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The French burkini case: “Uncover this breast that I cannot not behold” (fr)Version imprimable
Auteur Philippe Cossalter, Professeur de droit public - Chaire de droit public français de l'Université de la Sarre - Co-directeur du Centre juridique franco-allemand
Date : 05/09/2016
Decisions cited ( décisions citées) * Conseil d’Etat, Assemblée, 24 octobre 1997, Association locale pour le culte des témoins de Jehova de Riom, requête numéro 187122
* Conseil d’Etat, Assemblée, 27 octobre 1995, Commune de Morsang-sur-Orge, requête numéro 136727, publié au recueil
* Conseil d’Etat, Section, 18 décembre 1959, Société Les films Lutetia, requête numéro 36385, publié au recueil
* Conseil d’Etat, Section, 19 mai 1933, Sieur Benjamin et Syndicat d’initiative de Nevers, requête numéro 17413, rec. p. 541
„Lean on principles, one day they will end up giving way“ [OSCAR WILDE]
1. The limits of the founding principles of the French Republic are being tested one by one.
Flash back to the beginning of 2014: the Dieudonné affair had sparked an intensive controversy within French society. The principles governing the freedom of expression were colliding with classical rules of administrative policing1. The Conseil d’État, the highest administrative court in France, developed in response a remarkable case law, upholding administrative decrees prohibiting representations of a show due to the probability that these representations would feature a strong anti-Semitic discourse. These rulings were all the more remarkable for justifying the prohibition on the grounds of the disturbance caused to public order, not in its traditional sense of “safety of persons and property”, but in its “human dignity” sense, a dimension of public order seldom invoked in French law (Cossalter (Philippe), ‘Affaire Dieudonné: un cas d’école’: Revue générale du droit on line, 2014, No. 13599, www.revuegeneraledudroit.eu/?p=13599).
The terrorist attacks of 2015 and 2016 were followed by the proclamation of a state of emergency, with exceptional rules governing the legality of the state’s behaviour as far as policing is concerned. And this for a duration and with an intensity never seen since the end of the Algerian war.
These extreme tensions that have developed within French society have led to the questioning of a seemingly harmless action, at least harmless to foreign eyes: wearing a burkini on the beach. The word ‘burkini’ results from a contraction of ‘bikini’ and ‘burqa’. It is also a patented brand, held by the Australian society Ahiida (for more information on the very short history of the Burkini, see http://www.lemonde.fr/les-decodeurs/article/2016/08/16/petite-histoire-du-burkini-des-origines-aux-polemiques_4983599_4355770.html; for a report in English, see « How the burqa and the bikini became the burkini » on Quartz, http://qz.com/766798/france-burkini-ban-a-history/ ).
The word ‘burkini’ leads to confusion, the burqa being an element of female clothing that integrally covers the body and face of its wearer. And the integration of a reference to the burqa in the word “burkini” might have been the starting point of the current controversies.
The burkini, in spite of apparently being a success story in terms of sales worldwide, is almost unknown in France. It is however a very common apparition elsewhere, where pupils more often wear religious symbols or religion-motivated clothing to class.
The German Federal Administration Tribunal for instance already – even if incidentally – took a stance on the burkini (s. Cossalter (Philippe), Schlegel (Audrey), Jaillet (Laura), Chronique de droit administratif allemand, (A. L’affaire du Burkini), Droit Administratif n° 10, Octobre 2015, chron. 6; Schlegel (Audrey), « Laïcité en Allemagne : l’affaire du Burkini », BIJUS, http://www.bijus.eu/?p=8739). This article of clothing strikes, in the eyes of the highest administrative court in Germany, a compromise between the obligation of a school pupil to attend swimming classes and the necessity to respect the modesty of Muslim pupils. The burkini has thus been used so far as a means of integration in Germany. The German Administrative Tribunal refers to the burkini as an instrument of integration that prevents the exposition characterizing swimming classes from turning into an offense of the pupil’s, or her tutors’, religious convictions. The pupil and her family were rigorist Muslims. The burkini was created in 2004 by Aheda Zanetti to enable Muslim women to engage into sports without being restricted by their hijab.
2. Villeneuve-Loubet is a small town on the Côte d’Azur, about 17 km away from Nice. The mayor of the commune modified the administrative regulations regulating the use of public beaches on the commune’s territory with a decree adopted on the 5th August 2016.
