source

of a good number of disputes. Since it had noticed

the bad habits of administrations that preferred to

exploit this system instead of proposing a type

of vocational rehabilitation that is compatible

with the official's health status, the Mediator of

the French Republic reminded them on several

occasions of their obligations resulting both from

the law and from jurisprudence.

� Many cases also concerned the recognition

of the right to military disability benefits and,

more precisely, the imputability of the disabil-

ity to service. In fact, it is the responsibility of

the soldier to prove that his injuries are war

injuries or injuries sustained in the course of his

service, or due to an illness contracted in the

same conditions. The disability must have been

caused in the course of service and must result

from a specific event that caused the illness in

question. This last point is difficult to prove, espe-

cially in cases of post-traumatic illness. In most

cases, the Mediator's interventions consist in

explaining rights and giving advice on the spe-

cific steps to take, in collaboration with the

Ministries of Defence and Economy.

9.5%

of the cases closed in 2004

came from the civil servants/

pension benefits section.









Informat

Unemployment among civilservants: failures of the self-insurance system

Contrary to the generally accepted idea, not all civil

servants are guaranteed against job loss. Employees

working under contract are most exposed to job

loss. Access to unemployment benefits is often a

source of litigation. The relevant law is so complex

that sometimes public sector employers themselves

find it difficult to understand, and apply it imper-

fectly.

� In terms of benefits, civil servants loosing their

jobs are subject to the same regulation as private

sector employees, as concluded within the UNEDIC

unemployment insurance scheme by the social part-

ners. Public sector employers may sign an agree-

ment with UNEDIC in order to entrust it, in return for

the payment of contributions similar to those paid by

companies, with the management of the un-

employment benefits paid to civil servants. Alter-

natively they can resort to a self-insurance scheme,

i.e. earmarking part of their budget to the service for

unemployment benefits due to their former workers.

All employers may choose the option of being affi-

liated to the employment insurance scheme, except

the State and, for their permanent staff members,

public tertiary institutions and public scientific and

technical institutions.

� The Mediator of the French Republic often

notices that, within the framework of the self-insur-

ance scheme, indemnification is slower and made

in less convenient conditions than for private sector

employees within the scope of ASSEDIC (the organ-

isation managing unemployment contributions and

payments). This delay may be due to the wait for

new credits. Unfortunately, it may also be due to

measures intended to gain time, if not a real inten-

tion not to apply the regulation.

� When a public organisation is challenged for

delaying the payment of indemnity or for refusing to

pay, whereas it is clear from the dossier that it is

responsible for paying the said indemnity, or even

after an analysis of the applicant’s rights using a

method other than the one applied by this latter or

the ASSEDIC to which the case had been wrongly

referred before, the only arm at the disposal of the

Mediator of the French Republic is to convince since

it cannot apply force. Some public sector employers

are tempted to prolong the initial misunderstanding

or to ignore the disagreement that generally arises

at the expense of the injured party. Too often they

use another on-going legal dispute as an excuse to

await the decision of the judge, knowing fully well

that, in the end, they may have to pay higher sums

if the party concerned claims the legal interests.

Such a delaying tactic is not good administration

and undermines the claimants' interest. Finally, it

is not rare that the public sector employer with a

self-insurance scheme, allowing itself the compe-

tence reserved for the State's decentralised services,

thinks that it is in a position to judge whether the

indemnified former employee has actually been

looking for a job, and suspends the payment of the

benefits for this reason.


• General matters


• Taxation

• Justice

• Social










Unemployment benefits:

when a public sector employer

refuses to play the game

ion

Significa

ntmediations

Public services

Deliberate multiplication of precarious work contracts

Provisions have been made for rules that coordi-

nate the indemnification of people that have

worked alternately or successively for public and

private sector employers. The coordination system

between UNEDIC and public sector employers that

have adopted the self-insurance scheme is stipu-

lated in the regulation part of the labour code

(R.351-20). It aims at assigning to one of these

employers the task of indemnifying the employee.

The criterion used to assign this responsibility is

the longest duration of employment or affiliation.

This duration is first expressed in number of days,

then in number of hours. A good number of dis-

putes arise when comparisons between the two

calculations differ.

Decree 2003-911 of 22 September 2003 instituted

a system of prorating the actual work time in case

of disagreement regarding these necessary com-

parisons between the overall time spent with the

employer and the actual remunerated work time

within this "overall" employment period. The multi-

plication of short-term work contracts for usually

long-term jobs, especially in the teaching and con-

tinuous education sector is a pernicious conse-

quence of the self-insurance scheme. When the

employee has worked (or is likely to work) alter-

nately for private sector and public sector employ-

ers, these latter are tempted to adjust the contract

to the detriment of the employee's future indem-

nification.

Based on these facts, the Mediator of the French

Republic is reflecting on adjustments that need to

be made to the self-insurance scheme.

Mrs D, a non-permanent employee of CCAS for several years, resignedfrom her job in June 2001. She then worked as a private-sector employeefrom 16 July to 30 November 2001: she found herself without a job at theend of this period.

Having worked for more than 91 days, she was entitled to employmentbenefits from her main employer for the period of affiliation taken intoaccount. Acting on ASSEDIC's recommendation, she applied for thesebenefits at CCAS. This organisation rejected her application, stating thatsince she had resigned on her own initiative, she had not involuntarilylost her job.

But in accordance with Article 4 E of the appendix to the agreement dated1st January 2001 on the assistance to people wishing to return to work, andindemnification, Mrs D was entitled to the benefits. The Mediator of theFrench Republic intervened at the CCAS concerned, notifying it that it wasits responsibility to indemnify Mrs D, given that it was the employer withwhom the duration of employment had been longest within the periodtaken into account while determining the condition for affiliation.

The organisation then claimed that Mrs D had not been looking for a joband was, therefore, not qualified for the benefits. The Mediator remindedit that pursuant to the labour code, the appreciation of active job searchwas the responsibility of the decentralised services of the EmploymentMinistry and that, in any case, the doubt about Mrs D's active job searchdid not authorise it to withhold her indemnities. In the end, CCAS paid MrsD her due indemnities.








s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n sEquity

Mr Z, born in the Elne maternity hospital on 30 December 1940, was internedwith her mother in the Rivesaltes camp on 27 May 1941 before being transferredto the Swiss children's home in Banyuls-sur-Mer on 9 July 1941. Her mother,

after escaping from the camp on 9 January 1942,joined her sister together with her son in Aix-les-Bains. She succeeded in entrusting her child to achildminder before being arrested in Lyon on 13June 1944. She later died in deportation atAuschwitz.By the decision of the Defence Ministry, Mr Zwas refused the status of political interneebecause he did not furnish proof of at least threemonths internment (pursuant to Article L. 289 ofthe military disability and war-victims pensionscode).Moreover, his application for civilian war-victimspension filed for asthenic syndrome was rejectedfor lack of proof of its imputability to war. When the case was referred to the Mediator, thislatter noticed that the administration had basedits assertion that there had been no proof of at

least three months internment only on documents from the Rivesaltes camparchives, which is contradictory with his mother's one and half years period ofinternment before her escape. He informed Mr Z that it was possible to provethe reality and duration of the internment through testimonies from people whowere aware of the facts "because of their situation or functions".As for his pension application, considering the medical documents from ChildWelfare pertaining to the after-effect of Mr Z's internment, the Mediator thoughthe could ask for an examination of his rights in accordance with the decree of10 January 2002 which determines the rules and scales for classifying war-related emotional disorders. If he wins the case, Mr Z will then benefit from theduration exception condition required to grant the status of political internee.Moreover, based on this, he may be entitled to the special proof arrangementsinstituted by law 83-1109 of 21 December 1983.

The Mediator shall continue to assist Mr Z if he encounters further problemswhile claiming his rights.

Recognising the rights

of war time children Signifi

ca

ntmediations


• General matters


• Taxation

• Justice

• Social










Career reconstitution without

any impact on the pension benefit amount

Complexity

Significa

ntmediations

Mr T, an information and orientation centre director on retire-ment since 1991, asked the Education Ministry to reconsti-tute his career taking into account his military service inAlgeria during his regrading as information and orientationcentre director. In the absence of a reply, he referred thematter to the administrative court of Toulouse which decidedin his favour on 12 October 2001. On 12 January 2004, Mr Tsought the help of the Mediator of the French Republic due tohis administration's excessive delay in implementing thisjudgement.

Pursuant to the decision of the Council of State dated 21 Octo-ber 1955, "Sieur Koenig", Mr T's career must be reconstitutedtaking into account his military service, as from 1st September1962, date on which he became a vocational guidance spe-cialist and later an information and orientation centre director.

The Mediator of the French Republic referred the matter tothe Mediator of the Education Ministry in charge of handlingdisagreements between officials and the ministry. Mr Tobtained satisfaction, the decision to have him regraded andreclassified was taken on 7 May 2004.

Nevertheless, the Mediator of the French Republic made itclear to Mr T that this statutory regrading would not haveany impact on his pension benefits. In fact, regarding thereview of granted benefits, a constant jurisprudence of theCouncil of State stipulates that pensioners cannot claim anyrights acquired from events that took place after the date oftheir admission to assert their retirement rights, and whichretroactively modify their administrative situation on the saiddate, for reasons other than the implementation of a law orregulations with a retroactive effect.

Mrs C, a prefecture employee, was victim of armed assault ather place of work on 13 July 1995. She was granted a one-month leave for service related accident, followed by a long-term, non-service-related leave up to 16 November 1999, afterwhich she was removed from the list of executives for dis-ability not attributable to service by the decision of 7 August1999, at the instigation of the reform Commission.

Convinced that the deterioration of her health, which wasthe reason for her retirement, resulted directly from theassault she had suffered at her place of work, Mrs C asked forthe recognition of the imputability of her disability to the serv-ice and for a disability life annuity.

Since she had obtained no results from her administration,she asked the Mediator to intervene in November 2000.

Her request was rejected by her administration, which basedits decision on the opinion of the authorised psychiatrist whoconcluded on 17 February 1999 that Mr C was unfit to resumean activity, but that this unfitness was no longer attributableto the industrial accident of July 1995. In another expert reportof 9 September 1999, he specified that out of 60% of the dis-ability rate, 30% was attributable to the industrial accidentand 30% to illness.

The Mediator of the French Republic underlined at the pen-sions section of the Finance Ministry the contradictory chara-cter of these expert opinions. He advised Mrs C to seek asecond opinion in a hospital. This examination concludedthat Mrs C suffered from post-traumatic stress attributableto the industrial accident. Mrs C won the case and her rightto disability life annuity was recognised.

The consequences of an attack recognised at last










At the heartof socialchanges

Amicablesettlement

Preventinglitigation

Almost all of the complaints are spe-

cial cases. They result from very

diverse situations, and the underlying

economic, financial and social implications are numerous.

The dispute may concern a few hundreds of euros. Some-

times it can put the life of a company and dozens of jobs

at stake.

Although a few of these complaints are due to the fla-

grant administrative malfunctions, the application of laws

often lead to problems of equity attributable to the com-

plexity of regulations and the inherent incomprehension.

The taxation section has to play a pedagogical role, to

prevent litigation. It can resolve a case simply by explain-

ing to the complainant the position of the administration

and the reason why a decision is in accordance with the

law. The complainant may not always share this view, but

he understands it and no longer considers himself a victim

of injustice. Sign of this appeasement: in many cases,

these complainants withdraw the legal action taken at

the same time as the matter was referred to Mediator of

the French Republic.

Income tax and corporate tax on top of the list of complaints

Despite the extreme diversity of the cases, there are some

major field of interventions. Thus, two thirds of the com-

plaints concern private income tax and corporate tax. About

20% of them are due to tax investigations. The remaining

third can be relatively divided equally between registration

charges, council taxes and value added tax (VAT).

A big part of the activity of the taxation section concerns

applications for review, and payment deadline related

requests, basically from private individuals and small-sized

companies. But it seems that each tax has its specific

problems. In terms of income tax, tax benefits pertaining

to marital status (deduction of alimonies, tax reductions,

increases in dependents' allowance, etc.) or to profes-

sional activity (allowable expenses, unemployment bene-

fits, etc.) result in many complaints. In terms of taxes on

personal wealth, disputes relate to capital gains on the

sale of securities, and building transfers. Disputes result-

ing from registration charges equally occupy an important

position. Company restructuring operations and the sale of

companies with particularly complex taxation systems are

regularly a source of the conflicts referred to the Mediator

of the French Republic. Finally, in terms of council tax,

complaints basically concern the assessment of rental val-

ues and exemption requests.

Of course, many cases concern tax investigations. They

rarely call to question only the procedures, more often the

motives or the law cited during a verification of accounts

or an examination of the tax situation in general. Such

cases are not easily subjected to amicable settlement,

especially if the complaint is a question of law, which

requires a legal solution that the Mediator of the French

Republic cannot provide.

The taxation section handles complaints filed by natural persons orcorporate bodies (companies, associations) due to disagreementbetween them and administrations. Some 90% of the cases handledconcern State or local authority taxation. Others relate to television

licence or financial compensation, such as theindemnification of repatriated French citizens. 40%

of the cases handled by the

taxation section are claims

from companies.

• General matters


• Taxation

• Justice

• Social








Women: often the victims

� For more than ten years now, there are 110,000 to 115,000 cases of divorce in France each year. This increasing break up offamily ties has impacts on taxation, among others. Thus, there is a marked increase in the number of cases referred to theMediator of the French Republic regarding the joint responsibility of couples. In fact, pursuant to Article 1685 of the general taxcode, spouses are jointly responsible for the payment of income tax and council tax when they are living together under the sameroof. Therefore, the treasury in charge of collecting income tax for the incomes acquired by the spouses while they are livingtogether may ask any of the spouses to pay the entire income tax amount. This may lead to serious financial problems if one ofthe spouses does not have any sense of civic responsibility or is dishonest. Women are the first victims of such behaviours. Atypical scenario is that of a woman with a modest salary whose husband or ex-husband is exercising a better-paid, independentprofession. There is a tax investigation, which results in enormous additional tax for the income that the couple had acquiredprior to their divorce or separation, if the husband fails to pay. The woman, who is jointly responsible for this tax, finds herself ina situation where she must pay this tax-related debt alone, whereas she has custody of the children and is having problemsobtaining the alimony she is entitled to. In fact, it is against her that the treasurer, personally and financially responsible fortaxation notifications issued from his office, takes his legal actions. It is easier and more effective to take action on a salary, via third holder notification – i.e. by directly confiscating in a bank theamounts the debtor is owning, than taking an action against a person whose income is hard to determine, or who has organisedhis insolvency.

Referring a matter to a judge appears insufficient sometimes

� Furthermore, to prevent this principle of joint responsibility of spouses, instituted to guarantee the interests of the community,from ending up, at the individual level, in unfair and sometimes dramatic situations, the law-maker has made provision for eachspouse to be released from it. He or she may apply for this at any moment, once implicated. This application for release from responsibility must be sent to theregional head of the Treasury on which the place of taxation depends. The decision thereon is taken after consultations with thedirector of tax services. The claimant's solvency level and honesty are taken into account while examining the request. Otherelements are also taken into account: it must be established that the taxation is mainly due to the spouse's income that theclaimant did not really benefit from. The administration, thus, takes into account the existence of an alimony and the regularitywith which it is paid.Since it is all about an application for review, Inland Revenue has the discretionary power to accept or reject the request. A judgehas minimum control over this, given that pursuant to the jurisprudence (especially the decision of the Council of State dated 12February 1992, appeal No. 56856), total or partial rejection of an application for release from joint responsibility can only becancelled in very limited and precise situations, in case of obvious misjudgement on the part of the administration.Therefore, this limited control of the appropriateness of the administrative decision does not seem, in these conditions, to be thebest way to settle the litigation, more especially since the instance does not suspend the Treasury's tax recovery proceedings,and the procedure is generally long and costly.

Need for a moderate administrative action

� Endowed with such power, in such a socially sensitive area, Inland Revenue should apply the law with moderation andsensibly. Treasurers should take their tax collection initiatives by using the means at their disposal in the most equitable mannerpossible. Cases referred to the Mediator of the French Republic show that this is not always the case. In one of the cases, forinstance, Mrs N was held jointly responsible for more than 200,000 € following a tax investigation of the earned income of herex-husband, an insurance salesman convicted within the scope of his professional activity. The taxation had been contestedbefore the administrative court. But to guarantee its payment, the treasurer in charge of collecting the said sum had mortgageda flat that Mrs N had jointly inherited with her sister from her parents. After the flat had been sold, Mrs N's share, about 80,000 €,was confiscated by the treasurer, pending the decision of the administrative court concerning the legitimacy of the taxation andthen, after this had been confirmed, the decision of the regional head of the Treasury on the application to be released from jointresponsibility filed by Mrs N. Nevertheless, five years after the flat had been sold, Mrs N, with modest income, was still obligedto live at her sister place, whereas it had been established that within the period in question, she had been unemployed, knewnothing about her husband's fraudulent activities, and had not profited from the income subjected to tax investigation.This matter was settled thanks to the intervention of the Mediator of the French Republic. But it is only occasional and representsa last resort. On the other hand, it would be necessary to carry out an awareness creation campaign among the treasurers.

Joint responsibility of spouses





a u s e s - d i a l o g u e - l i t i g at i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co

ghting- inequal i t ies-malfunc t ion-publ icser v ices- delegates- just-respec t-solut ions

rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u e - l i t i g at i o n - e q u i t y- s i m p l i f y i n g -ses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-



s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o


Measure

Aware

At 18, without any special professional knowledge, Mr L becomes a companymanager at the request of his father, a building contractor subjected to compul-sory liquidation but who wishes to continue his activity in another company.Very soon, the new company is equally subjected to compulsory liquidation anddisappears, leaving behind tax liabilities amounting to more than 196,000 , forwhich Mr L, the legal manager, and his father, the actual manager, are declaredjointly liable by the high court of C.Since his father is nowhere to be found, it is Mr L, in the meantime a local coun-cil employee, who must bear the cost of the Public Treasury's actions. For tenyears he pays 200 every month, deducted directly from his modest salary, with-out the least hope of being able to finish paying his payable tax amount one day,since the amount debited from his account is less than the legal interest accru-ing from the outstanding tax amount.Mr L then refers the matter to the Mediator of the French Republic. In accor-dance with the law, the action taken against him seems unjustified, given that hehad not personally intended to evade taxes and had not enriched himself per-sonally from it, on the contrary. On the other hand, the consequences of these pro-ceedings for him are very serious since they prevent him from having a normalsocial life. In view of these circumstances and considering the extreme precar-ious life of Mr L, the Mediator of the French Republic applied for and was granteda remission of the entire tax debt free of charge by the Minister for Finance.

