New rules on early retirement for civil servants with three children

Download article in original language : FR0502102NFR.DOC

As a result of a European Court of Justice ruling in December 2002 and a large number of court cases, the French government has been obliged to extend to male civil servants with three children a right to early retirement granted previously only to female civil servants in this position. Finally, in late 2004, it opted to extend this right in principle but arguably restrict it in practice, by making this entitlement contingent upon the civil servants involved having taken a career break.

Since 1924, female civil servants with at least three children can retire before the age of 60 once they have at least 15 years’ seniority in the civil service and have had and raised these children for at least nine years each. In December 2002, a European Court of Justice ruling (in the Griesmar case, C-366/99) acknowledged the right of male civil servants with three children to enjoy the same entitlement as women, in the name of pay equality between women and men. The Council of State (Conseil d’Etat) arrived at the same decision a month later (FR0209102N). Since then, the government has been faced with the obligation to bring the civil service pension code into line.

A number of fathers have petitioned the courts for this entitlement to be applied in practice. In 2003, a ruling by the Poitiers civil service tribunal for the first time obliged the Ministry of Education’s regional office to review the cases of teachers whose applications for early retirement had been turned down. In October 2003, a decree from the Ministry of Education finally granted male teachers with three children their entitlement to early retirement. Overall, 750,000 male civil servants with three children (out of 2.5 million male civil servants) should be able to benefit from this right across the civil service. The stakes, particularly the financial ones, are therefore high.

The pension reform law of August 2003 (FR0309103F) did not resolve the issue. New criteria for the civil service early retirement entitlement were finally set out in an initially little noticed article of the amended 2004 state budget, published at the end of the year. By referring to employees with three children (rather than mothers alone), the article extended the right to early retirement for men. Moreover, it stipulated that employees will now have to prove that they took a career break to raise each child. The nature and length of this break are to be set by decree.

The French Christian Workers’ Confederation (Confédération française des travailleurs chrétiens, CFTC), the General Confederation of Labour, (Confédération générale du travail, CGT), the General Confederation of Labour-Force ouvrière (Confédération générale du travail-Force Ouvrière, CGT-FO), the United Union Federation (Fédération syndicale unitaire, FSU) and Solidarity, Unity, Democracy (Solidaire, Unitaire, Démocratique, SUD) are vehemently opposed to this move, and critical of an article that they regard as having been adopted in an underhand way and without consultation. They have condemned the de facto exclusion of the majority of fathers who do not take special leave to bring up their children. They are all anxious about a possible challenge to the rights of female civil servants. In 2003, the extension of the pension entitlement bonus (in terms of years’ services) for child-rearing to cover male employees was achieved at the expense of less advantageous criteria overall.

The draft decree on civil service early retirement based on the state budget will require a minimum career break similar to maternity leave in terms of its duration (ie at least two months), and how it is divided up before and after the child’s birth. As had been announced off the record, it has thus left mothers’ rights unaltered. However, the unions argue, the principle of extending entitlement has come into conflict with financial constraints and has ended up in a right actually being restricted (FR0411103N).