Read about the decision by the Conseil d’Etat on burkini ban.
The decision by the Conseil d’Etat
26 August 2016
The urgent applications judge of the Conseil d’Etat¹, which rules on matters relating to restriction of public liberties, has issued a ruling on the decision of some coastal municipalities to issue decrees forbidding the use of burkini in the beach. In the ruling, the Court begins by specifying the legal framework. It recalls that the mayor is responsible for municipal police. But it emphasizes – in accordance with case law unchanged for more than a century – that the mayor must reconcile the fulfilment of his duty to maintain order in his municipality with respect for the freedoms guaranteed by law. Policing measures ordered by a coastal commune’s mayor to regulate access to the beach and the practice of bathing must therefore be appropriate, necessary and proportionate to public order needs alone, according to circumstances of time and place and given the demands of proper access to the shore, the safety of bathing, and hygiene and decency on the beach. It is not the mayor’s responsibility to cite other considerations, and any restrictions he imposes on freedoms must be justified by confirmed risks of public order disturbances. On subsequently examining the disputed order, the urgent applications judge of the Conseil d’Etat notes that no evidence presented to him allows him to conclude that any risks of public order disturbances on the beaches of Villeneuve-Loubet would have resulted from the clothing worn by some people for bathing. In the absence of such risks, the strong feelings and the concerns aroused by the terrorist attacks – particularly the one committed in Nice on 14 July 2016 – are not legally sufficient to justify the disputed prohibitive measure. The urgent applications judge concludes from this, that under these conditions, the mayor could not, without exceeding his policing powers, order measures banning access to the beach and to bathing which are based neither on confirmed risks of public order disturbances nor on reasons of hygiene or decency.
The urgent applications judge of the Conseil d’Etat therefore concludes that Article 4.3 of the disputed order was a serious and clearly illegal violation of fundamental freedoms, namely freedom of movement, freedom of conscience and personal freedom. The urgent nature of the situation having also been established, he overturns the ruling by the urgent applications judge of Nice Administrative Court and orders that decree to be suspended.
The decision that was taken by the Conseil d’Etat on August 26 2016 sets a precedent in France. The Conseil d’Etat is the Supreme Court for administrative affairs. The decision will apply to all lower levels administrative courts in France, thus in all municipalities.
¹ The Conseil d’Etat is the highest administrative jurisdiction – it is the final arbiter of cases relating to executive power, local authorities, independent public authorities, public administration agencies or any other agency invested with public authority. The Conseil d’Etat also advises the government on the preparation of bills, ordinances and certain decrees. In performing the dual functions of judging as well as advising the government, the Conseil d’Etat ensures that the French administration operates in compliance with the law. It is therefore one of the principal guarantees of the rule of law in the country.