Are containment measures sufficient to control the spread of the coronavirus? We could doubt it if we judge by the multiplication of municipal decrees taken in recent weeks to toughen the rules enacted by the government. In Paris and in several departments of Ile-de-France, it is now prohibited to play sports between 10 a.m. and 7 p.m. In Aubervilliers or Saint-Ouen, in Seine-Saint-Denis, the mayors wanted to put in place a curfew. In Sceaux, in the Hauts-de-Seine, the councilor fights for the mask to become compulsory. Latest example on Tuesday: a municipal decree was taken in Raincy, in Seine-Saint-Denis, to punish sputum, the throwing of gloves, masks or handkerchiefs on public roads with 38 euros.
If these orders multiply at high speed, many of them are withdrawn a few days - even a few hours - after their promulgation or suspended by the administrative court, adding vagueness to an already complicated situation.
Prefectural competence
The state of health emergency gives the possibility of tightening the containment to adapt to local specificities "if circumstances so require". To justify the need to make it compulsory to wear a mask at each outing, the mayor of Sceaux, Philippe Laurent, put forward, for example, the large proportion of elderly people in his commune. Problem: the text of the law adopted in March entrusts this power to the prefects, representatives of the State at the departmental level. That of Seine-Saint-Denis thus summoned the mayor of Aubervilliers to withdraw his municipal decree establishing a curfew, deeming it disproportionate. In Paris, the restriction of sports has been the subject of an agreement and a joint decree between the mayor, Anne Hidalgo and the prefect Eric Lallemant.
“Giving this competence to the prefects is an essential safeguard. There is a political aspect in these decrees, each mayor wants to show that he does more than the neighbor to protect his citizens, "said Patrice Spinosi, the lawyer for the League for Human Rights, who hired proceedings against many of these municipal decrees, including that of Sceaux. While the latter was suspended last week by the administrative court of Cergy-Pontoise, an appeal hearing before the Council of State is to be held Wednesday. "We hope that this ruling will help standardize practices and clarify skills," insists the council.
Have the mayors who made these orders usurped their power?
If role clarification is required, it is because mayors also have police power. Article L2212-2 of the general code of local authorities, which defines its contours, specifies that it applies in particular to the prevention of "epidemic or contagious diseases". If the mayors who took these municipal decrees are in their right, how to explain the suspension of so many decrees? According to Yvon Goutal, a lawyer specializing in local authorities, it is not the power of the mayor that is called into question that outright respect for the law. "When restricting a fundamental freedom, we must justify not only the fact that the measure is applicable but also that it is absolutely necessary given the objective to be achieved," insists counsel. Clearly: the councilor must prove that the ban is essential and proportionate. And this is precisely what seems to be lacking.
The interim judge of Cergy-Pontoise thus estimated Thursday that the decision to force the inhabitants to wear a mask was "a serious attack on the fundamental freedom to come and go and on the personal freedom of the people concerned" . And to specify: "the mayor of Sceaux does not justify that health risks would have resulted from the absence of wearing a protective mask". The subject may be different, the magistrate of the administrative court of Montreuil who ruled on the establishment of a curfew in Saint-Ouen came to the same conclusion. "The circumstances are not sufficient to justify at the local level the need for additional restrictions since the prefect has prohibited the opening in particular of drinking places after 9 pm (…) in order to fight against untimely gatherings", specifies the judge referrals.
The ban cannot be a simple display measure since it is eyeing our fundamental rights. Paradoxically, according to Yvon Goutal, orders prohibiting spitting or throwing a mask on the public highway are less likely to be revoked since they do not jeopardize a fundamental freedom. "The fact of spitting or dirtying the public highway is moreover probably already prohibited by the authorities," notes counsel, who therefore questions the need for such orders.
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