The Health Pass and French Civic Operation

The Health Pass and French Civic Operation

Summer 2021 Chronicles

Dr Benedicte Sage Fuller

The Passe Sanitaire, or Health Pass, was adopted by the French Parliament on 25th July 2021 (see here an earlier piece describing the legislation), and the Conseil constitutionnel issued its decision on 5th August (English version here). The Conseil held that almost in their entirety, the articles of the Health Pass law that were referred before it, were in conformity with the 1958 Constitution. The leading thread throughout the Conseil constitutionnel’s decision is that the objective of public health, which has constitutional value, justifies the restrictions that the French Government deemed necessary. These restrictions affect other principles of the same constitutional standard (principle of clarity of legislative debates, equality and non-discrimination, freedom to come and go, right to work, etc), but as far as the Conseil is concerned, they are justified in view of the particular seriousness of the Covid 19 crisis as of July 2021.

The brevity of the decision of the Conseil is striking , especially considering the seriousness of the Health Pass law, the critical legal questions it raises, and the abysmal social divide it is causing in French society. In the height of summer, traditionally a time when French people desert their cities to take holidays, and where many administrations and businesses shut down, the Health Pass law stirred French citizens to a point not seen for several decades. Public demonstrations have been taking place every week since the emblematic 14th July national Bastille Day, gathering several hundreds of thousands of demonstrators, in more than 200 French towns and cities (the actual figures are hotly contested between Government sources citing between 140,000-175,000 every week, an independent counting organisation estimating the numbers to 300-400k, and the organisers themselves approximating about 3.6 million people).

 

 

The high level of engagement of citizens can also be seen through the use of an ad-hoc procedure allowing private submissions to be made to the Conseil constitutionnel, called the “narrow gate”, or la porte étroite. No fewer than twenty separate such private contributions were submitted to the Conseil in the course of this constitutional case including two by private law firms, which each represented respectively 50,000 and 70,000 citizens. Several professional national federations and trade-unions made their views known via this procedure, for example the National Federation of French Cinemas, representing nearly all the cinemas across France, the National Council of Large Supermarkets, and the Autonomous Federation of Public Healthcare Workers of La Réunion. In this context of wide and sustained citizens engagement with French public institutions, the Conseil is nonetheless satisfied that the restrictions will operate under the control of the judicial system. Indeed, it is open to French citizens to  contest the legality of the application of the law, or parts of it, before the civil and the administrative courts in the country.

As a matter of French COVID passfact, the Covid 19 crisis has generated a lot of judicial activity in France. The courts that have been most involved are the administrative courts, Administrative Tribunals (Tribunaux Administratifs) and the Conseil d’État. Before the Conseil d’Etat, 647 legal proceedings were initiated between 17 March 2020 and 17 March 2021 against the French Government in relation to the management of the Covid crisis. In 51 of those cases, the Conseil d’Etat ruled against the Government, and there were 200 hearings during which the Government was reminded that it was subject to the Law, and was forced to modify its decisions. Several significant decisions have been handed down, particularly concerning lock-downs and vaccination. These legal actions before the courts are critical for the functioning of democracy, particularly in a situation of crisis. They serve the purpose of discussing and sometimes re-establishing the rights and civil liberties of citizens, where they have been disproportionately restricted in a manifest manner, or even entirely suspended. Since the adoption of the Health Pass legislation, dozens of legal proceedings were initiated before the Conseil d’État. It appears that most were unsuccessful (the Conseil d’État search engine Ariane returned 52 cases between 1 July and 21 September, all but one unsuccessful). However, despite their failure, these legal proceedings show the arguments developed by the applicants to contest the application of the Health Pass. They raise very interesting points. The paragraphs below show some of those arguments.

