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26 août 2016

The Council of State orders a decision banning clothes demonstrating an obvious religious affiliation to be suspended.

The urgent applications judge of the Council of State orders a decision banning clothes demonstrating an obvious religious affiliation, worn by swimmers on public beaches, to be suspended.

The essence

  • The mayor of Villeneuve-Loubet (Alpes-Maritimes) had decided to forbid any swimmer, on the beaches in that city, to wear any piece of clothing obviously showing his/hers religious affiliation. Associations and individual citizens asked for this decision to be suspended.
  • The urgent applications judge of the Council of State notes that, according to well-established case law, a mayor must conciliate the fulfillment of his/her mission to maintain peace and good order in the city on the one hand, and due respect to public liberties safeguarded by law on the other hand. Orders issued by a mayor in a city located on the seashore, aimed at regulating the access to the beaches and swimming must therefore be adequate, necessary and proportionate with respect to what is strictly necessary to maintain peace and good order. The mayor should not take other elements into consideration while exercising this mission.
  • In Villeneuve-Loubet, there is no evidence that safeguarding peace and good order on the beaches had been jeopardized because some swimmers were wearing certain types of clothes. Without such evidence, the mayor couldn’t decide that such persons would not have access to the beaches.
  • The urgent applications judge of the Council of State therefore orders the mayor’s decision to be suspended.

Facts and procedure

  • On August 5th 2016, the mayor of Villeneuve-Loubet (Alpes-Maritimes) issued a new order regulating the use of public beaches in that city. Such order includes an Article 4.3 aimed at forbidding swimmers to wear clothes obviously showing a religious affiliation, therefore banning such swimmers from the beaches.
  • The Ligue des droits de l’homme (LDH) and two individual citizens on the one hand, the Association de défense des droits de l’homme – Collectif contre l’islamophobie en France on the other hand, submitted  a claim to the urgent applications judge of the Administrative Tribunal of Nice, asking this judge to order the decision made by the mayor of the city of Villeneuve-Loubet to be suspended. According to this procedure, as specified by Article L 521-2 of the French Code of Administrative Justice, the urgent applications judge may order, within 48 hours, any measure required to safeguard a fundamental freedom that has been seriously infringed by a public authority, in the exercise of its powers, in a manner that is clearly illegal. The claimant must also submit evidence that such application is justified by the urgent nature of the case.

According to a decision delivered on August 22nd 2016, the urgent applications judge of the Administrative Tribunal of Nice, with three judges sitting on the bench, dismissed the claim. This first instance decision was appealed before the Council of State.

After holding a public hearing on August 25th 2016, the urgent applications judge of the Council of State delivered his decision today.

 

The decision delivered by the Council of State

 

  • In the decision that has been delivered today, the urgent applications judge of the Council of State first sums up the relevant legal framework. He notes that the mayor may take general police measures required for maintaining peace and good order, safety, security and public health. He also underlines that, according to principles of case law that have been well-established for over a century, the mayor must conciliate the fulfillment of his/her mission to maintain peace and good order in the city on the one hand, and due respect to fundamental liberties safeguarded by law on the other hand. Decisions made by a mayor of a city located on the seashore, aimed at regulating the access to the beaches and swimming, must therefore be adequate, necessary and proportionate with respect to what is strictly necessary to maintain peace and good order. Such needs to maintain peace and good order must be identified taking into account the relevant circumstances, in terms of time and location, and also according to what is appropriate in order to safeguard an easy access to the seashore, the safety of the swimmers and also hygiene and decency on the beach. The mayor should not take other factors into account, and any measure restricting public liberties must be justified by clearly identified risks of breaches against peace and good order.
  • Then looking into the mayor’s order, the urgent applications judge of the Council of State notes that no evidence was brought before him that risks of breaches against peace and good order existed, on the beaches of Villeneuve-Loubet, in relation with the clothes worn by some people. Considering that such risks didn’t exist, the concern and worries resulting from recent terrorist attacks, in particular the attack that took place in Nice on July 14th, are not sufficient to justify legally the mayor’s order which is at stake. The urgent applications judge of the Council of State concludes that, in such conditions, the mayor could not while exercising his powers forbid people from having access to the beach and swimming, insofar as such measures are justified neither by risks of breaches against peace and good order, nor by reasons of hygiene or decency.
  • The urgent applications judge of the Council of State comes to the conclusion that Article 4.3 of the mayor’s order had seriously infringed, in a manner that was clearly illegal, fundamental liberties such as the freedom to come and go, religious freedom and individual freedom. Considering also the urgent nature of the case, the urgent applications judge of the Council of State declares null and void the decision of the judge of the Administrative Tribunal of Nice, and orders this provision to be suspended.