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Health pass: the challenges before the Constitutional Council

2021-08-01T13:26:06.929Z


FIGAROVOX / TRIBUNE - Ten jurists highlight the breaches of the Constitution by the “health pass” law passed on July 25.


Guillaume Drago, François-Xavier Lucas, Stéphane Caporal, Nicolas Sild and Cyrille Dounot are teachers;

Capucine Augustin, Santiago Muzio, Claire Perret, Jérôme Triomphe and Maxellende de la Bouillerie are lawyers.

The bill relating to the management of the health crisis, which establishes a vaccination obligation for some and a health pass for all, disproportionately runs up against a number of fundamental freedoms and therefore incurs censorship by the Constitutional Council.

A de facto vaccination obligation when not provided for by law

Subjecting the exercise of certain activities to the presentation of a "

Health Pass

" results in practice in an obligation of vaccination for personnel intervening (working) in the listed areas as well as for citizens wishing to access them: indeed, the constraint represented by having to go every 48 hours to an authorized center to have a nasal sample not reimbursed as of the fall (around 27 euros to date for a PCR test, i.e. 405 € per month) in centers that will probably be rarefied and congested (due to non-reimbursement) constitutes a measure having an effect equivalent to an obligation to vaccinate.

This indirect obligation, since not prescribed by law, violates Article 5 of the Declaration of the Rights of Man and of the Citizen of 1789 which states that "

no one can be forced to do what the law does not order

" .

An unconstitutional vaccine obligation

The vaccination obligation (consequence of the health pass or directly by law) to exercise certain professions violates the right to employment and the right not to be harmed because of his opinions or beliefs, protected by paragraph 5 of the Preamble of the Constitution of 1946 as by Article 8 of the Declaration of 1789 which guarantees freedom and requires the legislator to establish "

only penalties that are strictly and obviously necessary

". It also violates the principle of equality, individual freedoms, the principle of health protection, the right to physical integrity and dignity, the principle of equal access to public employment, the precautionary principle, inscribed in our constitutionality bloc.

Lack of justification by the nature of the task to be performed and lack of proportionality

Such a restriction on individual and collective rights and freedoms is unconstitutional because it is not justified by the nature of the task to be accomplished, is not proportionate to the aim sought and unjustified with regard to the object of the law (Constitutional Council, n ° 2018-757 QPC , January 25, 2019; n ° 2001 455-DC, January 12, 2002).

Indeed, if the goal sought with the pass is to guarantee, in a given place, the only presence of people "

protected

" against the SARS-CoV-2 virus, then people with antibodies should benefit from a pass and their exclusion is discriminatory.

If the goal is to guarantee the mere presence of people who do not present a "

risk

" of transmission of the virus to others, then the obligation of this pass constitutes an unjustified breach of equality with regard to the unvaccinated. compared to the vaccinated, since the former are forced to carry out a virological screening in order to guarantee that they are not carriers of the virus, while the latter are exempt from this obligation even though they can be carriers and contagious (Council of 'State, summary proceedings, April 1, 2021, n ° 450956).

The obligation to vaccinate certain categories of people is therefore a manifest error of assessment since it is presented as justified by the objective of combating the spread of the epidemic and of preserving the people with whom these people are obliged to get vaccinated will be in contact.

The sanitary pass is not justified either with regard to the nature of the task to be accomplished: what is the difference between the staff involved in commercial catering activities subject to the pass and those involved in collective or professional road and rail catering activities? who is not subject to it? What is the difference between the collective catering cashier in contact with many customers but not subject to the pass and the cook of the small neighborhood restaurant who does not rub shoulders with customers and is nonetheless subject to the pass?

What is the difference between psychologists or psychotherapists subject to compulsory vaccination when it has not been demonstrated, or even advanced, that the framework of their consultation would be conducive to the transmission of the virus and the employee in the department or in the cash register? a shopping center brought in every day to meet and interact with dozens of people not subject to the pass?

Depending on whether an elderly or disabled person is the holder of the personalized allowance for autonomy (APA) or the disability compensation benefit (PCH), his employee must be vaccinated or not.

