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Decision no. 82-153 DC Conseil Constitutionnel, January 14, 1983 (publication: Recueil n 35)

Facts: The E.N.A, the Ecole Nationale de l'Administration, had a monopoly in the selection of French higher civil servants. To democratize their selection, the Socialist party proposed a law that would enable one out of five posts in the higher civil service to be dedicated to persons coming from local government, unions, or public bodies, and whose recruitment procedure would be different from the E.N.A. recruitment. A managerial restriction on the categories of person who could enter through the special procedure also provided that no assistant to a mayor of a commune of fewer than 10,000 inhabitants could apply. Provisions on seniority provided that the period prior to entry into the civil service was to count for the "external" candidates

Holding: The Constitutional Council upheld the provision of the proposed law concerning the difference in entry procedures and managerial restrictions on the categories of candidates but refused to accept the provision on seniority. A degree of reverse discrimination was thus permitted by enabling the existence of special entry procedures for persons of different backgrounds.

Reasoning: the Council found that the difference in entry procedures was constitutional because it recognized different kinds of talents. The managerial restriction designed to limit numbers of potential candidates to a manageable size was acceptable, unless there was any manifest error in evaluation. As for the seniority provision, as the period spent in training by the E.N.A. entrants was not also to be counted, this amounted to an unjustified discrimination. Seniority should simply be determined by the period spent in the public service.

 

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