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France: Legal Response to Covid-19

France [fr]

Estelle Chambas, Thomas Perroud

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 22 March 2023

General editors: Prof. Jeff King; Prof. Octavio Ferraz
Area editors: Dr. Pedro Villarreal; Dr. Andrew Jones; Prof. Alan Bogg; Prof. Nicola Countouris; Prof. Eva Pils; Prof. Nico Steytler; Dr. Elena de Nictolis; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Silvia Suteu; Prof. Colleen Flood; Prof. Cathryn Costello; Dr. Natalie Byrom.

© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

Preferred Citation: E Chambas, T Perroud, ‘France: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e9.013.9

For Parts I–IV, except where the text indicates the contrary, the law is as it stood on: 8 March 2021

For Parts V–VI, except where the text indicates the contrary, the law is as it stood on: 19 December 2022

I.  Constitutional Framework

1.  The French Constitution adopted on 4 October 1958 established the Vth Republic, which is considered ‘semi-presidential’ insofar as it possesses features of both parliamentary and presidential systems.1 The French regime is democratic: national sovereignty belongs to the people.2 The President of the Republic and the members of the National Assembly (a chamber of the Parliament) are directly elected by the people, whereas the members of the Senate are indirectly elected.3

2.  The system is divided between three powers: the executive power exercised by the President and the Government;4 legislative power vested in a bicameral Parliament;5 and the judicial authority.6 The President appoints the Prime Minister but also the rest of the ministers at the Prime Minister’s proposition.7 The grouping of the Prime Minister and the ministers is called the Council of Ministers, which is presided over by the President.8 Together, they form the Government.

3.  Unlike the constitutions of the former French republics, the regime created in 1958 grants the Government a central role insofar as it ‘determines and conducts the policy of the Nation.’9 It enjoys a wide regulatory power, whose scope is only limited when it comes to specific fields which necessarily involve the Parliament.10 Also, in cases of serious and immediate threat to the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfilment of its international commitments, provided the proper functioning of the constitutional public authorities is interrupted, the President can adopt any measures required by the circumstances by implementation of the full powers clause.11 Therefore, in cases of national emergency, the President is constitutionally empowered to concentrate the executive and the legislative powers in his hands.12

4.  The Parliament is divided into two chambers—the National Assembly and the Senate13—and the Constitutional Council controls the constitutionality of statutes.14 Both the Government and the Parliament have the legislative initiative. Statutes are then implemented by regulatory measures enacted by the Government and by local authorities.

5.  France is a centralized state but local entities, which encompass regional, departmental, and municipal bodies, can administer themselves within the bounds of the law.15 However, the Government has a local representative in each department and region, the Préfet, who scrutinizes local government entities. Article L. 1411-1 of the Public Health Code (PHC) clearly states that health policy is under the responsibility of the Government. Within the Government, it lies with the Minister of Health. The Code is territorially enforced by Regional Health Agencies under the control of the Government.16

6.  It is widely perceived to be the case that the national response to Covid-19, conferring wide powers on the Government, disrupted the constitutional equilibrium in favour of an even stronger executive.

II.  Applicable Legal Framework

A.  Constitutional and international law

7.  No constitutional state of emergency was declared. The French constitution only contains a full powers clause (Article 16), which grants extensive powers to the President in the aforementioned cases,17 and provides for a state of siege (Article 36) which can be declared only in the case of an imminent threat resulting from a foreign war or an armed insurrection and implies the transfer of public order and police powers to military authorities. Neither of these powers would have been appropriate for a pandemic. However, the statutory state of health emergency, which was created by Statute n° 2020-290 of 23 March 2020, did restrict constitutional rights such as the freedom of movement (see Part VI.A).18

8.  Regarding international law, France is a state party to both the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), both of which protect individual rights and liberties that were restricted during the response to the pandemic.19 For instance, the freedom of movement, the freedom of speech, privacy rights, and the rights of assembly were restricted. Nonetheless, Article 4 ICCPR and Article 15 ECHR both allow for derogations in times of emergency, and it is likely that the Covid-19 crisis can be qualified as an appropriate situation within the meaning of those articles. However, France entered no formal derogation from either.

9.  The World Health Organization (WHO) played a role in the management of the crisis in the sense that public authorities did mention its alerts about the pandemic. They also referred to its guidance to justify some measures. For instance, the use of disposable masks was not mandatory at the beginning of the pandemic because the WHO’s initial position was that they were not effective in stopping the virus and could divert attention from more effective social distancing measures.20 Committees of investigation were created in both chambers of the Parliament to investigate the governmental response to the first wave of the virus. Notably, they questioned the choice of publicly declaring that masks were not useful for protecting against the virus. Defending his position on 16 June 2020, Mr. Jérôme Salomon, then the spokesperson of the Government, stated that he had only followed international recommendations, especially those of the WHO.21

B.  Statutory provisions

10.  The Constitution distinguishes between statute law and regulations. Statute law prevails in the event of a conflict between them. However, statutes are limited to matters expressly specified by Article 34 of the Constitution, whereas the field of regulation extends to everything else that is not statutory in nature.22 Classically, the Parliament adopts statute law whereas the Government enacts regulatory measures. No prior legislation was used to respond to Covid-19, except the doctrine of exceptional circumstances invoked at the beginning of the lockdown (see Part III.A below).

11.  Statute n° 2020-290 adopted on 23 March 2020 was the first piece of legislation adopted to address the Covid-19 crisis and as such it was a very dense text inserted into the PHC.23 First, it declared the state of health emergency, which can also be declared by decree of the Council of Ministers in case of a sanitary catastrophe endangering public health by reason of its nature and gravity.24 Secondly, it broadly empowered the Government to adopt secondary legislation, through the mechanism of ordinances provided by Article 38 of the Constitution, in order to face the financial and social consequences of the crisis and safeguard the national economy.25 Furthermore, it decided to postpone the second ballot of municipal elections until an undetermined time.26

12.  Regarding the state of health emergency, Article L. 3131-13 PHC provides that it can be decreed by the Council of Ministers, but exceptionally Article 4 of Statute n° 2020-290 declared it directly on 23 March 2020. Whenever this legal regime is used, Parliament must be informed and can demand any complementary information to scrutinize it. This new statute was fast-tracked under the procedure of Article 45 of the Constitution and was adopted after four parliamentary sitting days. It grants the Prime Minister extensive powers to restrict individual liberties.27 The Minister of Health also enjoys extended powers to organize the public health service.28 According to the PHC, the state of health emergency can be decreed for a duration of one month, after which it can only be extended by the Parliament for a duration fixed in the new statute. However, this was not the case in March 2020 insofar as Statute n° 2020-290 derogated from the PHC by declaring the state of health emergency for two months. From a political perspective, opposition parties did not strongly oppose the declaration of the state of health emergency, though some human rights and civil society organizations did. As a result, several claims were brought to the judiciary to contest measures enacted by the Government on the basis of the state of health emergency.29

13.  The state of health emergency was extended until 10 July 2020 by Statute n°2020-546 adopted on 11 May 2020.30 However, the termination date did not mark a complete return to the regular functioning of the state. Indeed, Statute n° 2020-856 adopted on 9 July 2020, which was aimed at organizing the end of the state of health emergency, still granted extensive powers to the Government in case of a resurgence of the virus.31 Originally, this statute was designed to be applicable until 30 October 2020. However, the President of the Republic decreed the state of health emergency once more on 14 October 2020,32 which was extended until 16 February 2021 by Statute n° 2020-1379.33 Statute n° 2021-160 provided for a new extension until 1 June 2021.34

C.  Executive rule-making powers

14.  The executive played a preponderant role in facing the crisis. Normally, the executive is entitled to enact regulatory measures. Such measures encompass different types of acts and decisions. Decrees (décrets) are enacted by the President or the Prime Minister. They can set a general rule or a specific one directed at identifiable subjects. When the author of such an act is not the President or the Prime minister, it is then called an order (arrêté), which can also be general or specific. Otherwise, administrative decisions are the main way for the administration to apply the law to an individual situation, and regulations are general norms enacted by the administration which do not fall under the category of decree or order.

15.  While all sorts of regulatory measures were enacted during the Covid-19 crisis, the Government also intervened though secondary legislation as provided by Article 38 of the Constitution. Article 38 provides that the Parliament can authorize the Government to take measures that are normally the preserve of statute law by means of ordinances in limited fields determined in the statute of habilitation. Such ordinances come into force upon publication, but they must be ratified by the Parliament within a time-frame specified in the statute of habilitation.35 After ratification, they acquire the value of a statute and can only be modified by an Act of Parliament.36 Statute n° 2020-290 effected such a delegation of powers in favour of the Government to handle the crisis in matters related to the economy, the organization of judicial authorities, and public health goods, services, and professionals.

16.  The duration of each measure was provided by Statute n° 2020-290 itself, and they varied. Some were meant to apply until the end of the state of health emergency;37 others until 31 December 2020.38 Some even fixed multiple terms for their provisions.39 This led to the renewal of some measures. For instance, during the second lockdown, Ordinance n° 2020-1553, based on the delegation operated by the Statute n° 2020-1379, directly referred to ordinances adopted during the first lockdown to extend social rights (see Part V.A.2 below).40

17.  In addition to ordinances, all sorts of regulatory measures (decrees, orders, instructions) were enacted at the national and local level by the President, the Prime Minister, ministers, préfets, mayors, and administrations in general.

18.  Regulatory measures can all be reviewed by a judge even if there is no text expressly mentioning this in the measure.41 Ordinances are not subject to the process of constitutional review by the Constitutional Council before they come into force, even if they normally acquire the value of a statute after parliamentary ratification. This lack of scrutiny was further exacerbated during the Covid-19 crisis. A new ruling of the Constitutional Council seemed to declare that ordinances would acquire the value of a statute even where they were not ratified within the time-frame fixed in the primary legislation that conferred the powers.42

19.  Interestingly enough, the President used his right to seize the Constitutional Council for the ex ante control of the first bill extending the state of health emergency (see Part III.C below). Before 2015, the President of the Republic had never submitted a statute to the ex ante control of the Council even though he was entitled to by the Constitution. In fact, such a referral can appear contradictory since most bills are introduced by the Government. Statute n° 2020-546 was the second time throughout his mandate that Emmanuel Macron had operated an ex ante referral aimed at increasing the legitimacy of an extension of the state of health emergency.43

20.  Direction-making powers were used frequently to adapt general regulations to specific places such as regions, departments, or communalities. In general, most of the measures were centralized in the hands of the Government and applicable across France. However, national measures could be adapted to local circumstances. For instance, beaches were closed by orders of préfets (local state representatives, see Part I above), and public parks by municipal orders.44 Nevertheless, stricter lockdown measures adopted by mayors were often quashed by judges.45

D.  Guidance

21.  The Government provided general guidance to the public regarding appropriate behaviour to stop the spread of Covid-19. This guidance was displayed at the entrances of public buildings and on billboards, broadcast on TV and radio, and made available on several websites including the governmental one.46 These instructions included social distancing and hygiene measures. They remain in place and some of them may be mandatory at times. For instance, people are required to wear a mask when a minimal distance of one metre cannot be respected. Within private homes, this is merely a guideline but in public spaces it is mandatory even if the distance of one metre can be respected.47

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

22.  Under Article 37 of the Constitution, the Parliament does not interfere with and therefore does not scrutinize the regulation-making powers of Government. Therefore, public health regulations were not subject to parliamentary scrutiny. However, Parliament did exercise scrutiny over Government action in two other ways. First, when acting under the state of health emergency, the Government had to inform the Parliament of any measure it enacted.48 Moreover, the state of health emergency could only be extended beyond a month by means of statute.49 Hence, in the event of major disagreement between the Parliament and the Government, the Parliament could have blocked the use of the state of health emergency. Hence, a powerful veto power lay—and continues to lie—in the hands of the Parliament. For instance, in November 2020 when the Government proposed a bill to extend the state of health emergency until 16 February 2021, parliamentary debates about the term of the extension were tumultuous, especially between the National Assembly and Senate. Amendments by the Senate which fixed the term to 31 January 2021 led to the failure of the adoption of the text. It had to be submitted another time to pass in both chambers and the committee of fast-track proceedings, so as to allow the term requested by the Government, namely until 16 February 2020. After the failure to adopt the bill, the debates in the Law Committee, at the National Assembly, underlined that the major point of disagreement came from the senatorial amendment.50

23.  Secondly, Statute n° 2020-290, and then Statute n° 2020-1379, also allowed the Parliament to delegate some of its legislative power to the Government for three months through the mechanism of ordinances.51 With this delegation, the Parliament specified in detail which powers it wanted to delegate to the executive for a specified term. Technically, such a delegation can be revoked at any time by the Parliament with a new statute. Also, since ordinances must be ratified by statute law, the Parliament has a final opportunity for scrutiny during this process. Ratification can only proceed by statutory law, which normally assures a real parliamentary debate through successive readings in each chamber until a consensus is reached. However, fast-track proceedings are nowadays extensively used. Most of the time, they are initiated by the Government and they allow the adoption of a statute after only one reading in each chamber and a final vote by a special committee composed of an equal number of deputies and senators.52 Consequently, ratifications of ordinances are fast-tracked so they are subject to softer parliamentary scrutiny. However, according to the decision of the Constitutional Council in Force 5 two months later, the absence of ratification by the Parliament did not prevent ordinances from ascending to the status of statute, thus mitigating the importance of such a ratification.53 Still, the Government has to introduce a bill of ratification before the term fixed by the statute of habilitation for ratification, because otherwise the ordinance would be void.

