Until now, we have avoided commenting on the burkini ban on some French beaches, on the basis that there were several news reports but very little in the way of legal analysis. However, the urgent applications judge of the Conseil d’État has now suspended a ban imposed by the Mayor of Villeneuve-Loubet (Alpes-Maritimes) on wearing the burkini on the town’s beaches.
On 5 August, the Mayor decreed a new local ordinance regulating the use of public beaches in that city, which included an Article 4.3 forbidding swimmers from wearing clothes “obviously showing a religious affiliation” – thereby effectively banning them from the beaches. The ban appeared to be aimed in particular at Muslim women who wore whole-body swimsuits.
The Ligue des droits de l’homme, the Association de défense des droits de l’homme – Collectif contre l’islamophobie en France and others lodged a claim with the urgent applications judge of the Tribunal Administratif of Nice for an order suspending the Mayor’s ordinance. On 22 August, a three-judge section of the Tribunal Administratif dismissed the claim. The claimants appealed to the Conseil d’État.
In CE, ordonnance du 26 août 2016, Ligue des droits de l’homme et autres – association de défense des droits de l’homme collectif contre l’islamophobie en France: Nos 402742, 402777, the urgent applications judge noted that a mayor might institute general policing measures necessary to maintain peace and good order, safety, security and public health but that such measures had to respect the fundamental liberties guaranteed by law. Therefore, decisions aimed at regulating access to beaches and swimming had to be limited to what was demonstrably adequate, necessary and proportionate for the maintenance of peace and good order. Moreover, measures to maintain peace and good order had to take into account time, location and what was appropriate in order to safeguard ease of access to the seashore, the safety of swimmers and hygiene and decency on the beach. Other factors were not to be taken into account; and any measure restricting public freedoms had to be justified by clearly demonstrable risks to peace and good order.
In the present case, there was no such evidence of any threat to peace and good order on the beaches of Villeneuve-Loubet as a result of what people wore. Concerns resulting from recent terrorist attacks, in particular from the attack in Nice on 14 July, were not sufficient to justify the ordinance. The Mayor of Villeneuve-Loubet could not, therefore, forbid people in religious attire from access to the beach when such measures were not justified either by threats to peace and good order or by reasons of hygiene or public decency.
Article 4.3 of the ordinance had seriously infringed fundamental liberties – such as the freedom to come and go, religious freedom and individual freedom – in a manner that was clearly illegal. The urgent applications judge therefore ordered that the decision of the judge of the Tribunal Administratif of Nice dated 22 August 2016 be annulled and that the implementation of Article 4.3 of the decree of the Mayor of Villeneuve-Loubet dated 5 August 2016 be suspended.
Le Monde described the judgment of the Conseil as “a victory for the rule of law” and commented that the decision “provides a welcome opportunity to put an end to a controversy too often exploited for ulterior electoral motives and class politics.”
It should be noted that what the Conseil has done is to suspend the operation of a particular ban in a particular place – and there are several other bans currently in operation. The Guardian reports that, thus far:
“Only two mayors lifted their bans in the wake of the Villeneuve-Loubet ruling: the Socialist mayor of Oye-Plages near Calais and the centrist mayor of Eze in the Alpes-Maritimes. Mayors from the rightwing Les Républicains party and from the far-right Front National are keeping their bans in place, insisting that the Villeneuve-Loubet case does not apply to them.”
Presumably, either those responsible for imposing them will need to think again in pretty short order or the Conseil will do their thinking for them.