1.Introduction

The past months have seen French public authorities, along with those from other European systems, adopting numerous measures to regulate or at least address the challenges of the health crisis. Among them is a multitude of measures imposing restrictions on freedom of movement and leading to confinement.Decree n° 2020-293 of 23 March 2020 prescribing general measures needed to deal with the Covid-19 epidemic in the framework of the state of health emergency (JORF n°0072 du 24 mars 2020). These measures have mainly been based on the French statute declaring a state of public health emergency and granting important powers to the administrative authorities.See Law n° 2020-290 of 23 March 2020 of emergency to respond to the Covid-19 epidemic (JORF n°0072 du 24 mars 2020). These measures remain, however, subject to judicial review, which is an essential safeguard against attacks on fundamental freedoms.The review of these measures falls mainly within the jurisdiction of the administrative judge, but not exclusively: for example, quarantine measures are under the review of the so-called ‘liberty and detention judge’ [‘juge de la détention et des libertés‘].

In those situations, interim protection before administrative courts is an essential tool for individuals. Indeed, in the French administrative system, a claim against an administrative decision does not have automatic suspensive effects, and interim relief allows the suspension of a challenged administrative decision within a short time period. In particular, the fundamental rights interim remedy may prove useful for applicants.Since the adoption of the Law of 30 June 2000, there have been several interim relief remedies in French administrative law: the remedy of interim suspension interim (Article L 521-1 of the Code of Administrative Justice), the fundamental rights interim remedy (référé-liberté) (Article L 521-2 of the Code of Administrative Justice), useful measure interim remedy (référé-mesures utiles) (Article L 521-3 of the Code of Administrative Justice). Compared to other available interim relief remedies, this remedy has the peculiarity that the applicant can apply for it without having first initiated an action for annulment (recours en excès de pouvoir) against the act which may affect his or her legal situation.For a presentation of the different interim remedies in French administrative law, see E Chevalier, ‘Remedies’ in C Backes, M Eliantonio (eds), Cases, Materials and Text on Judicial Review of Administrative Action (Hart Publishing 2019) 555-690. It aims to protect the individual in cases of severe and manifest breaches of fundamental rights by the administration. The administrative court must decide within a short period of time (48 hours) both on whether the condition of urgency is met and whether the act appears to be manifestly illegal.Article L521-1 of the Code of Administrative Justice.

This remedy is generally used to challenge measures adopted on the grounds of administrative police powers – usually measures issued to protect public order. Often, these police measures are of limited duration (such as banning a demonstration or traffic on certain days), and waiting for a ruling or an action for annulment to be issued would likely render the intervention of the administrative court irrelevant (even if the decision is ultimately annulled), as the ruling would no longer be of interest to the claimants. The use of the fundamental rights interim remedy, if successful, may be regarded as an adequate response to the protection of freedoms in such cases of extreme urgency, since it can lead to the non-enforcement of the contested decision and the interim ruling may at the same time signal the unlawfulness of the contested measure to the public authorities.

In the context of the health crisis, the use of interim proceedings has therefore appeared to be an effective way to challenge the measures adopted by the government (by mayors or prefects for decisions with a local scope). Several actions have been brought before the Council of State during this period, showing how the various essential components of life in France have been impacted by the management of the crisis, including demonstrations, religious cults, dance and football clubs, and book shops. In September 2020, the Vice-President of the Council of State Bruno Lasserre stated that the Council of StateJurisdiction to hear interim relief proceedings is divided between the administrative court of first instance and the Council of State. The latter intervenes either as a judge of appeal against the decisions rendered by the administrative court (tribunal administratif), or in the first and last resort (there is no appeal against the decisions of the Council of State in this type of procedure) when the action is lodged against an act adopted at the national level, particularly by ministers or other national authorities. See Article L511-2 of the Code of Administrative Justice. had been seized of more than 320 interim relief requests aimed to challenge measures related to the fight against Covid-19 (four times more than the number of similar proceedings received in the first instance last year over the same period).B Lasserre, ‘Le Conseil d’État face à la crise sanitaire du Covid-19’, 17 September 2020

<https://www.conseil-etat.fr/actualites/discours-et-interventions/le-conseil-d-etat-face-a-la-crise-sanitaire-du-covid-19-par-bruno-lasserre-vice-president-du-conseil-d-etat>

accessed 28 July 2021.

