October 27, 2026
By Dr Alice Dejean de la Bâtie
When it comes to the right to protest, the distinction between a declaratory regime and an authorisation regime may seem, to non-specialists, rather technical. Yet the difference is straightforward and fundamental: under a declaratory regime, organisers merely notify the authorities that a demonstration will take place, whereas under an authorisation regime they must first obtain permission to hold it. The distinction therefore reflects a radically different approach to this fundamental right: it determines where the burden lies, and whether protest is treated primarily as a freedom or as an activity that may only take place with the prior permission of the administrative authorities. This distinction has become increasingly important in the French context.
As part of a broader European trend towards tighter policing of demonstrations and protest, public authorities have made growing use of public-order powers to restrict mobilisations. The Gilets Jaunes movement – initially sparked by fuel-tax increases and cost-of-living grievances, before broadening into wider demands for social and political reform – brought this tension into particularly sharp relief. Its sustained succession of demonstrations, repeated weekend after weekend throughout the winter of 2018–2019 and well beyond, confronted prefectural authorities with an unusually persistent form of mobilisation and was accompanied by increasingly frequent, at times quasi-systematic, prohibitions of protests.
These prohibitions formed part of a broader repertoire of measures deployed by the French executive to constrain protest, alongside preventive arrests, the expansive use of public-order offences and other administrative and criminal-law tools aimed at deterring participation. In that context, repeated bans became one particularly powerful way of shifting the practical exercise of the right to protest from notification towards permission. It is this tension between notification and de facto permission that lies at the heart of 3rd September 2026 decision Le Syndicat GJ v France.
On 23 June 2022, the Syndicat des Gilets Jaunes notified the Préfecture de police of Paris (the state authority responsible for policing and public order in Paris) of its intention to organise a demonstration of around fifty people from 30 June to 2 July, between 4.30 pm and 10 pm, in the Jardin des Champs-Élysées, close to the Élysée Palace. On 29 June, the Préfet prohibited the demonstration at the place and times declared. The decision relied, among other considerations, on the sensitive configuration of the proposed location, its proximity to the presidential palace, the prevailing terrorist threat, the possibility that substantially more than fifty people would attend, the risk of violence associated with previous demonstrations involving similar claims, and the mobilisation of police forces for other events. The authorities proposed that the demonstration take place on the same three days, between 2 pm and 6 pm, at Place de la République. The applicant unsuccessfully challenged the prohibition before the Paris Administrative Court on 30 June and appealed the same day to the Conseil d’État, the highest court in the French administrative court system. The Conseil d’État rejected the appeal on 1 July.
The applicant complained under both Articles 10 and 11 of the Convention. The European Court of Human Rights (ECtHR), however, examined the case solely under Article 11, while recalling that freedom of assembly must be understood in the light of Article 10 where demonstrations seek to contribute to public debate.[1] It accepted that preventing the applicant from demonstrating at its chosen location constituted an interference with Article 11, which therefore had to be justified under Article 11 § 2. That interference was prescribed by law, namely Article L. 211-4 of the Code de la sécurité intérieure (Internal Security Code), and pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. The central question was therefore whether the restriction was necessary in a democratic society and proportionate to those aims.
The Court stressed that states enjoy a wider margin of appreciation in relation to restrictions concerning the time, place and manner of demonstrations than they do where restrictions concern the content of the expression itself. It accepted the domestic authorities’ assessment of the cumulative security considerations: the configuration of the location, the likelihood of attendance exceeding the declared fifty participants and the concrete risk of disturbances. Particular importance was attached to the alternative offered by the authorities. The Court described Place de la République as being at the heart of Paris, an “epicentre” of civic life and a habitual venue for demonstrations concerning political, institutional and social questions (para 58). It was also considerably larger and easier to secure. The Court therefore considered that the alternative did not impair the object or reach of the applicant’s message.
The applicant’s second argument was broader. It contended that the systematic prohibition of its declared demonstrations had transformed the French declaratory regime into a de facto authorisation regime. The ECtHR rejected this argument in one paragraph. It relied on the fact that nineteen demonstrations declared by the applicant had previously not been prohibited and on the availability of procedural safeguards enabling it effectively to challenge prohibition decisions before the administrative courts. As a result, the Court concluded there was no violation of Article 11.
