The Legal Framework for Public Regulation in the Fight against COVID-19 in France: First Impressions
Memduh Cemil ŞirinCountries have implemented serious measures to curb the rapid spread of COVID-19 in the world. During this period, which has almost brought the normal way of life to a standstill, many fundamental rights and liberties have been limited, such as the freedom of movement. France also implemented some restrictions, but it has started to lift some of them gradually. This article conducts a legal analysis of how fundamental rights and liberties have been severely restricted within the context of public health regulations during this period. Between March and May 2020, the French government took many drastic measures to curb the spread of COVID-19, including implementing a lockdown and closing schools and businesses. “The theory of emergency conditions” and Public Health Law L3131-1 and following provisions were the legal source of such measures until 23 March. Then, new rules have been legislated and a new legal framework governing the state of emergency in public health is now provided for under the Law on the Fight against Coronavirus, dated March 23, 2020, numbered 2020-293. This new regime gives the Prime Minister the authority to take rule-making administrative actions and place the science committee, which was formulated to spearhead the fight against COVID-19, within a legal framework. During this period, many regulations have been enacted by the government, some of which have been challenged before the Conseil d’Etat. The new legislations on the regulatory measures undertaken and the consequential disputes that arose due to such legislations have elicited debates on public regulations in administrative law. This article aims to assess the transformation of the legal basis for limiting fundamental rights and liberties, the results of this transformation, and the approach of the Conseil d’Etat toward the disputes before the court.
Fransa’da COVID-19 ile Mücadele Kapsamında Ulusal Düzeyde Alınan Kolluk Tedbirlerinin Hukuki Rejimi: İlk İzlenimler
Memduh Cemil ŞirinCOVID-19 virüsünün hızlı biçimde yayılmasıyla hayatın durma noktasına geldiği, mümkün olduğunca kimsenin evden dışarı çıkmaması üzerine kurulu, çok sayıda temel hak ve özgürlüğün kullanılamadığı bir dönem yaşandı. Sonrasında ise halen devam etmekte olan kademeli normalleşme sürecine geçildi. Fransız idaresi, Mart ayından itibaren giderek yoğunlaşan ve 11 Mayıs 2020 tarihine kadar süren dönemde başta evde kalma zorunluluğu olmak üzere eğitimle ilgili ve ticari faaliyetlerin durdurulması gibi çok sayıda kolluk tedbirine karar vermiştir. 23 Mart’a kadar bu kolluk tedbirlerinin hukuki dayanağı mevcut Kamu Sağlığı Kanunu L3131-1 ve devamı maddeleri ile olağanüstü koşullar teorisi olmuştur. 23 Mart’ta yeni yasal düzenlemeler yapılmış ve 23 Mart 2020 tarihli 2020-290 sayılı COVID-19 Salgını ile Mücadele Olağanüstü Haline Dair Kanun ile COVID-19 öncesinde olmayan sağlıkla ilgili OHAL rejimi tesis edilmiştir. Bu rejim doğrultusunda bir sağlık felaketi olarak nitelendirilen COVID-19 virüsüne karşı mücadelede Başbakan’a özel kolluk yetkisi kapsamında düzenleyici kolluk işlemleri yapma imkanı tanınmıştır. COVID-19’un gündeme soktuğu Bilim Konseyi de Bilim İnsanları Komitesi adıyla yasal bir zemine kavuşturulmuştur. Bu süreçte, düzenleyici kolluk işlemleri de yapılmış ve Fransız Danıştayı’nın önüne bu konuda gelen uyuşmazlıklar olmuştur. Bu çalışmada, Fransa’da COVID-19 ile mücadelede hak ve özgürlüklerin yoğun biçimde sınırlandırıldığı dönemin hukuki analizi idare hukukunun kolluk faaliyeti çerçevesinde yapılmaktadır. İlk vakanın açıklandığı 24 Ocak tarihinde başlayan ve Mart ayından itibaren yoğunlaşarak 11 Mayıs tarihine kadar süren, temel hak ve özgürlüklerin bir çoğunun kolluk tedbirleriyle durma noktasına geldiği dönem incelenmektedir. Bu çerçevede, ulusal düzeyde temel hak ve özgürlüklerin sınırlandırılmasına dair hukuki dayanakların geçirdiği dönüşüm, bu dönüşümün araçları, sonuçları ve dönemin sembol uygulaması olan evde kalma zorunluluğuna ilişkin olarak Danıştay’ın önüne gelen uyuşmazlıklardaki yaklaşımı incelenmektedir.
