The government initially dismissed a state of emergency in response to the riots that broke out after the death of young Nahel M., killed by a police officer during a traffic check. But, after three nights of riots, the Prime Minister, Elisabeth Borne, declared on Friday June 30 that “all hypotheses” would be examined, “with a priority, the return of republican order throughout the territory”.

Several right-wing and far-right figures have called for the “immediate” introduction of this exceptional measure, arguing that the state of emergency would “bring back order and peace”.

Created by the law of April 3, 1955 during the Algerian war, and modified several times since, the state of emergency is an exceptional regime which can be established on all or part of French territory, in the event of “imminent danger resulting from serious breaches of public order” or “events presenting, by their nature and gravity, the character of a public calamity”. It is declared in the Council of Ministers and cannot be extended beyond twelve days except by the vote of a law in Parliament.

This regime strengthens the powers of the civil authorities and makes it possible to restrict public freedoms without the intervention of the judiciary, which usually guarantees the application of the legal framework imposed on the State. It allows the Minister of the Interior and the prefects of departments to impose:

Since 1955, the state of emergency has been declared six times, three times during the Algerian war (1955, 1958 and 1961), during the events in New Caledonia (1984), during the urban riots of 2005 and after the November 2015 attacks in Paris and Saint-Denis.

Between March 2020 and August 2022, the government also declared a state of health emergency in order to facilitate measures – notably restrictions on freedoms – intended to combat the Covid-19 epidemic.

In 2017, the government ended the state of emergency that had been in effect since the November 2015 attacks. integrated into common law provisions that until then only existed in the state of emergency regime, first on an experimental basis in 2017, then permanently in the law of July 30, 2021:

These measures have been the subject of criticism from the opposition and the defender of rights since 2017. For their detractors, they are prejudicial to the rights and freedoms of citizens and depend on the notion of terrorism, which is legally vague. Individual measures of administrative control and surveillance, which replace house arrest, have been widely used; like home visits.

If the government were to use the 2017 law to deal with street riots, “it would not be the first time that common law powers of emergency have been used beyond what has been intended by the texts,” notes Stéphanie Hennette-Vauchez, professor of public law at the University of Paris-Nanterre and director of the Center for Research and Studies on Fundamental Rights. “The government could do what it already did in April and May,” says the lawyer: protest bans on opponents of the pension reform. Prefectural decrees based on the SILT law have banned “portable sound devices” (whistles, megaphones or saucepans). Considered as unrelated to the fight against terrorism, which was the context provided for the 2017 law, these decrees were quashed by the administrative justice after referrals from several associations. Others, such as the perimeters prohibiting demonstrations during the Cannes Film Festival, have on the other hand been deemed valid by the Council of State.

The curfew, a police measure prohibiting going out into the public space at certain times and for certain categories of the population, can be introduced without a state of emergency. This decision can be taken by a mayor, who has police powers in his municipality. The municipal decree must justify an objective of protecting public order proportionate to the threat, and specify the term of the measure, as well as any conditions, persons exempted and applicable sanctions.

The prefect can also institute local curfews under his own police powers, which are superior to those of mayors. This implies that a municipality cannot lighten the curfews taken by prefectural decree.

Nevertheless, such a measure may be difficult to justify if the state of emergency is not established. “When there are local curfews, the Council of State is relatively demanding, analyzes Stéphanie Hennette-Vauchez. The curfew cannot be too extensive at the municipal level, for example. The state of emergency would provide greater legal certainty by allowing for broader curfew measures. »

Following the nocturnal episodes of urban violence and destruction, curfew measures have been introduced in several municipalities:

– in Clamart (Hauts-de-Seine), from 9 p.m. to 6 a.m. until July 3. Lawyer Vincent Brengarth announced that he had introduced an interim release against the decree, which he considers “totally disproportionate”;

– in Meudon (Hauts-de-Seine), from 10 p.m. to 6 a.m., with a traffic ban in certain districts, and the closure of public facilities such as the media library or the municipal police station;

– in Neuilly-sur-Marne (Seine-Saint-Denis), from 11 p.m. to 6 a.m. until July 3, in three districts of the city;

– in Savigny-le-Temple (Seine-et-Marne), for minors, from June 29 to July 2;

– in Compiègne (Oise), from 10 p.m. to 6 a.m., until July 3.

– in Beauvais (Oise), for unaccompanied minors, from 10 p.m. to 6 a.m.;

– in Amiens (Somme), from 10 p.m. to 6 a.m. until July 3, for minors under 16 years of age.

The law of October 2017 (extended by that of 2021) enshrined most of the provisions of the state of emergency in common law, but their use is limited to the context of anti-terrorism. “Triggering a state of emergency would allow the government to free itself from the constraint of the SILT law, which requires that these measures be justified by the fight against terrorism”, confirms Stéphanie Hennette-Vauchez.

Beyond the restrictive measures allowed by the state of emergency, there is also the question of its usefulness, and the phenomenon of the State becoming accustomed to a regime provided for as exceptional and limited in time. “It is really an act of last resort, historically often used when the integrity of the territory is threatened, argues the law professor. To confuse it with a public order management tool is not healthy for a democratic state (…) It should be remembered that there are other police tools that exist. We are not helpless in the face of crowds or damage on the public highway. »