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Public order

 

An administrative police measure thus aims to protect public order, which can be
 

• material: public safety, public health (hygiene and public health), public tranquility (article L. 2212-2 of the general code of local authorities - CGCT)

 

• immaterial: material public order increased by the dignity of the human person (public morality has been progressively absorbed into that of dignity)

 

General administrative police and special administrative police

 

The general administrative police is related to the protection of this public order without any specific activity being targeted and without any law delimiting its field of intervention.
 
On the other hand, we speak of special administrative police when public order is maintained through the regulation of various activities, precisely determined by law, according to determined procedures and by given public authorities.
 

The holders of the administrative police power

General administrative policing may be exercised by::

 

• The Prime Minister within the framework of measures taken at the national level (CE, 8 August 1919, Labonne, n° 56377 : Lebon p. 737, concl. M. Louis-François Corneille)

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• The department prefect :

 

• within the framework of measures whose scope exceeds the territory of a commune (article L. 2215-1 3° of the CGCT)

 

• within the framework of its power of substitution if the maintenance of law and order is threatened in two or more bordering municipalities (article L. 2215-1 2° of the CGCT), in the event of a mayor's failure to act (articles L. 2215-1 1°, L. 2215-1 3° and 2213-7 of the CGCT)

• dans le cadre de son pouvoir de réquisition (article L. 2215-1 3° du CGCT)

 

• The mayor: at the municipal level with the power of municipal police (articles L. 2212-1 and following of the CGCT)

 

• The president of the departmental council with regard to "police powers relating to this management, in particular with regard to traffic on this domain, subject to the powers devolved to the mayors by the present code and to the representative of the State in the department, as well as to the power of substitution of the representative of the State in the department provided for in article L. 3221-5." (Article L. 3221-4 of the CGCT)

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• The president of a public establishment for inter-communal cooperation (EPCI) with its own tax system, when it is competent in matters of sanitation, reception areas and stopping places for travellers, roads or housing, is transferred police powers in these matters (I A of article L. 5211-9-2 of the CGCT). The mayor may also transfer police powers in the following areas: safety of cultural and sporting events, external fire protection (article I B of article L. 5211-9-2 of the CGCT)

The President of the Republic is only residually invested with a general administrative police power (articles 13 and 16 of the Constitution of 4 October 1958).
 
The special administrative police can be exercised by the Prime Minister, the ministers, the prefect of the department and the mayor:

 

• The Prime Minister :

 

• Division of radio frequencies between those allocated to State administrations and those whose assignment is entrusted to regulatory authorities (Conseil supérieur de l'audiovisuel or the Autorité de régulation des communications électroniques et des postes) - and to set the general conditions for their use (CE, July 9, 2014, Société Bouygues Télécom, no. 367376: Tables pp. 654-774-775, concl. M. Xavier Domino)

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• within the framework of the state of health emergency (article L. 3131-15 of the public health code)

 

• Ministers: for example, the Minister of Culture has the power to police the cinema (issuing operating permits for cinematographic performances) and the Minister of the Interior has the power of special administrative police for municipal casinos (opening a casino, authorized gambling, operating procedures)

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• The mayor: he is, for example, the holder of the special administrative police power for buildings in danger of collapse

 

• The prefect of the department (prefect of police in Paris): responsible, for example, for policing foreigners and policing classified facilities or water

 

Competition between administrative police forces
 

In case of competition between two general administrative policies :

 

• unless otherwise stipulated, general administrative police measures decided at the municipal level must comply with measures issued by the prefect or the Prime Minister. Similarly, prefectoral police measures must respect national police measures.

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• on the other hand, it is always possible for the mayor to specify or aggravate (without being able to alleviate) the administrative police measures taken at the departmental or national level (CE, 18 April 1902, Commune de Néris-les-Bains, n°04749: Lebon p. 275).

 

 

In case of competition between general and special administrative police :

 

• In principle, the special administrative police takes precedence over the general administrative police (for example, the special police of electronic communications entrusted to the State excludes the intervention of the mayor under the general administrative police to protect the public against the effects of waves: CE, ass., October 26, 2011, SFR, n°341767, concl. M. Xavier de Lesquen)

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• However, a mayor always has the option, in compliance with the principles of necessity, adaptation and proportionality of the measure, of aggravating (and not reducing) the effects of a special departmental or national administrative police measure on the territory of the municipality, according to local circumstances (CE, sect., December 18, 1959, Société " Les Films Lutetia " : Lebon 693, concl. M. Henri Mayras). It may also derogate from the primacy of the special administrative police in case of emergency (in the matter of requisitioning vacant housing: CE, sect. 15 February 1961, Werquin, n° 38872 and 38873 : Lebon, p. 118)

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In case of competition between two special administrative policies :

 

• Some texts combine the intervention of two authorities invested with the same special administrative police power, as is the case, for example, for the closure of drinking establishments and restaurants (articles L. 3332-15 and L. 3332-16 of the public health code).

 

• When no text envisages any arrangement between holders of two different administrative police powers, it is possible to apply the independence of legislation. The competition of administrative policies can sometimes be settled by retaining the strictest measure (CE, Ass, October 7, 1977, Nungesser, n°05064 : Lebon p. 378, concl. M. Guillaume).

 

Control of the administrative judge on the measures of administrative police

 

"Freedom is the rule, and police restrictions the exception" (conclusions of M. Louis-François Corneille on CE, August 10, 1917, Baldy, n° 59855). The administrative police regime is therefore a liberal regime. Thus, the judge's control will be complete (CE, May 9, 1933, Benjamin, n°s 17413, 17520 : Lebon p. 541, concl. M. Michel Franc) and will consist in assessing the legality of the police measure, i.e. whether the restriction made to the exercise of a liberty by an administrative police measure (general or special) is necessary, appropriate and proportionate, according to the circumstances of the case and with regard to the sole necessities of public order.

The administrative judge sanctions any prohibition of a general and absolute measure unless no less rigorous measure allows to ensure the safeguard of the public order.
 
The judge reconciles the exercise of freedoms (of movement, expression, religion, assembly, association, enterprise, etc.) with the need to preserve public order.