The Conseil d'Etat's urgent applications judge did not suspend the extension of the health pass to cultural and leisure establishments and venues accommodating 50 people. The judge ruled that, pending a new law and given the recent deterioration of the health situation, the Prime Minister had the power to take such a measure.
The Conseil d'Etat was notified of a number of suspension and urgent application measures against the decree of 19 July, by which the Prime Minister extended the obligation to present a health pass (negative virological test, vaccination certificate or recovery certificate) to cultural and leisure establishments hosting 50 people, as of 21 July.
The urgent applications judge noted that the law of 31 May allowed the Prime Minister to impose the presentation of a health pass for people wishing to attend "large gatherings". However, the judge recalled that the Prime Minister, in exceptional circumstances, has the power to take police measures for the whole of the country, when the laws in force do not allow him to respond to an emergency situation, and in particular while awaiting the adoption of a new law.
The urgent applications judge also observed that the health situation in France had recently deteriorated, with the increasing spread of the Delta variant, which is particularly transmissible. As of 19 July, the number of people infected with COVID-19 had increased by 111% compared to the previous week and by 244% compared to the week of 3 June. The number of hospital admissions has increased by 57% and 67% for critical care admissions. Moreover, the Pasteur Institute's modelling suggests that the epidemic will worsen even more in August, with vaccination coverage still insufficient to allow a sustainable decline in the epidemic.
In view of these circumstances of a serious epidemic resurgence, which allowed the Prime Minister to take the contested measures without delay, the plea that the size of gatherings requiring a health pass was unlawful was not such as to raise a serious doubt as to the legality of the contested decree.
The urgent applications judge also dismissed the freedom applications on the grounds that the decree was not likely to seriously and manifestly infringe the fundamental freedoms invoked, namely freedom of expression and free communication of ideas, freedom of artistic creation, freedom of access to cultural works, freedom of enterprise and freedom of trade and industry, and the right to freely exercise a profession. The resurgence of the epidemic linked to the spread of the Delta variant could indeed justify the extension of the use of the health pass and the immediate entry into force of this measure. Moreover, the future law on the management of the health crisis should soon render the contested decree null and void, and it will therefore only be in force for a few days.