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Editorial du Président

Les membres du Club ont reçu près de 165 000 saisines
(base : analyse des rapports annuels émis en 2018 sur l’activité 2017).

En 2017, les médiateurs membres du Club ont reçu au total 164 462 saisines.

Ce volume traduit une hausse de 27 % par rapport à 2016. Par rapport à 2012, la croissance dépasse 50 %.

79 975 dossiers ont été instruits et ont donné lieu à l’émission d’une proposition formelle du médiateur ou ont été résolus par son intervention, soit plus d’un dossier sur deux reçus.

Les autres saisines ont été déclarées irrecevables, principalement en raison de l’absence ou de l’insuffisance des démarches préalables à la saisine du médiateur.

En moyenne, les médiateurs membres du Club ont donné satisfaction totale ou partielle à la demande du requérant dans un dossier instruit sur deux.

Ce succès reflète la mobilisation de l’ensemble des membres du Club dans un engagement commun pour une médiation de haute qualité, proposée par les services publics et les entreprises à leurs usagers et à leurs clients qui, sans cesse plus nombreux, choisissent de leur faire confiance.

Les données chiffrées utilisées sont celles figurant dans les rapports annuels d’activité publiés par chacun des médiateurs. Certaines dénominations variant selon les médiateurs, une concordance a été opérée pour ne retenir que trois catégories synthétiques :

  • Les saisines : toute demande écrite de médiation, relative au règlement d’un litige, transmise par voie postale ou électronique,
  • Les demandes irrecevables : dossiers qui ne respectent pas les conditions pour être instruits par le Médiateur, principalement en raison de l’absence de démarche préalable auprès des services de traitement des réclamations de l’entité,
  • Les médiations : dossiers instruits donnant lieu à l’émission d’un avis du médiateur ou résolu par son intervention.

Par ailleurs, le Club se félicite d’avoir accueilli ces derniers mois deux nouveaux membres :

  • Francis AMAND, Médiateur des relations commerciales agricoles,
  • Christian LEFEBVRE, Médiateur de la consommation de la profession notariale,

Ces adhésions nouvelles illustrent le dynamisme du Club des Médiateurs et confortent sa place d’acteur de premier plan de la médiation en France.

PROVISIONS RELATING TO MEDIATION OF THE “CONSUMER” BILL

The “consumer” bill submitted in May 2013 by the Government, has already been examined by the National Assembly and the Senate on first reading.

This text contains two references to a possible recourse to mediation:

        In the context of provisions relating to class action, the applicant consumer organization can enter into mediation with the trader in question in order to reach a negotiated agreement on behalf of the group of consumers. The consumer concerned can then join this agreement after its approval by the judge.

          It also stipulates that any written contract between a trader and a consumer must mention the possibility, in the event of a challenge, of recourse to a conventional mediation procedure or other method for alternative dispute resolution.

The Club welcomes the fact that those provisions give litigants the opportunity to use mediation in order to build solutions and, where appropriate, provide reparation for harm suffered by consumers.

On this occasion, the Club reaffirms its attachment to the voluntary nature of using mediation for the parties.

ENACTMENT OF THE CONSUMER LAW

On 18 March, the Consumer Law was published in the Official Journal. It aims to re-balance powers between consumers and traders. The various provisions in the text represent real advances in terms of consumer protection.

This law covers 3 major topics in turn: the definition of a consumer, the enshrinement of class actions and consumer information on their possibility of using mediation in the event of a dispute.

The consumer:

The definition of a consumer in French law indicated in the consumer law has been lifted almost word for word from the article of the 2011 Directive.  It explains that the term consumers “should cover natural persons who are acting outside their trade, business, craft or profession. »

Class action:

This law introduces the class action to French law. It may be brought before the TGI or district court by a representative consumer organization at national level and approved. Note that the class action seeks only to repair the financial damages resulting from a failure by one or more professionals to meet their legal or contractual obligations. A decree from the Council of State is pending for validation of the procedures for applying class actions.

Towards more widespread recourse to Mediation

After the judge ruled on the liability of one or more traders involved, the consumer organization can submit their case to mediation regarding the compensation phase. If agreed, it will be submitted for approval by the judge who ensures that the agreement respects the interests of parties to whom it is intended to apply. The terms which will be set by decree remain to be seen.

Finally, this law reinforces consumer information on remedies available to them in the event of a dispute. In fact, it stipulates that upon signing of a written contract, consumers are made aware of their ability to engage in mediation or other alternative means of dispute resolution. This obligation upon the trader is an important factor in promoting mediation as an alternative means of dispute resolution.

This legislation is in keeping with the current trend to strengthen the protection of consumers vis-à-vis traders. The possibility of recourse to a class action is intended to counteract trade practices that could be considered questionable in view of the law. However, the Council of State rejected the creation of a national database identifying consumer credit for individuals and intended to offer “protection” against over-indebtedness, since it was considered to infringe the right to privacy.

Find more information on the websites of the INC and the Mediator of the ministries of the economy and finance: http://www.conso.net/page/bases.1_actualites.10_projet_de_loi_2.3_projet_de_loi_consommation/

http://www.economie.gouv.fr/mediateur/accueil-mediateur

TRANSPOSITION OF THE DIRECTIVE

The Decree of 30 October 2015 on the mediation of consumer disputes was published in the Official Journal “Laws and Decrees”. It follows the order on alternative dispute resolution for consumer disputes which was published in the Official Journal “Laws and Decrees” of 21 August.  It represents the transposition of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013, called the ADR (Alternative Dispute Resolution) Directive. »

It should be recalled that the purpose of the ADR directive concerns “the alternative resolution of disputes between traders and consumers arising from contracts of sale of goods or provision of services. »

The law “enacting various provisions to adapt legislation to European Law in economic and financial matters”, adopted on 30 December 2014, authorized the Government to take, by means of an order, measures in the field of law necessary for the transposition of the Directive.

The order aimed to achieve four main objectives:

“– coverage of all professional sectors by mechanisms to settle consumer disputes out of court;

– ensure procedures to meet quality requirements in terms of accessibility, competence, impartiality, transparency, effectiveness and fairness;

– ensure a strict assessment by one or more public authorities of the conditions under which the alternative dispute resolution mechanisms for consumer disputes function. These authorities are also responsible for reporting a list of the entities tasked with alternative dispute resolution for consumer disputes to the European Commission;

– Information and assistance to consumers enabling them to access these procedures effectively. »

Please see below for the Order on alternative dispute resolution for consumer disputes and Decree No. 2015-1382 of 30 October 2015 on the mediation of consumer disputes.

Order related to alternative dispute resolution for consumer disputes.

“Consumer Mediation” decree published in the Official Journal on 31 October.

THE NO-FEE NATURE OF MEDIATION

The Charter of the Club de Médiateurs de Services au Public (Club of Public services Mediators), an inclusive text affirming the shared values and defended by its members, states that “recourse to mediation is available to applicants on a no-fee basis”.

For mediation of services to the public, this no-fee arrangement is an integral part of the process of handling cases, from referral to closure, just like direct and easy access to the mediator, the speed of the process and the total independence of mediators.

MORE WIDESPREAD RECOURSE TO MEDIATION: MILLIONTH REFERRAL OF A MEMBER OF THE CLUB OF MEDIATORS

The Club de Médiateurs de Services au Public (Club of Public services Mediators) celebrated on 16 June in Bercy (French Ministry of Finance) the millionth referral by a user or consumer to a mediator who is a member of the Club, since its creation in 2002.

Now, over 120,000 referrals are addressed to the Club’s mediators every year.

On this occasion, Martine Pinville, Secretary of State for Consumer Affairs, spoke about her wish to see more widespread recourse to mediation across all consumer sectors.

In continuation of this event, the annual meeting between consumer organizations and members of the Club was held. This is of particular importance for the Club since it makes it possible to obtain their views on the functioning of mediation and discuss the most frequently encountered cases.

Claude Nocquet, President of the CECM (Mediation Evaluation and Control Commission), shared her experience of the first months of operation of this authority, which is assigned the task of establishing the list of mediators meeting the criteria of competence, independence, impartiality and efficiency.

The meeting ended with extensive exchanges between consumer organizations and members of the Club of Mediators, on the latest news and future prospects in the field of mediation.

For more information about this event held on 16 June, read the Minister’s press release on the Ministry of the Economy website by clicking the following link http://www.economie.gouv.fr/martine-pinville-devant-club-des-mediateurs-services-au-public

CLUB SEMINAR 2016

In early July, as every year, members of the Club de Médiateurs de Services au Public (Club of Public services Mediators) met up for an internal seminar day at the International Centre for Pedagogical Studies in Sèvres.

Among the subjects addressed under the aegis of Jean-Pierre Teyssier, Chairman of the Club, a special place was reserved for the training of members and their teams.

Claude Bisson-Vaivre, who oversees the Club’s efforts in this area, unveiled measures to strengthen the initial training organized with the IGPDE by means of continual training: consumer law and analysis of mediators’ positions, in particular, which will supplement the existing sessions on the legal framework for mediation and its developments.

The views expressed by each member highlighted a shared observation: that of a sharp increase in the number of referrals received by members since the end of 2015, and therefore a common concern about the adequacy of the resources to cope with this upward trend.

Camille Bertrand, legal expert at the European Consumer Centre, presented the latest European news in the field of mediation.

The seminar ended with an update on implementation of the new framework for consumer mediation in France. Twelve Club members have already been notified by the Mediation Evaluation and Control Commission.

EDITORIAL BY THE CLUB CHAIRMAN WEBSITE OF THE CLUB OF MEDIATORS

2016, year of more widespread recourse to mediation

In many respects, 2016 will linger in the memory of members of the Club des Médiateurs de Services au Public (Club of Public services Mediators), who elected me chairman at the start of this year.

Because it marks the more widespread recourse to the mediation process which we have always championed.

Indeed, as the year draws to a close, 12 members of the Club are on the Consumption Mediators List in France, the designation reserved by the new independent authority, the CECMC (Mediation Evaluation and Control Commission for Consumption), exclusively for mediators meeting the provisions set out in the French Consumer Code. It is worth recalling that since mid-2015, the European Directive of 21 May 2013 on alternative dispute resolution for consumer disputes has been transposed into French law. I view this as concrete recognition of the quality of the Club’s members and their compliance with objective criteria concerning independence and efficiency, criteria that we have embodied since 2002, the year of the Club’s creation.

The strength of our Club lies in its diversity: it brings together consumption mediators, but also mediators vis-à-vis government bodies, public or private companies and local authorities, which are responsible for services to the public. This has allowed us, in particular, to remain guarantor of the underlying values mediation and anticipate future developments for almost 15 years.

And other evidence of more widespread adoption: in June 2016, our Club celebrated at Bercy (French Ministry of Finance), in the presence of Martine Pinville, Secretary of State for Consumer Affairs, the millionth referral since 2002 to a mediator who is member of the Club by a user or consumer.

All these developments led us to renew our Charter recently, constituting the new ethical reference base for mediation practiced by its members. In particular, we reaffirm our commitment to our values: independence; neutrality; impartiality, as well as to the principles applicable to the mediation process: fairness; transparency; no fee; confidentiality; effectiveness.

In the coming months, we will also aim to expand our training offer for mediators, both initial and continuing, in order to maintain our quality requirement at a consistently high level. Because we want mediation practiced by members of the Club de Médiateurs de Services au Public (Club of Public services Mediators) to be exemplary, and to occur within a process that requires professional skills and full familiarity with the institution or company.

The Club, also through me, now wishes to reaffirm its determination to continue with the development of mediation, high-quality mediation, as it has done in the past, because we are convinced that this approach is expected by users and consumers, as well as businesses, government bodies and local authorities. Since it creates trust.

Best regards.

Jean-Pierre Teyssier

Chairman of the Club de Médiateurs de Services au Public (Club of Public services Mediators)

Directive and regulation of May 21st, 2013 : A new European advance for mediation to the advantage of the consumers

The Club of the Mediators of services to the public congratulates itself on the adoption by the European Parliament, on March 12th , 2013, of the Directive relative to the extrajudicial regulation of the disputes of consumption and the regulation concerning the on-line regulation of the disputes, two proposals were presented to the European Commission in November 2011.

The Directive plans a generalized and facilitated access of the consumers of goods or services to the alternative modes of resolution of disputes, in particular mediation. It brings real guarantees on the progress of the procedures (transparency, efficiency, speed). It also fixes for the Mediators strict but proportioned requirements, the independence and the impartiality as well as the skills (capacity in the mediation, the legal knowledge).

The Club of the Mediators of services to the Public, whose domain of several of its members enter the field of the Directive, the postal, financial, banking services or of insurance, transport, energy, congratulates itself for this new frame which goes to the direction of the development of quality mediations.

The Club will thus be very attentive to its implementation in French law in which it wishes to take an active part

The Regulation plans for the implementation of an European platform of on-line regulation by the mediation of the disputes relative to the goods or the acquired services by using electronic means. The Club will quickly make its concrete contribution to the realization of this project in the service of the mediation

Contribution of the Club of the Mediators of Services to the Public in the consultation organized by the Ministry of Justice for the transposition of the directive “Mediation”

The Club of the Mediators of Services to the Public invites you to read its contribution to the consultation organized by the Ministry of Justice for the transposition of the directive “Mediation”.

Transposition de la Directive 

Contribution of the Club of the Mediators of Services to the Public in the consultation organized by the Ministry of Justice for the transposition of the directive “Mediation”

The Club of the Mediators of Services to the Public was created in 2002, to gather the Mediators of organizations, administrations, authorities or collective areas which share the same values regarding mediation : in particular the will to facilitate the research for the amicable solutions to the disputes, the impartiality, the confidentiality, the efficiency, the listening, the respect for the principle of the contradictory, the free access  for the user or the consumer.

The Club developed in 2004 its charter, in dialogue with the Ombudsman. It establishes the foundation of the values shared by its members, and their common vision of the institutional mediation. This charter was renewed at the beginning of 2011.

The Club, with its 17 members, represents the only organization in France gathering mediators occurring in the field of the institutional mediation.