24.  However, this possibility of control by the Parliament was curtailed within a very specific context by a certain use of the Constitution. Although the state of health emergency ended on 10 July 2020,54 Statute n° 2020-856 still granted the executive extensive powers until 30 October 2020. This created a mixed regime between the regular functioning of the State and the state of health emergency from 10 July 2020 until 30 October 2020. As such, it allowed the Prime Minister to adopt restrictive measures which would not usually be in his power. The aim is to give enough power to the Prime Minister to contain the spreading of the virus without using the state of health emergency which includes more restrictions to individual liberties. Hence, the Prime Minister was invested of additional powers starting from 10 July 2020. For instance, in parts of the territory where the virus was actively spreading, the Prime Minister could forbid the movement of people and access to public transport, regulate the access and opening of public facilities, and close public or commercial places where people gather.55 The statute conditioned these measures by requiring proportionality between them and the health risks, time circumstances, and local specificities.56 Hence, this regime differs from the state of health emergency because it only grants fewer powers to the Government. But it remains a derogatory regime, even if it not named as one, since it invests the executive with an abnormal amount of power which would not be possible outside of a crisis similar to this one.

25.  By blurring the distinction between the normal running of the State and the exception, this has led to a reduced power of scrutiny by the Parliament, which was not formally organized. When Statute n° 2020-1379 was examined by Parliament for the extension of the state of health emergency declared on 14 October 2020 (see Part II.B above), the question of these extensive powers after the end of the state of health emergency was raised. This was especially underlined by the senator Philippe Bas during the discussions which failed to adopt Statute n° 2020-1379 in the Joint Committee. He said that the combination of the extension of the state of health emergency and the existence of extended powers for the Prime Minister until 1 April 2021 constituted an overly long period without a vote from the Parliament, especially with regard to the power vested in the Government during that time.57

26.  Besides the ratification of ordinances, another limit to parliamentary control was that statutes were also adopted through fast-track proceedings. Members of Parliament barely had the time to learn about the topics of the bills and the discussion time was extremely brief. Notably, Statute n° 2020-290 created an entire new exceptional legal regime in less than a week. This creation was criticized because of its haste and its similarity to the existing state of emergency.58 Furthermore, there was no realistic possibility for Parliament to adopt resolutions expressing confidence or distrust about governmental actions. The National Assembly can initiate a vote of distrust dissolving the Government (Article 49.2 of the Constitution), but it has only been used once (in 1962).

27.  It nevertheless remained the case that most of the powers that the executive used to face the crisis were delegated by the Parliament. One exception was when the Government decreed the national lockdown, referring as it did expressly to the doctrine of exceptional circumstances.59 This doctrine, similar in nature to a doctrine of necessity, was created by administrative case law and provides that the executive can have extended powers in exceptional cases when the continuity of public service is endangered.60 Originally, this doctrine was linked to the justification of the violation of statutory law by regulations during wartime, and most of its applications were during the First and Second World Wars. This doctrine may only be used in exceptional, grave, and unforeseeable situations in which it is otherwise impossible to respect the principle of legality. In responding to Covid-19, the doctrine was only used to fill the gap before the adoption of Statute n° 2020-290 which granted the executive additional powers.61 Nevertheless, its use is not insignificant since it reveals that the executive can always override the absence of delegation of powers by the Parliament in exceptional cases.

B.  The functioning of the legislature where its ordinary business is disrupted

28.  When the lockdown was declared, the Parliament was in recess from 9 to 22 March 2020. However, with regard to the lockdown, both chambers decided to restrict the access to the parliamentary estate from 17 March to the end of June 2020. At the National Assembly, only three deputies for one political group could come to the chamber until 27 April 2020, when the number of deputies was increased to 75 (out of 577) and then to 151 starting from 27 May.62 As for the Senate, only 18 senators (out of 348) had access to the chamber as of 24 March; this was then slowly increased until the end of June 2020, where half of the members were allowed inside the chamber.63 In consequence, most of the Members of Parliament (MPs) were working from home and, as such, the Parliament did not formally enter into recess during the Covid-19 crisis even though the capacity to meet physically was significantly impaired.

29.  Compensating systems were found to override these physical limitations. For instance, starting from 17 March 2020, at the National Assembly and the Senate, since few members could come to the chamber, the presidents of the different political parties were authorized to submit the votes of their party’s MPs, thus allowing the adoption of legislation in democratic conditions. Online participation was not allowed, with the exception of committees. Nevertheless, the absence of plenary debate and the time constraints imposed by the pandemic made it impossible to preserve any real parliamentary debate in both chambers.64 Furthermore, during proceedings in the National Assembly concerning questions to the Government, parties were only allowed to submit two questions each in order to shorten the session. However, committees continued to meet, even if a portion of their members could only participate online, to discuss bills related to the Covid-19 response with no significant interruption. This restricted functioning did not receive significant complaints in the press or from opposition parties since there was no other feasible option.

30.  During this period, both chambers decided to focus their work on emergency legislation linked to the Covid-19 crisis, especially the statutes related to the state of health emergency, and financial statutes.65 Nonetheless, three statutes unrelated to the pandemic were passed.66

C.  Role of and access to courts

31.  France has two types of courts which are controlled by two separate supreme courts. On the one hand, there are regular tribunals and courts of appeal (juge judiciaire) which have jurisdiction for civil law and criminal law matters. On the other hand, there are administrative tribunals and courts of appeal (juge administratif) which have jurisdiction for public law litigation. The Cour de cassation is the supreme court for civil and criminal litigation whereas the Conseil d’État (or Council of State) is the supreme court for administrative litigation. Statutes cannot be constitutionally reviewed by the judiciary—this function falls under the jurisdiction of the Constitutional Council, though judges have to put aside statutes which do not respect international conventions to which France is a party if litigants request it in their claim. Administrative tribunals and courts received many filings during the pandemic as they have jurisdiction to review regulatory acts. The constitutional review of statutes is a twofold process in the French system and is conducted by the Constitutional Council. The review can be ex ante, meaning before the promulgation of statutes if the Council is then seized by any entitled authority—the President of the Republic, President of the National Assembly, President of the Senate, Prime Minister, 60 deputies, or 60 senators.67 Whenever the Council is seized in such a manner, the statute cannot be promulgated until the Council has declared its constitutionality. In case of unconstitutionality, the statute, or part of it, is void. The review can also be ex post, once the statute is in force: it can be a constitutional question that arises in a case and that the judge of the case deems suitable for constitutional review.68 The question is then examined by the Constitutional Council, though it must be related to a right or a liberty guaranteed by the Constitution. Hence, it is narrower than a priori review in terms of constitutional dispositions that can be invoked.

32.  Based on the delegation of powers created by Statute n° 2020-290, the Government adopted four ordinances adapting judicial proceedings during the pandemic. Ordinance n° 2020-303 was dedicated to criminal litigation while Ordinance n° 2020-304 concerned civil litigation.69 Both were applicable from 12 March 2020 until one month after the end of the state of health emergency on 10 July 2020. Ordinance n° 2020-305 was applicable to administrative litigation from 12 March 2020 until the termination of the state of health emergency.70 Ordinance n° 2020-306 was meant to be in force during the same time-frame as the two aforementioned ordinances and was used to extend time limits for cases.71 Such extensions made it possible for civil courts to suspend their activities in most cases and to focus on emergency proceedings and criminal cases.72 In every type of litigation, the ordinances made possible the use of telecommunications or, if not technically feasible, any means of electronic communication including phone calls whenever the identification of the parties and the secrecy of the exchanges are guaranteed.73 Thus far, no study has shown that this use of technology impeded access to justice for litigants, though the Defender of Rights highlighted that the poorest part of the population was deprived of a minimum level of access to telecommunications.74 It recommended to the Government that low prices for phone subscriptions be ensured.75 Moreover, this was the only way to prevent the spread of the virus within the courts. Under the same aim, the collegiality of courts during criminal litigation was widely restricted with the possibility of proceedings led by a single judge76. This prevented both the spread of the virus within courts and the interruption of judicial proceedings, even in the event of home isolation for judges who had caught the Covid-19 virus. In the case of inability to operate for lower courts in civil and criminal proceedings, the president of the Court of Appeal had the power to transfer cases to another court or tribunal.77 On a broader level, procedural requirements were eased: publicity could be restricted,78 civil litigation could proceed without hearings,79 and meetings between people placed in detention and their lawyers could be done through electronic communications.80 In a nutshell, the courts’ procedural requirements were significantly eased with the sole aim of ensuring the continuity of justice. Nevertheless, a lack of adequate electronic equipment significantly impaired the work of court staff.81

33.  During the second ‘lockdown’, three ordinances adopted on 18 November 2020 restored the same derogatory measures regarding the courts functioning.82 Regarding criminal proceedings and civil litigations, their duration was fixed until a month after the end of the state of health emergency. For administrative courts, these measures were meant to stop at the end of the state of health emergency. However, the use of video-conference during criminal proceedings without the agreement of the parties was declared unconstitutional by the Constitutional Council and illegal by the Council of State because it violated due process and the right of defence.83

34.  There was little judicial control in connection with the declaration of the state of health emergency. The state of health emergency was declared by Statute n° 2020-290 and, as such, it could have been exposed to constitutional review by the Constitutional Council. However, the Council was not seized ex ante about this statute and hence did not operate a constitutional control over it.84 Ex post constitutional questions about this statute were only judged months later and focused on the report of municipal elections.85 These decisions did not concern the state of health emergency, which had been constitutionally validated in between. This reveals a legal weakness in the French system, seeing as the Constitutional Council cannot initiate its own proceedings (ex propio motu).

35.  It is only with the law extending the state of health emergency adopted on 11 May 2020 that a decision about the constitutionality of the mechanism was first issued. The case was referred ex ante by the President of the Republic to the Constitutional Council.86 In its decision DC n° 2020-800, the Council eventually validated the creation by the legislator of the state of health emergency, judging that it operated a balanced conciliation between the protection of public health and individual liberties.87

D.  Elections

36.  Municipal elections were planned on 15 March and 22 March 2020, to elect mayors and city councils. In France, municipal elections are organized in two rounds, unless a candidate receives more than 50% of votes on the first ballot. However, the lockdown (stay-at-home requirement) was decreed on 17 March 2020, which led to postponement of the 22 March 2020 elections.88 The second ballot was then planned on 28 June 2020 and special requirements were made to prevent the spread of the virus.89 In substance, the administration of the election was adapted to the pandemic: polling stations did not have to stamp electoral cards after the vote, votes by proxy were facilitated, and the reference to the date of 22 March 2020 on the ballot used on 28 June 2020 did not void it. Also, Decree n° 2020-663, in its Annex 1, required the respect of social distancing within polling stations.90 The pandemic nevertheless caused an abnormally low participation rate: for the first round, only 44.66% of electors voted, and 41.60% on the second round.91 Hence, protective measures which were put in place for the second ballot were not enough to entice voting.

