the Constitutional Council, seized by the government and three parliamentary groups after the adoption of the health law on July 25, 2021, issued Thursday August 5, 2021 its decision on the measures contested by the opposition. The Wise Men have validated the health pass system and the compulsory vaccination of caregivers, but censored the early termination of fixed-term contracts and the compulsory isolation of people positive for Covid-19. Jean-Philippe Derosier, constitutional expert and professor of public law at the University of Lille, reacts to the decision of the Constitutional Council.
What do you think of the decision of the Constitutional Council?
The Council privileged the constitutional value of health protection over the other constitutionally guaranteed freedoms which were called into question, in particular the freedom to come and go. He nevertheless set limits to what can be done, but censorship remains punctual.
Were you surprised by the decision of the Constitutional Council?
No, overall I expected it. It is a decision that is part of the jurisprudential movement of the health crisis, which began in March 2020 with the first law relating to the epidemic. I did not necessarily expect the censorship of compulsory isolation because it is a measure that had been validated by the Council before, but it is a good thing because it is a binding measure. What is censored here is the control of solitary confinement by the administrative authorities, while detention is the responsibility of the judiciary.
The most contested measure on the left was the early termination of fixed-term contracts, censored by the Wise Men …
They have given precedence to the principle of equality. The law provided for breaking a CDD or an interim contract for lack of health pass presented by the employee and to suspend a CDI. However, CDD and CDI are different situations but the health risk is the same, so there is no reason to apply different measures. Fixed-term contracts may be suspended for lack of a password, like permanent contracts.
Can new appeals against this law still arise, at European level for example?
At this stage no because the law will be promulgated. And it is necessary to have exhausted all the voices of internal appeals before seizing the European authorities and nobody formulated other appeals. This is unlikely to happen.
The Constitutional Council validated these measures until November 15, 2021, what will happen next?
The legislator will have to intervene again to make new provisions if the health situation still requires it, and the Council may be called upon again.
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