While the appeals against the decrees generalizing the obligation to wear a mask are piling up before the administrative courts, the Council of State has just rendered a decision which should set the tone for the whole of France.
In two orders issued late Sunday evening, the highest French administrative court authorized, under conditions, the prefects of Bas-Rhin and Rhône to impose the mask in the open air in large areas, so that "this obligation is consistent and easy to apply for citizens ”.
"This is the first time that the Council of State has validated the generalization of the wearing of a mask on the scale of an entire city, in the name of the readability of the rule for the general public", underlines Pierrick Gardien, specialist lawyer in public law at the Lyon Bar and in charge of TD at the Catholic University of Lyon and at the Jean Moulin University - Lyon 3.
The Council of State has, however, set certain safeguards: in less dense municipalities, this obligation must in particular be limited to the city center.
"The wearing of a mask can thus be imposed on the whole of a densely populated municipality such as Lyon or Villeurbanne, but must be limited to the city center in less dense municipalities", specifies the institution in a press release.
In addition, people practicing physical or sports activities will be excluded from this constraint.
No more "street-by-street discussions"
At first instance, the administrative judges had ordered the prefects to limit the wearing of masks to particularly busy places and times.
The ordinances of the Council of State should therefore simplify the task of the public authorities, considers Pierrick Gardien.
“Prefects and mayors will no longer be obliged to enter into discussions street by street, sector by sector and hour by hour.
The Council of State says that it is not necessary to go into so many details, ”he analyzes.
An opinion that does not share Arnaud Gossement, lawyer specializing in public law in Paris.
“The prefects will have to define zones, by demonstrating that they include several zones at high risk of contamination and that there is an overall consistency.
I don't know if it's really simpler, ”asks the associate professor at the University of Paris I Panthéon-Sorbonne.
"While the judges of first instance were saying in substance: tell me which places are affected by the risk and justify yourself".
Another pitfall: litigation could well emerge around the notion of “densely populated municipality”, the contours of which have not been defined by the judge of the Conseil d'Etat.
“Dijon, is it a big city?
And Amiens?
The challenge now will be to determine what a big city is.
We have not left the hostel, ”mocks Me Fabrice Di Vizio, the lawyer for the Victims Coronavirus France association, who intends to challenge all the orders generalizing the wearing of masks.
An "effort of clarification"
What about restaurant terraces, from which customers can hide?
“In Paris, you have people seated at eight or ten on a terrace, without masks, for hours.
And the passers-by, who march past them, are masked.
This will pose a problem, ”anticipates the lawyer specializing in health law.
“Same inconsistency with the health protocol in companies, which allows some employees to work outside without a mask,” he insists.
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Nevertheless, the lawyer welcomes a "significant effort of clarification and proportionality" on the part of the Council of State.
“The decision is still satisfactory: the generalization of the wearing of masks is limited to large cities.
Finally, there is something for everyone.
The government is safe, by validating Strasbourg, Lyon and all the major cities.
And at the same time, on the majority of the territory, the mask cannot be imposed ”.
