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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, 2021. All Rights Reserved.date: 22 September 2021

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


© 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.

DOI: 10.1093/law-occ19/e9.013.9

Except where the text indicates the contrary, the law is as it stood on: 08 March 2021

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 favor 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 Fuindamental 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 favor 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 behavior 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’s 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 a 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 centers, 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.

1.  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

71.  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

72.  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.

73.  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

74.  The considerable number of fines during the two national lockdowns and during the curfew suggests that compliance with these retrictions 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

75.  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

Estelle Chambas, Université Paris II Panthéon-Assas

Pr. Thomas Perroud, Université Paris II Panthéon-Assas

Footnotes:

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).