Beyond its quantitative dimension, the case law of the Council of State shows the role of the administrative courts in the current times vis-à-vis the safeguarding of fundamental freedoms, and it confirms the French courts’ position vis-à-vis the executive power. The development of interim relief was considered a ‘revolution’P Wachsmann, ‘Une révolution dans les rapports entre le juge et l’administration ?’ in P Wachsmann (ed), Le nouveau juge administratif des référés. Réflexions sur la réforme opérée par la loi du 30 juin 2000 (PUS 2002) 95-109. for the French system which contributed to the improved protection of rights and freedoms. Since the creation of this system of interim relief, courts have intervened regularly, especially in cases with a political dimension.See CE Ord. 24 April 2019, Lambert, n° 428117; CE, Ord., 9 January 2014, M’Bala, n°374508. Of particular interest in the case law on interim relief proceedings is that, in a significant number of claims, the applicants have requested an injunction against the competent administrative authorities. Thus, the claims lodged did not seek the suspension of an administrative decision but rather the adoption of one, highlighting possible shortcomings and failures on the part of the public authorities in the management of the health crisis. In such cases, the administrative courts find themselves in the potentially delicate situation of being requested to indicate to the executive power the measures it should take. The analysis of this issue is of particular importance in the French context, as the Council of State is regularly criticised because of its links with the government, in particular because of the combination of advisory and litigation functions, and its alleged lack of independence.J Massot, ‘The powers and duties of the French Administrative Judge’ in S Rose-Ackerman & P Lindseth (eds), Comparative Administrative Law (Elgar 2010) 415.

This paper will examine the decisions of the Council of State adopted since 16 March 2020, following fundamental rights interim remedies whose purpose was to request an injunction. Interim remedies aimed only at requesting the suspension of an administrative decision fall outside the scope of this paper. All of these decisions have been analysed, even if they are not all expressly quoted in the paper.All of the decisions handed down by the judge in interim relief proceedings since March 2020 can be found on a dedicated page on the Council of State's website: https://www.conseil-etat.fr/actualites/actualites/dernieres-decisions-referes-en-lien-avec-l-epidemie-de-covid-19#:~:text=La%20d%C3%A9cision%20du%20Conseil%20d,strictement%20proportionn%C3%A9e%20au%20risque%20sanitaire accessed 28 July 2021. The decisions handed down in interim relief proceedings are generally fairly brief.The decisions of the interim relief judge take the form of an order. However, those adopted in the context of the health crisis are more developed and make it possible to analyse the court's reasoning, thus focusing, as explained below, on the extent of the obligations imposed by the court on executive power. In this respect, decisions rejecting or granting injunctions are both of interest for the analysis.

The argument developed in this paper is that the use of the power of injunction in the context of the fundamental rights interim remedy is not limited to a purely technical dimension. It takes place in a political context and reflects the capacity of the administrative courts, and especially of the Council of State, to play the role of a counter-power vis-à-vis the executive power. The Council of State finds itself in a difficult position. On the one hand, citizens have high expectations regarding the court’s ability to safeguard fundamental freedoms. On the other hand, in the case of interim injunctions, the court's mission is not only to review and to limit administrative action but also, to a certain extent, to order the administration to adopt a certain behaviour and to act in a certain way. Hence, the court is able to directly influence administrative authorities and may even be considered to be interfering with the use of administrative discretion. However, the analysis of the selected rulings reveals that, in the context of the health emergency, the Council of State seems to accompany the government more than it sets limits on its action, even though fundamental rights interim relief can create opportunities for the courts to be more demanding towards the government in managing the crisis. The Council of State does not appear, however, to be particularly forthcoming, most frequently rejecting requests for injunctions. This paper will first analyse how the fundamental rights interim remedy can be a means of remedying administrative inaction (2) and, moreover, will draw lessons on the role of the French administrative courts in the context of the health crisis, on the basis of the analysis of the cases where the requests for interim injunctions have been rejected (3).

2.The fundamental rights interim remedy as solution to administrative failure to act

According to Article L521-2 of the Code of Administrative Justice, ‘When dealing with an application of this type that is justified by the urgent nature of the case, the interim relief judge may order all measures required to safeguard a fundamental freedom…’. Due to the powers granted to the administrative courts, the fundamental rights interim remedy is an adequate tool to challenge administrative inaction (2.1). In case the inaction is considered illegal, the applicant may request the judge to issue an interim injunction directed to the public authority (2.2).

