Decision

Decision no. 2020-808 DC of 13 November 2020

Law authorising the extension of the public health state of emergency and providing several measures for managing the public health crisis

On 7 November 2020, the Constitutional Council, in the conditions provided for in the second section of Article 61 of the Constitution, received a referral to review the law authorising the extension of the public health state of emergency and providing several measures for managing the public health crisis, under no 2020-808 DC, by Valérie RABAULT, Jean-Luc MÉLENCHON, André CHASSAIGNE, Joël AVIRAGNET, Marie-Noëlle BATTISTEL, Gisèle BIÉMOURET, Jean-Louis BRICOUT, Alain DAVID, Laurence DUMONT, Olivier FAURE, Guillaume GAROT, David HABIB, Christian HUTIN, Chantal JOURDAN, Régis JUANICO, Marietta KARAMANLI, Jérôme LAMBERT, Serge LETCHIMY, Josette MANIN, Philippe NAILLET, George PAU-LANGEVIN, Christine PIRES BEAUNE, Dominique POTIER, Claudia ROUAUX, Hervé SAULIGNAC, Sylvie TOLMONT, Cécile UNTERMAIER, Hélène VAINQUEUR-CHRISTOPHE, Boris VALLAUD, Michèle VICTORY, Gérard LESEUL, Isabelle SANTIAGO, Clémentine AUTAIN, Ugo BERNALICIS, Éric COQUEREL, Alexis CORBIÈRE, Caroline FIAT, Bastien LACHAUD, Michel LARIVE, Danièle OBONO, Mathilde PANOT, Loïc PRUD'HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Muriel RESSIGUIER, Sabine RUBIN, François RUFFIN, Bénédicte TAURINE, Alain BRUNEEL, Marie-George BUFFET, Pierre DHARRÉVILLE, Jean-Paul DUFRÈGNE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Stéphane PEU, Fabien ROUSSEL, Hubert WULFRANC, Karine LEBON, Manuéla KÉCLARD-MONDÉSIR, Moetai BROTHERSON, Jean-Philippe NILOR, Jean-Félix ACQUAVIVA, Bertrand PANCHER, Charles de COURSON, Benoît SIMIAN, Jennifer de TEMMERMAN, Jean-Michel CLÉMENT and Frédérique DUMAS, Members of Parliament.

It also received a referral on the same day from Patrick KANNER, Maurice ANTISTE, Viviane ARTIGALAS, David ASSOULINE, Joël BIGOT, Florence BLATRIX-CONTAT, Nicole BONNEFOY, Hussein BOURGI, Isabelle BRIQUET, Rémi CARDON, Marie-Arlette CARLOTTI, Catherine CONCONNE, Hélène CONWAY-MOURET, Thierry COZIC, Michel DAGBERT, Marie-Pierre de la GONTRIE, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Vincent ÉBLÉ, Frédérique ESPAGNAC, Rémi FÉRAUD, Corinne FÉRET, Jean-Luc FICHET, Martine FILLEUL, Hervé GILLÉ, Laurence HARRIBEY, Jean-Michel HOULLEGATTE, Olivier JACQUIN, Victoire JASMIN, Éric JEANSANNETAS, Bernard JOMIER, Gisèle JOURDA, Éric KERROUCHE, Annie LE HOUEROU, Jean-Yves LECONTE, Claudine LEPAGE, Jean-Jacques LOZACH, Monique LUBIN, Victorin LUREL, Didier MARIE, Michelle MEUNIER, Jean-Jacques MICHAU, Marie-Pierre MONIER, Sébastien PLA, Émilienne POUMIROL, Angèle PRÉVILLE, Claude RAYNAL, Christian REDON-SARRAZY, Sylvie ROBERT, Gilbert ROGER, Laurence ROSSIGNOL, Lucien STANZIONE, Jean-Pierre SUEUR, Rachid TEMAL, Jean-Claude TISSOT, Jean-Marc TODESCHINI, Mickaël VALLET, André VALLINI, Sabine VAN HEGHE and Yannick VAUGRENARD, Senators.

