As part of the state of health emergency declared by the law of March 23, 20201, and derogations from the travel ban provided for by the decree of the same day2, a decree n ° 2020-167 of the mayor of Sceaux of April 6, 2020 had subjected any movement in the public space of people of more than ten years to the “port of a device of oral and nasal protection” (art. 1er), it being specified that “in the absence of a surgical mask or FFP2, users of public space over ten years old can wear protection carried out by other procedures on the condition that these completely cover the nose and the mouth ”(art. 2).
The measure was motivated by the fact that, “in the current health context, the general wearing of a mask by the population would constitute a logical addition to the barrier measures currently in force”, and was based on the recommendations of the National Academy of medicine so that the wearing of a “general public” mask is made compulsory, and that the lifting of confinement is accompanied, in particular, by the compulsory wearing of a “general public” or “alternative” mask.
Pursuant to the provisions of Article L. 521-2 of the Code of Administrative Justice, the League for Human Rights had seized the administrative court of Cergy-Pontoise with an interim release directed against the decree of the mayor of Seals of April 6, 2020, arguing that it constituted a serious and manifestly unlawful violation, in particular, of the freedom to come and go and personal freedom.
By an interim order of 9 April 20203, the administrative court of Cergy-Pontoise had granted his request and suspended the execution of the decree of the mayor of Sceaux, after having noted, in particular, that “no risk specific to the town of Sceaux”, and therefore no “Particular local circumstance” did not justify the measure taken at local level which, moreover, added “an additional condition to the already significant restrictions on the freedom to come and go imposed by the national police authorities” and created “a new restriction individual freedom ”.
The municipality of Sceaux appealed the summary order of 9 April 2020.
By an order n° 440057 of April 17, 2020, the State Council rejected the request for appeal from the commune of Sceaux and specified the procedures for exercising the mayor’s general administrative police power in the context of the state of health emergency.
I – The existence of a special administrative police force for health emergencies at the national level does not prevent the mayor from exercising his power of general administrative police force at the local level
In its ordinance of April 17, 2020, the Council of State confirms, for the first time, the fact that the administrative police power of the State resulting from articles L. 3131-15 to L. 3131-17 of the Code de la public health – resulting from the law of 23 March 20204 declaring a state of health emergency – is a special administrative police power which does not prevent the mayor from exercising, at local level, the general administrative police power which he derives from articles L. 2212-1 and following of the general code of local authorities:
” By [ces dispositions], the legislator has instituted a special police giving the authorities of the State mentioned in articles L. 3131-15 to L. 3131-17 the competence to enact, within the framework of the state of health emergency, the general or individual measures aimed at ending a health disaster such as the covid-19 epidemic, with a view, in particular, to ensuring, taking into account the available scientific data, their consistency and effectiveness throughout the territory concerned and to adapt them according to the evolution of the situation “ (recital 5).
The Council of State insists on the circumstance that, within the framework of the state of health emergency, the power of general administrative police of the mayor is not called into question:
“Articles L. 2212-1 and L. 2212-2 of the general code of local authorities […] authorize the mayor, including during a state of health emergency, to take the general police measures necessary for good order, safety, security and public health in his commune […] “ (recital 6).
These clarifications by the supreme court were welcome, for several reasons.
As the Council of State recalled, under the terms of article L. 2212-1 of the general code of the territorial collectivities, the municipal police force has for object, in particular, “public safety and health”, which includes , in particular, “5 ° The care to prevent, by suitable precautions, and to put an end, by the distribution of the necessary help, […] epidemic or contagious diseases ”.
In view of the purpose of the State’s special administrative police in matters of health emergency at the national level, what remains of the general administrative police of the mayor at the local level, and how do these two police systems work together? on the territory of a municipality?
So far, only administrative courts, seized in first instance within the framework of the state of health emergency, and therefore under the empire of the law of March 23, 20205 and the same day decree6, had specified that the existence of a special administrative police force of the State in matters of health emergency did not call into question the exercise by the mayor of his power of general administrative police force at the local level in the presence of particular local circumstances justifying it.
