The Covid-19 crisis put national legal orders under stress by its new dimension as a pandemic. If some countries had already faced similar health crises in their recent history, this was not the case of France. This can explain why this country enacted hectic measures which, for some of them, were completely contradictory: the Government first said that masks were useless to protect from the virus and some months later made it mandatory to wear them in public spaces. This type of policy evolution was due to the sudden apparition of the epidemic and also to the need for constant adaptation to the growing knowledge of the disease. Besides restrictive and supportive measures, which were the focus of the news because they affected directly the life of individuals, France also had to put in place an emergency legal regime to make possible the adoption of exceptional measures, such as a national lockdown. Putting very wide powers in the hands of the executive, especially those of the Prime Minister and the Minister of Public Health, the state of health emergency is worth analyzing. The study of its birth gives a better understanding on how the French legal order deals with exceptional circumstances (I) but also how former experiences of other types of crisis were fundamental to formulate the response to the Covid-19 crisis and even led to the reproduction of legal weaknesses (II). Overall, the French response appears to be mainly executive contrary to the opinion of Tom Ginsburg and Mila Versteeg (T. Ginsburg, M. Versteeg, “The Bound Executive: Emergency Powers During the Pandemic”, Virginia Public Law and Legal Theory Research Paper No. 2020-52, U of Chicago, Public Law Working Paper No. 747, July 26, 2020). If some judicial control can be found over regulatory measures enacted to fight the crisis, a minority of the judgments concluded to the illegality of the measures. Regarding the legislation, the Parliament was very passive and the Constitutional Council was very lenient towards adopted statutes. In this sense, no strong checks and balances were present even if the country did not transform into a genuine dictatorship.
I. Preexisting exceptional legal regimes
Prior to the crisis, France knew three derogatory regimes which could suspend the regular functioning of the State’s institutions in case of exceptional events. Two resulted from the Constitution itself (A) and one from a statute adopted on 3rd April 1955 (B). As a consequence, there are two categories of norms which can suspend the regular functioning of the national institutions fixed by the Constitution. If it is not surprising that constitutional norms can provide such derogations, the intervention of legislative statutes to declare a state of emergency is very peculiar since their normative value is inferior to the Constitution.
A. The irrelevance of constitutional derogatory regimes
The French Constitution of 1958 contains two derogatory regimes. The first one, similar to the roman dictatorship in its functioning, is the full power clause provided in article 16 of the Constitution which grants the President the power to take any measure required by exceptional circumstances which are qualified whenever there is a serious or an imminent threat to the Republic. It can be related to the integrity of the territory, the fulfillment of international commitments or even the proper functioning of constitutional public authorities. The adoption of this clause clearly echoed the impotence of the Government during the German invasion in 1940 and, as such, this article is deemed to be mobilized for events related to insurrection or warfare. Historically, article 16 was only used to tame the Algerian insurrection in 1961 when the country was still a French colony. From this presentation, it is quite clear that this article did not suit the Covid-19 crisis: there was no direct threat to the integrity of the country and its past uses also indicate that the full power clause should be used in times of war. Also, such an extreme tool is widely criticized by civil society and scholars because of the threat it presents to liberties, making it a very sensitive political move. It was thus not surprising that article 16 was not mobilized to respond to the Covid-19 pandemic.
Next to article 16, the French Constitution provides for a state of siege (article 36) which grants the military extensive powers in case of events presenting the character of a war or an armed insurrection. The consequences of the activation of the state of siege are not well known since it was never been used in the French history. Nevertheless, its aim does not fit a pandemic crisis and, as a consequence, the state of siege did not constitute an adequate answer to the Covid-19 crisis.
Subsequently, the French Constitution did not offer any solution to handle the Covid-19 crisis. The Government ended finding its inspiration in a statute adopted in 1955.
B. The state of emergency
The law n° 55-385 adopted on 3rd April 1955 created the state of emergency which can be used in “case of imminent peril resulting from serious violations of the public order or when events present the quality of public calamity by their nature or their importance”. It can be decreed for twelve days by the council of ministers and then extended by a statute voted in Parliament for a time fixed in the adopted text. Once declared, the state of emergency grants the Government extensive powers which can restrict public liberties (for instance, the power to decide house arrests). As a result, it curtails the rule of law because it can suspend constitutional liberties without any constitutional habilitation.
This system was instituted prior to the Constitution of 1958 and, as for article 16 of the Constitution, it was conceived to handle the Algerian war for independence. As such, it was used twice during these events. After that, the state of emergency was triggered only four other times during the Vth Republic: for the Algerian putsch in 1961, independentist insurrections in New Caledonia in 1985, riots in the suburbs of Paris in 2005 and the terrorist attacks in Paris in 2015.
It results from these experiences that the state of emergency is linked, in practice, to important threats to public safety and the integrity of the Nation. Moreover, its broad scope of application, especially in case of “public calamity” could have made it possible to use it for the Covid-19 crisis. The Government decided otherwise, probably because of the political image of this regime stemming from its history as a mean to repress violent threats. Moreover, legal scholars heavily criticize the state of emergency: some among them called it even a “legislative defect” (see O. Beaud, C. Guérin-Bargues, L’état d’urgence : une étude constitutionnelles, historique et critique, LGDJ, coll. Systèmes et perspectives, 2nd ed., 2018, esp. pp. 35-52).
Nevertheless, if the state of emergency was not used for the pandemic, it still greatly inspired the new regime put in place: the state of health emergency. This leads to wonder about thenecessity of such a duplication.
II. The state of health emergency: a derivative of the state of emergency
The state of health emergency was created by the law n° 2020-290 adopted on 23rd March. Its swift adoption was possible because this regime substantially copies the traditional state of emergency (A) which unfortunately also encompasses its legal weaknesses failing to propose a strong new legal regime (B).
