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Does the law foresee the shift of the burden of proof in civil / administrative procedures? Are there problems of implementation reported by independent authoritative sources?

Key Area:
Anti-discrimination Legislation & Implementation
Discrimination, Equality
21/12/2011 - 12:51
Short Answer

The law foresees the shift of the burden of proof in civil / administrative procedures.

Qualitative Info

The shift in the burden of proof has expressly been transposed firstly in labour law, in matters of harassment and housing. The plaintiff must present elements of fact leading to a presumption of direct or indirect discrimination. Upon having satisfied this burden, the defendant must establish that his or her decision was justified by objective elements which have nothing to do with discrimination.The juge forms his inner conviction after having ordered, if necessary, all enquiry order it considers useful. This shift in the burden of proof is thus applicable in all non penal recourses except in case of discrimination initiated by an employee of the public sector. In such a case, the administrative procedure is inquisitive and is covered by the derogation provided in the article 8 par 5 of Directive 2000/43 and the article 10 par 5 of Directive 2000/78. The Code of administrative justice provides that the procedure alleges the facts, arguments and conslusions submitted to the judge. Thus, the plaintiff is deemed not to have the burden of proof.

In 2008 the shift in the burden of proof was extended by Article 4 of Act n° 2008-496 of 27 May 2008 to all non-criminal fields.

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Type (R/D)
Key socio-economic / Institutional Areas
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