The Court’s conclusion that Article 11 was not violated is unsurprising. The right to freedom of assembly includes, in principle, the right to choose where and when to demonstrate (Sáska v. Hungary). But that right is not absolute, and restrictions relating to time and place have long been treated differently from restrictions directed at the message expressed (Rai and Evans v. the United Kingdom). More importantly, this was not a case in which the authorities simply displaced a demonstration away from its intended audience or relegated it to an insignificant location. Place de la République is one of the traditional sites of political and social protest in Paris. It had also become closely associated with the newer forms of citizen-led mobilisation that emerged in Europe after the 2008 financial crisis: in 2016, Nuit Debout occupied the square for weeks, in a movement often situated alongside the Spanish Indignados and Occupy. Although distinct from the Gilets Jaunes, it shared with them a distrust of established political organisations, hierarchies and conventional forms of representative democracy. Against that background, the choice of Place de la République as an alternative venue carried a political and symbolic resonance of its own. The ECtHR was therefore on relatively firm ground in considering that the proposed alternative still allowed the Syndicat to communicate its political message effectively. Indeed, the applicant apparently offered little explanation as to why the proposed location would have undermined the symbolic or communicative purpose of the demonstration.
There is nevertheless one aspect of the reasoning that deserves more attention. The Court rightly recalls that the mere risk of violence by others cannot, by itself, justify restricting a peaceful assembly and that authorities must concretely assess the scale of the risk and the means required to contain it (Bodson and Others v. Belgium). Yet part of the justification accepted in Le Syndicat GJ was precisely that the available police forces were already heavily mobilised and insufficient to secure the demonstration as originally planned. This raises a slightly uncomfortable question: to what extent should the State be permitted to restrict freedom of assembly because it lacks the resources to police it adequately? Security constraints are of course real, and Article 11 cannot require states to make unlimited policing resources available for every demonstration at every chosen location. Yet the argument becomes more troubling if insufficient state capacity itself becomes a justification for restricting a fundamental freedom.
France formally operates a declaratory regime for public demonstrations, as provided by Articles L. 211-1 and L. 211-2 of the Code de la sécurité intérieure. Organisers must notify the competent administrative authority in advance; they do not, in contrast, need to seek permission to exercise their freedom of assembly. The distinction matters. A freedom subject to prior notification remains, at least in principle, a freedom. A system in which its exercise routinely depends on obtaining the administration’s approval – or on persuading a judge to overturn its refusal – operates very differently. This does not mean that an authorisation regime is, in itself, incompatible with Article 11. The ECtHR has long accepted that both notification and authorisation procedures may comply with the Convention where they enable the authorities to take reasonable measures to ensure the peaceful conduct of assemblies (Rassemblement Jurassien v. Switzerland; Sergey Kuznetsov v. Russia). Such procedures must not, however, become a “hidden obstacle” to freedom of peaceful assembly (Samüt Karabulut v. Turkey), and refusals must be open to effective judicial review in time for the planned demonstration to take place. The real difficulty therefore lies less in the formal nature of the regime rather than the way restrictions are imposed in practice.
This difficulty extends beyond the Gilets Jaunes. In 2023, the Interior Minister first called for systematic bans on demonstrations organised by far right and ultra-right groups and, a few months later, instructed prefects to prohibit pro-Palestinian demonstrations. Such blanket approaches raise obvious concerns about restrictions driven by the political character of a protest rather than an individualised assessment of concrete risks. The 2024 farmers’ protests also prompted renewed accusations of selective enforcement, voiced by environmental activists and politicians, including French senator and former MEP Yannick Jadot, who contrasted the authorities’ tolerance of prolonged road blockades by farmers with the much swifter arrests and prosecutions faced by environmental activists engaging in comparable forms of disruption. These differences in treatment cast the allegation raised in Le Syndicat GJ in a different light. Seen against a broader pattern in which some forms of protest appear to attract far more restrictive treatment than others, the applicant’s claim that repeated prohibitions had transformed the declaratory system into a de facto authorisation regime deserved particularly careful scrutiny.
Instead, the ECtHR pointed to nineteen demonstrations that had previously not been prohibited and to the applicant’s ability to challenge prohibitions through effective judicial review. Nineteen may sound reassuring in isolation, but the figure is hardly self-explanatory. The Court gives no indication of the total number of demonstrations declared by the applicant, the proportion that were prohibited, or the frequency with which judicial intervention became necessary. Nor can the figure be entirely detached from the exceptional scale of the movement from which the applicant emerged. The Gilets Jaunes mobilised for 70 consecutive weekly “Acts” between November 2018 and March 2020; although the Syndicat itself did not organise all – or indeed necessarily most – of those demonstrations, each “Act” could encompass numerous decentralised protests and actions throughout France. At the movement’s outset alone, the authorities recorded more than 2,000 separate demonstrations on 17 November 2018 and more than 1,600 the following Saturday. Against that background, the bare fact that nineteen demonstrations organised by this particular applicant escaped prohibition tells us remarkably little about whether the administrative practice it complained of had become quasi-systematic.