Solidarity with serious

consequences

Company F had very serious financial problems, which were worsened by the consequences of a tax investigation. It could carryon with the continuation plan stopped after it had filed a petition for bankruptcy early 2003, provided it raised the capital imme-diately, which was impossible without a transactional agreement with Inland Revenue. As a last resort, company F referred thecase to the Mediator of the French Republic. Now, its disagreement with Inland Revenue was a legal issue: its business rela-tions with a subsidiary, Sarl M., and with some of its suppliers had been called to question during the tax investigation. More-over, the administrative court had confirmed the decision of Inland Revenue. The financial implications were serious; the taxliability amounted to half a million euros. In this context of a difficult mediation, the Mediator of the French Republic contacted the Minister for budget. Without contestingthe judgement rendered, which was still not definite, he asked the minister to place the matter back in the context of the gen-eral economic situation with which company F had been faced. He underlined, among others, the major economic hazards thecompany had suffered, on the one hand, due to the specificity of an activity exercised in a very high-tech sector and, on the otherhand, due to a serious damage to the industrial tool, not yet indemnified. In this situation, it is not possible not to expect that somemanagement activities, considered as abnormal in the sense of the tax law, may not be justifiable by technical, economic andfinancial motivations. After further investigations, the minister concluded that the contested taxation was not justified and must be abandoned.

A general economic situation that cannot be ignored

“Private income tax and

corporation tax, the most

contested taxation issues,

represent two thirds of

the section's activity.

Many cases handled by

the section also result

from the joint

responsibility of couples

in terms of taxation, the

sign of the increasing

fragility of marriages.”

Significa

ntmediations


• General matters


• Taxation

• Justice

• Social


o n c i l i at i o n -

- informing-

- l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o n-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iatio



n s - i n f o r m i n g - p r o x i m i t y -



The spirit of the law recognised

ness creation

Having completed the new house he intends to use ashis main home, Mr G plans to sell the one in which he is liv-ing with his family. But this house has some defects and hasbeen for several years the subject of litigation to obtain thebenefits of the general insurance. Since he cannot succeed,he understands that the sale will be difficult or even imposs-ible and abandons his project. He then remains in his resi-dence and sells the new building, without having occupied iteither as a main or second home.

In these conditions, the capital gain made from the sale of anew building is subject to taxation, even in the absence of aspeculative character. Mr G contests this, because he con-sidered himself obliged to sell. He then referred the matter tothe Mediator of the French Republic, who recognised, inprinciple, the legitimacy of the tax imposed on Mr G whocannot reasonably cite the prejudice suffered due to a defect

in a house as grounds for exempting from taxation the capital gain made from the sale of another house.On the other hand, the Mediator of the French Republicnoticed that Inland Revenue had not allowed any deductionor allowance, especially in connection with the chargesinherent in the loan taken by Mr G, since this measure isreserved for second homes. It turned out that this property sale carried out by a privateindividual without any speculative intention had been moreheavily taxed than if it had been made by a professional forspeculative purposes. This interpretation of law led to anapplication that was against the law-maker's spirit.

Based on these arguments, the director of the tax servicesconcerned agreed in all fairness to deduct from the capitalgain the amount of financial charges inherent in the loantaken by Mr G, and to cancel any late payment penalties.

Beyond the law and contract, equity

Following the signature of a consultancy agreement with atemporary employment agency specialised in oil drilling, Mr Laccomplished a mission abroad for a petroleum company.Considering himself as an employee seconded abroad, hedid not declare, in his tax return, the amounts he was paid inthe course of the said mission, in accordance with Article81 A of the general tax code.

Now, Inland Revenue thought that these sums must be sub-jected to income tax on profits from non commercial occu-pation, since they were remunerations for the consultant's

independent activity. It also decided that the said sums weresubject to VAT.

Since Mr L disagreed with this analysis, he filed a complaintand referred the matter to the administrative court. At thesame time, he sought the help of the Mediator of the FrenchRepublic, stating that two of his colleagues had been sub-jected to similar tax adjustments, which had been withdrawn.

The Mediator of the French Republic intervened at the officeof the director general of taxes, pointing out this unequaltreatment and proposing a re-examination of the case. Infact, Mr L produced the documentary evidence of the sub-ordination relations in which he had accomplished his mission,and of his employee status.

The director general of taxes upheld the decision of InlandRevenue, which had also been confirmed by the administra-tive court. He pointed out that the tax adjustments Mr L's twocolleagues had been subjected to had not been upheldbecause they had produced the documentary evidence oftheir status as employees. Nevertheless, considering thecontracts produced by Mr L, which were comparable in allaspects with those of his colleagues, as well as the decisionof his services in favour of these latter, he decided, in all fair-ness, to cancel the contested tax adjustments.

Significa

ntmediations










Con

Making the lawmore human

As its name indicates, the justice sectionexamines complaints pertaining to disagree-ments between a natural person or corpo-rate body and the public service of thejudiciary. This notion covers not only theactivity of the three components of the Mini-stry of Justice (courts, prisons and judicialmeans of protecting youths), but also theadministrative judicial tasks handled by members of the jurisdictions, as well as theactivities of the professionals that participate

in the jurisdictional and legal procedures (lawyers, solicitors, notaries public,sworn experts, etc.) and the authorities that coordinate the exercise thereof.The section also handles cases concerning personal statuses or the legislation relating to foreigners.

Cases are handled in accordance with the

specifications of Article 11, paragraph 1, of the

law dated 3 January 1973. Pursuant to this law,

the Mediator of the French Republic may not

intervene in proceedings brought before a court,

nor question the legitimacy of a court's decision.

However, nothing stops a complainant, who has

already referred a dispute between him and the

administration to a judge, from seeking the help

of the Mediator of the French Republic at the

same time. Although this latter may not

intervene before the judge to influence the

course of the proceeding or the decision that

will be taken later, he may persuade the parties

to settle the dispute amicably.


� Civil status records of French citizens born outside France are managed by the central civil status office, whichdepends on the Foreign Affairs Ministry and is located in Nantes. The Mediator of the French Republic handles alarge number of complaints from people who think that the time taken to process their record transcription requestis too long. Actually, the waiting time may last for over one year, since the offices in Nantes are themselves oftendependent on local authorities' diligence.On 21 September 2004, the Mediator of the French Republic went to the central civil status office with the publicprosecutor of Nantes and the assistant director for naturalisation at the Ministry of Employment. This meeting wasan opportunity to reflect on a possible connection between the central civil status office and the services of theMediator, in order to improve the processing of requests and quickly meet citizens' expectations. The idea of creatinga civil status litigation centre in Nantes was also brought up. The court of first instance of Nantes may be the onlyjurisdictional venue in that matter, which would allow a centralisation of all cases and the harmonisation ofjurisprudence.

Towards partnership with the central civil status office

• General matters


• Taxation

• Justice

• Social








sistencies



Mrs H, a Moroccan citizen, arrived in France in January 2000with a short-stay visa and later stayed on, illegally, in France.She got married to a Moroccan citizen, who holds a residentpermit, with whom she had a child (a little girl) in December2001.In the course of 2000, she applied for a stay permit and herapplication was rejected in December of the same year. InFebruary 2001, a prefectural order was issued to deport herfrom France. This order was cancelled in March 2001 by theadministrative court. But the Council of State nullified thisjudgement, thus confirming the prefectural decision not togrant her a stay permit. In March 2003, Mrs H applied again for a stay permit. In April,the prefecture intimated her in writing about its refusal toexamine her case, since the decision to deport her had notbeen implemented. In July 2003, a family reunification appli-cation filed by Mrs H was rejected because she was alreadyin France. It was then that she brought the matter to thenotice of the Mediator of the French Republic.This latter drew the prefect's attention to Mrs H's new situation: her marriage, the birth of her child, the fact thather husband had created a company. His arguments wereheeded, and Mrs H was issued a temporary stay permit.

Stay permit:

with regard

to family life

Simplification

An important pedagogical work

Citizens often complain about the judicial system. It is con-

sidered as slow, costly and incomprehensible. Sometimes it

is also a source of frustrations, because people are hardly

satisfied with a court's decision. This applies, of course,

to the loosing party, but also to the wining party for whom

the decision is never as he would have wished. This dis-

satisfaction is reinforced by lack of knowledge of the law and

procedures as well as lack of relevant information. A big part

of the justice section's activity is devoted to information.

� You have to explain to a claimant that the delay in his

case is justifiable, for example, due to the nomination of

an expert. Or that the dissolution of communal estate

between spouses at a notary public's office is taking longer

than expected because the other party disagrees with a

point.

You have to explain to people that common sense and the

law do not always tally and that, in a lawsuit, facts are sub-

ject to the supreme appreciation of judges. It is important to

point out that the Mediator of the French Republic cannot

intervene in a dispute resulting from a lawyer's fee amount,

since it is a civil case, while indicating the procedures for

contesting it.

� The same thing applies to the non-execution of a court's

decision. Unfortunately, this is often the case with credi-

tors who win a case before the court but are faced with

recalcitrant debtors or debtors who simply disappear. If such

a matter is referred to him, the Mediator of the French

Republic cannot intervene, given that the judgement, whose

execution is requested, concerns private individuals, and

not an administration, or an organisation entrusted with a

public service mission. But he will, whenever possible,

advise the claimant, for example by letting him know that the

bailiff he has chosen can contact the state prosecutor in

charge of the territory, so that he can search for the debtor's

address, that of his employer, and the details of the organ-

isations where an account has been opened in the debtor's

name.

� The action of the Mediator of the French Republic helps

to oil the wheels of the judicial system. Due to the impor-

tance attached to equity, it often prevents lawsuits which

overcrowd the law courts and for which a legal response is

not appropriate.

Although there are not multitudes of serious malfunctions of

the judicial public service, the judicial authorities’ failure

to reply to letters from citizens is a real source of problems.

Other administrations have made efforts in this connection,

but not the judiciary. When will a section in charge of

replying to letters be created in all the courts?

Significa

ntmediations

Miss Y, an Algerian citizen, obtained at the University of Oran,in June 2003, an engineering degree in industrial chemistry.Since she came first in her year, she wants to complete hereducation with a masters degree. Her candidature isaccepted by a school in Toulouse where her mother lives.She then applies for a student's visa at the French consulatein Alger. She does not get any reply and is likely to loose heradmission at the school. Miss Y then seeks the help of the Mediator of the FrenchRepublic. After examining her case, this latter contacts theForeign Affaires Ministry to propose a solution. He thenlearns that Miss Y has been issued a visa. So, despite somedelay, Miss Y can finally start her studies at the school inToulouse where she had chosen to continue her studies.

Visa delayed,

studies at risk









Legislation pertaining

to foreigners: "discretionary

power" considered as arbitrary

Causes� The activity of the Justice section in the pastyear was characterised by the need to integratenew important laws: the Sarkozy law of 26November 2003, and the Sarkozy circular of 20January 2004, on the entry and stay of foreigners inFrance, as well as the de Villepin law of 10December 2003 on the reform of asylum law. Theselegislative upheavals have been the source of a lotof feeling of injustice. People who could be entitledto a stay permit in accordance with the previouslaws have suddenly lost this possibility. Thisincomprehension has added to the others thatpunctuate the life of foreigners wishing to enter andlive in France.The Justice section examines very many cases ofvisa refusal. In most cases, it can only limit itself to reminding claimants of the existing laws. As the Council of Satepoints out regularly, the consular authorities, the only authorities empowered to issue visas, have considerablediscretionary powers in this regard, and "may base their decision not only on reasons relating to public order, but alsoon any consideration of general interest". It is their duty to assess, among others, the migration-related risk inherentin any visa application, as well as the risk of misuse of the purpose of the visa. Moreover, except in some situationsenumerated in Article 5 of the modified ruling of 2 November 1945, the consular authorities do not have to indicate thereasons for refusing a visa. When a foreigner obtains a visa, he may later want to stay in France. Stay permits (temporary one-year stay permit,ten-year residence permit) are issued by prefectures. Here again, the prefects have a "discretionary power": in clearterms, they have the power to grant or not to grant the requested stay permit. This notion of " discretionary power" isvery badly understood and often considered as arbitrary. A lot of complaints are handled in this connection by theJustice section. After an in-depth examination of these cases, the work of the Mediator for the French Republic canonly be limited to conviction, highlighting facts or elements not sufficiently taken into account, in the first place, by theprefectural services.


“A good number of the cases handled by

the justice section concern the working of

the legal system, considered as slow and

incomprehensible. The justice section also

intervenes in a field that triggers a lot of

political debates, and where real human

tragedies do take place sometimes:

foreigners' rights and nationality.”


• General matters


• Taxation

• Justice

• Social










Incomprehension

"Deceased" for the civil status office!

On 6 April 2004, Mr P. Fernandez, domiciled in Marseilles, received asummon to appear before the appeal court of Douai for an industrial tribunalrelated case concerning a certain Mr P. Fernandes, living at the same addressas him.

Since he was not concerned by this summon, Mr P. Fernandez contactedthe industrial tribunal of his place of residence which told him, after callingthe appeal court of Douai, that the issue had been resolved.

However, on 22 June 2004, the claimant received by registered mail a state-ment of expenses for a decision on jurisdictional assistance granted to theopposing party in the same proceeding. This statement of expenses hadalways been sent to Mr P. Fernandes. On 7 July, Mr P. Fernandez then wrotethe appeal court of Douai again to contest the statement of expenses, andreferred the matter to the Mediator of the French Republic at the same time.

The Mediator of the French Republic then contacted the clerk of the cham-ber for social and labour matters at the appeal court of Douai. By re-exam-ining the case, this service noticed that within the scope of this industrialtribunal proceeding, it had been notified about the defendant's change ofaddress, and that as from that moment, Mr P. Fernandez was unjustly sentsummons and formal demands to pay in connection with this matter. Thechamber for social and labour matters then quickly corrected this materialerror.

Annoying homonymy

Numerous lawsuits in connectionwith nationality

The Mediator of the French Republic is very regu-

larly contacted by Algerian citizens, living in

Algeria or in France, who wish to obtain certifi-

cates of French nationality. They base their request

on the fact that they once held a French national

identity card, or that their parents had one, or that

their father or grandfather had served in the French

army. History is still present, and the issue pas-

sionate. But the law in this regard is very complex.

� The ruling of 21 July 1962 distinguished

between two categories of status: people with

common law civil status, generally families

originally from the Metropolitan France or people

who have been naturalised and who have right-

fully retained their French nationality, without hav-

ing to carry out any procedure; and people with

local law civil status, generally families of Algerian

origin which, to remain French, had to sign, before

23 March 1967, a declaration of recognition of

French citizenship. This declaration was only

acceptable if the applicant had previously taken

up residence in France. The notion of domicile, or

residence in France, is defined as an actual, stable

and permanent residence, coinciding with the appli-

cant's centre of family ties and professional activ-

ities. Thus, children born in France or in Algeria

before 1 January 1963, and whose parents have

the local law civil status, lost their French citizen-

ship on the said date if they or their father, upon

whom depended their condition as minors, had not

signed the declaration of recognition. In this case,

French citizenship can only be recovered by apply-

ing for reintegration by decree, provided the appli-

cant has regularly lived in France in accordance

with the laws and agreements on the stay of

Algerian citizens in France.

� The result is that there are people who for 40

years had honestly believed that they were French

citizens. But then they discover that they are not

when they want to renew their national identity

card, since administrative control has become very

strict. A more simple procedure, "the declaration

of the acquisition of French citizenship by feeling

French" at the court of first instance, enable them

to recover their French citizenship being called to

question. Nevertheless, the applicants must have

considered themselves, in good faith, as French

nationals for the ten years that precede the decla-

ration, and must have been considered as such by

the public authorities.

Significa

ntmediations

While compiling her pensions documents in the course of 2003, Mrs T, born inTunis, requested for a birth certificate at the central civil status office in Nantes. She then noticed the following annotation on her birth certificate:"died on 5 October 1996". On 5 October 2003, Mrs T brought the matter to theattention of the public prosecutor of Nantes, asking for a rectification of herbirth certificate. But as at 10 February 2004 she still had not received anyinformation concerning her request, whereas the payment of her pensionbenefit was supposed to start on 29 February 2004.

Mrs T then sought the help of the Mediator of the French Republic. This latter contacted the public prosecutor in Nantes, who informed him thatgiven the large number of requests received, his services were at that momentprocessing requests recorded in January 2002. Out of concern for equality,these requests are examined in their order of arrival at the public prosecutor'soffice.

Nevertheless, exceptionally, and considering the particularly annoying conse-quences the absence of the birth certificate would have had for Mrs T regar-ding the payment of her pension benefit, the public prosecutor of Nantesaccepted to process this request without delay.










• General matters


• Taxation

• Justice

• Social

Protection

Witness tosocial anxietyand distress

Logically, the social section handles casesrelating to the social welfare system. Thesecases range from litigation calling to question allthe branches of the national health and pensionsscheme and other schemes (except the civil

service) – sickness, maternity, pension, disability, industrial accident andoccupational disease –, both in terms of contributions and benefits; orlitigation concerning the benefits available to families with children,social security benefits and minimum income (minimum benefit paid tothose with no other income, benefit paid to disabled adults, etc.),unemployment benefit, employment aid and vocational training. Its vastfield of intervention covers every age bracket and the most strikingfragile and precarious situations.

people over sixty – a logical restriction, since

this repurchasing possibility is meant to make

up for the extension of the duration of insurance,

which has less impact on people who are more

advanced in their career. The Mediator of the

French Republic, who noticed a real need for

explanations on the ins and outs of the reform,

would like more information and reactivity in

favour of contributors. He wishes the national

pension fund continues to provide vital informa-

tion or simulations to enable active persons to

make a choice.

Pension reform: the need for information

Just like after any important legal modification,

in 2004, the social section had to do a lot of peda-

gogical work on the pension reform established

by the law of 21 August 2003. The complexity

and progressive implementation of the new

scheme resulted in a lot of questions and incom-

prehension. Some social insurance contributors,

for example, had not understood that the possi-

bility to buy back years of studies did not concern

128 cases of "recalculated" job-

seekers were received in 2004

by the Social section

Rights










Mr P., born in 1943, worked as an employee under the generalsocial security scheme from 1959 to 1987. Dismissed for eco-nomics reasons, he was indemnified by the organisation man-aging unemployment contributions and payments within thescope of the unemployment insurance. In 1992, he took overan agricultural enterprise in which he worked until 30 June1995. Registered again as a job-seeker, he was allowed on 19August to benefit from the special solidarity grant up till 2003.He then wanted to exercise his right to pension benefits, butnoticed that the quarter corresponding to his last period ofindemnified unemployment, from 1995 to 2003, had not beentaken into account for his accrued benefit. All his efforts toobtain an amicable solution failed, both for the general socialsecurity scheme and the agricultural insurance scheme.Moreover, the social security tribunal confirmed the deci-sion of both organisations in charge of the said schemes.Contacted at the same time by Mr P, the Mediator of theFrench Republic could only note that the two organisationshad applied the existing law. In fact, Mr P had lost his sta-tus as a social insured person under the general social secu-rity scheme because he had exercised a non-salariedprofession under the agricultural insurance scheme, betweenhis two indemnified unemployment periods. Now, the valida-tion of a period of unemployment for old-age insurance issubject to the recognition of the status as a social insuredperson under the general social security scheme prior to thisperiod. The Mediator plans to draw the attention of the government to this rule that penalises job-seekers taking upa non-salaried activity.