Pursuant to article 4.3 of the decree, “the access to beaches is prohibited on the territory of the commune, from the 15th of June till the 15th of September, to anyone not wearing adequate clothes in accordance with the usual standards of behaviour and with the principle of secularism, as well as respecting the hygiene and safety rules governing the use of public sea waters. It is strictly prohibited to wear, while bathing on the territory of the commune, clothing whose connotation violates the above-mentioned principles.”.
The French Ligue des droits de l’homme and the Association de défense des droits de l’homme – collectif contre l’islamophobie en France deposed a request [PC1] for an interim order aiming at safeguarding the fundamental liberties at stake. The summary procedure specific to the protection of fundamental liberties, the “référé-liberté” or “summary procedure for the safeguard of fundamental liberties” is set out in art. L. 521-2 of the Code of administrative justice. In such procedures, judges are allowed to take “all necessary measures” for the protection of a fundamental liberty subjected, in an individual case, to a serious and visibly illegal interference (see for example, on the powers of judges to issue instructions in such procedures: Cossalter (Philippe), ‘Dignité, police et injonction : la recette indigeste du TA de Nice, Note sous TA Nice, 26 mars 2015, Conseil représentatif des associations noires (CRAN), n° 1501179 ‘ : Revue générale du droit online, 2015, No. 20451, www.revuegeneraledudroit.eu/?p=20451). This procedure enables judges to order the administration to adopt certain measures. But in most cases, the judge restricts himself to the suspension of the administrative act whose legality is being questioned: the concerned act remains inapplicable as long as a final decision regarding its legality hasn’t been taken by the administrative tribunal in charge of judging the merits of the case.
In the first instance, the plaintiffs filed a request for the suspension of the mayor’s decree in front of the Administrative Tribunal of Nice.
On the 22nd August 2016, the Tribunal handed down a ruling considered quite unorthodox (TA Nice, Ord. 22.8.2016, n°1603508). The tribunal rejected the requests for suspension of the decree, holding that the latter did not represent an important and visibly illegal restriction to a fundamental freedom.
To sum up the main findings of a decision we won’t comment any further, one could say that the Nice tribunal can be compared to the frog that wished to become as big as the ox. The Tribunal forgot it was merely called upon to assess the legality of a decree of communal policing, within the limits of a quite traditional case-law devoid of any complexities. Instead, the tribunal chose to expose its own vision of French society, and to engage in detailed considerations involving the strong commotion following recent terrorist attacks, especially the attack which occurred on the 14th of July 2016 in Nice, where the tribunal has its seat, and to expound on how some fundamental liberties could be reconciled, as well as on the notion that a kind of “beach secularism” is to be observed.
The Conseil d’État can be thanked for avoiding references to the principle of secularism, at least in its strictest sense, and for reframing the debate in unusual, more restrictive, terms. The Conseil d’Etat was competent to rule on the appeal brought against the decision handed down by the Administrative tribunal of Nice.
The Conseil d’État handed down its own decision on the 26th of August 2016 (CE, 26.8.2016, Ligue des droits de l’homme et al., n°402742).
3. France is one of the most secular countries on earth. The “Church’s eldest daughter” drew a line between Church and state, a separation marked by the law of the 9th of December 1905 on the separation of the churches and the state. This separation goes much further than similar efforts undertaken in Germany or Italy for example (see especially Rambaud (Thierry), Le principe de séparation des cultes et de l’Etat en droit public comparé : Analyse comparative des régimes français et allemand, Paris, LGDJ (coll. « Bibliothèque de droit constitutionnel et science politique »), 2004).
The principle of secularity requires the state to be neutral towards religions.
All religions must be submitted to the same treatment. Pursuant to article 1 section 1 of the French Constitution: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis“.
The freedoms of conscience and of religious expression are more explicitly united in article 10 of the Declaration of Human and Civic rights adopted in 1789, which provides that “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order“.
Article 10 is in that respect the translation to the domain of religion of the principle of freedom set out in articles 4 and 5 of the same Declaration. According to article 4: “Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.“ 
And article 5 delimits these „bounds“ that can be set by law: „The Law has the right to forbid only those actions that are injurious to society. Nothing that is not forbidden by Law may be hindered, and no one may be compelled to do what the Law does not ordain“.
