Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Constitution of France contains two provisions relating to the state of emergency: Article 16 granting exceptional powers to the President of the Republic when the institutions of the Republic, the independence of the Nation, the integrity of its territory or the execution of its international commitments are threatened in a serious and immediate manner and that the regular functioning of the constitutional authorities is interrupted and Article 36 on the state of siege.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
A 2004 ordinance (delegated legislation) codified the state of siege in the Defence Code (as a military emergency regime). As soon as the state of siege is decreed, the powers vested in the civil authority for the maintenance of order and the police are transferred to the military authority. It has not been used in France since the Second World War.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Yes, an ordinary law provided for it.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Yes (but not under the Constitution that does not regulate the state of emergency other than the state of siege - see Q1).
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Under The Act 2020-290 of 23 March 2020, the state of emergency is declared by decree in the Council of Ministers (Article 2) and can only be extended beyond one month by law. It is afterwards the legislator who can extend the state of emergency.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The state of health emergency was declared by the law of March 2020, thus excluding judicial challenge to the declaration itself, except possibly by way of constitutional control. On the other hand, the measures adopted under the state of emergency are themselves subject to judicial review.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
There has been no notification under Article 15 of the ECHR by France.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The main restrictions concerned the freedom of movement as well as the freedom of assembly. Significant restrictions also affected the freedom to undertake an activity (this was mainly aimed at the closure of establishments and businesses and thus access to employment).
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Pursuant to Article L.3131-1 of the Health Code (see Q3) and given the "exceptional circumstances", the Prime Minister was able to take measures to restrict movements (decree of 16 March 2020).
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Only a statutory authorization based on Article 38 of the Constitution allows the executive branch to benefit from legislative powers. This division of powers is enshrined in Article 34 of the Constitution. The duration of the legislative mandate is set by law.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
There has been no suspension of the parliamentary session.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
Neither on the Constitutional Council, nor in the Council of State, nor in the Court of Cassation there was a suspension. The initial work timetable has been revised, and working procedures were adapted to the health measures. As a result, direct public access to hearings has been restricted. These organisational measures belong to the exclusive competence of the courts concerned.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Yes. A new law creating a state of health emergency was adopted, specifically organising the powers of the authorities, and by which the legislature also empowered the executive to act by ordinance on certain matters, namely Act 2020-290 of 23 March 2020. Under the 2020-290 Act of 23 March 2020, the state of emergency is declared by decree in the Council of Ministers.
14. Was this additional legislation subject to judicial review?
The law extending the state of emergency passed on 9 May was submitted to the Constitutional Council, which issued its decision on 11 May 2020 - see here
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
The Law 2020-290 of 23 March 2020 (creating the state of health emergency) empowered the executive to act by ordinance on certain subjects.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
All appeals under the ordinary legal regime of judicial and constitutional review could be exercised as normal.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
Not applicable
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Municipal elections were held on 15 March 2020. The principle that municipal elections should be held every six years is based on the law. It is up to the Government to set the precise date. On 15 March 2020, the first round of these elections was held.
France
Article 16 on exceptional powers was invoked only once, in 1961, following a failed coup attempt in the then French Algeria.
The state of emergency is not as such framed by the French Constitution. On two occasions, the Constitutional Council has ruled that the Constitution does not exclude the possibility for the legislature to provide for a state of emergency regime (Decisions No. 2015-527 QPC of 22 December 20 and 2016-535 QPC of 19 February 2016).
In the case of species, the French authorities did not use the emergency regimes provided for by the legislation in force (Law 55-385 of 3 April 1955), but introduced, by a law adopted to this effect in March 2020, a new "health emergency" regime.
In addition, Article 38 of the Constitutio n provides that "In order to implement its programme, the Government may ask Parliament for authorization, for a limited period, to take measures by Ordinance that are normally the preserve of statute law.
Ordinances shall be issued in the Council of Ministers, after consultation with the Conseil d'État. They shall come into force upon publication, but shall lapse in the event of failure to table before Parliament the Bill to ratify them by the date set by the Enabling Act. They may only be ratified in explicit terms.
At the end of the period referred to in the first paragraph hereinabove Ordinances may be amended solely by an Act of Parliament in those areas governed by statute law."
The state of emergency (which is not in the Constitution - see Q1) is defined by Law 55-385 of 3 April 1955 (i.e. adopted before the current Constitution), amended in particular by the law of 20 November 2015.
The state of emergency is issued by presidential decree, submitted to the counterseing of the Prime Minister and deliberated in the Council of Ministers (Article 13 of the Constitution), but a law is needed to extend it beyond 12 days (Article 2). The decree triggering the state of emergency can be challenged before the Council of State.
Article 4 states that "the law extending the state of emergency is null and forth after a period of fifteen free days following the date of resignation of the Government or dissolution of the National Assembly."