Retirement credits: when the indemnifiedunemployment periodsare not taken into account

The unpleasant surprises of mobility

Despite an amelioration of the coordination of rules, a

significant number of complaints concern the prejudicial

consequences of (professional or geographic) mobility on

people's rights, in all the insurance schemes. Designed

at a time of stability, the social welfare systems are find-

ing it difficult to adapt to the new order and the ever-

changing, or even chaotic professional life of social

insurance contributors.

� Being successively a private-sector employee, a self-

employed worker, a farmer or a civil servant, and thus

changing the contributive scheme of social protection,

often reserves unpleasant surprises when

you wish to exercise your rights to unem-

ployment, pension or any other benefits.

Thus, the criteria for determining unem-

ployability, for obtaining full pension ben-

efits at 60, regardless of the duration of

the insurance, are different in the gen-

eral scheme, affiliated schemes, and the

scheme for liberal professionals. In the

general social security scheme and affil-

iated schemes (wage-earning farmers,

artisans and traders), unemployability

may be recognised once the contributor

can no longer exercise his profession

without any serious danger to his health, and if medically

declared 50% unfit for work (Articles L.351-7 and R.351-

21 of the social security code). On the other hand, in the

scheme for liberal professionals, unfitness for work is

assessed "by determining whether on the date of the

application or at a later date, the applicant, considering his

age, health, physical and mental capacities, professional

aptitude or training, is no longer capable of exercising a

professional activity." Two definitions of unfitness for

work, which when applied to the same person do not

always lead to the same conclusion regarding the enti-

tlement that can result from each pension scheme in ques-

tion, as the Mediator noticed in the cases referred to him.

� The pension scheme for liberal professionals, which is

managed by an independent organisation, is not in line

with the general pension scheme. The law of 21 August

2003 on pensions reform created some rapprochement

between this scheme and that of employees, especially in

terms of retirement age and the duration of insurance for

the basic pension benefits. But its evolution in the sense

of progressive rapprochement with the general pensions

scheme is much less striking than the one for other

schemes that concern non-agricultural, non-salaried

workers, such as industrialists, traders and artisans. Thus,

differences still remain regarding the definition of unfitness

for work.

Significa

ntmediations

� It is also when claiming their right to retirement that

people with multiple pensions can have unpleasant sur-

prises. This is because their unemployment periods are

not systematically validated while assessing their right

to the benefits of the general pension scheme. This vali-

dation is, in fact, subject to the recognition of the insured

party as a contributor to the general pension scheme prior

to the period under consideration. Which is not the case,

for instance, for a period of indemnification after the exer-

cise of a self-employed activity that had resulted in affil-

iation to the scheme for non-wage earning farmers. The

laws on old-age insurance are not modelled on those

governing the conditions for indemnification, fixed by the

specific law on unemployment insurance and the

solidarity scheme.


EqualityCompla

Ex a m i n at i o n a c a s e - b y- c a s e b a s i s






c a u s e s - d i a l o

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s� In terms of social welfare, crossing borders is still more complicated than changing one's professional status! Thefree movement of persons is one of the basic principles of the European Union. In fact, more and more people willsuccessively live or work in different European Union countries. For several decades, European institutions andmember States have been working on the creation of a certain number of rules aimed at coordinating national socialsecurity and unemployment insurance laws. But these laws, which are not always simple, are still not well known tosocial welfare organisations themselves, in France and in other European countries alike. Moreover, people leavingtheir country are often very badly informed about their rights and the steps to take. The Mediator of the FrenchRepublic has, thus, been asked to intervene in many cases concerning the unemployment benefits of people returningto France after working in another member State. In most cases, the difficulties encountered by these persons are aresult of incomplete or even erroneous information they had been given.


“Due to the cases it handles,

the social section is a

privileged witness to the

gaps and injustices caused

by the upheavals in our social

welfare system. Designed at

a time when employment was

stable, and despite

significant adjustments, the

different operations are

difficult to adapt to the

growing professional and

geographic mobility.”

The Europe of workers still struggling to emerge

• General matters


• Taxation

• Justice

• Social



Mobility grant:

int

Significa

ntmediations






o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i


Adjusting the rule to take circumstances intoaccount

After eight-months training as programmer analyst,Mrs N accepted a job under a fixed-term contract fortwo months. Initially her employer had promised her anopen-ended contract, but later proposed a fixed-termcontract, with the prospect of changing it to permanentemployment, which actually happened.

Obliged to travel 75 kilometres everyday, Mrs N appliedfor a mobility grant. The local employment agencyrejected Mrs N's application because she had beenhired under a fixed-term contract of less than 12months.

Mrs N then sought the help of the Mediator of theFrench Republic who first of all noted that the localemployment agency had duly applied the law. Mrs N didnot actually fulfil the conditions for the mobility grant.Nevertheless, there was no doubt that she had beenhired under an open-ended contract, immediately afterthe expiration of her fixed-term contract, by the samecompany, for the same qualification and coefficient,since the first two-month contract had been used by theemployer as a trial period. It was, therefore, unjust topenalise Mrs N for that.

Convinced by these arguments, the general directoratesof the national employment agency and UNEDICaccepted to adjust the rule, to enable Mrs N obtain themobility grant.

Supplementarypension: the most precariousare prejudiced

On several occasions, since 1998,

the Mediator of the French Repub-

lic has drawn the Employment

Ministry's attention to the fact

that the periods for work done

within the scope of a solidarity

employment contract are not val-

idated by the supplementary pen-

sions schemes, since the

employers are exempt from all the

employers' social security charges, except unem-

ployment insurance contributions. The prejudice is all

the more serious since it is not limited to the dura-

tion of the solidarity employment contract, given

that the persons concerned do not build up any cred-

its for themselves during the duration of their work

contract but also, and in particular, throughout the

duration of the unemployment benefit that may be

granted to them at the end of this work, unlike other

indemnified unemployed workers, who are granted

free points after loosing a validated salaried job.

Therefore, taking up an employment within the

framework of the solidarity employment contract

has been very prejudicial in terms of supplementary

pension, since the parties concerned loose an advan-

tage they would have retained had they remained

indemnified job-seekers. Moreover, they generally

become conscious of this problem only when filing

their claim for pension benefits.

For basically financial reasons, no measure has been

taken by the government to find a solution to this

situation to which the Mediator of the French Repub-

lic again drew the attention of the ministry recently,

while examining individual claims. It is pertinent to

specify that, in future, employers shall be required to

pay supplementary pension contributions within the

framework of new solidarity employment contracts

in the non-profit sector, created by the program-

ming law on social cohesion; that did not seem to be

the case, as at the time this report was being com-

piled, for the newly introduced work contracts ("con-

trats d’avenir"), which aim at beneficiaries of the

minimum welfare payment. Therefore, the matter

remains open.








Ex a m i n at i o n a c a s e - b y- c a s e b a s i s

"Recalculated"

job-seekers

Sup

• General matters


• Taxation

• Justice

• Social

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s

� For the third consecutive year, unemploymentbenefit was in 2004 the first issue handled by thesocial section. The first six months were charac-terised by an influx of individual complaints from"recalculated" job-seekers whose indemnificationperiod had been reduced as a result of the proto-col of agreement signed in December 2002 byemployer and trade union representatives. Thisagreement became applicable to indemnified job-seekers on 1st January 2004. For most of the casesreferred to him, the Mediator of the French Republicdecided that it was all about a general rule resultingfrom social partners' negotiations, on which he may not make any judgement. On the other hand, he contacted the direc-tor general of UNEDIC unemployment insurance scheme on several occasions for two series of special cases, toask for an adjustment of the rule. The first case concerned job-seekers creating or taking over a company, whostarted their project by including in their financing plan the fact that their indemnification would be maintained for theperiod indicated to them at the beginning of their indemnification. The Mediator observed, among others, that withinthe framework of the application for the support granted to job-seekers wishing to create or take over a company, thisfinancial aspect had probably been taken into account while assessing the validity of the project. The second caseconcerned people subjected to the readmission procedure after taking up again a salaried job that allowed themnew entitlements. Thus, job-seekers, who had not used up their credits resulting from the loss of a previous employ-ment prior to 31 December 2001, had found a new job that they lost again in 2003. Thanks to this new job, they hadenough duration of affiliation to the unemployment insurance to become entitled again to indemnification. In theMediator's opinion, retaining the remaining rights on the basis of the duration of indemnification indicated initially,whereas it had been known, on the readmission date, that it would be reduced considerably, distorted the result of thecomparison made between the two benefit amounts.The Mediator was preparing to refer the case to UNEDIC's board chairman when the government decided to re-establish the rights of the "recalculated" job-seekers, after the ministerial decree of 5 February 2003 that had approvedthe rules in question had been nullified in May 2004 by the Council of State for irregularity.








port


No more borders

for family allowance


Unemployment

benefits: Intra-European rightsgradually introduced

Significa

ntmediations

After working for seven years in France, Mrs V worked inGermany from 1993 to July 2002. She then returned toFrance, where, after working as a salaried employee fora very short period, she applied for unemployment benefit.She provided forms E 301 and E 303, and was granted thisbenefit for a period of three months. At the end of this per-iod, in November 2002, she worked on a part-time basisfor four months. At the end of her fixed term contract, sheapplied for unemployment benefit. Her application wasrejected because she had used up all her previous cre-dits and had not constituted new ones.

She then sought the help of the Mediator of the FrenchRepublic, wondering why her previous activities in Ger-many then in France had not enabled her to obtain unem-ployment benefits for a longer time. In fact, at the end of hercontract in Germany, Mrs V had not received any indem-nification in Germany. According to Community rules, byregistering with the organisation managing unemploymentcontributions and payments in France, she could, there-fore, receive unemployment benefit, taking into accountall her periods of insurance and employment in the differentEuropean Union member States.

Now, the three-month indemnity granted on the basis ofform E 303 only concerns workers who, having been indem-nified in one member State, move to another State to conti-nue looking for a job. This was not the case for Mrs V,whose situation should have been examined based on theinformation provided on form E 301. Thanks to the Media-tor's intervention, Mrs V's right were restored.

o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y -

In 2001, Mrs S, who had moved to Germany within theframework of a professional transfer, applied at the socialsecurity office for child-rearing allowance for her two-year-old daughter. The social security office rejected herapplication, stating that the requested allowance couldnot be paid in Germany, and that her husband had alreadybeen indicated by both parents as the one to receive theallowance.

Now, in 2003, the European Commission had taken a legalaction against France for subjecting the payment of child-rearing allowance to a condition of residence, which wasincompatible with the European treaties on the free move-ment of workers. Thus, on 8 December 2003, the relevantministry indicated that France henceforth recognised theexportable character of the child-rearing allowance, andspecified that the new rule not only applied to currentlycontested cases, but also, upon request of the parties con-cerned, to applications previously rejected due to non-residence in France, within a specified period of time.Thanks to this precision, Mrs S's request was granted.

Concern







c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t


Arb

Legal inconsistenciesand deficiencies

More than administrative malfunctions, it is often the complexity ofregulations that pose problems. A certain legislative inflation resultsin incomplete and contradictory texts the interpretation of which isincreasingly delicate. The citizens are perplexed and helpless, andthe relevant administrative services themselves sometimes swampedwith work.

While awaiting the applicationdecrees…

For the past thirty years, the French National

Assembly and Senate have regularly highlighted

the lateness with which law appli-

cation decrees are published. A

recent example shows the prejudi-

cial consequences of these delays.

� Law 2002-303 of 4 March 2002

on the rights of patients and the

quality of the healthcare system pro-

vided for the introduction of new dis-

ciplinary structures and a new

procedure within the medical asso-

ciation. Pursuant to Article 44 of the

same law, this new procedure is sub-

ject to "the announcement of the

results of elections to the regional

and inter-regional councils and to the disciplinary

chambers". The said elections must be held within

six months after the publication of the decree

mentioned in Article L. 4124-11 of the public

health code, which must fix the composition, the

election modalities and the working and proce-

dural rules for the regional and inter-regional coun-

cils to be created. The failure to publish this

decree has blocked the entire process. Result: a

person lodging a complaint against a doctor can

neither appeal to the national council of the asso-

ciation for a decision taken by a regional coun-

cil, nor lodge an appeal with the council of State.

� What is the reason for all these delays? Prob-

ably a hasty adoption of laws. Whereas the law of

4 March 2002 is not yet fully applicable, it has

already been modified by three other laws (Law

2002-1577 of 30 December 2002; Law 2003-660 of

21 July 2003; Law 2004-806 of 9 August 2004 on

public health policy). Other texts have also mod-

ified the provisions of the public health code con-

cerning doctors' discipline (Law 2004-1 of 2

January 2004, Law 2004-204 of 9 March 2004).

Pursuant to Article 156 of the law dated 9 August

2004, the regional councils and the disciplinary

section of the national council of the medical

association shall remain responsible for discipline

so long as Articles 18, 42 and 62 of the law dated

4 March 2002 are not applicable. Moreover, a

decree dated 29 July 2004 (Decree 2004-802 pub-

lished in the Gazette of 8 August 2004) contains

an Article R. 4126-1 to be inserted into the public

health code, according to which in the absence

of the publication of the decree provided for by

Article L. 4124-11 of the same code, the discipli-

nary procedure for doctors shall continue to be

governed by Decree 48-1671 of 26 October 1948.

� Obviously, the government is finding it diffi-

cult to take the necessary measures to apply the

law of 2002. This is especially true since an arti-

cle of the second authorisation bill meant to sim-

plify the right should make it possible for the

government to adjust, through an order, the organ-

isation of the medical and pharmaceutical asso-

ciations. The decree planned for 2002 would only

be finally published at the end of this "simplifi-

cation" process.

When a circular modifies the spirit of the law

For many years now, some companies have been

paying their employees "extra-legal family

A generally accepted observation






i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h


itrary



The failures of Schengen

Error

allowances". These allowances, paid due to cir-

cumstances as to dependants, are not provided

for in the social security code. When they fulfilled

certain conditions, they were exempt from social

security contributions. But a decree of 2 March

1995 was supposed to generally abolish these

exemptions. However, letters from ministers and

circulars from the central agency of the social

security organisations (ACOSS) have rendered

particularly complex the conditions for applying

this decree. A ministerial letter dated 11 April

1995 first suspended the application of the decree.

Then another one dated 23 January 1996 specified

that the exemption finally had to be maintained for

companies paying these allowances via a family

equalisation fund.

� Not knowing which attitude to adopt, several

companies have been subjected to adjustments

and sometimes even to litigation by the admin-

istration. In August 1997, the Mediator of the

French Republic asked that this legal confusion

be brought to an end, either by applying or abro-

gating the decree of 2 March 1995.

This request met with refusal, and it is an assess-

ment on a case-by-case basis that was adopted.

Two new elements have even added to the con-

fusion: a letter/circular dated 17 January 1997

from ACOSS specified that the extra-legal fam-

ily allowances had to be subjected to the contri-

bution to the reimbursement of the social debt

(CRDS); another letter/circular dated 7 June 1999

from the Employment ministry to ACOSS provided

for an exemption of the family allowances paid

by SNCF (the French national railway company)

to its workers, whereas the said allowances are

not paid via a family equalisation fund.

� On several occasions, the Mediator of the

French Republic drew the attention of the rele-

vant ministers again to the grotesque character of

this situation. The law of 9 September 2004 on

the simplification of the right offers a solution.

Its article 52 on the reinforcement of the contri-

butors' rights in their relations with the organi-

sations in charge of collecting social security

contributions empowers the government to take,

by order, all these measures aimed at enabling

the contributors to cite published ministerial cir-

culars and instructions, even if they contradict

texts at a higher legal level.

This measure has a double advantage: it encour-

ages the administration to show some sense of

responsibility while writing application texts, and

reinforces the legal security of contributors acting

in accordance with administrative instructions.

Nevertheless, it constitutes a serious impediment

to the respect of hierarchy of norms which is one

of the basic principles of our legal system. In keep-

ing with this principle, a circular must be in accor-

dance with the decree it is interpreting, the decree

must respect the law, which, in turn, must respect

the constitution.

What obtains in Val-d’Oise nolonger obtains in Haute-Savoie!

What does a legal concept encompass? Which

concrete situation does it or does it not corre-

spond to? When, for instance, must a house be

considered as "vacant"? This notion of "vacant"

is important, especially in terms of taxation,

since it may lead to certain taxes. But tax

offices obviously do not have the same inter-

pretation thereof. In 1997, Mrs S put up her

house in Val-d’Oise for sale and moved to

Haute-Savoie. The house could only be sold in

June 2000. The tax offices in Haute-Savoie

thought that this sale did not take place within

the normal one-year deadline and, therefore,

refused Mrs S the capital gain tax exemption

applicable to main homes. Mrs S contested this

taxation, arguing that the "vacancy" of her

house in Val-d’Oise, on the day of sale, was

due to circumstances beyond her control owing

to the situation of the local real-estate market.

The tax offices in Haute-Savoie refused this

argument, whereas the ones in Val-d’Oise had

accepted it and had granted Mrs S a tax exemp-

tion on the vacant home.

or how to drive a stolen car with a valid car ownership certificate

In August 2002, while travelling to Morocco on holidays, Mr A is stopped at theAlgéciras seaport by Spanish customs officers, who informed him that his car wasregistered in the "Schengen Information system" (SIS) for stolen vehicles. Amaze-ment on the side of the holidaymaker, who had bought his car in France in Novem-ber 2001, following an advertisement in a magazine, and who had registered thesaid vehicle with the prefecture of his department. Mr A is then imprisoned forthree days in Spain, and the vehicle confiscated and then returned to the insur-ance company of its initial owner, in Belgium, where it had been stolen. The Mediator of the French Republic referred the matter to the Interior Minister,with a demand for indemnification due to the prejudice suffered by the com-plainant as a result of the malfunction of the French administrative services,which while issuing the car ownership certificate had failed to check that MrA's vehicle was on the list of stolen vehicles. The minister rejected the requestin July 2004, stating that administrative services issuing car ownership certificatesdid not have access to the SIS, which alone is used to identify vehicles stolen inthe "Schengen area" and is for the time being reserved for officials authorised bythe police and customs authorities. A second demand by the Mediator of theFrench Republic on this basis is still being examined, as well as the demand bythe European Mediator and the People's Defender in Spain. Furthermore, the Mediator of the French Republic has equally submitted a reformproposal to the Interior Minister, aimed at allowing the relevant prefectoral serv-ices access to the SIS. The said reform proposal is being deeply examined. Butat the European level, the system will be set up thanks to the common positionadopted on 22 December 2004 by the member States, and which must be definitelyadopted by the Council of the European Union within the next few months.Henceforth, the administrative services entrusted by member States with thetask of issuing vehicle ownership certificates may have access to the SIS data,to check whether or not a given vehicle is a stolen vehicle.