The Conseil d’État upheld on appeal the decision of the Tribunal Administratif of Versailles to quash a municipal requirement for the Health Pass to attend a public meeting of information on local planning changes to the town of Savigny-sur-Orge. It confirmed that attending such a meeting did not fall within the scope of the Health Pass Law, which applies to cultural, sporting, leisure or festive activities. But a bunch of golfers lost their case when they argued that their activity being entirely outdoors, and requiring participants to be apart sometimes of several hundred meters, the requirement of the Health Pass was violating their their freedom to come and go and of their right to have a hobby. The Conseil d’État held, without further elaboration, that the Pass did not restrict their freedoms and rights in a grave and manifestly illegal manner.

 

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Religious freedom and the right to worship were brought before the courts on four separate occasions (see here an earlier piece on this matter). Judges have clearly established that religious freedom and the right to worship are paramount in a democratic society, and that the restrictions can only occur under very narrowly defined circumstances, which were actually not legally met. However, the Health Pass brought a significant dent into the edifice of religious freedom. Indeed, the Conseil d’État adjudicated on two further occasions (here and here) that religious freedom was not breached by the imposition of the Health Pass on religious ministers tending the sick and the dying in hospitals and nursing homes. In other words, in France at the moment, the faithful who are in good health and able to move around can freely exercise their right to worship and freedom of religion, but the sick and the dying, in certain circumstances, cannot.

Interestingly, the French Government has argued in Court in several cases that vaccination does not prevent transmission, and that therefore restrictions to the freedom to come and go are necessary. For example, on 3rd March 2021, the Conseil d’Etat adjudicated on a case concerning nursing homes residents. The applicants alleged that the absolute interdiction to leave for nursing homes residents was a grave and manifestly illegal violation of the freedom to come and go. On that point, the residents argued that being prevented from leaving their nursing homes for social visits considerably affected their psychological and physical health, and that this could not be compensated by visits into nursing homes, especially considering the drastic conditions in which these visits were taking place. As of early March 2021, more than 80% of nursing home residents had received one dose of the vaccine, as well as 43% of the health professionals working in these establishments. Respectively,50% and 23% had two doses. The Conseil d’Etat rejected the argument by the French administration that there were recent studies inviting to prudence on the point of protection against transmission and reinforced immunity that the vaccines may bring. The court pointed to the inconsistency of the French Administration, by referring to its own communication of 23 January 2021 (avis de la Haute autorité de santé), in which the Health High Authority was claiming quasi scientific certainty about the “satisfactory immunology response and vaccinal efficacy for the elderly similar to those observed among younger people” (la réponse immunologique satisfaisante et une efficacité vaccinale similaire à celle retrouvée chez les personnes les plus jeunes). The Conseil d’État noted further that the website of the Minister stated that vaccines can prevent the development of a serious form of the illness if there is a contamination, and that the cases of contamination concerned persons having received only one dose.

In an even more striking case, dated 2nd April 2021, which this time was ruled against the applicant and in favour of the Government, the Conseil d’Etat held that an 83-year old man who had received two doses of the Pfizer vaccine could not be exempt from the country-wide lockdown, because there was no evidence that the vaccination could prevent the transmission of the Covid-19 virus. During the hearing for this case, the French Government’s legal team, in the presence of the Minister for Health Mr Olivier Véran, actually argued four points, with only the latter being retained by the Conseil d’État in the final judgment (these four points are to be found in the defence brief produced by the French Government legal team, on file with this author). The four points were: 1) that the efficacy of the Covid-19 vaccines was only partial, 2) that their efficacy had become particularly contingent with the apparition of variants, 3) that the vaccinated persons were those most likely to develop a serious form of Covid-19, or to die, in case of inefficacy of the vaccines or of re-infection and 4) that there was no evidence that the vaccine prevents the transmission of the virus. Point 3, which is the most striking, was made by the French Government with reference to a report by the French Scientific Council of 11th March 2021. The Council mentions the problem of “immune evasion” (échappement immunitaire, page 43 of the report) to explain that vaccinated persons are actually at higher risk of grave forms of Covid in case of re-infection by a new variant. Here again, these arguments are obviously completely at odds with the vaccination policy of the French Government. That they were made in a court of Law and are now a matter of public record, demonstrates the paramount importance of the judicial process, and of allowing cases to be heard by the justice system.

