The Health Pass in French Legislation

Dr Benedicte Sage Fuller

 

President Macron made a forceful declaration to the Nation on 12th of July 2021 concerning the Covid 19 vaccination programme. His declared goal was made clear: to push forward Covid 19 vaccination to the entire population, seemingly without any distinction of age. The President actually seems to want to “vaccinate the world”. His address sent shockwaves through the population, which until then had shown signs of reticence towards Covid 19 vaccination, particularly amongst women. It was claimed that shortly following the address, internet and phone lines to book a vaccination appointment were registering up to 20,000 bookings per minute. During the two weeks that followed, a new Bill was debated and adopted by Parliament, regarding the Health Pass. This happened in a context of erupting discontent, with daily demonstrations on the streets from 14th July, and carrying on since. People are not demonstrating against the vaccine, but against the Health Pass. A poll published on 24th July shows that 35% of surveyed people support the protest, while 49% disagree with it. It is clearly not a small protest on the margins. The Health Pass polarises French society. The demonstrators claim that the Macron’s announcements, and the new Bill, will effectively be installing a system of apartheid in the country, that it will divide French society, that it will discriminate against and set aside those who, in conscience, do not want to obtain and use a Health Pass, or a vaccine.

 

The Bill was adopted on 25th July 2021, on second reading at the Assemblée nationale, by 156 Députés, 60 voting against and 14 abstaining. It is noteworthy that there are 577 elected representatives at this Assembly, and therefore that 347 were missing for a Bill of this magnitude. This should be seen in the context of a record abstention rate of more than 65% at the last elections in early June, a sign a deep disconnect between French citizens and the political class. Within Parliament also, there are signs of evident tension and anger, for example as experienced by Senators during the vote of the Bill, who reported on the Senate public channel having been  put under pressure to pass the Bill “with a gun on their heads”, and being deprived of the opportunity to scrutinise it in detail.

Already, a number of constitutional experts from French universities (Assas-Paris I, Université de Grenoble, Université de Toulon, Université de Toulouse, HEC, Université de Créteil, Université de Clermont Auvergne, Université de St Etienne,  to mention a few) and practicing lawyers have raised very serious concerns about the constitutionality of the Law. The basic conditions of necessity, proportionality and appropriateness of measures restricting constitutional rights and freedoms are no respected. For Professeur Rousseau, there is a blatant and basic issue of excessive delegation of power to the Executive in a domain concerning public liberties which should  normally fall within  the legislative competence of article 34 of the Constitution. The constitutional right to work is threatened by the suspension of employment contracts for the non-vaccinated. The freedom to come and go is gravely affected by the forced detainment and isolation planned in the Law. There are also critical questions regarding the validity of the Law as regards fundamental freedoms and the principle of non-discrimination under EU Law.

The Défenseure des droits, Mrs Claire Hédon, French version of the Ombudsman, also published a report on 20th July, raising the alarm about several aspects of the Law. Mrs Hédon, like the senators, also criticises the Government for rushing the legislation, and not giving enough time to anyone to study it properly. She demands a proper and extended democratic debate. Her criticisms towards the Bill are detailed here. Of particular interest is her “alert”, in Point 6, raised regarding the rights of children, which will, according to her, be violated  by segregating the vaccinated against the non-vaccinated, and by excluding the non-vaccinated from a number of school-related activities (and which amounts, according to the Défenseure des droits,  to disguised compulsory vaccination)

The Bill was deferred to the Conseil constitutionnel, which b34a76d8-451d-4898-b5e0-78af3299cbebwill issue its judgement on 5th August.

Meanwhile, it is important to mention two judgments by the Conseil d’État dated Monday 26th July, on the contested legality of a Ministerial Decree of 21 July 2021, which extended to gatherings  of more than 50 persons the obligation to present the Health Pass. The highest administrative court did not deem the legality of the decree to be seriously in doubt, particularly in view of the fact that new legislation is about to be enacted, which would regularise the situation in any event. One should have serious reservations  about this argument, which is based on the presumption that potential future legislation would be sufficient to remedy a potential defect to a current regulation.