2.1.Administrative inaction as a form of manifest illegality

Generally speaking, it should be pointed out that in the French administrative litigation system there is no action for failure to act comparable to the action for failure to act known in European lawArticle 265 TFEU. or in German law (Verpflichtungsklage).Chevalier (n5). Challenging a possible failure of the administration to act implies using an action for annulment (recours en excès de pouvoir) to challenge the administrative silence following the filing of a request for action, generally after two months.E Chevalier, ‘Silence in the French Administrative System: A Failed Revolution?’ in D Dragos, P Kovac & H Tolsma (eds), The Sound of Silence in European Administrative Law (Palgrave McMillan 2020) 107-145. In addition, under French administrative law, the illegality of administrative inaction is mainly invoked in the context of an action for damages, as inaction is considered a fault in cases in which the administration did not act when it was obliged to do so (compétences liées). When unlawful, administrative inaction is a ground for engaging State liability.KM Scherr, ‘Public Liability for Administrative Acts under French Law’ (2008) 14 European Public Law 213.

Inaction of administrative authorities can also be challenged through the fundamental rights interim remedy. The case law shows that administrative inaction can amount to ‘manifest illegality’, which is one of the necessary conditions to be met to obtain a fundamental rights interim remedy. Four conditions must be fulfilled for this particular remedy. First, the case should concern a breach of a fundamental right. The administrative court is competent to define the material scope of Article L521-2 of the Code of Administrative Justice, and to determine what qualifies as a fundamental right under Article L521-2.L Favoreu, ‘La notion de liberté fondamentale devant le juge administratif des référés’ (2001) Dalloz 1739-1744. The second condition refers to prima facie illegality. The illegality of the decision concerned must be “manifest”, which is justified by the fact that in an interim relief procedure the court should not rule on the merits of the case.J Schmitz, ‘Le juge du référé-liberté à la croisée des contentieux de l’urgence et du fond’ (2014) Revue Française de Droit Administratif 502-511. Third, the breach must be severe. The applicant must not only establish that a fundamental freedom is affected but also that the violation is serious. The court must assess the concrete effects of the measure and balance the individual interest with other interests such as health protection or public order. Finally, the fourth condition relates to the urgency of the case.CE, 6 June 2006, Koubi, n° 293935. See P Caille, ‘Contentieux administratif – Deuxième Partie – Titre II – Chapitre I, Chapitre I- Les référés urgence’ (2017) n°28668 Revue générale du droit (online). In the context of the cases examined in this contribution, it is worth noting that fulfilment of this condition was presumed because of the declaration of 23 March 2020 of a state of health emergency. In the context of a state of emergency, as shown by the analysed cases, the courts do not assess the characteristics of such an emergency, since its existence stems from a legislative statement.See Law n° 2020-290 of 23 March 2020 of emergency to respondto the Covid-19 epidemic (JORF n°0072 du 24 mars 2020); O Le Bot, ‘Référé-liberté et état d'urgence’ (2016) 48 Les Petites Affiches 8-15.

In the context of interim relief proceedings, both the action and inaction of the administration could constitute a serious and manifestly illegal infringement of a fundamental freedom.O Le Bot, ‘Référé-liberté aux Baumettes : remède à l’inertie administrative et consécration d’une nouvelle liberté fondamentale’ JCP G, n° 4, 21/01/2013, n°87. Only certain types of inaction, however, can lead to such an infringement.