Significa

ntmediations


olutions-informing-proximity-re-establishing-reformscauses-dialogue-l it igation-e

malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re

c t ims-remedy- conci l iat ion-f ight ing- inequal i t ies-malfunc t ion-publ icser v ices- del

ialogue-l it igation- equity-simplifying-l istening-rights-vict ims-remedy- conci l iat ion

n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y


c t ims-remedy- conci l iat ion-f ight ing- inequal i t ies-malfunc t ion-publ icser v ices- del

a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g

i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c

r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g uuses-dialogue-l it igation- equity-simplifying-l istening-rights-vict ims-remedy- conci l iation-f ighting-inequalit ies-malfunction-publicservices-delegates-just

hting-inequalit ies-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation- e

oximity-re-establishing-reformscauses-dialogue-litigation-equity-simplifying-listening-rights-victims-remedy- concil iation-fighting-inequalities-malfunctio

tims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re- establishing-reforms


a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t

t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i

u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s


u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h t s – v i c t i m s – r e m e d y – c o n c i l i a t i o n – f i g h t i n g – i n e q u a l i t i e s – m a l f u n c t i o n – p u b l i c s e r v i c e s – d e

r e m e d y – c o n c i l i a t i o n – f i g h t i n g – i n e q u a l i t i e s – m a l f u n c t i o n – p u b l i c s e r v i c e s – d e l e g a t e s – j u s t – r e s p e c t – s o l u t i o n s – i n f o r m i n g – p r o x i m i t y – r e - e s t a b l i s h i n g – r e f o r

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n


dialogueL i s t e n i n g

injustices

Present in all departments in France, the 292 representatives of the Mediator

of the French Republic have made it possible to bring the Institution closer to

the citizens. This territorial meshing must be continued and must be extended

to the most fragile population, bearing in mind the concern about the quality of

the service rendered, regardless of whether it is providing information, settling

disputes, or improving relations between public services and the constituents.


Mediators and facilitators ....................... p. 48

An increasingly tighter territorial network ................................................. p. 53

The delegates handle

90%

of cases received by the

Institution

G etting closer and being

more attentive to people

nci l iat ion-f ight ing- inequal i t ies-malfunc t ion-publ icser v ices- delegates- just-respec


-establishing-reformscauses-dialogue-litigation-equity-simplifying-listening-right

egates- just-respec t-solut ions- informing-proximity-re- establ ishing-reformscause

-f ighting-inequalit ies-malfunction-publicservices-delegates-just-respect-solution

- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d y- c o n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e


egates- just-respec t-solut ions- informing-proximity-re- establ ishing-reformscause

- l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n

e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g

u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t st-respect-solutions-informing-proximity-re- establ ishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-vict ims-remedy- conci l iat

equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-respect-solutions-inform

on-publicservices-delegates-just-respect-solutions-informing-proximity-re-establishing-reformscauses-dialogue-litigation-equity-simplifying-listening-rig

s- causes-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-j

m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s

t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g

i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s c a u s e s - d i a l o g u e - l i t i g a t i

- d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i


l e g a t e s – j u s t – r e s p e c t – s o l u t i o n s – i n f o r m i n g – p r o x i m i t y – r e - e s t a b l i s h i n g – r e f o r m s – C a u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h t s – v i c

m s – C a u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h t s – v i c t i m s – r e m e d y – c o n c i l i a t i o n – f i g h t i n g – i n e q u a l i t i e s – m a l f u n c t i o n – p u b l i c s e r v

n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t


Even though, initially, the Institution of Mediator of theFrench Republic was exclusively based in Paris, "depart-mental equivalents of the Mediator" were created in theprefectures as early as in 1978, on an experimental basis,and then in all French departments as from 1980. Sincethen, the existence of these local representatives of theInstitution, who became "delegate Mediators of theFrench Republic" in 1986, was officially confirmed by thelaw of 12 April 2000 pertaining to the rights of citizens intheir relations with administrations. The said law modifiedthe law of 3 January 1973 by introducing in it Article 6-1,which defines the role of the delegates.The creation of the delegate mediators has resulted intwo improvements to the law of 1973: a form of "directreferral" for local matters, and the provision of a newtype of service (information/orientation service); the del-egate has become a "complexity reducer" at least asmuch as a classical mediator.

The territorial development must be continued, with twoobjectives: continuing to make the Institution more acces-sible, especially to those who need it most: people liv-ing in sensitive neighbourhoods but also in fragile ruralareas, and later to prisoners; combining the concern forquality with the desire for proximity.

Three events that took place in 2004 should help meet thischallenge. The first one is the clarification of the dele-gates' legal status. In keeping with the wish of the Medi-ator of the French Republic, the order of 25 March 2004has completed Article 6-1 of the law of 1973, by under-lining the voluntary nature of these delegates' activity,and the possibility to indemnify them based on expenses.To extend this legislative progress, the Mediator of theFrench Republic has drafted a document that definesthe rights and obligations of the delegates in their rela-tions with the general public and with the Institution, andwhich is in a way a draft "Delegate's Charter". On theother hand, the introduction of the Intranet and theemphasis on information will improve the effectivenessand quality of the work of these essential interfaces.

Protection

Proximity and accessibility

Cases can be directly referred to the delegates by

persons in need of their service, and the

delegates receive these persons themselves

while on duty. At the local level, they endeavour

to encourage the settlement of disputes referred

to them. Since they are in direct contact with the

public, they also play an important role in terms

of listening to other people, providing

information, or even re-orientation when cases

referred to them do not come within the

Institution's competence. In fact, their

accessibility encourage people in difficulty to

contact them for all kinds of problems.


Unique information

and conciliation

interface in Europe

“The number

of delegates

increased from

123 in 1999

to 292 at the end

of 2004.”

Mediators and facilitators









Prox

With offices in prefectures and sub-prefectures but also,since 2000, in "local" organisations often located insensitive neighbourhoods (legal-information centres, legal-access points, public services centres, municipal offices),the delegates are on duty at least two half-days a week.

They have an office where they receive thegeneral public in conditions that guarantee theconfidentiality of their discussions.

Attentiveto demands

Even if the problems pre-sented to them do not fallwithin their competence, thedelegates always endeavourto assist the persons theyreceive, by directing them tothe relevant organisation, byindicating to them the steps totake, by providing them withan appropriate document, oreven by helping them some-times to draft a letter.

51,193cases were handled in 2004 by

the delegate Mediators of the

French Republic.

“The Mediator

of the French Republic

has issued a document

that defines the rights

and obligations

of the delegates in

their relations with

the general public and

the Institution: a draft

“delegate charter”

to back up their

missions.”

It is not rare that even when a solution is notpossible, the mere fact that the delegates lis-ten to those seeking their help is a source ofcomfort to them: at least due to the attentiongiven to them by the representative of an Insti-tution of the Republic. In the course of theirdiscussions, which on average last for onehour, this attention is in fact essential becauseit enables the delegates to defuse a situationand at the same time gather the informationrequired to understand the requests presentedto them.








imity


Oversight in a hospital

(the Seine-Saint-Denis)

When Mrs F moved from France to Switzerland, she had tochange her vehicle's French registration upon arriving in Switzer-land. When she returned to France two years later with thesame vehicle and another one bought in Switzerland, she wantedto obtain French car ownership certificates for her vehicles.She contacted the delegate Mediator of the French Republicto know how to go about this. This latter contacted the relevantservice in the prefecture (road users office), which in turn had tocontact its ministry to obtain precise information on the steps totake.For her vehicle that was previously registered in France, Mrs Fneeded to present a customs clearance certificate and couldthen obtain a new French car registration certificate free ofcharge, without going through the "Mines" (the official body inFrance responsible for regulating weights and measures andchanges made to motor vehicles). But for the vehicle purchasedin Switzerland, she had to pay for and obtain a report from the"Mines", before applying for a car ownership certificate in France.This example shows the importance of the delegate's informa-tion function in view of the complexity of a regulation that eventhe administration itself sometimes finds it difficult to under-stand.

Treasure hunts for car ownership certificates (the Haut-Rhin)

Listening

Informing, directing, clearing

The delegates are very often approached for information

on the working of public services, on how to obtain a

service, on the organisation of a procedure, etc. So, they

intervene before any dispute, or even before the con-

stituent takes any step. Upstream of litigation, they thus

strive for a better understanding of decisions or proce-

dures. They can help re-establish dialogue before it is

definitely cut, and thus help avert future conflicts.

The delegates also serve as interface between the con-

stituent wishing to deal with the officialdom and the

administration he/she must approach, thereby prevent-

ing possible difficulties (see opposite).

Settling disputes locally

� In addition to this very useful information and orien-

tation role, it is also the mission of the delegate Mediators

of the French Republic to encourage at their own level

the settlement of disputes resulting from a public ser-

vice's relations with a constituent, and from decisions

taken locally.

Once a real complaint is filed in the sense of the law of 3

January 1973, the delegates examine the matter deeply,

based on the evidence which must be provided by the

parties concerned: this is the examination phase. This

examination phase makes it possible to determine whether

the complaint is well-founded and whether it justifies an

intervention if it reveals an administrative malfunction,

or highlights special circumstances that may justify the

administration's benevolence.

� If the complaints seem justifiable, the delegates

choose to intervene at the local public services by tele-

phone, for cases that can be settled quickly through this

channel, or preferably in writing. Their letters are care-

fully drafted using legal arguments or facts that justify

their intervention.

In reality, the delegates are often asked to intervene in sit-

uations where the complainant is right but cannot convince

the administration about it alone. The name "delegate Medi-

ator of the French Republic" then makes all the difference

(see the case on page 50).

Mrs J was hospitalised in 1992. Considering herself a victimof medical error, she filed a demand for indemnity. After inves-tigations, the hospital sent her a letter in 1997 informing herthat "it had contacted her insurance company to determinewith it the responsibilities and how to settle the matter ami-cably". Then, she received no further information concerningthe matter, despite several reminders. Since her disability hadmeanwhile been recognised, thus enabling her to receivebenefits as a disabled adult, she decided not to take any legalaction against the hospital, given that she did not have enoughresources to bear the cost thereof. However, when she learned that a delegate Mediator of theFrench Republic was accessible in her municipality, shedecided to take up the matter again in June 2004. After a letterfrom the delegate Mediator and several reminders by phone,the hospital finally informed Mrs J that her case was still beingexamined and that she would be kept informed about futuredevelopments.This was how a case of demand for indemnity, which seemedto have been completely forgotten, was reopened.

Significa

ntmediations

Getting closer and beingmore attentive to people









Orienta Humanising the strictness of law

The delegates' intervention can also be justi-

fied, in the absence of abuse or malfunction, by

the fact that it enables the administration to

sometimes take into account the specificity of

certain situations while applying general and

impersonal standards (see the case on

page 51).

Mr X, a corporate executive, is dismissed for economic rea-sons in September 2003. In November of the same year, hemoves, and notifies the national employment agency about it.Then every month, he performs the required monthly tele-phone update to declare his situation. But on 18 May 2004, heis informed that his name had been deleted from the list of job-seekers and that he must reimburse the unemployment bene-fits paid to him in March and April, i.e. about 4,000 €. Reason:he had failed to respond to an invitation letter… sent to himat his former address!

Nonsuit despite his good faith and strict compliance with allthe administrative procedures, Mr X referred the matter tothe delegate Mediator of the French Republic, who contactedthe national employment agency immediately. He remindedthe agency that what Mr X was reproached for – not callingat the agency as instructed – was due to an administrativeerror, since the agency had not taken into account the changeof address it had been notified about by Mr X.

Shortly after this intervention, Mr X was re-registered on thejob-seekers' list, and his right to unemployment benefitsrestored.

Miss G received at homea notification to pay a finefor using a bus withoutholding a ticket. Shedenied the accusations,stating that according tothe notification, the per-son caught in the bus didnot present any identifi-cation document. There-fore, anybody could havegiven her name andaddress. Moreover, thedate of birth indicated onthe notification letter was incorrect.Nevertheless, the company running the transport networktogether with the metropolitan district replied that until provedotherwise, the information contained in the notification letterwas valid. As a result, Miss G was to pay this fine or else itwould be increased. It was then that she contacted the dele-gate Mediator of the French Republic.

This latter reminded the company that pursuant to the codeof criminal procedure, a notification letter was valid until proofto the contrary only if the offender had produced his/her iden-tification documents, and not when the data collected by cer-tified officials had been entirely based on oral information.Otherwise, innocent citizens, whose identities may have beenusurped by offenders, could be prejudiced, which was thecase of Miss G. Once the delegate's letter was received, thecase was closed.

Absurdities and abuse of

bus ticket control (the Gironde)Signifi

ca

ntmediations The national

employment agency

rectifies its error (the Gard)








tion


Remission of a debt due to high-

level precariousness (the Pas-de-Calais)

For the 2003/2004 academic year, Miss L, a student, wasrefused a higher education grant which she had had for thepast four years. In fact, in accordance with the decision toreduce this grant (due to a new method of calculating thenumber of kilometres travelled between her home and theschool), she was no longer entitled to this grant for the aca-demic year in question. Unfortunately, Miss L had beencounting on this grant to pay the rent for the flat she wasrenting with her brother, also a student. She, therefore, sought the help of the delegate Mediator ofthe French Republic. Using as argument Miss L's honesty – who could in no wayhave predicted this situation – as well as her undertakingto pay her rent, the delegate intervened at the chief aca-demic officer's office.Following this intervention, the academic commission incharge of allocating grants accepted to re-examine Miss Land her brother's case with benevolence and, in view oftheir situation, to grant each of them the sum of 144€ fromOctober 2003 to March 2004.

Grant lost, academic year in jeopardy (the Nord)

Simplification

Helping improve administrative practices

� Apart from the individual situations they are

required to handle, the delegates are privileged

observers of administrative practices. Thanks to

their intervention, they can help improve these

practices and, thus, the working of public services.

This new dimension of the delegates' activity tends

to be reinforced and to become their third "func-

tion", in addition to the settlement of disputes, and

information/orientation. Therefore, they are prob-

ably likely to contribute to a dimension of the State

reform, less visible than the one that passes

through laws and decrees, but which are equally

essential: the one that concerns the day-to-day

relations between the public services and the cit-

izens (see the case on page 52).

� But the complaints sent to the delegates are

not always well-founded. Sometimes the admin-

istration has simply applied the law, and the situ-

ation of complainants does not justify particular

benevolence. Such misunderstandings result, in

particular, from the fact that the parties concerned

do not always understand the meaning of the lett-

ers they receive and the decisions taken about

them.

In this case, the role of the delegate Mediator of the

French Republic is to explain, in clear and simple

terms, why the decision being contested is well-

founded, and why it is impossible to try anything.

This form of "civil pedagogy" also merits to be

recognised as a modest but tangible contribution to

social cohesion.

Mrs B and Mr R, homeless common law husband and wifesince 1999, obtained in August 2003 an accommodation reser-ved for people with modest income. In October 2003, won-dering why their housing benefit was no longer being paid,they learned that Mrs B was owing the sum of 10,758.94 asexcess family benefits received between 1997 and 2002. Thisdebt, therefore, justified the withholding of all Mrs B's per-sonal allowances, housing benefits and the minimum bene-fit paid to those with no other source of income, i.e. 361.41€

a month. Considering the precariousness of their situation,the couple then asked the Social Security Office to restorethese benefits, or to reduce the amount withheld.Unable to obtain scheduled repayments despite help fromthe association in charge of their social support, the couplesought the help of the delegate Mediator of the French Repu-blic. This latter intervened at the Social Security Office, under-lining the lowness of Mr R and Mrs B's income (25€ a month,after paying the fixed accommodation charges). Insisting ontheir big distress and their big health problems, and to preventthem from becoming homeless once again, the delegaterequested for an exceptional remission of Mrs B's debt freeof charge, or the reduction of the amount withheld from herbenefits.The social security office accepted to exceptionally reduce to180€ the amount withheld from Mrs B's monthly benefits.

Significa

ntmediations


Mr R. is almost blind. As a result, the COTOREP (technical com-mission for orientation and occupational reclassification) hasgiven him a permanent disability card, with 95% disability level. Inaddition, pursuant to Article L. 321.4 of the social security code,Mr R is to be reimbursed his transport expenses in connectionwith his long-term affection, for two years starting from 25 July2001. At the end of this period, Mr R applied for an extension of thisright, appending to his application a medical certificate attest-ing to the fact that his situation had not improved. Despite repeated reminders (letters of 31 July, then of 12 Novem-ber 2003), Mr R did not receive any reply from the State healthinsurance office. It was then that Mr R decided to seek the helpof the delegate Mediator for the French Republic. The delegateimmediately intervened at the State health insurance office tofinally obtain some information. This latter informed him that themedical examiner of the State health insurance office had actu-ally approved the renewal of the Mr R's entitlements since 13August 2003. But no information pertaining to the granting orrenewal of the said entitlements had been sent to any of the par-ties concerned! Conscious of these shortcomings revealed through the dele-gate's intervention, the State health insurance office has decidedto change its practices and to be sending information letters to thecontributors concerned by such measures.

A State healthinsurance office decides to improve the provisionof information to social securitycontributors (the Loiret)

Partnership


a u s e s - d i a l o g u e - l i t i g at i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co

alfunc t ion-publ icser v ices- delegates- just-respec t-solut ions- informing-proximity

alogue-litigation-equity-simplifying-listening-rights-victims-remedy- concil iation-fses-dialogue-l it igation-equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalities-malfunction-publicservices-delegates-just-re

ses-dialogue-l it igation-equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalities-malfunction-publicservices-delegates-just-re

s e s - d i a l o g u e - l i t i g at i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l ic s e r v i c e s - d e l e g at e s -

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t

Building a partner network

� The delegates' mission requires networking. It is first

within their department's major public services that they

must have privileged contacts, to favour quick settle-

ment of the disputes referred to them. Such a network of

"correspondents" will not only accelerate the handling of

such complaints, but will also, and more largely, facilitate

dialogue and create an atmosphere of confidence.