Their domains cover the Authority of financial markets, the Deposit office, the sector of Water, the EDF, the Ministry of national Education and the Higher Education, the French Federation of Insurances, France 2, France 3, France Télévision, GDF Suez, the Ministries of the Economy and the Budget, the Agricultural social Mutual insurance, the Employment Agency, Group The Post office, the RATP(PARIS PUBLIC TRANSPORT SYSTEM), the SNCF(FRENCH NATIONAL RAILWAY COMPANY), the City of Paris. The Club also counts, as honorary member, the Ombudsman

The Club was at the origin of reflections on the institutional mediation, and participates actively in the corresponding works, in France and in Europe (Forum of Jena in 2006, works of the CNC on the mediation in 2007, directive mediation in 2008, Assizes of the Consumption in 2009, Commission of the Mediation of the Consumption in 2010, FINE-CLEAR(-NET) network of the financial mediators with the European Commission…)

It operates since 2010 an adapted professionalization of the Mediators device and teams, in particular with a specialised training

The Club was transformed into association in 2010, to improve its action and its visibility, in France and in Europe

It opened in 2011 a joint web site with  the mediators member of the association

The Club of the mediators of services to the public completely approves the definitions of the mediation and the mediator such as held by the draft of prescription.

The Club of the mediators suggests completing the prescription in its part modifying the law of February 8th, 1995 by the addition in the section III ” final Measures ” of a so drafted article 26.

” The mediations in the field of the consumption can be the object of additional measures of application ”

Besides, the members of the Club wonder about the utility to introduce into the new article 20-2 of the law of February 8th, 1995, in the second paragraph, the notion of “secret” even thoughthe submission in the principle of confidentiality was fixed to the first paragraph and is of general impact.

The President of the Club of the Mediators of Services to the Public

Emmanuel CONSTANS

The Club of the Mediators of services to the Public at the 6th Citizens’ Energy Forum (CEF)

The Citizen’s Energy Forum (CEF) is the annual meeting of the European players in the field of consumer protection in the energy sector. Every year, this Forum is the opportunity to make a progress report of the ongoing work at European level, as well as a follow-up on recommendations made in previous sessions. The Forum is based on the joint work of Consumer Associations , professionals, regulators, representatives of the European Commission and Ombudsmen. This year, on 16th and 17th December , the” vulnerable consumers ” report, in which GDF SUEZ Mediator took place, has been presented, as well as the terms of the 2013 Directive of the  efficiency Energy. This topic will be expanded in 2014. Were also discussed, topics related to price comparison , the functioning of the internal market, the changing role of consumers , the promotion of the “Vision 2020″ , the e-billing, the Collective switching  and the role of distributors in added value for consumers.

To find the final conclusions, I invite you to click on the following link :2013-final-conclusions

Activity Report 2011 : Mediator of Autorité des Marchés financiers (financial services and regulatory authority)

The Mediator of the Autorité des Marchés Financiers (financial services and regulatory authority) is pleased to present her Annual Activity Report 2011.  Marielle COHENBRANCHE invites you to consult it directly via the attached pdf link:

http://www.amf-france.org/documents/general/10392_1.pdf

Conference of the Commission of the Consumption Mediation

The Commission of the Mediation of Consumption organized a colloquium on September 27th, 2011 in Paris entitled : ” The Mediation to the service of consumers: the found confidence “. Frédéric Lefebvre, Secretary of State in charge of Consumption intervened at the opening and asserted its support for the development of the mediation.

You will find below the program of the conference  as well as the Charter Mediation of Consumption published for this opportunity

Charte Mediation Consommation 27 9 2011

Programme colloque CMC 27 9 2011

For further details, consult the site of the CMC: www.mediation-conso.fr/presse.html

Edito

The Conference organized by the Club of the Mediators of Services to the Public took place last thursday, January 17th in the Jena Palace, seat of the Economic, Social and Environmental Council and gathered more than 300 participants. This event will remain a turning point which celebrates the 10 years of existence of the Club.

Ce colloque avait pour thème : « Médiation, la Confiance d’abord ».

Continue reading

November 16th, 2012: the mediation in the AUTUMN MEETING

The conference « The Mediation : a political will » organized by the National Association of the Mediators (A.N.M) under the patronage of Madam Christiane TAUBIRA, Minister of Justice, was held on 16th, 2012 in the Seat of the French National Assembly.

You will find the rich and varied statements, accentuated that of the President of the Club of the Mediators, this day as well as videos, on the site of the A.N.M at the following address:

http://www.anm-mediation.com/actualites/toutes-les-actualites/application/pdf iconIntervention de Mr Emmanuel CONSTANS Président du Club.pdf

The intervention of the Mediator of GDF Suez and the Mediator with BNP Paribas in the days of the francophone Mediation in Bucharest

On September 12th and 13th, Michel Astruc, the Mediator of GDF Suez and Dominique Chevaillier Boisseau, the Mediator with BNP Paribas, participated in the Days of the francophone Mediation in Bucharest, whose objective was to share the practices of mediation in the French-speaking area, on the initiative of the Institute of the Mediation in french-speaking countries (IMEF) and the ACRFPC (Rumanian body for training).

Both Mediators led the round table dedicated to companies involment in the amicable settlement of disputes, in the service of the RSE (corporate social responsibility of companies). Representatives of Apanova (water distribution in Bucharest), of the national Bank of Romania, Orange, the BNP and GDF Suez in Romania were present.

In this opportunity, TV Romania realized an interview of the Mediator with BNP Paribas and with the Mediator of GDF Suez. They spoke about  the main values which characterize the mediation, such as the listening, respect, neutrality, impartiality, the confidentiality and independence. They also stressed the importance of  encouraging the development of the amicable settlement of the disputes

THE INTERVENTIONS OF THE MEMBERS OF the CLUB OF THE MEDIATORS DURING THE CONFERENCE : ” MEDIATION : TEXTS TO PRACTICE “

On October 10th, several members of the Club of the Mediators of Servicesto the Public participated in the conference ” Mediation: from the texts to the practice “, organized by the University of Maine, in partnership with the Gazette du Palais. Interventions were carried out, first of all, on the theme of the civil, judicial and family mediation, then, in second part, on the specific mediations which were represented by Marielle Cohen-Branche, Bernard Dreyfus and Michel Astruc.

The second part of the conference was initiated by Bernard Dreyfus, General Delegate for the Defender of the Rights who introduced  the frame of mediation in public law. In this field, mediation is a concept still little developped in legal texts, only two procedures are present in the Code of Administrative Justice which fall outside the remit of the administrative judge for mediation . However, he emphasized that despite the absence of legal texts, the spirit of mediation is growing strongly in the public services. Marielle Cohen Branch then intervened on the topic of stock market and financial mediation . She recalled that the Financial Markets Authority ( AMF ) gives advice on each treated mediation case, that is to say  approximately 4 000 cases per year.  case and this way contribute to educate the opinion about 4,000 per year. Mediation in this area makes a real work of teaching and explanations when the financial institution in question has not calmed the dispute with the customer

Finally, Michel Astruc spoke on the topic of mediation with users-customers by giving the example of Mediation of GDF SUEZ. He went back on  to the missions of GDF SUEZ describing its actions, values ​​and objectives.

This conference  allowed to confirm the current tendency  which is the development of the mediation practices even within the courts. Indeed, it is about a strong call appeal of the citizens relayed by public authorities, which see the possibility, even the necessity, to introduce an amicable dimension into the resolution of the disputes.

You can find the program of the conference by clicking on the following link: Programme du colloque au Mans as well as the interventions of Michel Astruc, Bernard Dreyfus and Marielle Cohen Branch by clicking the following links:

Intervention de Michel ASTRUC au colloque La médiation des textes à la pratique

Intervention de B. Dreyfus sur la Médiation en droit public

Intervention de Marielle Cohen-Branche

The mediation of GDF Suez presented by Michel ASTRUC to the readers of Gas Today

The Mediator of GDF Suez published an article in the review ” Gas today “, of July-August, 2013. Michel Astruc details his role and his implication in the development of the mediation in Europe and in France, evoking the current projects.
He gives details onto the requests of the consumers and on their evolution over the years.
As Mediator of GDF Suez, he mentions his recommendations for 2013, and emphazises on his collaboration, which he considers essential, with consumers’ associations, in the search for amicable settlement of the disputes.

You can download this article by clicking the following link:  Michel Astruc’s article in the Review “Gas today”

The provisions relative to the mediation of the bill “Consumption”

The bill “consumption”, introduced in May, 2013 by the Government, was already examined by the Assembly and the Senate in its first reading.

This text contains two mentions of a possible recourse to the mediation :

  • Within the framework of provisions relative to class action, the applicant consumers’ association can enter mediation with the implicated professional to reach an agreement negotiated in the name of the group of consumers. The concerned consumers can then subscribe to this agreement after its ratification by the judge.
  • It plans besides that any written contracts concluded between a professional and a consumer will have to mention the possibility, in case of contesting, to undertake a conventional mediation procedure or to another alternative mode of dispute settlement.

The Club congratulates itself on the fact that these provisions give to the disputing parties the possibility to call upon the mediation to build solutions and, if necessary, to repair the damages undergone by the consumers.

In this opportunity, the Club reaffirms its commitment to the parties of the volontary use of the mediation.

On July 1st, two new members joined the Club

Gora PATEL, Mediator of the programs of France Télévision

Entered the ORTF in La Reunion in 1970, he  joins  FR3 French overseas departments and territories in 1982, in La Reunion until 1987, then in Guiana from 1987 till 1992, as journalist then Editor-in-chief for  RFO created in 1983.

He returned to La Réunion as Director of the Radio, then Director of the television of « RFO Réunion » and finally Regional Director of « RFO  Réunion ». He joined the parisian head office of RFO in 2002 to be a member of the team which leads to integration of RFO within France Television. Program manager of “RFO Sat” from December 2002 till 2005, he is appointed Director in 2007 for the network of the radios of RFO. In January 2010, he became Director for the coordination of the Ultramarine stations.

He carried out this function until his apointment in April 2013, from Alain LE GARREC, as Mediator of the programs of all the channels of the Group France Télévisions (France 2, 3, 4, 5, Ô)

Jean-François CHADELAT, Mediator of the Agricultural Social Mutual insurance

Appointed by the Board of Directors of the MSA as the post of Mediator for a once renewable mandate of 3 years, Jean-François CHADELAT took his new functions  of Mediator, on January 1st, 2013. He succeeds Pierre-Henri DEGREGORI.

General honorary inspector of social affairs, Jean-François CHADELAT spent all his career in the field of the social welfare.

He was successively Managing Director of the central Agency for the bodies of Social Security (ACOSS), Manager of the Solidarity Fund Old Age,  from 1997 till 2001, and President of GIP card of healthcare professional, from 2003 till 2012, Director of the fund of financing for  the complementary protection of the risk of disease- CMU (Free Universal Health Care).

Conference : « Mediation, the Confidence at first »

Find the conference ” Mediation, the confidence  at first ” of January 17th in videos

Programme 17 janvier 2013

Communiqué de Presse -Club des médiateurs Colloque du 17 01 13

Les Actes du colloque-17 janvier 2013

« Mediation, confidence at first »

“2002-2012 : The Club of the Mediators of Sevices to the Public,

10 years of mediation on behalf of citizens and consumers

 

Emmanuel CONSTANS

Président du Club des Médiateurs de services au public

Médiateur des ministères économiques et financiers

Mr. le Defender of the Rights, dear Mr BAUDIS, Chairman  and Chief Excécutive of Groupe La Poste, dear Mr. Bailly, ladies and gentlemen advisors of the  Social Economic and Environmental Council, colleagues mediators and mediation team members and all dear friends of mediation whom I can qualify so, first of all thank you for coming to this conference in spite of the cold winter in the prestigious place where we meet through the kindness of President DELEVOYE who agreed to come just now to close our works.

We are very happy to welcome you on the occasion of the tenth anniversary of the Club of the Mediators of services to the public

Ten years, it is the youth. But within ten years, our club changed, just like the changes which knows the mediation, the mediation which is in full development in France today.

The number of our members almost doubled, while remaining limited, because we are first a working Club. We created an association. As support for our activities, we have set up a website that hosts a large number of visitors and therefore knows a great success. We also organize training sessions open to all the mediators and their teams.

Our values ​​did not changed: listening, dialogue, constructive ways to resolve disputes, general proposals to prevent disputes, impartiality, independence. Competence and efficiency remain  our key words.

The mediators members of the Club have various backgrounds, reflecting different families of mediation in our country. This diversity is an asset and we value it. Administrative, financial, consumer sector or company mediation : what matters to us is the quality of service provided to consumers citizens. We are all loyal to the same charter and to the respect  for  the European Directive of 2008 on mediation in civil and commercial matters.

Moreover, we are passionated by the european mediation issues which you know well, Mr The Defender of the Rights , just like as online mediation recently proposed by the European Commission and on which we prepare an initiative of the club.

Our Club is opened to relations with all other actors who develop, often with great faith, the mediation devices :

magistrates, lawyers of the judicial, conventional mediations, the associations as the National Association of the Mediation whose  the dynamic President Gabrielle PLANÈS is among us. We wanted to place this anniversary conference  under the sign of confidence. Lost confidence, found confidence, rising mistrust, need for confidence.

Our participants  and our two Round Tables, which will be led by Marie-Laure AUGRY, mediator of France 3, will debate openly.

The needs for mediation, in the broadest sense, seem increasing everywher in our society. It will be the theme of the first round-table. The theme for the second round-table will deal with how to build real mediations with a shared confidence.

You feel it, we all feel it in our mediations functions or our functions related to mediation, at a time when crises overlap, there are heavy human challenges, even civil peace challenges.

On these issues and before our first round-table, I’ll give the floor to the two personalities that make us honor and friendship to come and participate in this meeting, Dominique BAUDIS and Jean-Paul BAILLY.

Thank you Mr. Defender of the Rights  to   have agreed to open our conference. You are, if I may say so, the protector of the Club of the  Mediators of public services. You accompany us personnally in our collective action and at the level of each of the mediators. Many of your people are actively involved in our work and spare no effort. I would like to mention the role of Xavier BARAT, without whom this conference would not have been possible.

You are, Mr. Defender of the Rights,  a constitutional authority at  the heart of the rights issues, but I also know the importance you attach to equity. Dear Mr BAUDIS, you have the floor

Dominique BAUDIS

Defender of the Rights

Thank you Mister President for inviting me to this opening session and give me so the opportunity to present an institution which is actually the first one to register in a legal framework and in the mediation field the mediation of the Republic created in the early 70s. The first Ombudsman was Antoine PINAY.

He had numerous successors until Jean-Paul DELEVOYE, who is now Chairman of the Economic, social and Environmental Council, hosting us today. This is an institution that has a long history throughout which governments and public services, that you represent, as well as the private sector, is engaged in mediation process.

Indeed, with regard to the institution I am responsible for, a major reform intervened during the previous years, with the registration in 2008 of the institution in the Constitution under the title of Defender of Rights. On the occasion of this rise in the legal order, the scope of the mission has changed, has expanded considerably with the grouping  of four independent administrative authorities. It is the Ombudsman, the oldest of the four, the Ombudsman for Children created in 2000, the National Security Ethics Committee, also created in 2000, the High Authority to Combat Discrimination and for Promotion of Equality which is the most recent.

