Decision

Decision no. 2020-800 DC of 11 May 2020

Law extending the public health state of emergency and rounding out its provisions

On 9 May 2020, the Constitutional Council, in the conditions provided for by Article 61 of the Constitution, received a referral to review the law extending the public health state of emergency and rounding out its provisions, under number 2020-800 DC, from the President of the Republic.
It also received a referral, on the same date, from the President of the Senate.
On 10 May 2020, it also received a referral from Valérie RABAULT, Jean-Luc MÉLENCHON, André CHASSAIGNE, Joël AVIRAGNET, Marie-Noëlle BATTISTEL, Gisèle BIÉMOURET, Christophe BOUILLON, Jean-Louis BRICOUT, Luc CARVOUNAS, Alain DAVID, Laurence DUMONT, Olivier FAURE, Guillaume GAROT, David HABIB, Christian HUTIN, Régis JUANICO, Marietta KARAMANLI, Jérôme LAMBERT, Serge LETCHIMY, Josette MANIN, George PAU-LANGEVIN, Christine PIRES BEAUNE, Dominique POTIER, Joaquim PUEYO, Claudia ROUAUX, Hervé SAULIGNAC, Sylvie TOLMONT, Cécile UNTERMAIER, Hélène VAINQUEUR-CHRISTOPHE, Boris VALLAUD, Michèle VICTORY, Clémentine AUTAIN, Ugo BERNALICIS, Éric COQUEREL, Alexis CORBIÈRE, Caroline FIAT, Bastien LACHAUD, Michel LARIVE, Danièle OBONO, Mathilde PANOT, Loïc PRUD'HOMME, Adrien QUATENNENS, Muriel RESSIGUIER, Sabine RUBIN, François RUFFIN, Bénédicte TAURINE, Alain BRUNEEL, Marie-George BUFFET, Pierre DHARRÉVILLE, Jean-Paul DUFRÈGNE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Stéphane PEU, Fabien ROUSSEL, Hubert WULFRANC, Jean-Félix ACQUAVIVA, Jean-Michel CLÉMENT, Paul-André COLOMBANI, Frédérique DUMAS, Sandrine JOSSO, François-Michel LAMBERT and Paul MOLAC, Members of Parliament.
It also received a referral, on the same date, from Patrick KANNER, Éliane ASSASSI, Maurice ANTISTE, Cathy APOURCEAU-POLY, Viviane ARTIGALAS, Esther BENBASSA, Claude BÉRIT-DÉBAT, Jacques BIGOT, Joël BIGOT, Maryvonne BLONDIN, Éric BOCQUET, Yannick BOTREL, Martial BOURQUIN, Michel BOUTANT, Céline BRULIN, Thierry CARCENAC, Laurence COHEN, Pierre-Yves COLLOMBAT, Hélène CONWAY-MOURET, Roland COURTEAU, Cécile CUKIERMAN, Yves DAUDIGNY, Marie-Pierre de LA GONTRIE, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Alain DURAN, Vincent ÉBLÉ, Frédérique ESPAGNAC, Rémi FÉRAUD, Corinne FÉRET, Jean-Luc FICHET, Martine FILLEUL, Fabien GAY, Hervé GILLÉ, Guillaume GONTARD, Michelle GREAUME, Nadine GRELET-CERTENAIS, Annie GUILLEMOT, Laurence HARRIBEY, Jean-Michel HOULLEGATTE, Olivier JACQUIN, Patrice JOLY, Bernard JOMIER, Gisèle JOURDA, Éric KERROUCHE, Pierre LAURENT, Jean-Yves LECONTE, Claudine LEPAGE, Marie-Noëlle LIENEMANN, Jean-Jacques LOZACH, Monique LUBIN, Christian MANABLE, Didier MARIE, Rachel MAZUIR, Marie-Pierre MONIER, Franck MONTAUGÉ, Pierre OUZOULIAS, Marie-Françoise PÉROL-DUMONT, Christine PRUNAUD, Claude RAYNAL, Sylvie ROBERT, Pascal SAVOLDELLI, Jean-Pierre SUEUR, Sophie TAILLÉ-POLIAN, Rachid TEMAL, Jean-Claude TISSOT, Jean-Marc TODESCHINI, Jean-Louis TOURENNE, André VALLINI and Sabine VAN HEGHE, Senators.
