• The bill on the expansion of the health pass has been passed by Parliament, but the road is not finished.

  • Under pressure, the government itself decided to seize the Constitutional Council.

  • At least four points in the text do raise questions.

The law organizing the expansion of the health pass is due to come into force on August 9.

In theory, because before that, on August 5, the Constitutional Council must urgently rule, as its name suggests, on the constitutionality of the text.

And on certain points, there does seem to be potential litigation.

Concretely, if certain provisions were revoked, this should not pose too much of a problem: the government can ask for a new examination of the bill by the Parliament, on the provisions in question, or on the whole text.

Symbolically, obviously, that would probably be another story, since the government itself seized the Council to give weight to its text.

Retail review.

Automatic dismissal for lack of health pass

This is one of the most contested provisions of the text. So much so that it is finally no longer there: after passing through the Senate and then by the Joint Parliamentary Joint Committee, automatic dismissal for lack of a health pass is no longer in the law. The new provision, a suspension of the contract and the salary for two months maximum, remains nevertheless “one of the main possible grounds of unconstitutionality”, judge Dominique Rousseau, constitutionalist and professor at Paris I, questioned by

20 Minutes

.

This suspension can in fact be seen as a delayed dismissal, because according to the specialist nothing really prevents a boss from dismissing for lack of vaccination.

The risk of unconstitutionality lies above all in the fact that "the wording of the law is so vague that it risks giving rise to litigation before the industrial tribunal".

And according to Dominique Rousseau, this risk vis-à-vis "elementary rules of labor law" could justify censorship of the measure.

In any case, this is the case law of the Constitutional Council.

The closure of shopping centers at the discretion of the prefects

This measure is less publicized but not the least problematic. The law provides that shopping centers can be closed to people without a health pass ... only if the prefect or the local prefect decides, in view of the circulation of the coronavirus in his department. However, for Dominique Rousseau and especially for article 34 of the 1958 Constitution, “it is up to the legislator to set the rules allowing the exercise of freedoms to be regulated. There is an abandonment by the legislator of these powers, which gives the prefects and the government a discretionary power, an arbitrary power ”.

It's heavy: forbidding part of the population to go to shopping centers is an attack on the freedom to come and go, the right of access to basic necessities, among others.

And then for the constitutional expert the text is also "very vague, very vague, very imprecise" to define a "shopping center".

Finally, such a place can be defined by many means: "Is it the area that counts?

Is it the number of people passing through it?

Asks Dominique Rousseau.

This vagueness alone can be a "serious reason" for unconstitutionality, believes the specialist.

Mandatory isolation after a positive test

The new law strengthens the mandatory and even automatic nature of the isolation of people who test positive for Covid-19.

These people must stay ten non-renewable days in a place chosen by them.

They can only go out from 10 a.m. to 12 p.m. and in an emergency.

Controls can be carried out and the people caught at fault are liable to a fine of 1,500 euros.

It is obviously the question of controls that raises questions, but Dominique Rousseau seems to dispel the doubts: since there is compulsory isolation, it is necessary to control the isolation.

“As soon as this control is framed as it seems to be in the law, the council could consider that there is no excessive invasion of privacy.

"

Sanctions for professionals who do not control the pass

There are many places open to the public where you will have to show your health pass to be able to enter. There will obviously be no police in front of each restaurant or cinema, so it is the bosses or employees who will have to take care of the verification. Some establishments have already announced that they will refuse to do so, these logically expose themselves to sanctions.

Even if he is cautious, Dominique Rousseau thinks that these controls do not pose a problem of unconstitutionality.

“The possibility for people to carry out checks when they are not authorized to pronounce fines, could, again in the light of the jurisprudence of the Constitutional Council, not be censored.

The only concern for the constitutional expert: feasibility.

Ditto for the obligation of the sanitary pass on the terrace.

But that is not for the Constitutional Council to judge.

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  • Constitutional Council

  • Health pass

  • Covid 19

  • Coronavirus