The four authorities are grouped within a single institution with a very specific organization. However, in our organization,

drawn by the Organic Law during the debate in Parliament, the Ombudsman for the Rights  is assisted  by deputies on each mission.

I chose women assistants to perform these missions. Let us quote the Ombudsman for Children, Madam Marie DERAIN, the  assistant  in charge of the Authority to Combat Discrimation, Madam Maryvonne LYAZID, who was the first vice-president of the HALDE (High Authority for the Fight Against Discrimination and for Equality), an assistant in charge of watching over trades security,  police, municipal police, customs ethics, Madam Françoise MOTHES and the mission related to  relationships between the administrations and public services  exercised by a General Delegate, Bernard DREYFUS, who exercised this mission with Jean-paul DELEVOYE.

This is the organization drawn by the legislator with colleges on the issue  of children, the security ethics  and the fight against discrimination. Naturally, we pursue our mission with the gathering of the teams, those who worked with  the Ombudsman :  the HALDE (High Authority to Combat Discrimination and  Promote Equality), the CNDS (National Security Ethics Committee) and the Defence of Children.

Then, we benefit from a network of 450 regional delegates and is an extremely useful means of action in the context of confidence that is at the heart of your thoughts today. I use the term “benefit” because these women and men are volunteers, about 80% come from public service in all its forms

These are usually young retired people who wish to continue to be socially useful, involved in the service to others and who put their skills and experience to allow access to the law by becoming territorial delegates for the Ombudsman

Thus, it is about 450 persons deployed throughout the territory, metropolitan and overseas departments, that allow the citizens to have a physical and human contact with our institution and not just by mail or by e-mail. Obviously, we wish that the formalities of seizure are as flexible and opened as possible, thus we can be seized by mail or by e-mail, but also by meeting a delegate in one of the numerous offices. There are more than 600 across the territory, in departmental centers dedicated for access to the law, in associative places where the person can come and be respected, heard and listened by somebody who looks at her in the eyes.

You can measure it in the exercise of your missions : our fellow countrymen are often irritated, sometimes even discouraged by mechanisms that increase in number, we have to deal with phone platforms and reach a service only via Internet. Thus, being understood by somebody who is going to answer you is something positive.

Sometimes even, you explain that the administration did not make a mistake, but at least, the explanation will be given. Thus, I attach great importance for this human dimension which gives us our territorial network.

Concerning our means of action, I would say that they are two kinds: the protection of the rights and the promotion of the rights

The protection of the rights is the treatme of files and complaints that we receive. It is the first one of our missions for you, for us. Moreover, the law requires us to answer any court referral, even if it is inequitable. Every person has to receive a letter, not simply a vague standard form, but a letter suited to his situation. We receive approximately 90 000 complaints every year. It corresponds moreover to the addition of the number of complaints which received the four previous institutions. This is the complaints treatment, that I call the protection of the rights

The second way, the second way to intervene for us and to fulfill the mission assigned to us by the legislator, is the promotion of the rights. That is, naturally from the observations we make on the treatment of the complaints, to make so that we can act in a preventive way by ending dysfunctions, attacking the cause which can be a regulation, a ministerial decree, a decree or a badly drafted article of law. It can also be in the wider sphere than the only public sphere : bad behavior that  settle down gradually in certain sectors of the society, in the field of the access to the employment or the access to the housing. Thus, a permanent dialogue with the actors of the society will allow to develop equality practises and less discrimination

So we have the power to propose reforms to the government, Parliament, Government, which is recognized by law.

We also have a recognized ability to work with civil society in the field of promotion of the rights

I come back to the claims treatment which is our  first mission. The law gives us a range  of ways which is extremely wide. It goes from the amicable settlement thanks to the mediation, sometimes even the most informal mediation that is, until a more formalized  mediation according  the terms of the law or  to the intervention, if necessary, in contentious actions. That is to say that the Ombudsman has the ability to make submissions in front of any juridiction,  any court, whether civil, criminal or administrative. After investigation, we file submissions to the court, following the request of prosecutors orthe request of a party or on our own initiative if we feel that the situation justifies it.

Obviously, the use of legal action has not substituted for mediation and finding amicable solutions, as well as the intervention as a neutral and impartial trusted third party in a dispute.

Most of the solutions that we find for the 90,000 complaints we receive are made through the use of mutual agreement procedures, mediation procedures so the link  with the  four authorities is not a setback for mediation. Even, to a certain extent, this is an extension of the field of mediation. Previously, it was conceived in the field of the relationships between citizens and administrations and public services. Today, mediation can intervene  for example in the fight against discrimination.

I’ll take an example which is quite new and I think that it speaks for itself. Often, unlike disputes between citizens and public services, discrimination issues end up in the court, because discrimination is a crime that is sanctioned  by law. Obviously, tradition and way of behaving of the  teams of the HALDE and the High Authority  High Authority  were to go to the courts to convict the person or company that was guilty of discrimination. We obviously continue in this direction. But sometimes, we introduce a mediation process in such cases.

For example, a few weeks ago, a couple of elderly people,  aged about 75 years had been discriminated because of the age by a real estate company that had refused to rent them an apartment simply because the law says that beyond 70 years, when a tenant does not obtain  the renew of the  lease, the landlord ha to find alternative rehousing. So this protective device for the elderly over 70 years had been perceived by the lessor as a constraint. Therefore, people were excluded because of their age

They seize to court and the Defender of the Rights, a legal procedure is  brought  in the court. The company, probably on the advice of its Legal Adviser, obviously considering that it would be condemned, wanted to move closer to the people who were discriminated and made it through the Ombudsman for the Rights, asking us to make  these people compensation proposals.

We felt that the proposed compensation was adequate, it was around 25 000 euros. The persons considered that, indeed, they felt restored in their rights because the on  one who had discriminated acknowledged he had done it and he thus compensated those who were the victims. The affair was settled by an agreement and a transaction in which we presided

It was an advantage for the persons who had seized us, the case was settled within  three months while if they were undertaking a legal procedure, once again they were 75 years old, it could last five or six seven years. So they believe that the offense has been repaired and concerning the company, it is freed of this dispute. So in areas that could be disputes domains, we can intervene with a process of mediation or conciliation playing the role of a trusted third party

That is what I wanted to indicate to you so that you measured well that in the new institution of the Ombudsman for the  Rights, mediation is no longer confined to the sphere of relations between citizens and public services, but extends to all the missions we exercise. As indeed in the field of relations between citizens and public services, we have recourse to means of contentious when mediation has failed and we are convinced of  the citizen’s rights.

That’s what I wanted to tell you by  by yielding you obviously all the interest which our institution carries in your works. Our teams are in relation to each other in the treatment of cases, but it is obviously useful that  periodically, we all meet to think about the mission that we share. You spoke about  protection of civil peace, protection of the social link  and what makes the republican pact. This is a great public service, it is ours. Thank you for having invited me.

 Emmanuel CONSTANS

Thank you very much, Mr. Ombudsman for the RIGHTS for these words which  are really valuable for the continuation of our work. We are also very pleased to welcome Jean-Paul Bailly, Chairman and CEO of La Poste Group and who has long been for a long time friend of the Mediation and of the Mediators Club.

Managing one of the largest French companies, Jean-Paul Bailly is an expert of the change management. Leading change is not easy whether it is on the economic, social or human front. In a country that has reluctance to needed changes, you kindly accept, Mr. The Chairman, for giving us your point of view on this issue of the need for confidence  and mediation. We thank you.

 

Jean-Paul BAILLY

President and CEO of the Group La Poste

Thank you very much. Good morning to everyone of you. I will, of course, greet Dominique BAUDIS, the Ombudsman for the Rights, of Rights and congratulate him for his work and commitment.

I also wanted to greet and to thank Emmanuel CONSTANS, the President of the Club of the Mediators of services to the public and then to greet each of you in particular the mediators, their guests and their teams who are here

I wanted, of course, also thank the organizers of this conference for the opportunity to express myself on the theme of confidence which is, you know, is a key value of the Post. We are going to say  that the Post is par excellence the trusted third party, the postmark shall prevail, it is confidentiality, it is an absolutely central value of the Post

We thus created an observatory of confidence which  is research and reflection structure and which is intended to try to better understand the constituent levers of the confidence. During this about fifteen minutes, I’ll try to propose an inventory regarding confidence and how, within the framework of  the Post Office, we rely on this absolutely central value.

I’ll give you an example right away. For ten years I have been at the head of the Post Office, we made successive strategic plans. The first five-year strategic plan was called “Performance and Convergence.” This meant that the performance of the Post and the convergence of a number of government decisions to help for the development and success of the Post. The second strategic plan was called “Performance and Confidence.” This translates very clearly the virtuous cycle between confidence  and performance. This is true for a company, for a child at school for a sports team. The central value of the trust is to me absolutely essential

We follow a barometer of confidence and the 2013 edition has just been released. It’s interesting, because we see that in France, the situation is really paradoxical. On one hand, there is a continuous decline in confidence for  the future. We went from 60% in 1982 to 39% of French people who trust in the future. We often read – and this is doubtless true – that we are among the best on the pessimism and despite, there is a very strong self-confidence and confidence in the future, since it is 77%.

There is also a strong need for trust which  is strengthened. You speak talk about it in the roundtable talk. It is reinforced by the complexity of our environment, new technologies, loss of marks, humanitarian crises, political crises, crises related to terrorism, etc.. There is a growing uncertainty and anxiety that reinforces this need for trust and at the same time, this occurs in a society where it is rather the suspicion that tends to settle down. The confidence level is very low in our society, because of the economic and financial crisis in particular

The most characteristic is that the confidence in institutions collapses, including institutions that had so far resisted well as the mayors, who were men and women in whom  the French people trusted in the past. Mayors have lost 20 trust points since 1982.

There are only a few exceptions to this somewhat pessimistic view that is – and I am happy to greet them, because I know they are many in the room – the consumers’ and generally any proximity associations . In other words, people do not trust institutions, they find that hospital is terrible, but the nurse who takes care of their father is very kind. They find that national education is not going well at all, but the teacher who takes care of their little girl is remarkable. There is a tremendous gap between institutions and trust related to proximity.

What appears in this crisis of confidence is that if it is partially due to irrational fears, it reflects the reality and specificity of our world which  are twofolds. On one hand, the future is perceived more as a threat than a progress. This is the first factor for the loss of confidence. The second is a feeling of helplessness that impedes action, it is a kind of fatalism related to the complexity of global problems

I think it is really essential that everyone think  about how to create a culture of the confidence, build confidence and maintain this valuable asset especially because one of the other characteristics of the confidence we can measure every day is that it takes years to build and it can be destroyed within a few minutes, either on a personal or institutional level.

First, I would like to testify, because I worked a in  the mediation field, whether it is  the mediator for the Post, either outside the Post, either inside the Post on different levels of mediation. In a company which occupies 250,000 people on the whole territory, mediation is not limited to the action of the mediator.

There are strata of mediations and dialogues inside the company which play a completely essential role in the confidence.. My belief is that mediation replays a key role in the creation of the confidence. There are also internal mediation. We often talk about mediation customer-oriented mediation, but in reality, within large institutions, there are the same type of phenomenon.

It allows customers, postal workers and those working in the company  to be heard if they feel they can not do it by natural means, and this thanks to mediation which is free, confidential, impartial and transparent. Thus, in a way, creating confidence is the feeling of being listened,  being considered and a feeling of a fair treatment. This is actually what makes the foundation of confidence. This is why the theme you have chosen : relation  between confidence and mediation is particularly interesting

The second part concerns more directly  the Post office. It is clear that this one occupies a rather particular place in our society and has an exceptional  capital of confidence. In all rankings, the Post is always on the podium : it is the institution in which we have a  high level of confidence, it is the one  that has the best imag. There is really is an inseparable link between the concept of confidence  and the postal world.

Moreover, we understand very well why  : because there is at the same time  a personal and intimate and confidential relationship. We thus understand very well that a mission  as the Post has could not exist without confidence.

There are several fundamental rules  for the  strategy of the management philosophy of the Post. I go back to what you were talking about, dear Emmanuel, and which illustrate how to develop confidence by favoring the long-term and live together. I’ll just try to give two or three examples of items that are constitutive, which can both drive change while maintaining or creating confidence.

The first point is to have a management philosophy which is articulated on confidence  and whose first element is to work hard on the project, the ambition, the  vision and the meaning

If we do not share the meaning or  the vision, it is extremely difficult to share the confidence, because it involves to build the future together. The first important point is to spend a lot of time on the project, the ambition and strategic plan and then ensure that the management philosophy is based on the confidence. That is to say, we say to each member of the team what is expected from him, what is his role in the evolution of the company.

Then, the purpose is not to make him  an extremely precise  method where we showing  we would not trust him. On the contrary, we should say “From the moment we told you what we expect from you, we will give you all the means to success.” We have  then to prepare everything, to organize the support. It also concerns training, skills, tools, the tools quality, systems quality, the context in which you work, etc.. It means  all the conditions  which it is necessary to gather so that a person to whom we say what is expected from her, can do the works well.

The third point of philosophy includes  Meaning, Support and Follow-up. Normally, confidence goes with requirement. Consideration also goes with requirement. This is the first point.

The second point I wanted to mention is that, obviously, when we have to drive the change, it must be explained, but it is also necessary  reassure. It is always very important to say that the change, there are things that do not change. So there what changes, but there are also decisions, innovation, etc.. This is vital, but people need to understand the base of the  things that do not change. In a company like the Post Office, the base of things that do not change include these values ​​and the public service missions.

It is necessary to build the change by demonstrating that it is not a break with regard to the values, but that it is a continuity with regard to these values. It is necessary to pay attention, because there may be a difference between the value and the way there it is translated.

The same fundamental  values ​​are not translated in the same way in the 50s and in 2010. There is a kind of adaptation to make contemporary these values ​​that are quite essential. It is a question of  change while maintaining the values. This is very important, including for confidence : it does not mean that we are going to change everything while keeping our values, but we are going to change for our values​​. Keep the values ​​ today mean still be able to meet the expectations of today’s French people, but they have nothing to do with French of the 50s. If I have not changed and I’m not always in tune not with today’s French people, but those of the 50s, it means that I have lost my values. Indeed, I do not not answer anymore what the French people expect from the Post Office. This is the second point.