37.  Besides municipal elections, the election of six senators representing French people living abroad was postponed by a year. The mandate of the six senators, which was supposed to be terminated, was also extended to 30 September 2020.92

E.  Scientific advice

38.  The mechanism of the state of health emergency dedicates a special role for scientific advice. Hence, scientific data which motivated the implementation of the state of health emergency must be made public.93 A scientific committee was also created on 10 March 2020, composed of 11 experts—mostly doctors, one sociologist, and one anthropologist. The number of members was increased to 13 after 3 April 2020. The extension of the state of health emergency by the legislator may occur only after this committee publishes an opinion regarding the sanitary situation.94 All of its opinions are accessible on a governmental website.95 This committee is supposed to be an independent institution with expertise in the field of epidemiology. However, its members were not originally appointed by public decisions; they are currently appointed by two decrees of the President of the Republic adopted on 3 April 2020.96 The independence of the committee was criticized in light of potential ties with pharmaceutical companies.97 Its opinions did not eventually bind the Government, which sometimes chose to take other elements into account.98

F.  Freedom of the press and freedom of information

39.  There was no sign of clear restrictions of the freedom of the press by the state. Freedom of information laws were not invoked against the Government to improve the transparency of the plan proposed to defeat the epidemic. This could be explained by the daily appearance of the spokesperson of the Government on television, explaining the evolution of the situation in France and outlining measures to improve it.

40.  Freedom of information requests to the Commission for Access to Administrative Documents (CADA) were not interrupted. The website of the institution only indicates that online requests will be addressed with greater priority compared to physical ones sent by post office.99

G.  Ombuds and oversight bodies

41.  The Defender of Rights is an ombudsman whose mission is to defend the people’s rights before the administration.100 It is an ‘independent constitutional authority’ and, as such, it can provide independent oversight of governmental action.101 This institution has an extended power of investigation—there is a duty to respond to its requests. It can propose an alternative resolution mechanism for disputes arising between individuals and administrations, issue recommendations, and request sanctions by the competent authority.102 During the Covid-19 crisis, the Defender of Rights issued 18 reports on different themes covering social issues created by the pandemic. One can thus find a report about childhood protection during the lockdown, another about the risk of infection in detention, or even the exercise of lawyers’ activities in safety.103 These reports contain non-binding recommendations directly addressed to the Government. Though the Government formally ignores these recommendations in practice, they are nevertheless an important source of information on existing problems.

42.  There has been no special reviewer of legislation or other public official appointed to monitor the public response to Covid-19.

IV.  Public Health Measures, Enforcement and Compliance

A.  Public health measures

43.  To fight the spread of the virus, various types of measures were implemented, often restricting individual liberties. The main legal basis for these measures was the state of health emergency created and declared by Statute n° 2020-290, especially the newly created Articles L. 3131-15–L. 3131-17 PHC. All measures authorized by these articles were later implemented by the executive branch.

44.  A specific issue arose regarding the allocation of powers between the Government and local powers (mayors), in particular mayors’ ability to use their municipal police power to adopt stricter measures than those the Government enacted with its general police power. The municipal police powers are provided by Article L. 2212-1 of the General Code of Local Collectivities (GCLC).104 Additionally, this code grants mayors the power to take exceptional measures to respond to a very serious danger. In such a situation, the mayor is then obliged to inform the local state representative of the measures taken and the circumstances justifying their adoption, as per Article L. 2212-4 GCLC. According to case law, in general, mayors can add to national measures only if local circumstances justify it,105 which was asserted once more by the Council of State during the state of health emergency.106 However, most measures enacted by mayors during the ‘lockdown’ were quashed by the judiciary. This was the case for the prohibition of docking for ships in overseas municipalities,107 declarations of curfews,108 or creations of an obligation to wear a mask in the public spaces of a municipality.109 It was only after the lockdown that the President of the Republic publicly recognized that local powers should have a greater margin to adapt measures to their regional or local circumstances in his speech on 14 June 2020.110 Also, Préfets (local state representatives) retained an important role after the end of the lockdown as they were entitled to enact local measures to stop the spread of the virus.

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

45.  France declared a national lockdown (stay-at-home requirement) on 16 March 2020. This was implemented by Decree n° 2020-260,111 based on the doctrine of exceptional circumstances (see Part III.A above), and subsequently confirmed by further decrees operating within the scheme of the state of health emergency, such as Decree n° 2020-293 of 23 March 2020.112 Exceptions to the lockdown were exhaustively listed and included journeys to work, shopping for basic goods, health related journeys, brief outings for individual physical exercise and the needs of pets, and compelling family matters. To exercise these exceptions, the Government introduced an exemption form (attestation dérogatoire) which had to be completed either in written form or via telephone. During the second lockdown, this form was accessible through the new application ‘Tous AntiCovid’.113

46.  Mayors occasionally tried to tighten lockdown measures by adding a curfew which prohibited any derogation from the lockdown during night-time but most measures enacted were quashed by the administrative judge.114 These measures were rejected either on the basis of being disproportionate or because the author could not justify special local circumstances. The only exception was of a curfew ordered by the mayor of Nice between 8:00pm and 5:00am in a small part of the city. It was first ordered on 7 April 2020 and then extended on 14 April 2020. The extension was contested but the judge declared it legal because it was limited in time and space and appropriate in regard of the local evolution of the pandemic.115 Also, the junior doctors’ union demanded a total lockdown from the Government with no exception even for shopping for necessities. The rejection of this request by the Prime Minister was then challenged in court but dismissed as unrealistic in terms of food and goods supplies and essential activities for the population.116Although the judge accepted the argument based on Article 2 ECHR, the claim was formed as a fast-track proceeding (référé-liberté) requiring an obvious violation of the right to life which was not characterized in regard of the existing measures. Eventually, the judge only ordered the Government to clarify existing exemptions from the lockdown.

47.  The first state of emergency ended on 11 July 2020. Another one was declared on 14 October 2020 by Decree n° 2020-1257.117 Within this legal scheme, Decree n° 2020-1262 gave extended powers of restrictions to the préfets in areas where the virus was spreading fast.118 In Paris, the Préfet issued an order forbidding parties in public facilities and stipulating a curfew (stay-at-home requirement) from 9:00pm to 6:00am, in line with the mechanism created by Article 51 of Decree n° 2020-1262.119 These were the only restrictions applicable then but they did not succeed in containing the epidemic. In consequence, a second national lockdown was decreed on 30 October 2020.120 It came to an end on 15 December 2020 and was replaced by a national curfew from 8:00pm to 6:00am every day.121 It was then brought forward to 6:00pm on 15 January 2021.122 Article 4 of Decree n° 2020-1310 provides for the same exceptions to the ‘lockdown’, with the exception of the daily hours in which people could go out.

2.  Restrictions on international and internal travel

48.  On 18 March 2020, the Prime Minister issued instruction (direction) n° 6149/SG, which declared the closing of national borders.123 They were opened again for other European Union (EU) Member States on 15 June 2020.124 A set of other measures were adopted to complement it on 23 March 2020. Thus, boats carrying more than 100 passengers were forbidden from stopping over or staying within territorial seas, transport of people through commercial flights were forbidden between the mainland and overseas territories, and between overseas territories themselves, and public transport by road or rail was submitted to a daily mandatory disinfection cleaning procedure.125 Flights with overseas territories were restored on 15 April 2020 but the other measures were extended until 11 May 2020. After that, cruise boats were prohibited from stopping within French seas except when allowed by the préfet (see Part I above).126 Any passenger boarding a boat, plane, or public transport had to wear a mask and hygiene measures were imposed at boarding stations, including provision of soap, single use towels, and daily cleaning127. On 31 May 2020, these restrictions were reissued detailing more precisely the obligations of information and hygiene measures travel companies had to respect.128 Moreover, flights between overseas territories and the mainland were suspended except for compelling personal reasons, health emergencies, or a professional requirement which could not be postponed.

49.  When the state of health emergency ended on 11 July 2020, boats carrying less than 250 passengers which had only travelled within the EU or the European Economic Area could stop in French seas.129 Only flights between Guyane, Mayotte, French Polynesia, New Caledonia, Wallis and Futuna, and the mainland were suspended.130 Travel to the rest of the overseas territories was conditioned on a negative virological test completed less than 72 hours before boarding. This test requirement was extended to any boat, plane, and land transport under the second state of health emergency for travellers coming from a list of countries.131 Also, all cruise boats were forbidden from stopping in French seas again. As of 9 March 2020, Decree n° 2020-1310 still applies.

3.  Limitations on public and private gatherings and events

50.  Limitations to the right of assembly were adopted subject to the development of the health situation. Such restrictive measures resort to the administrative police powers and as such a review by the judge would require them to be proportionate to actual circumstances and their aim. Therefore, to assess their legality, the judge would have to analyze if they were necessary, adequate, and proportionate to the actual spread of the virus and the number of occupied beds in hospitals. This is why successive sets of measures were adopted depending on these considerations. Gatherings of more than 100 people were forbidden from 23 March 2020 until 11 May 2020, then the limit was set at 10 people maximum until 10 July 2020.132 From 11 July until 16 October 2020, public gathering was allowed if a minimum distance of one metre between two individuals was respected, however, gatherings of more than 5000 people were forbidden.133On 29 October 2020, the limit was fixed at six people and is still in force as of 10 March 2020.134

51.  Besides national measures, the préfets (see Part I above) were entitled to adopt stricter measures whenever local circumstances justified it. For instance, on 5 October 2020, the Préfet of the department Hauts-de-Seine set a limit of a maximum of 1000 people in a gathering.135This measure ended when the national limit was set at 6 people on 29 October 2020.

52.  Regarding private gatherings, there was no legal limit even though the Government recommended they not exceed six people.136

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sports facilities)

53.  The order adopted by Olivier Véran, the Minister of Health, on 15 March 2020 required the closure of various facilities such as concert halls, shops, malls, restaurants, bars, libraries, museums, and schools until 15 April 2020.137 These restrictions were then repeated in further decrees under the scheme of the state of health emergency until 11 May 2020.138

54.  Mayors and préfets could both order other closures, such as parks, coastal paths, and beaches. Mayors could do so by using their powers of general administrative policing, and préfets by applying the health emergency police powers which lie in the hands of the Minister of Health.139 In case of conflict, the health emergency police power prevails as it is a special administrative police power.

55.  Eventually, parks, coastal paths, and beaches were closed everywhere within the national territory by the national Government in locations worst affected by the epidemic identified as ‘red zones’.140 On 31 May 2020, mayors were entitled to open these spaces again under conditions respecting a distance of at least one metre between two individuals.141

56.  From 15 March until 2 June 2020, every shop, bar, museum, or any commercial activity welcoming clients was closed with the exception of stores selling staple goods.142 Appeals against these measures were brought to court, but there are no known cases of successful challenges. For instance, the Council of State confirmed the legality of the closing of markets143 and restaurants,144 and the administrative tribunal of Montpellier the closing of night supermarkets.145 After 2 June 2020, most businesses and museums were free to open again a with few exceptions (dance clubs, movie theatres, and concert halls).146

57.  After summer 2020, some préfets in large cities ordered an early closing time for bars. This was the case in Paris where bars had to close at 10:00pm, abiding by an order edicted by the Préfet of Paris on 28 September 2020.147 The Préfet of Gard enacted a similar order on 16 October 2020.148 These measures ended when the second lockdown was decreed. Indeed, the decree also declared closure of bars, restaurants, museums, and most shops.149 Restrictions regarding shops were lifted on 14 December 2020 but those on restaurants and bars remain as of 10 March 2020.150

58.  Schools and universities were also closed on 15 March 2020.151 However, the children of workers who qualified as ‘vital to the crisis management’, such as health workers, were still welcomed in schools. For the rest of the pupils, schools put in place remote learning classes. On 18 May 2020, in the areas of France where the epidemic situation was the best (‘green zones’), primary and middle schools reopened.152 The rest of them were allowed to open on 31 May 2020 as well as secondary schools.153 Schools never closed again. Regarding universities, lectures and classes kept on going through remote learning. Universities started to open again on 31 May 2020 but only for access to laboratories, libraries, or administrative services.154 For the start of the semester in September 2020, some universities chose to only use remote learning. It became mandatory on 29 October. Facing students’ distress, the Government agreed to let universities provide a minimum number of classes for first year students on 15 January 2020. This was extended to any lecture or class as long as a maximum of 20% of the students attended. The rest of them were supposed to be in remote learning. These measures still apply as of 10 March 2020.