That is why once appointed, the delegates make them-

selves known to the services with which they are bound

to work regularly: government departments (regional

directorates for employment, and for social affaires, tax

offices, etc.) and local governments (town councils,

county or regional councils), organisations entrusted

with a public service mission (the social security office,

the organisation managing unemployment contributions

and payments, etc.), public companies, etc.

Elected representatives are also natural partners of the

delegate Mediators of the French Republic: legislators,

mayors, but also chairmen of county and regional coun-

cils who may be concerned by disputes between their

local authority and the constituents.

Significa

ntmediations

In this field, initiatives have already been taken to pub-

licise the role of delegates. They must be reinforced and

generalised.

� The delegate Mediators of the French Republic also

maintain regular relations with other institutional medi-

ators - academic mediators at the ministry of education,

mediators at La Poste (the French postal service), SNCF

(French national railway corporation), RATP (the body

managing the Paris public transport system), EDF (French

electricity company), tax conciliators – to favour the sett-

lements of disputes referred to them but which are out-

side their competence. Moreover, they create a network

with the different players involved in the field of legal

counselling and amicable settlement of disputes, in order

to re-channel the demands that do not come within their

activity fields. They must also know the addresses and

the field of intervention of court officers (legal concil-

iators, and, in particular, lawyers' office hours), legal-

counselling services, associations, social workers, etc.:

so many partners to whom they can direct people that

encounter difficulties not related to public services.

Collaboration with social workers

� In 2004, the Mediator of the French Republic took

new initiatives to develop this partnership, for instance

by going personally to the legal-counselling centres, like

in Nantes or Denain, to meet all the people involved in

providing legal-counselling services, or by organising,

like in Nimes, a debate with social workers. This expe-

rience has confirmed the need for the delegates' net-

work to systematically establish relations with social

workers and their employers, especially the county coun-

cils, so that a better knowledge of the respective roles

will enable them to become more efficient and comple-

mentary vis-à-vis a public that is often the same.

� To favour the development of these partnerships, the

Institution has been giving priority, since 2002, to the

creation of delegates' offices within local organisations,

public services, and legal-counselling organisations

whose working principle is itself partnership.

Among the delegates' partners is, of course, the Insti-

tution's headquarters, which provides indispensable sup-

port for their action, coordinates their networks and

strives for collegiality among the delegates themselves,

thereby favouring the exchange of their experiences and

the homogeneity of their practices.


o n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s -

- re- establ ishing-reformscauses-

fighting-inequalities-malfunction-espect-solutions-informing-proximity-re-establishing-reforms-

espect-solutions-informing-proximity-re-establishing-reforms-

- j u s t- re s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g -

t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e -

t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e -

An increasingly tighterterritorial network

Recruitment is open to all

socio-professional categories.

But a good knowledge of the

administration or a solid legal

background is essential.

But the delegates are increa-

singly "young retired persons".

Half of them are less than 60

years old, and the average age

is 57 years.

This figure was very low until

2000, but the number of women

tends to be on the increase.

As of 31 December 2004, the Mediator of the French Republic had 292 delegatesthroughout France, i.e. 10 new delegates were appointed in one year. Out of these292 delegates, 23 were assigned to coordination activities, 147 to the population livingin neighbourhoods concerned by the urban policy, while 122 correspond to the Insti-tution's traditional offices, especially in prefectures.The Mediator of the French Republic continued setting up new sites in neighbour-hoods concerned by the urban policy started in 2000, by opening offices for delegatesin sensitive urban areas of some departments that did not yet have any delegates,such as the Loire-Atlantique. It also reinforced their presence in departments thatalready had one but where the territorial meshing needed to be reinforced, such as theGard, Haute-Savoie or Paris. It is also to ensure better territorial coverage and makethe Institution more accessible that departments that had only one delegate at theprefecture were sent a newdelegate. This is, for instance,the case for Côte d'Or(Chenôve) or the Saône-et-Loire (Chalon-sur-Saône). The territorial organisation andthe network's managementwere also consolidated byintroducing a new type ofcoordination in three newdepartments: the Isère, Vau-cluse and Paris. Henceforth,23 departments, i.e. 150 dele-gates, enjoy the support of acoordinator. 22 out of these 23coordinators also work as delegates.

About three-quartersof the delegates come from the public sector

in the broad sense of it.

55.4%

of the delegatesare retired persons.

27%

of the delegates are women.

Who are the delegates?

Getting closer and being more attentive to people









Training

Landes1

Gironde2+5

Charente1

Charente-Maritime

2

Vendée1

Morbihan2

Finistère1+1

Côtes-d’Armor1

Mayenne1 Sarthe

1

Orne1

Eure1

Oise1

Nord2+8

Aisne1

Paris1+7Somme

1

Pas-de-Calais

3+5

Val-de-Marne2+5

Seine-St-Denis1+7Hauts-

de-Seine

1+5Seine-Maritime

1+7

Manche1

Yvelines1+6

Essonne1+5

Val-d’Oise1+5

Seine-et-Marne2+3

Calvados1

Vienne1

Indre1

Cher1

Loiret1+1

Loir-et-Cher

1

Eure-et-Loir1+1

Indre-et-Loir1+1

Maine-et-Loire

1

Ille-et-Vilaine2+4

Loire-Atlantique

2+2Nièvre

1

Yonne1

Vosges1

Moselle2+2

Meuse1

Ardennes1

Marne1+2

Aube1

Haut-Rhin1+4

Bas-Rhin

1+5Meurthe-et-Moselle

1+2

Côte-d’Or1+1

Haute-Marne

1

Gers1

Pyrénées-Atlantiques

2 Hautes-Pyrénées

1

Dordogne1

Lot-et-Garonne

1Tarn-et-Garonne1+1

Haute-Garonne

Ariège1

Hérault1+4

Gard1+4

Savoie1

Isère1+3

Drôme1+2

Ardèche1Lozère

1

Cantal1

Vaucluse1+2

Var

Tarn2+2

Lot1

Ain1

Jura1

Doubs1

Saône-et- Loire

1+1

Rhône 2+7Loire

1

Allier1

Corrèze1

Creuse1Haute-

Vienne1

Deux-Sèvres

1

Haute-Loire1

Puy-de-Dôme1+1

Aveyron1

Aude1

Pyrénées- Orientales

1

Bouches-du-Rhône 1+9

Alpes-Maritimes2+2

Haute-Corse

1CorseduSud1

Hautes-Alpes

1

Haute-Savoie

1+2

Territoire de Belfort

1

Haute-Saône 1

Alpes-de-Haute-

Provence1+1

3+41+2

Departments with delegates inside the town's political establishments, and with a coordinator

Departments with delegates inside the town's political establishments

Departments likely to have delegates inside the town's political establishments

Departments with delegates at the prefectures or sub-prefectures

Number of delegates at the prefectures

Number of delegates inside the town's political establishments

Guadeloupe1+2

Martinique1

Guyane1+2

Réunion1+2

Saint-Pierreet Miquelon

1

Polynésie1

Nouvelle-Calédonie

1

Walliset Futuna

1

Mayotte1

2

+4

Network of departmental delegations









Collegial and complementary activities

As from 2002, the Mediator of the French Repub-

lic decided to post a coordinator to departments

that have at least four delegates. In addition to

representing the Institution at the local authority

level, the said coordinator is entrusted with assist-

ing the delegates in his department, maintaining

a link between them and the Institution's head-

quarters and, more generally, fostering collegial-

ity among the delegates and developing

partnerships. This function is not a hierarchical

grade and is exercised in the same voluntary spirit

as that of a delegate.

In fact, so much importance is attached to this

collegial dimension that experiments have been

started, whereby delegates who are still alone in

their department can participate in the work of

the team in a neighbouring department. For exam-

ple, the delegate of the Loire is involved in the

collegiate activities of the team of delegates in the

Rhône.

Towards a critical watchdog for administrative practices

The development of these new forms of work, the

effectiveness of which shall be increased through

the deployment of the Intranet network, will rein-

force the afore-mentioned role of "critical watchdog

for administrative practices". At another level, the

regular working meetings organised by the Medi-

ator of the French Republic with the coordinators

equipped and connected by the summer of 2005.

At the same time, the investment efforts started

in 2003 were continued, to progressively equip all

the delegates with laptop PCs that have the

required characters, if the devices provided to some

of the delegates by the prefectures via the urban

policy loans turn out to be heterogeneous or obso-

lete. Therefore, in 2004, the Mediator of the French

Republic bought 50 laptop computers and printers

meant to replace some obsolete ones, or for dele-

gates without any computers. At the end of this

year, 157 delegates have a computer provided by

the Institution (compared to 107 the previous year),

i.e. 57 % of the delegates (42 % in 2003).

� To improve the quality and effectiveness of

the delegates' activity, the Institution also rein-

forced its training offer. In 2004, 239 delegates

(compared to 165 in 2003) took part in one or more

initial or continuous training programmes organ-

ised according to the same modalities as the pre-

vious years, as more delegates were recruited.

Considering the success of the three-day pro-

gramme organised on an experimental basis

according to subjects at the end of 2003, the

experiment was repeated and a seven-day pro-

gramme was thus also organised on foreigners'

rights and on tax and social matters. 93 delegates

took part in this programme, in groups of 15.

Moreover, 101 delegates took part, in small

groups, in one or two-day training on the use of

computer and the Intranet, necessary tools in the

exercise of their function.

make it possible to

maintain close ties

between the field

and the headquar-

ters, and to

enhance, through

the delegates'

observations, the

Institution's pro-

posal potentials.

In the same spirit,

the Mediator has

decided to tour the

departments and

regions to meet his

delegates. Since June 2004, he has been to

Strasbourg, Arras, Nantes, Denain, Nîmes and

Lyon, and has established contact, during depart-

mental or regional meetings, with nearly 100

delegates. These trips are also aimed at foster-

ing the Institution's partnership initiatives, by

meeting many local players: social security

offices, local representatives, magistrates, legal

counsellors, heads of tax offices and tax concil-

iators, as well as associations and social workers.

Finally, these meetings are equally aimed at gett-

ing the Institution known better, improving public

orientation and settling the cases handled by the

delegates with the help of all these players.

New tools at the service of quality

� The creation of a network and an Intranet por-

tal enabling the delegates to connect to the Medi-

ator's central information system was one of the

Institution's major projects. It was implemented at

the end of the first semester of 2004, as announced

in the 2003 report. The creation of the Intranet site

was completed, the virtual private network estab-

lished, and 99 delegates were able to connect to it

in the course of 2004. Those who wished were

given prior training on the use of these tools. These

delegates have twenty hours of Internet connec-

tion per month, thus enabling them to access the

documentary resources placed at their disposal or

listed by the Institution, but also to backup their

activity related data and communicate with each

other and with the headquarters via e-mail. The

Mediator's target is for all the delegates to be

The development and accessibility initiatives have paid off;

in 2004, almost half of these delegates have offices in local

establishments: legal counselling centres or similar

organisations (legal units), public service buildings or

municipal buildings.

Where are the delegates located?

Distribution of delegates according to type of

establishment, % of number of delegates

Counsellingcentres PSB

Municipalbuildings

OthersPrefectures / similar organisations

25 %

53 %

1 %

15 %

6 %


a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d y-

o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t -

e s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u e -

tigation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-

nequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-

roximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ing-

s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o n -

u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e -

a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g -

i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n -

i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n -uses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-

spect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- conci l iation-

hting-inequalit ies-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation-

uity-simplifying-listening-rights-victims-remedy- concil iation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-



a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -




l i t i g einjustices


u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -



A willto reform





















s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t



Thanks to his observer position, the Mediator of the French Republic detects bad

administrative practices, the inconsistencies and malfunctions of our legal system,

as well as injustices resulting sometimes from the application of the rule of law.

Endowed with the power to push for reforms, he may then propose any measure

than can help improve them in

future. He is also empowered to

play the role of a real agitator of

ideas to favour the adaptation of

law to the evolutions of society.


F rom individual

mediation to reform

Four societal debates resulting from reform requests ................................... p. 58

The Mediator’s new reform proposals ............................................. p. 60

When the Mediator is proved right ...................................................... p. 64

Reform proposals to be publicised ....................................................................... p. 68

Cases whose examination started in 2005 .................................................... p. 70








Inconsistenci In 2004, the Mediator of the French Republicreceived 93 reform requests from legislators,delegates, but also from private individualsentitled to directly refer cases to him.

Most of the requests were in line with bigsocietal debates, which confirms the fact thatthe Mediator of the French Republic isregarded as an active player in the public lifeand State reform.

Four societaldebates resulting from reform

requests


Legal

framework

Pursuant to Article 9 of the law

dated 3 January 1973, the

Mediator of the French Republic

is empowered to make any

proposals which may improve

the workings of an

administration or a public

service. Moreover, when it

appears to the Mediator of the

French Republic in respect of a

claim which has been referred to

him, that applying the relevant

legislation or regulations would

result in an injustice, he may

recommend to the organisation

or body concerned such solutions

as may result in an equitable

outcome to the applicant's case.

This mission is a logical

extension of the individual

mediation task, since very often,

a specific case reveals a general

malfunction. The role of the

Mediator of the French Republic

is not just to correct iniquities on

a case by case basis, but also to

prevent them from reoccurring,

by proposing reforms. His

competence in terms of reforms

was clarified and extended by

the law of 12 April 2000 on the

citizens' rights in their relations

with the administrations. This

law henceforth authorizes

physical persons or corporate

bodies to directly submit reform

requests to the Mediator of the

French Republic, and gives him

the right to make such reform

requests himself. These

evolutions resulted in a

noticeable development of the

Institution's reform initiatives.

Iniquitiesci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec







Disabled persons

2004 was characterised by

important advances in

terms of the rights of dis-

abled persons (the law of

30 June 2004 on solidar-

ity for the autonomy of

elderly persons and dis-

abled persons; the bill on

the equality of rights and

opportunities, participation

and citizenship of disabled

persons; the law of 11

February 2005 providing

for equal rights and oppor-

tunities, as well as the

participation and citizen-

ship of disabled persons).

This increasing concern in

society is manifested in

the growing reform

requests on this issue.

They underline, among

others, the income differ-

ences experienced by dis-

abled persons, depending

on whether they receive

disabled adult benefits or grants from the special

fund for disabled persons. Or the situation of

highly disabled civil servants who, in order to

obtain their pension benefit, were subjected to

the ordinary conditions of age provided for in

the civilian and military pensions code. There

was also a request advocating for the early

retirement of parents of disabled children.

Pension

20% of the reform requests (18 out of 93) con-

cern pension schemes, which shows that the

law of 21 August 2003 has not closed the

debate. Several requests relate to the conse-

quences of this law for certain categories of per-

sons that consider themselves forgotten or

prejudiced. They, thus, tackle the issue of female

civil servants with several children, for whom

the calculation of pension benefits has been

changed as a result of the change in the rule on

increase for children. Or the difficulties encoun-

tered by doctors in departmental mother and

infant welfare services while trying to validate

part of their years of pensionable service.

Others propose new reforms. For example,

depriving a divorced parent, who had voluntarily

failed to contribute to

his/her children's rear-

ing expenses, the right

to survivors' benefit

pension. Or ending the

differences in the hand-

ling of benefits for

spouses of police-

men/women dying in

service, which is based

on whether they died

before or after 1982.

This request has led to a reform proposal by the

Mediator.

The Harkis

The law of 23 February 2005 on national recog-

nition and national contribution in favour of repa-

triated French citizens has given more visibility

to the Harkis and the problems they encounter.

Reform requests concerning this community still

abound. A claimant even talked about creating a

"mediator" in charge of ensuring the respect of

the rights of Harkis, and placing such an insti-

tution under the authority of the Mediator of the

French Republic. However, the general compe-

tence of the Mediator of the French Republic in

accordance with the law of 3 January 1973

makes the creation of such an institution unnece-

ssary.

Death duties

Death duties is part of a Finance act reform in

2005. Several reform requests were also made in

this respect. One of them underlines the unfair

situation in which partially adopted children find

themselves, compared to fully adopted ones.

The Mediator has requested for clarification on

this issue.


F r o m i n d i v i d u a l

mediat ion to reform

es

“The reform power

of the Mediator


may not be comparable

to that of political

representatives elected

through universal

suffrage. But, given his

experience and moral

authority, he can play

an original role and give

considerable impetus

to improve the law

and make administrative

practices more human.”

44%of the reform requests

originated directly from

the Mediator.

Compensata u s e s - d i a l o g u e - l i t i g at i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- c

u b l i c s e r v i c e s - d e l e g at e s - j u s t- re s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h

mpl i f y ing- l istening-r ights-v ic t ims-remedy- conci l iat ion-f ight ing- inequal i t ies-mases-dialogue-l it igation- equity-simplifying-l istening-rights-victims-remedy- conci l iation-fighting-inequalit ies-malfunction-publicservices-delegates-just-

uity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- conci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec t-solut ions- inform

function-publicservices-delegates-just-respect-solutions-informing-proximity-re-establishing-reformscauses-dialogue-litigation-equity-simplifying-listeni

s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l


The Mediator submitted 21 new reform proposals to the publicauthorities in 2004. They concern all aspects of life. Some of themaim at stopping tragic situations, whereas other more modest onestackle small everyday problems,which when juxtaposed, tend tobecome societal problems.

The Mediator'snew reformproposals


Recognising asbestos related diseases not included on the social security code list

Due to the scandal about the victims of asbestos,

the government created in 1999 an early retire-

ment pension benefit for people that have con-

tracted an occupational disease as a result of this

mortiferous fibre. However, asbestos may be the

cause of a large number of other illnesses not

included on the list contained in the social secu-

rity code. For this reason, some asbestos victims

could be refused early retirement benefits. Never-

theless, there is an article in the social security

code, which stipulates that an illness may also

be recognised as an occupational disease through

the decision of a regional committee in charge

of recognising occupational diseases, even if this

illness is not on the list compiled by social secu-

rity. The decree of 3 February 2005 tookaccount of the Mediator's proposal that earlyretirement benefit be granted when the ill-ness is recognised by this committee asasbestos related, even if it is not on the listcontained in the social security code.

Even a one-euro allowance must be paid!

For a low-income family, even the smallest

amount of social security benefit is welcome.

Now, out of concern for proper administration,

the regulation requires the administration not to

pay any allowance (housing benefit, personalised

housing benefit, etc.) to a potential beneficiary

if the amount of this allowance is below a specific

amount, currently 24 euros per month, even if the

person fulfils all the conditions for this allowance.