The third point is that I am convinced that to create lasting confidence , it is necessary to lean on three pillars in a balanced way in the company. These three pillars are service quality and service relationship within the framework of public service missions, well-being in the work and thegood  economic health of the company. It is always important to keep in mind these three pillars. If we think well, nothing holds if there is not these three pillars.
We can not imagine a good service quality or a pleasant job in a company which is in very strong economic difficulies. Just as we can not imagine a high quality service with employees that would not be good in their work. Continuing consideration of the balance between these three pillars is essential in building confidence

Finally, the last point that I think is essential in building confidence – this is the secret of the creation of the confidence  – this is to ensure that the company, in the way it works, it manages internal and external  environment, is a continuously well balanced balanced treatment and fair for all stakeholders. That is to say, it has to be extremely attentive to citizens, customers and employees  and everytime there is an exchange. If I take the example of customers, the exchange is between the quality of service I offer them, the fact that these customers buy my services and products , and they are loyal to me. There is always a balance in the relationship with stakeholders . It is very important to preserve this balance for citizen and client, employee, corporate stakeholders,  with the territories and with elected officials, with all partners, whether suppliers or shareholders.

It is the balance between all these stakeholders which is the key factor of the effecticiency and the creation of the confidence. Once you start to treat in  an unbalanced way with one of the stakeholders, it will return to a logic of mistrust.

These are some ideas that I wanted to share with you on the situation of confidence in our country, the importance of mediation, listening and fair treatment of each to create confidence in our country and in our companies. Thank you.

Emmanuel CONSTANS

Thank you very much to Jean-Paul Bailly for its intervention. It really a whole conception of both management, confidence and the balance of our society in its future that you presented us. This is extremely valuable for all participants of our conference. Thank you M. Ombudsman for the Rights, thank you Mr. Chairman and CEO, for your double introduction to our works.

We now have, with Marie-Laure AUGRY who will join me in this forum, our two successive round-table talks. But before the first roundtable, we will give you a very short presentation of a film on the mediators of the club.

We have two short films that will be presented before each of the two round-tables so that you can be briefly acquainted with each of the mediators of the club. We were able to realize these movies with the help of journalism students from the Higher Institute of Communication and Professions Audio-Visual, the ISCPA, and training director of the institute, Mr. Baldy. During the last months, they have assisted with extraordinary professionalism that has allowed us to realize these interviews. The whole course has been reduced to a very short time in order to remain  within the duration of our conference, but we can find these movies on the club’s website and on the websites of each of the mediators.

The gathering of this set was made ​​by Ivan Roth, I would like to thank, himself a former ombudsman of the RATP, honorary member of our club and a leading expert on issues including audiovisual and on a technical level, since he has done all this in less than 48 hours.

So we present to you the first part of this short movie

 

 

First round-table

 

A growing need for mediation today

Marie-Laure AUGRY

Good morning to everybody, I am very pleased to see you. We will have two round tables.

The first one, Emmanuel CONSTANS said earlier, concerns  the growing need for mediation. Moreover, I will ask all those involved in the round table to join me, I’ll be able to introduce them

The second round-table will focus on the mean of building a shared confidence. We will try to be rigorous enough with the time, that is to say, each participant will have about five minutes to facilitate the exchange and questions you want to ask each other.

The first theme is a growing need for mediation. We will se, through the testimonies of each other, the context in which it is related. We said earlier in the introduction, there is the complexity of the society, there is a lack of benchmarks, the difficulty of knowing the right people, to enforce its rights, etc.. It is this context, that will be explained by some interlocutors around this table, that changes consumer behavior. Emmanuel CONSTANS said that the  European level has to be taken into account in relation to anything regarding mediation.

You can hear them alternately, I shall give the floor.

Julien HARTMANN who is a member of the emergency Rights association. It is with him that we shall see that the law  is taken into account in the fight against social exclusion and that is very important.
Then, we shall have Jean-Jacques HAZAN whom many of you already know, because we see him from time to time on television, he  is the president of the Federation of parents’ Councils. We shall also have Ida NAPROUS, who is going to speak to us about a very interesting experience of mediation which takes place in the school environment.

We also have Laurent Garnier, cabinet KP / MA, who will talk about this change in consumer behavior, which I becoming more and more virulent. He will explain why.

We will then have Martine MERIGEAU of  European Consumer Centre, which handles cross-border disputes. We will see what can be the place and role of mediation in these very specific cases.

Finally, we shall have Jocelyne CANETTI, mediator of EDF, who is going to speak about one of the aspects of the mediation which is very important in the current context of crisis, that is the treatment of closeness  emergency situations

I believe that through the actions of each other, we understand what means this growing need for mediation and under which conditions the mediation can take place.

I will first give the floor to Julien HARTMANN. Thank you for being with us. Your Emergency Rights Association was created in 1995. It concerns the development of access to the law, assuming that the law is a tool in the fight against exclusion.

So this is what you are going to explain : in which  circumstances these difficulties are encountered by people who are in the precarious and difficult  situations. Then you will explain us what is your approach  to meet people,  and how you can practice this. The fight against social exclusion, it is to make known and enforce the rights above all

 Julien HARTMANN

Good morning and first,  thank you for inviting the Emergency Rights Association to have invited the Rights association immediately, which I represent today, to participate in to this symposium..

Indeed, the volunteers of the association, who are mainly professionals of the law for the inhabitants of Ile-de-France, judges, lawyers and academics, went on the field of the fight against extreme exclusion since 1995, three years before the implementation of the law on the fight against exclusion who recognized the method of access to the law as a tool to fight against exclusion with the development of alternative dispute resolution.

With this expertise of the most needy in terms of access to the law and mediation, the association first launched discussions with law professionnals I already mentioned, but also with associations that are closer to needs of the poor, charitable and humanitarian organizations, and also with local elected officials who have a very specific understanding of people’s needs. This reflection led to a conference in the early 2000s

Also let us note the very fast implementation of action regarding the prevention of evictions for rent arrears.

This is a field and a public, people threatened with eviction for unpaid rental, we evaluate them as having a need for the access to the law. That is to say, the need for assistance to the knowled legal information, then the implementation of of an assistance  to the exercice of the law. We understand access to judges, but there is also access to other means of dispute resolution, here mediation.ge of the law, it goes through a council or free

In 2000, the professional mediators or specifically trained, did not necessarily exist. It is thus volunteers of the Emergency Rights association, most of the time the lawyers, who besides their knowledge of the law, began working on this alternative mode of resolution of disputes, in equity.

This action of mediation regarding unpaid rent is subject of a partnership with the Abbé Pierre Foundation, the National Housing Federation, the City of Paris and the Police head Since 2001, anyone involved in this type of dispute received the coordinates of places where she could have free access to a diagnosis of his case and, if necessary, the implementation of mediation.

Tens and hundreds such cases have been treated in this framework for more than ten years. In the context of hard crisis in Ile-de-France related to access to housing and also safeguarding in the housing  for needy people, this has allowed to find long-lasting solutions.

Conflicting representations are often evoked : on one hand the failing tenant who thinks that the owner is indifferent to his administrative situation, then on the other hand the owner who, very often, thinks that the tenant makes wrong budgetary choices, he sis responsible for that, and that, anyway, the laws exist only to protect the tenant.

This conflicting representation regularly going to lead people to the dispute, to the court, with obviously a cost, a slowness, then a solution and, generally, the debt is not recovered, Indeed, if the disputes concerning renting eviction for unpaid rents, the persons do not pay their rent, it is because they cannot longer do it.

On the other side, you have an expelled tenant who finds himself either in the street, or durably in precarious conditions of accommodation, because we know that the situation in Paris, in particular, is very complicated.

To this situation a bit catastrophic, we oppose a solution provided by mediation which, thanks to a restoration of the dialogue which is very important, the parties will revert to what they were before, namely a tenant and a landlord able to deal problems together rather than making deadlocks. It will aim at keeping both tenure and making a schedule for the owner to recover the debt under favorable conditions.

Marie-Laure AUGRY

Well, these are very specific examples which indeed show that the amicable resolution of disputes avoids a lot of things. You will have the opportunity to answer questions.

You meet people, thus  I wanted to point out that  there are offices in Paris, there is  a bus of lawyers that existed since 2003 and that besides, you also intervene in other important fields that we will not discuss here : this is access to the law and mental health, access to the law in prison.

Jean-Jacques Hazan, good morning. You are the president of the french Fédération des Conseils de Parents d’Elèves. When we listen to the information, we realize that the school is often the source of some tension and conflicts. The parents are obviously concerned about this. You also have a kind of direct mediation role and confidence  is essential. We’ll see how you can exercise it with the difficulty that is sometimes linked to the complexity of the texts. However, your role does not stop there, because you also have a warning role.

Jean-Jacques HAZAN

Absolutely, thank you. Good morning everybody.

The FCPE is just over 300,000 member families. Therefore, we have nearly 30,000 delegates who make of  their action a rather permanent mediation. This is true at the local, county and national level.

Why are there more needs for mediation and for confidence? Because the stakes which are implemented in the institution or in the company we speek about  are considered as more and more important. Then, the complexity of the system makes transparency and clarification difficult. It is necessary that actors of the system can be this link of reconstruction of  confidence.

In the Department of Education, it is especially true, at first, because there are few laws and decrees in this field, but many heavy, long, red circulars or not, applied or not.

You know one since we have promoted it. It is circular of 1956 which prohibits homework and is not applied for 56 years : everybody violates it regularly while we demonstrated that it is useless, it is wasting time and it only organizes one thing: conflict at home. Apart from that, there’s really no serious effects.

It is therefore necessary to question a many things and go further,  explain them, convince and train. This is an element that generates confidence and transparency.
We can promote confidence. We can show in which direction we want to go, to convince, etc.. Then it must be done, otherwise, confidence  quickly gets lost.

Today we are in a stressful situation where everything must be done quickly, we never look very far, we try to go to the most urgent and we put aside a number of key values ​​and rights.

The elements I am going to quote are current elements which generate a lot of conflicts.

The first one is the school catering. Nevertheless, the equal access to  public service is something entirely constitutional, but this principle is more and more questioned. It is therefore necessary to go to mediation, to meet a Mayor, to show him what we did

We created two kits for the school catering. There is a kit for mediation and a kit for court. At first, we go  with the kit for mediation. This is simple, it is about reports of the courts. But if the Mayor does not understand, if we however want to assert the rights, it is then necessary to proceed to the next step. But if we do not want to judicialize, we must first try to convince,  it is a what we try to make in the different fields.

The second conflicting element concerns the lists for the start of school year. You know, these are the lists which  normally  require only a few things, but that lengthen every year. This makes that school bags are heavier while we want them less heavy. We would like the cost of school less important, that school is free of charge, that the municipalities give more, but finally, the list lengthens.

Nevertheless, we question a fundamental principle of free access to the school when we do so. Thus, , the transparency, confidence and reflection become again necessary.

The third element concerns the redoubling and the no chosen orientation, fully undergone, while finally, apart when anybody committed an offence, which right allows adults to change him his orientation, that is to say his life plan? When a person committed an offence, there is a judge, all right. But, otherwise? By which right do we consider that just because a mark, which  it only have a very relative value, would we determine the project and the future of a young person? It is normal that it generates conflicts

The last example concerns the replacement of absent teachers. We totally violate the continuity of public service. Thus we need to add right to restore some confidence. If we want to clarify all this, we need local actors who speak the same language as the complainants. The best tool for mediation with the parents is to have parents who look for this mediation, who try to make it

That is why in the FCPE, we have almost 25 000 mediators who make this intervention, who try to intervene, to remove the conflicting problem between two individuals, for example a teacher and a parent or a child and a teacher, or the institution, then to treat it on the step above. That is to say when there is a problem in a class, to deal with it with the principal or headmaster. When there is a problem in a school, to treat it at the departmental level. We also have a national level. That is why by federating all this, we should be able to manage and to put oil in the gears.

Marie-Laure AUGRY

Thank you very much Jean-Jacques.

We are going to stay in the school environment with Ida NAPROUS.

This is an example of mediation that I find particularly interesting. This takes place in the middle school Anne Franck in Paris. You are a teacher, a professor of history, geography and educational civic, you are an activist of the mediation. Thus, the basis of the experience  is how to appropriate to live together in the everyday life in school environment, how to avoid small frictions, the conflicts which may exist You’re going to explain it in detail.  What is interesting, it is that this mediation you introduce is made by the pupils themselves. That is to say that these are schoolchildren  who go to meet the pupils of the elementary school next door to practice mediation. I find it pretty amazing. Then explain it to us and we will see what are the effects of this approach.

Good morning everybody and thank you for this invitation. I have several caps : I am both a teacher, mediator, mediation trainer and member of the ministerial delegation in charge of  prevention and fight against violence in schools, created by Eric DEBARBIEUX.

It is through civic education that I arrived to mediation. The question that crossed my mind, a few years ago, is how to ensure that students appropriate republican values​​, the values ​​of living together and not just learn more or less by heart the Republican orthodoxy and  try to replicate them  during a written question.

The question that arises today, not only in both schools where I work, but also in the other schools, is, how prevention and management of conflicts by the mediation can contribute to improve the school climate and to contribute to the well-being of the pupils and the staff?

You know, the media are feeding us every day with  paroxystic violence in schools. In fact, most of the violence are “micro-violence,” according  the words of Eric Debarbieux. These are uncivilities, jostling, insults. But some of them have a much more serious nature, such as harassment and cyberstalking and can be experienced as real violence, with dramatic consequences. Victimization surveys undertaken by DEBARBIEUX Eric and his team allow us to better understand and to better observe these phenomena.

The school institution is at first, naturally, a place of transmission of the knowledge, but it should also be thought as a better space for socializing.

That is why I proposed the middle school Anne Franck where I teach since 1997 the mediation. It was made as I prepared a university degree for the IFOMENE (Institute of Training in the Mediation and the Negotiation) : I thought that role plays could interest pupils, teaching by having fun.

Thus at the start of  2004-2005 school year, I created in college Anne Frank in Paris a weekly workshop of mediation by the peers and with the participation of voluntary students from sixth to third class. This had a great success because each year, twenty students join it. Some have experienced mediation being themselves “mediated” in elementary school. I had the approval of the principals with allocation of extra hours to ensure the workshop on extracurricular time.

One thing leading to another, the director of the primary school nearby, the school of the street St Bernard, had heard about school mediation, since 70 % of the pupils are then registered in this nearby middle school.

Thus  we decided to create something in the school. After a games, theater and mediation workshop , for financial reasons and lack of coordination with the actors, we decided to ransform the project. It thus became a permanent mediation assured by trained college students who come every week in school on extracurricular time to supervise, according to the wishes of the director.

We practise the approach and the protocol, as all the mediators, especially the ANM (the National Association of the Mediators) of which I am a member to promote the school mediation.