In the same vein, a recent case was heard before the Paris Tribunal Judiciaire on September 1st. This time it was three healthcare workers who were resisting the compulsory vaccination imposed on them by the Health Pass Law. The thrust of their argument was that the mandatory vaccination against Covid-19 amounted to a violation of article 2 of the European Convention on Human Rights, which guarantees the right to life. Indeed, according to the litigants, the terms of the regulatory decree applying the law, only provides for limited medical conditions or occurrences in which vaccination may not proceed. These legally defined circumstances are:

  • A documented allergic pre-condition, in view of the components of the vaccines;
  • A grade 2 (having affected at least 2 organs) anaphylaxis reaction to a first dose of the vaccine;
  • Capillary escape syndrome
  • Paediatric Inflammatory Multisystemic Syndrom (PIMS)
  • A medical recommendation, by a multi-disciplinary team, that a second dose of the vaccine should not be administered because of the occurrence of “an undesired side-effect of severe or grave intensity, reported to a pharmaco-vigilance centre, for example myocarditis or Guillain-Barré syndrome….”

In this case, the three healthcare workers taking the case argued that it is known to the French authorities that severe or grave side-effects, including life-threatening and death, may occur with the Covid-19 vaccines used in France. Indeed, as such, the regulation explicitly foresees such occurrences as a cause for not administering a second dose. Their argument is that mandatory vaccination with a product which is known and acknowledged to cause death in some circumstances is a violation of the right to life under article 2 of the ECHR.

In the course of the hearing, which was public, the question was asked by the President of the court whether the French State had received the documentation from the four pharmaceutical companies manufacturing the vaccines, concerning the requirement to apply for the renewal of the conditional market authorisation. The Lawyer for the State was unable to answer, and the President directed the clerk to take note of this point.

In the judgment, issued on 10th September, the Tribunal Judiciaire declared that it was incompetent to adjudicate on the case, for reasons pertaining to the type of procedure chosen by the plaintiffs. However, it made the interesting point that the Conseil constitutionnel in its decision of 5th August had actually not pronounced on the constitutionality of the part of the Health Pass law concerning the penal sanctions imposed on those refusing compulsory vaccination. This very  point had already been highlighted by a group of 10 lawyers. The Tribunal Judiciaire explicitly referred to two other judicial avenues to pursue the matter, one using the mechanism of Question Préjudicielle de Constitutionalité (QPC: which enables any judge to stay proceedings and request a ruling by the Conseil constitutionnel on the constitutionality of a law), and the other by going through the well-trodden avenue of the administrative courts.

On 27th September, the Conseil d’État adjudicated on a legal action taken on the same grounds as before the Paris Tribunal Judiciaire. It rejected the case, for three reasons. First, the court held that the point of renewal of market authorisation is not arguable in court. No further explanation or motivation was provided by the Conseil d’État for this statement (para. 8). Second, the Conseil judged that the point about informed consent could not be relied on precisely because the legislator had decided to impose compulsory vaccination (para. 9). Thirdly, the Conseil d’État ruled that the inability for people to rely on individual counter-indications to refuse the vaccination, even in circumstances where such risks are acknowledged by centres of pharmacovigilance, does not amount to a “characterised and imminent danger for the life of persons”, and consequently does not constitute a grave and manifestly illegal violation of article 2 of the ECHR (para. 10). The Court made this ruling while the report of the French agency for drug safety (Agence Nationale pour la Sécurité du Médicament – ANSM) on the monitoring of the Covid-19 vaccines up to 16 September 2021 indicated that 25% of the 90,236 side-effects reported were qualified as “serious”, according to WHO international pharmacovigilance terminology.

The European Convention on Human Rights was invoked several times before the Conseil d’État. For example, the Association Victimes Coronaviruas Covid-19 France argued that the Health Pass violated article 2 of the Convention. Indeed, far from contributing to public health, the Pass actually constituted a danger for the non-vaccinated, because the vaccinated and holders of the Pass are not required to show a negative PCR test result even though they are capable of transmitting the virus. The Conseil d’État did not rebuke the argument, but did not deem that this situation negatively affected the situation of the members of the association in a grave and immediate manner.