The law adopted in 1905 on the separation of Church and State is one of these laws. Pursuant to its first article, “the [French] Republic ensures the freedom of conscience. She guarantees the free exercise of all religions, under no other restrictions than those set in the following dispositions in order to protect public order”.
The first article of 1905 law as well as articles 4, 5 and 10 of the 1789 Declaration define both a principle – the freedom of conscience and of religion – and its limits – the freedom to exercise one’s religion, and therefore the external manifestations of one’s religious beliefs, shall not disturb public order.
The dispositions of the 1905 law applicable to the burkini case are articles 25 to 36, concerned with the policing of the exercise of religious freedom. Some of these dispositions still bear the marks of a time where the secular (and activist) IIIrd Republic was tangled up in sometimes violent conflicts with the Catholic church. Some of these dispositions provide for criminal sanctions to be meted out to those religious ministers who endangered civil servants or the application of the law; some other dispositions protect the free exercise of religious freedom against threats of any forms.
The most interesting dispositions are to be found in the first section of article 27, pursuant to which “ceremonies, processes and other external manifestations of a religion are regulated in accordance with article L. 2212-2 of the Code of territorial authorities  [Code des collectivités territoriales]”.
A landmark decision in administrative case law addresses issues related to these dispositions. A mayor referred himself to this section in order to prevent religious officials wearing religious clothing from walking alongside funeral processions. This decree was annulated by the Conseil d’État because such processions did not threaten public order (CE, 19.02.1909, Abbé Olivier, n°27355, published ).
But the performance of religious duties, the cult or “culte” in French, cannot be assimilated to wearing clothing that might showcase membership to a specific religious group. The French word “culte” has been defined by Léon Duguit as “the performance of certain rituals, of certain habits that, to the eyes of the believers, cause them to communicate with a supernatural force” (Léon Duguit, Traité de droit constitutional, Paris, 1925, vol. VI, p. 459). This definition was (much) later endorsed by the Conseil d’État to explicit the term “culte” as used in the law of 1905: “culte” would refer to “the celebration of ceremonies organised with a view to the performance of certain rituals or practices by people sharing the same religious beliefs” (Conseil d’État, Assemblée, avis, 24.10.1997, Association locale pour le culte des témoins de Jehovah de Riom, n° 187122, published; see for a more detailed analysis ROLLAND (Patrice), “Qu’est-ce qu’un culte aux yeux de la République?” in Archives de sciences sociales de religions online), 129, Jan.-March 2005, published online on the 9.1.20008, consulted on the 25.8.2016 at : http://assr.revues.org/1109 ; DOI : 10.4000/assr.1109).
It follows that the law of 1905 on the separation of Church and State isn’t applicable to the Burkini situation.
4. French constitution and legislation therefore leave all individuals free to clothe themselves in whichever way they fancy, even though their clothing might signal their membership in a certain religious group. But we all know that this attitude found its limits with the “Islamic veil” case, which became the object of a specific treatment.
First, and this is one of the logical consequences of the principle of state neutrality, civil servants are not allowed to carry anything signalling their religious beliefs, as discreet as these signs might be. This strict conception of neutrality therefore does not allow female civil servants to wear the Islamic veil, hijab or even a simple bandana – let alone a niqab or burqa! The issue of the Islamic veil took two different turns.
First, some civil servants working in structures that are not directly linked to the state were prohibited from wearing their veil in a professional context. This prohibition gave rise to the famous “baby Loup” case . Second, all users of public services, and then all citizens, were subjected to an extension of the prohibition.
In a first step, the prohibition was extended to school pupils. The ban on religious signs within school walls was all but evident. The principle of secularity of public schools requires on the one hand that school programmes and teachers remain neutral, and on the other hand that the freedom of conscience of the pupils be respected.
The Conseil d’État was called upon to rule on the internal regulations of a public high school. For the Conseil, the freedom of conscience of the pupils “involves the right for them to express and manifest their religious beliefs within the perimeter of the school, while respecting religious pluralism and the freedom of others, and without restricting participation to teaching activities, to the school programmes and still allowing them to comply with attendance obligations”. Therefore, “within school perimeter, it is not per se incompatible with the secularity principle for pupils to carry signs by which they want to manifest their belief in a given religion, as long as this sign represents the exercise of their freedom of expression and of their freedom to manifest their religious beliefs”. However, this freedom did not allow “pupils to carry signs manifesting their membership in a certain religious group which by nature, having regard to the conditions in which these signs would be individually or collectively sported, or to the ostensible or militant character of these signs, would represent a pressure, a provocation, an act of proselytism or of propaganda; signs which would infringe upon the dignity of the concerned pupil or of other members of the school community, signs which would pose a threat to their health or safety, disturb teaching activities and the exercise of teachers’ functions, or would generally perturb the school’s order or the usual functioning of the public service”. (Conseil d’État, SSR, 2.11.1992, Kherouaa, n° 130394, published).