Mediation requests come from the students themselves, of the director, teachers or organizers. We also have a place in college and I make co-mediation with young mediators within the college, at the request of the principal, the CPE (Educational Main Adviser), assistants forschool life and sometimes teachers or students themselves

Mediation is at the heart of the school project with just a very good aura, not only actors within the schools, but also parents because I participate sometimes in the Board of Directors College or School Board. Representatives of parents recognize the benefits

What are the objectives of this experiment? It is first to learn to communicate, to become aware of the need for rules to integrate the link with the Law. I insist on the fact that mediation does not exclude punishment. It is part of the repair process.

Marie-Laure AUGRY

You talk about a well understood authority?

Ida NAPROUS

Exactly. It is also a question for trained students and adults to appropriate rules of mediation and contribute to what we call the school base, developing language, social and civic , skills, to allow students to exercise their autonomy and initiative.

What is the result? Primary teachers seeing that there was a small miracle which occured after the extracurricular time while we often have conflicts, wanted to know what was going on in a permanent mediation and what wasmediation. They thus asked for a raising awareness.

We can say that the mediation contributes to an improvement of the school climate, essentially relational climate, but also the equity in the sanctions which are well clarified. She allows to create the confidence for the pupils in their ability to be able to solve by themselves the conflict. The pupils also appreciate the no judgment and the secret at the heart of the approach.

We all practice the same mediation, that is to say that the mediator does not have the solution, but helps children to find the solution that suits both parties.

To conclude, I would take the idea of ​​Jean-Pierre BONAFE-SCHMITT: mediation is not a simple management tool  of conflicts but a real educational project for a caring school.

Marie-Laure AUGRY

Here we are, we shall have maybe the opportunity to as you questions with regard to this experience. Thank you very much.

Conncerning the evolution of the behavior of the consumers, you are doubtless all confronted with it. We are going to ask Laurent GARNIER, associate director associated of  the cabinet KP / AM, what does this cabinet.
His function is to analyze the verbatim of the consumers as well as the complaint letters. It is naturally the best way to note the evolution of the consumers behavior. However, we cannot say that the result is particularly positive, because there is a real radicalization of the behavior. How do you explain it? Let us make at first observation, how radicalization occurs?  Is it by a behavior, in a verbal or other way?

Laurent GARNIER

I represent a research cabinet  that analyzes for eight years complaint letters for  big companies. We analyzed hundreds of thousands. When I say analyze, I mean linguistically analyze with care to understand what is said and what is not said, what could be said, what is whispered and could become something important later . That’s what we do.

It is on this basis that I am going to speak to you about the observation which we do. Indeed, as Marie-Laure said,  there is a radicalization of consumer,  citizen behavior , etc…

This radicalization manifests itself very clear on several points. The first point is the judicialization of the reports. That is obvious that in the complaint letters, we see more and more use of law articles, of legal terms of sale conditions, threats of recourse to lawyers or consumer associations and sometimes to lawyers letters.

Responsible for this situation are, of course, the evolution of society, but also insurers who sold accessible legal insurances  to consumers and these consumers  do not hesitate to use these lawyers and legal insurances

The second observation concerns the use of a more and more frequent smutty language.

The smutty language, which was reserved for the phone and oral channel, spreads now in the written channel. Complaint letters or e-mails also are now concerned with this smutty language. We see thus that there is an evolution which is not very positive.

The third thing is the  recourse to what I call the ultimatum, this is the famous ” You are very kind, but you are not going to solve my problem and if you do not do it within  the fortnight, you will never hear about me “. This recourse to the ultimatum was something very rare. I can assure that eight years ago, when we began to analyze complaint letters, this occured very rarely. Now, we do not wonder anymore to see it. The customer services managers do not wonder to see these kinds of threats, these ultimatums which are now commonplace.

The fourth demonstration of this radicalization of consumers behavior is what I call the explosive behavior. It is reserved in particular for the phone channel. It is a consumer or user who calls a hotline, who seems very  gentle and suddenly, starts screaming on the adviser who is speaking with him. Very often, this extremely violent explosive behavior tends to panic totally the hotliner, because he did not see coming this type of behavior. It is understandable, because often, several bad signals were sent to this consumer and, suddenly, this is the last straw, and the consumer gets excited.

The fifth thing is over-reporting. To make it esasier to undestand, I will talk indices. Overall, it came 100 and the person tells you his story to 130

That is to say that he over-reports what  happened to him, so there is a part of lie there, a part of exaggeration. This is a clear manifestation of mstrust. If me consumer, I feel obliged to over-report what happened to me it is because if I say what just happened, it means  if I say 100, I feel that I’ll get only  50 or 60 as compensation. So suddenly, I over-state to 130 what really happened to get 100 as compensation.

The sixth thing concerns the requests for systematic commercial gestures. A customer service maneger told me recently that 80 % of received complaint  letters were accompanied by express request for  commercial gestures. This percentage is very important, but is completely the reflection of what is happening today. This demand was whispered  eight years ago and today, it is a kind of absolute systematization.

How to reinject some confidence? I end with that. It is absolutely crucial, because we see that behind that deviant or explosives behaviors, or which become more radical, there is some mistrust which is at the heart of this.

When we work on it, we finally realize that the best way to inject confidence passes through the relationship. The most effective way to re-inject confidence in the heart of the relationship between consumers and brands between users and institutions is the relational vector. I do not have time to develop it here, but I’ve done several studies on it.

I just finish with a last sentence that I borrow from Thierry SAUSSEZ  that I found very interesting, he said “Customer service is in charge of the trust in a world of mistrust.” It does mean how the relationship is currently at the heart of consumer expectations. Relationship and action of customer service, but also the action of mediation that will inject confidence . The challenge is there and not somewhere else.

 Marie-Laure AUGRY

Here is how to recreate some confidence, it will be the theme of our second Round Table. Thank you very much for thie details which are interesting. I think that everybody make the same observations almost daily.

Martine MERIGEAU, thank you for being with us. You are Executive Director of the European Consumer Centre. You are accustomed to border disputes. In your function, you obviously call national ombudsmen, this is what you are going to explain. This project is part of European regulations. The nature of your disputes is mainly of electronic order?

Martine MERIGEAU

That’s right. I’ll start by pointing out the incredible evolution, I believe, of mediation in France in the last decade. If we look at what happened, I think we also pay tribute to all those mediators who are here today and who, by personal commitment and extraordinary power have been able to structure the mediation. Thank you for making this work. We will continue to do so.

Maybe a word concerning the mediation in Europe. It is necessary to say it, the impulse is very European. It is the European Commission which began, more than fifteen years ago, to emphasize the mediation as a method of resolution of the disputes. Remember yourselves the recommendations of 98  are still present, they serve as reference. We had the directive of 2008.
Now, we have two very important texts which have just been adopted by the Parliament and by the Council in December. A directive which requires each state member to have a system of alternative dispute resolution in every area of consumption So we have to get to work, because it is lacking in some areas anyway!

Then, an immediate application regulation which plans an European platform for all the e-commerce dispute settlements. It means that the consumer, in any European country, will have access to this platform in his language to find a mediator, to settle his dispute.

I call back the functions of the European center of the consumption which has the peculiarity to have two centers, France and Germany, under a same roof. In Kehl, just next to Strasbourg, we handle more than 55 % of all the cross-border disputes which are listed in the European Union.

We have a kind of visibility of the cross-border disputes. 68% of them concern the e-commerce. Regarding the latter, we realized an experimental  project, as we believe this is the future. We must find a mediator Net.

I remember that in 2007/2008, we went with the German ministerial delegation to Paris to see what was  happening on the side of the mediator of the Net, an excellent example obviously to settle the e-commerce disputes. We set up an experimental project which now concerns more or less five regions in Germany with an increasing progress. The mediator of the Net does not exist any more in France, we will absolutely need to settle a new one, because it is really the solution to all the e-commerce disputes where the values of  dispute are relatively weak.

We are currently leading in Germany for the mediator of the Net a project with a rather  revolutionary for the French puritanical souls financing, because we have a public financing, but also private. We started with the German approach that says the mediator of the Net serves as much the interests of the companies as those of the consumers. That is why we must have a public and private bi-financing. Of course, some mediators may encounter the problem of independence. I can assure you that it is going very well. We have a charter with the professionals who finance the mediator of the Net. We have a charter with the Government and an agreement granting the funders. We work like that for  two years and it is going very well. There is no interference from anyone in the treatment of mediations

Jocelyne CANETTI

Just a word to say that a “e-commerce” mediator was appointed to the FEVAD in October, this is Bernard SOUFFI. He now performs his role of mediator.

Marie-Laure AUGRY

All right. Jocelyne Canetti anticipated her public speaking.

She is mediator of the EDF group. Although this is not the majority of the problems she faces, we chose to underline an aspect which is very interesting, in the context of the current crisis and for  this winter period, it is the treatment of emergency situations, such as the threat of power cuts.

Emergency! There’s almost a paradox, Jocelyne, with mediation because one of its virtues is to give time! No stretchable time, but a reasonable time, to solve the problem. We intervene in emergency, because it is the human being who dominates.

Jocelyne CANETTI

I think that’s part of the mission of the mediator.

It is true that it is complete paradox! Mediation requires time, it is reflection, investigation, it is equity but,  when it applies to emergency situations, you have to react quickly. Take the example of the SAMU (EMERGENCY MEDICAL SERVICE). It is necessary to react fast with humanity.

We have to deal with various emergency situations. I would say that we are here for that. We are at the highest institutional level in order to take into account individuals, human beings with listening capacity and put them in safety. The first thing in these emergency situations we have to treat is to be human.

Then, we give ourselves the time for reflection, discussion, deepening of the subject. It is necessary to treat the human being in an individual way and this is expected by our institutions which give to the mediator the time to do it and the willingness to treat the human being on the same level as  the institution. We say stop to the institution. We stop, we look, we put the person in safety and then we deal, obviously with the values of the mediation, with a listening and in equity having treated in safety the individuals.

The Mediator is the ultimate recourse at the highest level of the company. That is why we are expected for human, personalized listening, because somebody in the company has to be able to listening to individuals, human beings

All the mediators whom we represent have this attitude of extremely personalized attention, ensuring the safety of people and this before any deepening of their case. Listening, balance. I’ll take the example of mediator of RATP I like because he was delegate to the victims. That’s good, because it is the mediator who has to  support this human aspect. It’s the human aspect that is assigned  to the highest level of the company to an identified individual, clearly accessible and who will listen to humans.

Human being is very important for the mediator. That’s what we tried to do every day, with all the cases we handle, whether there are as a matter of urgency or not. The persons who submit us cases as a matter of urgency know very well that they are not in the normal circuits of the company. These are cries for help.

Marie-Laure AUGRY

It is of course something very important. It involves all the qualities of the mediation. The positioning at the highest level of the company allows to suspend a decision, to take time to find the right solution and sometimes even to go further, by making recommendations.

Jocelyne CANETTI

On all these issues, we have recommendations

We formulate it all, in a way that the processes or the procedures take into account these individuals who are in situations of emergency, crisis, difficulties, etc .Formulate recommendations  is an integral part of our work. We make it all along with the current in our jobs. I am used to say that we play a role of “itching powder” with regard to all the diverse and varied services, so as to better take into account difficult situations. We make it on a daily basis, we do not always say it.

We also say it in our annual report which is public. It formulates reports of what we see and the recommendations for improvement. In 2012, for example, I saw exploding in the mails the requests for compensation which are formulated. It was totally minor in 2011 contrary. It is a subject for which I shall ask the services to work in 2013.

Marie-Laure AUGRY

Thank you Jocelyne

Through all the testimonies you have heard some words stand out. The importance of listening, fairness, respect, confidentiality, but also free access. This is one of the virtues of mediation.

First, I would like to congratulate you because you were perfect in respect of your time, which now allows us to establish a dialogue with the audience. First question is always the hardest. Who will ask the first question to a speaker? We will give you a microphone. Can you introduce yourself and say what you do, because it is interesting to see, among the people here, the function of each other

The Conference Proceedings “Mediation and Equity”

Speakers

Debate under the direction of Emmanuel CONSTANS, Mediator of the economic and financial ministries
Béatrice MAJDA, Associate Lawyer, GB2A ( Caen ) cabinet, Lecturer in public law at the faculty of law of CAEN – University of Basse-Normandie.
Michel TALY, Associate Lawyer with the cabinet Arsène TAXAND ( Paris ), former Director of the of the fiscal legislation Department with the Ministry of Finance
Serge ARNAL, Delegate of the mediator of the economic and financial ministries

Emmanuel Constans: “This afternoon is dedicated to a reflection on the theme” Mediation and Equity. We are very pleased to receive two distinguished guests who are going to participate in this debate.
On the one hand, Beatrice MAJZA, who created and co-directed a well-known law firm based in Caen and several cities in France. Sheis also a Lecturer at the University of Caen. Our attention was called by a publication of Béatrice MAJZA on the theme of equity. You find it in the folder that was given to you.

We are also pleased to welcome Mr. Michel TALY, Lawyer associated with the Cabinet Arsene TAXAND, Michel TALY, who I have the pleasure to know personally for a long time.
He leads a quite exceptional career. He was Director of Tax Legislation. He has also held major responsibilities in the banking sector and in the field of chartered accounting. Today, Michel TALY is a lawyer, a specialist of the fiscal questions.
It seems to me very interesting for our discussion to have successively overview of the equity principle with the presentation of Béatrice MAJZA, then concrete experience of the implementation of this principle in the field of taxation and mediation with the presentation of Michel TALY.

Previously, Serge ARNAL is going to make, in the introduction, a brief opresentation of the concept of equity thanks to the works he has done on the subject.

Serge ARNAL: ” the theme of this reflection which is entitled ” Mediation and Equity ” arose from the sentence often used in mediation: ” the Mediator rules in law and in equity “. In law, it raises no particular problem. But, it seems necessary to clarify the notion of equity.

Our distinguished speakers will bring us answers to the following question: “What is the meaning of equity reported in the field of mediation? “. Equity is a vast and complex subject.

To approach this subject, I made an embryonic research at the international, national level, in legal matters as well as through citations. I thus found mister TALY’s writings which evoke the horizontal, vertical and intrinsic equity

I also wished to connect this question of equity with the fiscal system. This morning, we talked about ex-gratia recourse, regarding the fiscal question. You often use often, for this purpose, article L. 247 of the Book of Fiscal Procedures.
Regarding our tax system, this article is very important but taxpayers often don’t know that they can benefit from a tax remission (ie a total remission) or one moderation (ie a reduction) of their taxes, in difficult circumstances (economic and social reasons). This possibility also concerns the penalties, the transactions, the pursuit expenses, late-payment interests. With regard to this article L. 247, I wanted to pursue my historical research by paying a special attention on the notion of embarassment and indigence mentioned in this article.
I tried to identify the origin of these notions which arise from a decree of 1938. In fact, the ex-gratia recouorses existed before 1938, including in the fiscal field . If we study strictly this decree, we realize that we can deviate, even regarding the ex-gratia recourse from what is expected by the legislator when he speaks abourt embarrasment and indigence.