This   article merely presents and explains the Law just adopted by the French Parliament. Further constitutional analysis will be provided once the Conseil constitutionnel has rendered its decision.

Measures applicable to the public, users, customers and certain employees

Article 1 concerns:

  • Travel to or from French territory, for travellers and for personnel operating means of transport used to this effect (Article 1, III, A, 1): for all adults over 18.
  • Activities of: leisure, restauration (except collective, take-away, professional for hauliers and train drivers, or bars serving no food), fairs, seminars and professional conventions, health services (except for emergencies), long distance travel within French territory (Article 1, III, A, 2): for all persons aged over 12.

The persons to whom these provisions apply will have to produce either a negative test result, a certificate of vaccination or a medical certificate showing immunity following infection by Covid 19 and full recovery. In laymans terms, this means that anyone aged 12 or above will not be able to take a long distance train, to go to a restaurant (whether indoors or outdoors), go to the cinema, to a sporting event or a professional fair, attend training or any other leisure activity, unless they produce one of the three forms of Covid 19 certificates above mentioned. For minors aged 16 or above, they may be vaccinated without their parents’ consent, by express derogation to article 371-1 of the Civil Code on parental authority (Article 1, III, Fter A). Further, anyone aged 12 or above will not be able to access health services except for emergencies if they do not have such certificate. Looking at the black-letter law, this includes all programmed treatments and appointments: all chronic illnesses, cancers, counselling, etc. The Law provides only for the exception of “medical counter indication to vaccination”. What constitutes a medical counter indication to vaccination is determined by decree (Article 1, III, G).

From the moment the Law comes into force, article 1 will apply to the public and users, and from 15th September, it can be extended to employees. As regards travelling to and from French territory, the obligation applies to employees from the date of entry into force.

Article 1 also specifies that these obligations, when fulfilled, will not dispense from applying other measures to prevent the propagation of the virus. This means that even with the “ring-fencing” of people who are vaccinated or present proof of non-infection, social distancing and masks continue to be required for those people.

As regards employees or civil servants who are subject to these obligations under Article 1, the Law allows the suspension of their employment contract without pay until or unless they submit to vaccination. For those on temporary contracts, the Law allows the termination of such contract (article 1, III, C, 1 and 2).

For owners of businesses subject to this Law, the sanctions planned go from a temporary administrative closure of 24h, to one year imprisonment, 9,000€ fine and maximal administrative closure (article 1, III, D).

The Law outlines the procedure regulating the verification of the forms of Covid 19 certificates (Article 1, III, E). Persons habilitated  to ask for these certificates are not allowed  to use them for purposes other than those of that Law, and cannot keep them, except when they are employers and for the certificates of their employees. The sanction is 1 year imprisonment and 45,000€ fine. The same sanction applies to persons requiring the production of Covid 19 certificates outside of the circumstances of Article 1, III, A, described above.

Forced isolation and detention centres

Article 2 concerns the very controversial forced isolation and detainment of persons. There are already existing powers to isolate and detain persons travelling from countries considered as “infection circulation zones” and entering French territory (articles L3131-15 to 17 of the Code of Public Health).  The new Law will add powers to isolate and detain persons in isolation camps who “have been subject to a virologic test or to any medical examination concluding to a contamination” (Article 2, 1, c). It will also give powers to designated agents to control the presence of the persons detained in isolation centres “at any time”, except during the hours at which they are authorised to leave, and between 11pm and 8am. The sanction is 6 months imprisonment and 10,000€ fine (article L3136-1 Code of Public Health). But the new Law seeks to adopt a gradual approach. Article 4 states that the persons who are subject to a virologic test or a medical examination establishing contamination by SARS-CoV-2 “undertake, as soon as they learn about the result of this examination”, not to leave their place of residence for 10 days (except for situations of emergency). Article 4 continues by giving powers to the medical insurance bodies to inform the Regional Health Agencies, in cases of “non-respect of this undertaking or suspicion of non-respect of this undertaking”. Following this, the representative authority of the State is informed, and may apply the coercive measures of article L3131-15 and L3131-17 of the Code of Public Health mentioned above, as amended by Article 2.

