The juge des référés is, in principle, the judge of interim orders. As Art. L511-1 CJA (French administrative justice code) states, he ‘decides by means of measures which have a provisional character’. But this simple description does not give the full picture. There are decisions which are provisional – a stay of execution in a deportation, interim payments in a contract action. For example, Art. L521-1 CJA empowers the judge to order the suspension of an administrative decision where there is urgency and there is a serious doubt about the legality of the administrative decision in question. But a significant number of decisions will, in practice, be final. This applies especially in cases to do with fundamental rights. Art. L522-1 CJA provides that the judge may make an order to safeguard a fundamental freedom which the decision of a public body or a private body carrying out a public service has seriously and manifestly illegally infringed.
The Covid-19 crisis illustrated the use that can be made of this procedure to undertake a definitive and not merely a provisional challenge to Government decisions. Three clear examples can be given. In the first, Bicycles,at the beginning of ‘confinement’ (the French more elegant term for ‘lockdown’), different local administrations interpreted the rules laid down in the Government decrees in different ways. The prefects and police in various parts of the country interpreted Art. 3 no. 5 of the decree of 23 March 2020 as excluding cycling and closed cycle lanes, and a number of cyclists were fined for breaching the decree. That article provided, inter alia, that, until 11 May, people should stay in their homes except for ‘brief excursions, limited to one hour a day and within a maximum of one kilometre around their home, connected with individual physical activity’. Other parts of the article talked about ‘walks’ with others in their household or with animals, so local officials considered that ‘excursions’ should be of the same kind. This was challenged by the national cycling federation on 21 April, which sought an order directed to the Prime Minister that he issues an interpretative circular clarifying the scope of the rule so as to include cycling. The competence of the juge des référés under Art. L521-2 CJA was based on interference with the freedom of movement. After an oral hearing on 29 April, the Vice-President of the Conseil d’Etat on 30 April ordered that the Prime Minister issue a clarification to be disseminated widely on conventional and social media within the next 24 hours that people were free to use their bicycle for their daily exercise. This ruling was consistent with the interpretation agreed at an inter-ministerial meeting on 24 April, but not widely publicised and only given to the court on the day of the hearing. Although satisfying the cycling federation for the future, the Conseil had no power under Art. L521-2 CJA to quash any fines imposed on cyclists, who were left to appeal through the normal channels of the criminal process. Nor could the court direct public authorities to re-open cycle routes.
Enforcement of the very strict rules imposed in France from 4 March 2020 was obviously a problem, especially the very restricted movements permitted to people outside their homes, which came into force on 17 March. On 18 March, the Prefect of Paris decided to use drone fitted with CCTV cameras to assist in enforcement of confinement rules, especially to identify possible group gatherings. Although not fitted with recording equipment, the cameras on the drones were fitted with zoom lenses and could transmit pictures enabling police units to be despatched to potential trouble spots. They were also fitted with a loudspeaker which could warn people to disperse or go home. This use of drone surveillance became public on 25 April and was challenged by civil liberties groups as being unauthorised in law. The claim was rejected on 5 May by the juge des référés of the TA Paris, but the appeal was allowed by the juge des référés of the Conseil d’Etat on 18 May. In the light of police explanations of the use made of the drones, the Conseil d’Etat found that the purpose of law enforcement was legitimate and that the surveillance without recording as such was not manifestly unlawful. But the drones did enable personal data to be collected in the form of images of people observed. The lack of prior authorisation of this activity by regulation breached by the EU GDPR of 2016 and domestic French legislation of 1978. Accordingly, the State was ordered to stop the use of drones forthwith in Paris. The decision was of more general significance as the Ministry of the Interior had launched a tendering process for 650 drones for police purposes on 12 April (see Le Monde article which specifically mentions the use of drones in enforcing the confinement – see also this).