But how would the employer's resources justify the employee's vaccination obligation with regard to the objective of alleged protection against the epidemic?

Personnel with a contraindication to the vaccine can exercise normally without a vaccine or negative virological screening.

However: If the bill were justified by a risk of transmission or contamination, these people should not work in the places identified as possible sources of contamination and the bill should then have provided for a system of temporary leave with maintenance of remuneration.

If the risk invoked can be avoided, for example, by respecting barrier gestures for these people, why can it not be avoided for others either?

Violation of the need for free and informed consent and the right to respect for physical integrity

As long as the vaccines available on French territory are still in phase 3 clinical trial - (until October 27, 2022 for Moderna and May 2, 2023 for Pfizer), they are experimental drugs used in a clinical trial ( Directive 2001/20 / EC, April 4, 2001, art. 2, d). The number of vaccines administered does not change this legal qualification. The European Medicines Agency has only issued a conditional marketing authorization (MA), with an unconditional MA only being able to take place at the end of clinical trials (EC Regulation n ° 726/2004, March 31, 2004, art. 6). However, a phase 3 vaccine can only be addressed to volunteers giving free and informed consent (Art. L. 1122-1-1, Public Health Code; Directive 2001/20 / CE; Nuremberg Code from 1947).The obligation therefore infringes the right to respect for physical integrity.

Violation of the precautionary principle of health

The vaccination obligation violates the principle of constitutional health precaution, since undesirable effects - 25% of which are serious - have already been observed in France by the National Agency for the Safety of Medicines and Health Products ( ANSM).

Violation of the right to vocational training

The obligation to vaccinate students in certain fields violates the right to vocational training protected by paragraph 13 of the Preamble to the 1946 Constitution. It is all the more disproportionate since young people are not a fragile population and do not run. particular risk of dying from Covid 19, not to mention the benefit-risk balance against the vaccine in their case.

Moreover, this obligation is essential even when the students are not in contact with vulnerable people.

Violation of the freedom to come and go, the principle of equality, the protection of health, the right to leisure and the best interests of the child

The requirement of a pass to access certain places or services violates the freedom to come and go, the principle of equality, the protection of health and the right to leisure (articles 2 and 4 of the Declaration of 1789 , paragraphs 10 and 11 of the Preamble to the Constitution of 1946). The strong constraints imposed on those who do not present a pass do not respect the principle of proportionality (necessity, adaptation, proportionality proper), and are not justified by the objective sought.

We note that the general conditions of public health, mentioned by the Council of State, exert a major influence on the obligations imposed by the public authorities.

However, they are eminently variable, changing, justifying adaptable measures themselves.

Everyone can see how great the uncertainties are, both with regard to the effects of the vaccine itself, and with regard to the pandemic, its development, its variants which many doctors point out are more contagious but less virulent. , etc.…

The measures contained in the bill by their generality constituting serious constraints on daily life are not proportionate to the changing and largely unknown risks and to the general public health conditions arising from paragraph 11 of the Preamble of 1946.

In addition, the violation of the constitutional principle of guaranteeing health is obvious because a person can only receive scheduled care if he (and also his parents if he is a minor) present (s) a health pass. Likewise, the prohibition on visiting a person accommodated in a health or medico-social establishment violates this principle of guaranteeing health which is, according to the WHO, "

a state of complete physical, mental and social well-being, and is not just an absence of disease or infirmity.

 ". However, loneliness, even more vulnerable people, endangers their mental health.

As for subjecting minors to the requirement of a health pass for day-to-day activities, this is contrary to the best interests of the child and to their right to leisure activities for their proper development.

Unconstitutional incompetence of the legislator

Finally by delegating to the prefect the possibility of imposing a health pass to access department stores, shopping centers and means of transport (metro, RER, bus!), The legislator ignored the extent of his jurisdiction, violating the article 34 of the Constitution.

We call on the Constitutional Council to fully assume its responsibilities so that the rule of law is respected.

Source: lefigaro

All news articles on 2021-08-01

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