But already in the 1990s it appeared that the usual clothing of some female high school pupils would represent a form of proselytism and an affirmation of their refusal to exercise their religion within the framework of the Republic’s secular laws, at least for the most radicalized part of the French Muslim community.
This form of religious practice, and the issues it raised regarding secularity within French society, clearly hadn’t been taken into account in 1905. The then President of the Republic Jacques Chirac designed Bernard Stasi as chairman of a commission in charge of conducting reflexions on the application of the secularity principle in the Republic. This commission handed in its report on the 11th December 2003, which was later published. The commission called for the protection of the functioning of public service against all proselytic threats and, as far as schools were concerned, against signs ostensibly manifesting religious beliefs (so-called “ostensible signs”).
This report led to the adoption of the law n°2004-228 on the 15th March 2004. This law set out, in application of the principle of secularity, a framework for wearing signs or clothing manifesting religious beliefs in public primary, middle and high schools”. The sole object of this law was to introduce into the Code of Education an article L. 141-5-1, whose first section provides that “it is forbidden to wear in public primary, middle and high schools signs or clothing thereby pupils ostensibly manifest their appartenance to a religious group”.
This law was followed by an ‘administrative circular’ (circulaire) n° 2004-084 of the 18th May 2004 (NOR: MENG0401138C) precising that “the signs and pieces of clothing affected by the prohibition are those which, when worn, immediately leads to an identification of the membership in a given religious group, such as the Islamic veil under any of its names, the kippa or a cross of manifestly excessive dimensions” and that “the law does not affect the possibility of pupils to carry discreet religious signs”.
The second and more recent step concerned specifically veils covering the whole or part of the face, namely the niqab and the burqa. The law n° 2010-1192 adopted on the 11th of October 2010 prohibiting the dissimulation of the face in public spaces starts with a first article pursuant to which “no one can, in public spaces, wear clothing aiming to dissimulating their face”.
This step is probably the most important and marking one in relation to the burkini.
5. This was the first time that a norm prohibited not merely civil servants or the users of a public service, but anyone on French territory, from wearing clothing with religious connotation, and this not only within the walls of a company, but in public spaces. And this law did not even refer to, or took into account, public order in the traditional sense of the term, public hygiene or public safety.
Of course, the law did not explicitly ban the burqa. There wasn’t a single reference to religious clothing. But this was a mere lip service, necessary according to certain observers in order to respect international law and French constitutional principles. This law, which does not even mention religious signs, let alone refer to Islam, is obviously an “anti-burqa” law.
Was this prohibition motived by a wish to condemn a sartorial tradition infringing upon human dignity? The question is justified. But this approach would have represented a “clash of civilizations”, a clash manifested by the promotion of a moral prohibition to the level of general principle of objective character within the French Republic. At least parts of the French society weren’t willing to engage into this civilization war. A civilization war that many now would like to wage against Islam.
The government, before submitting its draft law to the parliament, has requested the Conseil d’État to study “the legal possibilities to enact a general ban on the integral veil”. The results of the study were made public on the 25th of March 2010. The question actually asked to the Conseil d’État can be couched in the following terms: “is it legal to consider a general ban of the integral veil as such, with which motivations and under which limits, or can such a ban only be discussed under the cover of a ban on any clothing dissimulating the face – a clothing that might take the form of an integral veil?” (p. 8 of the study).
The Conseil d’État first stated that the principle of secularity requires the state to remain neutral in its relations to the different religions, and therefore does not allow for a ban on integral veils as expression of a precise religion. However, the Conseil d’État refers to the case law of the European Court of Human Rights, according to which, “but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate” (ECHR, 26.10.2000, Hassan and Tchaouh v. Bulgaria, n° 30985/96, § 78).