In this sense, the administrative court of Caen7, then that of Montreuil8, seized with municipal curfew orders, respectively, in the municipalities of Lisieux and Saint-Ouen-sur-Seine, found that the special administrative police power of the State established by Articles L. 3131-15 to L. 3131-17 of the public health code, ” did not (hinder) that, in order to ensure public safety and health, the mayor make use, according to particular local circumstances, of the general police powers which he derives from articles L. 2212-1 et seq. of the general code of local authorities “.
In the summary order of April 9, 2020, the administrative court of Cergy-Pontoise followed the same reasoning by retaining that, “in the case of the mayor in particular, nor the police powers that the State can exercise everywhere as part of the state of health emergency, to restrict the movement of people, or the authorization given to the prefect in the department to adopt more restrictive measures in this area, don’t stand in the way that, in order to prevent disturbances to public order on the municipal territory, the mayor makes use, according to specific local circumstances, of the general police powers which he derives from articles L. 2212-1 and following of the code general of local authorities to adjust the conditions of movement of persons within the framework of the exceptions to the principle of prohibition provided for by the aforementioned provisions “9.
Admittedly by the Young Doctors union, the Council of State, in an interim order of March 22, 2020, had had the opportunity to recall the persistence of the mayor’s general administrative police powers in the context of the fight against spread of covid-19:
” […] the mayor [dispose], under the conditions and according to the methods fixed in particular by the general code of local authorities, of the power to adopt, within the […] of the municipality, more restrictive measures to ensure public safety, security and sanitation, especially in the event of an epidemic and taking into account the local context “10.
However, this order was made before the declaration of the state of health emergency by the law of March 23, 202011, that is to say not under the authority of the provisions of articles L. 3131-15 to L. 3131-17 of the public health code establishing a special administrative police force for health emergencies concentrated in the hands of the Prime Minister, of the Minister responsible for health, and with the authorization of the first two, of the State representative in the department, but under the authority of the provisions of articles L.3131-1 et seq. Of the public health code, which provide, for the benefit of the Minister of Health, a special administrative police power in the event of a “health threat”, apart from any declaration of a “state of health emergency”.
In other words, the order of March 22, 2020 having been taken in the context of the exercise of a special administrative police separate from that instituted specifically in the context of the state of health emergency, the solution adopted by the Conseil d’Etat in terms of assistance from the administrative police forces concerned was therefore not necessarily necessary in the present case.
Specifically, it is in light of the lack of intervention by the Council of State on this point within the framework of the law12 and the decree of March 23, 202013, that in the present case, both the respondent League for Human Rights and the Ministry of the Interior, an observer in the proceedings, maintained that the decree of the mayor of Sceaux dated 6 April 2020 was vitiated by incompetence, taking into account the exclusive nature of the State’s special administrative police power in matters of health emergency.
In this regard, the Human Rights League even asked the Council of State for confirmation of the interim order of April 9, 2020 “by substitution of reasons”.
In its ordinance of April 17, 2020, the Council of State dismisses this argument and confirms the case-law of the abovementioned administrative courts, and therefore the summary order challenged on this point, by specifying, nevertheless, the restrictions brought to the power of administrative police general of the mayor within the framework of the state of health emergency, and consequently, the conditions of legality of the police measures thus taken.
II – Municipal administrative police measures in times of health emergency are subject to reinforced legality conditions
The Council of State specifies, first of all, that the mayor, who is not deprived of his power of general administrative police within the framework of the state of health emergency, can “take measures intended to contribute to the correct application, on the territory of the municipality, of the measures decided by the competent authorities of the State ”.
The Council of State recalls here the faculty of the mayor to exercise his power of general administrative police to accompany or facilitate, in his commune, the implementation of the rule decided by the special health police measures taken at the higher national level or departmental.
Constant jurisprudence14, the mayor can only take, in this context, more restrictive measures which are necessary in the light of local requirements, as recalled by the Council of State, giving for example a measure prohibiting access to places where gatherings are likely to occur, which a mayor could legally take “in view of local circumstances”.
Such an example echoes, in particular, decree n ° 202007043 of March 19, 2020 by which the mayor of Bordeaux prohibited the circulation of cyclists and pedestrians on all of the quays of Bordeaux, including the plateaux on the banks and the gardens, both left bank and right bank.
