Is there legal basis for France's obligatory health pass and vaccines?

“Individual rights and freedoms are too precious to be infringed upon without a sufficiently convincing explanation and justification,” a lawyer practising constitutional law told us

22 July 2021
A person with a health pass going to a restaurant

President Emmanuel Macron is aiming to make the health pass a requirement to enter restaurants, cafes, bars, long-distance transport services, etc, from August Pic: Melinda Nagy / Shutterstock

By Thomas Brent

French President Emmanuel Macron announced a series of new Covid-related measures on July 12, including greater use of the health pass (pass sanitaire) and mandatory vaccination for certain professionals, notably healthcare workers.

These two measures in particular have proved controversial, among the public and  politicians with recent protests against them, with over 100,000 people taking to the streets last weekend.

France’s ‘defender of rights’, Claire Hédon, has also questioned the health pass proposals, saying they amount to “the checking of one part of the population by another”, and risk infringing the rights of children and poorer communities.

Health pass infringes rights of children and poor says rights defender

The president wants to make it necessary for people to show a health pass - which means proof of their Covid-19 status -  to access places such as restaurants, cafes, bars, and long-distance travel services.

He also aims to make Covid vaccines mandatory for certain workers, including healthcare workers, hospital staff and carers working with the elderly or vulnerable. 

The consequences for these workers not being vaccinated would involve fines and losing their jobs.

The first step of the planned health pass extension began yesterday (July 21), with the pass now necessary to enter many leisure and cultural places that accommodate over 50 people.

Explained: What changes with France’s Covid health pass on July 21

This rule was approved by France’s Conseil d'État (Council of State), a governmental body that acts both as legal adviser of the executive branch and as the supreme court for administrative justice.

The other measures - the extension of the health pass to restaurants and other public places, and the obligation for certain workers to be vaccinated, are being debated this week in parliament.

The debate began yesterday in parliament’s lower house, the Assemblée nationale, and continued late into the night, with over 1,000 amendments to the bill being tabled. Discussions resumed this morning (July 22).

After it is debated in the lower house, it will go to the senate (le Sénat), the upper house of parliament.

Following that, the Conseil constitutionnel (Constitutional Council) will review the bill. 

The Conseil d'État and the Conseil constitutionnel have similar but separate roles, but both have the task of ensuring compliance with France’s constitution. 

We asked Vincent Tisler, a French lawyer practising in the fields of administrative, public business and constitutional law, if there is a legal basis for the president’s proposed new Covid-19 measures.

He told us that there is a fine balance to strike between infringing on people’s liberties and protecting their health. He also said that while it is highly debatable whether the proposed infringements on people’s liberties are fair, the bill is still likely to pass parliament and the review by the Conseil constitutionnel.

“In my opinion, it should never be forgotten that freedom is the rule and the restriction of freedom the exception, even in a state of emergency,” he said.

“Political leaders should be reminded that when it has to do with respect for fundamental rights and freedoms, there can be no "en même temps", but a real coherency and justification of the actions taken.”

Read our full interview below.

What do you make of the measures proposed by the government? Is there a legal basis for them?

The bill currently under discussion provides for a series of new measures to prevent an increase in the spread of Covid 19. Two of these measures are particularly sensitive: the mandatory vaccination of healthcare workers and the extension of the health pass.

But the first article on the bill does not concern these two. It allows for the extension of the so-called "state of health emergency", in effect in France since October 17, 2020.

This is crucial, because the state of emergency allows the government, especially the prime minister and the minister of health, to temporarily take measures to restrict freedoms. In order to do so, there must be a health disaster, especially an epidemic, which endangers the health of the population.

So all the measures we are talking about, including the proposals to extend the use of the health pass, are in reality empowerments given by parliament for the government to act in its place, under certain conditions, because of the state of health emergency that is in place.

Without this state of emergency, it would not be possible to have these measures. 

It is the public health code, and therefore the law, that makes it possible to declare a state of health emergency, without any provision of the French Constitution prohibiting it. 

Indeed, the Constitution does not provide for any particular rule in this matter. In other words, what the legislative and executive powers are not prohibited from doing is allowed.

These measures, therefore, have a legal basis.

Vincent Tisler Pic: Provided by interviewee

So there is a legal basis, but are the president’s proposals legally justifiable?

The very fact the state of health emergency is in place has the purpose and effect of restricting individual rights and public liberties.

Although these rights and freedoms are guaranteed by our Constitution as well as various international treaties, such as the European Convention on Human Rights, they can never be absolute. 

It is always necessary to balance it with other rights and freedoms, with the protection of public order or with the public interest.

However, curtailing freedoms is a severe course of action, normally subject to very strict conditions given the fundamental importance that individual rights and freedoms have in the democratic cohort of societies to which France belongs.

Each emergency measure, whatever it may be, must be strictly necessary, appropriate and proportional to the objective pursued, namely today the protection of the health of people in France.

Therefore, imposing the health pass can be theoretically justifiable only if the lawmaker and the government respect those strict conditions - that the measures are necessary, appropriate and proportional.

This is by no means clear after the quick intervention of the President of the Republic and the reading of the draft law proposed by the Government.

Previously, the Conseil d’État said that the use of the health pass should be tolerated as it did not impact everyday activities, such as going to cafes or restaurants. The government now wants to use the health pass for exactly these activities. How is this possible?