This is a source of incomprehension and dissat-

isfaction for potential beneficiaries who see in

this regulation more of an injustice than a good

management measure. Given that they are low-

income earners, this regulation deprives them of

a non-negligible sum, which can amount to 288

euros per year. Of course, in some cases, the

government also waives small sums payable to it.

Nevertheless, this parallel is pertinent only in

theory, because the administration and the con-

34%of new reform proposals

concern the social sector.




ionAdaptation

co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o n -

h i n g - re fo r m s - c a u s e s - d i a l o g u e - l i t i g at i o n - e q u i t y-

l func t ion-publ icser v ices- delegates- just-respec t-solut ions- informing-proximity-re-respect-solutions-informing-proximity-re- establishing-reformscauses-dialogue-l it igation-

ming-proximity-re- establ ishing-reformscauses- dialogue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- conci l iat ion-f ighting- inequal it i

ng-rights-victims-remedy-conciliation-fighting-inequalities-malfunction-publicservices-delegates-just-respect-solutions-informing-proximity-re-establishin

u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g -


stituents are not in

the same situation

in terms of the

importance attached

to these small

sums. In collabora-

tion with the social

security offices, anx-

ious to improve their

relations with the

citizens, the Medi-ator, therefore,proposes to can-cel this rule and toalways pay anallowance if theapplicant fulfils allthe required con-ditions, regardlessof the amount inq u e s t i o n . T h e

inconveniences suf-

fered by the organisations managing these

allowances due to the monthly payment of these

low allowance amounts could be averted by intro-

ducing a payment in quarterly, six-monthly, or even

annual instalments.

No more headache for French first names

Until the sixties, the administration had this habit

of automatically adding a French-sounding con-

sonance to first names of newly naturalised for-

eigners, on their national identity cards. Thus,

Roberto became Robert, and Friedrich was

changed to Frédéric. Now, this change of first

name was not duly mentioned in the decree on

naturalisation. The problem becomes apparent

when naturalised persons wish to renew their

identity cards. If their new first name appears on

the naturalisation decree, a simple but long pro-

cedure at the court of first instance makes it poss-

ible to correct their birth certificates and, thus,

renew their identity cards with the French first

name. Otherwise, the renewal entails a much

more complicated procedure, known as change

of first name, which requires the intervention of a

lawyer and the payment of 900 euros, despite the

fact that the person has been using this Frenchi-

fied first name for years and that it was the admin-

istration that imposed it on him/her! TheMediator proposes to allow these personsaccess to the simplified procedure forFrenchifying first names, provided for in thelaw of 25 October 1972, and that this Frenchi-fisation be automatic when the person con-cerned produces the proof that theadministration is already using this Frenchfirst name to communicate with him/her. Arti-cle 150 of law 2005-32 dated 18 January 2005on the social cohesion programme is fully inline with his proposal, by stipulating that "The

demands for Frenchifisation of first names filed by

persons that have acquired or recovered the

French nationality and who justify the use of first

names previously Frenchified at the initiative of

the French authorities shall be granted without

any conditions as regards time".

Call for dialogue to define safety standards for swimming pools

As a result of several acci-

dents involving children, the

public authorities wished to

reinforce the safety stan-

dards for private swimming

pools. The law obliged,

especially, owners of prop-

erties rented on a seasonal

basis to install these new

safety devices by 1st Janu-

ary 2004. Due to the short-

age of the said devices, this deadline was shifted

to 1st May 2004, without solving the problem of

shortage of available devices. Honest lessors were

exposed to serious sanctions. The Mediator, there-

fore, proposed that the different players in the

sector (ministerial services, professionals, con-

sumer security commission, AFNOR) confer with

each other in order to change the security stan-

dards and, thus, make them easier to apply, or at

least to agree on a new, more realistic adapta-

tion deadline.

“Early retirement

pension has been

granted to victims

of occupational

diseases caused

by asbestos, even

though these

diseases are not on

the list established

by social security.”

Equalityauses- dialogue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- con








� Clarifying the administrative form that

everybody must fill in when a new construction has

been completed on his property. Returning the said

form within 90 days in order to obtain a temporary

property tax exemption.

� Introducing cooperation obligation for the

departmental medical committee and the national

health service medical examiner, whose opinions are

required before regional and hospital employees can

be paid a subsistence allowance in case of illness

lasting more than one year.

� Introducing a new method of calculating the

employment premium, to avoid wronging some

people that work at weekends.

� Specifying in advance the items that an Internet

user requires to fill in certain administrative forms

on line.

� Introducing the obligation for the French health

insurance organisations to reimburse health care

charges incurred by the insured parties while

travelling outside France. A ruling has met this

Mediator's demand for all treatments received

within the European Union and the European

Economic Area.

� Creating a permanent hotline service for and

increasing the budget allocated by the Foreign

Affairs ministry to the foreigners movement division

based in Nantes and which handles the family

reunification applications filed by political refugees

in France.

� Simplifying the method of applying for first

name Frenchifisation (see page 61).

� Harmonising the pension entitlements of former

employees receiving disability pension, who wish to

take up an activity again.

� Providing better information on the various

rights pertaining to the succession of an adopting

parent for the two categories of adopted children,

namely “partial” or “full adoption”.

� Simplifying the payment of allowances to victims

of industrial accident in a former French possession

after their repatriation to Metropolitan France.

� Payment of early retirement benefit to all the

victims of asbestos related occupational illnesses

(see page 60).

� Equal treatment in terms of the buying back of

years of pensionable service, between the former

public sector and private sector employees granted

amnesty after being convicted by the French justice

following the Algerian war. This problem was

satisfactorily handled in the bill on national

recognition and national contribution to repatriated

French citizens.

THE 21 REFORM

PROPOSALS FOR 2004




Moralci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec







� Possibility for the social security tribunal to

decide on the penalty amount to be imposed by the

state health insurance offices on employees going on

bogus sick leave. The health insurance law of 13

August 2004 took the Mediator's proposal into

consideration.

� Extending to jurists working in law firms the

decree which enables jurists working in companies to

automatically obtain the title of lawyer at the end of

eight years of activities.

� Demand for dialogue on the development of new

standards for the devices used to protect private

swimming pools (see page 61).

� Ending the difficulties encountered by people

who have worked at GRETA (the continuous

education section of the ministry of education)

before being transferred to secondary education, so

that these years will be taken into account in their

retirement credits.

� Increasing the retirement level of fire brigade

commanders as promised in 1991.

� Payment of all allowances, no matter how small

the amount (see page 60).

� Better cooperation between the Education

ministry and the Agriculture ministry for the award

of scholarships to students of Agriculture colleges

who decide to change section.

� Access to the centralised database for stolen

vehicles created for the Schengen area at the

prefectoral services in charge of issuing car

ownership certificates (see page 45).

� Equal treatment in terms of the survivors' benefit

pension paid to spouses of policemen/women who

died in the course of service.

“The role of the Mediator of the French

Republic is not just to correct iniquities

on a case by case basis, but also to prevent

them from reoccurring, by proposing reforms.”

Discriminationauses- dialogue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- con







Several reform proposals made by the Mediator of the FrenchRepublic in 2004 were received favourably. This new legislative andregulatory order put to an end some unjustified past subsistence andshould help improve "community life".

When the Mediator is proved right


Reinforced press freedom

Article 14 of the law dated 29 July 1881 on the

freedom of the press, later modified by the

decree law of 6 May 1939, contained a specific

provision on "foreign" publications. The Interior

minister could ban the circulation, distribution

or sale in France of foreign-language newspa-

pers or writings. This same thing applied even

to foreign newspapers or writings in French,

printed abroad or in France. At that time, this

power was given to the minister in order to pro-

tect public order against publications with sub-

versive tones.

This administrative ban, the actual range of

which grew within an extensive jurisprudence

(works of French writers translated or published

abroad were even considered as "of foreign ori-

gin"), had become discriminatory. The said law

was even contrary to the principle of the Euro-

pean Convention on Human Rights, according

to which the law must be applied equally to all,

regardless of origin, especially in the exercise of

the right to freedom of opinion and expression.

Moreover, the protection of public order against

propaganda and racists or terrorist threats could

be efficiently ensured through other laws. This

was why the European Court in Strasbourg had

made the following declaration: "The modified

Article 14 of the Law dated 1881 cannot be con-

sidered as necessary in a democratic society".

The Mediator of the French Republic, there-

fore, asked in reform proposal 03-R04 of2003 for the abrogation of this decree law.Decree 2004-1044 of 4 October 2004 abro-gating the decree law of 6 May 1939 on thecontrol of foreign press took this proposalinto account.

Right of each parent to vote and be voted for in school governing boards

For elections of parents' representatives to school

boards or to governing boards of secondary

schools, the rule was that only one parent per

family could vote and be voted for. For divorced or

separated parents, and when parental authority

is exercised by both parents, it was stipulated

that in the absence of a written agreement to

the contrary, the right to vote (and thus to be

voted for) was granted to the parent with whom

the child was officially living.

Thus if they had not obtained the necessary

17reform proposals met

with success in 2004

Justci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec










express agreement of the other parent, divorced

or separated parents, who did not have or shared

the custody of their child, were deprived of these

basic rights if they wished to involve themselves

in the management of the school attended by

their child.

Not only did this law have inequitable conse-

quences for the fathers or mothers concerned,

they seemed, in particular, to be out of touch

with the changes in the lifestyle and the law on

parental authority (law 2002-305 of 4 March

2002).

An adoption of the law in this field seemed all the

more important, especially since the afore-men-

tioned law of 4 March 2002 gave a legal basis to

alternating residence, which rendered inappli-

cable the law according to which the voting right

was conferred on the parent at whose house the

child normally lived.

The Mediator of the French Republic, there-fore, suggested that the right to vote and bevoted for in terms of the child's school boardor governing board be granted to each par-ent, regardless of family situation and with-out any need for a prior written agreement. This proposal was adopted by the Education mini-

stry, which changed the rule concerned, by pub-

lishing two statutory instruments in line with the

recommendations of the Mediator for the French

Republic. Therefore, pursuant to the decree of

17 June 2004, which modified the decree of 30

August 1985 on local public schools, "each par-

ent may vote and be voted for, provided, for par-

ents of minors, that they have not lost their

parental authority. They are entitled to only one

vote, irrespective of the number of children reg-

istered in the same school". The decree of 17

June 2004, which modified the decree of 13 May

1985, provides for the same measure for elec-

tions to the school board.

The right of defaulting social insurance contributors to seeklegal remedy

State health insurance offices may take sanctions

against social insurance contributors in case of

fraud or failure to fulfil their obligations. A social

insurance contributor on sick leave is not sup-

posed to leave his residence outside the autho-

rised periods he is allowed to do so, nor exercise

any activity. The least voluntary violation of these

rules may have serious financial consequences.

The defaulting contributor may be required to reim-

burse all or part of the sick pay received.

Now, in line with a constant jurisprudence of the

Court of Appeal, it was formerly impossible for

the tribunals in charge of social security related

litigation to take a decision on the appropriate-

ness of the sanction with regard to the charges.

The state health insurance office alone determined

the level of penalty imposed on the contributor.

This situation seemed contrary to the principles

of the rule of law, especially the right to a fair

hearing, which guarantees a right to contest deci-

sions made against insurance contributors, and

allows judges to check the proportionality of the

sanction with the infraction committed. By amend-

ing the health insurance law of 13 August 2004,

thus allowing tribunals to control "the appro-priateness of the fine imposed by the healthinsurance office for infractions committedby insurance contributors", the law-makerproved the Mediator of the French Republicright.

“Social insurance

contributors now have

the right to take a legal

action for sanctions taken

against them by health

insurance offices in case

of fraud or non-fulfilment

of their obligations.”









The issuing of divorce certificatesfor divorce by mutual agreement isno longer subject to prior paymentof registration taxes for capitalcompensation.

When a married couple jointly decides to divorce,

and provides for the payment of a capital com-

pensation in order to reduce the income differ-

ence between both the spouses, the spouses

conclude an agreement. If approved by a judge,

the said agreement becomes as enforceable as a

court's decision.

However, prior to the law of 26 May 2004, Arti-

cle 862 of the General Tax Code required that

the issuing of an enforceable divorce certificate

be subjected to prior payment of registration

taxes. If the said taxes were not paid, the parties

concerned could not be notified about the divorce

decision, neither could the decision be recorded

in the civil status register, nor be published in

the mortgage registry if it provided for the shar-

ing of real assets.

Moreover, pursuant to Article 1721 of the same

code, the spouse benefiting from the capital com-

pensation, i.e. the one with lower income, was

responsible for the payment of the said taxes.

Paradoxically, since notifications on judgements

for divorces pronounced against one party are

generally sent to the "opposing party", their

enforceable character was not subjected to prior

payment of the registration taxes. So, the tax

system for the different divorce categories did

not seem to correspond to the law-maker's wish

to favour divorce by mutual agreement.

To remedy this situation, the Mediator of the

French Republic recommended to the authorities

an alternative which consisted in modifying any

of the articles in question.

The Mediator's proposal was incorporatedinto Article 27 of the divorce law dated 26May 2004, which modified Article 286.Henceforth, enforceable copies of certifi-cates issued for divorces by mutual agree-ment are exempt from prior payment ofregistration taxes.

The nearest-hospital rule abrogated at last!

After thirteen years of perseverance, the Mediator

of the French Republic has finally been proved right!

On the recommendation of an attending physician,

for personal convenience or to benefit from state-

of-the art techniques, a patient may ask to be hos-

pitalised in a hospital other the one nearest to his

place of residence. Now, until the abrogation of

Article R. 162-21 of the social security code, social

security contributors had to pay the difference

between the amount charged by the hospital near-

est to their place of residence and the one charged

by the hospital chosen, if it turned out to be higher.

Clarificati

“The Mediator secures an undertaking

to harmonise the lateness penalty imposed

on taxpayers by the tax authorities (i.e. 9%)

and the late payment penalty payable

by the tax authorities in case of tax

relief (legal interest rate amounting

to 2.7% in 2004)!”




Reformsci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec







on “At the end

of 2004, the

Mediator

obtained

satisfaction

on the

institution's

oldest reform

proposal. It took

13 years of

mediation to

obtain the

adoption of the

proposal on the

"nearest hospital"

rule concerning

the reimbursement

of hospital

expenses.”

Many social security contributors complained

that they had only been informed after their hos-

pitalisation about the amount they had to pay as

a result of this rule, which is often unknown to

the parties concerned. To remedy this malfunction

and the unfair consequences of this situation,

the Mediator of the French Republic had first

proposed that the contributors be systematically

informed about the amount charged by the hos-

pital in which they were to be treated, and about

the financial consequences of being hospitalised

in a hospital outside their area of residence.

Since it was impossible for health insuranceoffices to provide this information, the Medi-ator had to ask for the total abrogation ofthe rule in question.

Despite the approval in theory of this abrogation,

expressed several times by the public authorities,

the application of this reform was delayed due to

technical problems and because the government

wanted it to be done within the framework of a

global reorganisation of the healthcare system.

This proposal, which was initiated in 1991, was

finally adopted through the publication of the

decree of 30 December 2004, in accordance with

the law on the funding of social security for

2004, which abrogated Article R. 162-21 of the

afore-mentioned social security code. As aresult, the nearest-hospital rule is no longerapplicable to social security contributorssince 1st January 2005.

Tax related lateness penalties to be harmonised

In 1998, the Mediator drew the attention of the

relevant ministers to the existing difference

between the rate of lateness penalty applied

to taxpayers and the legal interest rate used

to calculate the possible late payment penalty

payable by the tax authorities.

The law of 8 July 1987 fixed the rate of lateness

penalty at 9% per annum, whereas Article L. 208

of the tax procedure handbook provides that when

the State has to provide tax relief, the unduly col-

lected amounts shall be reimbursed to the tax-

payer, plus a late payment penalty amounting to

the legal interest rate fixed annually by decree. For

2004, this interest rate was 2.7%. It is clear that

taxpayers and the tax authorities do not have the

same price of time!

The Mediator asked several times for a change

in the relevant rules, but his requests were

repeatedly rejected. However, at a ministerial

meeting on 3 July 2003, the representatives of

the Ministry of Economy indicated that the

matter was being reflected upon by the gen-

eral directorate for taxes, and that it should be

reflected in the 2004 financial bill. But at the

end, the legislators did not adopt the amend-

ments submitted to align the lateness penalty

rate with the legal interest rate. The Media-tor's proposal had, nevertheless, gone along way. In fact, the Minister for Economyannounced in January 2005, within theframework of the "Taxpayer's charter", thatthe late payment penalty payable by theState and taxpayers would soon be har-monised. The said rate is expected to befixed at 6%.

IniquitiesCon








The mediator of the French Republic can only regret thefact that some of his reform proposals have been

ignored. Unjust situations that do not favourcitizens' support for the rule of law endure dueto this inertia on the part of the publicauthorities.

Reform proposals to be publicized


Family benefits: presumptiveincome assessmentshould be stopped!

The payment of certain family benefits, housing

benefits or personalised housing benefits is

subject to conditions of income. In principle,

the incomes taken into account are those made

in the calendar year prior to the period for

which these benefits are granted. Neverthe-

less, a presumptive income assessment method

has been introduced for persons whose total

net income for the reference year is lower or

equal to a threshold fixed at 812 times the

amount of the guaranteed minimum hourly

wage. Thus, for a salaried worker, the income

taken into account is determined by multiply-

ing by twelve the monthly payment received in

the month before the benefit is granted. For a

non-salaried worker, the incomes are fixed in a

totally presumptive manner at 1200 times the

amount of the guaranteed minimum hourly

wage. This obligatory procedure is aimed at

preventing the application of the common rule

of law from resulting, due to the difference

between the period of income assessment and

the period of benefit payment, in the granting of

a benefit based on income to a person or a cou-

ple whose current incomes are such that they

no longer have to receive this aid.

� The complaints received by the Mediator,

as well as the information gathered from the

social security office and the central office in

charge of the agricultural scheme, show that

this derogatory method is unfair. It creates big

threshold effects, depriving people with low

incomes and often precarious employment of

benefits. It penalises in particular young people

who, having done a temporary or part-time job

the month prior to their application for bene-

fits, find themselves without aid or with

reduced aid. For the social security offices, it is

also a source of problems, due to its manage-

ment complexity and the number of claims

resulting from it.