However, you should not necessarily be in a situation of embarassment or indigence to obtain a gracious remission of a penalty. Exceptional circumstances may lead to the granting of this remission.

Thus, for example, the tax law requires to establish a statement on a specific date. If by that date, the taxpayer receives a raise at a time when he was hospitalized – this is an extreme case – he is, of course, in the incapicity to respond to this raise. A fine of 40% is applied to him because the taxpayer did not respect his fiscal obligations. With regard to Article L. 247, it seems conceivable to grant a remission of the penalty in the name of equity. There are many such cases.

I found definitions which go back up at the time of the philosophers of the Antiquity. So, Aristote said: ” the equity is the justice moderated by love “. For its part, Cicéron, asserted, by speaking about the equity, that ” it is a natural, and at the same time true, right and just law “. We note this reminde to the notion of justice.

Closer to us, Portalis – who was one of writers of the civil Code- resumes at the same time Aristote and Cicéron by writing that ” The equity is the return in the natural law in the silence, the opposition, the darkness of the positive laws “.
The Larousse dictionary specifies that the origin of the word equity comes from équitas in Latin. But it raisesan additional interrogation because équitas is translated by equal, equality.

Regarding the law, can we assert that equity – it is the question which we will ask to our participants peakers – is equivalent to equality?
The law dictionary informs us that, in certain cases, the judge may determine ” ex æquo and bono “. What is fair is good, in particular regarding civil law. The judge can thus intervene in equity.

We mentioned earlier that the Defender of Rights is a constitutional authority. His way of acting and the method of referral are the matter of an organic law .
We find the term of equity in this organic law. Indeed, it is indicated that the Rights Defender may recommend to settle a dispute in equity, especially in the context of mediation. The organic law is automatically subject to review by the Constitutional Council and this one has not declared contrary to the Constitution the fact that the Defender of Rights can rely on equity to formulate a recommendation . The legislation reference to equity is not peculiar to the Defender of Rights : it was used by the Ombudsman, created in 1973. The concept of equity was introduced in 1976 in the law with regard to the Ombudsman. This is Paul Legatte, fourth Ombudsman, who first, defined the principle of equity. According to him, the implementation of the principle of equity is based on three conditions:

• The equity can not be contrary to the spirit of the law;

• The principle of equity can not go against what the legislator wished;

• When treating a measure in equity, it should not create unequity for someone who would be in a comparable situation.

At the international level, it is advisable to take into account provisions of the article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms which promulgates the principle of the respect for a fair trial.

I list them here some terminological references regarding equity.
The Constitutional Council frequently uses the term political and electoral equity in perticular concerning candidates who did not obtain the statutory right to speek speech. Applications may be invalidated for non-compliance of political equity.

Currently, a law on the reorganization of the school of the Republic is under discussion in Parliament. This law emphasizes the school equity, which is defined with respect to two determinants : on the one hand, social origin and, and on the other hand, the place of residence of pupils. The school results of pupils should not be affected by a discrimination based on social origin and / or the place of residence.

The social and fiscal equity. In its annual activity report, the Direction Public Finance states that the fight against tax evasion is essential to strengthen tax compliance in a purpose of social equit. In my view, social equity should be understood in the sense of societal equity

Regarding fiscal equity, in the same activity report, it is indicated that: ” the fiscal equity represents a strong stake, in the current context of recovery of public finances. Our fellow countrymen are attached to public services and wish everybody to participate according to its capacities “.

To avoid any confusion between, on one hand, the principle of fiscal equity and, on the other hand, the principles of equality in front of tax payment and equality in front of the public responsibilities, it seems to me important to remind the origin and the nature of these last two principles.

The principle of equality in front of the law arises from the Article 6 of the Declaration of the Rights of Man and of the Citizen of 1789, which plans that the law must be the same for all. By extension to tax matters, the equality in front of the law becomes equality in front of the tax.

The principle of equality in front of the public responsibilities is different from that of equality in front of the tax. It can sometimes be confusion between both. The principle of equality in front of the public responsibilities arises derived from the article 13 of the Declaration of the Rights of Man and of the Citizen of 1789, means that the citizen contributes to the public spending according to their income. This means where proportionality of the tax.

Following this research, if the equity seemed more recognizable, it remains not less complex and source of questioning, and this is the reason for these ten questions:

Is the equity comparable to the equality in front of the law and the equality in front of the public responsibilities?
Is the equity an answer to an individual, collective or societal situation?
Is the equity a source of the law, can it be included in the law?
Vertical and horizontal fiscal equity ?
Is the moderate application of the fiscal law a matter of the equity?
The administrative appeal generally falls there in the field of equity?
Does the claim for equitable relief regarding taxes planned in the article L. 247 of the Book of the fiscal procedures recover the domain of the equity?
Are there any questions that can not be examined in equity (including reading the last paragraph of Article L. 247, which indicates that a public authority may not grant full or partial remission of registration fees, of excise and VAT)?
A ministerial decision may it be taken into equity? While Article 34 of the Constitution states that the law establishes the base, rates and methods of collection of taxes of any kind, it may happen that the Government take decisions in these field. For example, following a catastrophic natural event, the Minister of Finance may be led to extend the dates for filing tax returns and paying taxes.
Can the case of absolute necessity be examined under the angle of equity?

I will conclude by Article L. 247 of the Book of tax procedures, which according to the law, determines the frame for tax remission. In front of each paragraph, you will find the legal basis. For information, the regulatory provisions of Article L-247 of the Book of tax procedures are planned in Articles 247-1 to R * R * 251 A-5 of the book.

The Book of Tax Procedures was created in 1981 by the integration and disjunction of the articles of General Tax Code relating to the control, litigation and tax collection.
Article L. 247 arises from the article 1930 of the General Tax Code where appear the notions of embarrassment and indigence codified in the Decree of 1938. The first general code of taxes came into effect in 1950 “.

Thanking Serge ARNAL for his intervention, Emmanuel CONSTANS hands over to Béatrice MAJZA.

Beatrice MAJZA ” Mr. Ombudsman , ladies and gentlemen . My name is Beatrice MAJZA , lawyer specializing in public law and Master Lecturer at the Law Faculty of Caen. I am first and foremost specialist for public law and therefore, the tax rules are unknown to me . The fact remains that the notions of equity , mediation is part of our everyday life including public law. Thus , as a lawyer , I intervene essentially regarding contracts in the management of ports, airports, telecommunications or the the public service law . But we are increasingly called upon not to conduct real mediation missions, but to develop memoranda of understanding that allows us to find alternatives to contentious . Meanwhile, in my capacity as a lecturer, I was called to intervene with the Regional Commission on Compensation for Medical Accidents , which was established by the 2002 Kouchner Law, and is somehow , a mediation body as this commission avoids the recourse to contentious . We deliver decisions in equity. Thus, when a person has suffered an injury regarding his health in an hospital we play public solidarity

I thus notice that, whatever is the branch of intervention, the principle of equity is invited in our work I’ll go over some provisions already described by Mr. Arnal, and try to answer some questions that some are very sharp.

I would quote the Chancellor Seguier that in the sixteenth century, feared the consequences of the parliaments equity and spoke “God protects you from the equity of Parliaments.” Indeed, they had a propensy to exceed the limits and judge arbitrarily.

The first question is whether we should really fear the use of equity.

I return first of all towards Aristote who underlined the inevitable link between the right, the law and the equity. How to present equity? Should it be seen as a softening of the law?

From the twelfth century, the canonists, inspired by St. Thomas d’Aquin argued that equity should be synonymous with charity and mercy and should guide lawyers. How do you define equity? Mr. Arnal underlined it : equity is primarily a feeling. It is a sense of justice, a relatively spontaneous feeling of what should be the rule.
In contrast to the natural law, equity is not defined by real rights which we could claim for.

Two conceptions are in confrontation from an historic point of view.
The equity could be considered as a natural mode of resolution of disputes. Such was the case in the Antiquity, as well as in Vth century, XIIth and XIIIth centuries and as was the case in France : we considered that it was necessary to judge in equity. The equity was then considered as a softening of the rule and it allowed, from case to case, to adapt the rule of law.

Besides, there was a stream of thought which was hostile to the equity : it was necessary to be protected of the equity of Parliaments. Many texts, from which the prescription of Blois of 1579, translate this concern to see the judges going too far in equity, treating too often case by case and thus “overturning” into the arbitrary power of the decisions.
As we are justiciable, the rigity of the legal rule is a kind of guarantee to be treated in a equal way. It is moreover our French vision of 1789. The law is the expression of the general will and all the complainants are entitled to the same treatment. The law is the same for all, whether it protects or punishes.

However, other legal systems such as the Common Law that induced that it was necessary to soften straightaway the rule of law. Legal rigidity is not the solution. Thus, the Common Law, which is written from the eleventh century in Great-Britain, had its corrective with equtiy. From the fifteenth century, the Minister for Justice judged exclusively in equity. A system of law fully based on equity was implemented. Two visions thus co-exist : the rigidity of the law guaranteeing the protection and equity considered as its corrective.

To answer another question raised by Mister ARNAL, I shall underline that there are subjects which seem to lend themselves more to the equity than others, in particular public law and above all, as well as you underlined it, the international law. Some courts decide ” ex æquo and bono ” as the European Court of Justice and the European Court of Human Rights

The French administrative law is of rather praetorian construction. It is built on a case by case basis. From the XIXth century, the administrative law, according to some authors, such as Maurice Hauriou, is presented as a law in equity, a law based on the prerogatives of the administration but allowing nevertheless the softening of the rule and this on a case to case basis.

First, it any is from the perspective of the public law that I will approach the question of equity. It is under the influence of the administrative jurisprudence that in France, from the end of the XIXth century and after the Second World War, the equity developed in administrative law. The equity, from simple moral concept, abstract notion became a rulel leading to equal opportunities. From a moral rule, we restore a form of jsutice rule.

Indeed, you have pointed it out, the principle of equality is the basis of our law. Even the Constitution of 1958 prohibits discrimination. The principle of equality is an easy application rule and it is a rule of law which we find in any subject.
We were wary of the equity in XVth and XVIth centuries because the arbitrary power of the judge, the injustice of the Ancien Régime raised fears. The equity was put aside by public authorities.

What dominated first of all, it is the equality of all the citizens in the first half of the twentieth century until the Second World War. The State Council, with its construction of the rule of administrative law, declined the principle of equality in the Declaration of the Rights of Man and of the Citizen, equality in law, in tax matters, regarding Public expenses, equality in front of the public service.
The Constitutional Council also recognized the principle of equality regarding taxes, and in front of public responsabilities. But we realized, we are always in the twentieth century, that the principle of equality knew some limits. Certainly, we are all equal before public responsabilities. Nevertheless applying equality does not allow to consider each individual situation.

Economic, fiscal, social or cultural disparities persisted. It was therefore necessary to move from equality to the equity. It is the administrative judge, as the constitutional judge is much more regulated by the law, who developed this notion of equity. The administrative judge so considers that it is necessary to introduce the notion of justice, to move from the concept of equality of rights to the equality of opportunities.
The administrative judge thus began at the end of the XIXth century to introduce the concept of equity. We have a major principle in administrative law which is the one of the responsibility. For a long time, it is possible to engage the responsibility of the State without fault.

In addition to this notion of commitment of the State responsability without proving any fault, there is from now a notion of equity. This notion of commitment of the responsibility in front of the administrative judge allows to put forward the principle of equity. The administrative judge, even today, uses this notion of equity in particular when he interprets written standards, when he creates some jurisprudential rules. This is particularly true for the right for a fair trial which is a major general principle of the law which we find now in all the subjects. The administrative judge considers on a case by case basis and adapts the legal rule. He intervenes in equity.

Finally, we note that the administrative judge, between the end of the XIXth and the beginning of the XXth century, moved from a formal control, a pure and simple control of the respect for the legal rules to a control of the legitimacy. Are we entitled to impose such tax system to such person? Can the legal rule be qualified? Thus we have a judge, the State Council, which has the reputation to be rather audacious, to be a judge who created the rule of law, even before the law, and thus for the administrative judge, the principle of equity is invoked outside the legislative rules and the regulations.
The administrative judge works on case by case basis within the global frame of the law. Unlike the administrative judge, the constitutional judge does not consider completely the equity as a legal rule. It is for him a reference. There are some references to equity in the decisions of the Counstitutional Council.

At the level of the administrative judge we notice an evolution of the notion of equality towards a notion of equal opportunity. Without formulating clearly the principle of equity, the judge wishes the legal rule to be better adapted to each case.
In reality, the development of the jurisprudence of the administrative judge is linked to the development of the Welfare state. The State is commited to more and more social rights and in favour of more equality regarding taxes.

However, it is impossible to be satisfied with a judge who rules in equity in a more or less clear way. Then intervenes the notion of positive discrimination and this is a more legal notion, if I dare to say, and which is mentioned in the texts of law. But how conceiving the coexistence of the positive discrimination with the principle of equality which, in French law, represents the “highlight” of the rights? The principle of equality is an obstacle to the negative discrimination. So, all the persons in the same situation should be treated in equal way. But it seems clear – in contrario-that the persons being in a differentiated situation should be also treated in a different way. The notion of positive discrimination was thus introduced with the aim to set up more voluntarist politicies intended to reduce the disparities. The notion of positive discrimination is going to institutionalize, to give some contents to the notion of equity. The judge thus concretizes the equity with the notion of positive discrimination, institutionalizes it and, finally, gives it a legal basis. The only difficulty is that we cannot systematically practise positive discrimination. It must be controlled. This measure must be temporary, it must also be proportionned to the experienced discrimination and especially it must be justified by general interest reasons. Finally, the positive discrimination must ceased as soon as we restored the equality.

Indeed, the equity seems to be the solution to reduce the disparities. From the years 1980-1990, a large number of rules were adopted regarding equity:

• Priority Education Zones (ZEP)
• the Law regarding Solidarity and Urban Renewal (SRU) which requires municipalities to develop social housing
• The Active Solidarity Income (RSA)

The legislator reported a will of solidarity to reduce the disparities and restore the social justice.
We can quote other examples : regarding public service, there are reserved administrative competitions, the third way of the ENA (NATIONAL ADMINISTRATION SCHOOL) were organized as being an example of equity.