5.  Physical distancing

59.  Every decree ‘prescribing general measures necessary to fight the Covid-19 epidemic’ provides in its first or second article that ‘in order to slow down the spread of the virus, sanitary measures defined in annexe 1 and social distancing, which includes physical distancing of at least one metre between two people, … must be respected in any place and in every circumstance.’155 Hence, physical distancing must be applied everywhere outside private homes.

6.  Use of face coverings and personal protective equipment (PPE)

60.  On 13 March 2020, the Government requisitioned all stocks of face masks for respiratory protection and antibacterial sprays in order to allocate them to hospitals.156 Consequently, there was no obligation to wear a mask in public spaces as it was impossible to buy any. This policy changed when the lockdown ended on 11 May 2020. Supplies were sufficient by then and it became mandatory to wear a mask in some places such as public transport, boats, planes, or schools.157 By use of their general police power, mayors could extend this obligation to parts of their cities as well as préfets.158 The aim was to adapt restrictive measures to local circumstances.

61.  However, such decisions had to be justified by a necessity and proportionality test based on the actual state of the epidemic and local circumstances. For instance, the Mayor of Sceaux introduced a requirement to wear a mask anywhere in the city on 6 April 2020.159 However, the order was judicially quashed because, according to the decision of the court, the Mayor did not justify the specificity of local circumstances and harmed the coherence of the national plan to fight the virus.160 In the aim of avoiding such judgments, the Government expressly gave préfets (see Part I above) the power to declare wearing a mask mandatory, but only in public spaces.161 Numerous orders to this effect have since been issued subject to judicial controls of adequacy and proportionality. For instance, the obligation to wear a mask in scarcely-populated areas has been judged excessive and has therefore been quashed.162 Courts also determined that the préfet does not have to envision every possible exception to the obligation to wear a mask to make their order requiring so legal..163 Hence, such an obligation is not disproportionate if it does not entail any possibility of taking off the mask for some actions such as eating, smoking, or drinking, which is, according to the judge, implied.

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

62.  The second paragraph of Article L. 3131-17 PHC provides that individual measures of ‘isolation and quarantine’ can be pronounced by departmental préfets upon proposition by the General Director of the Regional Health Agency. Despite the name ‘quarantine’, these measures do not apply to individuals suspected of infection. Instead, they have to be justified on a case by case basis where Covid-19 has been medically diagnosed. As such, measures of ‘quarantine’, within the meaning of Article L. 3131-17 PHC, are equivalent to a strict stay-at-home requirement, whereas, for isolation measures, the infected individual is placed alone outside of their home—for instance, in a hotel. Measures of isolation and quarantine can last for a maximum of 14 days unless medical advice justifies their extension. A judge must authorize extensions after 14 days whenever a patient is confined exclusively to the place of quarantine.164

63.  Originally, Statute n° 2020-290 and Statute n°2020-546, which created and modified Articles of the PHC related to the state of health emergency, did not require the intervention of a judge in decisions to extend quarantines or isolations beyond a 14-day duration. However, when exercising constitutional control of Statute n° 2020-546, the Constitutional Council ruled that non-judicially authorized extensions of more than 14 days involving more than 12 hours a day in isolation were unconstitutional under Article 66 of the Constitution, thus implying the unconstitutionality of Article L. 3131-17 PHC.165 Consequently, a reference to the need of judicial approval was inserted in Article L. 3131-17 PHC to comply with the protection from arbitrary detention.

8.  Testing, treatment, and vaccination

64.  The PHC does not allow forced testing or forced medical procedures, nor has this ever been envisioned by the Parliament when passing statutes related to the state of health emergency.

65.  On 4 December 2020, the vaccination campaign started.166 Only vaccines listed in Annexe 4 of Decree n° 2020-1310 can be administered. The National Agency for Public Health buys them and their provision is free of charge. The remuneration of health workers working overtime to vaccinate is fixed by an order.167 A Ministerial Instruction divided the vaccination campaign in five phases.168 First, old people living in retirement and health care facilities and their caregivers—if older than 65 years old and/or having comorbidity—could be vaccinated. Then, second, the vaccination was open to people older than 65 years old and to health workers older than 50 years old. In the third phase, the threshold will be lowered to 50 years old and vaccination will be possible for every health worker and persons with health conditions. The fourth phase targets vulnerable people, people living collectively in prisons, psychiatric facilities, or foster care residences. Eventually, in the fifth phase, every person over 18 years old will have access to vaccination.

66.  When the campaign was launched, litigation soon came up to request a vaccine when the claimants were included in the priority groups for phase I or II. The first judicial decision took place on 7 January 2021 by the Administrative Tribunal (‘AT’) of Châlons-en-Champagne.169 The claimant was heavily disabled and wanted to be vaccinated, whereas only people identified as ‘vulnerable’—mostly elderly or people with serious diseases—could have access to the vaccine at that time. The AT found that the claimant did not demonstrate an obvious and serious violation of his fundamental rights or that he was vulnerable. Moreover, the judge added that the claimant lived at home, did not work, and did not receive daily assistance from people other than his spouse, which did not particularly expose him to the virus. Therefore, the condition of emergency was also rejected by the AT.

67.  In another litigation on 5 February 2021, an association defending prisoners’ interests challenged the ministerial order organizing the vaccination campaign arguing that phase I should target prisoners because their conditions of detention presented greater risk of transmission of the virus.170 The right to life and principle of equality were invoked as legal grounds. The Council of State (‘CS’) did recognize the rights to life and the principle of equality were fundamental liberties, and that the administration is responsible for not threatening prisoners’ health. However, regarding the principle of equality, the CS recalled that phase I targeted people older than 75 years old or presenting serious comorbidities which did not exclude prisoners with such characteristics. Therefore, it concluded there was no breach of equality with free citizens. Regarding the right to life, the CS said that the High Health Authority recommended following the five phases planned in the vaccination campaign. Furthermore, after a year living with Covid-19, the CS relied on official figures to state that there was no particular threat for prisoners since only two had died since February 2020. With social distancing, prisoners were not at greater risk. Consequently, the CS rejected the claim.

9.  Contact tracing procedures

68.  First, an information system was created to collect, process, and exchange data in order to fight the spread of the virus starting from 12 May 2020 until up to six months after the end of the state of health emergency.171 This system was aimed at identifying infected people and potentially infected people, directing people towards best practices to fight the spread of the virus such as self-isolation, and monitoring the epidemic. This data was strictly limited to virological or serological statuses and could not be conserved for more than three months after the collection. Data collectors were enumerated by Article 11(3) of Statute n° 2020-546 and encompass hospitals, health centres, doctors, pharmacists, and medical laboratories. Collected data was gathered and treated by national public health insurance under the name ‘Contact Covid’.172 Statute n° 2020-546 expressly forbids the use of this information system for a tracing app.173 The consent of individuals was not required for the treatment of their data, and so the functioning of the system was placed under close scrutiny by the National Commission for Data Processing and Liberties (Commission nationale de l’informatique et des libertés) to ensure compliance with the law related to personal data.

69.  Secondly, a tracing app called ‘Stop Covid’ was put in place to alert its users in case of exposure to an infected person on 29 May 2020.174 It is a different information system which does not use health data gathered when testing individuals. Hence, this tracing app only works thanks to its users’ declarations. When a user gets infected, they can declare it to the app which will contact other users who crossed their path. According to the President of the Republic, the app did not function very well because only a small number of the population had downloaded it.175 After some four and a half months, by 14 October 2020, the app had only contacted a few hundred users. Recognising these failings, a new app was released on 22 October 2020 called ‘TousAntiCovid’ which relied on the same means of processing data as its predecessor.176 On 5 March 2020, 13,377,204 people had downloaded the app, 167,580 users had declared having Covid-19, and 96,419 users had been warned by the app of exposure to Covid-19.

70.  These two information systems were the first medical ones in France to reach this magnitude. It was also the first time such a wide exception to medical secrecy was implemented.177 However, both the Council of State and the Constitutional Council judged it was justified by the goal of efficiently fighting the epidemic.178 Still, litigations raised the issue of the storage of the data with regards to privacy rights (see Part VI.B below).

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors etc.

71.  To protect the elderly from the virus, visits from outsiders to care homes were forbidden. Orders from regional préfets imposed these restrictions in mid-March 2020, and they lasted until 20 April 2020.179 After this date, visits were possible for a maximum of two people at a time, subject to physical distancing. Depending on the pandemic’s development, préfets eased or tightened the right to visit elderly people in care homes through orders adopted by préfets. Also, the Minister of Health, Olivier Véran, enacted a recommendation (soft law) to elderly care homes suggesting to them that they forbid their residents from going outside.180 On 3 March 2020, families brought a claim to the judge invoking an excessive violation of the freedom of movement. The CS judged that in regard of the vaccination rate in elderly care homes, the measure was not proportionate. Recognising the urgency of the situation, the CS decided to suspend the contested recommendation.181

B.  Enforcement and compliance

1.  Enforcement

72.  Before the creation of the state of health emergency by Statute n° 2020-290, the Government created a 4th class minor offence for violations of the lockdown.182 This was then confirmed by Article L. 3136-1 PHC, as modified by Article 2 of Statute n° 2020-290 and Article 9 of Statute n° 2020-546, which provides that violations of measures enacted under the state of health emergency constitute 4th class minor offences. According to criminal law, such minor offences can be punished by a maximum fine of €750.183 In the case of recidivism within 15 days, the contravention is upgraded to the 5th class, which can be punished by a maximum fine of €1500.184 Where at least three violations occur within 30 days, this constitutes a criminal offence punishable by 6 months in prison and a fine of €3750.185 Moreover, businesses such as bars or restaurants which do not comply with the mandatory closure could be subject to an administrative closure enacted by the préfet referring to these sanctions.186

73.  Different types of agents were mobilized to enforce restrictions. Article L. 3136-1 PHC empowered police agents, soldiers, security officers of railways companies, and ship captains to conduct such enforcement.

74.  The Covid-19 crisis also saw public authorities attempt new means of enforcing the law. For instance, the Préfet in Paris chose to use drones to enforce lockdown measures and physical distancing. A claim was brought to the judiciary against this method, leading to a ruling of the Council of State on 18 May 2020.187 The decision allowed the use of drones because their use was held to be restricted and proportionate to the aim of public health protection, in pursuit of the general good. However, a problem arose regarding the treatment of data stemming from the use of drones. The judge qualified such data as personal data and, therefore, its treatment had to be provided for in a ministerial order and only after a public opinion of the National Commission for Data Processing and Liberties, and not simply brought about by an order from the Préfet. As this procedure was not followed, given that there was no ministerial order and the National Commission did not deliver a public opinion about the use of data collected by drones, the order of the Préfet was quashed.

2.  Compliance

75.  The considerable number of fines during the two national lockdowns and during the curfew suggests that compliance with these restrictions was not the best. On 11 May 2020, at the end of the lockdown which started on 17 March 2020, the Minister of Interior tweeted that ‘lockdown’ measures had been directly enforced approximately 21 million times with 1.1 million fines issued.188 During the second lockdown, from 29 October to 15 December 2020, the press reported a total of 298,000 fines and 3.2 million police checks189 Regarding compliance with the lockdown declared on 15 December 2020, at the end of January 2021 the press reported 111,000 fines for 1.418 million police checks.190 Also, on 17 September 2020, Gerald Darmanin, the Minister of Interior Affairs, declared 44,929 fines had been imposed for non-compliance with the obligation to wear a face mask.191

76.  By the end of the first lockdown in May 2020, 95% of the population declared themselves as following the stay-at-home requirement. Moreover, 97% stated they respected at least one hygiene measure recommended by the Government but only 27% respected all of them at any one time.192 A survey in July 2020 confirmed the population abided by hygiene and social distancing measures two months after the end of the lockdown.193 Concerning the second lockdown, surprisingly surveys do not corroborate the decrease in the number of fines given for violation of the stay-at-home requirement. Indeed, one week after it started on 29 October 2020, 60% of the population admitted to have infringed it at least once—double as many than after six weeks of the first lockdown.194 These results are consistent with mobile data analysis which showed that during the first lockdown people’s mobility had dropped by 67%. During the second lockdown the decrease was only 33% demonstrating indeed that people violated the law.195 It plummeted to 20% during the curfew which is poorly respected.196

V.  Social and Employment Protection Measures

A.  Social protection measures

77.  France is a welfare State in which fundamental public services such as education or health care are free of charge. Consequently, following the outbreak of the virus, the State already provided a wide array of social aid and the Covid-19 crisis did not raise the question of the cost of medications and hospitalizations for people infected with the disease. However, since the population was facing a loss of income due to restrictive measures such as lockdowns, curfews, and closures of some type of businesses, the State decided to grant additional social protection measures to the most financially impaired people. It adopted each measure distinctly in response to particular needs which were observed and/or related in the press and did not adopt an overarching or integrated Covid-19-related program of social interventions.

