Last forward step entered into force.
The Constitutional Council has been the subject of four referrals on the bill strengthening health measures and will render its decision on August 5.
Charge to the "Sages" to say whether the text, which provides in particular for an extension of the health pass, the compulsory isolation of positive cases, and the compulsory vaccination of many professionals, is contrary to the Constitution.
This step is essential for the law to be promulgated and enter into application.
We take stock.
Why was the Constitutional Council seized?
Two groups of senators, a group of deputies (at least 60 parliamentarians each time) and the Prime Minister are at the origin of these referrals.
They want to ensure that certain provisions of the bill comply with the Constitution.
"When it comes to our public freedoms, constitutional control is always useful", justifies one of them.
Violation of the principle of equality before the law, the freedom to come and go, the right to lead a normal family and social life, the freedom to undertake ...
Why we are asking the @Conseil_constit to censor the #PassSanitaire as proposed by the government.
- Socialist and Allied MPs (@socialistesAN) July 26, 2021
As of July 20, Jean Castex had announced that he would seize the “Sages” once the law adopted by the Parliament. "Do not doubt it: our objective, as always, has been to take measures proportionate to the health situation, guaranteeing fundamental public freedoms and ensuring the development of the health security of our fellow citizens", he argued. during questions to the government. Four steps on a single text, "it is unusual but it is not unprecedented, especially in this legislature because there are two oppositions", notes the constitutionalist Jean-Philippe Derosier, professor of public law at the University of Lille .
When it is seized of the constitutionality of a law before its promulgation, the Council must rule "within one month or eight days in the event of urgency".
The nine members are former elected officials (such as former Prime Minister Laurent Fabius, who is its president) and jurists.
The former presidents are also part of it by right, but Nicolas Sarkozy and François Hollande have given up participating in the debates.
What will he base his decision on?
The Constitutional Council "will assess whether the legislature reconciles in a balanced way the contradictory constitutional requirements, rights and freedoms (in particular that of coming and going and that of undertaking on the one hand), health protection on the other", develops Jean-Philippe Derosier. "The Constitutional Council spends its life reconciling, as in another area, between religious freedom and secularism", adds Florence Chaltiel-Terral, professor of public law.
Insisting well on the fact that "everything remains possible given the difficulty of reconciling the rights and imperatives in balance in the constitutional equation", the jurist Nicolas Hervieu evokes several points, "which can most give rise to debate and therefore to intervention of the Council ”: the automatic isolation of people who test positive, the fate of employees subject to the“ health pass ”, as well as the authorization issued by only one of the parents to vaccinate a teenager between 12 and 16 years old.
To read also "The health pass, we will put an end to it the minute we can": Olivier Véran facing our readers ... unvaccinated
All the referrals do not relate to the same parts of the text, but the sanitary pass is often mentioned.
74 left-wing deputies notably point the finger at a possible "breach of the principle of equality".
"Given the deadlines set, it would not be possible for the entire population concerned, wishing to be vaccinated, to benefit from the vaccine doses prescribed before the entry into force of the device", they believe in their appeal, that Le Parisien s 'is provided.
They demand the censorship of 4 of the 12 articles of the text.
What will happen next?
Everything obviously depends on the decision that will be taken.
If the Constitutional Council “validates” the bill and the judge confirms the Constitution, the new legislation can be immediately promulgated by the Head of State.
The Wise Men could, however, provide "reservations of interpretation".
These "allow the judge to escape from the compliant / non-compliant alternative by declaring a provision compliant provided that it is interpreted (or applied) in the manner indicated by him", defines the Constitutional Council.
They also make it possible not to have to take the useful weapon out of censorship.
"It is a kind of manual, some jurists even believe that it elevates the role of the Constitutional Council to that of co-legislator", adds Florence Chaltiel-Terral.
What about censorship?
If it censors part of the text, it can still come into force, but without the passage concerned. “The government took a step forward on several points during the parliamentary debate, so I think the text could be declared constitutional, except for certain specific provisions, for example the history of shopping centers affected by the health pass [they were reintroduced in extremis in the law via a government amendment, editor's note] ”, judges the professor of public law Patrick Martin-Genier.
If it completely (or largely) censors the bill, which no expert predicts, it cannot come into effect. By virtue of article 62, paragraph 2, of the Constitution, “the decisions of the Constitutional Council are not subject to any appeal. They are binding on the public authorities and on all administrative and judicial authorities ”.