Augustin Berthout, PhD candidate, Montpellier University

On the 11^th of May 2024, the far-right organisation “Comité du 9 mai” marched through the streets of Paris after the administrative judge had suspended the ban on the demonstration imposed by the Préfet a few days earlier. The demonstration commemorated the 30^th anniversary of the death of an activist following a chase with the police during a demonstration in 1994. Since then, this “Comité” has tried to organise a commemorative march every year.

In reality, the “Comité du 9 mai” mainly serves as a commemorative showcase for various French far-right organisations, such as Groupe Union Défense (GUD), Œuvre française, Bastion social and Zouaves de Paris. Of these organisations, only the GUD was never dissolved. The other three were dissolved in 2013, 2019 and 2022 respectively. This exception can be explained by the fact that the GUD had deactivated itself for a few years and had been replaced by these organisations. While the present far-right demonstration highlights one of the limits of the dissolution procedure, it also provides an opportunity to take a closer look at this little-known mechanism.

The prohibition procedure

In France, the procedure used to dissolve political organisations that undermine the “public order” was established with the law of January 10, 1936[1]. It is now set out almost in full in article L. 212-1 of the French Internal Security Code. From the outset, this mechanism was conceived to compensate for the ineffectiveness of judicial dissolution, which could be ordered by civil courts based on the law of July 1, 1901, on freedom of association. In order to avoid the slowness of the civil procedure, this mechanism allowed for the dissolution of any association, including political parties, by decree to be adopted by the Council of Ministers (décret en Conseil des ministres). Under the present Fifth Republic, this means that the decree is adopted by the President of the Republic with the consent of the Prime Minister and the Minister of the Interior. Since 1979 and 1983, the decree must be justified and be issued after giving the organisation’s leaders the opportunity to make their observations. In the interests of efficiency, the decree can only be challenged at first and last instance before the highest administrative judge, namely the Conseil d’État.

Grounds for banning

With regard to the grounds for dissolution, French law does not prohibit extreme right-wing organizations as such, nor certain extreme right-wing organisations in particular, in contrast to Italian constitutional law, which specifically prohibits the National Fascist Party.[2]. Although it was originally aimed particularly at the fascist leagues that organised violent demonstrations under the Third Republic, the law has always provided a broad and varied basis for dissolution of other types of political organisation.

Initially, there were four different grounds for dissolution. An organisation could be dissolved if it provoked armed street demonstrations, if it had the characteristics of a paramilitary group, if it sought, by force, to undermine the republican form of government, and if it aimed to undermine the integrity of national territory. Consequently, the Law of January 10, 1936, was aimed less at extreme right-wing ideology than at violent activities and anti-colonial ideas. It should also be noted that the law was tougher on anti-colonialist organisations than on fascist organisations. While the law only prohibited the latter from using violent methods, leaving them free to pursue their ideas, it prohibited the former from campaigning, even peacefully, for the independence of the French colonies.

After the Second World War, the list of grounds was modified and extended. In 1951, a new ground was added, specifically targeting extreme right organisations: it allowed to dissolve organisations that extolled France’s collaboration with the Third Reich. In 1972, a new law was passed to authorise the dissolution of organisations propagating racist discourse. Since, 1986, it has also been possible to ban an organisation that seeks or calls for acts of terrorism. More recently, in 2021, the law consolidating respect for the principles of the Republic broadened the first ground for dissolution by authorising dissolution against groups that provoke violent acts against people or property. It also modified the ground for dissolution concerning racist propaganda by extending the possibility to also ban homophobic organisations.

The prohibition practice

Since 1936, more than 150 associations have been dissolved on this basis, ten of which were political parties[3]. While this practice was less frequent in the 1990s and 2000s, it has intensified particularly since 2016. Out of the 150 dissolutions, almost a third have been issued since 2012, with 45 bans. However, these latest dissolutions have only concerned associations and not political parties, except for the recent ban on a micro-party called Civitas.

