Council of State's Balance between Public Health Security and Fundamental Freedoms

Extract

[...] The Association les Essentialistes requests an interim injunction to suspend the measures imposed by the government, considering that they are disproportionate and unnecessary, in particular for open spaces where contamination would be less likely. Are the restrictive measures on freedom, in the context of managing the Covid-19 health crisis, in line with the principle of proportionality, in view of the respect of fundamental freedoms? The Council of State rejects the Association les Essentialistes' request. It confirms the legality of the measures taken by the government, considering that they are justified by the gravity of the health situation. [...]

[...] Therefore, the Council of State's decision seems to manifest a search for balance between the imperative of public health security and the protection of individual rights. The high administrative jurisdiction does not intervene in management choices but ensures that restrictive measures respect the principles of necessity and proportionality. In this sense, this decision confirms a trend in administrative jurisprudence, which evolves with the epidemic situation to adjust its control according to the context. Thus, the Council of State has, on the one hand, provided a justification for the infringement of freedoms by a state of sanitary emergency and, on the other hand, recalled the limits of the administrative judge's control (II). [...]

[...] In the judgment Association Civitas (CE October 2020, n° 444821), the Council of State recalls that even in a period of health crisis, certain freedoms must be respected. This decision testifies to the constant search for a balance between the respect of fundamental freedoms and the imperatives of sanitary security. Furthermore, the ECHR judgment Klass and Others v. Germany (ECHR April 1990, n° 5029/71) holds that the restrictions on fundamental freedoms must be 'necessary in a democratic society', highlighting the importance of this balance in an European approach to proportionality. [...]

[...] 309805), the Council of State estimated that the administration benefits from a margin of appreciation when it comes to deciding the necessary means to ensure public order. This balance between control and deference allows the administrative judge to avoid excessive interference in the management choices of the health crisis. Balance between public health security and respect for fundamental freedoms The balance between public health security and protection of fundamental freedoms remains a challenge for the Council of State. It is for him to ensure that the measures taken are proportionate, and to guarantee individual rights to the extent possible. [...]

[...] In fact, classical jurisprudence recognizes that the right to public health protection can justify limitations on individual rights when the general interest requires it. In addition, the ancient jurisprudence of the judgment Commune of Néris-les-Bains (CE April 1902) had already established the principle that administrative authorities could take police measures to protect public health, even if these measures involved restrictions on certain freedoms. In the context of the fight against Covid-19, this reasoning is fully up to date. The necessity and proportionality of state intervention The requirement of proportionality is an essential condition in the control of restrictive measures. [...]