1.  Social assistance

78.  To recognize the work of the professions most exposed to the virus, the Rectifying Financial Statute Number 2020-473 made it possible to allocate an exceptional bonus to public sector employees particularly mobilized during the state of health emergency.197 On this legal basis, an exceptional bonus from EUR 500 to EUR 1,500 was granted to public sector employees, apprentices, and members of the armed forces working in public health facilities and military hospitals.198 This bonus was free of taxes and social contributions. It covered a period of work from 1 March to 30 April 2020. In June 2020, the bonus was extended to agents working in medical-welfare establishments as well as public shelters.199 Both bonuses were renewed for public sector employees who had worked from 1 June 2020 to 31 August 2020.200 For the rest of the public services, public entities were entitled to award a bonus of a maximum EUR 1,000 to each of their agents who saw a significant increase in their workload due to the crisis.201

79.  Different subsidies were put in place to help the poorest part of the population by vertically expanding already existing payments. This policy of emergency cash transfers started in May 2020 with an exceptional solidarity one-off payment of EUR 150 per household to people already eligible for minimal welfare payments.202 In the same manner, another exceptional subsidy of EUR 200 was granted to adults under 25 years old eligible for housing subsidy who were not students or, in case they were, had an employment contract.203 These two subsidies were not cumulative: the payment of one excluded the other. They were both renewed in November 2020 for an amount of EUR 150, increased by EUR 100 per child supported by the household.204 Moreover, registered job seekers who had worked at least 138 days in 2019 could earn an exceptional monthly bonus which could reach EUR 900 a month when no other public subsidies were available,205 provided that this bonus was due from November 2020 to November 2021.206

80.  Besides the creation of exceptional subsidies and bonuses, preexisting allowances were also extended in time. For instance, it was the case for State-funded scholarships of university students in cases where a mandatory internship was delayed due to the Covid-19 crisis, thus postponing their graduation.207 Unemployment allowances were also extended (see Part V.A.2 below).

81.  In addition, due to the closing of schools during the first lockdown (see Part IV.A.4 above), some mayors gave an exceptional subsidy or food stamps to compensate the absence of school canteens, the tariffs of which are proportionate to the families’ wealth.208 Interestingly enough, the department of Meurthe-et-Moselle decided to deliver meals directly to middle-schoolers and their brothers and sisters if they were eligible for the lowest canteen rates.209 Thus, the poorest families did not have to bear the burden of a higher price for meals at home in those departments and cities where such relief was available.

2.  Social insurance

82.  Due to lockdown, most people could not go to work. To avoid the dismissal of these employees, the State extended a mechanism of short-time working arrangements (see Part V.B.1 below).

83.  Due to the first lockdown from 16 March to 11 May 2020, administrations could not fulfill their work in due time, especially with regards to applications for social allowances, which led to a temporary extension of social benefits by Ordinance Number 2020-312 when they were meant to end between 12 March and 31 July 2020 (Article 1(II)).210 As a consequence, contracts of complementary health insurance were extended until 31 July 2020 at the same rate (Article 2) and the different types of invalidity pensions were extended for six months (Article 3). The State Medical Aid, which administrates medical fees charged to illegal immigrants, was also extended for three months for people whose rights were coming to an end between 12 March and 31 July 2020 (Article 1(IV)). The same extension of three months was renewed for these rights which were due to end between 30 October 2020 and February 2021 with the exception of invalidity pensions, which were extended for a time which depended on the situation of the beneficiary.211 The ordinance was modified in April 2020, allowing for the exceptional report of social contributions during this period of time when companies were under financial constraint (Article 4).212

84.  On another subject, regarding unemployment allowances, Ordinance Number 2020-324 opened the possibility for beneficiaries whose rights ended between 1 March and 31 May 2020 to obtain an extension.213 The modalities to calculate the length of the extension were fixed by Decree Number 2020-425 and an order.214 During the second lockdown, from 20 October to 15 December 2020, Ordinance Number 2020-1442 deployed this extension again for beneficiaries whose rights were coming to an end between 30 October 2020 and a date fixed by an order which could not exceed the end of the state of health emergency.215 Since then, every month, an order has been enacted, postponing the date of end to the following month.216

85.  Regarding paid sick leaves, one could observe both a vertical and horizontal expansion. Firstly, paid leaves were granted to healthy people in case they could not work because of an isolation measure.217 It was then extended to parents who could not work because they had a child under 16 years old put in isolation at home.218 Secondly, for people who got infected by the virus, the waiting period for the payment of sick leaves was removed.219

86.  In November 2020, during the second lockdown, from 20 October to 15 December 2020, paid sick leaves were granted to healthy people if they could not go to work because they were particularly vulnerable to Covid-19 or living with a person who was vulnerable, if they were put in isolation because they had been in contact with an infected individual, or if they had child under 16 years old at home because they were vulnerable, disabled, or put in isolation.220 In January 2021, Decree Number 2021-13 merged paid sick leaves for healthy people and people infected with Covid-19 as well as suspended the waiting period for its payment (Articles 1 and 2).221 In addition, for isolated people and sick people, sick leave could be granted with a simple online form on the social security website (Article 3) for a maximum of four days without a waiting period.222

3.  Tax relief and other social measures

87.  Any individual or company exercising an economic activity could ask the tax administration to postpone the payments of their taxes.223 It targeted small companies employing less than 250 employees and whose turnover did not exceed EUR 50 million. It first covered the months of March, April, and May 2020.224 It was then extended to cover taxes due until the 30 December 2020.225 Besides deferment of payments, the tax administration could also grant tax reliefs to companies. As for deferment, tax reliefs proceeded from an open discussion with the administration.

B.  Employment protection measures

88.  In his speech of 16 April 2020, the French President strongly asserted that the State would pay what was necessary to overcome the crisis.226 Consequently, efforts were concentrated on avoiding spates of dismissals by extending the State-funded short-time working arrangements and granting financial help to companies. The cost of all these measures was included in the Rectifying Financial Statutes for 2020 and the Financial Statute of 2021, but the measures in themselves were implemented by a plethora of ordinances, decrees, and ministerial orders. In addition, special provisions addressed the situation of businesses which had to stay closed during the epidemic, such as clubs, museums, or gyms. In the meantime, employers were requested to resort to home working as much as possible and to respect the governmental protocol in order to limit as much as possible the spread of Covid-19 within companies.

1.  Economic support for employers

89.  The main measure adopted to avoid job losses during the pandemic consisted of the extension of the short-time working arrangement (activité partielle) which consists, after an administrative authorization, of a State allowance granted to the employer when his business is temporarily closed or when the working time is reduced under the legal minimum to help him pay his employees.227 Because of the crisis, Ordinance Number 2020-346, later modified by Ordinance Number 2020-460, extended short-time working arrangements to businesses which were closed or which had incurred a significant loss of activity due to the lockdown and restrictive measures enacted by the State.228 This only covered cases where employees could not realize their work even by home working. The mandatory prior administrative authorization was replaced later by controls in order to simplify the administrative procedure. Representatives of trade unions had to be consulted and the amount of the allowance was 80% of gross wages but could not be less than the legal minimum wage (EUR 10.25/hour). It was decreased to 60% on 1 June 2020 (unless less than the minimum wage), except for some sectors and special cases which could still have 70% and 80%.229 This measure was key in sustaining both the economy and jobs.

90.  A State guarantee was issued for loans to companies for a total amount of EUR 300 billion from 16 March until 31 December 2020, then extended until 30 June 2021.230 The guarantee is charged and cannot cover the total amount of the loans. The public institution BPI France (Banque publique d'investissement) was in charge of the application of this provision. To benefit from it, a company had to be registered in France.

91.  A solidarity fund was created for small companies specifically affected by the Covid-19 crisis, like those who had to close due to the lockdown.231 The amount of aid started at EUR 1,500 up to EUR 5,000, depending on the situation of the company. The conditions to benefit from this fund mostly ensured that the aid went to Small and Medium Enterprises (SMEs), so a maximum turnover was fixed by decree.232Applicant companies also had to prove they were unable to open because of restrictive measures to fight the virus or that they suffered a loss of income. If this loss was more than EUR 1,500, the amount of the help was EUR 1,500; if it was less, the help was equal to the amount of the loss. The subsidy was then increased, depending on the sector in which the companies were intervening and on their loss. This measure was extended and ended on 30 June 2022.233 A delay for the payment of rent, electricity, water, and gas bills was granted to companies eligible to the solidarity fund during the first state of health emergency.234

92.  In addition, a fund of EUR 20 billion was created for the State to invest in companies that needed it.235 It was a State aid that had to be authorized by the European Commission, as was the case for Air France which was recapitalised for EUR 4 million in 2021.236 At the local level, some aids were given by local communities. For instance, the city of Paris allowed companies to suspend the payment of rents due to the city until 30 June 2020.237 The department of the Alpes gave EUR 5 million to a fund to help companies affected by Covid-19 restrictive measures,238 and the Ile-de-France region created a no-interest loan for SMEs.239

2.  Worker protection from dismissal and other contractual protections

93.  Employers cannot dismiss workers in short-time working arrangements for economic reasons, unless they repay the allowances the State gave during that time. For the rest of their employees, there was no modification of the employer’s freedom to dismiss.240 In case of economic dismissal, when more than 10 employees are dismissed, the company can be forced to adopt a plan to safeguard jobs as a protection for employees.241 It can happen only after the company has tried to reallocate the relevant employees.242 As such, this regime is quite protective of employees. Collective bargaining agreements can impose other obligations to companies.

94.  Regarding modifications of statutory and contractual rights, employers were entitled to request employees to use up to six of their daily paid leave days, to modify the date of a maximum of ten of their resting days, and increase their working time up to 12 hours per day if their activity was qualified as necessary to ensure the continuity of the socio-economic life of the nation.243 These measures initially applied until 31 December 2020 but they were extended until 30 June 2021.244

3.  Other worker protections

95.  Different measures were adopted for employees and the self-employed. Employees could be placed in short-time working arrangements by their employers whereas the self-employed were potentially eligible for State warrantees and the solidarity fund (see Part V.B.1 above).

96.  Entertainment workers and artists also enjoyed an extension of their unemployment allowances until 31 August 2021 if their rights were due to end between 1 March 2020 and 30 August 2021. They also enjoyed lower requirements for the reassessment of these rights when they expired on 1 September 2021.245 In addition, registered job seekers who had worked 138 days in 2019 were granted an allowance of EUR 900 a month starting from November 2020 (see Part V.A.1 above). It mostly targeted hotel and restaurant workers, seasonal workers, and artists and entertainment workers.

97.  The most affected sectors of activities were granted specific aid. For instance, regarding the tourism sector, for travel service contracts which were terminated early between 1 March and 15 September 2020, the service provider could, instead of repaying customers, give them an identical or equivalent performance or a valid credit note for 18 months. A similar mechanism was mobilized for live shows and gyms.246Another example concerns organisations managing intellectual property rights, which were allowed to disburse funding to artistic authors whose productions’ operation was deeply restricted due of the crisis.247 Finally, sectors particularly impacted by restrictive measures adopted to stop the spread of the virus (bars, clubs, gyms, etc) benefited from a higher short-time working arrangement allowance (70% instead of 60%).248

98.  The French reaction to the negative implications of the pandemic on the labor market relied mainly on the extension of short-time working arrangements. It is a worker protection but its extension was primarily intended to avoid series of dismissal. This is why it is addressed in detail in Part V.B.1 above.

4.  Health and safety

99.  Regarding the modification of paid sick leave and the removal of the waiting period for their payment, see Part V.A.2 above.

