JOINT JUDGMENT OF MORSANG ON BARLEY
LexInter | September 8, 2019 | 0 Comments

JOINT JUDGMENT OF MORSANG ON BARLEY

Council of State
ruling
on litigation
N ° 136727
 Published in Recueil Lebon

Assembly

Mlle Laigneau, Rapporteur
M. Frydman, Government Commissioner

M. Denoix de Saint Marc, President
Mes Baraduc-Bénabent, Bertrand, Lawyer

Reading of October 27, 1995

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

Considering the request registered on April 24, 1992 at the Litigation Secretariat of the Council of State, presented for the municipality of Morsang-sur-Orge, represented by its current mayor domiciled in this capacity in the town hall; the municipality of Morsang-sur-Orge asks the Council of State:

1 °) to annul the judgment of February 25, 1992 by which the Administrative Court of Versailles, at the request of the company Fun Production and Mr. Wackenheim, on the one hand, annulled the decree of October 25, 1991 by which her mayor banned the show of “throwing dwarves” scheduled for October 25, 1991 at the discotheque of the Embassy Club, on the other hand, ordered her to pay the said company and Mr. Wackenheim the sum of 10,000 F in compensation for the damage resulting from the said decree;

2 °) to order the company Fun Production and Mr. Wackenheim to pay him the sum of 10 000 F under article 75-I of law n ° 91-647 of July 10, 1991;

Having regard to the other documents in the file;

Having regard to the municipal code and in particular its article L. 131-2;

Having regard to the European convention for the protection of human rights and fundamental freedoms;

Having regard to the code of administrative courts and administrative courts of appeal;

Considering the ordinance n ° 45-1708 of July 31, 1945, the decree n ° 53-934 of September 30, 1953 and the law n ° 87-1127 of December 31, 1987;

After hearing in open court:

– the report of Miss Laigneau, Master of Requests,

– the observations of Me Baraduc-Bénabent, lawyer for the municipality of Morsang-sur-Orge and Me Bertrand, lawyer for Mr Wackenheim,

– the conclusions of Mr. Frydman, Government Commissioner;

Without it being necessary to examine the other means of the request:

Considering that under Article L. 131-2 of the Municipalities Code: “The purpose of the municipal police is to ensure good order, safety, security and public health”;

Considering that it is up to the authority vested with municipal police power to take any measure to prevent a breach of public order; that respect for the dignity of the human person is one of the components of public order; that the authority vested with the power of municipal police can, even in the absence of particular local circumstances, prohibit an attraction which undermines respect for the dignity of the human person;

Considering that the attraction of “throwing a dwarf” consisting in having a dwarf thrown by spectators leads to the use of a person affected by a physical handicap and presented as such as a projectile; that, by its very object, such an attraction undermines the dignity of the human person; that the authority vested with municipal police power could therefore prohibit it even in the absence of specific local circumstances and even when protective measures had been taken to ensure the safety of the person in question and that – here freely lent itself to this exhibition,

Considering that, to annul the decree of October 25, 1991 of the mayor of Morsang-sur-Orge prohibiting the show of “throwing dwarves” scheduled for the same day in a nightclub in the city, the administrative court of Versailles was based on the fact that even supposing that the spectacle had violated the dignity of the human person, its prohibition could not be legally pronounced in the absence of particular local circumstances; that it follows from the foregoing that such a reason is wrong in law;

Considering that it belongs to the Council of State seized by the devolutive effect of the appeal, to examine the other means invoked by the company Fun Production and Mr. Wackenheim both before the administrative court and before the Council of State;

Considering that respect for the principle of freedom of work and that of freedom of trade and industry does not prevent the authority vested with municipal police power from prohibiting even a lawful activity if such a measure is only such as to prevent or put an end to a disturbance of public order; that such is the case in the present case, having regard to the nature of the attraction in question;

Considering that the mayor of Morsang-sur-Orge having based his decision on the aforementioned provisions of article L. 131-2 of the code of municipalities which justified, in themselves, a measure of prohibition of the spectacle, the plea based on that this decision could not find its legal basis either in Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or in a circular from the Minister of the Interior of 27 November 1991, is inoperative;

Considering that it follows from all of the foregoing that it is wrong that, by the contested judgment, the Administrative Court of Versailles pronounced the annulment of the decree of the mayor of Morsang-sur-Orge dated 25 October 1991 and ordered the municipality of Morsang-sur-Orge to pay the applicants the sum of 10,000 F; that, consequently, it is appropriate to reject their conclusions tending to increase the amount of this compensation;

On the conclusions of the company Fun Production and Mr. Wackenheim tending that the municipality of Morsang-sur-Orge be fined for abuse:

Considering that such conclusions are not admissible;

