• Unlike a law that must be passed in Parliament, a decree can be changed quickly and easily as long as it complies with the law that implements it.

  • The decree extending the health pass poses a legal problem around the notion of "large gathering".

  • However, it should comply with the new law which must be voted on by the end of July and which should no longer include this notion.

After passing in the Council of Ministers on Monday, the bill governing the extension of the health pass to places open to the public must be studied this week in Parliament. However, the first phase of extension of the health pass will be well acted on this Wednesday as announced by Emmanuel Macron during his speech to the French.

A decree published in

the Official Journal on

Tuesday indicates that the health pass must be presented "for access to the following establishments, places and events, when they welcome a number of visitors, spectators, customers or passengers at least equal to 50 people" . Among the places mentioned in the decree, there are performance and projection rooms, marquees, dance and games rooms, fairs and exhibitions, sports establishments, certain libraries or even museums. Kassandra Goni, doctoral student in public law at the Center for Comparative Studies and Research on Constitutions, State and Freedoms (CERCCLE) at the University of Bordeaux, enlightens us on this legal subtlety which allows a law to be applied before even that it is not promulgated.

How is it possible to apply the extension of the health pass before the law is promulgated?

The government's strategy for the extension of the health pass will take place in two phases: the first by decree which makes the health pass compulsory in places of leisure and culture bringing together more than 50 people.

The second phase is the crisis management law that the government hopes to see come into force in early August.

The first phase is characterized by a new decree of July 19 which modifies a decree of June 1 which itself implements the law of May 31, 2021 on the way out of the health crisis.

A decree can be amended by another decree very easily as long as it is in accordance with the law which implements it.

So our decree of July 19 is in fact an enforcement decree of the law of May 31.

So it's completely legal?

Yes, but this new decree poses a legal problem. Indeed, the law of May 31 authorizes the obligation of the health pass for establishments or events involving "large gatherings of people". The decree of June 1 provides for an obligation of health pass from 1,000 people. With the new decree of July 19, the obligation applies from 50 people. However, in comparison with the gauge set by the previous decree, it is difficult to justify that 50 individuals represent a large gathering of people. In addition, it also depends on the area of ​​the premises or the ventilation and ventilation installations. With regard to the legal arsenal, the government was blocked.The gauge modification was the only lever he could use to set up the first phase of the health pass extension.

Is it then possible to prohibit this decree?

The academic Paul Cassia, professor of public law announced that he was going to file an urgent appeal before the Council of State with three representatives of leisure professionals in particular for this legal problem.

Filing, at 8:50 a.m., with 3 representatives of leisure professionals, of a request for suspension in summary proceedings before @Conseil_Etat against the decree of July 19 which lowers the threshold for establishments subject to # Passesanitaire✅ from 1,000 to 50 people https: / /t.co/wxop8yE5p3

- Paul Cassia (@ PaulCassia1) July 20, 2021

However, it is not certain that this will succeed.

The Council of State finds itself in a complex position where it can sometimes be complicated to question certain provisions, particularly in the context of crisis management policies.

However, this new decree appears to be in conformity with the bill on crisis management currently being discussed before the Law Commission of the National Assembly.

Is this situation common?

Since the start of the health crisis, there has sometimes been this reversal of the decree which takes precedence over the law.

For example, the first measure of generalized confinement of the population was taken by a decree on March 16, 2020 and the law creating a state of health emergency and allowing generalized confinement was promulgated on March 23.

The decree was then based on the article of the public health code L3131-1 which allows the Minister of Health to take measures to limit the consequences of an epidemic and on the theory of exceptional circumstances.

The initial passage by decree allows the government to move quickly.

It does not involve discussions and a vote in Parliament.

It allows reaction legislation.

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