The administrative inaction is to be considered significant when the absence of administrative action has important consequences on the enjoyment of fundamental freedoms. Inaction of the administration is considered illegal when the administrative authority is under an obligation to act or to adopt an act.B Schwartz, French Administrative Law and the Common-law World (Lawbook Exchange 2011). Hence, an infringement of fundamental freedoms does not per se lead to the characterisation of an inaction as unlawful. This will only be the case when freedoms whose effectiveness requires public authorities to take action are at stake. This excludes the so-called ‘first generation’ rights (for example, freedom of speech), since they do not need to be enforced by a decision or action, and their effectiveness is guaranteed as long as public authorities do not act. On the contrary, the ‘second generation’ rights (droits-créances)C Tomuschat, Human Rights: Between Idealism and Realism (OUP 2014). require the public authority to act in order to enforce them. It is only when administrative inaction constitutes an infringement of those rights that this inaction may be considered as illegal. Furthermore, the scope of illegal administrative action in fundamental rights remedy is even stricter since, within the meaning of Article L521-2 of the Code of Administrative Justice, only certain rights or freedoms guaranteed by the Constitution qualify as fundamental freedoms, and therefore may be used as a basis for triggering interim measures. The Council of State refuses, for example, to consider the right to health as a fundamental freedom within the meaning of Article L521-2 of the Code of Administrative Justice.CE Ord. 8 September 2005, Garde des Sceaux c. Bunel, n° 284803. This limits the possibility of characterising the administrative inaction as illegal in the context of the health crisis.

In applications for fundamental rights interim relief lodged during the period of the health crisis, the grounds invoked have been various. The main one has involved the right to life. In compliance with ECtHR case law,See for example, Siliadin v France, app n° 73316/01 (ECtHR, 26 June 2005); AR Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing 2004). the Council of State has developed positive obligations grounded on this right, particularly in interim proceedings.CE, 16 November 2011, Ville de Paris, n° 353172: ‘where the action or inaction of a public authority creates a serious and imminent danger to the life of individuals and thereby constitutes a serious and manifestly unlawful interference with this fundamental freedom (…)’. As a corollary to the right to life, ‘the right not to be subjected to inhuman or degrading treatment’ has also been used. What is interesting to note is that, when looking at its formulation, the latter is a right that implies mere abstention on the part of the State. However, it has been invoked in the prison context regarding the issue of providing masks to detainees. On the basis of this right, an unlawful inaction can be characterised as when ‘the failure of the public authority creates a clear and imminent danger to the life of persons, exposes them to be subjected to inhuman or degrading treatment or leads to their being deprived, in a clear manner, of treatment and care appropriate to their state of health’.CE Ord., 7 May 2020, Association ‘Avocats pour la défense des droits des étrangers et autres’, n° 440255. It is therefore by invoking the right to life that the right to health is also indirectly protected. Moreover, in the context of a claim lodged by representatives of the health sector, who considered in particular that the provision of protective equipment had been insufficient, the Council of State considered that inaction of the competent authorities did not only infringe the right to life, but also ‘ the right of every person to receive, subject to his or her free and informed consent, treatment and care appropriate to his or her state of health, as assessed by a medical doctor, (…) when it is likely to lead to a serious deterioration in the state of health of the person concerned’.CE Ord. 22 May 2020, Syndicat Jeunes Médecins, n°440321 ; CE Ord., 15 April 2020, Union nationale des syndicats force ouvrière santé privé, n° 440002 ; CE Ord., 22 March 2020, Syndicat Jeunes Médecins, n° 439674. The right to health is therefore indirectly protected through the right to life, even if the court does not refer to it explicitly.

In other judgments, the administrative courts have also developed positive obligations related to classic freedoms, the effectiveness of which largely depends on the state's inaction. This is the case, for example, for the right to privacy. In a period of time when the question of data protection is particularly sensitive, the Council of State has considered that ‘the right to privacy, which includes the right to protection of personal data, constitutes a fundamental freedom within the meaning of the provisions of Article L. 521-2 of the Code of Administrative Justice’, referring also to the EU General Data Protection RegulationRegulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1–88). and the Charter of Fundamental Rights.CE Ord., 19 June 2020, Association le Conseil National du logiciel libre, n° 440916. Finally, the right to asylum has not only been recognised as a fundamental freedom within the meaning of Article L521-1 of the Code of Administrative Justice, but also as a source of positive obligations relating in particular to the registration and examination of applications.CE Ord. 30 April 2020, Office français de l’immigration et de l’intégration, n° 440250, 440253. Similarly, the administrative judge has developed obligations imposed on public authorities to ensure the effectiveness of more traditional freedoms, such as freedom of movement and the right of everyone to respect for his or her personal freedom. For example, the Council of State stated that the lack of precision in the formulation of the rules applicable to the exercise of freedom of movement constitutes a deficiency affecting its effectiveness. ibid.

