When they return the following week, investigators will again seize around a hundred of these cartridges, the sale, importation, transport and possession of which except for medical use have been prohibited since the end of 2023. At the same time, the mayor ordered the closure.
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The boss justifies himself
During the raid, the police began by finding balloons scattered on the chairs and tables.
A clear indication of consumption on site: these balloons are used to inhale the gas after having “cracked” the cartridge to open it.
Expanding their search, investigators found 284 cartridges stored in a storage room located at the rear of the room.
Finally, in a bag, they got their hands on an accounting journal detailing the sale of 1,861 cartridges of laughing gas.
The following Wednesday, investigators discovered around twenty boxes, each containing six canisters of nitrous oxide.
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The judicial authorities were alerted and an administrative procedure opened, at the end of which the mayor ordered the closure.
During the procedure, the manager was able to present his defenses. In his explanations, he took the blame on the customers, alleging that “it is they, and not me, who bring the illicit substances into the establishment”.
It was pointed out to him that the 400 cartridges were nevertheless stored at the rear. It was also in a bag belonging to him that the police found the accounts mentioning the sale of 1,500 canisters and the prices charged, namely 50 euros per 580 gram cartridge (the same are sold online at 39.95 euros, editor’s note).
The municipality explains
The mayor ordered the closure by police order. If he holds this power, it is still necessary, as required by law, that the decision be “necessary for the maintenance of public order”. To do this, there must be “serious indications that illegal activities are taking place in the establishment” and the police order “contains the factual and legal reasons on which the decision is based”.
As motivation, the mayor’s order mentioned that “the manager was engaged in the sale of nitrous oxide”, it was justified to order the closure of the establishment “in order to preserve public safety and tranquility”.
The decree emphasized “the known danger of road traffic accidents, violence, risk of explosion, etc.” linked to the use of laughing gas.
He recalled that “in the establishment’s reserve, we found bottles/cartridges of nitrous oxide with the aim (or at least with the intention) of using them in the room, and in order to create a euphoric effect .”
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Finally, he concluded that “this use constitutes an immediate danger for the physical integrity (health of the user and/or secondarily) of the people present”. Nothing was missing: “illegal activities”, “seizures of several hundred canisters”, “need to “preserve public order and physical integrity”.
To defend the legality of the mayor’s decree, the municipality called on one of the finest law firms, the Uyttendaele firm. And yet.
The reasoning
The café manager spoke to another specialist in administrative law. Me Michaël Pilcer recalled the essentials, namely the obligation for the authority to provide reasons for any administrative act.
According to the mayor’s order, “the illegal activities of sale and facilitation of the consumption of laughing gas which take place in the establishment compromise public security and tranquility”.
Me Pilcer objected that the police order makes no reference anywhere to a specific event which would have occurred in the establishment and would have compromised public order in Saint-Josse. For Me Pilcer, “the mere presence of nitrous oxide in the establishment is not sufficient in itself to establish a breach of public order”.
The judges of the Council of State note that in the specific case of this establishment on the Chaussée de Haecht, the police order, if it mentions “serious risks generated by the misuse of nitrous oxide” , does not specify how the sales and consumption facilitation activities that would take place there “would involve a threat to public order”.
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In other words, just generalizations are not enough.
This is why – for lack of motivation – the administrative judges suspended the mayor’s order despite the seizure of 400 cartridges and evidence proving the sale of more than fifteen hundred others.
To obtain the intervention of the Council of State, the manager nevertheless had to demonstrate the urgency. He did this by establishing that having to remain closed for four months would inevitably lead him to bankruptcy.
