On 22 March 2020, at the first hearing in relation to Covid-19, a doctors' union asked the Conseil d’État to order tighter lockdown measures. The beginning of a long series in which the administrative judge’s courtroom has been open without interruption to arbitrate between the protection of the right to health and other freedoms. Over this 12-month period, the Conseil d'État has heard 647 appeals filed by private individuals, associations or professional organisations challenging the government's management of the pandemic. It has imposed urgent action, sometimes within 48 hours, to check whether the restrictions on freedoms imposed because of the public health risk were justified: - In 51 cases, the suspension of measures imposed by Government or local authorities and/or a change in their practices was ordered. - In over 200 cases, progress was made during the hearings, the State was reminded of its duties or the disputed measures were modified by the authorities before the court's decision. With the public health situation still causing concern, the Conseil d'État continues to monitor the actions of the State and other administrations through the petitions it receives.
Since the first Government measures in March 2020, the Conseil d’État’s courtroom has without interruption been open to private individuals, associations and professional organisations wishing to assert their rights and challenge the management of the crisis. In this exceptional situation, the Conseil d’État's urgent applications judge has had to verify that the authorities have been acting in accordance with the law, reconcile the rights and freedoms in question and find concrete solutions that can be rapidly implemented.
In one year, 647 applications relating to the pandemic have been decided in urgent proceedings. The cases referred to the Conseil d’État have covered all aspects of daily life in France.
Measures imposed on the authorities to preserve freedoms having been unduly restricted
The Conseil d’État ordered measures or suspended acts by the Government and the authorities in 51 cases: in particular, it ordered the restarting of the registration of asylum applications (April), ceremonies in places of worship (May), demonstrations (June and July), ordered the provision of masks to inmates in a prison (May), regulated the use of drones by the police (May and December) and of thermal cameras in schools (June), limited the compulsory wearing of masks to areas at risk (September) suspended the restriction of medical criteria in order to benefit from furlough measures (October), the limit of 30 people in all places of worship (November) and videoconferencing during criminal trials (November and February), ordered the restarting of the issuance of family reunification visas (January) and also authorised outings for residents of State-owned retirement homes (EHPAD) (March) and allowed French citizens abroad to return to the country without having to evidence any compelling reason (March).
Solutions devised during the proceedings, reminders given to the State of its duties, even where applications were unsuccessful
Concrete solutions were obtained and progress made in more than 200 applications2 filed before the judge of the Conseil d’État despite the fact that these were formally “rejected” by the judge.
The discussions that took place between the parties and the judge during the hearings led the Government to make practical improvements to its practices in about 50 cases (provision of gloves and hand sanitiser in prisons in April, exemption from fines for homeless people in April, preparation of reports on the impact of the lockdown measures on mental health in November, clarification of the grounds for authorised travel in November, easing of certain restrictions in relation to the specific cases presented by the applicants, for example in January in relation to school sports).
The judge also reminded the State of its duties or specified its obligations in about 130 cases: for example, to help lawyers obtain face masks (April), to take action to prevent sharp increases in pollution levels in connection with agricultural spraying - a possible aggravating factor concerning Covid-19 (April), to find a solution with Microsoft for the Health Data Hub (October), to take into account in its measures the essential role played by bookshops (November) or to reopen theatres in the event of an improvement in the public health situation (December).
In 89 cases, the disputed measures were no longer in force or had already been withdrawn or modified by the authorities even before the Conseil d’Etat issued its decision. Very often, it is the very fact that proceedings have been filed before the court that has caused the authorities to change their position. For example, before any judgment was handed down, the French Government's anti-fake news website on Covid-19 was taken down (May), a member of parliament was allowed to visit the Béthune prison with a journalist and a colleague (June), a French citizen living abroad was granted a pass to return to France for health reasons (August) and vulnerable prison officers were allowed to benefit from furlough measures (November).
And also applications that could not be upheld
As the only court of law before which citizens have been able to take urgent action to challenge government measures, the Conseil d’État also examined applications which could not be upheld.
In some cases, the authorities were complying with the law or were not unlawfully restricting a freedom. In other cases, the applications did not come under the jurisdiction of the urgent applications judge: the applications were asking the court to take the place of scientists (authorisation to prescribe hydroxychloroquine in April) or of the Parliament (nationalisation of companies in March) or to take measures that exceeded its powers. Some applications were also dismissed because they did not contain sufficient evidence to prove the case being put forward by the applicants.
The judge responsible for urgent measures and immediate solutions, in a changing context
|During the public health crisis, restrictions on freedoms have had to be constantly balanced against the vital need to protect the health of the population, an objective of constitutional value. The Conseil d'Etat has therefore sought to verify that these restrictions of freedoms were necessary, appropriate and proportionate, taking into account the constantly changing public health situation and the means available to combat the virus (face masks, vaccines, etc.). In each period, the judge has had to find the right balance between the freedoms and the right to protection one’s health.|
|Period 1 - Lockdown, issuing judgments when the health risk is at its highest Between March and May 2020, in order to deal with an alarming and unprecedented public health situation, restrictions on freedoms were at their greatest. In this context, the Conseil d'État was mainly asked to examine contradictory applications for the tightening or relaxation of these restrictions and requests to monitor the management by the authorities of the shortages of personal protective equipment.|
|Period 2 - Lifting of lockdown, moving the balancing point in an improving health situation As of 11 May 2020, the improved public health situation brought new issues before the Conseil d’État. The urgent applications judge has therefore regularly issued rulings on the necessity and proportionality of certain restrictions (acts of religious worship, demonstrations, etc.).|
|Period 3 - Second lockdown and curfew, case-by-case assessments With the second lockdown in late October 2020, the general rules of the first lockdown were replaced by more nuanced restrictions: the closure of certain businesses rather than others, curfews differentiated according to regions, etc. The Conseil d’État was therefore required to rule on the consistency of the measures imposed.|
|And tomorrow? The courts must operate in a constantly changing context, marked in particular by the extension of the vaccine rollout to new groups and by disparities in infection levels by region.|
1 Number of appeals heard between 17 March 2020 and 17 March 2021 by the Conseil d'État‘s judge responsible for urgent applications. This figure excludes a series of 283 identical applications filed in late September against the restriction of the vulnerability criteria giving eligibility for furlough measures which were ultimately the subject of an injunction issued to the Government in October, and which are counted as a single application.
2 Please note that one single case may have resulted in several examples of concrete progress for the applicants (progress thanks to the hearing and/or the reminders given to the