Is the health pass required at the entrance to political meetings?
If the Constitutional Council clearly indicated that the public coming to attend such events could not be required, the announced tolerance of the government vis-à-vis the control of sesame at the entrance of public meetings has sown doubt. .
20 Minutes
looked, with a specialist in constitutional law, on the legality of this crucial question for the presidential campaign of 2022.
How to conduct the presidential campaign of 2022 while ensuring to avoid contributing to the spread of Covid-19?
The question is all the more inevitable to all the candidates launched in the race for the Elysee Palace as the government has just announced new measures to deal with a new epidemic outbreak.
Asked about this on the antenna of Franceinfo, Tuesday, December 7, Jordan Bardella raised the particular issue of the health pass: “We must organize meetings in respect of barrier gestures.
We will respect the law, as we always have done.
For now, the health pass does not apply to political meetings and so-called religious activities.
So again we will abide by the law.
"
Presidential: "Meetings must be organized with respect for barrier gestures. Marine Le Pen will launch her campaign in mid-January in Reims", recalls Jordan Bardella pic.twitter.com/yxWiS0cXX2
- franceinfo (@franceinfo) December 7, 2021
If, for her part, Valérie Pécresse preferred to cancel the physical outfit of the first meeting of the Republicans, on December 11, "given the sanitary conditions", and that Jean-Luc Mélenchon did not require the sanitary pass during his gathering on December 5, the digital sesame will be in demand from the public who come to see Anne Hidalgo in Perpignan on December 12.
But is such a device legal in this specific context?
20 Minutes
takes stock.
FAKE OFF
In its decision of November 9, 2021, relating to the “law establishing various health vigilance provisions”, the Constitutional Council considered that “the presentation of the health pass cannot be required for access to polling stations or to meetings and political activities. "
"In its decision of May 31, 2021, the Constitutional Council had already clearly indicated that the notion of leisure activity [for which the health pass may be required] excludes political activity", reminds
20 Minutes
David Lévy, lawyer at Paris Bar and Constitutionalist.
“It goes back to the very nature of the activity, which is linked to the functioning of democracy.
This is where the justification for the decision of the Constitutional Council must be found: the continuity of democratic life must be ensured, despite the health context.
"
If these two decisions of the Constitutional Council leave little room for doubt as to the impossibility, for a candidate, to require the health pass to access one of his meetings, the government spokesman has nevertheless sown doubt since.
For the government, "nothing prevents an organizer of a political meeting from requiring the health pass to access it"
At the end of the Council of Ministers of November 24, Gabriel Attal indeed affirmed that "nothing prevents an organizer of a political meeting to require the health pass to reach it" just after having declared, about the Council constitutional: “We obviously respect all the decisions that are rendered.
It is the guardian of our Constitution and of the fundamental principles of the Republic.
"
If this reasoning is based on the logic of “at the same time” dear to Emmanuel Macron, it does not hold up legally, as David Lévy explains: “Article 62 of the Constitution says that the decisions of the Constitutional Council are 'impose on administrative and judicial authorities. But in reality, it goes way beyond. These court decisions have the authority of res judicata, so when the Constitutional Council renders a decision, it applies to everyone. "
“Here, we have a member of the government who makes a somewhat surprising distinction.
The decision of the Constitutional Council means first and foremost that the government, in law, cannot over-limit access to a political rally to the presentation of the health pass, that it cannot say "only people presenting a health pass at the entrance will be able to enter ", continues the specialist.
"It is a crime to require the health pass under conditions not provided for by law"
"And the government tries to make an artificial distinction consisting in saying 'okay, the law has no right to do it, but the organizers - political parties, candidates - who set up a political rally have the right to do it". But it's wrong ! It is a crime to require the health pass under conditions not provided for by law, when you are not authorized to do so. If someone stops you in the street and asks you to check your health pass, you will refuse because they do not have the right to do so and nothing justifies it, ”explains David Lévy. Reasoning that applies to political meetings.
However, could the organizer of a political rally "trick" by asking for the health pass without requiring it?
This is what Jean-Philippe Derosier, professor of public law at the University of Lille, said to our colleagues from
Liberation
.
“I understand my colleagues who make this distinction between 'demanding' and 'asking', but it does not make sense to me.
It will not prevent entry into the meeting.
To demand, that would mean that the health pass is a prerequisite, imperative to exercise political freedom.
Asking, that would mean that there is no problem if a visitor presents me with his pass, but that there is no problem either if he refuses and I let him pass: it does not no sense, ”concludes David Lévy.
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