In the case law examined, therefore, the concept of fundamental freedoms is quite flexible and makes access to the administrative courts in the context of the health crisis easier, even though the courts did not consider the right to health as a fundamental freedom, while the general context may have supported such an evolution. Thus, from the point of view of fundamental freedoms falling within the scope of Article L 521-1 of the Code of Administrative Justice, the rulings remain along the lines previously drawn in the practice of the interim relief judge. Indeed, freedoms falling within the article’s scope are not extended; rather, the courts develop positive obligations arising from them, in order to better protect the right to health. From this perspective, the possibility of the judge issuing an interim injunction is a particularly adequate remedy for the administrative inaction.

2.2.Injunction power as a means of remedying administrative failure to act

Requests to use the power of injunction have been various during the health crisis. These injunction requests are a response to the supposed failure of the public authorities in managing the crisis. The administrative courts have ultimately made only limited use of this power.

The power of injunction is not a peculiarity of the interim relief proceeding. The adoption of the Law of 8 February 1995Law n° 95-125 of 8 February 1995 on the organisation of courts and civil, criminal and administrative proceedings (Loi relative à l’organisation des juridictions et à la procédure civile, pénale et administrative, JORF n° 34 du 9 février 1995 p. 2175). See also JM Sauvé, ‘L’injonction – la loi du 8 février 1995 après vingt ans de pratique’ https://www.conseil-etat.fr/actualites/discours-et-interventions/l-injonction-la-loi-du-8-fevrier-1995-apres-vingt-ans-de-pratique accessed 30 July 2021. provided the administrative courts with powers to grant injunctive relief,See Article L911-1 to Article L911-3 of the Code of Administrative Justice. in order to ensure effective judicial protection. In France, there has traditionally been a reluctance to provide the courts with injunctive powers, as this was seen as an encroachment upon the powers of the administration. According to the former position established by case law, the administrative courts could not depart from the fundamental principle according to which ‘it is not for the administrative court to address injunctions to the administration’.This formula is frequently used by the administrative judge himself, see Conseil d’Etat, 22 November 1968, Miss Y, n° 67843. Such powers of injunction may exceed the limits of the scope of the judicial function, which is the determination of a dispute. The absence of explicit powers of injunction, however, has been criticized by academic doctrine.J Rivero, ‘Le Huron au Palais-Royal ou réflexions naïves sur le recours pour excès de pouvoir’ (1962) Dalloz, 37-40; F Moderne, ‘Etrangère au pouvoir du juge, l’injonction, pourquoi le serait-elle ?’ (1990) Revue Française de Droit Administratif 798-821. The development of such powers has progressively appeared necessary, both with a view to modernising the judicial function, and also because judicial review (recours en excès de pouvoir) is a ‘defensive’ claim: that is, if successful for the applicant, it results in a legal void, since the act is annulled. However, the interest of the claimant does not necessarily lie in the absence of an act, but rather in a decision being taken.

In cases of fundamental rights interim relief, the administrative judge may adopt ‘any necessary measure to protect’Article L521-1 of the Code of Administrative Justice. the freedom concerned, in order to stop a violation with immediate effect. In addition to suspension of the decision, these measures may include interim injunctions. In the context of interim relief proceedings, the administrative judge assesses not only the legality of the decision but also, potentially, its appropriateness for remedying the situation. Therefore, unlike when exercising the power of injunction in the context of a main claim, administrative courts tend to be more precise in the measures to be adopted.

In the context of the health crisis, the vast majority of the injunctions requested were injunctions to act in order to respond to the administrative inaction. The purpose of injunctions has mainly concerned rewording of normative acts considered too vague,CE Ord. 22 March 2020, Syndicat Jeunes Médecins, n° 439674. clarifying government communicationsCE Ord. 30 April 2020, Fédération française des usagers de la bicyclette, n° 440179. or the implementation of asylum procedures in adequate sanitary conditions.CE Ord. 30 April 2020, Office français de l’immigration et de l’intégration, n° 440250, 440253. When granted, the injunctions, however, have remained relatively vague, and therefore ultimately represent a limited constraint on the margin of appreciation of government authorities. Only in one case did the Council of State issue a precise injunction to act, namely, to remove thermal cameras. However, this was phrased rather as an injunction not to act, addressed to the administrative authority, by avoiding any future installation of such equipment.CE, Ord., 26 June 2020, Ligue des droits de l’homme, n° 441065 ; see also on the UAV surveillance, CE Ord. 18 May 2020, Association la Quadrature du net, n° 440442, 440445.