71reform proposals were

still being examined

by the public authorities

at the end of 2004.

sistencies











� The Mediator, therefore, made a reform pro-

posal asking that the presumptive income

assessment be abrogated, and that the appli-

cant's real income for the reference period be

taken into account instead. Three subsequent

decrees first abrogated the presumptive income

assessment in two situations: for adults entitled

to the disability benefit, concerning the calcu-

lation of the benefit itself and that of family

benefits paid on the basis of income (Decree

2001-1020 of 5 November 2001); for youths

below 25 and whose net monthly income from

a professional activity is below 1068 euros, and

1601 euros for a couple (Decrees 2002-384 and

2002-385 of 20 March 2002). Then two other

decrees (Decree 2003-579 of 27 June 2003 and

Decree 2003- 612 of 2 July 2003), pertaining

respectively to the personalised housing bene-

fit and the normal housing benefit, partially

went back on these measures by reintroducing

the presumptive income assessment for salaried

young people under 25 years.

� Nevertheless, the government announced

in September 2003 the suspension of these

decrees, without abrogating them. Consider-

ing the constant criticism of this income cal-

culat ion mode – both f rom members of

parliament and the economic and social Coun-

cil – the Mediator does not understand why it

is maintained.

Subject Completion date

17 adopted proposals

Informing social insured persons about the financial consequences of being 30 December 2004hospitalised outside their area ofresidence

Holiday for disabled persons 23 September 2004

Right to old-age pension – adding up the remaining 22 April 2004credits for the contribution periods

Taking into account the periods of activity within the European Union for the benefit 12 May 2004paid to employees wishing to stop workingbefore their 60th birthday

Conditions for granting parental leave to 30 December 2004government workers in case of adoption

Conditions for non-execution of attachment 26 March 2004in case of insolvency

Determining the date of birth to take intoaccount when the actual day and month 16 Décember 2004of birth are unknown

Certificate of origin for wards 30 December 2004not adopted by the State

Execution of divorcejudgements providing for capital 7 June 2004compensation

Information from CNRACL (pension scheme for local authority employees) on the situation of pensioners 12 January 2004exempt from social security contributions

Adjusting the conditions for affiliatingto the pensions scheme people 2 April 2004taking care of a disabled adult in their family

Cancelling the ban on foreign publications 7 October 2004Right of vote and eligibilityof both parents for the electionof parents' representatives 30 June 2004to local public school boards

Regularising the crises tax resulting fromthe income tax reform 29 June 2004of rental

Information to shared surviving 4 February 2004dependants' pension beneficiaries

Conditions for reimbursinghealthcare expenses made 29 September 2004outside France by persons covered by the French health insurance schemes

Judicial remedy for daily 23 September 2004rates related sanctions

Proposals yet to be adopted

Situation of the children of "Harkis" (Algerian soldiers who fought on the French side in the 6 May 2004war of independence) in terms of the right to exceptional assistance

Adjusting the conditions for granting and paying child-rearing 30 July 2004allowance

Payment of the fees of authorised agents 30 March 2004in case of bankruptcy

Reform proposals

completed in 2004

Implicatiauses- dialogue- l i t igat ion- equity-s impl i f y ing- l istening-r ights-v ic t ims-remedy- con







The work of the Mediator of the French Republic can be likened toa long-distance race. The unfairness and inconsistencies of ourlegislation gradually emerge as complaints are examined. Theselatter really reflect the fragility and disorganisation that menace oursociety. Based on these facts, the services of the Mediator collectinformation, establish contacts to assess the actual consequencesof the problems identified, and propose solutions thereto. Some bigissues have already been identified for 2005.

Cases whoseexaminationstarted in 2005


Respecting the rights of parents of stillborn babies

A series of complaints sent to the Mediator of the

French Republic revealed the inequitable nature

of the rules governing the paternity leave created

by the law of 21 December 2001 on the funding of

social security, for fathers of stillborn babies.

� This 11 days leave, plus the three days paid

leave granted by the employer, entitles a father

to daily benefits paid by the social security office.

However, to be granted this leave, a father has to

produce a birth certificate. The said certificate is

issued for children born alive and viable, whereas

they may even die before being registered by the

civil status office (in which case, a death certificate

is issued at the same time).

Fathers who had taken their paternity leave were

refused the corresponding daily benefits by their

health insurance offices because they had pro-

duced a certificate for a stillborn baby instead of

a birth certificate, a decision which was confirmed

by the state health insurance office.

A certificate of stillborn baby is issued by the civil

status officer in the absence of a medical certifi-

cate attesting to the fact that the child was born

alive and viable. This same thing applies when

the child is born alive but not viable, or for stillborn

children born after 22 weeks of amenorrhoea, or

weighing 500 grams.

� Apart from the financial damage they suffer

by not being paid the indemnity they are entitled

to as a result of their paternity leave, these fathers

of stillborn babies have a real feeling of injustice,

especially since the paternity leave is granted to

fathers of children who died after birth, but for

which a birth and then death certificate had been

issued.

Therefore, the Mediator of the French Repub-lic is planning to ask for a change in the sys-tem of indemnifying paternity leave, so thatfathers producing a certificate of stillbornbaby will also be entitled to the payment ofbenefits. Moreover, he had noticed in the course

of his activities that there was a difference

between healthcare establishments in terms of

the issue of medical certificates, whereas these

documents determine the certificates that will be

issued by the parents' civil status office. It would,

therefore, be useful to strive for the introduction of

a unique form which must be used by all (private

or public) hospital doctors nationwide.

onsParadoxes











Finally, the Mediator of the French Republicrevealed the inequality of situation regard-ing the possibility to register a stillborn babyin the family record book, at the parents'request. In fact, married parents, whom a fam-

ily record book was issued on the day of mar-

riage, may register their stillborn child in this

document. Now, such a registration is currently

not possible for unmarried parents whose first

child is a stillborn baby, since the said parents

do not have a family record book. It would be

desirable to eliminate this unequal treatment by

making it possible to issue a family record book

to unmarried parents whose first child is a still-

born baby and who wish to register the said child.

Fighting against forced marriages

Pursuant to Article 146 of the civil code, the bride

and bridegroom's consent to a marriage is a basic

condition for the validity of the marriage: "Thereis no marriage in the absence of consent".However, forced marriages are a reality that must

be fought against in order to preserve the freedom

of marriage and help people forced into marriages.

In the light of several cases referred to the

"Défenseure des Enfants", the defender of chil-

dren's right, concerning young girls aged between

15 and 18, with French or dual citizenship, who

had been married against their wish, the two

institutions have started a joint reflection on how

to prevent and fight against this situation more

effectively.

Overcoming and preventing over-borrowing by private individuals

The "personal recovery" procedure, also known as

"civil bankruptcy", was instituted by the law of 1st

August 2003. Its objective is to enable an exces-

sively indebted person to resurface, by wiping off his

debt following the winding up of his personal estate

by decision of the court.

� Complaints sent to the Mediator of the French

Republic drew his attention to some negative

effects of this procedure. People who have been

subjected to this procedure are registered on the

"fichier national des incidents de remboursement

des crédits aux particuliers (FICP)", the national

register for incidents pertaining to the repayment

of loans to private persons, managed by the Cen-

tral Bank of France. This register, which is acces-

sible to banks, contains the name of any person

who has been affected by bank related incidents.

This registration lasts for 8 to 10 years, depend-

ing on the recovery procedure applied (normal

personal recovery plan or receivership). For peo-

ple whose names appear in this register, this

implies that it will almost be impossible for them

to be granted any loan during this period, or even

to open a bank account (despite the existence

of a right to a bank account). In one of the cases

reported to the Mediator, a person who had been

subjected to an excessive debt procedure and

who had tried to create his own company after

this experience was not allowed by the banks to

open a bank account in order start his activity.

� Now, exclusion from banks often results in a

wider social exclusion. Thus, a legal tool created

to fight over-borrowing paradoxically creates con-

ditions for long-term exclusion. This is why the

Mediator of the French Republic plans to propose

a review of the modalities and the implications of

entering people's names on this register, and this,

in order to promote a real socio-economic rein-

tegration of affected persons. This reform would

not be all about creating a "right to bank inci-

dent", but about preventing honest citizens from

sinking deeper and deeper into a situation with no

way out.

It would also be necessary to remedy the in-

effectiveness of the social follow-up which,

according to the law, may be ordered by the judge

if this social follow-up is deemed necessary to

prevent a relapse. Treating the effect of over-bor-

rowing is essential to give a second chance to

people who have fallen into this spiral, but taking

preventive measures against the cause of this

widespread phenomenon (1,100,000 families have

appeared before the excessive-debt commission

since 1989) also seems indispensable.

At the heart of societaldebates:

the Mediator of

the French

Republic also

intends to use his

independence

and authority to

contribute in 2005

to debates which

raise issues that

are still masked,

such as

� police brutality

� the scandal ofwandering children

� the reliability of legalexperts' reports

� medical secret andaccess to rights

� imposition of doublepenalties

� etc.


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a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g

i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c

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t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i

u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s



b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - r e m e d y - c


u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h t s – v i c t i m s – r e m e d y – c o n c i l i a t i o n – f i g h t i n g – i n e q u a l i t i e s – m a l f u n c t i o n – p u b l i c s e r v i c e s – d e

R einforcing democracy and human rights


injusticesA strong commitment to the defence of human rights is progressively adding

itself to the initial function of the Mediator of the French Republic – handling

disagreements and individual disputes between a citizen and an

administration. This is a logical development, in that the institution is a

privileged observer of government practices. The recurrence of certain

malfunctions or iniquity situations may be a sign that there is a potential

infringement of these fundamental rights.


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e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g

u e - l i t i g a t i o n - e q u i t y - s i m p l i f y i n g - l i s t e n i n g - r i g h t st-respect-solutions-informing-proximity-re- establ ishing-reformscauses-dialogue-l it igation- equity-simplifying-l istening-rights-vict ims-remedy- conci l iat

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t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g

c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i

- d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i



c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r e - e s t a b l i s h i n g - r e f o r m s - c a u s e s - d i a l o g u e - l i t i g a t i o n - e q


l e g a t e s – j u s t – r e s p e c t – s o l u t i o n s – i n f o r m i n g – p r o x i m i t y – r e - e s t a b l i s h i n g – r e f o r m s – C a u s e s – d i a l o g u e – l i t i g a t i o n – e q u i t y – s i m p l i f y i n g – l i s t e n i n g – r i g h t s – v i c

Protection


110countries, including 37

European countries, currently

have a mediator or a similar

mediation institution.

“Active in the defence

and reinforcement

of public liberties,

the Mediator


also wishes to contribute

to the development

of national

and international

mediation institutions

across the globe.”

Activeparticipationin the NationalHuman RightsCommission(NHRC)

The presence of the

Mediator of the

French Republic in

the National Human Rights Commission (NHRC)

has reinforced the legitimacy of this new func-

tion. Since 1993, he has been a statutory mem-

ber of this commission created in 1974 and

comprising representatives of NGOs, human

rights defence associations, and qualified per-

sonalities. The NHRC makes recommendations

to the government on bills, international agree-

ments or on any other societal issues referred to

it by the Prime minister, or at its own initiative.

Topical issues in the previous year made it to

mobilise to fight racism, anti-Semitism, xeno-

phobia, and, generally, any form of discrimina-

tion. It was the NHRC that proposed, a few

years ago, the creation of a High Authority to

fight discriminations, and for equality, a wish

that finally became reality in December 2004.

Moreover, it recently did an in-depth work on

fundamental topical issues such as end-of-life or

bioethics, and is starting a reflection on the

impact of informatisation on society and on the

situation of incarcerated foreigners. At this

prospect, the Mediator participates regularly

and actively in each plenary session of the

NHRC.

Multiplicationof international contacts

At the international level, the Mediator's assis-

tance is often sought by his foreign colleagues,

as well as by different national and interna-

tional organisations in charge of promoting

human and citizens' rights, such as the Council

of Europe and the United Nations. Thus, Mr

Alvaro Gil-Robles, human rights commissioner

at the Council of Europe, came to Paris on 12

October 2004, to tell the Mediator of the Repub-

lic how much he wanted a strong involvement

of the French authorities in the different Euro-

pean institutions, and to propose to him, in par-

ticular, to carry out a joint reflection on the

rights of victims of terrorism.

Within the past three decades, some 110 coun-

tries, including 37 European countries, have

created mediation institutions that they call

the " People's defender" in Spain and Portugal,

"Citizen's protector" in Quebec, or "Mediators"

in other French-speaking countries. Thus, in

2004, the Mediator of the French Republic, thus,

received several delegations, especially Asian

delegations, coming to obtain information of

the role and working of the Institution. Close

ties, reinforced through frequent visits, have

progressively been developed among the

Mediators of all the countries and regions of

the world. These relations are organised in form

of bilateral cooperation, or within a larger,

European, francophone, or international frame-

work.

DemocracyCooper









A network of European Mediators

The European Union organs also have a Mediator, as

a result of the Maastricht Treaty.

� In place since 1995, the European Mediator is in

charge of combating bad administrative practices in

Community institutions (Commission, Parliament,

European central bank, etc.) The current European

Mediator, elected by the European parliament for a

period of five years, is Mr Nikiforos Diamandouros

(former Greek Mediator). At a meeting in Stras-

bourg on 15 June 2004, the European Mediator and

the French Mediator advocated in favour of rein-

forcing their cooperation. The Mediator of the

French Republic emphasised, in particular, the need

for a joint reflection by European mediators and

ombudsmen on the values of the fundamental rights

Charter in connection with the future European con-

stitution. In response to Jean-Paul Delevoye's invi-

tation, Mr Nikoforos Diamandouros came to Paris on

1 and 2 December 2004 to meet the staff of the

Institution and create awareness among the staff

concerning what are at stake in terms of media-

tion at the European level.

� Mediators from member States of the Euro-

pean Union and European Economic Area meet

every two years. These meetings are jointly organ-

ised by the European mediator and a national

mediator. The last meeting took place in Athens in

2003, and the next one will be held in the Hague

in September 2005, on the "The role of media-

tors and similar institutions in the application of

community law".

This network of mediators facilitates the han-

dling of cases common to several mediators,

and makes it possible to know European law

better, and to favour its proper application by

member States. This is an important topic, since

today 60% of national legislations are of Com-

munity origin. This network also allows the

exchange of information and experience. For

example, the Mediator of the French Republic,

while reflecting on the extension of mediation to

prisons within the framework of a joint work

group with the Ministry of Justice, may

exchange views with his Dutch counterpart who

has long experience in this field. It can also play

a promotion role for the institution and its serv-

ices. Thus, in Istanbul in December 2004, an

international conference of ombudsmen was

held to support a plan to create a Turkish medi-

ation institution. The European mediator and

several national mediators from European Union

member States, including the Mediator of the

French Republic, participated in this meeting,

which is important for the progress of demo-

cracy and the rule of law, both in Turkey and in

Europe.

� Finally, these regular exchanges at the Euro-

pean level encourage people to reflect on the

progress to be made regarding the working of

these institutions in each country. Today, it is

only in 2 out of 25 countries that cases cannot

be directly referred to the Mediator: in the

United Kingdom and in France. The United King-

dom is currently planning to introduce such a

procedure. As for France, the government indi-

cated through Mrs Nelly Ollin, the minister in

charge of the fight against precariousness and

exclusion, during a debate in the Senate on the

creation of the High Authority to fight discrimi-

nations, and for equality, that it was in favour of

introducing in the next empowering statute, the

possibility for citizens to refer cases directly to

the Mediator. This simplification of the proce-

dure would be in line with the harmonisation

of practices in Europe and would, thus, meet a

request made a long time ago by the European

institutions. It would only legalise the practices

“This network of European mediators allows

the exchange of information and experience.

For example, the Mediator of the French Republic,

while reflecting on the extension of mediation

to prisons, may exchange views with his Dutch

counterpart who has long experience in this field.”

ationci l iat ion-f ighting- inequal it ies-malfunc t ion-publ icser vices- delegates- just-respec








R einforc ing democracy

and human rights

of citizens, who are increasingly requesting for

the possibility to directly refer their complaints

to the relevant institutions.

Towards a permanent secretariatof the Association of FrancophoneOmbudsmen and Mediators(AFOM)

Another forum for privileged exchanges is the

Association of Francophone Ombudsmen and

Mediators (AFOM). It plays an essential role in

the spreading of democracy and human rights val-

ues, which is, since the Bamako Declaration (1996),

a formal undertaking of the heads of States and

governments of the francophone area. During the

AFOM general assembly held in Quebec in Sep-

tember 2004, the Mediator of the French Republic

indicated his wish to involve himself more in the

activity of this organisation. Having become a

member of its governing council, the Mediator of

the French Republic stated that he was ready to

host in Paris, in the autumn of 2005, this associa-

tion's next congress. Finally, the Mediator of the

French Republic encourages the creation of a per-

manent AFOM secretariat in Paris.

MEDIATORS AROUND

THE WORLD FACED WITH

PRECARIOUSNESS AND EXCLUSION

� The Mediator of the French Republic also

participated, from 6 to 10 September 2004,

in the 8th congress of the International

institute of Ombudsmen. The topic of this

meeting "Balancing individual rights and

responsibilities in the exercise of citizenship –

the role of ombudsmen and mediators",

was within the context of post-11 September,

characterised by an overabundance of security

measures. What can be the balance between

the measures that are essential for

the protection of our democracies and

the protection of individual liberties and human

rights? Is the respect of different cultural

identities compatible with the call for equal

rights for all? How can individual requirements

be made compatible with the need to participate

in a collective project? These were the issues

debated upon during this congress by more

than 450 mediators, jurists and personalities

from 77 countries.

The discussions highlighted the concerns

of mediators and ombudsmen around the world

in terms of the common challenges:

precariousness, weakening of social links,

difficulty to live together. In his speech during

the workshop on exclusion, the Mediator

of the French Republic, among other, warned

against the presence of real "social bombs"

created by situations of exclusion in developed

societies. Despite the diversity of historical

developments and the differences in

administrative organisations and competence,

the mediators and ombudsmen of the world

showed a common concern: that of being,

in addition to their first role of "facilitators"

of relations between administrators and citizens,

protectors of citizens, guarantors of the rule

of law and vigilant defenders of human rights.

Since its creation in 1995,

the Institution of the European

Mediator has received over 17,000

complaints. In 2004, the number of

complaints increased by almost 55%

compared to 2003.

The institution is able to help about

70% of the claimants, by starting

an investigation on the case they

refer to it, transferring the case

to a competent organisation,

or by advising the claimant on the

organisation to turn to.








