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18 May 2020
Client Alert | France | Corporate Law
Law No. 2020-546 of 11 May 2020 extending the state of public health emergency and completing its provisions was adopted on 9 May 2020 by the joint commission and was validated by the Constitutional Council on 11 May (see here), with the reservations and censures indicated below.
The first purpose of this law is to extend the state of public health emergency and to help it meet the challenges of the end of lockdown. It also considers new IT tools to combat the spread of Covid-19.
Extension of the state of public health emergency: The Law of 11 May extends the state of public health emergency to 10 July 2020 inclusive. However, this state of emergency may be terminated in advance by decree of the Council of Ministers, following the opinion of the Committee of Scientists.
Adjustments to the criminal liability of decision-makers: The Law provides for the insertion of a new Article L. 3136-2 relating to the conditions for incurring criminal liability in the event of a health disaster in the Public Health Code, which provides that, for the application of Article 121-3 of the Criminal Code relating to the conditions for incurring unintentional criminal liability, account must be taken "of the skills, power and means available to the perpetrator in the crisis situation that justified the state of health emergency, as well as the nature of his missions or functions, in particular as a local authority or employer".
Gradual return to the ordinary law on pre-trial detention: Article 16 of Ordinance No. 2020-303 of 25 March 2020, issued pursuant to Law No. 2020-290 of 23 March 2020, provided for the extension of the time limits for pre-trial detention or house arrest with electronic surveillance. The Law of 11 May now establishes the principle of a gradual return to ordinary law for pre-trial detention as of the date on which the courts resume their activity: as of 11 May 2020, pre-trial detention may no longer be extended without a decision by the competent court taken after an adversarial hearing. The Law of 11 May also sets out the procedures necessary for this gradual return to ordinary law.
Travel, transport, opening of establishments receiving the public and places where people gather: The Law of 11 May specifies and supplements the provisions of Article L. 3131-15 of the Public Health Code relating to the measures that may be taken by the Prime Minister during a state of public health emergency. The Prime Minister will now also be able to regulate by decree the movement, access and use of transport and the opening of establishments receiving the public as well as meeting places and no longer limit or prohibit them. It also clarifies and completes paragraph 7 of article L. 3131-15 of the Public Health Code relating to the Prime Minister's power to order the requisition of any person, goods and services needed to combat health disasters.
Quarantine measures and measures for placement and maintenance in isolation: Article 5 of the Law provides for the insertion in article L. 3131-15 of the Public Health Code of a paragraph II, which will specify the arrangements for quarantine measures and measures for placement and maintenance in isolation. These measures may only concern persons who have stayed in one of the Covid-19 traffic zones, the list of which will be made public, arriving in France from abroad or travelling between metropolitan France and the overseas territories and Corsica. The general framework applicable to these measures (duration, places, health monitoring, exit restrictions) will be defined by decree in the Council of State, after the opinion of the committee of scientists, "according to the nature and modes of propagation" of the virus.
Individual measures will be decided by the prefect, on the proposal of the director general of the regional health agency, and the prefect's decision will have to mention the channels and deadlines for appeal, as well as the procedures for referring the matter to the judge of liberties and detention. These individual measures may be appealed against by the persons concerned before the judge in charge of liberty and detention, who will have 72 hours to give a ruling. Placement and maintenance in solitary confinement may be decided only on the basis of a medical certificate. These measures will have an initial duration of 14 days, which may be renewed only under certain conditions, without exceeding a total duration of one month.
The Constitutional Council has validated this regime but with a reservation of interpretation (no extension of quarantine or isolation measures requiring the person concerned to remain at his or her home or place of accommodation for a period of more than 12 hours a day without the authorization of the judicial judge).
The Law prohibits that persons and children who are victims of violence be quarantined, placed and kept in isolation in the same dwelling or place of accommodation as the perpetrator of such violence, even if it is alleged. It also provides for regular information to be provided to persons subject to quarantine, placement or segregation measures. Article 6 of the Law of 11 May also amends certain provisions of the French Labour Code in order to adapt them to periods of quarantine.
The Constitutional Council has censured the provision of the Law, the effect of which was, as from its entry into force, to leave in place, at the latest until 1 June 2020, the legal regime currently in force for quarantine measures and placement and maintenance in isolation in the event of a state of public health emergency. Article 13 of the Law now provides that it will enter into force immediately.
Extension of the categories of persons authorised to establish violations of the provisions adopted on the basis of a state of public health emergency: The Law of 11 May extends the list of persons authorised to establish violations of the provisions adopted on the basis of a state of public health emergency by means of a report. This will notably be the case for sworn transport service agents, such as those of SNCF and RATP, when the contravention takes place on public transport, or agents of the Directorate General for Competition, Consumer Affairs and Fraud Control for contraventions consisting solely of the violation of measures taken with regard to pricing control or restrictions on entrepreneurial freedom.
Rental evictions and suspension of access cuts in the supply of electricity or gas: The Law of 11 May postpones to 10 July 2020 inclusive the end of the winter truce for rental evictions as well as the prohibition of access cuts, for non-payment of bills, to "the supply of electricity, heat or gas".
Article 11 of the Law expressly authorises, under certain conditions, the sharing of data processed in the framework of the information systems deployed in support of combating the spread of the Covid-19 epidemic to derogate from medical confidentiality and the need to obtain the consent of the persons concerned, but only for a period of up to six months from the end of the state of public health emergency.
Moreover, the provisions of this article establish a general legal framework for these information systems. These provisions identify the categories of data controllers for the planned systems; authorise the collection of "health and identification data" and list the purposes pursued; list the categories of persons who may have access to this information and refer the methods for implementing the system to a decree of the Council of State after a public notice from the CNIL. The Constitutional Council censured the provision which provided that an assent of the CNIL was required. It should be noted that the data collected will not be collected for the purposes of the StopCovid digital application, which is not expected to be available before 2 June 2020.
These provisions stipulate that personal data collected by these information systems may not be retained for a period of three months after their collection. They strictly limit the nature of the health data that may be included in the files considered and the list of categories of persons who may have access to the information contained therein. Lastly, they set up a "societal liaison committee" responsible for ensuring that the processing of personal data is actually necessary and that the guarantees provided for by law are respected in practice.
The law also provides for the methods of remuneration of the professionals who will carry out the collection work; the anonymisation of the information collected when it is used for epidemiological surveillance at national and local levels, or for research on the virus and the means of combating its spread; a ban on the communication of data identifying infected persons, except with their express consent, to persons who have been in contact with them and, finally, the conditions for exercising greater parliamentary control over the processing of such personal data (informing Parliament without delay of the measures implemented for the application of these provisions; submission by the Government of a quarterly report on the application of these measures). These reports are completed by a public notice from the CNIL.
The Constitutional Council also censured the provision of article 11 of the Law, which included the bodies that provide social support for the persons concerned in the scope of persons likely to have access to such personal data without the consent of the person concerned.
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Gide's Mergers & Acquisitions / Corporate practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.
This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.
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