More often, injunctions have not been granted. The case law confirms that the Council of State is careful about interfering with the discretionary power of public authorities. This can be explained by the fact that French courts have traditionally refrained from assessing scientific considerations, especially in a context where the level of expertise remains limited.O Leclerc, ‘Scientific Expertise and Judicial Decision Making: Comparative Insights’ in J Ferrer Beltrán and S Pozzolo, Law, Politics, and Morality: European Perspectives III. Ethics and Social Justice (Duncker und Humblot 2007) 15-26. This outcome may also be explained by the difficult position of the Council of State towards the government. The contribution now turns to this aspect.

3.The ambivalent role of the Council of State in the management of the health crisis

In the selected case law sample, the Council of State has often considered that the conditions for issuing injunctions have not been met. From a legal point of view, the court has based its findings on the fact that the failure to act was insufficiently severe. The supreme administrative court could be regarded as reluctant to play a proper role in the management of the health crisis. More precisely, it seems to be quite lenient towards the government policy, calling into question its capacity to act as a legal safeguard for fundamental freedoms in this context.

3.1.The administrative courts in line with government policy

The increase in applications for interim relief proceedings reflects the mistrust of some citizens towards government policy in the management of the crisis, a mistrust that manifested itself in the introduction of an action for damages before the Court of Justice of the Republic to call into question the responsibility of ministers.O Beaud, D Rebut & C Broyelle, ‘La responsabilité des ministres et de l’État dans la gestion de la crise du Coronavirus’ https://www.leclubdesjuristes.com/blog-du-coronavirus/que-dit-le-droit/responsabilite-ministres-etat-gestion-crise-coronavirus/ accessed 30 July 2021. The administrative courts, however, showed relative leniency towards the administrative authorities, and ultimately the government.

This leniency was first shown by a strict assessment of administrative inaction. The Council of State argued that ‘the manifestly illegal nature of the infringement must be assessed in particular by taking into account the means available to the competent administrative authority and the measures it has already taken’.CE Ord. 26 June 2020, Ligue des droits de l’homme, n° 441065. This is a rather restrictive interpretation, and one which seems to favour the administration. In this respect, it may also be noted that, rather unusually, the judgments delivered during this period are quite long and detailed, which is not necessarily the norm in emergency proceedings, especially as the judgments are delivered in summary form, i.e., in the form of orders (ordonnance). In contrast, the administrative courts have tried to carefully detail the measures already taken by the government to manage the crisis. By proceeding in this way, the administrative courts may note that ‘the administration is continuing its efforts’.CE Ord. 2 April 2020, Fédération nationale du droit au logement, n° 439763. Similarly, in the face of scientific uncertainty, government obligations are more limited, and therefore a manifestly serious infringement of a freedom is more difficult to identify.CE Ord. 4 April 2020, Centre hospitalier universitaire de la Guadeloupe, n° 439904, 439905: ‘On the other hand, if the administrative authority is entitled, when uncertainties remain as to the existence or scope of risks to the health of persons, to take protective measures without having to wait for the reality and seriousness of these risks to be fully demonstrated, the existence of such uncertainties is, in principle, an obstacle to the recognition of a serious and manifestly unlawful infringement of a fundamental freedom, justifying the interim relief judge making use of the powers granted to him by Article L. 521-2 of the Code of Administrative Justice’. In addition, even if the Council of State found shortcomings in the government action, it noted that the actions already undertaken were nevertheless sufficient, particularly given the current state of scientific knowledge. For example, the courts have had to assess the conditions for delivering Covid tests. Even though the courts stressed the inadequacy of the delivered tests, it did not require the public authorities to provide more of them.CE Ord. 4 April 2020, Centre hospitalier universitaire de la Guadeloupe, n° 439904, 439905.