Having regard to the following texts:

  • the Constitution;
  • Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
  • Regulation (EU) 2016/679 of the European Parliament and the Council of the European Union of 27 April 2016 related to the protection of natural persons concerning the processing of personal data and the free circulation of said data, and repealing Directive 95/46/EC (general regulation on data protection);
  • the Defence Code;
  • the Criminal Code;
  • the Code of Criminal Procedure;
  • the Public Health Code;
  • the Labour Code;
  • Act No. 78-17 of 6 January 1978 related to information systems, files, and freedoms;
  • Act No. 2019-774 of 24 July 2019 related to the organisation and the transformation of the healthcare system;
  • Act No. 2020-290 of 23 March 2020 emergency measures for responding to the Covid-19 epidemic;
    Having regard to the observations of the Government, registered on 10 May 2020;
    And after having heard the rapporteur;
    THE CONSTITUTIONAL COUNCIL DECIDED THAT:
  1. The President of the Republic, the President of the Senate, the applicant Members of Parliament and applicant Senators refer the law extending the public health state of emergency and rounding out its provisions. The President of the Republic requests that the Constitutional Council rule on the constitutionality of certain provisions of Articles 1, 3, 5, and 11 of this law. The President of the Senate requests that the Constitutional Council rule on the constitutionality of certain provisions of Articles 1, 3, 5, and 11 of this law, and on the constitutionality of its Articles 8 and 13. The applicant Members of Parliament and applicant Senators oppose certain provisions of its Articles 3, 5, and 11. The Senators also oppose the procedure for adoption of the law and certain provisions of its Article 1 and its Article 9.
  • Concerning the procedure for adoption of the law:
  1. The applicant Senators point out that, by imposing, for public health reasons, a limit on the number of Members of Parliament simultaneously present in the Chamber to seventy-five, according to a proportional representation of the groups, the Conference of presidents of the National Assembly (Conférence des présidents de l'Assemblée nationale) kept certain Members of Parliament from participating in debates concerning the law referred for review and from personally defending their amendments, violating the liberty of the Members of Parliament to carry out their duties and their right of amendment.
  2. As stated in Article 6 of the Declaration of Human and Civic Rights of 1789: “The Law is the expression of the general will. All citizens have the right to take part, personally or through their representatives, in its making.” The first section of Article 3 of the Constitution provides that: “National sovereignty shall vest in the people, who shall exercise it through their representatives and by means of referendum.” According to Article 26 of the Constitution: “No Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the performance of his official duties.” Article 27 of the Constitution provides that: “No Member shall be elected with any binding mandate.” These provisions require respect of the freedom of the Members of Parliament to carry out their duties.
  3. According to the first section of Article 44 of the Constitution: “Members of Parliament and the Government shall have the right of amendment. This right may be used in plenary sitting or in committee under the conditions set down by the Rules of Procedure of the Houses, according to the framework determined by an Institutional Act.”
  4. On 21 April 2020, the Conférence des présidents de l'Assemblée nationale decided that, as of 28 April 2020, due to the public health situation, the Chamber where the Members of Parliament meet could only receive, with presidents of groups or their representatives included, seventy-five Members of Parliament, according to a set proportional distribution of political groups. On 5 May 2020, it restated this rule for the organisation of lectures in public session concerning the text that is the source of the law referred for review.
  5. However, if the applicant Senators allege that the Members of Parliament would have indeed been prevented from participating in votes or presenting their amendments, they did not state as such. Moreover, the parliamentary proceedings does not show that the Members of Parliament who came for the debates, to defend their amendments, or take part in votes would have been denied the right to do so. Consequently, the objections must be dismissed.
  • Concerning certain provisions of Article 1:
  1. Paragraph II of Article 1 of the law referred for review introduces Article L. 3136-2 into the Public Health Code concerning the conditions engaging criminal responsibility in case of a public health catastrophe.
  2. The President of the Republic and the President of the Senate ask the Constitutional Council to review the conformity of the provisions with the constitutional principle of equality before criminal law. According to the applicant Senators, these provisions violate this principle once they are able to create the effect of relieving certain “decision-makers” of any criminal responsibility. They also esteem that these provisions are judged as not acting fully within the competence of jurisdiction (incompétence négative) as the provisions would be imprecise concerning the acts to which they might apply, and concerning the means at the disposal of the offender needing to be taken into consideration to evaluate that person's responsibility.
  3. According to Article 6 of the Declaration of Human and Civic Rights of 1789, the law “must be the same for all, whether it protects or punishes.” The principle of equality before criminal law does not prevent the legislator from differentiating between different types of actions.
  4. According to Article 34 of the Constitution, the legislators themselves are required to set the scope of application of criminal law.
  5. According to paragraphs 3 and 4 of Article 121-3 of the Criminal Code, an unintentional offence is present “where the law so provides, in cases of recklessness, negligence, or failure to observe an obligation of due care or precaution imposed by any statute or regulation, where it is established that the offender has failed to show normal diligence, taking into consideration where appropriate the nature of his role or functions, of his capacities and powers and of the means then available to him. - In the case as referred to in the above paragraph, natural persons who have not directly contributed to causing the damage, but who have created or contributed to create the situation which allowed the damage to happen who failed to take steps enabling it to be avoided, are criminally liable where it is shown that they have broken a duty of care or precaution laid down by statute or regulation in a manifestly deliberate manner, or have committed a specified piece of misconduct which exposed another person to a particularly serious risk of which they must have been aware.”
