Discriminatory Justice

I – On the facts:

Ms. AB, deputy prosecutor at the Paris High Court from March 3, 2003 to August 29, 2016, was the victim of a situation of moral harassment. From 2016, she was appointed general substitute at the Paris Court of Appeal. However, from June 17, 2008 she was recognized as a disabled worker by a decision of the Commission on the Rights and Autonomy of Disabled Workers.

Ms. AB then requested the annulment of several decisions of May 25, 2021 setting the rate of her flexible premium at 7% for the year 2014, 8% for the year 2015, 9% for the year 2016, 10, 25% for the year 2018, 10.50% for the year 2019.

II – On the texts applicable to certain magistrates of the judicial order:

It turns out that at the end of article 1 of a decree of December 26, 2003 relating to the compensation system for certain magistrates of the judicial order, the latter may be entitled to a flexible bonus allocated according to the article 3 of the same decree based on the magistrate's contribution to the proper functioning of the judicial institution. As for article 7 of the same decree, it specifies that this bonus is calculated as a percentage of the gross index salary and that the amount of credits available under the adjustable bonus for the magistrates of the seat, on the one hand, and of the public prosecutor's office , on the other hand, is determined by the application of an average rate to the mass of index salaries of the magistrates concerned.

The individual allocation rate is in any case set for magistrates practicing in jurisdiction respectively by the first president of the court of appeal for each magistrate of the seat of their jurisdiction and by the attorney general at the Court of Appeal for each prosecutor of the jurisdiction on the proposal of the head of jurisdiction under whose authority the magistrate is placed for those who are assigned to a jurisdiction of the first degree.

With regard to article 2 of the decree of March 3, 2010 taken for the application of this decree, it provides that the average and maximum rates of individual allocation of this bonus are fixed respectively, from January 1, 2013 , at 12 and 18%. Thus, if the rates are limited, it is still up to the administration to set the individual bonus rate of a magistrate to take into consideration his disability both to determine the volume and nature of the tasks assigned and to assess, in the light of the objectives defined in relation to his abilities, the contribution of the person concerned to the proper functioning of the judicial institution.

III – On the procedure:

• By first request of July 30, 2021, Ms. AB asked the Paris Court of Appeal to review her adjustable premium rate to 12% or to reexamine her situation to set a new rate for the 2014 financial year;
• By second request of July 30, 2021, Ms. AB requested the annulment of the decision of May 25, 2021 according to which her flexible bonus was set at 8% for the 2015 financial year. She again requests a review of her situation or setting its adjustable premium rate at 12%;
• By third request of July 30, 2021, Ms. AB requested the annulment of the decision of May 25, 2021 according to which her flexible bonus was set at 8% for the 2016 financial year;
• By fourth request of July 30, 2021, Ms. AB requested the cancellation of the rate of her flexible premium at the rate of 10.25% in favor of the same argument, namely re-examination of her situation or setting the rate at 12% on the financial year 2018;
• By fifth request of July 30, 2021, Ms. AB requested the cancellation of the rate of her flexible premium at the rate of 10.50% in favor of the same argument, namely re-examination of her situation or setting the rate at 12% on the financial year 2019;
• By request of December 15, 2021, Ms. AB requests the annulment of the implicit decision to reject her prior request for compensation of June 7, 2021 and the state to pay her the sum of €44,530.76 with interest at the legal rate and of the capitalization of interest due to the damage she considers to have suffered due to discrimination of which she was a victim from 2014 to 2019 in addition to the moral harassment which should be compensated to the amount of €8,284.76.

IV – On the scope of the judgment:

1. Review of Ms. AB’s situation for the 2014, 2015, 2016, 2018 and 2019 financial years:

The professional skills and merits of Ms. AB are not called into question. It does not exercise any particular constraints such as the management of heavy public action missions. However, the arrangements of his position exclude this type of constraints. Equalization between this type of constraints and the professional skills and merits of Ms. B therefore does not have to take place. However, Ms. AB's rate is well below the average rate set by the decree: 2% in 2009, 0% in 2010, 3.40% in 2011, 4% in 2012 and 2013, 9% from 2014 to 2016 , 10% from 2018 to 2019.

However, the rights defender also contacted by Ms AB had concluded in 2017 that since 2009, she had suffered indirect discrimination. This is why the decisions taken by the first president and the prosecution had to be annulled. However, Ms. AB had already been compensated by the Administrative Court of Paris in its judgment of November 9, 2021 and that the reason for the cancellation did not imply that she was granted an average rate of 12%.

2. On the discriminatory treatment of Ms. AB over several years:

It was judged that Ms AB's moral damage had actually been suffered. He was thus allocated the sum of €30,000.

3. Even a civil servant suffering from a disability is not immune from even indirect discrimination. This shows how important it is to look after employees.