On 9 November 2020, the Prime Minister asked the Constitutional Council to rule according to the emergency procedure provided for in the third section of Article 61 of the Constitution.

Having regard to the following texts:

  • the Constitution;
  • Ordinance No 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
  • Act No 2020-290 of 23 March 2020 emergency measures for responding to the Covid-19 epidemic;
  • Act No 2020-546 of 11 May 2020 extending the public health state of emergency and rounding out its provisions;
  • Act No 2020-734 of 17 June 2020 relating to various provisions linked to the public health crisis, to other emergency measures, as well as to the withdrawal of the United Kingdom from the European Union;
  • Act No 2020-856 of 9 July 2020 organising the end of the public health state of emergency;
  • the Public Health Code;
  • Decree No 2020-1257 of 14 October 2020 declaring the public health state of emergency;
  • Constitutional Council Decision No 2020-800 DC of 11 May 2020

Having regard to the observations of the Government, registered on 10 November 2020;
And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

  1. The applicant Members of Parliament and Senators refer the law authorising the extension of the public health state of emergency and providing several measures for managing the public health crisis. They oppose its Article 1, as well as certain provisions of its Articles 2 and 10. The applicant Members of Parliament also oppose certain provisions of its Article 5.
  • Concerning Article 1:
  1. Article 1 of the law referred for review extends the aforementioned public health state of emergency declared by decree on 14 October 2020 until 16 February 2021.

  2. The applicant Members of Parliament and Senators question the constitutionality of this extension. According to the applicant Members of Parliament, this would allow measures to be implemented that, in relation to public health needs, pose a disproportionate infringement on rights and freedoms guaranteed by the Constitution, including the freedom of movement, the right to personal privacy, the right of free enterprise, and the freedom of expression and communication. According to the applicant Senators, by providing for an extension of the public health state of emergency of a duration of four months without it being necessary that Parliament take action again during this time period, the legislator would have provided for an unbalanced reconciliation between the objective of constitutional value of protecting health, and the aforementioned rights and freedoms.

  3. According to the eleventh section of the Preamble of the Constitution of 1946, the Nation “shall guarantee to all... protection of their health”. Protection of health therefore constitutes an objective of constitutional value.

  4. The Constitution does not exclude the possibility for the legislator to provide for a governmental system of a public health state of emergency. In this situation, the legislator must ensure the reconciliation between the constitutional value of protecting health and the respect of the rights and freedoms recognised for all individuals who live in the territory of the French Republic.

  5. Firstly, the public health state of emergency seeks to allow the public powers to take action in order to control a serious public health crisis. Concerning the scientific data available on the current public health context, the legislator esteemed that the Covid-19 epidemic is spreading at a higher rate. They further took into consideration the current health system's capacity to care for patients. The legislator sees these two factors as contributing to a catastrophic public health situation that is putting the population's health in peril, due to its nature and severity. Furthermore, the legislator, concerning the dynamics of the epidemic and the winter period that is coming, considered that this public health state of emergency should continue at least for the next four months. This evaluation is substantiated by the opinions issued on 19 and 26 October 2020 from the scientific committee provided for in Article L. 3131-19 of the Public Health Code. As the Constitutional Council does not have a general mandate for judgements that is similar to that of Parliament, it cannot call into question the legislator's evaluation of the existence of a public health catastrophe and of its foreseeable continuation for the next four months, as soon as, as in this case, this evaluation is not, to current knowledge, clearly inadequate concerning the current situation of the entire French territory.

  6. Secondly, under the terms of the first section of paragraph I of Article L. 3131-15 of the Public Health Code, the measures provided for in the framework of the public health state of emergency, in any case, can only be taken in order to preserve public health. According to paragraph III of the same article, they must be strictly proportionate to the public health risks faced, and appropriate for the circumstances of time and place. The state of emergency is ended without delay when the measures are no longer necessary. The court is responsible for ensuring that such measures are appropriate, necessary, and proportionate to the result they are pursuing.