Article 4-ter added by law of 20 November 2015 states that "The National Assembly and the Senate are informed without delay of the measures taken by the Government during the state of emergency. They may require any additional information as part of the monitoring and evaluation of these measures." According to Article 5-ter of Ordinance 58-1100 of 17 November 1958, the Legal Committee of the National Assembly decided to set up a "continuous watch" on 2 December 2015 to allow effective and permanent monitoring of the implementation of the state of emergency. The primary objective of this work is to assess the relevance of the measures adopted and to make recommendations where appropriate.
The so-called "administrative police" emergency measures, taken by the civil authority and authorized by the 1955 law, include: prohibition of the movement of persons or vehicles (Article 5, 1); institution of protection or security zones where people's stay is regulated (Article 5, 2); prohibition of residence in all or part of the department to any person seeking to obstruct, in any way, the action of the public authorities (Article 5, 3); house arrest, persons for whom there are serious reasons to believe that their behaviour poses a threat to public safety and order; (Article 6); dissolution of associations or de facto groups that participate in the commission of acts that seriously violate public order or whose activities facilitate or incite the commission (Article 6-1); temporary closure of concert halls, drinking establishments and meeting places of any kind (Article 8, al. 1); ban on meetings (Article 8, al 2) ; handing over of certain weapons and ammunition, legally held or acquired, for reasons of public order (Article 9); requisitioning of persons, goods and services (Article 10); search at home day and night (Article 11.I); blocking of websites inciting to the commission of acts of terrorism or by making the apology ”(article 11.II). Some of these measures, such as house and house arrest and searches, normally fall under the jurisdiction of the judiciary.
The possibility provided for in Article 11, for the civil authorities, to "take all measures to ensure the control of the press and publications of all kinds as well as that of radio broadcasts, cinematographic projections and theatrical performances" has been repealed by the law of 20 November 2015.
Article 14, amended by the law of 20 November 2015, provides that "the measures taken under this law shall cease to have effect at the same time as the state of emergency ends".
Police measures can be challenged before the administrative judge (article 14-1), including by way of summary proceedings.
In the present case, the French authorities did not use the emergency regimes provided for by the legislation in force (law n ° 55-385 of April 3, 1955), but introduced, by a law adopted to this in March 2020, a new "health emergency" regime.
Section L.3131-1 of the Public Health Code allows the Minister of Health to take any proportionate and appropriate action "in the event of a serious health threat requiring emergency action."
Some measures could be taken on the basis of this section before the Law 2020-290 of 23 March 2020 which added an article L.3131-12 creating a "health state of emergency".
Parliament has requested a revision of those measures in March 2021, as these provisions are only applicable until that date. A vote will have to take place before that date to give them, eventually, a permanent character.
The first measures related to the Covid-19 crisis were adopted by the Minister of Health on the basis of Article L3131-1 of the Public Health Code - see here. On the basis of these competences, the Minister of Health adopted the ministerial decree of 14 March 2020, which prohibited public access to a number of public-wide meetings or activities with more than 100 people in a closed or open environment and prohibited users from accessing nurseries and educational and higher education institutions. Other similar decrees followed.
Second, a law created the state of health emergency, specifically organising the powers and competences of the authorities, and by which the legislator also empowered the executive to act by ordinance on certain matters. This is Act 2020-290 of March 23, 2020. Under the 2020-290 Act of 23 March 2020, the state of emergency is declared by decree in the Council of Ministers.
In the specific case of COVID, in the absence of a provision on the state of health emergency, Article 4 of the law referred to above directly declared a two-month state of emergency.
The extension was decided by Law 2020-546 of May 11, 2020. The state of emergency will end on 10 July 2020 under Article 1 of the Act. A further extension is only possible by virtue of another law.
Thus, in the context of COVID, the state of health emergency was declared by the law itself and not by a governmental decree.
As the state of emergency was lifted on 10 July 2020, a law provided for the need for orderly management of the exit from the state of emergency (currently being published as of the date of this note).
The authorities responsible for refering it to the Constitutional Council under the prior control procedure (Article 61-1 of the Constitution, the CC being the sole authority to control a law before its enactment), did not refer it to it after the vote of the 2020-290 law.
On the other hand, the prorogation law was submitted to the CC. The Constitutional Council issued its decision on 11 May (no. 2020-800 DC).
The law organising the end of the health emergency has been referred to the Constitutional Council, which will have rendered its decision on 9 July 2020 (2020-203 DC being published on the CC website)
The laws relating to states of emergency do not contain general provisions on derogations from human rights.
Constitutional checks on these legislative provisions (by the Constitutional Council) are exercised in accord with the usual procedures.
Other texts taken (including ordinances) are also subject to ordinary judicial review procedures. The courts and administrative tribunals carry out their review under normal conditions. All the texts taken under these provisions recall that the measures prescribed [...] are strictly proportionate to the health risks incurred and appropriate to the circumstances of time and place and should be terminated without delay when they are no longer necessary.
