Burkini bans : what next ?

mardi, 30 août 2016 08:28

After a summer of controversy, the Council of State (France’s highest administrative court) ruled that burkini bans are not legal, considering the current state of the law.

Indeed, French laws only prohibit the wearing:

  • of the burqa and the niqab in public (since 2010),
  • and of muslim headscarves and other conspicuous religious symbols in schools (since 2004).

Elsewhere in France, the wearing of conspicuous religious symbols is legal.

In its August 26th decision, the Court stated consequently that neither the principle of secularism, nor the health and safety could be sufficient legal basis for such bans. Moreover, the Court refused to consider that burkinis were likely to disturb public order on the beaches. Therefore, the Council of State suspended the burkini ban of Villeneuve-Loubet (the municipality concerned) in a ruling that will create precedent.

Be that as it may, the burkini bans of all the others municipalities are about to expire (at the end of August), since they were (for most) limited to the summer. As for the others, they should now be overturned by the local Courts, applying the Council of State ruling (the Administrative Tribunal of Nice was the first to overturn a bukini ban, August 30th, since the Council of State ruling). Mayors could also deliberately withdraw their decisions, which are unsound in law.

The only way to ban burkinis from now on in France will be to pass a law. However, it should not be as easy as it seems. Indeed, such a law would have to pass through the filter of the Constitutional Council, which is likely to take over the arguments already advanced by the Council of State. Some French politicians are therefore already proposing to amend the Constitution to ban burkinis everywhere.

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Pierrick Gardien

Pierrick Gardien

Avocat Droit Public
Enseignant aux Universités de Lyon

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