Décision contentieuse

Cinemas, theatres and performance venues: the urgent applications judge dismisses the suspension of closures in response to the deteriorating and uncertain health situation

The urgent applications judge at the Conseil d’État has held that the closure of arts venues is justified only by the recent deterioration in the health situation and the uncertainties over how it will evolve in the short term. They could not remain closed in a more positive situation, solely on the grounds that there is a risk of transmission of the virus to members of the audience.

Several dozen artists, theatres and representatives of the performance and cinema sectors applied to the judge for urgent applications on matters concerning fundamental freedoms at the Conseil d’État to suspend the closures of cinemas, theatres and performance venues ordered by the French government since 29 October.
The urgent applications judge at the Conseil d’État today dismissed their application.

The closure of cinemas, theatres and performance venues represents a severe breach of freedoms, but the health protocols put in place help to reduce the risk of transmission of the virus

The urgent applications judge held that the closure of arts venues to the public represented a serious breach of freedoms, and in particular freedom of expression, freedom of artistic creation, freedom of access to cultural works and freedom to do business. The fact that some of the activities concerned could continue to be made available through other media or electronically is not sufficient to address the breach identified.

Furthermore, the operators of the establishments concerned have implemented particularly stringent protocols, which are, at least in some cases, likely to reduce significantly the risk associated with gatherings in enclosed spaces. The risk of transmission of the virus in cinemas, theatres and performance venues is thus lower than for other public events, provided such protocols are applied in practice.

Keeping arts venues closed is only justified in a particularly poor health situation

The urgent applications judge at the Conseil d’État found that keeping cinemas, theatres and performance venues closed to the public would be clearly unlawful if it were not justified on the grounds of a risk of infection to the audience, regardless of the general health situation. The closures are therefore only lawful while the spread of the virus remains at a particularly high level in the population, likely to compromise the treatment, and in particular hospital admissions, of infected patients and those suffering from other illnesses in the short term.

The urgent applications judge notes that the current data show a recent worsening of the health situation, from an already very high epidemic level, and could be even more concerning at the beginning of January. The discovery of a new variant of SARS-CoV-2 in the United Kingdom is also likely to increase uncertainty.

Accordingly, given the fast-changing nature of the situation and the risk of a worsening of the epidemic in the short term, and given that a decision to reopen cinemas, theatres and performance venues generally involves a period prior to restarting of at least two weeks, the judge held that the closures do not represent a clearly unlawful breach of the freedoms concerned.

> Read the decision (in French)