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Have Equal Voting Rights: French Constitutional Court

All AFP Staff Worldwide 
Have Equal Voting Rights: French Constitutional Court

Friday 6 May 2011

  • Whatever our nationality, we can ALL both vote and be candidates for the board of governors
  • Setback for CEO; boost for SUD trade union

France’s Constitutional Council has ruled that the clause in AFP’s statutes whereby nationals of many states were excluded from the three-yearly election of staff representatives to the company’s board is unconstitutional.
In its ruling on May 6, 2011, the Council states that "in the seventh subsection of article 7 of the 1957 law defining AFP’s statutes, the phrase ’of French nationality’ is unconstitutional."
Responding to SUD-AFP’s application via a ’priority preliminary ruling on the issue of constitutionality’ (QPC), the Council adds that "this declaration of non-conformity with the constitution takes immediate effect from the publication" of the decision, that it "can be referred to in ongoing procedures" and that it "has no effect on previous decisions" made by the AFP board.
In other words, the relevant courts will now be able to consider the fundamental issues at stake concerning the request for the 2008 elections to be declared null and void and the suspension of the electoral farce organised by Emmanuel Hoog in April this year, only a few weeks before the Constitutional Council was due to examine SUD’s application.
Despite the fact that Article 7 of the statutes said that employees taking part in the election have to be "of French nationality", AFP decided in 1998 to extend the same rights to all staff from the 30 states of the European Economic Area (the EU plus Iceland, Liechtenstein and Norway). All others remained excluded.
According to SUD’s estimate, which has never been denied by management, around a thousand out of a total of some 3,000 people employed by AFP worldwide were thereby excluded from the election, and will now benefit from the same rights as everyone else.
The Council has thereby given full satisfaction to SUD: the statement of non-conformity with the constitution relates only to discrimination preventing "non-European" staff from taking part in the election, be it as voters or as candidates; the law of January 10, 1957 which defines AFP’s statutes - and which SUD has never questioned - remains fully in force save for the words "of French nationality", which are declared unconstitutional in Article 7. On this specific point, our "QPC" application has therefore made it possible to modernise AFP’s statutes without demolishing them, and while showing respect for staff worldwide.

And Now for the Election!

The way is now open for an election worthy of the worldwide agency to which we all proudly belong. A worldwide vote allowing practically everyone who works regularly for AFP, whatever their status, their labour contract or their nationality, to express themselves and freely choose their representative on the board. 
The election must be held in conditions of total democracy and transparency, and the participation of staff who were previously excluded should not be purely symbolic. SUD would like candidates to emerge from among non-French and non-"European" staff.