100.  Infection by Covid-19 was recognized as an occupational disease only for workers in health facilities.249

101.  Regarding the employers’ responsibility to protect their employees, the traditional legal regime provided by the Labor Code was applicable.250

102.  According to Article L 4131-1 of the Labor Code, whenever an employee can reasonably think their working conditions present an imminent and serious danger to their life or health, they can refuse to perform their work. No special legislation adapted the law to the Covid-19 crisis, but such a right could not be exercised if the employer respected governmental health recommendations.251

5.  Activation

103.  Short-time working arrangements supported by the State were extended for companies affected by measures enacted to stop the spread of the virus (see Part V.B.1 above). Moreover, the State covered the costs of professional training followed by workers put in short-time working arrangements.252

6.  Social partners

104.  Social partners have been consulted for the use of short-time working arrangements and home working. A new national interprofessional agreement was enacted on 26 November 2020 regarding home working,253 so that employees could work from home and not at the office.

7.  Other legal measures

105.  The aforementioned national interprofessional agreement on home working (see Part V.B.6 above) raised a particular awareness about the potential loss of social bond it could cause.254 Furthermore, during working hours, the employer must be able to supervise the employee in order to verify their working time,255 and the right of disconnection and the protection of private life was a topic of debate.256 Nevertheless, this must not threaten employees’ right to disconnection and their private life.257

VI.  Human Rights and Vulnerable Groups

A.  Civil liberties

106.  As noted in Part IV.A above, most public health measures implied a restriction of civil liberties. As such, curfews, lockdowns, and measures of isolation strongly restricted the freedoms of movement and of association. Litigation was brought to administrative courts and the Constitutional Council (CC). Regarding the constitutional validity of the statutes organizing the extension of the state of health emergency and its end—the first statute creating the state of health emergency was not reviewed by the CC—the CC always judged that they operated a balanced conciliation between restrictions to individual liberties and the protection of public health.258 The Council of State (CS), the head of administrative courts, which has jurisdiction to review acts enacted by the Government and public entities, also had to assess the legality of the decree adopted on 16 March 2020 introducing the first national lockdown. As with the CC, the CS considered the lockdown a justified infringement of individual liberties with respect to the protection of public health.259

107.  Unlike the lockdowns, the curfew decreed in December 2020 (Part IV.A.1 above) did not offer a possibility of derogation for a daily hour of exercise or walking within a radius of one kilometer from an individual’s home. This was contested in front of administrative courts because it deprived workers of daily exercise once their work was done. The CS judged that with respect to the evolution of the epidemic, there was no obvious and serious violation of the freedom of movement.260

108.  The restriction to the right of assembly in public spaces, restricting the use of the right to protest, was also challenged before the CS. More specifically, Decree Number 2020-663, which prohibited any gathering of more than 10 people and the organization of protests, was judged too general and too absolute with respect to the sanitary situation and to the possibilities which could lead to the safe organization of such demonstrations.261 These measures were suspended and the right to protest was restored.

109.  Closures of businesses, in particular bars, restaurants, clubs, gyms, museums, concert halls, and movie theatres restricted several liberties and, among them, freedom of expression, economic liberties, and artistic freedom. The CS recognized that these closures constituted a serious limitation of these rights and liberties, yet estimated that they were proportionate to the aim of protection of public health in light of the evolution of the epidemic in France.262 In the same logic, imposed distance learning in universities was considered a proportionate limitation of the freedoms of expression and assembly with respect to the protection of public health.263

110.  Freedom of religion was also particularly restricted, since the Government decreed the suspension of religious services of more than 20 people during the March 2020 lockdown. It was extended after the lockdown, which was contested before the CS because many other places were open again and provided services that involved large gatherings of people. The judge ruled the disposition not proportionate to the aim of the protection of public health during the phase of relaxation of public health measures in comparison to measures applicable to other similar situations.264 However, during the October 2020 lockdown, religious services were forbidden with the exception of burials within a limit of 30 people. This time, the CS ruled the measure proportionate because the epidemic was much more severe compared to May 2020.265 This decision highlights how the proportionality test conducted by the CS can lead to the cancellation of a measure and is directly linked the evolution of the pandemic. This raises a legal challenge: the judge has to base their decision on scientific facts and, therefore, determine which scientific allegations are true. In this respect, the CS justifies its decisions quite briefly and mostly refers to official figures and opinions of the scientific committee.

111.  Moreover, it should be highlighted that many legal claims were introduced through fast-track proceedings (référé-liberté), which can be used whenever individual liberties are seriously and illegally violated.266 In such a case, the judge must take temporary measures within 48 hours. To succeed, the claimant must prove the emergency of their case and that the contested measure is obviously illegal and presents a threat to their liberty. Hence, the standard of proof is higher in these kinds of proceedings than in regular ones. The drawback of the latter is their long waiting period before trial, thus motivating the use of fast-track proceedings. This type of decision or judgment is indicated by ‘ord’ (for ‘ordinance’) and should be analysed in light of its specificities.

112.  Besides legal proceedings, the State’s actions were publicly criticised. Powerful civil society organisations such as the Ligue des droits de l’Homme took a stand against what they considered to be the excessive extension of the state of health emergency and abusive civil liberties’ limitations.267 Furthermore, the Consultative National Commission on Human Rights (CNCHR) monitored the evolution of legal norms, in particular regarding the extension of the state of health emergency, the right to an education, or the protection of the most vulnerable.268 The Defender of Rights also provided independent oversight of governmental action (see Part III.G above). Some legal scholars and politicians were also very critical towards measures which they considered were not balanced enough with respect to individual liberties.269

B.  Privacy

113.  Privacy rights were at the centre of the response to fight the epidemic of Covid-19, because systems collecting personal data were used. As mentioned in Part IV.B above, the question arose whether the Préfet in Paris could use drones to police the city and enforce the lockdown.270 The CS annulled this measure because the Préfet lacked the power to order it. This case led the Prime Minister to consult the CS, which issued an advisory opinion on 13 November 2020 stating that only the legislator could judge whether the use of drones could be the right conciliation between privacy rights and public order.271 Nevertheless, the police kept using drones for surveillance in Paris, which led the same association, La Quadrature du Net, to bring another claim before the administrative courts. On 22 December 2020, the CS judged that, even if only blurred images were sent to the command centre, the rest of the data still allowed the identification of people, thus constituting personal data subject to the GDPR and French legislation related to it. The CS expressed a serious doubt regarding the legality of this restrictive measure and suspended it, since no statute, nor a ministerial decree after a public opinion of the National Commission for Data Processing and Liberties (CNIL), was passed to allow the use of drones, as was ordered by this judge in his first decision.272 Since then, a law was adopted to address this question.273 Drones can also be used in limited cases and cannot film everything, for example homes. They cannot proceed to automated treatment of the collected data. In addition to legal actions, La Quadrature du net also raised concerns regarding temperature and facial recognition systems put in place to fight Covid-19 without any action by the CNIL, which is supposed to review this kind of innovation.274

114.  Another major concern for privacy rights was the creation of information systems as mentioned in Part IV.A.9 above. Their task was to collect personal data, process it, and exchange it, if needed without the consent of individuals, in order to fight the epidemic more efficiently. This data was strictly limited to virological or serological statuses and could not be retained for more than three months after its collection. The main goal was to scrutinize the epidemic, identify potential virus strains, and contact exposed individuals to ask them to observe a strict isolation (contact tracing). Concomitantly, a tracking-app was launched, which was named ‘Stop Covid’ and then ‘TousAntiCovid’. At the beginning, the CNIL required the State to improve the information available about the application for the users.275 Later, the CNIL issued an order to make the app compliant with the GDPR and French laws regarding data protection.276 The order was not followed by any sanction because it was rectified. These information systems were the first medical ones in France to reach this magnitude and it was the first time such a wide derogation from medical secrecy was implemented.277 However, both the Council of State and the Constitutional Council judged it was justified by the goal to efficiently fight the epidemic.278

115.  The medical data was stored on a platform called ‘Health Data Hub’ which had been created in 2019.279 Data could be crossed-referenced by Health Data Hub or the National Social Insurance to provide more information about the virus. However, Microsoft hosted the platform through a subcontracting agreement which raised awareness about a possible leak of data to the United States (US) by application of Article 702 of the Foreign Intelligence Surveillance Act and of the Clarifying Lawful Overseas Use of Data Act. Hence, it led to a claim in front of the CS, which, in its ruling, insisted that the emergency made it necessary to collect and treat these data and the absence of technological alternatives. Furthermore, it highlighted that the contract submitted Microsoft to French legal requirements concerning data hosting and that there should be no concern about transfers of data to the US because of the privacy shield.280 But, one month later, the Court of Justice of the European Union (CJEU) declared the privacy shield invalid, questioning the French caselaw.281 Unsurprisingly, a new claim was brought to the CS. It stated that the CJEU did not prohibit the payment of an American company to process data on EU territory. Moreover, an amendment signed to the contract with Microsoft on 3 September 2020 stipulated the company could not process data outside the geographic area specified by the platform. Highlighting once again the urgent need for such an information system and the absence of satisfying alternatives, the CS validated the contract with Microsoft.282

116.  Besides critics regarding as potentially abusive the control of society by statistics and tracking-apps,283 the storage contract with Microsoft raised a lot of objections.284 The National Social Security even voted in a deliberation on 19 February 2021 that,285 in light of the specificity of the data, only a new platform operated by a sovereign mechanism and entirely submitted to the GDPR could perform the mission attributed to Health Data Hub. Nevertheless, in the meantime, the National Social Security still adjudicated on allowing Health Data Hub access to some data due to the strict necessity of research into and prevention of Covid-19.

117.  Later, access to public spaces such as restaurants, bars, theatres, etc, was conditioned upon having a green pass.286 It took the form of a QR code awarded to those who had been vaccinated or had had a negative test in the last 72 hours. The owners of such places had to monitor people’s passes. The only information that was transmitted was the forename, surname, date of birth, and if the pass was valid or not.287 The QR code could be uploaded into the TousAntiCovid app, and the conservation of data was validated by the CC as compatible with the right to private life and data protection.288 In the same decision, the CC estimated that the obligation for bars, restaurants, etc, to monitor the green pass was not a violation of their economic freedom. In another decision, the CC censored a bill which tried to give headmasters access to students’ medical situation with regards to vaccination and viral status because it allowed headmasters to share the information with too many people.289 Before the implementation of the green pass, the CNIL was consulted. The CNIL said that the implementation of the green pass should not be used to transmit information related to people’s health or to their private life.290 Even if it recognized that the green pass was a restriction of data protection, the CNIL stated that the Covid-19 crisis was a valid justification for it.291

C.  Gender

118.  Since the beginning of the first lockdown, women’s exposure to domestic violence has been a major concern. In order to free the voices of victims, an advertising campaign broadcasted different crisis lines whose staff was increased (see for instance the 3919 or 114). Online platforms such as ‘Arrêtons les violences’, online chats like ‘En avant Toute(s)’, or applications like ‘App’elles’ were also important channels for reports. Finally, pharmacies were integrated into an alert system where victims could go and report abuses. The Inter-Ministerial Mission for Women’s Protection Against Violence and the Fight Against Human Trafficking issued a report on July 2020 assessing the efficiency of these mechanisms.292 It took note of a significant increase of abuse reports and of police interventions. However, less women victims of domestic violence came to hospitals, putting their health at risk. Besides domestic violence, the uneven distribution of housework caused inequality for women. The High Counsel for Equality Between Women and Men raised concerns about this situation.293

119.  Paradoxically, after lockdowns, the obligation to wear a face mask in public space was perceived as a new liberty for women wanting to wear a face-covering veil. Indeed, covering one’s face in public spaces is forbidden in France since 2010.294 The epidemic thus gave an occasion for these women to dress as they wanted to.295

D.  Ethnicity and race

120.  France does not allow the collection of ethnic statistics, but the National Statistics Institutes found that the poorest Parisian suburbs suffered the most from Covid-19,296 which indicates that racial minorities are more impacted by the epidemic. In addition, Amnesty International reported that minorities were more likely to be controlled by the police during the lockdowns.297

E.  Disability

121.  As mentioned in Part V.A.2 above, invalidity pensions were extended during lockdowns. The State Secretary in charge of disabled people stressed that they should receive the same health care as people without a disability.298 There was no specific text to implement this though. It should be highlighted that disability did not justify prioritised access to vaccination (see Part IV.A.8 above). According to a survey in September 2020, 50% of disabled people felt isolated during the March 2020 lockdown, 70% declared their income insufficient, 37% declared an aggravation of their health, and 54% battled with depression.299

F.  Elderly

122.  Besides restrictive measures for visitors in homes for the elderly (see Part IV.A.10 above), some associations claimed that patients in these facilities were not taken care of at hospitals when having a Covid-19-related infection. They brought a case against what they qualified as a State failure, but the CS judged that they did not provide proof of their allegation.300 Moreover, the CS pointed out that the elderly had access to palliative care outside of hospitals and could have a derogatory right to be visited before dying when placed in care facilities. Indeed, in principle, hospital patients could not receive any visits. In another case in April 2020, claimants asked the judge to order the Prime Minister to organize systematic testing in elderly care facilities and make the use of personal protection equipment mandatory.301 Noting the shortage of both tests and equipment, the CS did not allow the claim to proceed.