The positive discrimination applies specifically in optional public services: day-nurseries, music schools, canteens, which gave rise to many administrative jurisprudence. Thus, on the basis of geographical or fiscal considerations, it is admitted that pupils pay less canteen fees than others.

You are better placed than I to know that ta system is the privileged domain to introduce a fair application of the concept of equality. Nevertheless the principles of equity and equality of opportunity remain eminently political.
The implementation of equitable social rules could be risky and create new inequalities : a number of people being excluded, for geographical reasons, equity measures could lead to the creation of new inequalities.

Thus, equity, by wanting to solve problems in an equal way, even egalitarian is exposed to lead to identical claims, requests to be treated differently in certain geographical areas etc.. Besides, we have an administrative judge who is audacious and recognizes the need for equity, that it is necassry to treat on a case by case basis.

In practice, the reading of the jurisprudence, we realize that judges make proportionality controls to check if the equity measure allows to restore the equality.

The question is whether equity should be a rule in itself

Today, in administrative law, we consider that the equity is a secondary rule. It is the rule which allows to interpret the other laws, it is the rule which allows to correct the rough aspect of the rule of law. But we cannot judge completely in equity because the rule of law establishe is like a screen protecting from arbitrary power. With the social evolution, we say that the notion of equity echoed all that the previous law underestimated.

It dedicated new rights, and despite formulated criticisms, it allowed to erase inequalities. It led to more ethics, it has harmonized the law. We are very attached in French law to the principle of equality, equality remains a universal principle. The equity has to remain a corrective value of the rule of law.

The fact remains that thanks to the equity, we notice that, finally, the judge leaves more and more place toother methods of disputes resolution. Indeed, the mediation, but also the conciliation, the arbitration take more and more place. Today, we favor the recourse to the mediation which is less rough than an answer of the judge.
I thank you “.

Emmanuel CONSTANS : ” Thank you very much Béatrice MAJZA for this very clear and very sharp presentation cla of these complex notions of equity and equality. You highlighted the role of the administrative jurisdiction to push further the notion of equity. I recall that the creation of the Mediator of Ministries of the Economy and Finance results from a decree taken after a report of the Council of State, on initiative of the Government.
I now hand over to Michel TALY.

Michel TALY : “I take the same theme, but on the side of the practitioner, the practitioner who tried throughout his professional life to use this rule of equity and that, sometimes on the side of the administration, sometimes on the side of the taxpayer.
On the side of the administration, I note that it is paradoxically the fiscal legislation legislation service that frequently invokes the principle of equity … probably because having collaborated in the elaboration of the law, we do not ignore it may be generating inequities.

We allow ourselves to take the necessary backward to propose the Ministers the settlment of disputes on the basis of equity. I knew periods where this legislation service frequently intervened in individual cases, especially when he was independent and depended directly to the Ministers, which greatly irritated the General Tax Directorate, especially with regard to current fiscal audits.

I believe that it is necessary to begin by distinguishing two situations for which you are brought to intervene in the name of the equity.

In the first situation, it is about the equity considering the current situation of the taxpayer and its capacity to support the rectification of tax. When there are 3, 6, or 10 years of late-payment interests and penalties, that’s a lot. We are in the situation where the taxpayer does not deny that the tax is due, it should have been paid, but that a difficulty does not allow him to settle it.

It is equity, I would even say that it is about the proportionality of the punishment : it is necessary to find a subtle balance to avoid giving a bonus to the one who did not respect the law compared with the one who respected it and, at the same time, to consider the “lethal” aspect of the rectification.

This first access to the definition of equity has an historic origin evoked previously, in particular with the notion of poverty.
An example: the index tax does not measure very well the ability to pay tax. Year after year, the Board of direct taxes was led to notice that a citizen was requested to pay for a tax upper to his ability to pay. Besides, there is a cumulative aspect of the tax audit which makes that the penalties can be heavy. Indeed, it is a case for which in equity, you propose to proportion, to find a subtle balance between the necessity of punishing the one who did not respect his obligations compared the one who respected them.

In the second situation, it is about the intrinsic equity evoked previously. It is within the legislative scheme concerned. This is the symmetric of the abuse of process. The abuse of process occurs when a taxpayer applies to the letter of the law, contrary to its spirit. The consequence is that he pays less tax than he should have.

The opposite, it is when the letter of the law leads to a rectification which is lawful but, when we think about the spirit of this law, about the will of the legislator, about the way this tax works intrinsically, we have to recognize that the consequence is to pay more tax than what is due. It is a different situation compared with the first. It raises us problem. Why? Regarding direct tax, we remit the principal of the tax only regarding poverty. However, this situation, expecially on the side of companies, but also for physical persons with important income, may appear intrinsically inequitable even if the person is able to pay.

If you wish, I can digress on this question of vertical and horizontal equity. This is a concept that is directly related to the income tax and more generally to the use of tax revenues for redistribution of income.

The vertical equity is like this : how much do I have to charge anybody who has high income with regard compared with somebody who has more lower income? It is about the progressiveness of the tax, knowing that there is no intrinsic truth on this subject. There is no immanent law which specifies us what is the slope of the curve. The slope of the curve is a decision of political order.

Horizontal equity is easier to measure : with equal income, equal tax equal. Our paradox is our focus, politics and media, on vertical equity.
We refer rarely to the horizontal equity.

Let us take the example of the measures recently announced and concerning the family policy. If we focus on families, we can justify to harden the system of family quotient. We make vertical equity only with the families. But if we look at the result in terms of horizontal equity, why to ask only families for an income tax effort and not to the other households having higher income? If we look at the situation of households without children and with income is below the limit of the new portion to 45 %, they are affected only by the freezing of the scale.
But let us close this bracket and let us return to the concept of intrinsic equity.

The problem for this second form of equity, is that it is intrinsic in the device. We have indeed a text which allows us to propose cuts in direct taxes , provided that the person is living in extreme poverty. There are many situations which are not covered. For indirect taxes: nothing. For the VAT: nothing.

For the registration fees : nothing. Only penalties. I draw your attention on the fact that there is a subtle difference between the transactions made at the request of the taxpayer and the transactions made at the request of the administration. When the administration proposes a transaction, it may be done only on penalties because it is based on the fiscal texts. But, when it is the taxpayer who proposes a transaction based on the civil code, in the name of the general interest, the administration can consider that this proposal is in accordance with the interest of the administration because it allows to return some money immediately with the commitment not to make dispute while the dispute is uncertain. If you are in a situation where it can be demonstrated that the issue of dispute is uncertain, it is possible to make transactions on the principal.

This is why you can notice that, in some cases, the transaction is proposed by the taxpayer.

I think to fully understand the notion to judge sometimes in right, sometimes in equity it is necessary to accept the fundamental asymmetry between the tax administration and the taxpayer. I feel the reactions of some of you “This is too easy! The taxpayer wins every time: he is right in law and therefore he is right or it is wrong in law, but he is right in equity. Thus he is always right. But we, when we forget a receipt, we are wrong in law, right in equity, but we lose. ”

We speak about asymmetry for the following reason: the taxpayer is a physical person or a moral entity. He has the ethics and the behavior he chooses. He can choose to refer to the law not to pay a tax which he should have paid in equity. We are in State subject to the rule of law.

But you, you represent the State. If you meet a situation where the tax is straight ahead due by law ” dura lex sed lex ” but your conviction is that he is not based on equity, that this tax should not have been paid, you have to return it . There is thus this asymmetry, which I know that it is fundamentally irritating but it is nevertheless necessary to you to accept it.

A question arises then : do I have to accept this situation for all the taxpayers or only for the “good” taxpayers?

We reach here the notion of moderate application of the fiscal law. Every state employee becomes a judge in equity, he chooses to do or not to do. The moderate application of the fiscal law often led to the following situation : if I am convinced that the taxpayer who is in front of me is honest, that he has to pay the tax according to the law, but I consider that in equity, he is not in capacity of paying it, I do not charge him. If I fall on a “bad person”, I say ” You old man, you should not pay, but I know how to oblige you with the law you , that will be for all the times when you me ” had me there!”. It is this kind of drift that practises every football referee who makes some compensation. I forgot to whistle for a penalty to the first half, I whistle for an imaginary penalty. Two inequities compensate each other?

First example : one of my clients managed gift vouchers. He issued gift vouchers which were given to people for different kind of promotions. These people went then to a distributor, paid with the gift. My client paid the distributor with money given by the issuer of the gift voucher. To make “bulking up” on his accounts, he found appropriate to count the total amount of the gift vouchers as revenue but when paying the distributor, he recorded these checks as expenses. He did not fulfill any condition of deductibility of VAT but do not pay VAT on the whole. He did pay on his margin because it was the service provider. The auditor intervenes and applies VAT on all without deductibility since it does not fulfill the conditions for deduction rights.

You have a person who is paid by a commission of some %, you apply him a VAT at 19.6% on the 100. It presents a problem: the amount of VAT is equivalent to several times his annual revenue. Everybody would have wondered if he has to continue. I asked the Department of tax legislation. They answered that “It does not make sense”. So I asked the sub-division of the tax not to prosecute. I have been said, “We need to ask for a report of the services and we have to give him 60 days”. Meanwhile, the auditor refused to stop the accounts. Ultimately, the rectification has been abandoned.
In this case, we realize the usefulness of the Ombudsman’s intervention.

Thee second example is less caricatural, but occurs very frequently: it is about unpaid VAT however, it does not mean that there is fraud. A British taxpayer, used to the system of tax suspension within groups – in the British system so long you are within a group, the VAT is applied only to the exit- did the same way in France. He had not cheated but, when he reached the stage of retail selling in the last subsidiary of the group, he applied the VAT without any right to deduction because there had been no VAT paid before. The total amount of the VAT was paid at the end. The auditor, believed that it was fraud, did the triple taxation because he noticed that the company which had charged was not the one which should have charge

For the one who charged and who should not have charged, the VAT remains due.
For the one who did not charge and who should have charged, he owes the VAT.
The one who deducted the VAT does not qualify and cannot deduct it.
There is no fraud. Not only, there was no fraud, but there was either no intention to cheat.
According to the law, you cannot go in front of the judge

A third example: services not charged in a group which is not a group fiscally integrated. If there is no optimization because one of the two companies is profitable and the other not, the state has not been “cheated” : I should charge 100 and the other company would have benefited from 100 for deductible expenses.
I only have two years to claim and administration 3 years to rectify. The administration thus rectifies the one who should have charged and tells the other company, “you can not apply deductions.” According to equity, this is unfounded. The moderate application of the law, the idea that we have of fiscal morality, brings us to maintain or not the taxation.

A fourth example concerning the bad configuration of a software ERP. A storekeeper takes out a part and generates a book entry. Formerly there was a software of inventory and without interfacing, accountants who seized invoices.
A storeman noticed that he made an error, he ratified in March an exit of stock made in January.
He thus generated a rectified invoice for the month of January while we were in March. This invoice wore a number of March and the storekeeper dated it January. The auditor intervenes and rejects the accounting.
It is not a fraud but an oversight of blocking the rectification in the right time.

A fifth example: you have the case of IFU in intra-groups. The IFU ie tax returns from capital paid on banks, but also any company that pays dividends, interests.
Within a group, a subsidiary pays a dividend to its parent company. Tis is recorded, sometimes neutralized in the tax system of the group. It is nevertheless necessary to establish an IFU.
The penalties are huge when this IFU is not establishes.

Nevertheless, some people ignore when it is necessary to establish IFU between subsidiaries and parent companies.
Formerly, it was enough to get in touch with the local tax department and ask to regularize. Today, it has become impossible. It is necessary to rectify the years prescribed, to undergo the fine and to go to the committee of the tax litigation.

These problems can be settled only by a pragmatic approach, either by a hierarchy, or by mediation bodies.
The disappearance of the ministerial fiscal unit is problematic. This cell had a major inconvenience: it gave the impression of being political because it was placed with the Minister of the Economy and Finance. The cell did what the hierarchy should have upstream done.
A tax official, inflexible when he was in services, said, once moved in the cell : ” such cases should never reach us! “. You replace him in the services and this same agent becomes again inflexible. This shows that it is a question of function and not a question of person . The only solution is to have agents outside the tax sector and its recovery in order to make equity control.

Emmanuel CONSTANS : “Thank you Michel for this dynamic presentation and concrete examples on this subject.
I retain in particular the concept of horizontal equity that is sometimes forgotten.
I also retain this element to which I am very attached which is the asymmetry between the taxpayer and the tax administration. This is a very important point, a key element where mediation is justified by the asymmetry between the company or a”lambda” customer and certain administration practices .
Then this notion of the pragmatic approach and hierarchical frame is also very important. I am very attached to the exercise of formal appeal. The pragmatic approach may lead to mediation.
I would want, from these two performances, to hand over to the room for reactions, observations, questions to our speakers.
I wish to ask a question to Béatrice MAJZA concerning an expression which you used repeatedly ” the positive discrimination ”
I feel that it is a bit like Monsieur Jourdain: finally the legislato has to make some positive discrimination but without giving it that name because I remember that politically, we can not make positive discrimination in France. Do you consider that there are many measures of positive discrimination in France on the legal plan?

Béatrice MAJZA : “Indeed it is the principle of equality that prevails. I think of some decisions of the State Council in the 90s on provisions concerning music school . We indeed allowed allowed to differentiate registration fees in music schools and in the canteen. The mode of positive discrimination is not necessarily shown as such. The immediate concern is to prevent a kind of assistantship, hence the need to proportion, to justify (not always within a time limit : access to music school can be long). The safeguard for equality would be here the general interest ”

Emmanuel CONSTANS : “Thank you very much.”

A participant : “I would like to ask a question to Béatrice MAJZA. The principle of equality is the basis of our written law, distinguishing itself from the Common Law which is an oral law.
What is your feeling about the resistance or reluctance of the administration with respect to approaches to equity?

Béatrice MAJZA: “Indeed, we are in a state of law, in a system of written law, distinct of the Common law and written law is the principle. The jurisprudence is the secondary concern for the law. The judge has to prevail be above all the written rule. It is for this reason that equity does not always says its name. We identify it bay deduction, by reading the décisions. The principle of equality is at the top of the hierarchy, it is the basis of the Declaration of the Rights of Man and of the Citizen. We are very attached to this principle in French law.
In Great Britain, with Common Law, the jurisprudence is one of main source of the law and equity was able to develop in a more flexible way. The development of the equity is historic, it is a reaction to the Royal courts. The equity developed under Tudor in the XVth and XVIth centuries. But it has been crticized because, the Chancellor made the law on a case by case basis, but he went sometimes too far. Therefore, the English Parliament managed to push aside the equity. Today, in Great Britain, the equity is only a rule easing the decisions of royal court. Chancellor has no longer the same role.