M. Hoog’s Blocking Manoeuvres

As soon as he joined AFP a year ago, SUD informed Emmanuel Hoog of the procedure under way over the board elections. However he chose to handle the situation with disdain, as if it were a simple test of wills. While stating that the nationality condition did indeed "not correspond to the agency’s multicultural and transnational character" and that it "can therefore appear both outdated and questionable", he went on to engage in a series of manoeuvres aimed at exploiting the conflict for his own ends. This notably involved:
1/ Preventing the QPC case from getting as far as the Constitutional Council
Acting on behalf of the CEO, AFP asked the Paris appeal court to "refuse to refer" the QPC to the Cour de Cassation (France’s highest court, competent to hand the case on to the Constitutional Council). The agency also asked the appeal court to rule that SUD’s case "was not serious on any level" and to condemn SUD-AFP to pay AFP 2,000 euros in costs.
Notwithstanding, both the appeal court and the Cour de Cassation upheld our QPC.
2/ Using the QPC Application as a lever to change AFP’s statutes
On being elected to head AFP in the spring of 2010, M. Hoog tried to reassure staff by stating that changes to the founding statutes were "not currently an issue". A few months later, however, he changed tack. Facing the anger of French press representatives on the board over his plans to sell AFP news directly to the general public, the CEO commissioned a study from Guy Carcassonne, a constitutional specialist who is a leading member of the neo-liberal think-tank the Institut Montaigne.
The main thrust of M. Carcassonne’s argument was that Article 7 of the statutes, which lays out the composition of the board of governors, was unconstitutional per se, due to a supposed conflict of interests arising from the fact that the media representatives are also clients of the agency. The conclusions submitted by AFP to the Constitutional Council were based on this idea, which is questionable to say the least. The aim being to manoeuvre the Council into asking the French parliament to change the statutes on the grounds that they were supposedly contrary to the principle of media independence and a free press.
This shows the monstrous nature of the manoeuvre attempted under Emmanuel Hoog’s supervision. To counter a demand for equality of rights for all staff, AFP asked the Constitutional Council to rule that the entire article cited was unconstitutional, no less! The supreme insult and betrayal being the argument that the agency’s founding document was "contrary to the principle of media independence." 
The shameful nature of the argument appears to have raised hackles even in the French prime minister’s office, since the observations provided by that institution for the QPC hearing contradict AFP management’s stance point by point. The notes submitted by the PM’s office notably state that the presence of media representatives on AFP’s board "is not of a nature to infringe on its independence".
The constitutional council appears to have shared that view, as its ruling makes no reference whatsoever to the conformity or otherwise of article 7 as a whole with the constitution.
3/ Pushing through the election to create a fait accompli.
In a final throw of the dice, M. Hoog tried to ensure that the constitutional council’s ruling would have no immediate effect. He therefore instructed his lawyers to argue that the non-conformity of the nationality requirement with the constitution should apply only to future elections to the board. There again, the council did not accept this, stating that its ruling "can be referred to in ongoing procedures… the outcome of which depends on the terms declared unconstitutional".
At the same time, even as the QPC application was due to arrive before the council in the near future, the CEO set in motion the electoral process for a new three-year mandate, still excluding "non-European" staff.
The fact that this operation, carried out with a glaring lack of transparency and with no respect for electoral procedures, was accepted by the main AFP trade unions is a complete mystery to us. The scheduled election was nevertheless suspended by a French court, at SUD’s request. In its ruling, the court stated that AFP management "has not shown that it has sought to find a pragmatic solution pending the constitutional council’s decision, and is hiding behind legal provisions which are clearly discriminatory.

Note to our Future Board Reps: 
No Fuzzy Thinking on AFP’s statutes!

SUD has waged this battle alone, against a management that has shown itself to be arrogant, stubborn and dishonest on this issue. To do so our union found itself between a rock and a hard place: caught between timid fellow trade unions who argued that our procedure would "open Pandora’s box" and allow AFP’s statutes to be changed, and a management which indeed wanted to seize on our application in order to subvert the 1957 statutes as a whole.
The CEO’s manoeuvres show that questions relating to AFP’s statutes will be at the heart of the coming term for our future representatives on the board. Our elected reps must therefore agree to defend AFP’s founding principles and its public service mission, in the face of a CEO who will stop at nothing to denigrate and subvert those principles.
Fortified by its success before the constitutional council, SUD will give backing to candidates, both for the journalists’s and the non-journalists’ representatives, who have always shared our fight against discrimination and who oppose any fuzzy consensus over the statutes. In practical terms these candidates should be in agreement with the "necessary and non-negotiable preconditions" laid down by the Association for the Defence of AFP’s Independence for any future changes to the agency’s statutes . These state that any such changes should:

  • "Strengthen AFP’s independence from all political, economic or ideological institutions or interests by providing additional guarantees to those contained in the current statutes"
  • "Be part of a real company strategy. It is also necessary to… clearly explain why a change to the statutes is needed"
  • "Have previously been approved by staff in a referendum…"
  • "Be approved by a very large majority in the French parliament."

Paris, May 6 2011
 - SUD-AFP (SUD Culture & Médias Solidaires)