A. The doppelganger of the state of emergency
Simply by its name, the state of health emergency directly reveals its nature: it is the remake of the state of emergency specifically for a health crisis and, as such, it was inserted in the Public Health Code (articles L. 3131-12 to L. 3131-20). Its mechanism is the following one: the council of ministers must decree the state of health emergency and indicates the reason of its use and specifies its territorial scope of application. It grants the Prime Minister extensive powers: he can restrict the freedom of movement, the freedom of assembly, economic freedoms and also order the requisition of any necessary goods, people or services as well as fixing the price of some products. The Parliament can extend its duration for any period it decides.
If the period for which the state of health emergency can first be decreed and some of the powers granted to the executive differ from the regular state of emergency (especially it grants the Health Minister some special powers), the state of health emergency is extremely similar to the functioning of the traditional state of emergency. Its adoption relies on a political choice the Government made with the support of the Council of State and which wants to distinguish exceptional legal regimes according to their subject-matter instead of remastering the state of emergency to make it fit different type of crisis. Some scholars criticize this multiplication of systems which do not offer a clear-cut frame of emergency circumstances (see O. Beaud, C. Guérin-Bargues, “L’état d’urgence sanitaire : était-il judicieux de créer un nouveau régime d’exception ?”, D. 2020.891).
Thus, this choice was controversial from a legal perspective.
B. Legal gaps and challenges of the state of health emergency
The real utility of the state of health emergency can be questioned since the traditional state of emergency may have been used instead. The multiplication of derogatory regimes can present major threats to public liberties especially with hastily adopted new systems like the state of health emergency which only took the Parliament two weeks to adopt. It is all the more worrying that the constitutionality of the state of emergency only holds to a very lenient position of the Constitutional Council which validates its existence only because the Constitution does not provide any express prohibition to such a regime (Cons. constit., DC n° 85-187, 25 January 1985, État d’urgence en Nouvelle Calédonie).
Furthermore, the state of health emergency could include a democratic component with the intervention of the Parliament for its extension after a month because it could be the opportunity to have a public debate about the Governmental action, but it was not the case in practice since all of these statutes, including the one creating the state of health emergency and the ones extending it, were adopted through fast-track proceedings which excluded such debates (according to article 45, 2 of the Constitution). No mention of this element was made in the opinion the Conseil d’État (French Supreme Administrative Court) gave about the law adopted on 23rd March. However, a real threat to democracy and the rule of law was present under the state of health emergency, especially since the Parliament only worked in accelerated proceedings. For instance, the Parliament adopted, in accelerated proceedings, an organic law suspending the time-limits for processing individual claims in front of the Constitutional Council, but it did not respect the constitutional time-frame of 15 days between the deposition of the bill and the deliberation at the National Assembly (see article 46 of the Constitution). There was a clear violation of the Constitution, however, the Constitutional Council still validated the organic statute. From that perspective, the rule of law was harmed revealing a lack of coherence from the Council.
Adding to this, the French Parliament authorized wide delegations of powers to the Government through the mechanism of article 38 of the Constitution. According to this provision, after a statute is adopted to delegate powers to the Government, the Government can adopt ordinances intervening in the purview of the legislator. These ordinances will gain the value of statute after a ratification by Parliament, or if the Parliament fails to adopt such an act in the time-frame fixed in the delegating statute (Cons. constit., QPC n° 2020-843, 28th May 2020, Association Force 5). In the absence of a ratification, the fact that ordinances can acquire a legislative value is a direct threat to the democracy since it simply curtails the role of the Parliament. This new rule enhanced the power of the executive making its ordinances very likely to become law without any real parliamentary control.
During the crisis, a large number of ordinances were adopted to deal with its economic consequences since the health emergency did not include an economic side. For instance, the ordinance n° 2020-317 created a solidarity fund for SMEs while the most impacted economic sectors were the object of multiple ordinances (see ordinance n° 2020-538 for cultural and sport businesses, ordinance n° 2020-353 for artistic production, ordinance n° 2020-341 for agriculture and ordinance n° 2020-315 for tourism). A bill is currently debated by the Parliament to ratify these ordinances.
Each of these elements contributed to place in the hands of the executive, especially the Prime Minister and the Minister of Health, the widest powers possible to enable it to face the crisis. However, put together, they certainly make questions arise about the viability of the rule of law during their application. The French response to the Covid-19 crisis was thus the result of a compromise according to which liberties had to be restricted to protect public health. If the subject-matter was not the same as in the traditional state of emergency, it is possible to draw analogies with the traditional state of emergency where public liberties were restricted to protect public safety: the same questions arose regarding the adequate use of the power this system gives to administrative authorities and regarding an excessive extension of its duration (see S. Hennette Vauchez, “The State of Emergency in France: Days Without End?”, European Constitutional Law Review, vol. 14, Issue 4, December 2018, pp. 700-720). Knowing that both public safety and public health are components of the public order, the separation between these two states of emergency remains questionable since the multiplication of derogatory regimes also multiplies possible suspensions of the rule of law. Also, it adds complexity to the definitions of the boundaries of exceptional legal regimes creating more occasions for the executive to declare a state of emergency, thus enhancing the powers of the executive to the detriment of the other powers. To conclude, the creation of the state of health emergency did not offer new solutions which could have justified its adoption.
Posted by Estelle Chambas, PhD candidate and teaching assistant at Université Panthéon-Assas Paris II.
Suggested citation: E Chambas, “Facing the Covid-19 in France: the renewal of the state of emergency”, British association of comparative law blog, available at facing-the-covid-19-in-france-the-renewal-of-the-state-of-emergency-by-estelle-chambas)