- The fine of 135 euros in force for not wearing a mask in closed public places would be illegal, according to a viral text on Facebook.
- The latter claims to demonstrate, with the help of two main arguments, why the decree of July 10 prescribing measures to combat Covid-19 contains significant legal loopholes.
- However, it remains legal, as confirmed by a reading of the legal texts - and as specified by two legal specialists at 20 Minutes .
Does the fine of 135 euros sanctioning the non-wearing of a mask against the Covid-19 in closed public spaces represent "a repression that has no legal or regulatory basis"?
The many Internet users sharing a long legal demonstration supposed to prove this anomaly are convinced of this. Entitled "declaration which establishes the illegality of the fourth class offense which would be charged in the event of failure to wear a mask in the places imposed by the decree of 07/10/2020", this text, initially published by a lawyer before go viral, intends to demonstrate the validity of this assertion by invoking several arguments.
The first ? The fine of 135 euros is only foreseen for texts adopted by the Minister of Health. "The provisions of the decree of July 10, 2020 [having] been enacted by a decree of the Prime Minister and not by decree", such a sanction would be illegal.
Then, argues this document, the offenses listed in articles L3131-15 to L3131-18 of the Public Health Code are only applicable in areas where “a state of emergency is declared”. Unlike the “provisions relating to the wearing of masks”, which only concern “areas that have emerged from the health emergency”, and would therefore not be compatible with the provisions of these articles.
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The initial point raised by the text implies that only the Minister of Health is competent to take health measures such as the obligation to wear a mask in closed places.
"The penalties provided for by law are applicable in the event of violation of the" prohibitions or obligations enacted in application of Articles L. 3131-1 and L. 3131-15 to L. 3131-17 ". However, these prohibitions or obligations can perfectly well be imposed by means of a decree of the Prime Minister, as underlined by Article L. 3131-17 itself, which begins with the following sentence: "When the Prime Minister or the Minister in charge of health take the measures mentioned in articles L. 3131-15 and L.3131-16 "", reminds 20 Minutes Gwénaële Calvès, professor of public law at the University of Cergy-Pontoise.
“It is therefore quite clear that the competence of the Minister of Health, for the adoption of the measures which interest us and the application of article L3136-1 of the Public Health Code [the fine], no. 'is not an exclusive competence, ”she continues. Valérie Nicolas, lecturer in law at Paris Nanterre University, agrees: "The Minister of Health can act within the framework of health measures, and the Prime Minister is authorized by the law of July 9 to take appropriate measures on the whole territory. "
The law of July 9, 2020, organizing "the exit from the state of health emergency", underlines in fact that "from July 11, 2020, and until October 30, 2020 inclusive, outside the territories mentioned in the Article 2, the Prime Minister may, by decree issued on the report of the Minister responsible for health, in the interest of public health and for the sole purpose of combating the spread of the Covid-19 epidemic: […] regulate the opening to the public, including the conditions of access and presence, of one or more categories of establishments open to the public as well as meeting places ”.
A decree applicable throughout the territory
The differentiation made between the areas of the territory still subject to the state of health emergency and those which have emerged from the health emergency is no more valid since the decree of July 10 indeed prescribes the "general measures necessary to deal with to the Covid-19 epidemic in territories that have emerged from the state of health emergency and in those where it has been extended ”.
"The articles of this decree, the number of which is followed by the letters" EUS ", are applicable only in the territories, mentioned in the preliminary annex, where the state of health emergency is in force. Unless otherwise provided, the other articles are applicable in these same territories as well as in those, mentioned in the same annex, having emerged from a state of health emergency ”, specifies the text in the preamble.
However, articles 27 and 38 of the decree, relating to the wearing of the mask in the establishments and the covered markets, presented as not applicable in the viral text, do not contain the mention “EUS”, which means that they are in force throughout the country, regardless of whether or not the state of health emergency is extended.
Finally, the qualifier of “abuse of power” used to designate the verbalizations that would be made in this respect, for its part, is a bad legal qualification, as Valérie Nicolas emphasizes: “The complaints complained of are rather those of incompetence and illegality. "
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