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Decision no. 2015-458 QPC of 20 March 2015

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Mr and Mrs L. [Compulsory vaccination]

On 15 January 2015, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, judgments no. 7873 of 13 January 2015) raised on behalf of Mr Marc L. and Mrs Samia S., wife of L., by Emmanuel Ludot Esq., Attorney at the Reims bar, regarding the compatibility of Articles L. 3111-1 to L. 3111-3 and L. 3116-2 of the Public Health Code and Article 227-17 of the Criminal Code with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Public Health Code;

Having regard to the Criminal Code;

Having regard to Ordinance no. 2000-548 of 15 June 2000 concerning the legislative part of the Public Health Code;

Having regard to Law no. 2002-303 of 4 March 2002 on the rights of patients and the quality of the health system;

Having regard to Law no. 2004-806 of 9 August 2004 on public health policy;

Having regard to Ordinance no. 2005-759 of 4 July 2005 reforming the rules governing filiation;

Having regard to Law no. 2007-293 of 5 March 2007 reforming child protection;

Having regard to Law no. 2009-61 of 16 January 2009 ratifying Ordinance no. 2005-759 of 4 July 2005 reforming the rules governing filiation and amending or repealing miscellaneous provisions on filiation;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations filed on behalf of the applicants by Ludot Esq., registered on 19 January and 9 February 2015;

Having regard to the observations of the Prime Minister, registered on 6 February 2015;

Having regard to the observations in intervention filed by Union Nationale des Associations Citoyennes de Santé ["National Union of Civic Health Associations"], registered on 22 January and 5 February 2015;

Having regard to the documents produced and appended to the case file;

Having heard Ludot Esq. on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 10 March 2015;

Having heard the Rapporteur;

1. Considering that Article L. 3111-1 of the Public Health Code, as in force following the enactment of the aforementioned Law of 9 August 2004, provides that:

"The vaccination policy shall be adopted by the minister with responsibility for health who shall set the conditions under which immunisation is required, state the necessary recommendations and publish the schedule of vaccinations after hearing the views of the High Council of Public Health.

"A decree may suspend the obligations provided for under Articles L. 3111-2 to L. 3111-4 and L. 3112-1 for all or part of the population, taking account of the development of the epidemiological situation and medical and scientific knowledge";

2. Considering that pursuant to Article L. 3111-2 of the Code as in force following the enactment of the aforementioned Law of 5 March 2007:

"Toxoid vaccinations against diphtheria and tetanus shall be compulsory, subject to any recognised medical counter-indication; they must be administered simultaneously. Persons vested with parental authority or who are responsible for the protection of children shall be held personally responsible for the implementation of this measure, and any ground for exemption must be provided upon admission to any school, nursery, holiday camp or other children's institution.

"A decree shall determine the conditions under which vaccinations against diphtheria and tetanus are to be administered";

3. Considering that pursuant to Article L. 3111-3 of the Code as in force following the enactment of the Law of 9 August 2004:

"The vaccination against poliomyelitis shall be compulsory, subject to any recognised medical counter-indication, at the age and under the circumstances determined by decree of the Conseil d'État, adopted after hearing the opinion of the National Academy of Medicine and the High Council of Public Health. Persons vested with parental authority or who are responsible for the protection of children shall be personally obliged to comply with this obligation";

4. Considering that pursuant to Article L. 3116-2 of the Code as in force following the issue of the aforementioned Ordinance of 15 June 2000:

"Public actions to prosecute the offences provided for under Articles L. 3111-1 to L. 3111-3 may be brought until the interested party has reached an age specified by decree for each category of vaccination";

5. Considering that pursuant to Article 227-17 of the Criminal Code as in force following the issue of the aforementioned Ordinance of 4 July 2005:

"The failure by the father or mother, without a legitimate reason, to comply with their legal obligations to the point of
endangering the health, safety, morals or education of their underage child shall be punished by a term of imprisonment of two years and a fine of EUR 30,000.

"The offence provided for under this article shall be regarded as equivalent to abandonment of the family for the purposes of Article 373(3) of the Civil Code";

6. Considering that, according to the applicants, by imposing an obligation to vaccinate against certain illnesses notwithstanding that the vaccines thereby made compulsory may represent a risk for health, the contested provisions violate the right to health guaranteed under the eleventh recital of the Preamble to the Constitution of 27 October 1946; that this risk is claimed to be particularly high for young children; that the illnesses for which these vaccines are compulsory have ceased to cause a significant number of victims on account of the improvement in living conditions; that the law does not provide for a prior medical examination enabling any medical counter-indications to be detected, of which the person may be unaware;

7. Considering that Article 227-17 of the Criminal Code does not specifically punish the failure to comply with an obligation to vaccinate; that the applicants' objections are directed solely against the obligation to vaccinate and not against the criminal punishment of this obligation; that the application for a priority preliminary ruling on the issue of constitutionality relates to Articles L. 3111-1 to L. 3111-3 of the Public Health Code;

8. Considering that pursuant to the eleventh recital of the 1946 Constitution, the Nation "shall guarantee to all, notably to children, mothers (···) protection of their health";

9. Considering that in adopting the contested provisions, the legislator imposed obligations to vaccinate underage children against diphtheria, tetanus and poliomyelitis under the responsibility of their parents; that it was thus intended to combat three illnesses which are extremely serious and contagious or not likely to be eradicated; that it charged the minister with responsibility for health with the task of defining and implementing the vaccination policy after hearing the views of the High Council of Public Health; that the legislator also vested the minister with the power to suspend each of these obligations to vaccinate by decree for all or part of the population in order to take account of the epidemiological situation and medical and scientific knowledge; that it finally stipulated that each of these obligations to vaccinate is only imposed subject to any recognised medical counter-indication;

10. Considering that the legislator is at liberty to define a vaccination policy in order to protect the health of individuals and society at large; that it is also at liberty to amend the provisions relating to this vaccination policy in order to take account of developments in scientific, medical and epidemiological knowledge; that it is not however for the Constitutional Council, which does not have a general appreciation and decision-making power of the same nature as that of Parliament, to call into question the provisions enacted by the legislator, having regard to the state of scientific knowledge, or to attempt to ascertain whether the health protection objective set by the legislator could have been achieved by alternative means, as the arrangements adopted by the Law are not manifestly inappropriate for the objective pursued;

11. Considering that it follows that, in enacting the contested provisions, the legislator did not violate the constitutional requirement of the protection of health as guaranteed under the 1946 Preamble;

12. Considering that the contested provisions, which do not violate any other right or freedom guaranteed by the Constitution, must be upheld as constitutional;

HELD:

Article 1 .– Articles L. 3111-1, L. 3111-2 and L. 3111-3 of the Public Health Code are unconstitutional.

Article 2. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 19 March 2015, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL, Mr Lionel JOSPIN and Ms Nicole MAESTRACCI.

Announced on 20 March 2015.