The Republican Commitment Contract for Associations in France: Further Restrictions on Freedom of Association

Vanessa Barbé

University of Valenciennes

The right to freedom of association is a major fundamental right in France since a landmark decision of the Constitutional Court in 1971. In this decision, the Court held not only that freedom of association was a constitutional right, but also that the Constitutional Court could overrule an Act of Parliament if it is not compatible with such a fundamental constitutional right. This "Marbury v. Madison" type of decision was a small revolution in France. It was the first time that a piece of legislation was overruled by the Constitutional Court because it was not compatible with a fundamental right, when the Parliament wished to transform the system of declaration of associations into a system of authorisation.

The statute relating to the contract of association was promulgated on 1 July 1901. It institutes a very liberal regime, in complete break with a secular tradition of distrust of any association outside the control of public authorities. Today, there are 1.5 million associations and 22 million associations’ members in France (a third of the total population); they represent 113 billion euros of economic activity (3% of the GDP) and employ 1.8 million staff members. These figures can be explained by the very simple procedure in place for setting up associations, in force since 1901.

According to article 2 of the statute: ‘Associations of persons may be formed freely without prior authorisation or declaration’. The purpose of the association is left to the free choice of its founding members. No formalities are required. Only if the members of the association wish it to get legal personality (in order to be able, for example, to take legal action) are they required to declare it to the préfecture (administration representing the State at the local level). But even in this context, liberalism is the principle, since the prefect cannot refuse to issue a receipt. It is only later that the prefect can act, for example if he/she considers that the association has set itself an illegal goal, as article 3 of the 1901 statute on contracts of association provides that ‘any association founded on a cause or with a view to an illicit object, contrary to the law or morality, or whose purpose is to undermine the integrity of the national territory or the republican form of government, is null and void’.

But there have also been some major changes to the law of associations recently, and these restrict associations’ rights. The statute of 24 August 2021 reinforcing respect for the principles of the Republic is an essential act for associations. However, contrary to the last pieces of legislation that modified the law of associations, which were essentially aimed at strengthening associations and simplifying their functioning, the new text – adopted in the context of a fight against separatism – intends to reinforce the State’s control over associations. First, it creates a new ground for dissolution of an association that provokes violent acts against persons or property. Second, it establishes the ‘republican commitment contract’ for associations. In particular, it requires them – as a condition for obtaining a public subsidy – to commit themselves, by signing the contract, to respect the principles of freedom, equality, fraternity and human dignity as well as the symbols of the Republic; not to call into question the secular character of the Republic; and, finally, to refrain from any action that would undermine public order.

The statute of 24 August 2021 has therefore added a limitation to freedom of association not provided for by the Act of 1901. Moreover, the system of subsidies is changed, as associations will no longer be able to apply for a public benefit if they have not signed a republican commitment contract or if they do not respect its principles. Compliance with these principles is also a condition for maintaining the benefits granted to the association. In the event of non-compliance, the grant will be withdrawn and the sums paid refunded. Subsidies include optional contributions of any kind, i.e. not only aid in monetary form. This includes the loan of a room or access to the public highway for the organisation of an event.

Finally, a legal action created by the statute of 24 August 2021 enables a prefect to apply to a judge for the suspension of an act taken by a local authority that is likely to ‘seriously undermine the principles of secularism and neutrality of public services’. This mechanism can be used against a local authority that has awarded (or not withdrawn) a subsidy to an association that has not signed the contract or does not respect its principles.

In its decision of 13 August 2021 on the statute, the Constitutional Court specified that signing the republican commitment contract did not represent an infringement of freedom of association. Indeed, the Court held that the obligation to sign a contract in order to apply for a subsidy ‘is not intended to regulate the conditions under which [the association] is formed and carries out its activity’. But public subsidies represent an important and necessary resource for associations. According to the bill’s impact study (p. 74), 61% of associations receive public funding, and subsidies account for an average of 20% of their financing.

In addition, the Constitutional Court stated that the withdrawal of subsidies ‘cannot, without disproportionately infringing freedom of association, lead to the repayment of sums paid in respect of a period prior to the breach of the contract’. Consequently, this provision, subject to the aforementioned interpretation, is deemed to comply with the Constitution. The Constitutional Court noted that procedural guarantees had been adopted to govern the return of subsidies. Indeed, the withdrawal of the subsidy must be justified, the association has the right to present its defence, and the association has six months to return the funds.

However, it is still possible to consider that the republican commitment contract represents a tightening of control over associations by local authorities. This contract, perceived as a measure of mistrust towards associations, has been the subject of various criticisms. That’s why 25 associations lodged an appeal with the Council of State (the Supreme Administrative Court) – that is to say an administrative law challenge – against the republican commitment contract, which was given concrete form in a decree published on 31 December 2021. For the associations lodging this appeal, the contract is an obstacle to freedom of association. In a press release, they state that the contract contains ‘vague provisions’ that risk subjecting associations ‘to arbitrary decisions by the administration and local authorities’. Moreover, they assert that ‘the decree is all the more worrying in that it comes against a backdrop of mistrust and repression of associations’. They also point out that the Commission nationale consultative des droits de l’Homme (French National Advisory Commission on Human Rights) had called for the withdrawal of this contract.

Nevertheless, on 30 June 2023, the Council of State rejected the application against the decree establishing the contract. It ruled that, on the one hand, the new obligations thus imposed on the associations pursue a legitimate aim since the republican commitment contract aims to ensure that associations wishing to receive subsidies respect the principles of freedom, equality, fraternity and human dignity, as well as the secular nature of the Republic, public order and the symbols of the Republic within the meaning of Article 2 of the Constitution. On the other hand, these obligations are defined in sufficiently precise terms by the Act of 24 August 2021. Furthermore, the withdrawal of a public subsidy granted to an association that has failed to comply with the contract, which cannot lead to the repayment of sums paid in respect of a period prior to the breach as ruled by the Constitutional Court, is a measure taken under the control of an administrative judge. It follows that the new obligations imposed on associations in order to receive a public subsidy are necessary in a democratic society and proportionate to the aim pursued.

In those two cases relating to the republican commitment contract, both the Constitutional Court and the Council of State appear to have exercised a control of proportionality reduced to its simplest form: the modifications of the law are deemed to be ‘necessary, appropriate and proportionate’ as it is stated very briefly. But this contract, added to the new ground for dissolution of an association which ‘provokes violent acts against persons or property’, can hardly be considered anything other than a new restriction on freedom of association.

Vanessa Barbé is a Professor of Public Law at the University of Valenciennes, France.

Suggested Citation: Vanessa Barbé, ' The Republican Commitment Contract for Associations in France: Further Restrictions on Freedom of Association' IACL-AIDC Blog (26 September 2024) The Republican Commitment Contract for Associations in France: Further Restrictions on Freedom of Association — IACL-IADC Blog (blog-iacl-aidc.org)