  6. In application of Article L. 3136-2 of the Public Health Code, Article 121-3 of the Criminal Code is applicable “taking into consideration the capacities, power, and means the offender had at his disposal in the crisis situation justified the public health state of emergency, as well as the nature of his role or functions as a local authority or an employer.”
  7. The disputed provisions do not therefore differ from those of ordinary law and apply in the same way to any person having committed an act that may constitute an unintentional criminal offence in the crisis situation having justified the public health state of emergency. Consequently, they do not violate the principle of equality before criminal law. They are also not judged as not acting fully within the competence of jurisdiction (incompétence négative). As they do not violate any other constitutional requirements, they therefore conform to the Constitution.
  • Concerning the provisions of Article 3 relating to transportation, establishments receiving the public, meeting places and requisitioning:
  1. 2° and 4° of Article 3, modifying 1°, 5° and 7° of paragraph I of Article L. 3131-15 of the Public Health Code, which allows the Prime Minister, in territorial divisions where the public health emergency is declared, to engage certain measures regulating transportation, establishments receiving the public and meeting places, and ordering requisitions.
  2. The President of the Senate asks the Constitutional Council to rule on the conformity of these provisions with individual freedom. The applicant Senators are critical of these provisions for allowing public authorities to requisition persons, even in the case where said requisitions would not be necessary for the use or operation of the services being requisitioned. This results in a violation of individual freedom, the freedom of movement, the right to personal privacy, and the right of free enterprise.
  3. Secondly, according to the eleventh section of the Preamble of the Constitution of 1946, the Nation “shall guarantee to all... protection of their health”. From this comes an objective of constitutional value of the protection of health.
  4. The Constitution does not exclude the possibility for the legislator to provide for a governmental system of a public health state of emergency. In this situation, the legislator must ensure the reconciliation between the constitutional value of protecting health and the respect of the rights and freedoms recognised for all individuals who live in the territory of the French Republic. Among these rights and freedoms are the freedom of movement, a part of individual freedom, protected by Articles 2 and 4 of the Declaration of Human and Civic Rights of 1789, the right to personal privacy guaranteed by this Article 2, the right of free enterprise that comes from this Article 4, as well as the right of collective expression of ideas and opinions that comes from Article 11 of this declaration.
  5. 1° of paragraph I of Article 3131-15 of the Public Health Code allows the Prime Minister to regulate or prohibit the movement of persons and vehicles, and to regulate access to means of transport, as well as the conditions of their use. These provisions infringe on the freedom of movement.
  6. 5° of the same paragraph authorises the Prime Minister to order the provisional closing and to regulate the opening of establishments receiving the public, as well as meeting places. These provisions infringe on the right of free enterprise and, in that they limit the freedom of assembly, on the right of collective expression of ideas and opinions.
  7. 7° of the same paragraph allows the Prime Minister to order the requisition of all persons and all goods and services necessary for combating the public health catastrophe.
  8. Firstly, the abovementioned measures can only be pronounced when the public health state of emergency has been declared. Such an emergency can only be declared, as provided for in Article L. 3131-12 of the Public Health Code, “in the case of a public health catastrophe that puts the population's health in danger due to its serious nature.” Next, under the terms of Article 3131-14 of the same code, these measures cease to be in effect at the latest at the same time as the ending of the public health state of emergency. This state of emergency, declared by decree in the Council of Ministers, must, after a delay of one month, be extended by a law that sets the duration, after the issue of an opinion by the committee of scientists provided for by Article L. 3131-19. Lastly, under the terms of the first section of paragraph I of Article L. 3131-15, the disputed measures can only be carried out in order to protect public health. According to paragraph III of the same article, they must be strictly proportional to the public health risks faced, and appropriate for the circumstances of time and place. The state of emergency is ended without delay when the measures are no longer necessary. The court is responsible for ensuring that the measures are appropriate, necessary, and proportional to the result they are pursuing.
  9. Secondly, on the one hand, by applying 5° of paragraph I of Article L. 3131-15, the measures related to establishments receiving the public and to meeting places, which do not include residential premises, must be reconciled with guaranteeing that people have access to essential goods and services. On the other hand, the requisition of persons, goods and services permitted by 7° of the same paragraph I must be “necessary for combating the public health catastrophe”. Moreover, these requisitions give rise to compensation according to the conditions provided for in the Defence Code.
  10. It follows from the foregoing that, by adopting the disputed provisions, the legislator carried out a balanced reconciliation between the aforementioned constitutional requirements.
  11. Consequently, 1°, 5°, and 7° of paragraph I of Article L. 3131-15 of the Public Health Code, which violate no other constitutional requirements, conform to the Constitution.