  7. Lastly, when the public health situation allows, the public health state of emergency must be ended by decree in the Council of Ministers prior to the expiry of the delay set by the law that extended it.

  8. It follows from the foregoing that the legislator, without violating any constitutional requirements, was able to extend the public health state of emergency until 16 February 2021. Consequently, Article 1 conforms to the Constitution.

  • Concerning certain provisions of Article 2:
  1. Paragraphs I and II of Article 2 of the law extend the temporary measures preparing for the end of the public health state of emergency provided for in Article 1 of the law of 9 July 2020 to 1 April 2021, to the territories where the public health state of emergency is not yet declared.

  2. According to the applicant Members of Parliament and Senators, if the legislator provides that the temporary measures preparing for the end of the public health state of emergency will apply automatically, without Parliament's intervention, on the expiry of the time period established for the public health state of emergency or its early ending, despite the absence of objective elements that allow for anticipation of the evolution of the public health situation in France up to that date, said legislator would not have provided balanced reconciliation between the objective of constitutional value of the protection of health and the rights and freedoms that may be called into question. According to the applicant Senators, it would also result in the legislator being judged as not acting fully within the competence of jurisdiction, and an infringement on the principle of the separation of powers.

  3. Firstly, by providing for temporary measures preparing for the end of the public health state of emergency, the legislator sought to allow public powers to take measures to limit the spread of the Covid-19 epidemic. The legislator henceforth esteemed that a significant risk of the propagation of the epidemic would continue beyond the applicable period of the public health state of emergency, until 1 April 2021. Given the elements mentioned in paragraph 6, the legislator, to current knowledge, did not carry out a clearly inadequate assessment concerning the current context.

  4. Secondly, under the terms of the first section of paragraph I of Article 1 of the law of 9 July 2020, the measures likely to be announced as part of the temporary measures can only be implemented in the interest of public health, and for the sole reason of limiting the propagation of the Covid-19 epidemic. According to paragraph III of the same article, they must be strictly proportionate to the public health risks faced, and appropriate for the circumstances of time and place. The state of emergency is ended without delay when the measures are no longer necessary. The court is responsible for ensuring that such measures are appropriate, necessary, and proportionate to the result they are pursuing.

  5. Thirdly, on the one hand, the legislator, within their jurisdiction to establish a system for a public health state of emergency, is also within their jurisdiction to provide the regulatory power with the mission of determining when said state of emergency ends related to the duration that they set, when the required conditions are no longer met. On the other hand, the legislator specified in the law the date at which the temporary measures, following this state of emergency, will come to an end.

  6. It follows from the foregoing that the legislator was able, without violating the scope of their jurisdiction or any other constitutional requirement, to extend the aforementioned temporary measures until 1 April 2021 and provide for their automatic application once the term of the public health state of emergency comes to an end. Consequently, 1° of paragraph I and paragraph II of Article 2 conform to the Constitution.

  • Concerning certain provisions of Article 5:
  1. Article 5 modifies the aforementioned Article 11 of the law of 11 May 2020 which organises the conditions in which the data relating to the persons infected with the virus that causes Covid-19 and the persons that are in contact with them are, if necessary without their consent, processed and shared through an ad hoc information system.

  2. The applicant Members of Parliament state that this Article 5 would violate the right to personal privacy in that it extends the processing and the sharing of these data until 1 April 2021, and it widens the scope of persons having access to said data.

  3. The freedom declared by Article 2 of the Declaration of Human and Civic Rights of 1789 presupposes the right to personal privacy. As a result, the collection, recording, storage, consultation, and communication of personal data must be justified by a motive of general interest, and put in place in a manner that is appropriate and proportionate to this objective. When this concerns personal medical information, particular vigilance should be observed in carrying out these operations and the determination of the methods used for them.

  4. Article 5 modifies paragraph I of Article 11 of the law of 11 May 2020 in order to provide for the processing and sharing of personal data established by this Article 11 not being able to be used any later than by April 2021. It also modifies paragraph III of that same Article 11 in order to give access to these data to certain healthcare professionals and to provide for them to be communicated to bodies that provide social support for persons who are infected or likely to be infected during and after the end of preventive medical and isolation measures.