The Conseil then examined the principles of human dignity and of equality between men and women. The Conseil d’État strives to establish a legal basis as well as a clear meaning for the principle of dignity, even though this concept hasn’t really taken root in French law (s. Cossalter (Philippe), ‘ La dignité humaine en droit public français : l’ultime recours, Intervention à la 7ème conférence-débat du Centre de droit public comparé, Université Panthéon-Assas Paris II, 30 octobre 2014 ‘ : Revue générale du droit on line, 2014, numéro 18309 (www.revuegeneraledudroit.eu/?p=18309)). The Conseil d’État affirms that the ECHR has acknowledged a subjective dimension to human dignity, a dimension in which voluntary submission to a certain treatment would prevent the invocation of the principle of human dignity (ECHR, 7.2.2005, KA and AD v. Belgum, n° 42758/98). According to the data collected by the Conseil d’État from the Ministry of Home affairs, the burqa is in most cases voluntarily chosen by women, and couldn’t therefore be seen as submission to an unwanted treatment. It should yet not be forgotten that the Conseil d’État did not seem to be an proponent of this subjective dimension of human dignity in 1995, as it referred to human dignity – in its objective dimension!- in order to uphold decrees prohibiting events featuring “dwarf throwing” (CE, Ass., 27.10.1995, Commune de Morsang-Sur-Orge , n° 136727). The Conseil d’État seemed in 1995 to follow the approach of the German constitutional court. The Conseil quoted its Morsang-sur-Orge decision in the 2010 study, but without explaining how the ECHR could prevent French constitutional law from following a more objective approach to human dignity.
The principle of equality between men and women also doesn’t leave room for a conception of equality that wouldn’t take into account the notion of consent. Equality cannot be imposed to those women who choose to wear the burqa, as long as they act of their own volition.
The burqa could not be per se banned in public spaces. The Conseil d’État thus discussed the compatibility with the Constitution and with the European Human Rights Convention of a general prohibition of any face-hiding clothing in public spaces.
The Conseil rushed through the examination of the different liberties that could directly or indirectly be affected by the interdiction to dissimulate one’s face in public spaces (could directly be affected: “personal liberty”, as well as the right to respect of private life; could indirectly be affected: the freedom of movement (aka “the freedom to go to and fro”!), the freedom of commerce and industry, and strangely featured at the end of the Conseil’s list, the freedom to express one’s religious beliefs). The Conseil then stated that on the basis of article 10 of the 1789 Declaration, such an interdiction could only be justified by a disturbance of public order (as a reminder: “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order”).
After a 20-pages-long analysis, the Conseil d’État comes back to the concept of public order. The Conseil distinguishes between the two forms of public order: material and immaterial public order.
The concept of material public order refers to the traditional trilogy of safety, hygiene and peace. The Conseil d’État reminds us (without explicitly referring to safety), that public order might involve fighting against the dissimulation of persons, or even lead to requesting their identification. The Conseil d’État here quotes the Conseil Constitutionnel’s decision No. 2007-557 DC on the 15th November 2007 concerning the law on the regulation of immigration, on integration and asylum. One might wonder at this choice, because the dispositions examined by the Conseil Constitutionnel regulated genetic tests to establish family links between refugees. This reference might reveal a certain anxiety on the side of the Conseil, unable to establish a stable legal relation between the dissimulation of one’s face in public spaces and the requirements of material public order, such as safety requirements.
The concept of immaterial public order refers to the “right order of things”, to the moral order on the one hand, and to human dignity on the other hand. The “right order of things” is a somewhat dated concept. It has been punctually used by the Conseil d’État in decisions heavily dependent on the circumstances of the case. These decisions do not deserve the attention they have commanded. In its landmark decision “Societé les films Lutetia”, the Conseil rejected the claims made against the decree adopted by the mayor of Nice prohibiting the projection on the territory of the commune of the movie “Le Feu dans la peau”. The Conseil held that “a mayor, in charge of maintaining public order on the territory of his commune, can prohibit the projection on said territory of a movie that has been authorized by the competent authorities, but whose projection might cause serious disturbances or might be detrimental to public order, having regard to its immoral character and to local circumstances” (Conseil d’État, Section, 18.12.1959, Société Les Films Luttia, No. 36385, published).
As the Conseil d’État reminds us in its 2010 report, the possibility to refer to morality as an element of public order depends upon local circumstances. We wish to add that there are not many, and maybe even close to none, examples of communal decrees legally adopted in reference to morality. We would also like to add that the premises of this line of case-law never seemed solidly grounded.