Once 11 May 2020 was reached, the Government issued a number of ‘deconfinement’ measures. Various Catholic organisations, including the president of the Christian Democrat Party, immediately challenged the decision not to allow churches to re-open for the conduct of religious services. Churches had been allowed to remain open, but without services, except for funerals (see Art. 8 IV of decree no. 2020-293).[1] The religious leaders had been consulted by the President of the Republic and the Catholic bishops had argued unsuccessfully for masses to restart on 11 May (here and here). But it is clear that good relations were established with the President and Prime Minister, which may explain why only dissident Catholics brought the initial judicial review. The approach of the mainstream bishops was less confrontational. After an oral hearing on Friday 15 May 2020, the Vice-President of the Conseil d’Etat issued an ordonnance on Monday 18 May requiring the Prime Minister within a week to amend the decree no. 2020-548 to permit gatherings and meetings within religious buildings. In fact, a new decree was issued on Friday 22 May setting out restrictions within which such religious events could take place and church services began to take place on the following day. The interferences with freedom of the individual related to the freedom of religion under the European Convention, but also to the rights protected under the Concordat with the Pope of 26 Messidor an IX (which still applies in Alsace-Lorraine) and arising from the law of 1905 on the separation of church and state (which relates to the rest of France). Basically, the court found the continuing outright ban on religious services to be disproportionate in its interference with a fundamental freedom. The disproportion in the balance between risk and interference with freedom was shown by comparison with other permitted activities which were riskier than meetings in religious buildings. For example, travel on public transport could not be limited to 10 or fewer people like other permitted public gatherings. People were to be allowed to go to shops, schools, and libraries where these were able to operate allowing a personal space of at least 4 m2. Other activities which continues to be prohibited did not involve the same kind of fundamental freedom as the freedom of the practice of religion. Furthermore, there was inadequate evidence to support the view that religious gatherings would cause serious harm. The main reason offered by the Government for the ban was that rules could not be designed for social distancing nor they could not be enforced effectively by the authorities in question, or that decontamination measures could not be taken. There had been no investigation of whether these concerns were sufficiently justified by the evidence to support the absolute ban on gatherings, other than funeral services for 20 persons or less. The Minister of the Interior had pointed to an outbreak which had followed a religious gathering of more than a thousand people in Mulhouse from 17-24 February. But the evidence that this was a cause of the outbreak was not sufficiently strong.
There is a clear attempt in these cases to challenge the decisions of Government by means of judicial review, rather than relying, as in England, on interpretations by ministers at press conferences to determine the right way forward. In the Church Gatherings case, the juges des référés had to reject an attempt to challenge the political declaration made by the Prime Minister on 28 April 2020 and the reasons he gave to the Assemblée Nationale for not opening churches for services. Only actual decisions, such as the decrees of 11 May could be challenged. But the three Covid-19 examples are illustrations of where the urgency aspect of the référé enables definitive decisions to be reached. In none of these cases would there be a later, final decision on the matter in hand. The Government’s compliance made further litigation redundant. At the same time, the court respects the legitimate freedom of the executive. In Bicycles, the court only gave effect to an interpretation which the Government had hastily drawn up once the litigation had started. In the Church Gatherings case, the court declined to rule on the suspension of the ban, having decided to give the Prime Minister a week to come up with a new decree on the matter.
In all the cases, NGOs and associations were able to have standing to challenge the Government. None of them were among those who were consulted before the administration acted. In the Church Gatherings case, the claimants were those dissident Catholics who had not been involved in the consultation process, with the Bishop of Metz only joining belatedly to defend the distinctive position of the church in Alsace-Lorraine. There had been no consultation by the officials either in Bicycles or Drones before the contested decisions were taken. Judicial review is serving as a safety valve where rapid decisions are being taken with limited political scrutiny.
The contrast with the lack of litigation in England on Covid-19 regulations reflects different styles of government. France adopted legal rules, written forms justifying going out of the home and rigorous enforcement by the police with on the spot fines. England did have rules, but they were more fluid and were largely enforced by peer pressure and police guidance, rather than by fines. Whereas in the first two months in England and Wales, some 14,000 fines were imposed, in France 760,000 were imposed in the first month alone.[2] It is not surprising that, if a legalistic approach is met by a legalistic response from those who contest the rules.
Posted by Professor John Bell (University of Cambridge)
[1] The ‘deconfinement’ rules were set out first in decree no. 2020-545 of 11 May 2020 and were then altered later that day by decree no. 2020-548. A number of claims filed too quickly with the Conseil d’Etat were declared inadmissible because they only challenged decree no. 2020-545 which had been replaced in certain relevant particulars by decree no. 2020-548! See CE Ordonnance 18 May 2020, Association Civitas, no. 440511 and CE Ordonnance 18 May 2020, Association cultuelle fraternité sacerdotale Saint-Pierre, no. 440519.
[2] The Guardian 27 May 2020; statistics from French Ministry of Interior to Senate 16 April 2020: https://actu.fr/societe/coronavirus/covid-19-plus-760-000-amendes-dressees-depuis-debut-confinement_33058159.html.
Picture/Credit: Dalloz/AJDA
British Association of Comparative Law 
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