  5. Firstly, through the aforementioned decision of 11 May 2020, the Constitutional Council, for the reasons noted in paragraphs 63 to 78 and subject to the reservations noted in paragraphs 67, 73, and 74 of this decision, rules that the information system provided for in Article 11 of the law of 11 May 2020 conforms to the Constitution. Specifically, the Constitutional Council ruled in paragraph 63 of its decision, by adopting Article 11 of the law of 11 May 2020, the legislator undertook to reinforce the means of combating the Covid-19 epidemic, by identifying the transmission chains. As such, the legislator has pursued the objective of constitutional value of the protection of health. As it comes from paragraphs 66 to 67 of this same decision, the personal data that are used by the processing and sharing system provided for by this Article 11 are only the data that are strictly necessary to fulfil the purposes of this system alone.

  6. Secondly, on the one hand, by opening access to these data to healthcare professionals that are on a list established by decree and authorised to carry out viral or blood testing, the legislator focussed on professionals that contribute to diagnosis and identification of transmission chains. Additionally, it follows from the provisions of paragraph III of Article 11 that these professionals can only have access to the data necessary for their work and strictly for when their work contributes to the purposes of the information system.

  7. On the other hand, if the disputed provisions provide that entities providing social support to persons who are infected or susceptible to infection can receive the data contained in this system, this communication is subject to the prior request of consent of the persons concerned. Moreover, this communication can only cover the data that are strictly necessary for these entities to carry out their missions.

  8. Lastly, the legislator, who esteemed that a significant risk of propagation of the epidemic would remain until 1 April 2021, provided for the provision brought about by Article 11 of the law of 11 May 2020 being able to be applied until this date at the latest. For the aforementioned reasons, this assessment is not, to current knowledge, clearly inadequate concerning the current context.

  9. It follows from the foregoing that, subject to the same reservations noted for paragraphs 73 and 74 of the decision of 11 May 2020, the disputed provisions do not violate the right to personal privacy.

  10. Consequently, the words “later, by 1 April 2021” in the first section of paragraph I of Article 11 of the law of 11 May 2020, as well as the words “healthcare professionals authorised to carry out viral or blood testing” and the words “The entities that provide social support to the persons concerned under the conditions provided for in 5° of II of the present Article can also receive the data strictly necessary to carry out their mission” in the second sentence of paragraph III of the same Article 11, which does not violate any other constitutional requirement, subject to the reservations noted in the previous paragraph, conform to the Constitution.

  • Concerning certain provisions of Article 10:
  1. Article 10 gives the Government authorisation to take measures by ordinance that can extend, reinstate, or modify certain provisions that were themselves previously adopted by way of ordinance to remedy consequences of the public health crisis.

  2. The applicant Members of Parliament and Senators are critical of the authorisation provided for in paragraph I of this Article 10 since it refers to previous legislative authorisations. Given the number of these referrals and the scope of the domains covered by the provisions that are referred to, the scope of intervention of the authorisation would be inaccurate. For the applicant Senators, it would, in so doing, be impossible to determine if the purposes pursued by the law, including that of adapting said provisions, do indeed conform to the Constitution. The provisions of Article 38 of the Constitution would therefore be violated. For the applicant Members of Parliament, it would also result in a violation of the obligation of clarity and sincerity of parliamentary debate.

  3. According to the first section of Article 38 of the Constitution: “In order to implement its programme, the Government may ask Parliament for authorisation, for a limited period, to take measures by Ordinance that are normally the preserve of statute law.” If this provision obliges the Government to precisely indicate to Parliament, in order to justify the request it is making, the purpose of the measures that it proposes to take by way of ordinances as well as their domain of intervention, it does not oblige the Government to report to Parliament the content of the ordinances that it will issue under this authorisation.

  4. The provisions of an enabling law, neither by themselves, nor by the consequences that necessarily come from it, would not violate a rule or a principle of constitutional value. Moreover, they would have neither as aim nor as effect of relieving the Government, in the exercise of powers it is granted in application of Article 38 of the Constitution, of their obligation to respect the rules and principles of constitutional value.

