On April 15th, President Macron signed into law his unpopular reform act increasing the state pension age from 62 to 64. Since January, millions have mobilized in demonstrations across France to denounce the reform. However, civil unrest exploded in late March after President Macron forced adoption of the policy using Article 49.3 to bypass the National Assembly and avoid the uncertainty of a vote. The unilateral move to circumvent legislators intensified French anger. In addition to planned rallies, spontaneous protests have since broken out in the streets, and bands of nightly rioters, dubbed “wild protests,” now wreak havoc through vandalism and violence. Demonstrations continue despite promulgation of the law. The French love for protesting is well-known; as explained by one French political analyst: “[w]e almost like to re-run the French Revolution, over and over.” Yet, despite this tradition, freedom of assembly is not protected explicitly in the French constitution. Its history instead is one of tenuous legal standing perforated by increasing restrictions in the name of preserving public order, a trend which has escalated over the last decade. The persistence of current unrest portends worrisome political backlash likely to circumscribe the freedom in France even further.
Although the founding of the French Republic began with the storming of the Bastille, the right to protest was not included in the Declaration of Rights of Man and Citizen of 1789, nor in the Constitution of the Fifth Republic ratified in 1958. The existence of freedom of assembly was not formally recognized until 1995 in a decision by the Conseil constitutionnel, a judicial body with the highest constitutional authority in France. The council held that the constitutionality of the freedom to demonstrate rested on the freedom of collective expression of ideas and opinions. Freedom of expression is enshrined in Article 11 of the Declaration of Rights of Man and of Citizen of 1789, which states that people have the right to “free communication of ideas and of opinions… except what is tantamount to the abuse of this liberty in the cases determined by Law.” Because freedom of assembly is linked to freedom of expression, freedom of assembly is subject to the same limitations under Article 11, notably, that the right to protest must be weighed against disturbances to the public order. Lacking an explicit provision in the French constitution, the legal status of freedom of assembly relies on its linkage to freedom of expression, as well as implicit legitimacy gleaned from the statutory framework on public demonstrations.
The first hint at freedom of assembly in France may be implied through the 1935 law establishing regulations for demonstrations, processions, parades, and gatherings in public. The law, now organized under the homeland security code, constitutes the modern legal regime for regulating public protests. Under the code, those who wish to demonstrate publicly must notify the local prefect at least 48 hours in advance. French law does not recognize spontaneous gatherings, and if no declaration is made, the protest is considered unlawful. The prefect may preemptively prohibit a demonstration if it is “likely to disturb public order.” The statutory framework of freedom of assembly in France highlights the limited nature of the right, circumscribed by the discretion of local authorities to protect an abstract concept of “public order.” Given this, freedom of assembly faces particular risk of governmental overreach.
Over the last eight years, a wave of new restrictions has steadily shrunk the scope of the French right to protest. Two lengthy stretches under a state of emergency allowed for exceptional constraints on public demonstrations from 2015 to 2017 and 2019 to 2021. Following the terrorist attacks in Paris and Nice in 2015 and 2016, France instituted a nationwide state of emergency, which authorizes extraordinary powers to the government and includes the right to restrict movement. For two weeks after the Paris attacks, the Prefect of Police banned all demonstrations in the city. From November 2015 until May 2017, prefects used emergency powers in France to prohibit 155 demonstrations and prevent 639 individuals from participating in protests. The state of emergency concluded in November 2017, but was followed up less than three years later by another during the COVID-19 pandemic. On March 23, 2020, France adopted a temporary law allowing for the institution of a public health state of emergency. The law established a top-down approach of granting the Prime Minister the authority to issue nationwide measures curtailing movement. The limit on the number of people at a gathering was adjusted as the pandemic developed, until the state of health emergency ended on July 31, 2022. Beyond the temporary restrictions placed on freedom of assembly during these time periods, adaptation to operating in a state of emergency has left a residual inclination towards heavy-handed policymaking.
This tendency of lawmakers manifested in the aggressive legislative response to the Yellow Vest movement in 2018 and 2019. The particularly severe violence of the populist protests prompted swift adoption of an “anti-thug law” (loi anti-casseurs) by the French parliament. The most noteworthy provision of the law permitted local prefects to strip individuals of the right to participate in future protests if the person had harmed others or physical property during a previous demonstration. The ban could be extended up to a month and include demonstrations anywhere in the country. This policy veered sharply from established French procedure by allowing a government official to take away the individual right preemptively prior to any appearance before a judicial authority. Although the Conseil constitutionnel ruled that the prohibition was unconstitutionally overbroad, its decision left the door open for reenactment of this authority, but with a ban more limited in scope. Moreover, other provisions of the law were left intact, including one-year imprisonment and a 15,000 euro penalty for wearing a face covering at a protest.
The accumulation of restrictive regulations on the right to protest in France should generate serious concern for a freedom already lacking substantive constitutional protection. The right to protest holds a unique spot in French history and in the hearts of the French public. As demonstrations against pension reform continue in France, it remains to be seen whether French lawmakers will intrude further on this democratic freedom and whether the French public will allow it.
Author Biography: Mary Ameringer is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has Bachelor’s degrees in International Relations and Global Studies and French from The University of Texas at Austin. Before attending law school, she worked as a legislative staffer in the Texas House of Representatives.
Editors: Elizabeth Duncan, GW Law J.D. Candidate, 2024; Alexander Goodrich, GW law J.D. Candidate 2024, ILPB Deputy-Moderator-in-Chief.