Décision de justice

The Conseil d’État has upheld the suspension of the regulations of the swimming pools of the city of Grenoble, permitting the use of “burkini” swimsuits

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For the first time, a matter was brought before the urgent applications judge of the Conseil d’État as part of the new “laicité referral” provided for by the Law of 24 August 2021 supporting respect for the principles of the Republic. The urgent applications judge of the administrative court of Grenoble had suspended the new regulations of the swimming pools of the city of Grenoble, permitting the use of “burkini” swimsuits. Following an appeal by the city, the urgent applications judge of the Conseil d’État upheld the suspension, finding that the very targeted exemption from ordinary law relating to the wearing of close-fitting swimsuits for hygiene and safety reasons to accede to a religious demand could affect the proper working of public services and the equal treatment of users, in a manner that is detrimental to the principle of the neutrality of public services.

In May 2022, the city of Grenoble implemented new regulations for the four municipal swimming pools under its management, stating its wish to allow users who wished to do so to cover their bodies to a greater degree. Article 10 of the regulations, which govern the clothing permitted in pools for hygiene and safety reasons, particularly by requiring it to be close-fitting, provides for an exemption for loose-fitting clothing that is no longer than up to mid-thigh. After the suspension of that provision by the urgent applications judge of the administrative court of Grenoble on 25 May 20221, the city appealed against the ruling to the Conseil d’État. It was the first application of the new “laicité referral” under the Law of 24 August 2021 supporting respect for the principles of the Republic2, concerning cases where the principles of laïcité and the neutrality of public services are seriously undermined.

The urgent applications judge of the Conseil d’État recalled the jurisprudence, under which the manager of public services has the power to adapt the organisational and operating rules of the services to facilitate access to them, including by taking account of the religious beliefs of users, without that being a right, since the provisions of Article 1 of the Constitution prohibit the invocation of religious beliefs to evade the common rules that govern the relations between public authorities and private individuals. The judge also recalled that such power may not be used in a manner that is detrimental to law and order or harmful to the working of the service3. Through the ruling, the urgent applications judge of the Conseil d’État has indicated that the proper working of public services does not allow adaptations which, by the extent of the exemption they provide from the rules of ordinary law for no real justification, would make compliance with those rules more difficult for users who do not benefit from the exemption or would constitute a clear breach in the equal treatment of users, and would thus go against the obligation of public services to maintain neutrality.

In the case in hand, the urgent applications judge found that, contrary to the stated aim of the city of Grenoble, the adaptation of the regulations of its swimming pools only sought to permit the wearing of “burkini” swimsuits to accede to a religious demand and, to that end, exempted a certain category of users from a common rule, enacted for hygiene and safety reasons, requiring the wearing of close-fitting swimsuits. The judge, therefore, concluded that through a very targeted adaptation that provides a clear exemption from the common rules applicable to other swimwear, the new regulations of the municipal swimming pools of Grenoble affect compliance by the other users with rules of ordinary law that are too different, and, therefore, the proper working of the public service, and undermine the equal treatment of users, thus compromising the neutrality of public services.
On these grounds, the urgent applications judge of the Conseil d’État dismissed the appeal of the city of Grenoble.

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1 Interim ruling No. 2203163 of 25 May 2022
2 Article 5 of Law No. 2021-1109 of 24 August 2021 amends article L. 2131-6 of the French General Local Authorities Code, which now provides that “Where the disputed act is such (…) that it is seriously detrimental to the principles of laïcité and the neutrality of public services, the presiding judge of the administrative court or the judge appointed for that purpose may order suspension within forty-eight hours. The ruling relating to the suspension may be appealed before the Conseil d’État (…)”.
3 CE, 11 December 2020, Commune of Châlons-sur-Saône, No. 426483.