The treatment of claims relating to masks is also interesting in this respect. The case law shows that the administrative courts remain in line with the government's position, modifying their reasoning as the government's position evolved. In France, the treatment of the issue of mask usage has been erratic. After having initially repeated, especially in the media, that the mask was useless in terms of protection against Covid-19, the government gradually came to consider the masks to be useful – based, at the time, on an alleged change in the level of scientific knowledge.A Mazoue, ‘D'inutile à obligatoire, comment le gouvernement a changé de discours sur le masque’, France 24, 07 August 2020 https://www.france24.com/fr/20200807-covid-19-variation-du-discours-politique-sur-le-port-du-masque-en-france accessed 30 July 2021; A Bethelier, ‘Agnès Buzyn reconnaît le manque de masques mais se défausse’ (Huffington Post 30 June 2020) https://www.huffingtonpost.fr/entry/buzyn-reconnait-le-manque-de-masque-et-rejette-toute-responsabilite_fr_5efb7585c5b6ca970915c2e3 accessed 30 July 2021. France did not have a sufficient stock of masks to impose this obligation, a fact which affected at least as much, if not more, the government position.

In a judgment of 28 March 2020, the Council of State rejected an application brought by nurses requesting that the Government be ordered to take steps to ensure the supply and distribution of sufficient protective equipment for health professionals, the judge having considered that orders for several hundred million masks had been placed and were about to arrive.CE Ord. 28 March 2020, Madame A.A. et autres, n° 439693. Similarly, in a decision of 20 April 2020, the judge noted that ‘in view of the various measures already taken by the Government, the resources available to the administration and the powers of the judge in charge of interim relief proceedings, who can only order measures that can be taken at very short notice, the judge in charge of interim relief proceedings at the Council of State considered that the lack of distribution of protective material to lawyers did not reveal a failure by the State to take action that seriously and manifestly infringed the fundamental freedoms invoked’.CE Ord. 20 April 2020, Ordre des avocats du barreau de Paris, n° 439983, 440008.

With the start of the deconfinement process, the obligations regarding the provision of masks become more significant, for example for detainees in prisons,CE Ord. 7 May 2020, Ordre des avocats du barreau de Martinique, n° 440151. in parallel with the growing stock of masks in the hands of the French authorities.See also CE Ord. 22 May 2020, Syndicat Jeunes Médecins, n° 440321: the Council of State noted that ‘It results from the instruction that, at the start of the covid-19 epidemic, there was only a State stock of 117 million anti-projection or surgical masks left and no strategic State stock of FFP2 type respiratory protection masks. Steps were then taken to strengthen domestic production, and massive orders for masks were placed abroad for imports from the main supplier countries, including China, in an extremely tight international market.’ In a decision of 8 June 2020, the Council of State considered that the State's provision of masks to public hospitals was sufficient, despite the complaints of medical staff, considering in particular that, in view of the recommendations, there was no data at international level establishing the possibility that the virus’ presence in the air in very small quantities could cause an infection outside medical acts generating aerosols.CE Ord. 8 June 2020, Syndicat médecins, ingénieurs, cadres et techniciens CGT du centre hospitalier universitaire de Lille, n° 440701.

The administrative court adopted a realistic and pragmatic position. In view of the difficulties in supplying masks it might appear unnecessary to petition the government for more masks: imposing an obligation of means remains more relevant than an obligation of results. In addition, the purpose of an action for interim relief is not to sanction the shortcomings of past management, which could be better assessed in the context of an action for damages.A Jacquemet-Gauché, ‘Pénurie de masques : une responsabilité pour faute de l’Etat’ JCP G n°13, 617-619.

3.2.A watchdog role for the administrative judge?

Exercising their role of accompanying government action, even indulging it, should not obscure the role of vigilance that the administrative courts can play in this uncertain context. They must endeavour to define the scope of the applicable measures and contribute to the evolution of the legal standards applicable in the health emergency period. To this end, two rulings may be mentioned in more detail.

First, interim relief is an opportunity for the courts to promote fruitful exchange between the applicant and the government towards the adoption of specific measures. In particular, mention may be made here of the order of 8 April 2020, in which an action was launched by the prison workers union requesting the Conseil d'Etat ‘to enjoin the Government to provide prison staff with masks, gloves and hydro-alcoholic gel, and to take certain restrictive measures on the organisation of detention until the end of the state of health emergency’. In this order, the Council of State mentions, in particular, the exchanges that took place in its courtroom, during which the Minister of Justice was able to commit to adopting and implementing the measures requested by the union. Therefore, the administrative court noted that there was no failure to be found.CE Ord. 8 April 2020, Section française de l’observatoire international des prisons, n° 439827. This is rather peculiar, because the procedure before the administrative court is essentially written, the oral phase being considered secondary. It is true that interim relief proceedings differ significantly, in that the briefs submitted by the parties are often more summary, which adds more importance to the oral phase of the proceedings. Such undertakings by public authorities are nevertheless rarely mentioned.