As far as human dignity is concerned, we have already exposed the difficulties of turning it into a reliable legal basis in French law, even though the Conseil d’État is, in our opinion, mistaken in affirming that the human dignity only affords a subjective protection under French law.
The Conseil d’État thus proposes to refer to a “new” form of public order – all the while highlighting the highly uncertain character of this new legal basis.
The Conseil articulates a daring proposal, of almost civilizational nature: “it could be affirmed that public order corresponds to a minimal set of reciprocal requirements and of essential guarantees for life in society – requirements and guarantees that, such as the respect of pluralism, are fundamental to the point where they condition the exercise of other liberties, and to the point where they impose the rejection, if necessary, of the consequences of certain acts guided by individual will. These fundamental requirements of the social contract are implicit and permanent. But they could lead to the admission that as soon as the individual steps into the public space in the largest sense of the term, i.e., as soon as he is susceptible to fortuitously cross another individual’s path, this individual cannot deny the fact that he belongs to society, or have this relation denied to him, by hiding his face from the eyes of others to the point where all recognition becomes impossible. Besides, these same requirements lead to a more general interdiction of differentiating signs denying equality, and recognized as such.”.
The law-maker finally settled for this conception of public order, also throwing in references to considerations such as safety, as evidenced in the motivations of the Conseil Constitutionel’s decision. The Conseil Constitutionnel was called upon to assess the compatibility of the final law with the Constitution in a procedure of a priori  control (CC, decision n! 2010-613 DC, 7.10.2010, Loi interdisant la dissimultation du visage dans l’espace public).
“4. Considering that the articles 1 and 2 of the law submitted to our control aim at providing a framework for a practice that recently appeared, consisting in the dissimulation of one’s face in public spaces; considering that the law-maker held these practices to pose a threat to public safety and to ignore the most minimal requirements of life in society; that the law-maker also held that women who dissimulate their face, whether or not of their own volition, face a situation of exclusion and inferiority obviously incompatible with the constitutional principles of liberty and equality; that by adopting the dispositions presented above, the law-maker completed and generalized rules that have before only been punctually applied in order to protect public order;
5. Considering that having regard to the objectives the law-maker had set for himself and having regard to the nature of the sanction foreseen in case of violation of the rules he had defined, the law-maker has adopted dispositions that conciliate safeguarding public order and guaranteeing constitutionally protected rights in a way that is not manifestly disproportionate; that, however, the interdiction to dissimulate one’s face in public spaces could not restrict the freedom to exercise one’s religion in those public spaces that are destined to the exercise of religion without infringing article 10 of the 1789 Declaration; that, these reservations being made, the articles 1 to 3 of the law submitted to our control do not represent a violation of the Constitution;”.
6. The law on the ban of the integral veil in public spaces teaches us two lessons, having been prepared for over a year, and preceded by a public enquiry led by the Assemblée nationale, as well as by a study conducted by the Conseil d’État. First, we see that slow reflexions have been followed by complete hysteria, a hysteria justified, at least according to some voices, by the trauma of the recent terrorist attacks. Second, it was obvious that the decree banning the burkini would not be legal in the eyes of the Conseil d’État and would thus be suspended. Of course, prudence would have called for less definitive affirmations: we remember the unforseen and unforeseeable decision handed down in the Dieudonné-case.
Bearing all these elements in mind, the Conseil’s decision suspending the decree on the 26th of August 2016 becomes much easier to understand. It should first be noted that the Conseil d’État cleverly avoided any reference to the principle of secularity in his decision. Any such reference would have been irrelevant, having regard to the previous developments. As long as current legislation isn’t modified, the only possible justification to this ban of the burkini on French beaches will have to rest upon a potential threat to public order – public order interpreted in its traditional sense, linked to general administrative policing at communal level: hygiene, peace, safety. If a social behaviour threatens neither one of these three elements (material public order) nor the immaterial public order understood as human dignity or morality, any policing intervention remains without justification.
The Conseil recalls this in its fifth consideration, in reserved terms:
“[…] policing measures adopted by the mayor of a seaside commune in order to regulate the access to beaches and public bathing must be adapted, necessary and proportional to the sole necessities of public order as they result from local and contemporary circumstances, and take into account the requirements of a proper access to the beaches, of safety of public bathing as well as of hygiene and decency on beaches. A mayor is not competent to act out of other considerations and any restrictions of public liberties must be justified by actual risks of a disturbance of public order”.
