Will attorneys reach bringing down the vaccination obligation for caregivers and, on the identical time, their suspension with out pay? To take action, a number of of them have filed precedence questions of constitutionality, with a view to have the conformity of the legislation of August 5, 2021 verified.

By Alix Jouan

It gained’t be for lack of attempting. For practically a 12 months, attorneys for suspended well being care staff have filed a dozen precedence questions of constitutionality (QPC) throughout France. Their objective: to confirm the constitutionality of the legislation of August 5, 2021, often called the “well being disaster administration” legislation, specifically its articles 12 and 14 regarding the vaccination obligation of caregivers.
For the second, all these questions have been rejected by the Conseil d’Etat (in administrative issues) or by the Cour de cassation (in judicial issues), however the attorneys stay decided and hopeful. One in all them will finally succeed and be transmitted to the Constitutional Council. Their eyes are at the moment turned in direction of the Courtroom of Attraction of Montpellier, the place a QPC was pleaded on October 4 by Me Alexandra Soulier (see under). The deliberation is imminent: we are going to know this Wednesday, November 30 if the query is validated or not. Suspense…
One other QPC was filed with the Nancy administrative courtroom of attraction in Could 2022 (see additionally under), by Me Nancy Risacher of the Épinal bar and Me David Guyon, a lawyer from Montpellier specializing within the protection of basic freedoms. However for the second, no information.

Legal guidelines that aren’t at all times constitutional

What’s a precedence query of constitutionality? This can be a pretty latest authorized mechanism (it dates from 2008) that permits the constitutionality of a legislation to be verified a posteriori by the Constitutional Council. One shouldn’t imagine that every one the legal guidelines enacted are in conformity with the Structure. In actuality, a lot of them haven’t been verified, as a result of with a view to be verified, the Constitutional Council should be seized throughout the 15 regulatory days that separate the adoption of a legislation by Parliament and its promulgation by the Head of State. This referral, which is non-obligatory, can solely be made by the President of the Republic, the Prime Minister, the President of the Nationwide Meeting, the President of the Senate, or by members of parliament, offered that there are not less than 60 deputies or 60 senators. It’s normally the deputies of the opposition who do it. But when nobody reacts, the legislation comes into power with out its constitutionality having been checked.
Furthermore, even when the Constitutional Council is seized, it solely solutions questions which might be put to it. If the query is badly formulated, the best reply won’t be given. And if sure articles of the legislation should not referred to it, their constitutionality won’t be verified. This mechanism, whereas it has the benefit of present, stays imperfect.

The fitting to problem a legislation in power

Happily, since 2008, the precedence query of constitutionality permits any citizen to problem the constitutionality of a legislation a posteriori, i.e. after its entry into power. To take action, a number of circumstances should be met: the QPC should be filed throughout a trial, it should concern a legislation that issues the present proceedings, it should be severe, i.e. decisive for the plaintiff, and it should be new, i.e. not concern a facet of the legislation that has already been reviewed. One rapidly understands that every part will rely upon the relevance of the query requested, its formulation and the power of the accompanying argument. In brief, a giant job for a lawyer.
In regards to the legislation of August 5, 2021, the Constitutional Council was certainly seized earlier than its promulgation, each by the Prime Minister, by greater than 60 deputies and by 120 senators. Nevertheless, the questions submitted to it by no means involved the vaccination obligation of well being care suppliers, which, within the occasion of refusal, would consequence within the suspension of their contract with out remuneration. Nevertheless, the constitutionality of this provision is greater than uncertain in line with the attorneys of the suspended caregivers. Therefore the QPC filed.

Can one be suspended eternally?

On the administrative courtroom of attraction in Nancy, the query drafted by Me Risacher and Me Guyon issues the absence of a time restrict set by legislation for the suspension with out pay of unvaccinated caregivers. “It’s a endless story, they are often suspended with out pay eternally, whereas nonetheless being beneath contract, and due to this fact unable to earn a residing elsewhere and unable to learn from any social help,” commented Me Risacher, considered one of whose purchasers was pressured to reside in her automobile. “How can we put folks on the road and allow them to languish on the sidewalk indefinitely? That is opposite to the precept of fraternity enshrined within the Structure,” the Spinalian lawyer rightly expressed indignation.
Furthermore, a sanction that has no finish turns into essentially disproportionate, to not say merciless. “For me, the affordable time period is essentially exceeded and it is going to be essential to get out of this example in a method or one other. If the unvaccinated caregivers are thought-about unfit for work, their employers ought to take their tasks and suggest an answer”, insists Me Guyon.
Furthermore, time will finally render this legislation out of date, because it has now been demonstrated that the vaccine prevents neither contamination nor transmission. On this case, what distinction is there by way of well being between a vaccinated caregiver and a non-vaccinated caregiver? None, however we all know that every one this has nothing to do with well being and is barely a political sanction in direction of those that refused to obey, France being now the one nation on this planet to not have reinstated its suspended well being staff.

Can the foundations be modified through the sport?

On the Montpellier Courtroom of Attraction, Me Soulier selected one other angle of assault for his QPC, pleading the infringement of contractual freedom. Certainly, when one indicators a contract, one freely accepts its circumstances, type and content material. Any modification of the phrases of the contract should due to this fact logically be completed with the settlement of the contracting celebration. Nevertheless, with the legislation of August 5, 2021, unvaccinated caregivers discovered themselves with contract guidelines that modified in midstream, with out their consent, and with necessary, to not say important, penalties for them, since failure to adjust to these new guidelines led to the quick suspension of their contract, accompanied by a suspension of wage.
In her QPC, the lawyer additionally raises the query of the infringement of authorized safety. Specifically, Ms. Soulier factors to the quite a few modifications of the legislation’s utility decree and the uncertainty relating to a state of well being emergency that has been postponed a number of occasions till July 31, 2022. Right here once more, it’s as if the foundations of the sport had been consistently altering, with no method of understanding when the brand new guidelines would finish.
Lastly, like her two colleagues talked about above, the lawyer of the Montpellier bar pleads the infringement of particular person freedom, bodily integrity, freedom of opinion and freedom of conscience.
Regardless of its relevance, will this QPC be part of the “salon des refusés” of the Conseil d’Etat and the Cour de cassation? Reply this Wednesday.