The French Council of State found burkini ban illegal

Conseil d’État, Juge des référés, formation collégiale, 26/08/2016, 402742

ECLI:FR:XX:2016:402742.20160826

The human rights league (Ligue des droits de l’homme) and the Association for the Defence of Human Rights- Organisation against Islamophobia in France (Association de défense des droits de l’homme – Collectif contre l’islamophobie en France) lodged a claim with the urgent applications judge of the Administrative court of Nice (Tribunal Administratif de Nice) for an order suspending the implementation of Article 4.3 of the decree of the Mayor of Villeneuve-Loubet.

According to the aforementioned decree, wearing clothes while swimming is prohibited on the beaches of the town. These provisions have banned the swimmers from wearing clothes that express in a conspicuous manner religious affiliation.

The administrative court of Nice dismissed the claim. On that occasion, the claimants launched an appeal before the Council of State (Conseil d’État).

The Council of State referred to the Constitution, including its preamble and to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Council of State found that the policing measures established by the mayor in order to regulate access to the beaches and swimming should be appropriate, necessary and proportionate to the need of public order.

There was no risk of disturbance of public order on the beaches of Villeneuve-Loubet as a result of the clothing suitable for swimming by some people.

The Council of State considered that the mayor could not enact provisions that prohibit access to the beach and swimming when such measures were not justified by proven risks of disruption of public order or, otherwise, by reasons of hygiene.

The contested ordinance had seriously infringed fundamental liberties such as the freedom to come and go, religious freedom and individual freedom.

Consequently, the Council of State annulled the decision of the judge of the Administrative court of Nice. Thus, the implementation of Article 4.3 of the decree of the Mayor of Villeneuve-Loubet was suspended.

For more case-law see EuroCases

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