We don’t even here need to refer to the Benjamin line of case law (Conseil d’État, Section, 19.5.1933, Sieur Benjamin et Syndicat d’Initiative de Never, No. 17413, published p. 541). There are no issues linked to the adaption of a given measure to local and temporal circumstances and of proportionality of the measures to the risks of disturbance of public order in the burkini case. The measure discussed here simply isn’t necessary.
For the rest, the mayor is not competent for implementing an immaterial approach to public order for such a vital debate: only the law-maker, because he represents the nation, may address these issues.
7. The decision of the Conseil d’État immediately provoked the fury of some politicians, conservatives as well as liberals. A law is to be hastily adopted in order to ban the burkini. An imprudent colleague immediately affirmed that such a law would without a doubt turn out to be incompatible with the Constitution. We shall here support him in his folly, and share afterwards the disgrace of those who have been mistaken: there are but a few doubts that, given the current state of French and European law, an anti-burkini law would be incompatible with both the national Constitution and international agreements.
We shall not address here the question of the compatibility of such a law with article 9 ECHR. Others are more qualified to discuss this issue that will certainly be much debated.
What can we learn from French law? That banning the burkini, that doesn’t hide the face of its wearer, would amount to test the new (and mostly implicit) notion of “civilizational public order” endorsed by the law n° 20101192 of the 11th October 2010 prohibiting the dissimulation of one’s face in public spaces. The law maker would have to ban a piece of clothing covering the body, which would amount to banning from a certain public space all forms of Islamic veil, even the hijab. This public space would be defined as all public bathing sides, excluding all other public spaces, according to the proponents of such a law.
This suggestion raises two questions pertaining to the contents and the sphere of application of the ban.
The content of such a ban would implicitly hold the affirmation that any Islamic veil per se is incompatible with the values embodied by the French Republic. The ban would not be about prohibiting the veil, but about prohibiting the veil in those places where ‘normally’ women would uncover their head and body.
The double challenge of such an approach is obvious. A first challenge would consist in defining the public spaces affected by the ban, an even more arduous task than in any other context: do “places of public bathing” refer to both swimming pool and sea, to larger rivers and smaller springs; are places where bathing is prohibited also concerned; does the ban differ according to the temperature of air and water; is there an exception for Cherbourg? But this is only a small difficulty compared to the huge challenge of explaining why, paraphrasing the Conseil d’État, “it could be held that public order relies on a minimal set of reciprocal requirements and essential guarantees for life in society, involving among others the obligation for all women to wear a bikini on the beach”.
Ridiculous declarations are not punished by death. But they might get a lawyer into difficulties.
But let’s stop here. It appears no more necessary to develop such an idea than to comment upon the decision of the administrative tribunal of Nice.
And let’s leave the last word to Tartuffe, who hides behind his aversion for a piece of clothing his hatred of those who wear it.
- Translator’s note: „administrative policing“ refers in French law to all activities conducted by the law enforcement authorities in order to safeguard public order and prevent infractions (as opposed to repressive law enforcement, named „judiciary policing“). Administrative policing does not aim at imposing sanctions upon individual offenders, but at guaranteeing safety in general. Its means of action are mostly general controls and regulation of activities.
- Official translaction of the French Constitution as provided by the National Assembly.
- Official translation of the Declaration as provided by the Conseil Constitutionnel.
- Translation for the purposes of the present article
- Translator’s note: Territorial authorities are territorially delimited legal persons grounded in public law who do not share the state’s legal personality. They enjoy administrative autonomy. Communes, départements and regions are examples of such territorial authorities.
- Translator’s note: nowadays are all decisions of the Conseil d’État published on the internet, and are thus accessible. But before the digital era, a decision was only accessible to the concerned parties, except if it was published in the „Recueil Lebon“. This publication still exists today, The Conseil used to publish there those decisions it deemed to be of special interest, so it could be accessible to all interested persons. Nowadays, the mention „published“ is still used to signal that the decision marked in such a way is a landmark case.