  • Concerning the provisions of Articles 3 and 5 relating to quarantine measures and isolation measures:
  1. 5° of Article 3, and Article 5 modify Article L. 3131-15 and Article L. 3131-17 of the Public Health Code in order to define the scope of application and the system of quarantine measures, isolation measures, and measures for maintaining isolation that may be ordered in case a public health state of emergency is declared.
  2. The President of the Republic asks the Constitutional Council to review the conformity of the first two provisions with the Constitution.
  3. The President of the Senate asks the Constitutional Council to rule on the conformity of these provisions with the freedom of movement, the right to have a normal family life, the right to effective legal protection, as well as with Article 66 of the Constitution.
  4. The applicant Members of Parliament contend that the quarantine measures, isolation measures, and measures for maintaining isolation violate the freedom of movement and individual freedom. They point out that the quarantine measures do not benefit from the same guarantees as those of isolation, in that they do not require that a medical certificate be provided to confirm its necessity. They also denounce the insufficient effectiveness of the right to legal protection protection before a judge deciding on provisional detention, without having provided for automatic referral in the forty-eight hours following the issue of quarantine measures or isolation measures. Moreover, they denounce the imprecision of the terms “appropriate residence”.
  5. The applicant Senators join the applicant Members of Parliament in their criticism concerning Article 66 of the Constitution, denouncing the systematic absence of information from the judge deciding on provisional detention when the quarantine measures and isolation measures are issued, and the lateness of the intervention of the judge.
    . Concerning the objections to the violation of Article 66 of the Constitution and the right to effective legal protection:
  6. According to Article 66 of the Constitution: “No one shall be arbitrarily detained. - The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute.” Individual freedom, which the Judicial Authority is charged with protecting should not be impeded by unnecessary rigour. The infringement to the exercise of this freedom must be appropriate, necessary, and proportional to the pursued objectives.
  7. According to Article 16 of the Declaration of Human and Civic Rights of 1789: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” This provision guarantees that the persons concerned have access to effective legal protection.
  • Concerning the types of quarantine measures, isolation measures, and measures for maintaining isolation:
  1. By applying 3° and 4° of paragraph I of Article L. 3131-15 of the Public Health Code, the Prime Minister, the minister in charge of health, and, upon receipt of their authorisation, the prefect may order placing individuals in quarantine that are likely to be affected by the illness that is the cause of the public health catastrophe that justified the declaration of the public health state of emergency, only for the protection of public health. This also includes placing affected persons in isolation and maintaining their isolation for an initial period that cannot exceed fourteen days, renewable up to a maximum duration of one month. As part of these measures, the sixth section of paragraph II of Article 3131-15 provides that the person concerned may be required to not leave their domicile or their residence where they are quarantining or isolating, excluding specific movements that the administrative authority has authorised them to make. This measure can also consist of complete isolation, which prohibits “any movement”.
  2. In case of prohibition of any movement, the quarantine measures, isolation measures, and measures for maintaining isolation constitute custodial measures. This also applies when they require the person concerned to remain at their domicile or in their residence for a specific time span of more than twelve hours per day.
  • Concerning the proportionality of the infringement on individual freedom:
  1. In the first place, the purpose of quarantine measures and isolation measures, as defined in Article 1 of the 2005 International Health Regulations, referred to by the disputed provisions, is to ensure that the rest of the population is kept away from the persons that are subject to the measures, by requiring that they isolate themselves, completely, if necessary, in order to prevent the spread of the illness that is the cause of the public health catastrophe. By adopting these provisions, the legislator has pursued the objective of constitutional value of the protection of health.
  2. In the second place, the quarantine measures, isolation measures, and measures for maintaining isolation can only be issued and implemented in the case of a public health state of emergency, according to the conditions specified in paragraph 21.
  3. In the third place, these measures can only target persons who have travelled during the previous month in a zone where the infection was present, who enter onto the national territory or who, already on national territory, arrive in Corsica or in one of the territorial communities mentioned in Article 72-3 of the Constitution.
  4. In the fourth place, the quarantine measures, isolation measures, and measures for maintaining isolation are issued in an individual reasoned decision by the prefect, on proposal of the director of the regional health agency. This decision mentions the appeal procedures and their time frames, as well as the methods for referring to the judge deciding on provisional detention. In case of being placed in isolation, the decision, which is subject to medical diagnosis of the infection of the person, can only be made when a medical certificate is presented. These measures can only be extended beyond a time period of fourteen days after a medical opinion that establishes the need for this extension.
  5. In the fifth place, the person can choose to be quarantined or isolated either in their domicile or in an appropriate residence.
  6. In the last place, the quarantine measures, isolation measures, or measures for maintaining isolation come to an end prior to their established term when the person's health allows.
  7. It follows from the foregoing that the legislator set the proper conditions to ensure that these measures are only implemented in the cases where they are appropriate, necessary, and proportional to the condition of the persons affected or likely to be affected by the illness that is the cause of the public health catastrophe.
