Key facts of the case - The city council of Montreuil-sous-Bois had passed an administrative emphyteutic lease of 99 years with the Fédération cultuelle des associations musulmanes de Montreuil (Religious federation of the Muslim associations of Montreuil) with the view to build a mosque. The city council granted a communal parcel of land for an annual rent amounting to one euro. A member of the city council lodged an appeal with the Council of State to request the annulment of the City Council resolution embedding this contract. She argues that the parcel is at the disposal of the association for free, which infringes Article 2 of the Separation Act of 9 December 1905, forbidding the public funding of religious denominations. In 2006, new provisions have been included in the general code of the local public entities, providing that an administrative long lease can be passed “with the view to assign a building of worship open to public to a religious association” (Article L. 1311-2 CGCT).

Main reasoning of the court - In the case at hand, the Council takes a stance on two points. On the one hand, the judge deems that the low annual rent has two counterparts: the religious association involved has a non profit-making purpose and at the end of the emphyteutic lease, the building will be incorporated in the city goods. On the other hand, the Council specifies that the lawmaker of 2006 intended to depart from the provisions of Article 2 of the Separation Act of 9 December 1905, which forbid the public funding of religious denominations.
Accordingly, the appeal of Mrs V. is rejected.

Comment - By this decision, the Council of State clarifies the so far unclear legal situation concerning the emphyteutic leases passed for the building of mosques. Indeed, several leases passed between cities and Muslim associations had been annulled because of the very low annual rent, which were held for indirect public funding. See below, for example, the case Administrative Court of appeal of Lyon, 16 February 2010. However, administrative courts have repeatedly quashed decisions by municipal councils to provide land to facilitate the construction of mosques on the grounds that the rent being charged at a nominal amount was akin to a public subsidy, which is forbidden.

See the decision: Council of State, Mrs V., 2011-07-19, n. 320796.