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Les arrêts du Conseil d’État du 19 juillet 2011

The Council of State has in some way put an end to a paradoxical aspect of the public subsidies of religious activites, and abandoned a wider understanding of worship in five decisions of 19 July 2011 that open up a new approach to the legality of public funding. Generally speaking, one can read into the case law that it has been adapted to a renewed manifestation of religious practices in public within a secularised society, insofar as they should be welcomed and structured under the same conditions as other manifestations of social life.

The solution adopted in the Commune de Montpellier decision (no. 313518) follows this direction : the city had made premises for the exercise of worship available to an association for a renewable period of one year. The Council of State points out that “a commune cannot refuse the application to use such a room for the sole reason that this request is presented to it by an association with the aim of exercising a faith”. On the other hand, the commune could not authorise lasting and exclusive use of this room for an association to practise worship ; it would then constitute a gift of a building of worship, flouting the 1905 Law.

The Communauté urbaine du Mans decision (no. 309161) concerns adapting disused municipal premises to install a temporary place of ritual slaughter during the feast of Eid al-Adha. The Council of State recalls that allocating the building must exclude any act of generosity, but above all, it submits its legality to the existence of “a local public interest arising out of the need that faiths be exercised under conditions conform to the requirements of public order, in particular public safety and public health, considering the distance from any slaughterhouse in which ritual slaughter is practised, in accordance with regulations”.

The Madame V. decision (no. 320796) deals with compatibility between administrative emphyteutic leases for the construction of places of worship and the ban on public funding for faiths. The issue was raised with regard to the amount of rent charged to the religious associations concerned, which sometimes symbolically could be likened to a subsidy. According to the Council of State, the legislator intended to “waive” the provisions of the Law of 9 December 1905 to allow local authorities to facilitate the realisation of such buildings.

Finally, two decisions relating to the Commune de Trélazé (no. 308544) and the Fédération de la libre pensée du Rhône (Rhône Federation of Free Thought) (no. 308817) both deal with the financial support that municipalities can offer religious cultural heritage. The first case concerns the purchase and installation of an organ in a parish church by the municipality, in order to organise cultural events. The second concerns a municipal subsidy for the installation of a disabled access ramp in the Basilica of Notre-Dame de Fourvière in Lyon. In both cases, the Council considered that the city’s financial intervention was motivated by cultural reasons, that its intention was to promote its religious heritage. So that the subsidy would be legal and not fall within the scope of Article 2 of the Law of 1905, these facilities and the equipment had to be in the local public interest, related specifically to the importance of the building for cultural development or else tourist and economic development in the local area. They had in no way to be intended for the exercise of worship. The fact that such facilities or equipment can, furthermore and incidentally, benefit people who practise the religion has no bearing on the legality of the subsidy.

D 16 avril 2013    AAnne Fornerod

CNRS Unistra Dres Gsrl

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