Michel TALY: ” the difficulty is the way how is recognized and works the rule of law in the particular case. It is said in the Constitution that each details of the tax base are of the filed of the law. The exemption can thus be made only in the hypocrisy. So, I cannot write to the taxpayer: ” in your situation, we will exclude the application of the article 248 of the Tax Code “. I do not have the right to say it. I thus write: ” considering the case which you presented to me, it seems that the article 248 is not applicable to you. “. The inconvenience of this approach, is that it takes place without control because, if I have the right to make exemption to the rule, I have to report it in our system which is institutional.

In the American system, we find the famous regulations, which contrary to our instructions, are the norm. And since this the norm, they have to justify. How do they proceed? Their regulations are annually reviewed by the Commission of the finances of the Congress which verify the respect for the imperative of general interest, of proportionality. We, we report to nobody. It is the reason why, we need to be placed with the Minister. If I, officer, I had, had ” contra legem ” decisions which resulted not to charge such amount of money, the Budgetary Discipline Court would have intervened. The Minister is only subject of the Court of justice of the Republic, and not the Budgetary Court Discipline. That’s why I refer to him to validate the proposal that I made. Under the pretext of exaggerated respect for the legislative source and not recognize that there are possible exceptions, we deprive ourselves of the possibility of control.

Let us take an example. We had tried to solve the problem of tax regime of the distributions. We tried to see in which case a share buyback must be handled as a dividend and in which case it must be handled as added value.
I was interested in how the Americans proceeded.

Americans distinguish between proportional and non-proportional distributions . Proportional: all shareholders have the same repurchase, so it was a dividend. Non-proportional: a shareholder withdrew or reduced his participation and it was added value again.

The text defined cases of proportional distribution, but he ended with ” and any distribution which the administration will qualify as such “. Thus, ultimately, the legislator recognized a power to the administration to consider the distribution as proportional or not proportional. He had to justify himself of this power of qualification later. I always thought that the only way of bringing a solution to the problem of ministerial fiscal unit – that it was necessary to remove to protect politically the Minister – was to establish, somewhere in the administration, a unit which would have the right to pronounce derogatory decisions, but under the control of the Commission of finances of the National Assembly and the Senate.

We should have an equivalent entity to the Ministerial unit which produces an annual report and the Parliament can control the respect with the spirit of the law, the public interest, the proportionality.

Emmanuel CONSTANS : “Thank you, Michel, for having raised the concept and importance of the report in terms of control. As Mediator, I am very attached as each member of the Club of Mediators of Services to the Public, to the notion of public annual report. When a mediator asks to join our association, the request is as follows: “Do you publish an annual report on your activity? “.
We believe that transparency on the activity is fundamental for the public opinion. The public is entitled to require to be informed because taken decisions, recommendations, have a financial impact. The concept of reporting is fundamental in a democracy. Most authorities in the fisal area present an annual public report.

Last year, during the day of the mediation held in Bercy, we had the intervention of several lawyers who use to appeal to the Mediator. They explained us that there are some cases, according to them, are a matter of the mediation because they involve both law and equity. On the other hand, are not covered by the mediation because they involve legal elements in certain domains and can be resolved, according to these professionals of the law, only at the level of jurisdictions. I tend to think in the same way : all the cases, including in the fiscal area, are not within the mediation.

A participant: ” we often speak about the correction of absurd situations. I think, indeed, that it is normal to adapt individually. Texts cannot plan all the cases. For my part, I feel more difficulties with texts which, by nature, can seem inequitable, inequity could even result from the will of the legislator and give rise to correction by an official. This state official, taken individually, in territories, are not subject to any form of control. I am thionine in particular to local taxes or contribution to the public broadcasting which is due including by users who benefit from the RSA (active solidarité revenue). Previously, with the RMI (minimum guaranteed income), they were exempted from it. In departments, we correct this type of decision which, according to me, has to be left to the legislator.
As a citizen, I am very embarrassed that any state official in the country and in a subjective way is able to correct a legislative provision. I think that the correction of the inequity created against inequity. Indeed, all those who do not make this administrative recourse or appeal for a mediation find themselves in unfavorable position.

Michel TALY : ” Fortunately, this is a situation that does not happen very often in our country, and it shoes that our tax system is appropriatly designed .
I made a mission ADETEF for several years in Palestine. It was to help the Palestinian administration to manage tax across the country . The local tax system is so unfair that officials are reluctant to apply it . Some agents nevertheless dare to change the tax base, without any control . Others choose to assess but not to recover as many Palestinians are not able to pay. Others, in some municipalities succeed in charging the tax because it is the municipality that delivers electricity, that provides access to education. They threaten to cut the electricity or to prevent the access to the school as long as the tax was not paid.
What’s to be done when the legislator wanted an inéquity?
By correcting an inequity in a department, the state official is going to generate an inequity somewhere else ”

Emmanuel CONSTANS : ” I completely agree with this answer.
At least it would be necessary to ensure that there is harmonization in the administrative practices. This was done when it was asked to the General Treaaurer and Paymaster, a few years ago, to harmonize the recovery within their department.

Serge Arnal : “As a concrete example, a few years ago when I was a tax-inspector, my work was to examine administrative appeal regarding local residence tax. Taxpayers told me: “I can not pay my residence tax.” I pronounced then, in many cases, a reduction or remission of tax. As a public official, I acted in a subjective way.
Article L. 247 of the Book of Tax Procedures regulate the power of officials in charge of administrative appeal regarding tax and the legislator adapt taxation to economic and social context. Today, when I read some answers in reports made by the tax authorities and the fiscal conciliators: “You have an income of 800 euros, you can pay your taxes,” I feel it hard to think that someone who has 800 euros per month is able to pay its current living expenses, to pay taxes and tax debts without any difficulty.

Can a state employee take himself decisions in equity? Let us take a concrete case : I drive, I run a red light because a badly parked truck hides the red light. I drive normally, the policeman stops me and says to me: ” you have gone though a red light, I give you a fine. I can answer him: ” I was unable to see this light because there was a truck. If I go to the court, I will have no proof because the policeman, who is sworn, raised a notice of violation and found a justified infringment.

But, the policeman can also consider that the truck should not have been there and decide not to give me a fine. In this case, does the policeman practise the equity?

A participant : “Mr. TALY outlined several cases showing that our organization does not allow to answer the difficultés posed by the strict application of the texts. When Mr. TALY told you, “Mr. CONSTANS now, I will have recourse to the Mediator to defend my cases,” you answered: “For a number of very legal subjects, it is not quite the role of the Mediator. “I am surprised with this answer because, if we consider that equity is a supplement to the application of the legal rule, ie it is part of our system of law, there is no limit to your intervention even when the case presents a legal difficulty. What leads you to answer to Mr. TALY that the subjects he discussed could not be handled at the Mediator level?

Emmanuel CONSTANS : ” Thank you, for your question . I must say that I agree with your analysis and your position. I made this indication after reported comments made by lawyers. This is not a substantive response, but as a precaution, to avoid being overwhelmed with cases within the Framework of a team that is a relatively small team , which relies moreover on your skills and your cooperation . We sometimes handles files with a strong legal character and high financial stakes . But it is true that the Mediator is often approached for further requests relating to taxation of individuals, issues concerning SMEs. These issues often involve equity aspects and not only legal interpretations between jurisdictions or between legal advisors and the court. In this case, I can be brought when the case is quite advanced on the jurisdictional level (because there is a right time to complain : not too early , not too late) to let the court decide . But in terms of limit, it is true that there is no limit . ”

The same participant : “I expected a little this response.
I go back to another topic: the need not to create inequity in dealing with individual situations and harmonize on the whole territory the solutions to be proposed. Michel TALY recalled that this was once treated by the tax unit placed with the Minister. So was settled the local residence tax reform in 2000 because almost everywhere in France, officials received administrative appeals . Over 400,000 taxpayers for local residence tax have been exempted.
But this role, the Mediator could fill it as he is precisely intended to make proposals regarding legislation. But if you do not embrace the entire field, we notice that there is a vacuum for the subjects raised by Mr TALY.
There is doubtless a reflection to be led about the location of this unit. It is placed with the Minister and we see at once to which doubt, to which suspicion it can lead.
Moreover, the establishment of the Médiator is not completely indifferent to the suspicion that we may have with respect to this unit just before 2002.
This unit in the administrative sphere, could be protected, as mentioned by Mr. TALY by a control of Parliament and a third authority.

Emmanuel CONSTANS : ” Thank you for your intervention. I totally agree with your point of view which resumes Michel TALY’s suggestion. I believe that we have to work on it, to think about it. And the Mediator, when it is appropriate, can make proposals in this domain. I was always very careful regarding the organizational aspects but I indeed believe that the disappearance of the unit is not related to the increase of the number of cases I treat even if a part of these cases went are now handled by the Central Administration and the DGFIP. There are possibilities which can develop by reform proposals. “.

Michel TALY : “I think what is very important is to have state officials who really wanted, on a voluntary basis, as planned by Jean-Pierre LIEB, to play this role which is to put equity , in a homogeneously way into the system. They must be differrent from those who apply the law to prevent abuses. There is not only independence, there is also the appearance of independence.
I think the way you operate, in a network, to solve mediation requests is the right answer. ”

Emmanuel CONSTANS : ” Thank you very much for this appreciation. Thank you to our speakers.
We will drawfrom our exchanges, the proceedings of this conference. I think that it is important to keep track, to pursue the reflection on the topics which we discussed this afternoon. The Mediator pronounces in law and in equity and I believe that this formula is particularly relevant. “And” allows to put them on an equality level because they are both very important. There is really a notion of balance: the equity has to be held within certain limits. It is also necessary to remember this notion of pragmatism in all respects Michel TALY mentioned : pragmatism in the fiscal field and in the institutional field to deal with the disputes as good as possible.

Thank you for having answered our invitation and come to Cabourg.
Dear correspondents, I would like to thank you all for your presence for the the mediation day in Cabourg. I hope that you will consider it as enriching, profitable and useful. I deeply thank you for your cooperation and treatment of mediation cases.

I would also like to thank my team for the organization of this day

ADOPTION OF THE DIRECTIVE AND REGULATION OF 12 MARCH 2013

Press Release by the Club de Médiateurs de Services au Public (Club of Public services Mediators)

A new European advance in mediation for the benefit of consumers

The Club de Médiateurs de Services au Public (Club of Public services Mediators) welcomes the adoption by the European Parliament on 12 March 2013, of the Directive on alternative dispute resolution for consumer disputes and the Regulation on the online settlement of disputes, two proposals presented by the European Commission in November 2011.

The Directive provides widespread and facilitated access by consumers of goods or services to alternative forms of dispute resolution, particularly mediation. It provides genuine guarantees concerning the conduct of procedures (transparency, efficiency, speed). It also sets strict but proportionate requirements for mediators as regards independence and impartiality as well as competence (ability to mediate, legal knowledge).

The Club de Médiateurs de Services au Public (Club of Public services Mediators), for which the fields of several of its members fall within the scope of the Directive, postal, financial, banking and insurance services, as well as transport and energy, welcomes this new framework which is in line with moves to develop mediation of the highest standard.

The Club will be very attentive to its transposition into French law, a process in which it is keen to actively participate.

The Regulation provides for the establishment of a European platform for on-line settlement through mediation of disputes relating to goods or services acquired through electronic means. The Club will rapidly make a concrete contribution to the implementation of this project at the service of mediation.

Download the press release in PDF format:

Press Release by the Club of Mediators – Adoption of the Directive and the Regulation 12 March 2013

Download the communiqué in size  PDF:
Press release – Club of the Mediators – Adoption of the Directive and the Regulation in March 12th, 2013

 

Vote of the European Parliament

A new advance for the mediation to the advantage of consumers: the Directive relative to the extrajudicial regulation of the disputes of consumption was adopted.

The directive on Alternative Dispute Resolution (ADR) and the Regulation on Online Dispute Resolution (ODR) : these two proposals presented by the European Commission in November, 2011, were adopted by the European Parliament on March 12th, 2013.

The Directive ensures generalized and facilitated access of the consumers of goods or services to  the alternative modes of resolution of the disputes, in particular mediation

The Regulation ODR plans a EU-wide online regulation platform  using  mediation to solve disputes relative to acquired goods or services by using electronic means.

Member States have from now on 24 months to transpose the Directive into national law.

The press release of the European Parliament announcing the adoption of the Directive and the Regulation

http://www.europarl.europa.eu/pdfs/news/expert/infopress/20130312IPR06438/20130312IPR06438_fr.pdf

The proposal of Directive of the European Parliament and the Council relative to Alternative Dispute Resolution (ADR) of  consumption disputes and amending the regulation (CE) no 2006/2004 and the Directive 2009/22/CE (directive relative to the ODR)

http://ec.europa.eu/consumers/redress_cons/docs/directive_adr_fr.pdf

The proposal of regulation of the European Parliament and the Council concerning the on-line regulation of the disputes of consumption (regulation concerning the ODR)

http://ec.europa.eu/consumers/redress_cons/docs/odr_regulation_fr.pdf

Appointment of the Mediator of the electronic communications

After consultation by the Directorate-General for Competition, Consumer Affairs and Prevention of Fraud (DGCCRF), the associations of consumers, the ARCEP (the French national electronic communications and postal regulation authority and on proposal of the operators of the Association Mediation of the Electronic Communications (AMCE), Marie-Louise DESGRANGE was chosen as Mediator of the Electronic Communications for a duration of 3 years.

You will find below the press release announcing her appointment.

Marie-Louise DESGRANGE – Mediateur des communications electroniques

5th Citizens ‘ Energy Forum ( CEF) on November 13th and 14th, 2012 in London

The Forum of London is the annual meeting which gather the European actors of the protection of consumers of the energy sector. Every year, it is the opportunity to assess the progress of the various works led to European level, as well as a point of follow-up of the recommendations formulated during the previous sessions.

For more information, reach the following link :

http://ec.europa.eu/energy/gas_electricity/forum_citizen_energy_en.htm

The position of the Commission of the mediation of the consumption concerning the proposal of directive (ADR, Alternative Dispute Resolution)

Following the proposal of theDirective of the Parliament and the  Council relative to the Alternative Dispute resolution (ADR) , the Commission of the Médiation of Consumption made its position known.

It can be consulted at the following internet address :

http://www.mediation-conso.fr/doc/Directive_ADR_2012.pdf