The mayor, the prefect and the pubs
Who has not already seen the famous metal plate in a pub attesting to the fact that the establishment is licensed to sell alcohol on the premises? This plate testifies to the long-standing existence of a framework for the sale of alcohol on French territory.
This regulation, essentially provided by the public health code, is intended to respond to the public health and public order issues raised by alcohol consumption. The sale of alcohol is thus subject to the prior obtaining of licences of different kinds, depending on the drinks and the terms of this sale.
Operators wishing to open alcohol selling establishments must therefore enquire beforehand about the formalities prior to the opening of their establishments in accordance with national regulations. However, they should also verify whether mayors or prefects have enacted specific local rules as regards the sale of alcohol in certain cities or departments.
Local authorities have police powers in this area, which they use regularly. This is especially true for take-away alcohol sale, given the specific issues involved in street drinking. This often results in more restrictive local regulations which can have a substantial impact on the business of the establishments concerned.
Police powers of local authorities in relation to the sale of alcohol
The mayor has general police powers under Article L. 2212-2 of the General Code of Local Authorities (CGCT) to ensure good order, safety, security and public health in his municipality. In Paris, these powers are exercised by the Prefect of Police.
The prefect may replace a defaulting mayor by adopting measures relating to the maintenance of public health, safety and tranquillity in the territory of a single municipality in all cases where there would not be provided by the municipal authority, subject to a prior formal notice which has remained without result (CGCT, Art. L. 2215-1, 1°).
The prefect also has general police powers when it comes to taking measures relating to public order, safety, security and health, the scope of which exceeds the territory of a single municipality (CGCT, Article L. 2215-1, 3°). The prefect is therefore the competent authority to adopt a measure restricting the sale of alcoholic beverages for the whole of the department or for several communes in the same department.
The exercise by these administrative authorities of their police powers with regard to alcohol selling establishments is subject to conditions of legality regularly recalled by the judge.
The conditions of legality of police orders regulating the sale of alcohol
Whether issued by the mayor or the prefect, the police measure is only legal if it is necessary. The judge will thus control whether it is appropriate to the disturbance it is supposed to put an end to. Thus, the measures taken must not be of a general and absolute nature, i.e. without limitation in time or space, otherwise they may excessively infringe the principle of freedom of trade and industry.
The case law on the subject is plethoric. The control exercised by the judge over these police measures is constant and highlights the importance, for the adoption of such measures, of justifying the particular local circumstances requiring their implementation (for an overview, see the annulment of a prefectoral order confirmed by the judge - CE, 3 July 1992, Société Carmag, n° 120448 - and the rejection of a request for annulment of a prefectoral order - CE, 3 March 1993, S.A. Carmag, n° 116550)
Examples of local regulations on the sale of alcohol
There is no shortage of examples in France of municipal or departmental orders regulating the conditions for the sale of alcohol.
For example, in the Gironde department, the opening hours of pubs and restaurants are regulated by an order of 30 April 2012. However, more restrictive conditions applicable to takeaway alcohol sale are provided in the municipalities of Bordeaux, Cenon, Gradignan, Pessac and Talence by a prefectoral order of 24 October 2012.
In the city of Lille, the mayor adopted on 24 June 2022 an order relating to the operating hours of licensed takeaway establishments and the takeaway sale of alcoholic beverages (municipal order no. 6353).
In the city of Lyon, a municipal decree of 16 June 2021 prohibits the takeaway sale of alcoholic beverages in the city between 9pm and 6am (ref. 47040 - 2021 - 01).
Access to these orders is not always easy and requires case-by-case research depending on the concerned territory. The websites of the regional or departmental prefectures generally have a section dedicated to the regulation of alcohol selling establishments, which may list the prefectoral orders on the subject. Operators seeking information on this subject may also contact the prefectural services directly to ascertain what restrictions exist in this area. Nevertheless, it is also advisable to find out for each municipality in which the sale of alcohol is envisaged whether municipal police orders have been adopted.
In conclusion, any operator of a alcohol selling establishment must inquire, before setting up, of the regulations applicable to his activity, taking care not to stop at the first layer of the regulatory millefeuille.