Because of the generality and diversity of the grounds for dissolution, the bans have targeted organisations with very different ideologies. It was first used to dissolve extreme right-wing organisations, such as the royalist Action Française in 1936[4], or the violent organisation Occident (the predecessor of GUD) in 1968[5]. More recently, Œuvre française was banned both for its exaltation of collaborationist France and for its racist propaganda, as well as for organising paramilitary-style combat training. Similarly, in 2021, the Génération identitaire group was banned for its racist rhetoric and for presenting itself as a militia tasked with guarding the borders against immigration. Likewise, the micro-party Civitas was also dissolved in 2023 for its anti-republicanism, which the government considered to be ‘violent’, its openly racist rhetoric and its exaltation of collaborationist France. However, these examples of dissolutions of extreme right-wing organisations are far from representative of all the organisations that have been subject to this type of legislation. From the outset, this mechanism was directed against independence movements such as the Étoile Nord-africaine and its successors[6]. Particularly after May 1968, the law of January 10, 1936, was also used to ban certain extreme left-wing organisations that had been involved in violent demonstrations[7]. More recently, in 2022, other extreme left-wing organisations were dissolved, including GALE and the Bloc Lorrain, for similar reasons. Since the 2010s, a dozen Islamist organisations have also been prohibited such as Forsane Alizza in 2012, Killuminateam and Barakacity in 2020, mostly for incitement of terrorist acts or for disseminating hate speech. Lastly, the broadening of the grounds for dissolution in 2021 made it possible to dissolve an environmentalist organisation, Les Soulèvements de la Terre, because of its actions to destroy ecocidal infrastructures and for provoking violent clashes with the police. However, this ban was overturned by the Conseil d’État in a ruling issued on November 9, 2023.

Judicial review of bans

Overall, the Conseil d’État has largely upheld the legality of dissolution decrees. There have been only 5 annulments since 1936[8]. However, the administrative judge ensures that the entire dissolution procedure is followed by the executive. It also verifies whether the facts attributed to the dissolved organisation are genuine, and consequently whether the grounds for dissolution are justified in fact. Since its November 2023 ruling on the dissolution of Les Soulèvements de la Terre, it has increased the intensity of its review by also checking that the ban is proportionate to the seriousness of the alleged acts. This stricter control was probably because the environmental organisation had been dissolved mainly for incitement to violent acts against property, which is less dangerous than violence against people.

For its part, the European Court of Human Rights has not often been faced with this type of litigation emanating from France. The only time it has had to deal with a case of this type – the dissolution of the extreme right-wing organisations Œuvre française, Troisième voie and Jeunesse nationaliste révolutionnaire – the Strasbourg Court ruled that the dissolutions were perfectly compatible with the Convention[9].

Limits of the prohibition procedure

The law regulating the dissolution of organisations has a few shortcomings that limit the value of this very mechanism. These are due to the fact that the executive has a certain margin of discretion in deciding whether or not to initiate dissolution proceedings. As a result, it often tolerates the reorganisation of an association that had been banned several years before, as in the case of GUD and Occident. Similarly, the executive sometimes tolerates to a certain extent organisations that could be dissolved. This is probably still the case with GUD, although its dissolution is being considered. It was also most likely the case for France’s main far-right party, the Front National.

Even today, it should be noted that there are no political discussions, as there are in Germany regarding the AfD, about the opportunity to dissolve the main French far-right parties, namely the Rassemblement National and Reconquête!. The only recent calls to ban a major political party have come from the right-wing party Les Républicains and some elected members of Emmanuel Macron’s party, and are aimed at the main left-wing opposition party La France Insoumise (LFI) because of its polemical stance on the Israeli-Palestinian conflict (Libération, October 11, 2023; Libération, May 14, 2024). However, this idea remains isolated, although it has been increasingly suggested in recent months.

The fact remains that it is fairly unlikely that the executive would venture to initiate dissolution proceedings against this opposition party. Quite apart from the delicate legal issues involved, it remains politically sensitive for the executive to dissolve an opposition party represented in Parliament. Unlike a Court of Justice, such as the German Federal Constitutional Court or the Spanish Supreme Tribunal, the President of the French Republic and his Prime Minister do not have the impartiality to legitimise, at least to some extent, this type of action, which is always dangerous in a democracy. It is therefore likely that the executive will opt for caution. However, it is possible to wonder whether this caution would be maintained if, for some reason, the far right really did come to power. Let us hope that French democracy will not have to undergo this practical political experiment and see the dissolution procedure turn against itself.