Countries have implemented serious measures to curb the spread of COVID-19 in the world. During this period, which has almost brought the normal way of life to a standstill, many fundamental rights and liberties have been limited, such as the freedom of movement. France also implemented some restrictions, but it has started to lift some of them gradually and entered a period of normalization. Between March and May 2020, the French government took many drastic measures to curb the spread of COVID-19, including implementing a lockdown and closing schools and businesses.
This article conducts a legal analysis of how fundamental rights and liberties have been severely restricted within the context of public health regulations. The time period within which many fundamental rights and liberties were suspended by regulations, starting with the announcement of the first COVID-19 case on January 24, 2020 and continuing until May 11, 2020, is reviewed. In this context, the decisions of the Conseil d’Etat regarding the evolution of the legal basis of the restriction of personal liberties at the national level, the tools used for the evolution, the results of the evolution, and enforcement of a lockdown, which became the predominant symbol for this period, will be analyzed.
Until March 23, 2020, the legal foundations for the aforementioned regulations were the Public Health Code L3131-1 and the theory of emergency conditions. The insufficiency of these sources led to the enactment of new legislation. While the desire for new legislation existed, the method to be used in enacting such legislation posed an important question. One proposed method was amending the Public Health Code to stipulate the limits and contents of the preexisting power of taking “every necessary measure” which is invested in the Minister for Health or, alternatively, amending the same article to give power to the Prime Minister instead of the Minister for Health. Another suggested method was creating a new system surrounding the event of a state of emergency, specifically targeting extraordinary circumstances, such as the COVID-19 pandemic, instead of applying the Public Health Code, which was not intended for such circumstances. The French government chose the latter.
The Code of State of Emergency for the Fight against COVID-19, dated March 23, 2020 and numbered 2020-290, was adopted and a system governing the event of a state of emergency, which did not exist prior to the COVID-19 pandemic, was created. This new system gave the Prime Minister the power to adopt regulatory administrative acts in the fight against COVID-19, which is defined as a health disaster. Furthermore, the Council of Science, which was conceived to help fight the pandemic, was given a legal backing and renamed the Committee of Scientists.
Pursuant to article L3131-12, which was introduced to the Public Health Code, “A state of emergency concerning public health can be declared if a health disaster risking the public health with its nature and severity occurs in the whole or part of the mainland or in local governments stipulated under the article 73 and 74 of the constitution or in the New Caledonia.”
Pursuant to the first paragraph of article L3131-13, “A state of emergency is declared by an enactment of the Council of Ministers following the report of the Minister for Health. This enactment, including reasons, shall define the jurisdiction or jurisdictions which it will affect. The scientific data constituting the grounds for the state of emergency shall be declared to the public.” Moreover, according to the third paragraph of the same article, a state of emergency can be extended by a period exceeding one month only if allowed by legislation and preconditioned to the advisory opinion of the Committee of Scientists.
Matters on which the Prime Minister has the power to enact are listed by article L3131-15 as follows: “The Prime Minister can restrict or prohibit the movement of people or vehicles in areas or periods specified in the enactment; without prejudice to the necessary travels arising out of health or family issues, can order a lockdown; quarantine suspected infected people; order home isolation or isolation in other institutions for infected people; and without prejudice to the essential services, order temporary closure of venues in which people gather or people are accommodated.”
There are key differences between article L3131-1 of the Public Health Code and the state of emergency concerning public health (L3131-12 and following provisions). First, article L3131-1 is applicable if a “serious health hazard” exists. However, for a state of emergency concerning public health to be declared, the health hazard must reach the level of being described as a “health disaster.” Moreover, while the Minister of Health is authorized to take precautions through his/her decisions within the scope of article L3131-1, in the event of the declaration of a state of emergency concerning public health under article L3131-15, it is the Prime Minister who has the power to take precautions by adopting relevant enactments. Second, the difference between the two systems relates to the extent of available precautions. While article L3131-1 empowers the Minister for Health to take “every necessary measure” article L3131- 15 puts forth the available measures for the Prime Minister in a closed list.