Under the Law 2020-290 of 23 March 2020,(introducing the concept of the "state of health emergency"), Art. L. 3131-15, the Prime Minister, in territorial constituencies where a state of health emergency is declared, may, by regulatory decree may adopt certain measures - restrict or prohibit the movement of persons and vehicles, prohibit persons from leaving their homes, order the placement and detention in isolation, order the temporary closure of one or more categories of establishments receiving the public etc. The prescribed measures must be strictly proportionate to the health risks incurred and appropriate to the circumstances of time and place. For more details [see here https://www.legifrance.gouv.fr/eli/loi/2020/3/23/PRMX2007883L/jo/text]
The appeal to exceptional circumstances refers to an old jurisprudential theory of the Council of State which is regulated by the jurisprudence and provides that the regulatory power is exercised under the full control of the judge (thus according to the usual terms of the judicial review).
In addition, the powers of the executive specific to the state of emergency are detailed in the law creating the state of emergency - in the present case, the law 2020-290 of 23 March 2020, (introducing the concept of the "state of health emergency", voir Q9). All measures are limited by the state of emergency.
Parliamentary proceedings were suspended at the end of February until 23 March due to municipal elections. The debates were then suspended for a few days in the National Assembly where there were quite a few cases of contamination.
The debates were able to resume a few days later, as soon as the governing body of each assembly, the only one responsible for the matter (the Conference of Presidents and/or the Office), put in place a health protocol.
An organic law introduced a single amendment regarding these three courts. It dealt with the three-month period (provided for by an organic law) in which the two "filter" courts must rule on the constitutionality requests; otherwise the matter dealt with directly by that Council. The Council, which was automatically involved as it was an organic law, validated this organic law. It does not appear that significant delays have actually occured, On the contrary, there were a lot of cases related tot the monitoring the application of the specific textes concerning the current emergency.
For other jurisdictions, extensions of time in civil and criminal matters were introduced either by ordinannces or by the law itself. But in fact that the functionning of these courts has been greatly impacted by the essential health protection measures introduced in the judicial proceedings.
For the summary of the recent decisions of the Consitutional Council (in French) click here.
Under the Act 2020-290 of 23 March 2020, the state of emergency is declared by decree in the Council of Ministers (Article 2) and can only be extended beyond one month by another law. It is therefore the legislator who can extend the state of emergency.
In the specific case of COVID, section 4 of the above act directly declared a two-month state of emergency.
The extension was decided by Law 2020-546 of 11 May 2020. The state of emergency will end on 10 July 2020 under Article 1 of the Act. A further extension is only possible by law.
Prior control: In its decision of 11 May 2020, the Constitutional Council partially censored the article providing for the establishment of a "tracing" (non-digital) scheme, and was able, through various reservations of interpretation, to recall, in particular in the area of quarantine and isolation measures, its jurisprudence on the limitations of freedom to come and go.
Control a posteriori: between 16 March and 10 July 2020, the Council of State examined more than 250 procedures some of which have obliged the Government to specify provisions arising from the ordinances and regulatory measures taken under the emergency, initial or the extension law.
The Court of Cassation considered all appeals concerning the application of some of the emergency measures.
The Constitutional Council has recieved two QPCs ("priority issue of constitutionality") requests concerning certain provisions put in place in the state of emergency as early as the end of May. The decisions were issued on 25 June and 2 July 2020. The delays between the application before the court and the decision of the Constitutional Council were thus, in both cases, less than the normal period of 3 months. (2020-846.847.848 QPC July 25, 2020 and 2020-851.852 QPC of July 2, 2020).
Some previous jurisprudence on the emergency regimes may be relevant in the current context.
On 11 December 2015 the Council of State sent a QPC request to the Constitutional Council, which, by decision of 22 December 2015, stated that house arrest does not involve deprivation of individual liberty within the meaning of Article 66 of the Constitution and that the first 9 paragraphs of Article 6 of the 1955 Act do not disproportionately infringe on the freedom of movement and do not disregard Article 16 of the Declaration human and citizen's rights, neither the right to privacy nor the right to lead a normal family life, nor freedom of expression and communication, nor any other guaranteed right not the Constitution. The Constitutional Council also ruled that the Constitution does not exclude the possibility for the legislature to provide for a state of emergency.
On 18 January 2016, the Constitutional Council, by a decision of 19 February 2016, declared that Article 8 of the 1955 law on the temporary closure of theatres, drinking establishments and meeting places of any kind complied with the Constitution. The Constitutional Council also reiterated that the Constitution does not exclude the possibility for the legislature to provide for a state of emergency.
The second round, scheduled for 22 March, was cancelled due to the quarantine measures announced on 16 March.
Article 19 of the March 2020 act endorsed this postponement and set a procedure for setting the date for the second round, which instead takes place on 28 June 2020. The Constitutional Council ruled by two QPCs of 17 June 2020 (2020-849 QPC and 2020-850 QPC) on existing provisions of the electoral code concerning the conduct of municipal elections.