123.  No arbitrary triage of patients according to their age occurred in France.

G.  Children

124.  As mentioned in Part IV.A.4 above, schools were closed from 15 March to 18 May 2020. It was reported that this exposed children to domestic abuse, deprived them of access to education, especially for those who were not adequately equipped to follow online teaching.302 These concerns were particularly relayed by the Commission nationale consultative des droits de l’homme (CNCDH) in April 2020.303 The crisis line 119 for abuse of children was always maintained, even during the March 2020 lockdown.

125.  In schools, special protocols were put in place to avoid contaminations. It entailed a physical distance of at least one metre between individuals indoors, washing one’s hands at least eight times a day, mandatory wearing of a face mask starting from primary school age, restriction of recreation which could be replaced by breaktime in class, and special organization for self-service where classes should not cross each others’ path.304

H.  Prisoners

126.  As mentioned in Part III.C above, during the first state of health emergency, Ordinance Number 2020-303 provided some derogations applicable in criminal proceedings and litigation. More specifically, according to the decree, individuals placed in temporary detention could contact their lawyers by electronic means of communication and their detention could be extended without the mandatory intervention of a judge. Pre-trial detentions were automatically extended by three months when the accused could be sentenced to more than five years in prison. The extension was two months if the potential sentence was below five years. The ordinance also authorized transfers of prisoners between prisons to fight the epidemic and remissions of sentence were facilitated in order to reduce prison population. In fact, overpopulation made it impossible to respect social distancing. Acknowledging this, visits were suspended to avoid the entry of the virus into facilities.305 The General Controller of Deprivation of Liberty Facilities highlighted in a report in June 2020 that prisoners suffered more from isolation than from the epidemic, which did not spread too much within prisons.306

I.  Non-citizens

127.  In March 2020, an ordinance extended for 90 days at first, then for 180 days, long-stay visas, residency titles, residency temporary authorisations, récépissés for residency requests, and certificates for asylum requests which had expired between 16 March and 15 May 2020.307 Illegal migrants benefitted from a three month extension of State Medical Aid, which covers their medical fees (see Part V.A.2 above).

128.  Regarding illegal immigrants, the CS judged that they could not be deported while sick because of Covid-19, but they could be detained in special centres, and, once healed, deported to their country of origin.308

J.  Indigenous peoples

129.  There is no relevant information to be reported.

Estelle Chambas, Université Paris II Panthéon-Assas

Prof. Thomas Perroud, Université Paris II Panthéon-Assas


1  F Hamon and M Troper, Droit Constitutionnel (40th edn LGDJ 2019) 469–472.

2  Constitution of the Fifth Republic of France [hereinafter Constitution], art 3.

3  Constitution, arts 5, 24.

4  Constitution, arts 5–23.

5  Constitution, arts 24–33

6  Constitution, arts 64–66

7  Constitution, art 8.

8  Constitution, art 9.

9  Constitution, art 20; see J Gicquel and J-É Gicquel, Droit Constitutionnel et Institutions Politiques (34th edn LGDJ 2020) 568–570.

10  Constitution, arts 37, 34.

11  Constitution, art 16.

12  F Hamon and M Troper, Droit Constitutionnel (40th edn LGDJ 2019) 609–615.

13  Constitution, art 24.

14  Constitution, arts 61–62.

15  Constitution, art 72.

16  Public Health Code, L. 1431-1–L. 1431-4.

17  See Part I, para 2 above.

18  Emergency Statute n°2020-290 to deal with the covid-19 epidemic (Loi d’urgence pour faire face à l’épidémie du Covid-19) (23 March 2020).

19  For instance, freedom of movement, freedom of speech, privacy rights, and the right of assembly were restricted, see International Covenant on Civil and Political Rights, arts 7, 12, 19, 17, 21; Convention for the Protection of Human Rights and Fundamental Freedoms, arts 10, 8, 11.

20  O Véran, Ministrer of Health, ‘Statement on measures to fight against the coronavirus epidemic’ (4 March 2020).

21  There is no transcript publicly available.

22  Constitution, art 37.

24  Public Health Code, art L. 3131-13.

27  Public Health Code, arts L. 3131-15, L. 3131-17.

28  Public Health Code, L. 3131-16.

29  B Bonnet, ‘Le Conseil d’État et le covid-19. Quand le Conseil d’État porte l’État de droit sur ses épaules…’ (2020) 22 La Semaine juridique — Édition Générale 656.

30  Statute n° 2020-546 extending the state of health emergency (Loi prorogeant l’état d’urgence sanitaire) (11 May 2020).

31  Statute n° 2020-856 organizing the end of the state of health emergency (Loi organisation la fin de l’état d’urgence sanitaire) (9 July 2020).

33  Statute n° 2020-1379 authorizing the extension of the state of health emergency and establishing various measures for managing the health crisis (Loi autorisant la prorogation de l’état d’urgence sanitaire et portant diverses mesures de gestion de la crise sanitaire) (14 November 2020).

34  Statute n° 2021-160 extending the state of health emergency (Loi prorogeant l’état d’urgence sanitaire) (15 February 2021).

35  Constitution, art 38.

36  Ibid.

37  Ordinance n° 2020-391 (1 April 2020).

38  Ordinance n° 2020-323 (25 March 2020); Ordinance n° 2020-317 (25 March 2020); Ordinance n° 2020-346 (27 March 2020).

41  Dame Lamotte (17 February 1950) n°86949 (Council of State [hereinafter CS]), concl. J Delvolvé.

42  Force 5 (28 May 2020) QPC n°2020-843 (Constitutional Council [hereinafter CC]).

43  F Savonitto, ‘Saisir ou ne pas saisir le Conseil constitutionnel ? Préserver la loi, telle est la réponse présidentielle’ (2020) 41 Actualité juridique du droit administratif 2359.

45  Préfet de la Guadeloupe (ord.) (27 March 2020) n° 2000294 (Administrative Tribunal of Guadeloupe); Préfet du Calvados (ord.) (31 March 2020) n° 20000711 (Administrative Tribunal of Caen); (7 April 2020) n° 2003861 (Administrative Tribunal of Montreuil); Ligue des droits de l’homme (ord.) (22 April 2020) n° 2001782 (Administrative Tribunal of Nice).

46  See Government of France, ‘Coronavirus Information’ (accessed 8 March 2021).

48  Public Health Code, L. 3131-13.

49  Ibid.

50  Law Committee (National Assembly), Report n°3502 (2 November 2020).

51  See Part.II.C.

52  Constitution, art 45(2)–(4).

53  Force 5 (28 May 2020) QPC n°2020-843 (CC).

54  With the exception of Guyana and Mayotte, see Statute n° 2020-856 organizing the end of the state of health emergency (9 July 2020), art 2.

56  Ibid, art 1(3).

58  See O Beaud and C Guérin-Bargues, ‘L’état d’urgence sanitaire : était-il judicieux de créer un nouveau régime d’exception ?’ (2020) 16 Recueil Dalloz 891; for an opposite opinion, see X Dupré de Boulois, ‘Coronavirus — Éloge d’un état d’urgence sanitaire en « co-construction » CSP, art. L. 3131-12 et s.’ (2020) 20–21 La Semaine juridique – Édition Générale 622.

60  See Heyriès (28 June 1918) n° 63412 (CS); Dames Dol et Laurent (28 February 1919) n°61593 (CS).

61  É Marcovici, ‘L’épidémie de Covid-19, une crise sanitaire symptomatique de la crise de la fonction publique’ (November 2020) 11 Revue droit administratif 15.

62  J-P Derosier, G Toulemonde, ‘Le Parlement français et la pandémie : un Parlement sous assistance respiratoire’ (2020) in Le Parlement au temps du coronavirus (Étude de la Fondation Robert Schuman) 5.

63  Ibid 6.

64  E Lemaire, ‘Le Parlement face à la crise du Covid-19 (1/2)’ Jus politicum blog (2 April 2020).

65  F Mélin-Soucramanien, ‘L’Assemblée nationale aux temps de la pandémie de covid 19. Si le grain ne meurt…’ (2020) 4 Revue française de droit administratif 623.

67  Constitution, art 61(2).

68  Constitution, art 61-1.

72  P Beaudoin, ‘Effets du coronavirus sur la procédure civile en Europe: droit comparé’ (2020) 638 Revue de l’Union européenne 304.

75  Ibid.

76  Ordinance n° 2020-303, art 9.

78  Ordinance n° 2020-303, art 7.

79  Ordinance n° 2020-304, art 8.

80  Ordinance n° 2020-303, art 13.

81  G Thierry, ‘Le confinement, crash test de la transition numérique de la justice’ (2020) 10 Dalloz actualité.

83  M. Krzystof B. (15 January 2021) QPC n°2020-872 (CC); Association des avocats pénalistes et autres (ord.) (27 November 2020) n°446712, 446724, 446728, 446736, 446816 (CS).

84  A Jacquin, ‘L’État d’urgence sanitaire ou l’État de droit mutilé’ (2020) 4 Actualité juridique — Pénal (AJ Pénal) 191.

85  Mme Patricia W. (17 June 2020) QPC n°2020-850 (CC); M. Daniel D. et autres (17 June 2020) QPC n°2020-849 (CC).

86  The Council was seized by the President of the Republic, see Loi prorogeant l’état d’urgence sanitaire et complétant ses dispositions (11 May 2020) DC n°2020-800 (CC).

87  Loi prorogeant l’état d’urgence sanitaire et complétant ses dispositions (11 May 2020) DC n°2020-800 (CC).

89  Ordinance n°20202-390 (1 April 2020); Decree n°2020-642 (27 May 2020).

90  Decree n°2020-663 (31 May 2020).

93  Public Health Code, L. 3131-13, para 1.

94  Public Health Code, L. 3131-13, para 3.

95  Scientific Committee, ‘Opinions of the Covid-19 Scientific Council and its internal regulations, (accessed 8 March 2021).

97  É Girard, ‘Experts et argent. 118.000 euros de MSD, 116.000 euros de Roche : faut-il s’inquiéter des liens entre labos et conseils scientifiques ?Marianne (3 April 2020); C Perrone, Y a-t-il une erreur qu’ils n’ont pas commise? (Albin Michel 2020).

98  J Chevalier, ‘Expertise scientifque et décision politique’ (2020) 5 Revue de droit sanitaire et social 831.

99  CADA, ‘What is CADA?’ (accessed 8 March 2021).

100  Constitution, art 71-1.

101  related to the Defender of rights, see Organic statute n° 2011-333 (29 March 2011), art 2.

102  Organic statute n°2011-333 (29 March 2011), art 24–36.

103  Defender of rights, ‘Reports of the Defender of rights’ (accessed 8 March 2021).

105  Société des films Lutétia (18 December 1959) n°36385 36428 (CS).

106  Syndicat des jeunes médecins (ord.) (22 March 2020) n°439674 (CS).

107  Préfet de la Guadeloupe (ord.) (27 March 2020) n° 2000294 (Administrative Tribunal of Guadeloupe).

108  Préfet du Calvados (ord.) (31 March 2020) n° 20000711 (Administrative Tribunal of Caen); (7 April 2020) n° 2003861 (Administrative Tribunal of Montreuil).

