French Council of State (Conseil d’Etat), no. 464648, 21 June 2022
The French Conseil d’État has ruled on the first case of déféré-laïcité and confirmed the legality of the suspension of a municipal regulation that allowed the use of the "burkini" in public swimming pools.
In May 2022, the city of Grenoble issued a new Regulation containing certain provisions related to the management of municipal swimming pools. Art. 10 of the Regulation provides for the clothing allowed inside the premises and required to wear close-fitting garments to satisfy hygiene and safety. At the same time, it provided and introduced an exception for loose-fitting clothing that is no longer than up to mid-thigh, allowing the use of the so-called "burkini".
On 25th May 2022, the Administrative Tribunal of Grenoble suspended the new Regulation, finding that Art. 10 seriously undermined the principles of laïcité and neutrality of public services; the municipality, therefore, appealed to the Council of State, on grounds of Art. 5 of Law No. 2021-1109 of 24th August 2021. The latter provision introduced the possibility of appealing to an administrative court (or other designated court) to obtain, within 48 hours, the suspension of an administrative measure that seriously undermines the republican principles of laïcité and neutrality of public services.
The Council of State held that the municipal Regulation, concerning the swimming pools, in allowing the use of the "burkini" exempted a certain category of users from a rule of general applicability, which had been adopted for reasons of hygiene and safety. According to the decision, the proper functioning of public services does not permit exemptions from a general and applicable law, except for concrete and compelling justifications. In addition, Art. 1 of the French Constitution prohibits invoking religious convictions to circumvent the application of rules governing relations between public authorities and private individuals.
For these reasons, the Council of State dismissed the appeal and upheld the suspension of the municipal regulation, finding that the exemption on the use of tight-fitting swimsuits for hygienic and safety reasons, formulated to accommodate a purely religious requirement, is detrimental to the proper functioning of public services and the equal treatment of users.
(Comment by Tania Pagotto)