Analysis by ECNL published on 10 December 2020.
On 9th December, the French government officially presented a legislative proposal “Strengthening the respect of the republican values”, which President Macron had previously announced in his speech on 21st October as a response to the threats of fundamentalism in the country.
We outline here some of the most controversial provisions of the bill. These affect essential components of civic space such as freedom of thought, religion, association and right to non-discrimination and may raise concerns of compatibility with aspects of European Union (EU) law and the Charter of Fundamental Rights of the EU (CFR):
Article 1 of the bill adopts a strict principle of secularism and neutrality to be applied to all providers of public services. This provision establishes that any organization providing public services by law or regulation must ensure that its employees, “when participating in the performance of the public service, refrain from expressing their opinions, especially religious ones” as well as treat all people equally. Therefore, the prohibition applies indiscriminately to all services provided without drawing any distinction on their nature. It also fails to consider whether different types of service provided would always justify or not a full restraint on the freedoms of thought, conscience and religion of the service provider.
As a result, this blanket provision may be challenged for its non-compliance with EU rule on non-discrimination on religious grounds, such as Directive 2000/78/EC (general framework for equal treatment in employment and occupation) also interpreted in in the light of Article 10 of the CFR (Freedom of thought, conscience and religion). The Court of Justice of the EU (CJEU) also clarified in two rulings in 2017 (Achbita and Centrum and Bougnaoui and ADDH) that employers may ban signs of religious beliefs such as clothing, symbols, etc., only insofar as this responds to a genuine occupational requirement and in the light of the nature of the employment (e.g., whether the ban concerns costumer-facing employees).
Given that the principle of neutrality in question would also apply to public services delivered under public procurement contracts, instances of discrimination on grounds of religion and belief might also be raised in connection with EU rules on public procurement (Directives 2014/23/EU, 2014/24/EU or 2014/25/EU), interpreted in the light of Article 10, CFR (Freedom of thought, conscience and religion), Article 16 (Freedom to conduct a business) as well as of Article 21 (Non-discrimination) of the CFR.
Furthermore, Chapter II of the bill is specifically focused on associations and introduces the concept of “contract of republican engagement” (‘contrat d’engagement républicain’). According to Articles 6 and 7 of the bill, in order to register and be allowed to operate as well as in order to request or receive funding from a public authority or a body responsible for the delivery of a commercial/industrial public service, associations must subscribe to a specific “republican engagement” contract. This contract will contain a pledge to “respect the principles of freedom and equality, in particular between women and men, fraternity, respect for the dignity of the human person and safeguard of public order.” However, the exact scope of such contract and conditions for the relevant authority to deny the public funding or registration will be established at a later stage by an implementing decree.
These provisions constitute an interference on the right to freedom of association. The broad and vague formulation of the scope of the “contract” appears to give a very wide margin of discretion to administrative authorities charged of disbursing public funding and/or granting registration/leave to operate to associations in assessing respect of such “contract”. If this lack of clarity is not remedied by the implementing decree, it may lead to disproportionate and/or discriminatory restrictions on freedom of association, in potential conflict with the EU rules on freedom of establishment (Article 49 TFEU or relevant provisions of Directive 2006/123/EC (e.g., Article 10 on conditions for the granting of authorisations), read in the light of Article 12 of the CFR (Freedom of association).
On top of this, Article 8 of the bill modifies existing legislative provisions on the dissolution of associations in a way which once again raises concerns over legal certainty and proportionality. This regards the possibility to dissolve associations “whose object or action tends to endanger the integrity of the state” or associations “whose action contributes to discrimination, violence or hatred directed against a group of persons or a member of such a group based on their origin or their belonging or non-belonging to a certain ethnicity, nation, race or religion, sex, sexual orientation or gender identity”. The expressions “tends to” and “contributes to, in particular, pave the way to potential abuses of the interpretation of the norm, leading up to unnecessary clampdowns on legitimate associations.
These provisions may be considered as implementing EU rules on combating terrorism (namely, Directive 2017/541/EU) and EU rules on combating racism and xenophobia (namely, Framework Decision 2008/913/JHA) and, on that basis, could be interpreted as incompatible with Article 21 of the CFR (Non-discrimination) as well as with Article 49 of the latter (Principles of Legality and proportionality of criminal offences and penalties).
Finally, Articles 33 and 35 impose, respectively, additional administrative controls and reporting obligations on religious associations receiving funding from abroad (reporting obligations apply in case of donations above a certain threshold, to be set as superior to 10,000 EUR). Also, they grant administrative authorities the power to block foreign funding and donations to religious associations in case of a “current, real and sufficiently serious threat to a fundamental interest of society”.
These provisions might be challenged under the implementation of EU rules on the free movement of capital (Article 63 TFEU), questioning their necessity and proportionality in relation to the objective of public policy pursued, considering the protection granted by Article 12 of the CFR (Freedom of association).