Personal information

Article 3 amends the measures already adopted in article 11 the Law of 11 May 2020 concerning the collection and use of personal information in the context of the Covid 19 crisis. That provision has already been examined and struck down in places by the Conseil constitutionnel in 2020. As it currently stands, it permits the collection and use of personal information, and its sharing between designated persons and agencies of the State, including sub-contractors. The Law determines the conditions in which this information is collected, stored, used and shared, and the purposes for which it is so. The Law allows the State to create an information system in order to manage this information. Where the original Law allowed this for the purposes of what appeared to be non-coercive measures of treatment and self-isolation following the detection of an infection, the new Law will have far reaching effects. Indeed, the system of collecting information, using and sharing it which has been put in place will now be linked with the possibility to coercively impose measures of forced isolation in detention centres. Article 3 of the new Law adds a paragraph to article 11, II of the 11 May 2020 Law, to this effect.

Economic Impact

Interestingly, the Law anticipates that the measures imposed by articles 1 and 2 and described in the paragraphs above, will have economic consequences. It is not difficult to imagine why: customers not having access to restaurants, leisure activities, people denied health care, persons placed in forced isolation, etc, will mean many hundreds of thousands of hours of lost work and productivity. So article 4bisof the Law requires the Cabinet to present a weekly report to the Parliament, on this economic impact, including  the quantifying of  of turnover loss.

 

Compulsory vaccination

Article 5, I of the new Law provides a long list of categories of workers, volunteers and professions subject to the compulsory vaccination against Covid 19. The categories it includes are more or less everyone working, in any capacity, in establishments providing health services, which are very broadly and exhaustively defined: hospitals, detection and prevention centres, social and medico-social services, residences for the disabled and for the elderly, etc. Specific professions are mentioned, such as psychologists, psychotherapists, osteopaths, chiropractors. Anyone providing health home visits is also included. All students preparing to become a healthcare professional of any description are also subject to compulsory vaccination. Further, other ancillary services are concerned: fire-brigades (which in France have a role in healthcare, not just in fire-fighting), all personnel involved in health transports, material and service providers.

Article 5, II provides that the onus of justifying to their employers their vaccination status falls on employees and civil servants listed in Article 5, I. For other categories (for example contractors), the Regional Health Agencies are given the power to access their personal information relating to their vaccination status. Article 5, IV gives the legal responsibility to control the conformity with the vaccination obligation on employers and Regional Health Agencies.  Upon receiving the vaccination, people are informed that their personal information will be made available to employers and to the Regional Health Authorities. The latter two bodies are required to store this information until such time as vaccination is no longer compulsory.

The consequences for the persons subjected to compulsory vaccination, and who refuse to comply, are draconian. Article 7 provides for the immediate suspension of the exercise of their functions, from the day after the Law comes into force, without pay (unless they can avail of annual leave, with the agreement of their employer). In terms of social protection, this puts these persons in a quasi limbo. Indeed, on the one hand, that suspension without pay means the suspension also of contributions towards social protection and pensions, and on the other hand, they cannot access the social protection (unemployment benefit) earned by their contributions up to the suspension. They are effectively side-lined from the work and social protection system.

 

Conclusion

The paragraphs above merely present the contents of the new Law, which is currently before the Conseil constitutionnel. Many serious questions come to mind upon reading it, concerning the details of its application, points of legality and indeed of constitutionality, as well as conventionality. The Défenseure des droits highlighted with great concern these questions, as did several university professors, and indeed practicing lawyers. There is currently significant pressure on the streets, with demonstrations that are showing no sign of abating. The next few weeks will probably mark a turning point, both in terms of civic engagement, and in terms of trust between French people and their public institutions. It is in this context that the Conseil constitutionnel must render its decision.

 

 

 

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