  • Concerning the monitoring of quarantine measures, isolation measures, and measures for maintaining isolation:
  1. Individual liberty can only be considered protected if the judge intervenes in the shortest time frame possible.
  2. In the first place, the quarantine measures, isolation measures, and measures for maintaining isolation may, at any moment, be subject to appeal by the person concerned or by the district prosecutor before the judge deciding on provisional detention, in order to withdraw the measure in question. The judge deciding on provisional detention can also, on their own initiative, at any time, rule within a delay of seventy-two hours by a reasoned ordinance that is immediately enforceable.
  3. In the second place, the provisions of the fifth section of paragraph II of Article L. 3131-17 provide that the quarantine measures or isolation measures that prohibit any movement on the part of the person concerned from the location where the quarantine or isolation is carried out, cannot continue beyond fourteen days, unless the prefect makes a prior referral to the judge deciding on provisional detention and said judge has authorised an extension. However, no systematic intervention of a judicial judge is provided for in the other assumptions. Consequently, these provisions may not, without violating the requirements of Article 66 of the Constitution, allow for the extension of quarantine measures or isolation measures that require the person concerned to remain at their domicile or residence for a set time span of more than twelve hours per day without the authorisation of a judicial judge.
  4. It follows from the foregoing that the first and third to sixth sections of paragraph II of Article L. 3131-15 of the Public Health Code and, subject to the reservation specified in the previous paragraph, paragraph II of Article L. 3131-17 of the same code, do not violate the requirements of Article 66 of the Constitution. These provisions also do not violate the right to effective legal protection.
    . Concerning the objection related to the violation of the freedom of movement:
  5. As part of the quarantine measures, isolation measures, and measures for maintaining isolation, in addition to prohibiting movement, the administrative authority can forbid the person concerned from visiting certain places or types of places.
  6. However, given the objectives pursued and the guarantees that frame these provisions, as they are specified in paragraphs 34 to 39, they do not violate the freedom of movement.
  7. It follows from the foregoing that the first and third to seventh sections of paragraph II of Article L. 3131-15 of the Public Health Code, as well as paragraph II of Article L. 3131-17 of the same code, which also does not violate the right to have a normal family life, nor does it violate any other constitutional requirement, subject to the reservation specified in paragraph 43 concerning paragraph II of Article L. 3131-17, conform to the Constitution.
  • Concerning certain provisions of Article 8:
  1. Article 8 modifies Article L. 3115-10 and Article L. 3131-1 of the Public Health Code, in order to extend the monitoring system that is applicable to quarantine measures, isolation measures, and measures for maintaining isolation that are issued in case of a public health state of emergency to those same measures when they are used in the effort to fight international propagation of illnesses or in case of a serious public health threat.
  2. For the same reasons as those specified in paragraphs 42 and 43, and subject to the reservation specified in paragraph 43, these provisions do not violate the aforementioned constitutional requirements.
  3. It follows from the foregoing that, subject to the reservation specified in paragraph 43, the words “According to the conditions provided for in paragraph II of Article L. 3131-17” in the first sentence of Article 3115-10 of the Public Health Code, as well as the reference “L. 3131-17” located in the third section of Article L. 3131-1 of the same code, conform to the Constitution.
  • Concerning certain provisions of Article 9:
  1. 1° of Article 9, and the second section of 2° of Article 9 insert a fifth and seventh section into Article L. 3136-1 of the Public Health Code, in order to allow deputy judicial police agents and authorised transport service agents to issue citations for certain offences related to prohibitions and requirements in force during the public health state of emergency.
  2. According to the applicant Senators, these provisions would go against the principle of placement of the judicial police under the direction and control of the judicial authority. The provisions relating to transport service agents would also be contrary to the principle that offences and penalties must be defined by law, without clearly determining the offences for which these agents can issue citations.
  3. In the first place, from Article 66 of the Constitution, it follows that the judicial police must be placed under the direction and control of the judicial authority.
  4. On the one hand, according to the fifth section of Article L. 3136-1 of the Public Health Code, the violation of prohibitions or obligations, other than requisitions, enacted pursuant to Articles L. 3131-1, and L. 3131-15 to L. 3131-17 of the same code, may result in a citation from deputy judicial police agents mentioned in 1°, 1° bis, and 1° ter of Article 21 of the Code of Criminal Procedure. As such this concerns the civil servants of the active services of the national police not having the designation of agent or judicial police officer, certain military volunteers and operational reservists of the national gendarmerie, certain members of the civil reserves of the national police and security deputies. The prerogative thus recognised in these agents is limited to issuing citations that do not require enquiry on their part.
