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France: Council of State Confirms That Masks Can Be Made Mandatory under Certain Conditions

(Sept. 30, 2020) On September 6, 2020, France’s Conseil d’Etat (Council of State) issued two decisions confirming that government authorities may impose mandatory mask-wearing in certain geographic areas, but under certain conditions. The Conseil d’Etat is, in addition to being an advisory body for the government, the highest jurisdiction for administrative law. The decisions in question were decided under an emergency procedure called référé, and concerned an order of August 31, 2020, by the prefect of the département (administrative district) of the Rhône, and an order of August 28, 2020, by the prefect of the département of Bas-Rhin. The order of the prefect of the Rhône makes it mandatory for any person over the age of 11 to wear a face mask in public within the cities of Lyon and Villeurbanne, while the order of the prefect of Bas-Rhin imposes the same rule in all municipalities of over 10,000 inhabitants within that département, which includes the city of Strasbourg. Both of these orders were issued to help counter a sharp increase in the number of cases of COVID-19 in these two regions. Both of these orders were challenged in administrative courts by plaintiffs who objected to them as being overly broad and as infringing on individual liberty.

On September 2, 2020, the Administrative Tribunal of Strasbourg ruled, under an emergency référé procedure, that the prefect of Bas-Rhin should issue a new, more narrow order that would limit mandatory mask-wearing to times and places where a high population density or other local circumstances could facilitate the spread of COVID-19. On September 4, 2020, the Administrative Tribunal of Lyon issued a similar ruling, also under a référé procedure, ordering the prefect of the Rhône to issue a new order under the same parameters as required by the Administrative Tribunal of Strasbourg. The Ministry of Health and Solidarity, stepping in for the two prefects, appealed both decisions to the Conseil d’Etat.

As is normal in a référé procedure, the Conseil d’Etat’s decisions were each rendered by a single judge. In both cases, the Conseil overruled part of the administrative tribunal’s decision. The Conseil agreed with the lower courts that a mandate to wear a mask in public was a valid exercise of authority if it is necessary and proportionate to the goal of fighting against the spread of COVID-19. However, the Conseil ruled that the prefects could mandate mask-wearing at times and in places where the population density was lower, if that was necessary to make the whole zone of mandatory mask-wearing easily identifiable and less confusing for members of the public. According to an argument set forth by the Ministry of Health and Solidarity and adopted by the Conseil, experience showed that when mandatory mask-wearing zones were too narrowly defined, the public tended to get confused as to where going maskless was and wasn’t authorized. This made the mandates harder to enforce and therefore less effective. Since the government needs to establish a rule that is effective to justify the constraints on freedom that it might entail, the Conseil d’Etat ruled that low-density areas could be included in a zone of mandatory mask-wearing if they are located between higher-density areas within the same zone. This is particularly true in urban areas that may have several high-traffic areas that are not necessarily contiguous. However, in smaller towns where the high-traffic area is generally limited to a more clearly defined town center, the mask-wearing mandates must be limited to that town center.

The Conseil d’Etat therefore ordered the prefects of the Rhône and of Bas-Rhin to issue new orders according to these criteria. The prefect of the Rhône may impose mask wearing throughout the cities of Lyon and Villeurbanne but must allow an exception for physical exercise. The prefect of Bas-Rhin, whose district includes several small towns, must limit the mandate to the centers of these towns rather than their entire territory.