Proportionality of Prefect's Decree in Isère

Extract

[...] Thus, the health aspect now appears as the main motivation of the decree. However, at the beginning of the judgment, it could be thought that it is the search for security (another branch of public order alongside health) that takes precedence. Indeed, the following consideration (n°10) returns to the situation of 'overflows' that Grenoble had experienced. The successive exposure of these two arguments does not allow us to know if they were cumulative in the final decision of the judge. [...]

[...] The delicate appreciation of the proportionality condition of the ban The condition of proportionality must itself meet certain criteria to be validated. Its assessment is so delicate that it seemed appropriate for the judges to detail it in light of the facts of the case Similarly, if the assessment methods that were used are quite classic in the jurisprudential evolution, they do not prevent them from being controversial. This is mainly about the search for a non-general and non-absolute character of the disputed order A. [...]

[...] Thus, the judges did not content themselves with admitting that only 'the Grenoble metropolitan area' was concerned in previous years. Furthermore, the search for proportionality was made according to modalities that are usually found in the jurisprudence. However, they are controversial and therefore leave this delicate appreciation. In concrete terms, the decree must not apply in a general and absolute way. B. Classic but controversial modalities of appreciation: the non-general and non-absolute character of the police measure To determine whether the police measure in question is proportionate or not, the judge will check if it is general and/or absolute. [...]

[...] The decision, being rendered in a single chamber, does not appear to present any particular difficulty. In light of previous case law, this lack of difficulty is mainly confirmed with regard to the assessment criteria used by the judges in very similar disputes as early as 1997 (CE No. 164956). On the other hand, this judgment allows us to better understand the subtleties of these criteria in a casuistic manner, and more particularly those relating to the proportionality of the police measure established by the Benjamin judgment (CE Benjamin). [...]

[...] However, the departmental prefect, as recalled by the judgment, has a general police power. If the rules related to police concourses have been the subject of numerous jurisprudence, it is beyond doubt that the prefect's police power is maintained when the measures to be applied exceed the perimeter of a single commune. Furthermore, the precision that the prefect intervenes 'when local circumstances justify it' is not provided by the legislator. It is a jurisprudential condition that is found as much for the mayor Sect December 1959, Sté Les films Lutétia) as for the prefect Ass August 1919, Labonne; CE April 1902, Commune de Néris-les-Bains, Rec.). [...]