109  Commune de Sceaux (17 April 2020) n°440057 (CS).

110  E Macron, Speech to French People (14 June 2020).

111  Decree n°2020-260 (16 March 2020).

112  Decree n°2020-293 (23 March 2020).

113  Ministry of Health, TousAntiCovid (2020).

114 Commune de Sceaux (17 April 2020) n°440057 (CS).

115  Ligue des droits de l’homme (ord.) (22 April 2020) n° 2001782 (Administrative Tribunal of Nice).

116  Syndicat des jeunes médecins (ord.) (22 March 2020) n°439674 (CS).

117  Decree n°2020-1257 (14 October 2020).

118  Decree n°2020-1262 (16 October 2020).

119  Prefectoral order n° 2020-00863 (17 October 2020).

120  Decree n°2020-1310 (29 October 2020), art 4.

121  This was provided by a modification of Decree n°2020-1310 (29 October 2020) by Decree n°2020-1582 (14 December 2020).

123  Prime Minister, ‘Instruction n°6149/SG’ (18 March 2020).

125  Decree n° 2020-293 (23 March 2020), arts 4, 5, 6.

126  Decree n°2020-548 (11 May 2020), art 3.

127  Decree n°2020-548 (11 May 2020), arts 3, 4, 5.

128  Decree n°2020-663 (31 May 2020), arts 5–21.

129  Decree n°2020-860 (10 July 2020), art 6.

130  Decree n°2020-860 (10 July 2020), art 10.

131  See Decree n°2020-1310 (29 October 2020), arts 6, 11, 14, annex 2ter.

132  Decree n°2020-293 (23 March 2020), art 7; Decree n°2020-548 (11 May 2020), art 7; Decree n°2020-663 (31 May 2020), art 3.

133  Decree n°2020-860 (10 July 2020), art 3; Decree n°2020-1262 (16 October 2020), art 3.

134  Decree n°2020-1310 (29 October 2020), art 3.

138  Decree n°2020-293 (23 March 2020), art 8.

139  General code of local entities, art L. 2122-24; Public Health Code, art L. 3131-1.

140  Decree n°2020-548 (11 May 2020), art 9.

141  Decree n°2020-663 (31 May 2020), art 46.

143  Fédération nationale des marchés de France (1 April 2020) n°439762 (CS).

144  Sté Kinoux’s hôtel restaurant (ord.) (3 June 2020) n°440759 (CS).

145  (ord.) (7 April 2020) n°2001647 (Administrative Tribunal of Montpellier).

146  See Decree n°2020-663 (31 May 2020), arts 27–47; Decree n°2020-860 (10 July 2020), arts 27–46.

147  Not publicly available.

149  Decree n°2020-1310 (29 October 2020), arts 37–46; the list of the shops which could open is fixed by art. 37.

152  Decree n°2020-548 (11 May 2020), art 12.

153  Decree n°2020-663 (31 May 2020), art 33.

154  Decree n°2020-663 (31 May 2020), art 34.

155  Decree n°2020-293 (23 March 2020), art 2; Decree n°2020-548 (11 May 2020), art 1; Decree n°2020-860 (10 July 2020), art 1; Decree n° 2020-1262 (16 October 2020), art 1; Decree n°2020-1310 (29 October 2020), art 1.

156  Decree n°2020-247 (13 March 2020), art 1; then Decree n° 2020-293 (23 March 2020), art 12; which was abrogated by Decree n°2020-545 (11 May 2020), art 26.

157  Decree n°2020-545 (11 May 2020), arts 5, 3, 4, 10.

158  giving this power to Préfets of departments see Decree n°2020-944 (30 July 2020), art 1.

160  Commune de Sceaux (ord.) (17 April 2020) n°440057 (CS).

161  Decree n°2020-860 (10 July 2020), art 1(2).

162  Ministre des solidarités et de la santé v Mr. D. (ord.) (6 September 2020) n°443750 (CS).

163  Mrs. A. (ord.) (14 September 2020) n°443904 (CS).

164  Public Health Code, art L. 3131-17, para II.

165  Constitution, art 66 provides: ‘No one shall be arbitrarily detained. The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute.’

169  Ordinance (7 January 2021) n°2100005 (Administrative Tribunal of Châlons-en-Champagne).

170  Robin des lois (ord.) (5 February 2021) Case n°449081 (CS), the decision can be downloaded on this official website.

171  Statute n° 2020-546 (11 May 2020), art 11; Decree n° 2020-551 (12 May 2020).

172  Decree n°2020-551 (12 May 2020), art 1(I).

173  Ibid, art 11(II).

174  Created by Decree n° 2020-650 (29 May 2020).

175  For this declaration see President Emmanuel Macron, ‘COVID-19: the interview with President Emmanuel Macron’ (14 October 2020).

176  See National Commission for Data Processing and Liberties, ‘"TousAntiCovid": the CNIL reviews the evolution of the "StopCovid" application’ (23 October 2020).

178  Advice on a bill extending the state of health emergency and completing its provisions (adv.) (4 May 2020) n°400104 (CS); Law extending the state of health emergency and completing its provisions (11 May 2020) decision n°2020-800 DC (CC).

179  See for instance Préfet of Corsica, Order n2B-2020-03-12 (12 March 2020).

180  The recommendation is not publicly available.

181  N°449759 (Ord.) (3 March 2021) (CS).

182  Decree n° 2020-264 (17 March 2020).

183  Criminal Code, art L. 131-13(4).

184  Criminal Code, art L. 131-13(4).

185  Criminal Code, art L. 131-8.

186  See for instance Order n°2020-00863 setting restrictions for Paris (17 October 2020).

187  Association la Quadrature du net (ord.) and Ligue des droits de l’homme (ord.) (18 May 2020) n°440442 and 440445 (CS).

188  Minister of Interior, Tweet (11 May 2020).

189  J Chevalier, ‘298.000 amendes dressées pendant le deuxième confinement’ BFM TV (Online, 16 December 2020).

194  IFOP, Étude réalisée par Ifop pour Consolab (9 November 2020).

195  E Valdano, J Lee, S Rubrichi et al, Mobility during the first week of the second lockdown in France, report #22 (12 November 2020).

196  C Hecketsweiler, ‘Le couvre-feu n’a pas limité les déplacements des Français autant qu’espéréLe Monde (16 February 2021).

197  Rectifying Financial Statute No 2020-473 for 2020 (Loi de finances rectificative pour 2020) (25 April 2020), art 11.

206  Decree No 2020-1785 (30 December 2020), art 1.

208  For instance, see the case of Paris: A Hidalgo, ‘Tweet of 9 April 2020’ Twitter (Online, 9 April 2020).

209  J D Lesay, ‘Health crisis: in the absence of school canteens, communities alongside modest students’ Localtis (Online, 9 April 2020).

222  National Health Insurance (Social Security), ‘Request for work stop pending the results of a Covid test: opening of a teleservice’ (15 January 2021).

226  Presidency, ‘Address to the French’ (16 March 2020).

227  Labor Code, art L 5122-1 to L 5122-5.

230  Rectifying Financial Statute No 2020-289 (Loi de finances rectificative) (23 March 2020); modified by Financial Statute for 2021 No 2020-1721 (29 December 2020).

235  Rectifying Financial Statute No 2020-473 (Loi de finances rectificative) (25 April 2020).

237  City of Paris, Covid-19: aid for Parisian businesses (1 February 2021).

238  Department of the Alpes-Maritimes, Measures for businesses (2020).

240  Minister of Economic Affairs and Finance, Instruction No 2009/07 (25 March 2009).

241  Labour code, art L 1233-24-1.

242  Labour code, art L 1233-4.

250  Labor Code, arts L 4741-1 to L 4741-18.

251  These recommendations are listed on the official Government website, see Government, ‘Information Coronavirus’ (accessed 12 October 2021).

254  L Mallekh, ‘Will the coronavirus kill the social bond at work?’ Les Echos (Online, 18 May 2020).

256  A Giscard d’Estaing, ‘Telework and coronavirus: “zoom” on the right to disconnect in France’, Collège de droit Sorbonne (18 June 2021).

257  CFDT, ‘National interprofessional agreement for a successful use of smart working’ (26 November 2020); nowadays, the right to disconnection is codified in Labour Code, art L 2242-17.

258  Statute extending the state of health emergency Decision N°2020-800 DC (11 May 2020) (Constitutional Council); Statute organizing the end of the state of health emergency Decision N°2020-803 DC (9 July 2020) (Constitutional Council); Statute extending the state of health emergency Decision N°2020-808 DC (13 November 2020) (Constitutional Council).

259  Decisions N° 439800, 439818 and, 439855 (ord) (22 December 2020) (Council of State).

260  Mr A.. D… and Mr B.. C… Decision N°448029 (7 January 2021) (Council of State).

261  Decisions N°440846, 440856 and, 441015 (ord) (13 June 2020) (Council of State).

263  Decision N°447015 (ord) (10 December 2020) (Council of State).

265  Association Civitas N°445825 (7 November 2020) (Council of State).

266  Administrative Justice Code, art L 521-2.

267  Ligue des droits de l’homme, ‘Vigilance to be maintained in a prolonged state of emergency’ (12 May 2020).

268  Consultative National Commission on Human Rights, Covid-19 et droits de l’Homme (28 January 2021).

269  For a legal scholar see: P Cassia, ‘Health and safety disasters’, Le blog de Paul Cassia (3 November 2020); for a politician see: J-L Mélenchon, ‘Covid-19 : l’engrenage’ (2020).

270  Association la Quadrature du net and Ligue des droits de l’homme N°440442 and 440445 (18 May 2020) (Council of State).

271  Advice regarding the use of airborne image pickup equipment by public authorities N°401214 (13 November 2020) (Council of State).

272  La Quadrature du Net N°446155 (22 December 2020) (Council of State).

274  See La quadrature du net, ‘Surveillance’ (accessed 7 September 2022).

275  Deliberation No 2020-056 (National Commission for Data Processing and Liberties) (25 May 2020).

276  Decision No MED-2020-015 (National Commission for Data Processing and Liberties) (15 July 2020).

278  Advice on a bill extending the state of health emergency and completing its provisions N°400104 (4 May 2020); Law extending the state of health emergency and completing its provisions Decision N°2020-800 DC (11 May 2020) (Constitutional Council).

280  Plateforme Health Data Hub N°4400916 (19 June 2020) (Council of State).

281  Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems C-311/18 (16 July 2020) (Court of Justice of the European Union).

282  Conseil National du logiciel libre N°444937 (13 October 2020) (Council of State).

283  A Basdevant, ‘Covid-19: a new era of the control over individuals’ (2020) 1 Revue pratique de la prospective et de l’innovation 2.

284  M Untersinger, ‘Health data: the Health Data Hub platform survives the Council of State again’ Le Monde (Online, 14 October 2020).

285  The deliberation is not supposed to be released but its content was disclosed in ak, see @interchu, ‘Tweet’ (accessed 7 September 2022).

287  J Guérit, ‘Health pass: is our personal data safe?’ La Croix (Online, 13 August 2021).

288  Decision No 2021-824 DC (5 August 2021) (Constitutional Council).

289  Decision No 2021-828 DC (9 November 2021) (Constitutional Council).

290  Deliberation No 2021-054 (National Commission for Data Processing and Liberties) (12 May 2021).

291  Deliberation No 2021-054 (National Commission for Data Processing and Liberties) (12 May 2021).

295  L Carayon and J Mattiussi, ‘Women in crisis: Impacts of health measures on women's rights’ (2020) Revue de droit sanitaire et social 896.

296  T Allard, V Bayardin, and E Mosny, ‘Île-de-France, region most affected by increased mortality during confinement’ 188 INSEE Analyses Île-de-France (30 June 2020).

298  S Cluzel, ‘Public speech’ (30 October 2020).

299  Observatoire de l’emploi et du handicap, ‘How did people with disabilities experience the Covid-19 pandemic in 2020’ (March 2021).

300  Association Coronavictimes N°439910 (15 April 2020) (Council of State).

301  L’Union nationale des sydndicats FO Santé privée N°440002 (15 April 2020) (Council of State).

302  CNCHR, ‘Letter from the Observatory N°2’ (15 April 2020).

303  CNCHR, ‘Letter from the Observatory N°2’ (15 April 2020).

304  See Decree N°2020-1310 (29 October 2020); Decree N°2021-99 (30 January 2021); and the French Republic, ‘Service-Public.fr’ (accessed 7 September 2022).

305  A Hazan, ‘Les droits fondamentaux des personnes détenues à l’épreuve de la crise sanitaire’ (2020) Actualité juridique droit pénal 200.

308  Avocats pour la défense des droits des étrangers N°440255 (7 May 2020) (Council of State).