Other arguments pertaining to the sound scientific basis of the Health Pass were developed in the course of several cases. An applicant who had received two doses of a Covid-19 vaccine approved by the French authorities, but with the second dose administered in a different country, could not obtain the Health Pass. The Conseil d’État considered that his personal situation was not gravely and manifestly affected, as he could obtain a PCR test instead.

Another applicant contested the basis to restrict the certificate of Covid recovery to a period of 6 months only. Their argument was that certain persons who have recovered from Covid will still show a high level of antibodies for longer than 6 months and will not able to obtain a negative PCR or antigen test. They therefore cannot obtain the Health Pass on that basis. The Conseil d’État rejected this argument, on the ground that these persons can avail of the Covid vaccine.  A few weeks after this case, the Conseil d’État however also rejected the argument that the Health Pass constituted an indirect vaccination obligation.

The argument was rejected in another case that the vaccines are administered in Europe on the basis of conditional market authorisations, and that as such they should be classified under French Law as experimental medicines (Article L521-1-1 of the Public Health Code), and fall under the clinical trials Directive 2001/20/CE. The applicants had made the point that the Directive required that the persons receiving such treatment shall give their consent to it, and that as such this would make compulsory vaccination unlawful.  As the same argument was also pursued before the Tribunal Judiciaire of Paris, in the case aforementioned, it was done this time on the basis of  the EU Regulation 536/2014/EU on clinical trials. A request for a preliminary ruling to the Court of Justice of the European Union was made by the applicants in the course of the case, but the Tribunal declared itself incompetent (see above) and did not address it.

Other aspects of the Health Pass Law were contested before the courts: the requirement of the Pass to enter certain shopping centres. Four Administrative Tribunals ruled that the requirement was a violation of fundamental freedoms. For example, the Tribunal administratif of Versailles ruled on 24th August that it was a violation of the fundamental freedom to come and go to impose a “general and absolute” requirement for the Pass to access shopping centres. Indeed, the Tribunal noted that the Law itself conditions the Pass to the guarantee of access to goods and services of first necessity to all persons, including those without a Pass.  The applicant had argued that the blanket imposition of the Pass amounted to the unequal treatment of French citizens on the basis of their health status and their opinions and was a violation of the Constitution. The Government has so far not appealed these decisions, and in the meantime, the administrative authorities concerned have actually lifted those requirements, rendering the matter moot in the districts concerned.

But in other parts of the country, the decisions have gone the other way, and the Pass is still in place for large shopping centres. In Lyon, the Administrative tribunal upheld (para. 6) the justification for the Pass in a large shopping centre on the ground that access to products of first necessity was guaranteed in the wider area (bassin de vie: “life basin”) surrounding the shopping centre. However, the Law simply specifies that the administrative decision imposing the Health Pass in shopping centres must occur “in conditions that guarantee access by persons to goods and services of first necessity”, without specifying within or in the immediate vicinity of the shopping centres. The wording used by the Conseil constitutionnel on this does not clarify the matter in the sense stated by the Lyon Administrative tribunal, as it says that such decisions “must guarantee access by persons to goods and services of first necessity as well as to accessible means of transport within these shops and centres” (para. 42). It is indeed not clear whether “within these shops and centres” refers only to the means of transport, or to both the means of transport and the goods and services of first necessity. As means of transport are actually rare within shopping centres, it is strongly arguable that it refers at least to the goods and services of first necessity, therefore rendering the argument of the Lyon Tribunal administratif inexact. However, a decision of the Conseil d’État concerning the Health Pass in shopping centres in the region Alpes-Maritimes (Nice, Antibes, etc) confirmed that the relevant provision of the Health Pass Law guarantee access to products of basic necessity in the vicinity of shopping centres where the Pass is imposed, and not within. It appears, therefore, that the Conseil d’État has resolutely opted for a wide interpretation of the restrictive legislation, thereby furthering attacks on fundamental freedoms.

