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France: Government Adopts Law Declaring and Defining a ‘State of Health Emergency’

(Mar. 30, 2020) On March 23, 2020, the French government adopted a law allowing the executive branch to declare a state of emergency for health-related crises. This law adds several provisions to the nation’s Public Health Code, allowing the executive to declare a “state of health emergency” (état d’urgence sanitaire) in all or part of the country, and defining what that entails. A state of health emergency allows the government to severely curtail certain liberties in order to fight a pandemic or similar public health emergency. For example, it allows the government to

  • prohibit or limit the circulation of people and/or vehicles in certain places or at certain hours;
  • prohibit people from leaving their homes except for reasons of strict necessity related to health or family needs;
  • quarantine people who might be infected, or order them to stay in isolated confinement in their home or in appropriate housing;
  • order the closing of certain categories of businesses and limit or prohibit meetings and other group gatherings;
  • requisition any goods and services necessary to deal with a health crisis and impose temporary price controls on certain necessary products;
  • take any measure necessary to put appropriate medication at the disposal of patients; and
  • issue decrees that might limit freedom of enterprise in order to deal with the health crisis.

Several measures are in place to prevent any abuse of these powers on the part of the executive branch. While the president of the republic can declare a state of health emergency by decree, he/she must immediately inform the Senate and the National Assembly of the measures the executive intends to take, as well as make public the scientific data on whose basis the health emergency was declared. The Senate and National Assembly may demand any additional information they deem necessary. Additionally, a state of health emergency may be extended beyond a period of one month only by a law properly adopted by the Parliament, and any measure taken by the government during a state of health emergency may be challenged before the country’s administrative jurisdictions.

The new law also requires that a scientific committee be formed immediately upon the declaration of a state of health emergency. While the head of this committee is to be nominated by the president of the republic, it must also include two qualified experts to be nominated by the president of the National Assembly and two more to be nominated by the president of the Senate. This committee must regularly advise the government on the status of the health emergency, the scientific information related to it, and the measures necessary to end the crisis. The committee is automatically dissolved at the end of the state of health emergency.

These provisions supplement a preexisting article of the Public Health Code, article 3131-1, which allows the minister of health to order “any measure proportionate to the risks and appropriate to the circumstances … to prevent and limit the consequences” of a serious health threat to the population. This provision was considered inadequate on its own to deal with a crisis such as the current COVID-19 pandemic, as it placed almost the entire burden of the response on the minister of health. The new provisions, by contrast, are meant to create a more solid and comprehensive framework that involves the entire government.

In addition to defining a framework for a state of health emergency, this new law declared a state of health emergency to be immediately in effect, for a period of two months, over the entire French territory. However, it authorizes the president to put an end to the state of health emergency by decree before the end of this period.

Furthermore, this law authorizes the president to legislate by ordinance during the next three months, for a number of defined purposes, including the following:

  • Providing financial help and support to businesses, so as to limit the number of layoffs and bankruptcies caused by the current crisis.
  • Adapting labor laws to help businesses deal with the organizational difficulties caused by the current crisis.
  • Facilitating the organization of childcare.
  • Suspending residential evictions until May 31.
  • Protecting segments of the population that are particularly vulnerable, such as the elderly, the disabled, and the poor.
  • Allowing local governments, such as town mayors, to exercise more authority.

Any such ordinance is temporary unless ratified by Parliament. The law requires that a ratification bill be presented to Parliament within two months of the publication of each ordinance.

Finally this law contains provisions to postpone the second round of municipal elections, which was initially supposed to occur on March 22, 2020, to June 2020 at the latest.