  5. On the other hand, the first sentence of the seventh section of Article L. 3136-1 of the Public Health Code is limited to allowing authorised agents of transport service operators or their subcontractors, and those in the internal security services of the national railway company, SNCF, and the autonomous operator of Parisian transports, RATP, to issue citations that sanction the violation of prohibitions or obligations issued in application of 1° of paragraph I of Article L. 3131-15 of the same code in terms of the use of rail or guided transport services and public road passenger transport. This power is limited when such offences are committed in the vehicles and on the rights-of-way of these transport services.
  6. Consequently, given the prerogatives given to these two categories of agents, the disputed provisions do not go against the requirements that arise from Article 66 of the Constitution.
  7. In the second place, since the disputed provisions themselves establish neither offence nor penalty, the objection related to the violation of the principle that offences and penalties must be defined by law must be dismissed.
  8. Consequently, the fifth section and the first sentence of the seventh section of Article L. 3136-1 of the Public Health Code, which violates no other constitutional requirements, conform to the Constitution.
  • Concerning certain provisions of Article 11:
  1. Article 11 organises the conditions under which the medical information of persons who have contracted Covid-19 and of those who have been in contact with them may be shared with certain professionals that are in charge of researching transmission chains.
    . Concerning paragraphs I to III and V:
  2. According to the applicant Members of Parliament, some of the provisions of this article would violate the right to personal privacy and would be judged as not acting fully within the competence of jurisdiction (incompétence négative). In this case, they criticise the scope and the sensitive nature of the data collected, the absence of a system to make the data anonymous, the overly significant number of persons who would have access to this information, and the referral to a decree to set the rules of authorisation for access to the data or the interconnection of files. They esteem that the guarantees that frame the system are insufficient, specifically that they do not provide for the consent on the part of the persons whose information is gathered and shared, or the normal exercise of rights to access, view and correct said information. They also are critical of these provisions for not having provided for a mechanism allowing for ending, in a proactive manner, the use of the information. The applicant Senators also denounce the violation of the right to personal privacy that would come from the broad scope of information collected that is allowed by Article 11. Moreover, they esteem that these provisions, which derogate the requirement of consent to processing of data, while maintaining the right of the persons concerned to oppose such processing, would be unintelligible.
  3. Based on the right to personal privacy, the collection, recording, retention, consultation and disclosure of personal information must be justified by the general interest, and carried out in a manner that is appropriate and proportional to this objective. When this concerns personal medical information, particular vigilance should be observed in carrying out these operations and the determination of the methods used for them.
  4. Article 11 provides that, by derogating the requirement set in Article L. 1110-4 of the Public Health Code, the personal information relating to the health of persons having contracted Covid-19 and the persons in contact with them may be processed and shared, without the consent of the persons concerned, within the context of an ad hoc information system, as well as in the case of an adaptation of the information systems relating to already existing healthcare data. The collection, processing and sharing of information concern not only the personal medical information of the persons concerned, but also certain elements of identification and the contacts that they have made with other persons. This being the case, the disputed provisions infringe on the right to personal privacy.
  5. However, in the first place, by adopting the disputed provisions, the legislator has undertaken to reinforce the means of combating the Covid-19 epidemic, by identifying the transmission chains. As such, the legislator has pursued the objective of constitutional value of the protection of health.
  6. Next, the collection, processing, and sharing of the aforementioned personal information can only be implemented when strictly necessary to accomplish one of the four following objectives: 1) the identification of persons that have contracted Covid-19, through the requirement and pursuit of relevant medical examinations, and the collection of the results of those examinations, as well as the transmission of conclusive clinical diagnostic elements; 2) the identification of persons who have been in contact with these infected persons who risk being infected themselves; 3) orienting these infected persons and those they have been in contact with to preventive medical isolation measures, as well as accompanying them during and after these isolation measures; 4) national and local epidemiological monitoring, as well as research on the virus and the means to combat its spread.
  7. Lastly, the proposed system explicitly excludes the development or deployment of an information system application for public use and available on mobile devices that makes it possible to inform persons of the fact that they have been in proximity of persons that have been positively diagnosed as having Covid-19.
  8. In the second place, on the one hand, the legislator limited the scope of personal medical information likely to be subject to collection, processing, and sharing to only the information related to the viral or serological status of persons concerning Covid-19 or the conclusive elements of clinical diagnostics and medical imaging outlined by decree by the Conseil d'État after consultation with the French high council of public health (Haut Conseil de la santé publique). On the other hand, as part of the first three objectives mentioned above, the other personal information concerned is information that allows for the identification of the persons concerned and that specify the contacts that an infected person has had, at the time when that person could have been infected, and during the period where that person was likely to contaminate other persons. The legislator thus restricted the scope of the personal information subject to the disputed system to only the information that is strictly necessary for carrying out the first three objectives mentioned above.
  9. Concerning the last objective, relating to epidemiological monitoring and research to fight against the virus, it provides for the deletion of the first and last names of the persons concerned, as well as their registration number on the national register of identification of natural persons, and their address. Without infringing on the right to personal privacy, this requirement of deletion must also extend to the phone numbers and electronic messaging addresses of the persons concerned.
