This decision of the French Constitutional
Court, dated 4 May 2012, came as a bombshell, as it effectively
removed the prohibition on sexual harassment from the French
criminal code. This decision and more importantly its consequences
were clearly unexpected as the decision leaves a legal vacuum in
the criminal code, given its immediate effect.
The French Constitutional Court based its decision on the
grounds that the provision of the French criminal code prohibiting
sexual harassment was not clear nor precise enough. Over the years,
the definition of sexual harassment included in the French criminal
code has been significantly widened to prohibit increasing types of
behaviour, rendering these provisions too vague. In the end, sexual
harassment was merely defined as the act of harassing someone in
order to obtain benefits of a sexual nature.
The main consequence of this decision is that as from the date
of publication of the decision, no one can be convicted or punished
on the ground of sexual harassment, as the offence no longer
exists, and alleged offenders will be systematically
It should be noted that a specific provision of the French
employment code also prohibits sexual harassment. Such offence
under the French employment code is punished by a fine of up to
€15,000, and by up to one year of imprisonment. This
provision is not affected by the decision of the French
Constitutional Court, but most HR specialists anticipate that the
Constitutional Court would rule in a similar way if the question of
its constitutionality was raised before it.
It is to be hoped that the new French legislature will quickly
address this issue by an amendment to the statutory framework, as
legislative bodies have recently been invited to do so by the head
of the main HR directors union in France. On a related note, it
would seem that the prohibition of moral harassment has also been
challenged by a French court which is considering transmitting this
issue to the Constitutional Court.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
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