In any event, such measures are consistent with the terms of article 2 of the decree of March 23, 202015 which state that, “In order to slow the spread of the virus, hygiene and social distancing measures, known as” barriers “, defined at national level, must be observed everywhere and in all circumstances. Gatherings, meetings, activities, hospitality and travel as well as the use of means of transport which are not prohibited under this decree are organized by ensuring strict compliance with these measures “
The power to “organize” these rallies and meetings would then rest with the mayor, who would take, if necessary, in the light of local circumstances, a prohibition measure on the territory of the municipality. In this sense, the interim order of the administrative court of Cergy-Pontoise referred to the measure that the mayor could take, in this context, under his police power, “to improve the conditions of movement of people in the framework of exceptions to the principle of prohibition “set at national level16.
The Council of State here refrains from giving as an example the municipal police measures instituting a curfew. It should be recalled that in the absence of local circumstances justifying the intervention of the mayor, the curfew orders taken in the municipalities of Lisieux17 and Saint-Ouen-sur-Seine18 were suspended by the administrative judge seized in summary proceedings.
The Council of State then specifies the modalities of the competition between the special administrative police of the state health emergency on the one hand, and the general administrative police of the mayor on the other hand, by assuming that ” […] the special police instituted by the legislator obstructs, during the period in which it is applicable, the mayor taking measures within the framework of his general police power to combat the health catastrophe ”(recital 6) .
In other words, the existence of a special state administrative police force to combat the epidemic of covid-19 would preclude the mayor from using his general administrative police powers for the same purpose.
This position of principle is close to the arguments developed by the League for Human Rights and the Minister of the Interior in their pleadings, tending to assert an alleged incompetence of the mayor of Sceaux to take the contested decree, at reason that the special administrative police of the State would be exclusive (v. I).
If the principle thus laid down by the Council of State seems to be imbued with logic and wisdom, it nevertheless seems difficult to apply in practice.
As indicated, the Council of State gave the example of a municipal police measure which would prohibit, in the light of local circumstances, access to places where gatherings are likely to occur, in particular presenting it as a legal measure as it contributes to the proper application, on the territory of the municipality, of measures enacted at national level.
However, could it not be considered that such a measure would have the aim of combating the spread of the covid-19 epidemic, and therefore that it would encroach on the special administrative police power of the State in matters health emergency, so the mayor would be incompetent to take it?
Applied to the present case, the question is as follows: the extent to which the mayor of Sceaux imposes the wearing of masks in public space, on the grounds that it is a “logical addition to the current barrier measures in force ”, does it contribute to the correct application of the measures taken at national level, or does it specifically aim to combat the epidemic of covid-19, the object of the municipal special police of the state health emergency?
It seems that the border is drawn in the light of the local circumstances invoked by the mayor which, as soon as they are legally justified, would make it possible to dismiss the complaint of encroachment by the measure taken by the mayor over the field of competence of the special state administrative police.
Thus, the Council of State specifies that, by exception, the mayor cannot use his power of general administrative police to take measures intended to fight against the health catastrophe, in this case the epidemic of covid-19, only on a double condition.
On the one hand, compelling reasons linked to local circumstances must make the enactment of a municipal police measure essential (recital 6); which the Council of State later describes as “compelling reasons specific to the municipality” (recital 9).
This is an additional requirement brought to the condition of specific local circumstances posed by the administrative judge in the event of a contest between administrative police forces and recalled, in particular, by the administrative court of Cergy-Pontoise in its summary order of 9 april 202019.
It should be recalled that the following were not considered by the judge to constitute special local circumstances justifying the introduction of a curfew on the territory of the municipality: nightly trash fires as well as traces of break-ins and damage to a sports stadium20 ; sanitary difficulties and deviations from measures of confinement and social distancing in the department, as well as a failure to respect the rules of confinement in the community21.
The addition made by the Council of State to the condition of special circumstances required at local level seems logical in view of the rigor imposed on central authorities in the context of the exercise of their special administrative police power for health emergencies .
Indeed, at the national level, the special administrative police measures taken by the central authorities must be ” strictly proportioned the health risks involved and appropriate to the circumstances of time and place “, concerning the Prime Minister22, or even ” strictly necessary and proportionate the health risks involved and appropriate to the circumstances of time and place “, as regards the Minister responsible for health23 and the representative of the State in the department24.