On the conclusions tending to the application of the provisions of article 75-I of the law of July 10, 1991:

Considering that under article 75-I of the law of July 10, 1991: “In all instances, the judge orders the party liable to pay the costs or, failing that, the losing party to pay the other party the sum he determines, for the costs incurred and not included in the costs. The judge takes into account the equity or the economic situation of the party sentenced. He may even ex officio, for reasons based on these same considerations, to say that there is no reason for this condemnation “;

Considering, on the one hand, that these provisions prevent the municipality of Morsang-sur-Orge, which is not in the present case the losing party, from being ordered to pay the company Fun Production and Mr. Wackenheim the amount they claim for the costs incurred by them and not included in the costs; that there is no need, in the circumstances of the case, to apply these provisions for the benefit of the municipality of Morsang-sur-Orge and to condemn Mr. Wackenheim to pay this municipality the sum of 10 000 F for the costs incurred by him and not included in the costs; that it is necessary, on the other hand,

DECIDES:

Article 1: The judgment of the Versailles administrative court of February 25, 1992 is annulled.
Article 2: The requests of the company Fun Production and Mr. Wackenheim presented before the administrative court of Versailles are rejected.
Article 3: The incidental appeal by the company Fun Production and Mr. Wackenheim is dismissed.
Article 4: The company Fun production is ordered to pay the municipality of Morsang-sur-Orge the sum of 10,000 F in application of the provisions of article 75-I of the law of July 10, 1991.
Article 5: The conclusions of the company Fun-Production and of Mr. Wackenheim tending to the application of article 75-I of the law of July 10, 1991 are rejected.
Article 6: This decision will be notified to the municipality of Morsang-sur-Orge, to the company Fun Production, to Mr. Wackenheim and to the Minister of the Interior.

 

Case law precedents: 1. Cf. decision of the same day, City of Aix-en-Provence, n ° 143578

Analysis by the Council of State

By the Morsang-sur-Orge Commune judgment , the Council of State considered that respect for the dignity of the human person should be regarded as a component of public order.

The mayor of the town of Morsang-sur-Orge had banned shows of “throwing dwarves” which were to take place in nightclubs in this city. To do this, he relied not on the special police powers that he had from the ordinance of 13 October 1945 relating to shows, but on the general police powers conferred on him by the provisions of article L. 131 -2 of the municipal code.

These provisions are generally understood, when applied to shows, as aimed at guaranteeing public safety or preventing possible material disturbances to public order. However, in this case, the mayor had banned these shows not for considerations of this nature but by considering that they undermined respect for the dignity of the human person.

In the exercise of their municipal police powers, it is incumbent on the mayors to take the necessary measures to maintain public order, which traditionally revolves around the concepts of security, tranquility and public health. However, case law had already admitted that the notion of public order could extend beyond this traditional trilogy, to take into account, in certain circumstances, aspects of public morality. This is evidenced by the decisions relating to the closure of places of debauchery or prostitution (December 17, 1909, Chambre syndicale de la corporation des merchants de vins et liquoristes de Paris , p. 990; December 11, 1946,Ladies Hubert and Crépelle , p. 300), to the regulations governing bathers’ clothing on the beaches (Section May 30, 1930, Beaugé , p. 582), to the decent character of the inscriptions on funeral monuments (Ass. February 4, 1949, Dame Veuve Moulis , p. 52), to the verification of the conformity with good morals of the name of the communal roads (June 19, 1974, Sieur Broutin , p. 346) or to the immoral nature of films justifying the prohibition of their diffusion because of local circumstances ( Section December 18, 1959, Company “Les Films Lutetia” , p. 693).

By its decision of October 27, 1995, the Council of State for the first time explicitly recognized that respect for the dignity of the human person is one of the components of public order. The safeguard of the dignity of the human person against any form of enslavement or degradation had already been elevated to the rank of principle with constitutional value by the Constitutional Council (Decision n ° 94-343 / 344 DC, July 27, 1994, p. 100). It was also covered by the stipulations of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, which prohibits “inhuman or degrading treatment or punishment”.

Judging the present case, the Litigation Assembly considered that the attraction of “throwing dwarves”, consisting in having a dwarf thrown by spectators, leads to the use of a person affected by a physical handicap as a projectile and presented as such. An attraction of this type has been regarded as undermining, by its very object, the dignity of the human person. Its ban was therefore legal, even in the absence of special local circumstances.

By recognizing that the municipal police authorities have the power to prohibit performances likely to disturb conscience because they undermine the dignity of the human person, the Council of State has shown that public order cannot be defined as purely “material and external” but covered a conception of man, which the public authorities must enforce. However, he did not enshrine public morality as a component of the notion of public order, thus refraining from interpreting too broadly the police powers of the administrative authority.

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