In a recent ruling, Sections V and VI of the French Conseil d'État considered the appeal of the Syndicat des Avocats de France (SAF), which sought the annulment of the decision taken by the General Assembly of the Conseil National des Avocats (CNB) that had introduced a ban on all professionals registered with the Bar from wearing distinctive symbols alongside their traditional robes.

Pursuant to Article 3 of the Law of 31 December 1971, lawyers, as judicial officers, shall wear the professional attire of their office when performing their duties. Furthermore, Article 6 of the Consular Decree of 23 December 1802 provides that «in all court hearings, lawyers and prosecutors shall wear a woolen gown, closed at the front, with wide sleeves».

Article 21-1 of the same Law of 31 December 1971 further stipulates that the National Bar Council is the body responsible for harmonising, through general provisions, customs and rules applicable to the legal profession, always respecting, pursuant to Article 53, the independence of lawyers, the autonomy of local bar associations, and the liberal nature of the profession.

Given this regulatory framework, the Council of State inferred the existence of a regulatory power vested in the CNB, which may be exercised to harmonise the essential rules governing the profession, provided that such exercise respects the free practice of the profession and the fundamental guarantees protecting it, and is grounded in statutory or regulatory provisions or established professional traditions.

For a long time, the CNB had refrained from regulating the wearing of distinctive symbols during legal practice, which resulted in a regulatory asymmetry depending on the choices made by individual local bar associations. The issue repeatedly resurfaced, particularly concerning the wearing of the Islamic headscarf by Muslim female lawyers. As a result, the regulatory landscape ranged widely, from complete absence of regulation to strict prohibitions on religious symbols, including bans on decorative items. In 2022, the Court of Cassation (First Civil Division, 2 March 2022, No. 20-20185) urged the CNB to harmonise the rules in this domain. Following several hearings, the Council adopted the decision on 7 September 2023, which was then challenged by the SAF in the case at hand.

In line with the interpretation offered by the Court of Cassation in the aforementioned judgment, the French Council of State confirmed the existence of a regulatory power vested in the CNB, within the limits established by Article 53 of the Law of 31 December 1971. Moreover, the court identified the legal basis for the CNB’s prohibition in Article 3(3) of the same law, which mandates a uniform dress code for all lawyers. The CNB had therefore merely clarified the scope of this provision, without introducing new requirements, and acted within the limits of its competence. The Council of State also emphasised that the provision in question is unambiguous and clearly defines its scope of application; hence, there are no grounds for illegality in the challenged decision.

Based on this line of reasoning, the Council of State held that the impugned decision pursued the legitimate aim of clearly identifying lawyers in the performance of their judicial functions and of avoiding any personal interference in the representation of clients’ interests. This was seen as a means of ensuring equality both among legal professionals and between citizens before the law, an essential prerequisite for upholding the right to a fair trial. Ultimately, the decision was deemed to pursue a legitimate aim, and the imposed prohibition was considered proportionate to that aim. The court therefore rejected the arguments alleging a potential violation of the international legal sources (Articles 9-10 of the ECHR and Articles 18-19 of the International Covenant on Civil and Political Rights).

The reasoning of the French administrative court thus led unequivocally to the dismissal of the appeal filed by the Syndicat des Avocats de France, thereby confirming the continued validity of the prohibition on wearing distinctive symbols during the practice of the legal profession.

The judgment under review, which does not explicitly mention cases involving the wearing of the Islamic headscarf that prompted the CNB’s decision, nonetheless fits coherently within the broader framework of France’s policy on managing religious expression. French laïcité is characterised by a strict separation between the public and private spheres, especially in situations involving the exercise of public authority. In this regard, the rigorous application of neutrality within the French public administration is well known. Moreover, the trend toward implementing the so-called white wall policy is a prominent feature of the French legal system, most recently reflected in Law No. 1109 of 24 August 2021, which further reinforced, at times even tightened, the legal provisions governing State secularism. The Council of State’s judgment, ultimately, appears to fully reflect the rigorously laïque stance of the French Republic.

 

(Comment by Martina Palazzo)