  10. In the third place, the following persons or entities may have access to the data in the information system: the health minister, the national public health agency (Agence nationale de santé publique), health insurance entities, the regional public health agencies, the armed services health agency, the professional regional health communities, healthcare / social / medico-social establishments, first aid teams mentioned in Article L. 1411-11-1 of the Public Health Code, health clinics, health centres, workplace health services mentioned in Article L. 4622-1 of the Labour Code, and the doctors caring for the persons concerned, pharmacists, systems supporting the coordination of complex healthcare issues provided for in Article L. 6327-1 of the Public Health Code, the specific regional systems provided for in Article L. 6327-6 of the same code, the existing support systems that serve to integrate them that are mentioned in paragraph II of Article 23 of the Act of 24 July 2019 mentioned above, as well as the laboratories and services authorised to carry out relevant biological or medical imaging examinations on the persons concerned.
  11. If the scope of the persons likely to have access to this personal information without the consent of the person concerned is particularly large, this extension is made necessary by the amount of tasks to undertake to organise the collection of the necessary information for combating the growth of the epidemic.
  12. However, the entities that provide social support to the persons concerned are also included in this scope for the sharing of information. Yet, as it is social support, which is not directly related to combating the growth of the epidemic, nothing justifies that the disclosure of personal information processed in the the information system not be subject to the request for consent from the persons concerned. Consequently, the second sentence of paragraph III of Article 11, which violates the right to personal privacy, is unconstitutional.
  13. Moreover, as provided for in paragraph III of Article 11, each entity is only called on to participate in the information system implemented for the part of its missions that are likely to correspond with one or the other of the objectives of this information system, and the entity only has access to the information necessary for its work. Also based on paragraph V of the same article, a decree from the Conseil d'État will provide further detail, within these entities, of the services and personnel for which the interventions would be, in this case, necessary, the categories of information to which they will have access, the duration of their access, and the rules concerning the retention of this information.
  14. Furthermore, as provided for in the sixth section of paragraph II of Article 11, the agents of these entities are not authorised to disclose the identification information of an infected person, without that person's express consent, to persons that have been in contact with the infected person. Moreover, and more generally, these agents are subject to the obligations of professional secrecy. As such, with the system implemented, they have access to information that they are not able to disclose to third parties. Disclosure of such information would be an offence under Article 226-13 of the Criminal Code.
  15. Lastly, it is up to the regulatory power to define the methods used to collect, process and share the information, ensuring strict confidentiality and, in particular, the specific authorisation of the agents in charge, within each entity, to participate in the implementation of the information system, as well as the traceability of the access to this information system.
  16. In the fourth place, paragraph V of Article 11 authorises the aforementioned entities to use subcontracting entities detailed by decree in the Conseil d'État for the purposes of carrying out their mission as part of the system in question. However, on the one hand, these subcontractors act on their own behalf and under their own responsibility. On the other hand, to respect the right to personal privacy, this use of subcontractors must be carried out in compliance with the requirements of necessity and confidentiality mentioned in paragraphs 71 to 73.
  17. In the fifth place, if these disputed provisions of Article 11 exempt the collection, processing, and sharing of personal medical information from the obligation to obtain the consent of the people concerned, they do not exempt these same entities from compliance with the provisions of the aforementioned Regulation of 27 April 2016 and Act of 6 January 1978 relating to the principles that govern the processing of personal information and the rights of persons whose information is collected, including their right to access, view and correct said information.
  18. In the sixth place, on the one hand, the system implemented by Article 11 cannot apply beyond the time strictly necessary to combat the spread of the Covid-19 epidemic or, at the latest, beyond six months after the end of the public health state of emergency declared by the aforementioned Act of 23 March 2020. On the other hand, the personal information collected, whether of a medical nature or not, must be deleted three months after it is collected.
  19. Lastly, paragraph V of Article 11 provides that the implementing decree of the law is issued after public consultation and assent of the French national commission on information systems and freedom (Commission nationale de l'informatique et des libertés). Yet, under the terms of Article 21 of the Constitution and subject to its Article 13, the Prime Minister has the power to make regulations at the national level. These provisions do not authorise the legislator to subordinate the Prime Minister's exercise of regulatory power to the assent of another governmental authority. Consequently, the word “compliant” in the first sentence of paragraph V of Article 11 is unconstitutional.
  20. It follows from the foregoing, subject to the reservations specified in paragraphs 67, 73, and 74, paragraphs I and II and the rest of paragraphs III and V of Article 11 do not violate the right to personal privacy. These provisions, which are also not judged as not acting fully within the competence of jurisdiction, nor as unintelligible, nor as violating other constitutional requirements, subject to the same reservations, conform to the Constitution.
