Professor of public law at the University of Paris-Nanterre, Olivier Dord is a specialist in constitutional law. It analyzes for West France the challenges of long-awaited decision of the Constitutional Council concerning the health law, which provides, among other things, for the compulsory isolation of patients, extension of the health pass and compulsory vaccination for certain professions.
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the Constitutional Council this Thursday, June 5, will announce its decision on the health bill. In general, how is the examination of the measures carried out?
The procedure begins with the filing of the referral to the Constitutional Council. There, there were four different referrals, including one by Jean Castex as he had undertaken to do. In fact, as the referral had been announced during the parliamentary debates on this law, the Constitutional Council had already started its work within the framework of the constitutional watch.
It is then up to the Wise Men to analyze the legal questions which arise in terms of the constitutionality of the various provisions. After work by the rapporteur who draws up a draft decision, the Constitutional Council meets with all the members in assembly to adopt the decision.
Is the whole law studied or just certain points?
The rapporteur studies the referrals to see what specific questions are put to him. The Constitutional Council therefore studies the points raised by the people who have lodged a referral.
But the Constitutional Council can also raise certain points. It is not limited by the complaints raised by the applicants because the whole of the law is referred and not only the contested articles. The Constitutional Council can therefore automatically raise the constitutionality of a given question.
Can the entire health law be declared contrary to the Constitution?
In theory yes, but in this specific case there is absolutely no risk. For example on the question of the health pass in itself, it is in accordance with the Constitution. The Constitutional Council has already ruled in a decision of May 2021 about the law of exit from the state of emergency. The principle of the health pass is constitutional. Everything will be done on the extent of the health pass, and on the obligation of vaccination.
Do partial censures seem possible to you?
Yes, there could be censorship, but rather partial, one-off censorship. They would relate to the proportionality between the infringement of rights, the freedom of individuals and protection against the severity of the coronavirus. This question will be central.
The control of the infringement of the great freedoms is carried out within the framework of a grid of proportionality. For the legislative provision to be in conformity with the Constitution, it must be adequate, necessary and proportional to the aim sought by the legislator. It is on this that the Constitutional Council will carry its control.
The judge can also enter reservations of interpretation by saying how a measure should be implemented.
Can the Constitutional Council rely on the concept of “freedom”, a value put forward by the many demonstrators against this law ?
The definition of freedom given in article 4 of the Declaration of the rights of man and of the citizen is much more subtle than that which can be heard in these manifestations.
“Freedom consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of each man has no limits except those which ensure to other members of society the enjoyment of these same rights”, affirms the text.
That is to say that freedom does not consist in doing what you want but in doing what you want without harming others. However, walking without a mask, without a vaccine or without having been tested in an enclosed area obviously infringes on the freedom of others not to be contaminated, for example. This definition rather justifies the constitutionality of the health pass.
What provisions could be censored?
It is difficult to say which provisions are going to be censored. Many of the provisions wanted by the President in his speech on July 12 have been watered down by Parliament. The latter played an important role and showed that he was not just a recording chamber.
Parliament rounded some angles as on the question, which no longer exists in the law, of the dry dismissal of employees or public officials who could not present a health pass.
We have also seen the same mechanism on the fines imposed on restaurateurs who do not enforce the health pass. The bill provided for a huge fine, which was disproportionate and which was revised downwards by parliamentarians, in a sense more in line with the Constitution.
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Do you find any provisions incompatible with the Constitution?
I don’t think there will be a lot of censorship. I may see a limit in the list of professions subject to compulsory vaccination. This issue will be very closely monitored.
I do not expect censorship on the principle if it is strongly justified: the Constitutional Council should accept it because it is limited to certain categories of people in contact with vulnerable people.
On the other hand, will the list of professions concerned be too long for the Constitutional Council? The institution will watch in a finicky way the people who will have to undergo it. We can ask ourselves the question of people who intervene very occasionally with the elderly or in EHPAD for example. Whether psychologists who work with older people need to be vaccinated can be discussed.
I also wonder about access to outdoor terraces of bars and restaurants. Is the health pass really essential in these places?
What do you think of the possibility of a health pass in shopping centers ?
Shopping centers pose a particular problem, but one that has already been partially resolved by the legislator. Access may be subject to a health pass, but it is the Prefect who will have to make this decision for shopping centers of more than 20,000 m².
This will be taken into account if the mall is the primary place for shopping in a territory. The whole principle of proportionality will be studied. The Constitutional Council will have to make lace, by checking the planned assumptions, without going so far as to list all the supermarkets in France.
Some jurists criticize compulsory isolation …
There is an obligation but it is very well equipped. If we read the text of the law, there will be an obligation to provide information, a possibility of going out to go shopping on certain times, a possibility of entering the prefect to arrange the isolation hours but also a possibility of entering the judge. freedoms and detention to have their situation examined.
All these protections are more in line with the Constitution, in my opinion, especially since this measure is limited in time. But perhaps the Constitutional Council will consider that there are not yet enough guarantees.
The Defender of Rights had mentioned the importance that these measures remain limited in time. Will this point be scrutinized by the Constitutional Council?
Yes, this is a point on which the Constitutional Council will be vigilant. As the text is written, the provisions are limited in time. They take place until November 15, when there is a review clause. By then there will be a return to Parliament on these issues.
It is very clear in the text anyway that these obligations are linked to the persistence of the health threat, it is repeated several times. So as soon as the health situation improves, these measures will no longer be proportionate to the situation.
Has the Constitutional Council been severe since the start of the epidemic?
You can’t say he was very hard. He quite widely accepted the measures taken by the legislator to counter the effects of the pandemic while at the same time sanctioning certain provisions which went too far.
The Constitutional Council has left the government and Parliament a fairly wide margin of appreciation in the fight against the epidemic, while calling for safeguards in terms of personal data protection or by reducing certain elements. But it is at the margin.
This is mainly due to the fact that the health emergency regime is not defined in the Constitution. But could he do otherwise? It is difficult to see the Constitutional Council censoring everything in such a context.
What will happen after the decision is rendered? In the event of censorship, can the government file an appeal?
In the event that the Constitutional Council declares certain provisions of the text unconstitutional, the law will be promulgated, amputated by the provisions deemed unconstitutional.
In this case, the government would not be able to pass a new law before October, the start of the parliamentary session.. Unless the President asks for an extraordinary session and reconvenes Parliament during the summer.
Moreover, future decisions of the Constitutional Council are not impossible. Even once the law is applied, there is the possibility of challenging the provisions not yet studied through a priority question of constitutionality.
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