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Case:
CE, Ass., 27 Octobre 1995, p. 372 Case Commune de Morsang-sur-Orge
Date:
27 October 1995
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

Conseil d’Etat

Application of the Commune de Morsang-sur-Orge which asks the Conseil d’Etat:

(1) to annul the judgment of 25 February 1992 whereby the Versailles Administrative Tribunal, at the suit of the Fun Production Company and Mr. Wackenheim, had on the one hand annulled the Order of 25 October 1991 whereby its mayor banned the dwarf-tossing show planned for the 25 October 1991 at the Embassy Club discotheque, and on the other hand ordered the mayor to pay the said Company and Mr. Wackenheim the sum of 10,000 francs compensation for the loss caused by the said Order;

(2) to order Fun Production Company and Mr. Wackenheim to pay it the sum of 10,000 francs under article 75-I of Act no. 91-647 of 10 July 1991;

Having seen the Communes Code and particularly article L 131-2; the European Convention for the Protection of Human Rights and Fundamental Freedoms; the Code on administrative tribunals and administrative courts of appeal; the Order no. 45-1708 of 31 July 1945, Decree no. 53-934 of 30 September 1953, and Act no. 87-1127 of 31 December 1987;

Without need to examine the other grounds of the application;

Considering that under the Communes Code L 131-2 'The municipal police are to ensure good order, safety, security and public health';

Considering that the authority holding the municipal police power has jurisdiction to adopt any measure to prevent a breach of public order; that respect for the dignity of the human person is one of the elements of public order; that the authority holding the police power may, even in the absence of special local circumstances, ban a show which undermines respect for the dignity of the human person;

Considering that the dwarf-tossing show, consisting in having dwarves thrown around by the spectators, leads to using as a missile a physically handicapped person who is presented as such; that, by its very object, such a show undermines the dignity of the human person; that hence the authority holding the municipal police power may ban it, even in the absence of particular local circumstances, and even where protective measures are in place to ensure the safety of the person concerned and this person lends himself willingly and for reward to this activity;

Considering that, to annul the Order of 15 October 1991 whereby the mayor of Morsang-sur-Orge banned the dwarf-tossing show planned for the same day in a local discothèque, the Versailles Administrative Tribunal based itself on the fact that, even assuming that the show would undermine the dignity of the human person, its prohibition could not lawfully be ordered in the absence of particular local circumstances;

that it follows from what has been said that this reasoning is wrong in law;

Considering that the effect of this appeal brings within the jurisdiction of the Conseil d'Etat the other grounds put forward by Fun Production and Mr Wackenheim before both the Administrative Tribunal and the Conseil d'Etat;

Considering that neither the principle of freedom of labour nor that of freedom of trade and industry prevents the authority holding the municipal police power from banning even a lawful activity if such a measure alone will suffice to prevent or end a public order disturbance; that, having regard to the nature of the show in dispute, such is the case in this lawsuit;

Considering that, as the Mayor of Morsang-sur-Orge based his decision on the provisions of the Communes Code article L 131-2 cited above, which of themselves justify a ban on this show, the ground of appeal alleging that his decision could have no statutory foundation either in article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or in the circular of the Minister of the Interior of 27 Nov. 1991 is of no effect;

Considering that it follows from all the above that the Versailles Administrative Tribunal was wrong to annul the Mayor's Order of 23 June 1992 and to order the town of Commune of Morsang-sur-Orge to pay the claimants the sum of 10,000 francs; that therefore their submission that this sum should be increased must be rejected;

On the submissions of Fun Production Company and Mr Wackenheim that the Commune of Morsang-sur-Orge be fined for abuse of process: - Considering that such submissions are inadmissible;

On the submissions on the application of article 75-I of the Act of 10 July 1991;

Considering that article 75-I of the Act of 10 July 1991 provides as follows: ‘In all cases the judge shall order the party liable in costs or, in default, the losing party, to pay to the other party assessed in terms of the expenses incurred and not covered by the costs. The judge shall take into account fairness, or the financial situation of the party ordered to pay. The judge may even, ex officio, and for reasons based on these factors, say that no order for costs is to be made’;

Considering on the one hand that these provisions prevent the court from ordering the Commune of Morsang-sur-Orge, which is not the losing party, to pay to Fun Production Company and Mr Wackenheim the amount they claim as expenses incurred and not covered by the costs; that it is not appropriate in the circumstances of this case to apply these provisions for the benefit of the Commune of Morsang-sur-Orge, and to order Mr. Wackenheim to pay to that Commune the sum of 10,000 francs as expenses incurred and not covered by the costs; that on the other hand it is appropriate to order Fun Production Company to pay to the Commune of Morsang-sur-Orge the sum of 10,000 francs as expenses incurred and not covered by the costs; . . .

(Annulment of the challenged judgment; claims of Fun Production Company and Mr Wackenheim before the Versailles Administrative Tribunal and the consequent appeal of Fun Production Company and Mr Wackenheim rejected; order against Fun Production Company to pay to the Commune of Morsang-sur-Orge the sum of 10,000 francs under the provisions of article 75-I of the Act of 10 July 1991; submissions of Fun Production Company and Mr Wackenheim on the application of article 75-I of the Act of 10 July 1991 rejected.)

 

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