    . Regarding paragraph IX:
  21. Paragraph IX of Article 11 defines the disclosure conditions for parliamentary assemblies on measures taken pursuant to this article.
  22. The separation of powers comes from Article 16 of the Declaration of Human and Civic Rights of 1789. According to the first section of Article 20 of the Constitution: “The Government shall determine and conduct the policy of the Nation.” Under the terms of Article 21 of the Constitution, the Prime Minister ensures the implementation of legislation. The principle of the separation of powers applies as regards the Government.
  23. The second section of paragraph IX of Article 11 requires the authorities mentioned in this article, the minister in charge of health, the national public health agency (Agence nationale de santé publique), health insurance entities, and to the regional health agencies (Agences régionales de santé) to transmit “without delay” to the National Assembly and the Senate a “copy of all acts” that they adopt in applying this article. It adds that the parliamentary assemblies may “demand any supplemental information” as part of the monitoring and evaluation of the measures implemented.
  24. The legislator should provide provisions that ensure that Parliament is informed so that it can, as provided for in Article 24 of the Constitution, monitor the actions taken by the Government and to evaluate public policy. However, by providing for an immediate disclosure to the National Assembly and the Senate of a copy of each of the acts adopted in application of Article 11 of the law referred for review, the legislator, given the number of acts concerned and the type of information concerned, violated the principle of the separation of powers and Articles 20 and 21 of the Constitution. Consequently, the second section of paragraph IX of Article 11 is unconstitutional.
  • Concerning Article 13:
  1. Article 13 provides that the provisions of 5° of Article 3 and those of 3° of Article 5 of the law referred for review modify the system of quarantine measures and isolation measures that can be issued in the event of a public health state of emergency that enters into force as from the publication of the decree mentioned in 3° itself, and at the latest on 1 June 2020.
  2. The President of the Senate asks the Constitutional Council to review the conformity of these provisions with Article 66 of the Constitution, as well as with the freedom of movement, the right to personal privacy, and the right to effective legal protection.
  3. Article 13 has the effect, when the law referred for review comes into force, of allowing the continuation of the current applicable quarantine measures and isolation measures in the event of a public health state of emergency until 1 June 2020 at the latest.
  4. Yet, if the last section of Article 3131-15 of the Public Health Code, in its currently applicable formulation provides that these measures must be strictly proportional to the public health risks faced, and appropriate for the circumstances of time and place, and that it is ended without delay when they are no longer necessary, the legislator did not provide any other guarantee with their implementation, specifically regarding obligations that can be imposed on persons subject to the measures, their maximum duration, and the review of these measures by the judiciary judge in the case where they would entail custodial measures.
  5. Consequently, Article 13 violates individual freedom. Without it being necessary to issue a ruling on the conformity of the other rights and freedoms invoked, it is therefore unconstitutional.
  • Concerning the other disputed provisions:
  1. The Constitutional Council has not systematically raised any question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1. - The following provisions of the law extending the public health state of emergency and rounding out its provisions are unconstitutional:
  • the second sentence of paragraph III of Article 11;
  • the word “compliant” in the first sentence of paragraph V of Article 11;
  • the second section of paragraph IX of Article 11;
  • Article 13.
    Article 2. - Subject to the reservations specified below, the following provisions conform to the Constitution:
  • Subject to the reservation specified in paragraph 43, paragraph II of Article L. 3131-17 of the Public Health Code in its formulation resulting from Article 5 of the law referred for review;
  • Subject to the same reservation specified in paragraph 43, the words “According to the conditions provided for in paragraph II of Article L. 3131-17” in the first sentence of Article L. 3115-10 of the Public Health Code, as well as the reference “L. 3131-17” located in the third section of Article L. 3131-1 of the same code in their formulation resulting from Article 8 of the same law;
  • Subject to the reservations specified in paragraphs 67, 73, and 74, paragraphs I and II, and the rest of paragraphs III and V of Article 11 of the same law.
    Article 3. - The following provisions conform to the Constitution:
  • Article L. 3136-2 of the Public Health Code, in its formulation resulting from Article 1 of the law referred for review;
  • 1°, 5° and 7° of paragraph I of Article L. 3131-15 of the Public Health Code, in its formulation resulting from Article 3 of the same law;
  • the first and third to seventh sections of paragraph II of the same Article L. 3131-15 in its same formulation;
  • the fifth section and the first sentence of the seventh section of Article L. 3136-1 of the Public Health Code, in its formulation resulting from Article 9 of the same law.
    Article 4. - This decision shall be published in the Journal Officiel of the French Republic.
    Ruled by the Constitutional Council in its 11 May 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.
    Published on 11 May 2020.
À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Texte adopté, Contributions extérieures , Saisine par Président de la République, Saisine par Président du Sénat, Saisine par 60 députés, Saisine par 60 sénateurs, Observations du Gouvernement, Dossier législatif AN, Dossier législatif Sénat, Références doctrinales.