The judge in chambers of the Council of State confirmed, on June 21, the suspension of article 10 of the regulations of the swimming pools of Grenoble insofar as it authorizes the use of “bathing outfits not close to the body shorter than mid-thigh”.
A decision hailed by the Minister of the Interior, Gérald Darmanin, who described it on social networks as “victory for the Separatism law, for secularism and beyond”. This dispute has, in fact, inaugurated the new referred secularism, resulting from the law confirming the principles of the Republic. The appeal had been introduced, in this case, by the prefect of Isère on the instruction of Place Beauvau the day after the adoption of the controversial deliberation by the municipality of Grenoble (see TA Grenoble, May 25, 2022, n ° 2203163, Dalloz news, June 3, 2022, observation D. Necib, AJDA 2022. 1126 ; AJCT 2022. 289, tribune F. Benchendikh 
).
During the public hearing held on June 14 following the appeal by the municipality, its mayor, Éric Piolle, still denied having authorized the burkini. “We are lifting a ban”; “We are not here to respond to a particular request,” he said. The debate had wandered around arguments relating to health and safety rules or the discriminatory ban on the wearing of shorts before President Chantepy ended up raising the question of the consequences to be drawn from a misunderstanding of the case law Municipality of Chalon-sur-Saone on the adaptation of the public service (see, about substitution menus in school canteens, CE 11 Dec. 2020, no. 426483, Dalloz actualité, 18 Dec. 2020, obs. E. Maupin; Lebon with the conclusions . ; AJDA 2021. 461, concluded. L.Cytermann ; ibid. 2020. 2464 ; AJCT 2021. 157, obs. H. Bouillon ). The scope to be given to the principle enshrined in 2004 by the Stasi commission of “reasonable accommodation” had been explicitly mentioned. If the municipality invoked the absence of an obligation of neutrality weighing on users of the public service, the prefecture warned of the risk weighing on public order.
Adaptation stops where it becomes “strongly derogatory”
The High Court begins by recalling, in line with its 2020 case law articulated with that of the Constitutional Council (Cons. const., 19 Nov. 2004, No. 2004-505 DC, Treaty establishing a constitution for Europe, AJDA 2005. 211 note O. Dord ; ibid. 219, note D. Chamussy ; D. 2004. 3075 chron. B. Mathieu ; ibid. 2005. 100, point of view D. Chagnollaud ; ibid. 1125, obs. V. Ogier-Bernaud and C. Severinus ; RFDA 2005. 1, study by H. Labayle and J.-L. Sauron ; ibid. 30, note C. Maugüé ; ibid. 34, note F. Sudre ; ibid. 239, study B. Genevois ; RTD eur. 2005. 557, study V. Champeil-Desplats ), that if it is open to the manager of a public service, “to take into account […] of certain specificities of the public concerned, and whether the principles of secularism and neutrality […] do not hinder […] specificities correspond to religious convictions, it is in principle not required to take account of such convictions”. However, she continues, “the manager of this service cannot make any changes that would undermine public order”. The judges of the Palais-Royal considered that the “very targeted” derogation was “intended to satisfy a claim of a religious nature”, “without any real justification for the difference in treatment” resulting therefrom. And the Council of State to infer that such a derogation is of a nature “to affect […] compliance by other users with common law rules that are too different, and thus the proper functioning of the public service”.
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