Jean-Philippe Derosier is Professor of Public Law at the University of Lille and a member of the Institut Universitaire de France. He maintains
a blog to analyze constitutional issues.
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FIGAROVOX. - The Constitutional Council validated most of the law on the health pass. Do you understand this decision?
Jean-Philippe DEROSIER. -
This decision is part of a jurisprudential movement of health crisis, which the Constitutional Council has been developing since March 2020. The Constitutional Council has rendered eight decisions concerning laws relating to the health crisis since its inception, identifying as a cardinal principle the objective of constitutional value of health protection, which allows it to temper other constitutional principles such as the freedom to come and go or to undertake.
It is not for the Constitutional Council to assess these measures from a political point of view, but to analyze whether the legislator, by acting politically, has subscribed to what is constitutionally feasible.
On the other hand, the Constitutional Council censures the provisions providing for the suspension of a fixed-term contract or a temporary worker who does not validate his medical history. The law "must be the same for everyone, whether it protects or punishes", reminds the Council ...
The Constitutional Council applies the principle of equality between employees on fixed-term contracts and those on permanent contracts.
He first recalled that the absence of the health pass could not constitute a reason for dismissal, but only a suspension of the activity, as wanted by the legislator and contrary to what the Minister of Labor was able to say. the day after the law was passed.
However, all employees, whether on permanent or fixed-term contracts, are in the same situation with regard to the health risk, therefore prohibiting them from being treated differently: this is what justifies this censorship.
This lack of breach of equality is also what guided the government, since it made the choice of an incentive policy for vaccination, through the health pass, which is not an obligation of vaccination.
Those who do not wish to be vaccinated are not excluded, as they can resort to PCR tests.
Thus, everyone has the choice to subscribe to the vaccination or not or not to participate in the activities for which it is necessary to have a health pass, which do not constitute imperative daily activities, but rather leisure activities.
We are living in a health crisis, which has certainly been going on for some time now, but the Constitutional Council guarantees that these restrictions on freedoms will end and this health pass will no longer be effective as of November 15, 2021.
Jean-Philippe Derosier
Contrary to the opinion of the Council of State, the Constitutional Council validates the closure of shopping centers, under the decision of the prefect ...
The law allows shopping centers to be subject to the health pass, by setting a threshold for the size of the center.
Each case must then be assessed on a case-by-case basis by the Prefect.
In particular, if the shopping center is an obligatory point of passage for taking public transport, such as the metro, the health pass cannot be requested.
Access to basic necessities obviously requires special attention.
What about hospitals and health centers?
Likewise for hospitals, the Constitutional Council clearly specifies that it is not a question of limiting access to care.
Thus, access to the hospital does not require a health pass, except for support or when it is a scheduled treatment, which makes it possible to organize oneself to provide for a PCR test.
Following the decisions of the Constitutional Council, would you say that health protection becomes the supreme value of our society?
I will not speak of supreme value, but of cardinal principle which justifies exceptional restrictions, as long as freedoms are guaranteed. We are experiencing a health crisis, which has certainly been going on for some time now, but the Constitutional Council guarantees that these restrictions on freedoms will end and this health pass will no longer be effective as of November 15, 2021. We continue to be part of a framework "Exceptional".
But health protection does not take precedence over all constitutional rules.
Censures were pronounced.
Likewise, it can be noted that the Council made a reservation concerning foreigners subject to expulsion and who must respect “health obligations”, under penalty of imprisonment.
These cannot relate to vaccination, but only to a test, otherwise the principle of human dignity would have been violated.
In spite of everything, we will have to be vigilant for our rights;
if the crisis is to last, these measures will have to be subject to legal and medical adjustments, so as not to disproportionately restrict the freedoms of each other.