Extract
[...] In this case, Benjamin had to wait until 1936 to be compensated, always as a result of a ruling by the Council of State Benjamin, 1936), which shows well the limits of the REP. In the same sense in the decision Société les films lutétia, the Council of State ruled in 1959 on a 1955 ban, certainly maintaining it. But in these two situations, the Council of State's decision in REP could not produce material effects for the applicant. Certainly, the act is annulled, but the applicant does not benefit from its decision. The administrative judge has been endowed today with new competences allowing to mitigate these limits. [...]
[...] The first of these tools is the 1995 law, which gives the judge the power of injunction to the administration, so that it takes certain actions to ensure the respect of a decision. The second is the 2000 law on interim measures, and in particular the freedom interim measure (article L.521-2 of the Administrative Justice Code) which allows a judge to rule within 48 hours of a decision that infringes on fundamental freedoms, which no longer need to be solely legislative, but can also be constitutional or regulatory. [...]
[...] B - The principle of proportionality as imposing the least severe infringement on public liberties For the Council of State, the mayor had to take 'the police measures that it was his duty to take' in order to maintain the conferences while ensuring respect for public order. Certainly, the ban put an end to the risks of disturbances. But it was not the least restrictive measure. Thus, the principle of proportionality requires the administration to verify that the infringement on a freedom to maintain public order is not disproportionate, out of measure. [...]
[...] Council of State May 1933, Benjamin, nos. 17413-17520 - What balance must the administration strike between respect for public order and public liberties? Council of State, Ass May 1933, Benjamin, rec.541 The appeal for abuse of power would, according to Gaston Jèze, be 'the most wonderful creation of lawyers, the most effective, practical, and economical weapon that exists in the world to defend freedoms'. Yet, as shown by the Benjamin judgment of 1933, if the administrative judge effectively protects freedoms, its modalities of intervention are not a panacea. [...]
[...] The applicants consider that the mayor's ban is contrary to the laws of June and March relating to the freedom of assembly. The mayor relies on Article 97 of the law of April to prohibit the conferences, citing the risk of disturbances to public order. The Council of State is therefore faced, for the first time, with the articulation between the obligation to enforce public order incumbent on the mayor, and the respect of public freedoms guaranteed to individuals by law. What balance must the administration retain between respect for public order and public freedoms? [...]
