France’s top court overturns burkini ban
26 August 2016
In the ruling he has issued today, the urgent applications judge of the Conseil d’Etat¹ begins by specifying the legal framework. He recalls that the mayor is responsible for municipal police. But he 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 commune 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 article to be suspended.
¹The Conseil d’Etat advises the government on the preparation of bills, ordinances and certain decrees. It also answers the government’s queries on legal affairs and conducts studies upon the request of the government or through its own initiative regarding administrative or public policy issues. 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. In discharging 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.