  5. Paragraph I of Article 10 authorises the Government to adopt, by ordinance, certain measures that are linked to the domain of the law necessary to remedy consequences of the propagation of the Covid-19 epidemic, and the decisions taken to limit this propagation. These measures consist exclusively of the extension or the reinstatement of previous provisions that were adopted by ordinance, based on several legislative authorisations provided for in paragraph I of Article 11 and in Article 16 of the aforementioned law of 23 March 2020, as well as Article 1 of the aforementioned law of 17 June 2020. The same paragraph I of Article 10 authorises the Government to make the necessary modifications to these extended or reinstated provisions as well as adapting them to the current public health conditions.

  6. Firstly, the authorisation given to the Government by the disputed provisions of Article 10 do not aim to allow the extension or reinstatement of the previous authorisations provided by the laws of 23 March and 17 June 2020, but only to authorise the extension or reinstatement, subject to certain modifications, of the measures adopted through ordinances, based on these authorisations. All of these measures are adequately defined by the referral, in the law referred for review, in the provisions of the two aforementioned laws that provided for said authorisations. Consequently, by referring to these provisions, the legislator adequately specified the scope of action of the authorisation given to the Government in 1° and 2° of paragraph I of Article 10.

  7. Secondly, the disputed authorisation only permits the Government to extend or reinstate the measures mentioned in the previous paragraph or to modify them strictly as needed, on the one hand, for this extension or reinstatement, and on the other hand, for their adaptation to the specific conditions of the public health context. Moreover, the effect of the ordinances adopted in this way can only be to remedy the consequences of the propagation of the Covid-19 epidemic and the decisions taken to limit this propagation. Consequently, the purposes of the disputed authorisation are also adequately defined.

  8. Lastly, it is the responsibility of the Government implementing the disputed authorisation to respect the rules and principles of constitutional value. If necessary, the ordinances issued based on this authorisation can later be referred to the Constitutional Council, once the authorisation expires or the ratification of the ordinances takes place, to examine if they conform to constitutional requirements.

  9. It follows from the foregoing that the disputed provisions do not violate Article 38 of the Constitution. They were also not adopted according to a procedure contrary to the obligation of clarity and sincerity of parliamentary debate. Paragraph I of Article 10, which does not violate any other constitutional requirement, therefore conforms to the Constitution.

  • Concerning the other provisions:
  1. The Constitutional Council has not systematically raised any question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - Subject to the reservations noted in paragraph 24 that the following elements conform to the Constitution:

  • the words “later, by 1 April 2021” in the first section of paragraph I of Article 11 of Act No. 2020-546 of 11 May 2020, extending the public health state of emergency and rounding out its provisions, in its formulation resulting from Article 5 of the law authorising the extension of the public health state of emergency, and providing several measures for managing the public health crisis;
  • the words “healthcare professionals authorised to carry out viral or blood testing” in the first sentence of paragraph III of Article 11 of the law of 11 May 2020, in its formulation resulting from the same Article 5;
  • the words “The entities that provide social support to the persons concerned under the conditions provided for in 5° of II of the present Article can also receive the data strictly necessary to carry out their mission” in the second sentence of paragraph III of Article 11 of the law of 11 May 2020, in its formulation resulting from the same Article 5.

Article 2. - The following provisions of the law authorising the extension of the public health state of emergency and providing several measures for managing the public health crisis conform to the Constitution:

  • Article 1;
  • 1° of paragraph I and paragraph II of Article 2;
  • paragraph I of Article 10.

Article 3. - This decision shall be published in the Journal Officiel of the French Republic.

Ruled by the Constitutional Council in its 13 November 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Jacques MÉZARD, François PILLET and Michel PINAULT.

Published on 13 November 2020.

À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Texte adopté, Contributions extérieures, Saisine par 60 députés, Saisine par 60 sénateurs, Observations du Gouvernement, Dossier législatif AN, Dossier législatif Sénat, Références doctrinales.