The ECtHR also points to the applicant’s ability to challenge prohibitions through effective judicial review. This reflects its broader case law, according to which prior authorisation regimes are not, as such, incompatible with Article 11, provided that rapid a priori remedies are available to challenge an unlawful refusal. If such review is undoubtedly essential, and clearly preferable to judicial review arriving only after the planned demonstration (as highlighted in Bączkowski and Others v. Poland), Le Syndicat GJ also shows the limits of that position. Judicial review can correct an unlawful prohibition, but it cannot by itself neutralise the burden created by a practice of recurrent prohibitions. The prefectural decision was adopted on 29 June, the day before the demonstration was due to begin. The applicant brought an urgent référé-liberté before the Paris Administrative Court, obtained a decision on 30 June, appealed that same day and received the Conseil d’État’s decision on 1 July. For organisers, repeated recourse to urgent litigation requires legal knowledge, access to lawyers and the organisational and financial capacity to litigate at extremely short notice, potentially through several levels of jurisdiction. These are hardly neutral preconditions to the exercise of a fundamental freedom, particularly for smaller, informal or poorly resourced protest movements. The availability of rapid judicial review should therefore not, by itself, shield a system which, in practice, makes the exercise of freedom of assembly routinely dependent on challenging an administrative refusal from scrutiny.
The deterrent effect is even harder to dismiss when this procedural burden is placed alongside the criminalisation, introduced in France in 2019 in the aftermath of the Gilets Jaunes movement, of participation in a prohibited demonstration (Article R. 644-4 of the French Criminal Code). The ECtHR declared its application compatible with the Convention in Eckert v France in 2024, despite the chilling effect inherently attached to the threat of criminal sanctions for participation in a prohibited but peaceful demonstration, and the questionable necessity of criminalising such participation in the first place. This means that where the administration repeatedly prohibits demonstrations, participation notwithstanding the prohibition exposes protesters to criminal punishment, and the practical route to exercising the right is an emergency application to an administrative judge, the distinction between notification and authorisation begins to look increasingly formal.
Hence, the ECtHR’s reliance on effective judicial review is unsatisfactory. Judicial protection is a safeguard against restrictions on freedom of assembly; it should not become the mechanism through which the freedom must routinely be obtained. The point is broader than the situation of the Syndicat des Gilets Jaunes. Freedom of peaceful assembly is, as the Court itself reiterates, one of the foundations of a democratic society (Kudrevičius and Others v. Lithuania). Its exercise cannot realistically depend on demonstrators having lawyers permanently ready to bring emergency proceedings.
Le Syndicat GJ is less troubling for what it says about restrictions on the time and place of demonstrations than for the structural issue it barely addresses. Given the concrete security concerns and, especially, the offer of Place de la République as a credible alternative venue, the finding of no violation in relation to the particular demonstration was foreseeable. The allegation of a creeping de facto authorisation regime, however, deserved much closer scrutiny, particularly against the broader backdrop of recurrent and selectively applied restrictions on protest in France. The fact that some demonstrations escaped prohibition, and that others could be challenged rapidly before the administrative courts, does not in itself answer the structural concern created by recurrent bans. Effective judicial review is an essential safeguard for the right to protest, but it cannot neutralise the burden and deterrent effect of a system in which exercising freedom of assembly may repeatedly depend on challenging an administrative refusal. This even more so the case where participation in a prohibited demonstration may itself attract criminal sanctions. The ECtHR’s acceptance of prior authorisation regimes, provided that effective a priori remedies are available, may therefore require reconsideration in light of how such systems operate in practice. One can only hope that future cases will give the Court another – and perhaps a clearer – opportunity to confront that issue directly.
[1] The applicant’s reliance on Article 10 is understandable in the French legal context, where protest-related litigation has traditionally been framed predominantly through freedom of expression, even when the conduct at issue also falls within Article 11. I have previously argued that this reflects a certain French ambivalence towards Article 11 and a tendency to subsume freedom of assembly within freedom of expression, notwithstanding the ECtHR’s treatment of Article 11 as the lex specialis in peaceful-assembly cases (Kudrevičius and Others v. Lithuania).
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