[1] For a more detailed analysis of the issue, see R. Rambaud, « La loi du 10 janvier 1936 sur les groupes de combat et milices privées (article L. 212-1 du code de la sécurité intérieure) : l’arme de dissolution massive », RDLF, 2015, [online].

[2] On Italian law, see A. Gatti, « A Limping Militant Democracy », Verfassungsblog, 4 avril 2024, [online] ; J. Arlettaz, « L’Italie est-elle constitutionnellement antifasciste ? », JusPoliticum Blog, 16 mai 2024, [online].

[3] Décret du 18 juin 1936, JO du 19 juin 1936, p. 6427, Parti national populaire ; Décret du 18 juin 1936, JO du 19 juin 1936, p. 6428, Parti franciste ; Décret du 18 juin 1936, JO du 19 juin 1936, p. 6428, Parti national corporatif républicain ; Décret du 26 janvier 1937, JO du 27 janvier 1937, p. 1077, Étoile Nord-africaine ; Décret du 26 septembre 1939, JO du 2 octobre 1939, p. 11897, Parti du peuple algérien ; Décret du 19 octobre 1939, JO du 20 octobre 1939, p. 12490, Parti national breton ; Décret du 10 mai 1947, JO du 11 mai 1947, p. 4389, et Décret rectificatif du 11 mai 1947, JO, 15 mai 1947, p. 4524, Parti national malgache ; Décret du 29 juin 1957, JO du 30 juin 1957, p. 6501, Mouvement national algérien ; Décret du 12 septembre 1955, JO du 13 septembre 1955, p. 9101, Parti communiste algérien ; Décret du 13 février 1959, JO du 15 février 1959, p. 2023, Parti nationaliste ; Décret du 12 juin 1968, JO du 13 juin 1968, p. 5625, Parti communiste internationaliste and Parti communiste marxiste-léniniste de France ; Décret du 28 juin 1973, JO du 29 juin 1973, p. 6957, Ligue communiste ; Décret du 22 janvier 1987, JO du 24 janvier 1987, p. 861, Mouvement corse pour l’autodétermination ; Décret du 4 octobre 2023, JO du 5 octobre 2023, Civitas. For a more exhaustive list of other dissolution decrees, see A. Berthout, La démocratie militante, Étude comparative d’une doctrine constitutionnelle, PhD thesis, June 2024, Montpellier University.

[4] Décret du 13 février 1936, Journal Officiel du 14 février 1936, p. 1882, Action française.

[5] Décret du 31 octobre 1968, Journal Officiel du 1er novembre 1968, p. 10234, Occident.

[6] Décret du 26 janvier 1937, Journal Officiel du 27 janvier 1937, p. 1077, Étoile Nord-africaine.

[7] Décret du 12 juin 1968, Journal Officiel du 13 juin 1968, p. 5625, Jeunesse communiste révolutionnaire, Parti communiste internationaliste, Groupes Révoltes, Organisation communiste internationaliste, Fédération des étudiants révolutionnaires, Union des jeunesses communistes marxistes-léninistes, Voix ouvrière, Parti communiste marxiste-léniniste de France, Fédération de la jeunesse révolutionnaire, Mouvement du 22 mars.

[8] CE, 18 décembre 1957, Association France-Vietnam, n° 25232, Rec. T. 767 ; Conseil d’État, 21 juillet 1970, Sieurs Boussel, dit Lambert, Dorey, Stobnicer, dit Berg, n° 76230, Rec. 504 ; Conseil d’État, 31 octobre 1984, Fédération d’action nationale européenne (FANE), n° 28070 ; Conseil d’État, 26 juin 1987, Fédération d’action nationale européenne (FANE), n° 67077 ; Conseil d’État, 9 novembre 2023, Les Soulèvements de la Terre, n° 476384.

[9] Cour EDH, October 8, 2020, Ayoub and others v. France, n° 77400/14.