Mediator of the French Republic: Jean-Paul DELEVOYE

Secretaries: Corinne LAURENTFrançoise ENJOLRAS

Cabinet director: Christian LE ROUX

Secretary: Isabelle MANBON

Press and Communication adviser: Christine TENDEL

Secretary: Marie-Jeanne JACQUET

International affairs rights adviser: Michel SIRONNEAU

Secretary: Ninette ROLLÉ

Delegate-general: Bernard DREYFUS

Special assistant: Marine CALAZELSecretary: Christine SICAULT

General matters section

Adviser : Nathalie FICHET(succeeded Geneviève MOSSER)

Special assistants: Martine BOSCHMartine CRONEL-ANGEBAULT(succeeded Thérèse ANGELIQUE)

Marie-Claude DUPONT-GIZARDAnne OLIVIERNicole PANSARDMarie-Claude PONSARTMaud VIOLARD

Secretaries: Anna DA CRUZAurore SEVERIEN

Civil servants /Pension benefits section

Adviser: Éliane LE COQ BERCARU(succeeded Sonia IVANOFF)

Special assistants: Sylvie FOSTIER (succeeded Danièle TRIBUT)

Joseph GUILLEMOTVéronique NANSOT (succeeded Marie-José TRICHOT)

Laurent TROTTETSecretaries: Marie-Line DESPLANCHES

Michèle BOBANT (succeeded Nadine MIRLIER)

Taxation section

Adviser: Jean-Michel ROUGIESpecial assistants: Michèle CLEMENT

Chantal CALVAR (succeeded Benoît DANJOU)

Cédric DEFIVES (succeeded Claudine MOILLE)

Gérard REYGuy TAVENARDMarie-Claude TOURNEUR

Secretaries: Claudie ROBERTViviane GOURDY

Justice section

Adviser: Gilbert CERVONISpecial assistants: Nathalie DOROSZ

Martine GAUTHIERJosette LEPAGEColette RENTY (succeeded Delphine BESNARD)

Secretaries: Micheline CHANTEUXMyriam MADRELLE

Social section

Adviser: Catherine DINNEQUINAssistant adviser: Annie LALOUMSpecial assistants: Marc BIGUET

Mireille FOURNIERNicole LEJEUNEMartine NORMAND

Secretaries: Dominique LEFEVREVéronique PICOLI


Organisational chartof the central services

A p p e n d i c e s









O rganisat ional char t

of the central ser vices

Claims admissibility department

Director: Valérie DOUCHEZ (succeeded Serge PETIT)

Special assistants: Stéphanie CANUBenoît DANJOU (succeeded Chantal CALVAR)

Abdelkader KAHLIMarike LENCLUD

Secretaries: Maria PEREIRALiliane LANGLOISNicole TRICHEREAUPascale VILLAMOR

Regional development department

Director: Jean-François GRATIEUXSpecial assistants: Marie-Noëlle CHALMETON

(succeeded Chantal LEPVRIER)

Nicole DURANDDavid MANARANCHE

Network administrator: Florent LABATAssistant: Nadine MIRLIER

(succeeded Françoise ENJOLRAS)

Secretaries: Marie-France HENRIONGhislaine ITIC

Research department

Director: Serge PETIT (succeeded Jacques BERNOT)

Secretary: Chantal MALLEK (succeeded Delphine MOUYER)

Reforms and relations with the Parliament

Advisers: Damien BLAISEMartine TIMSIT

Special assistant: Inès MONTEILLETSecretary – assistant: Dominique RAUBER

Administrative and financial affairs department

Director: Guy SAYARET (succeeded Jacqueline GUILLIN)

Secretary: Patricia OMBRET (succeeded Lucienne SAUNIER)

Human resources management – finance –logistics – interior affairs – mail service

Managers: Monique PEPINTony GANE(succeeded Dominique LACADEE)

Special assistants: Kléber CANUSabine KOLIFRAT (succeeded Khaddra GUEDDOU)

Françoise OUSSET (succeeded Annick Le BRIGANT)

Béatrice VIOULACAssistant: Catherine BEROULE

General resources manager: Cyrille BUETMultipurpose employee: Christophe MONTEIRO

Technical service employee: Nora BIAD-GUILLAUME

IT department

Network administrator: Jérôme NAUDIN

Mediator's chauffeurs

Fabien FULAT Gérard RUBEL

Cook-maître d'hôtel

Aurélien GROLIER

For the details, addresses and office hours of the delegateMediators of the FrenchRepublic, visit the website:

www.mediateur-de-la-republique.fr

auses-dialogue-l it ige- équité-simplif ier- écoute-droits-victimes-recours- concil iation

olut ion- informer-proximité-rétabl i r- causes- dialogue- l i t ige- équité-s impl i f ier- écou

er v ices-publ ics- délégués- juste-respec t-solut ion- informer-proximité-rétabl i r- causses-dialogue-l it ige- équité-simplif ier- écoute-droits-victimes-recours- conci l iation- combattre-inégalités-dysfonctionnement-services-publics-délégués-jus

fonctionnement-services-publics-délégués-juste-respect-solution-informer-proximité-rétabl ir- causes-dialogue-l it ige- équité-simplif ier- écoute-droits-vic

logue- l i t ige- équité-s impl i f ier- écoute- droits-v ic t imes-recours- conci l iat ion- combattre- inégal i tés- dysfonc t ionnement-ser v ices-publ ics- délégués- juste-r

s e s - d i a l o g u e - l i t i g e - é q u i t é - s i m p l i f i e r - é c o u t e - d r o i t s - v i c t i m e s - r e c o u r s - c o n c i l i a t i o n - c o m b a t t r e - i n é g a l i t é s - d y s f o n c t i o n n e m e n t - s e r v i c e s - p u b l i c s - d é l é g u é s - j u s t e - r e s p e c t - s o l

s e s - d i a l o g u e - l i t i g e - é q u i t é - s i m p l i f i e r - é c o u t e - d r o i t s - v i c t i m e s - r e c o u r s - c o n c i l i a t i o n - c o m b a t t r e - i n é g a l i t é s - d y s f o n c t i o n n e m e n t - s e r v i c e s - p u b l i c s - d é l é g u é s - j u s t e - r e s p e c t - s o l u

Article 1

A Mediator of the Republic, an independent authority, shall,under the conditions laid down in the present law, receivecomplaints concerning the working of government offices,local public authorities, public establishments and any otherbodies vested with a public service mission in respect of theirdealings with the public.Within the sphere of his competence, he shall not receiveinvestigation from any other authority.

Article 2

The Mediator of the Republic is appointed for six years bydecree of the Council of Ministers. He may only be removed fromoffice before term if he is no longer able to perform his duties, asestablished in accordance with the conditions laid down bydecree of the Council of State. His term shall not be renewable.

Article 3

The Mediator of the French Republic shall be immune fromprosecution, arrest, detention and judgment in respect of anyopinions he may voice or any acts he may accomplish in theperformance of his duties.

Article 4

Article L. 194-1, worded as follows, shall be added to theElectoral Bill: “Art. L. 194-1 – Throughout his term of office, the Mediator of theRepublic may only stand for regional elections (Conseil Général)if he already held such office prior to his appointment”.

Article 5

Article L.230, worded as follows, shall be added to the ElectoralBill:“Art. L. 230-1 – Throughout his term of office, the Mediator ofthe Republic may only stand for local government elections ifhe already held such office prior to his appointment”.

Article 6

Any natural or legal person who believes, with respect to amatter concerning him or her, that an organisation referred tounder article 1 has failed to perform in accordance with its

appointed mission may, by individual claim, request that thematter be brought to the notice of the Mediator of the Republic.Claims shall be addressed to a deputy or a senator, who shallrefer them to the Mediator of the Republic if they consider thatsuch claims fall within his competence and warrant hisintervention.Members of Parliament may also, on their own initiative, refermatters to the Mediator of the Republic when they lie within hiscompetence and they consider them to warrant hisintervention.The European Ombudsman, or a foreign counterpart of theMediator of the Republic, may refer matters to him which fallwithin the competence and appear to them warrant hisintervention.At the request of any of the six standing committees of theirAssembly, the president of the Senate or the NationalAssembly may also refer any petition brought before either ofthe two houses to the Mediator of the Republic.

Article 6-1

The Mediator of the Republic has delegates that he appointsthroughout the French territory. They provide the individuals referred to under the firstparagraph of article 6 with the information and assistancerequired for presenting their claims.At the request of the Mediator of the Republic, they investigatethe claims given to them and participate in settling disputeswithin their jurisdiction.A Member of Parliament or Senator may also refer claims to adistrict delegate for transmission to the Mediator of the FrenchRepublic when they consider them to lie within his competenceand warrant his intervention.

Article 7

All claims must be preceded by appropriate action through therelevant authorities.Such claims do not interfere with the time limit for appeal,particularly before the competent courts.

Article 8

Any disputes arising between the governmentadministrations or other bodies referred to under article 1 andtheir officials may not be referred to the Mediator of the


Law No. 73-6 of 3 January 1973 instituting a Mediator of the Republic

A p p e n d i c e s

supplemented by law No. 76-1211 of 24 December 1976 and by law No. 89-18 of13 January 1989 and amended by law No. 92-125 of 6 February 1992 and law No.2000-321 of 12 April 2000.

n- combattre-inégalités-dysfonctionnement-services-publics-délégués-juste-respec

ute- droits-v ic t imes-recours- conci l iat ion- combattre- inégal i tés- dysfonc t ionnemen

ses- dia logue- l i t ige- équité-s impl i f ier- écoute- droits-v ic t imes-recours- conci l iat ionste-respect-solution-informer-proximité-rétablir- causes-dialogue-l it ige- équité-simplif ier- écoute-droits-victimes-recours- conci l iation- combattre-inégalit

ct imes-recours- conci l iat ion- combattre- inégal ités-dysfonctionnement-services-publics-délégués-juste-respect-solution-informer-proximité-rétabl ir- caus

respec t-solut ion- informer-proximité-rétabl i r- causes- dia logue- l i t ige- équité-s impl i f ier- écoute- droits-v ic t imes-recours- conci l iat ion- combattre- inégal i t

u t i o n - i n f o r m e r - p r o x i m i t é - r é t a b l i r - c a u s e s - d i a l o g u e - l i t i g e - é q u i t é - s i m p l i f i e r - é c o u t e - d r o i t s - v i c t i m e s - r e c o u r s - c o n c i l i a t i o n - c o m b a t t r e - i n é g a l i t é s - d y s f o n c t i o n n e m e n t - s e r v i c

u t i o n - i n f o r m e r - p r o x i m i t é - r é t a b l i r - c a u s e s - d i a l o g u e - l i t i g e - é q u i t é - s i m p l i f i e r - é c o u t e - d r o i t s - v i c t i m e s - r e c o u r s - c o n c i l i a t i o n - c o m b a t t r e - i n é g a l i t é s - d y s f o n c t i o n n e m e n t - s e r v i c


L a w N o . 7 3 - 6

of 3 January 1973

Republic. The provisions of the present article shall no longerbe applicable to such officials after cessation of their duties.

Article 9

When the Mediator of the Republic considers a claim justified,he shall make such recommendations as he deems necessaryto settle the difficulties that have been referred to him and, inparticular, shall recommend any solution likely to lead to fairsettlement of the claimant’s situation to the body against whichthe claim has been made.When the Mediator of the Republic considers that a bodyamong those referred to in article 1 has not operated incompliance with the mission of public service it should provide,he may propose such measures as he considers appropriate toremedy the said situation to the relevant authority.When it appears that the application of legislative or regulatoryprovisions would result in an injustice, he may suggest anymodifications he deems appropriate.The Mediator of the Republic shall be informed of the outcomeof any interventions on his part. Failing a satisfactory replywithin the period he has stipulated, he may publicly disclose hisrecommendations and proposals. The body concerned mayalso disclose its reply and, where applicable, the decision it hastaken in response to the intervention of the Mediator of theRepublic.

Article 10

Failing action on the part of the competent authority, theMediator of the Republic may initiate disciplinary proceedingson its behalf, or, where appropriate, refer the matter to thecriminal court.

Article 11

The Mediator of the Republic shall not intervene in anyproceedings brought before a court or question the soundnessof a court decision, but he is entitled to make recommendationsto the body concerned.Furthermore, in the event of non-execution of a court decisionconsidered as res judicata, he may request that the bodyconcerned comply with the decision within the periodstipulated by him. If this injunction is not complied with non-execution of the court decision will be the subject of a specialreport presented in accordance with the conditions laid out inarticle 14 and published in the Journal officiel (Frenchgovernment publication).

Article 12

The ministers and all the public authorities must facilitatethe task of the Mediator of the Republic. They shall authorise the officers under their authority toreply to the questions they are asked and to any requestsmade by the Mediator of the Republic to appear before him,and the inspection authorities to carry out any verificationsor investigations requested by the Mediator of the Republic,within their sphere of competence. Such officers andinspection authorities are bound to respond to them or refer

them to a court. They must ensure that these injunctions arecomplied with.The vice-president of the Council of State and the FirstPresiding Judge of the State Audit Office shall undertakesuch investigations as the Mediator of the French Republicmay request.

Article 13

The Mediator of the Republic may ask the appropriateminister or the relevant authority to provide him with anydocuments or files concerning a case under review. Suchrequests may not be refused on the grounds of secrecy orconfidentiality except in the case of secrets pertaining tonational defence, State security or foreign policy.In order to ensure the respect of laws and regulations relatingto professional secrecy, he shall take the necessary steps toensure that nothing is mentioned in the documents publishedunder his authority which could lead to the identification ofpersons whose name has thus been disclosed to him.

Article 14

The Mediator of the Republic shall submit an annual reporton his activities to the President of the Republic andParliament. This report will be published and will be thesubject of a communication by the Mediator of the Republicto each of the two assemblies.

Article 14 bis

Any person who includes or leaves the name of the Mediatorof the Republic, whether or not it is followed by his capacity,in any propaganda or advertising document of any nature,will be imprisoned for one to six months and fined in the sumof 3,750 euros*.

* Ord. No 2000-916 2000-19-09

Article 15

The funds required to carry out the mission of the Mediatorof the Republic are included in the budget of the Primeminister’s office.The provisions of the law of 10 August 1992relating to financial control are not applicable to themanagement of these funds.The Mediator of the Republic shall present his accounts forinspection by the State Audit Office.The staff of the Mediator of the Republic shall be appointedby him for the duration of his term of office. They shall bebound by the obligations set out in article 10 of GovernmentOrder No. 59-244 of February 4th 1959 on Civil ServiceRegulations*. When they are State civil servants or localgovernment employees, reinstatement in their originalcorps shall be guaranteed, as determined by decree of theCouncil of State.

* Government order repealed by article 93 of law No.84.16of January 11th 1984. Read “by article of 26 of law No. 83.634of July 13th 1983 on rights and obligations of civil servants”.

Publication manager: Christian Le Roux

Author: Dominique Sicot

Translation: Benjamin O. Onah

Photography credit: David Delaporte

Printing: La Fertoise - 72405 La Ferté-Bernard

Registration of copyright: 2nd quarter of 2005

The figures provided in this report concern the year 2004. The report was completed on 31 March 2005.

Mediator of the French Republic - 7, rue Saint-Florentin 75008 Paris - Tel.: 01 55 35 24 24 - Fax: 01 55 35 24 25 - www.mediateur-de-la-republique.fr

c a u s e s d i a l o g u e l i t i g a t i o n e q u i t y s i m p l i f y i n g l i s t e n i n g r i g h t s v i c t i m s re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ingl i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p eestablishing-reformscauses-dialogue-liv i c t i m s - re m e d y - c o n c i l i a t i o n - f i g h t i n gd e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n fc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s ic o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s -re s p e c t- s o l u t i o n s - i n fo r m i n g - p roxlit igation- equity-simplifying-l istinequalities-malfunction-pproximity-re- establ ishinl i s t e n i n g - r i g ht s - v i c t i mp u b l i c s e r v i c e s - d e l e gestablishing-reformscauses-dialov i c t i m s - re m e d y - c o n c i l i a t i o n - f id e l e g a t e s - j u s t- re s p e c t- s o l u t ic a u s e s - d i a l o g u e - l i t i g a t i o n -c o n c i l i a t i o n - f i g h t i n g - ire s p e c t- s o l u t i o n sl it igation- equity-simplifying-l istening-riinequalities-malfunction-publicservices-proximity-re- establ ishing-reforms- cal i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e sestablishing-reformscauses-dialogue-vic t ims-remedy- conci l iat ion-f ighting-d e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n fc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s ic o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - mre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i mlitigation-equity-simplifying-listeninequalities-malfunction-publiproximity-re- establ ishing-rl i s t e n i n g - r i g ht s - v i c t i m s - rp u b l i c s e r v i c e s - d e l e gestablishing-reforms- cv i c t i m s - re m e d y- c o n cd e l e g a t e s - j u s t- re s p ec a u s e s - d i a l o g u e - l i t i gc o n c i l i a t i o n - f i g h t i n g -re s p e c t- s o l u t i o n s - i n fo rl it igation- equity-simplifinequalities-malfunctionproximity-re- establ ishing-reformscauses- dia ll i s t e n i n g - r i g ht s - v i c t i m s - re m e d y- co n c i l i at i o n - f i g ht i n g - i n e q u a l i t i e s - m a l f u n c t i o np u b l i c s e r v i c e s - d e l e g a t e s - j u s t - r e s p e c t - s o l u t i o n s - i n f o r m i n g - p r o x i m i t y - r eestablishing-reformscauses-dialogue-litigation-equity-simplifying-listening-rightsv i c t i m s - re m e d y - c o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e sd e l e g a t e s - j u s t- re s p e c t- s o l u t i o n s - i n fo r m i n g - p r ox i m i t y- re - e s t a b l i s h i n g - re fo r m sc a u s e s - d i a l o g u e - l i t i g a t i o n - e q u i t y- s i m p l i f y i n g - l i s t e n i n g - r i g h t s - v i c t i m s - re m e d yc o n c i l i a t i o n - f i g h t i n g - i n e q u a l i t i e s - m a l f u n c t i o n - p u b l i c s e r v i c e s - d e l e g a t e s - j u s tre s p e c t- s o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u elit igation- equity-simplifying-l istening-rights-victims-remedy- concil iation-fightinginequalities-malfunction-publicservices-delegates-just-respect-solutions-informingproximity-re- establ ishing-reformscauses- dia logue- l i t igat ion- equity-s impl i f y ing

a u s e s d i a l o g u e l i t i g a t i o n e q u i t y s i m p l i f y i n g l i s t e n i n g r i g h t s v i c t i m s r e m e d yonci l iat ion-f ighting- inequal it ies-malfunc tion-publ icser vices- delegates- just-respec t-o l u t i o n s - i n fo r m i n g - p rox i m i t y- re - e s t a b l i s h i n g - re fo r m s - c a u s e s - d i a l o g u e - l i t i g at i o n -quity-simplifying-l istening-r ights-vict ims-remedy- conci l iat ion-f ighting-inequalit ies-alfunc tion-publ icser vices- delegates- just-respec t-solut ions- informing-proximity-re-















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