Through these simple examples, one can appreciate the difficult application of the Health Pass Law, particularly when what is at stake is nothing less than the democratic principle of equality before the law, fundamental freedoms and basic rights.

In early September, another jurisdiction became active, following 14,500 complaints by citizens about the management of the Covid-19 crisis. The Cour de Justice de la République is a court competent to try offences committed by Ministers and State Secretaries in the course of their political functions. On 10th September, Dr Agnès Buzyn was charged with the crime of endangering another’s life, and wilfully abstaining from combatting a disaster. She was Minister for Health between 2017 and February 2020, and the charge concerns the preparatory response in  the health crisis , and in particular her management of the stocks of masks. A criminal enquiry was open in July 2020, which  resulted in the abovementioned charge against Dr Buzyn. The enquiry implicates other past and current members of the Government, including the current Health Minister Olivier Véran, the ex-prime minister Édouard Philippe, the current General-Director of Health Jérôme Salomon, the current director of France Public Health, Geneviève Chêne.

To complete the picture, another court should be mentioned. Concerned French citizens have initiated proceedings for the European Court of Human Rights, by arguing that compulsory vaccination imposed by the Health Pass Law violated article 2 (right to life) and article 8 (right to privacy and family life) of the Convention. A group of 672 professional and volunteer members of French fire brigades applied for interim measure to seek the suspension of the obligation to be vaccinated imposed by article 12 of the Health Pass Law. In the alternative they sought the suspension of the prohibition to exercise their activity, and the interruption of the payment of their salary in case of refusal to comply with the vaccination obligation. The Chamber of seven judges held that the application for interim measures fell outside the scope of article 39 of the Rules of the Court, which concerns situations where an applicant faces “a real risk of irreversible harm”.

A final remark can be made, concerning the connection between the French Health Pass, and the EU Digital COVID Certificate. The cases reviewed in this article, and taken before the French courts, do not appear to connect the applicable French legislation with EU Regulation 2021/953 on the EU Digital COVID Certificate, of 14th June 2021. While the principal aspects of the French Health Pass were brought into Law by legislation of 5th August 2021, its premise is actually founded on a legislation dated 31st May 2021. At this date, the French Government had introduced a Health Pass for “large gatherings” of more than 5,000 people. The French legislation itself, that of 31st May or of 5th August, does not appear to explicitly refer to the EU Digital COVID Certificate Regulation. The Conseil d’État itself rejected the applicability of the European Law principle of legitimate expectation to a case concerning the French Health Pass. According to the Conseil d’État, the principle could only apply in national law to situations regulated by EU Law, which, in the case of the Health Pass, was “not the case” (para. 19 of this decision here).

 

Interlude?

The paragraphs above attempt to draw a picture, however imperfect, of the level of civic engagement by French citizens in relation to the Covid-19 crisis. They show the arguments developed in the public square against the restrictions of rights and freedoms imposed to preserve the constitutional objective of public health. Political philosopher Pierre Manent calls this type of engagement the opération civique, or  “civic operation”: the gathering together, and the dialogue, of citizens, through public institutions, in order to build and preserve the polis, the political institutions that will not only protect human freedom, but also allow it to flourish. The State does not have a voice of its own. It can only speak for the Nation, for the citizens. Citizens, in turn must be committed to the “civic operation” of speaking through public institutions and dictating its conduct to the State. The “civic operation” is indeed the indispensable engine for society. In the current Covid 19 crisis, it is the only true bulwark against an erring State, which could be too often tempted to go too far in the name of public health. The dynamic, diverse and incredibly active civic operation demonstrated by French citizens in the last few months can be seen in this light: the exercise of their capacity to be, and remain, free human citizens, human beings.

In early November, the French Parliament voted the prolongation of Covid 19 measures until 31 July 2022. The Conseil constitutionnel considered that this was not unconstitutional. In this context of self-reinforcement of State powers, it has become important, necessary, to continue observing and witnessing to the opération civique in France.

 

 

 

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