In these conditions, the measures taken by the mayor at the local level must meet an even higher level of requirement, since they are more restrictive and more restrictive of freedoms.
In this case, the Council of State dismisses the local circumstances put forward by the commune of Sceaux – a population made up of 25% of people over sixty years of age, the closure of green spaces which represent a third of the communal area, and the concentration of food businesses open in a single pedestrian street – judging that:
” […] neither the demography of the municipality of Sceaux nor the concentration of its essential shops in a small area can not be regarded as compelling reasons linked to local circumstances specific to it and which would require that it be pronounced on its territory, to fight the covid-19 epidemic, a ban on traveling without wearing a protective mask […] “ (recital 11).
On the other hand, in addition to the circumstance that the mayor justifies compelling reasons specific to his commune, the Council of State specifies that the measure must not compromise the coherence and the effectiveness of the measures taken within this framework by the State.
This restriction seems logical.
If the mayor acts, under his power of general administrative police, in the same field of competence as the State, under his power of special administrative police, it is important that his action falls within the framework of the measures which have been enacted at the national level.
In the present case, the decree of the mayor of Sceaux subjected the movement in public space to any person over ten years of age to “wear an oral and nasal protection device” (art. 1er).
However, the Council of State notes that, if the decree of March 23, 202025 has been modified and supplemented in order to maintain the ban on movement until May 11, 2020, on the other hand, “it does not, to date, require the wearing of protective masks in all or part of public space, to persons authorized to move ”(recital 8).
He evokes a “very constrained” context in which the State is led to fix precise national rules on the conditions of use of surgical masks and FFP2, and not to impose, in general, the wearing of other types of protective masks.
Consequently, the Council of State considers, that by imposing the wearing of the mask in its commune even when no measure in this direction was taken at the national level within the framework of the fight against the epidemic of covid -19, the decree of the mayor of Sceaux is likely to harm the measures taken at national level.
Article 2 of the decree of the mayor of Sceaux specifies that “in the absence of a surgical mask or FFP2, users of public space over 10 years old can wear protection carried out by other methods to on condition that these completely cover the nose and mouth ”.
On this point, the Council of State notes that, by suggesting that protection covering the nose and mouth (mask or other) could be effective protection, the mayor’s decision is likely to mislead the people concerned and to create confusion in the messages delivered to the population by the competent health authorities.
It follows that such a measure, apart from the fact that it does not meet any overriding reason specific to the municipality, is not in “coherence” with the measures taken at national level to fight against the epidemic of covid -19. Worse, it is likely to “scramble” the messages disseminated to the population concerning the wearing of masks and therefore to undermine the “effectiveness” of national measures.
In this regard, it should be noted that, as of the date of the ordinance of April 17, 2020, no general obligation to wear a mask has been adopted at the national level. The Minister of Solidarity and Health indicated, during the press conference of March 21, 2020, that the masks were reserved in priority for health professionals26.
The Council of State recalls this point in its ordinance: ” […] a strategy of management and controlled use of masks [a] has been set up on a national scale in order to ensure as a priority their supply to the most exposed professions “(recital 8), following on from what he had already said on April 15, 202027.
The circumstance that the municipality of Sceaux indicates having implemented measures so that all the inhabitants can have a protective mask is indifferent to the judge Furthermore, the mayor’s decree is intended to apply to any person who, without being a resident of the municipality, would have to move there (recital 12).
Consequently, the Council of State notes that the decree of the mayor of Sceaux does not meet the conditions of legality expected from a municipal police measure within the framework of the state of health emergency, as they were specified above. He therefore upholds the existence of a serious and manifestly unlawful interference with the freedom to come and go and the right of everyone to respect for his personal freedom, as well as an urgency to rule within 48 hours, in accordance with l ‘article L. 521-2 of the code of administrative justice.
By its ordinance of April 17, 2020, the Council of State therefore confirms the persistence of the general administrative police power of mayors during periods of health emergency, while greatly restricting its exercise.
First, the intervention of mayors at local level to fight the covid-19 epidemic must remain exceptional; the measures taken should be limited to those which are “essential” to meet a “compelling” reason specific to the municipality.