- The employee of a private kindergarten had refused to comply with the new internal regulation banning the Islamic veil. The French Cour de Cassation (highest court competent for deciding in last instance cases to which private law would be applicable) had first ruled that „the secularity principle contained in article 1 of the Constitution isn’t applicable to the employees of a private employer who hasn’t been charged of the management of a public service“. It follows that the principle „cannot be invoked to deprive the employees of the protection afforded to them by the Labour Code“ (Cass., Soc, 19.3.2013, No. 11-28845). The case was then deferred to the Paris Court of Appeal – that went against the decision by the Court of Cassation. The latter judged the case in plenum and ruled that internal regulations might prohibit religious signs. The concerned regulations provided that „the principle of freedom of conscience and of religion of each of the employees cannot be an obstacle to the respect of the principles of secularity and of neutrality that apply to all activities proposed within the kindergarten, in its annexes or while accompanying the children entrusted to the kindergarten on various outings.“. The Cassation Court did not develop a general principle of neutrality for all private companies but allowed, in the particular case of a small structure whose employees are permanently in contact with children, to prevent these employees from wearing the Islamic veil (Cass., plén., 25.6.2014, No. 13-28.368) [all extracts from the decisions have been translated for the purposes of the present contribution].
- Translation for the purposes of the present contribution.
- Translator’s note: an administrative circular refers, in French administrative law, to the recommendations and instructions addressed by the director of an administration to his employees. They are often used to explicit the meaning of a new law, or to expose how this law is to be applied.
- Translator’s note: the Conseil d’État is divided into two different departments. One supports and provides advice to the government in all matters related to norm-setting (impact assessments, execution assessment, state-of-the-law reports etc.), while the other judges the legality of all norms adopted by the executive power, i.e. norms which rank below legislative norms in the hierarchy of law. The second section has the power to suspend or nullify „executive norms“, and can also rule over damage claims brought against state institutions. For more information, read the speech by the former president of the Conseil d’État Jean-Marc Sauvé “The French Administrative Jurisdictionnal System” at http://www.conseil-etat.fr/Actualites/Discours-Interventions/The-French-administrative-jurisdictional-system – last consulted on the 1.9.2016 -
- Translation for the purposes of the present contribution
- Translator’s note: the notion of „personal liberty“, as opposed to „individual liberty“, hasn’t been clearly delimited yet in French law. Mentions of „personal liberty“ are to be found in art. 2 and 4 of the 1789 Constitution, while „individual liberty“ is central to article 66 of the 1958 Constitution. „Personal liberty“ can be roughly sketched as the freedom of an individual person against society, and can be compared to the freedom to seek self-fulfilment known to other legal orders (in Germany for example). „Individual liberty“ refers to the freedom of the individual person against the state (freedom of speech, freedom of movement etc). The freedom at stake in the burkini cases is the personal freedom, the freedom of any individual to choose their clothing without being submitted to “peer pressure”, even in those cases where peer pressure is backed up by state institutions.
- Translator’s note: The Conseil Constitutionnel exercises both an a priori and an a posteriori control of the constitutionality of laws. The a priori control takes place after a law has been adopted by Parliament, but before it has been signed and promulgated by the President of the Republic, while the a posteriori control can take place at any time after the law has entered into force and is being applied. For more information, see FABBRINI F., “Kelsen in Paris”, in German Law Journal, Vol. 9, No. 10, 2008, p. 1297 f.
- Translator’s note: the National Assembly (Assemblée nationale) is the lower chamber of the national parliament, directly elected by the people.
Cossalter (Philippe), Schlegel (Audrey), Jaillet (Laura), Chronique de droit administratif allemand, (A. L'affaire du Burkini), Droit Administratif n° 10, Octobre 2015, chron. 6 Rambaud (Thierry), Le principe de séparation des cultes et de l'Etat en droit public comparé : Analyse comparative des régimes français et allemand, Paris, LGDJ (coll. « Bibliothèque de droit constitutionnel et science politique »), 2004 Rolland (Patrice), « Qu'est-ce qu'un culte aux yeux de la République ? », Archives de sciences sociales des religions [En ligne], 129 | janvier - mars 2005, mis en ligne le 09 janvier 2008, consulté le 25 août 2016. URL : http://assr.revues.org/1109 ; DOI : 10.4000/assr.1109 Schlegel (Audrey), « Laïcité en Allemagne : l’affaire du Burkini », BIJUS, http://www.bijus.eu/?p=8739