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Creation of a legal regime for an emergency health situation

The first confinement measures decided last week were taken on a fragile legal basis, as revealed by the parliamentary work pertaining to the emergency law to deal with the covid-19 epidemic. Article L.3131-1 of the Public Health Code (CSP) then in force allowed the Minister in charge of health, "in the event of a serious health threat requiring emergency measures, particularly in the event of an epidemic", to take any necessary measure to prevent and limit the consequences on the health of the population. However, the measures to be taken were not sufficiently precise to secure legally those, unpublished, taken last week in the context of an epidemic that had gone beyond the stage of a simple threat.

In addition, Decree n°2020-260 of March 16, 2020 regulating displacements as part of the fight against the spread of the Covid-19 virus and restricting displacements was issued by the Prime Minister as part of his general police powers, following an old case law theory for exceptional circumstances dating back to the end of the First World War (CE Feb. 28,1919, Dames Dol and Laurent).

In order to provide a solid legal basis for the future measures that are likely to be taken, the Government wished to create a new legal regime for a health emergency situation, which is the subject of Title II of the Emergency Law to deal with the covid-19 epidemic, strongly inspired by the Law N° 55-383 of April 3, 1955 on the state of emergency.

The purpose of these new provisions incorporated into the CSP is to grant the administrative authority exorbitant prerogatives, which differ from general applicable rules of law in the event of a "sanitary crisis", which may apply to crisis other than the Covid-19 crisis. The approach is graduated: the Minister of Health is competent to deal with a health threat, while the Prime Minister can take stricter measures in the event of a health disaster, with more restrictive measures in terms of freedom.

The legal measure is therefore based on the following principles:

- a state of health emergency is declared by the Prime Minister, on the basis of a report by the Minister of Health, "in the event of a sanitary crisis, in particular an epidemic which, by its nature and seriousness, jeopardizes the health of the population", in all or part of the national territory (Article L.3131-21 of the CSP). The maximum duration is of one month, extendable only by law (art. L.3131-22 of the CSP). For the Covid-19 crisis, the law states that it is declared for two months as of its entry into force;

- the measures that may be taken are as follows :

o by the Prime Minister, any "general measures restricting the freedom of movement, entrepreneurial freedom and freedom of assembly", including measures of isolation and quarantine of affected people, closure of establishments welcoming the public and of businesses, places of assembly, limitation or prohibition of public gatherings or meetings of any kind, requisitioning of any goods and services giving rise to compensation, price control or provision of medicine. These measures must be "strictly proportionate to the health risks incurred and appropriate to the circumstances of time and place" (Article L.3131-23 of the CSP);

o by the Minister responsible for Health, "all other general measures" as well as "individual measures restricting freedom of movement, entrepreneurial freedom and freedom of assembly" (art. L.3131-24 of the CSP);

o by the Prefect, authorized by the Prime Minister or the Minister of Health, two categories of measures: on the one hand, those, including individual measures, for the enforcement of the measures prescribed by these two prior authorities; on the other hand, when the measures provided for are intended for an area not exceeding the department, the Prefect himself decides on their implementation (art. L.3131-25 of the CSP).

All of these measures are subject to an urgent recourse proceeding before the administrative judge, namely the emergency interim proceeding and the emergency freedom interim proceeding (Article L.3131-25-1 of the CSP). The administrative judge will check whether they are appropriate, necessary and proportionate to achieve the public order objective they pursue (CE, 26 October 2011, Association pour la promotion de l'image, req. no. 317827). Moreover, Parliament is informed by the Government "immediately " of all measures taken.

The violation of the measures and obligations is punishable by:
- six months' imprisonment and a fine of
10,000 in the case of requisition measures;

- a fourth class offence, i.e. a maximum of 700 (or €135 for the lump-sum fine), for all other measures.

As for compensation for requisition measures, for the record, this is governed by the provisions of the Code of Defence (CD), by reference to Article L.3131-23, paragraph 7, of the CSP. According to Article L.2234-1 of the CD, compensation for the required services owed to the service provider compensates only for the material, direct and certain loss that the requisition imposes. Are taken into account exclusively all expenses that have been incurred in an effective and necessary manner by the claimant, remuneration for work, depreciation and return on capital, assessed on usual bases. On the other hand, no compensation shall be owed for the deprivation of profit which might have been obtained by the provider by freely having available the property required or by continuing his professional activity in complete freedom.

Finally, according to Article L.2234-3 of the Code of Civil Procedure, additional compensation may be granted, if justified, to compensate all remaining losses.

There is extensive case law on requisition compensation, which should probably give rise to more in the near future.