However, in the absence of precision as to this reason, one can wonder about the local context which would make legal, for example, the measure by which a mayor institutes, within the framework of the health emergency, a curfew in its commune, even hardens it compared to departmental regulations28. Similarly, in the event that a general deconfinement would be decided at the national level from May 11, 2020, in view of what particular local circumstances, for example, mayors could regularly extend the confinement measure in their commune , assuming that such a measure can be considered “consistent” with measures taken at national level?
In fact, the measures taken by mayors at the local level must, moreover, be consistent with those decreed at the national level within the framework of the state of health emergency: firstly so as not to sow confusion in messages that are delivered by public authorities; then, with the aim of guaranteeing the application of the same rules for everyone throughout the national territory.
In this regard, the President of the Republic, in his address to the French on April 13, 2020, expressed his concern for consistency in the application of the rule of law, recalling the need for the rules to be the same everywhere, and inviting mayors to limit their intervention29.
In this context, mayors are encouraged to exercise ever greater caution in the implementation of their police powers.
In any event, the restrictions imposed by the ordinance of 17 April 2020 on the police power of mayors are likely to dissuade local initiatives a little more in the future.
1. Law n ° 2020-290 of March 23, 2020 of emergency to deal with the epidemic of covid-19 (1), art. 4.
2. Decr. 2020-293 of March 23, 2020 prescribing the general measures necessary to deal with the covid-19 epidemic in the context of the state of health emergency.
3. TA Cergy-Pontoise, Apr. 9, 2020, No. 2003905, League for Human Rights.
4. Law n ° 2020-290, prec., Art. 2.
5. Law n ° 2020-290, prec.
6. Decr. n ° 2020-293, prev.
7. TA Caen, March 31, 2020, n ° 2000711, Prefect of Calvados, rec. 8, AJDA 2020. 757
8. TA Montreuil, Apr 3, 2020, n ° 2003861, Mr. Louis R., rec. 7, AJDA 2020. 757
9. TA Cergy-Pontoise, n ° 2003905, prev., Rec. 6
10. CE March 22, 2020, n ° 439674, recitals 2, 14 and 15, AJDA 2020. 655 ; D. 2020. 687 , note P. Parinet-Hodimont ; AJCT 2020. 175, obs. S. Fox .
11. Law n ° 2020-290, prec.
12. Law n ° 2020-290, prec.
13. Decr. n ° 2020-293, prev.
14. CE Apr 18, 1902, VSborn from Néris-les-Bains, Lebon 275; CE, sect., 18 Dec. 1959, “Les Films Lutetia” company and French Union of film producers and exporters, Lebon 693.
15. Decr. n ° 2020-293, prev.
16. TA Cergy-Pontoise, n ° 2003905, prev., Rec. 6
17. TA Caen, n ° 2000711, prev.
18. TA Montreuil, n ° 2003861, prev.
19. TA Cergy-Pontoise, n ° 2003905, rec. 6 and 16.
20. TA Caen, n ° 2000711, prev., Rec. 9.
21. TA Montreuil, n ° 2003861, prev., Rec. 8.
22. CSP, art. L. 3131-15.
23. CSP, art. L. 3131-16.
24. CSP, art. L. 3131-17.
25. Decr. n ° 2020-293, prev.
26. Speech by Olivier Véran, press conference on March 21, 2020: “(…) You will understand, I made the difficult choice but a responsible choice to grant protective masks first to health professionals to allow us to last as long as possible (…) ”.
27. CE 15 Apr 2020, n ° 440002, National Union of Trade Unions Force Ouvrière Santé Privée et al., Consider. 10.
28. About the decree n ° 2020-01135 of 15 Apr 2020 taken by the mayor of Nice, v. TA Nice, Apr 22, 2020, n ° 2001782, Human Rights League : “The judge in summary judgment considered that the high number of breaches of the rules of confinement on a particularly restricted perimeter of the municipal territory, corroborated by reports of offense, reports of video surveillance and emails of reporting by residents, constituted local circumstances justifying that a measure to tighten the curfew be taken by the mayor in the sectors concerned ”.
29. Address to the French people of President Emmanuel Macron of April 13, 2020: “(…) I ask all our elected officials, as the Republic plans in this matter, to help that these rules are the same everywhere on our soil. Curfews have been decided where it is useful, but prohibitions should not be added during the day (…) ”.