It is important to know that the Council of State never stated that the use of the health pass for everyday activities should be prohibited.

It stated at the time that its use would not affect daily activities, without ruling out that it could in the future be used for those means.

At that time (in early July), the virus was spreading less than today.

More broadly, one may ask whether this measure is necessary, appropriate and proportionate.

In its opinion of July 19, on the draft law under discussion, the Council of State considered that the extension of the health pass to a range of daily activities was necessary.

This is based on two main elements. 

Firstly, the Conseil scientifique Covid-19 (which advises the government on Covid matters) proposed this extension of the health pass to prevent the effects of the Delta variant. 

Secondly, the projections of the Pasteur Institute show that the decrease in the incidence rate (the number of positive cases of Covid-19 per 100,000 people) is necessary to avoid a higher number of hospitalisations than during the first wave.

The Council of State also considers the argument that the summer period can lead to less vigilant behaviour  by people in France, which justifies the implementation of these measures. 

This could be seen as a subjective approach to the justification of the health pass, and it weakens the arguments in favour of it. 

We could say that the Council of State should have taken into account other objective elements to further justify the necessary and appropriate character of this most restrictive measure. 

No assessment is made, for example, on the effectiveness of the vaccine in preventing the spread of the Delta variant or on the possibility of putting in place alternative measures - such as wearing masks, aerating rooms, washing hands, etc.

The opinion of the Council of State lacks detail in this field.

So could the bill be blocked?

The risk of censure before the Constitutional Council is minimal on this point since it adopts a similar approach to that adopted by the Council of State. 

In my view, the arguments in favour of the health pass are not enough, but they likely will be in the view of the French supreme courts, which fail to fully and rigorously justify infringements of civil liberties.

The Council of State did, nevertheless, note that access to shopping centres could not be subject to a health pass since people must have access to "basic necessities". 

The Council of State has thereby reframed the president’s proposal on points of detail in the bill, without challenging the whole.

Do you have any concerns about the extended use of the health pass?

The establishment of a health pass to control individuals in a very large number of their daily activities objectively infringes the rights and freedoms guaranteed by the Constitution and the laws.

Among these rights, there is for instance the freedom to come and go, but also the freedom to conduct a business, the rights attached to work, the freedom of association, the freedom of religion, the right to respect for private and family life, the medical confidentiality or even the freedom not to be vaccinated and the integrity of the human body.

The challenge remains to rigorously and objectively assess the necessity, appropriateness and proportionality of the measure.

But no real explanation was given by the President of the Republic in the absence of alternative measures that could stop the increase in the number of contaminations. 

For example, there is less stress nowadays on the benefits of wearing masks and respect for physical distance. In this regard, it seems that the President of the Republic has definitively abandoned any idea of individual responsibility. 

Let us hope that the prime minister and parliament will justify the health pass more rigorously than the President of the Republic and the Council of State in its opinion.

Individual rights and freedoms are too precious to be infringed upon without a sufficiently convincing explanation and justification.

What about making vaccines mandatory for certain professionals, is that legal and justifiable?

Mandatory vaccination already exists in the public health code for other diseases concerning caregivers. 

The Constitutional Council considered in 2015 that it is open to the legislator to define a vaccination policy in order to protect individual and collective health and that it is also open to modify the provisions relating to this vaccination policy to take into account the evolution of scientific, medical and epidemiological data.

So the government will be able to align this mandatory Covid vaccination with what already exists.

However, here again, the government must justify the appropriateness of the vaccination obligation to the objective pursued. 

But like in its 2015 decision, the Constitutional Council will control this appropriateness in a very limited way. Indeed, it refuses to put itself in the place of the legislator in the assessment of the state of scientific data justifying the vaccination obligation.

Nevertheless, one may wonder about the objective of reducing the rate of contamination to Covid 19 by imposing vaccination on a certain number of professionals.

Why is this mandatory vaccination only for healthcare workers? Many others are exposed: firemen, police officers, teachers, all those who participate in court hearings (judges, court clerks, lawyers) etc. The list could be endless.

Under the bill, the staff affected by the mandatory vaccination rule who choose not to get vaccinated risk fines or losing their jobs. What do you think about this?

The fact that healthcare workers who cannot be vaccinated due to some health, conscience, opinion, religious or any other reasons will not be able to perform their jobs is an issue.

Also, the higher prevalence of vaccine hesitancy among certain groups raises questions about possible discriminatory effects of mandatory vaccination policies. Such policies that penalise and exclude unvaccinated people from a lot of spheres of society risk a disparate impact on minority groups.

These measures may thereby exacerbate already present social disadvantages and stigma. Thus, any mandatory vaccination policy must be carefully formulated to avoid discrimination. Otherwise it can cause legal problems.

Furthermore, the law is not sufficiently detailed with regard to the procedures for sanctioning workers or civil servants who refuse to be vaccinated or to present a health pass. 

The possibility for them to defend themselves must be guaranteed and any automatic sanction in this area must be avoided.

Lastly, the fact that the President of the Republic is proposing this type of measure without any prior consultation with trade unions and employers' organisations, local elected representatives, association, etc., and in a very short space of time, will necessarily result in legal uncertainty and major disputes, especially when it comes to challenging the sanctions taken against health workers.

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