Another ruling handed down in this period caught the attention of academic commentators because it reflected the risk of action by the administrative judge, which could be counterproductive to the effective guaranteeing of rights and freedoms. This was the first ruling of the Council of State of that period requesting the delivery of an injunction. It may seem surprising that a study of it only comes at the end of this contribution, but it both illustrates the potential consequences of significant interventionism by the administrative courts, and simultaneously reinforces the limits of their action.

In this case, the Council of State had been referred to by the Young Doctors' Union, which asked the court to order total confinement. Such confinement was even more radical than that set up by the decree of 23 March 2020. While the administrative court considered that ‘it does not appear that the Prime Minister had shown a serious and manifestly illegal failure to act by not deciding on the total confinement of the population throughout the territory’, it nevertheless noted that the Prime Minister, within 48 hours, must: ‘specify the scope of the exemption from confinement on health grounds; review the maintenance of the exemption for short journeys close to home; assess the risks to public health of maintaining open markets in operation, given their size and level of attendance.’CE Ord. 22 March 2020, Syndicat Jeunes Médecins, n° 439674.

The Council of State was criticised following this ruling, as its decision appeared to limit the exercise of rights and freedoms.X Dupré de Boulois, ‘On nous change notre… référé-liberté’ (2020) chron n°12 Revue des droits et libertés fondamentaux http://www.revuedlf.com/droit-administratif/on-nous-change-notre-refere-liberte-obs-sous-ce-ord-22-mars-2020-n439674/ accessed 30 July 2021. It is easy to believe that containment measures are highly detrimental to various individual freedoms including freedom of movement, but those measures should be balanced with the need to protect public health. What must be stressed here is that the court's reasoning was not centred on the right to health, which should be reconciled with individual freedoms, but on the protection of public health, as a component of public order, and which could justify greater limitation of freedoms. In this case, the Council of State enjoined the government to re-examine and reassess the derogations to the obligation of confinement at home, defined by the decree of 16 March 2020. It therefore did not review the potential infringements on individual liberties. On the contrary, the court checked ‘whether the scope of these derogations had not been defined in too permissive a manner such that it would still be too easy to escape the obligation of confinement’.

The administrative court thus becomes a sort of auxiliary to the administrative authority when regulating public order, whose efficiency it attempts to improve.ibid. It is true that the administrative court has not imposed a particular content on the measures to be adopted but rather implicitly imposed an obligation of diligence on the administrative authority, which must refine and specify the conditions of implementation. However, the government did quickly draw out all the consequences of this order. Decree no. 2020-293 of 23 March 2020 redefined ‘the terms of the various derogations to the obligation of confinement in the more restrictive sense prescribed by the judge in charge of summary proceedings of the Council of State’. This effect, arising from the implementation of an interim relief ruling, appeared incongruous, even counter-productive, showing that the administrative courts can sometimes guide the government towards a more restrictive path.

4.Conclusion

These months of health crisisS Platon, ‘From one State of Emergency to Another – Emergency Powers in France’ (9 April 2020) Verfassungsblog. have given the French administrative courts the opportunity to develop their role while enforcing fundamental rights interim remedies. This unprecedented period has shown the adequacy of the emergency powers granted to the French administrative courts, as well as their completeness, and the advantage of granting the judiciary discretionary powers in the choice of measures to be adopted in such a context.

However, at the same time, the case law examined shows the limits of the role of the Council of State. Clearly, assessing governmental action did not halt the criticism of the Council of State being too devoted to the executive power.See for example P Cassia, ‘Etat d’urgence sanitaire : Le Conseil d’Etat (ne) change (que) sa méthode’ (02 May 2020) Mediapart https://blogs.mediapart.fr/paul-cassia/blog/010520/etat-d-urgence-sanitaire-le-conseil-d-etat-ne-change-que-sa-methode accessed 30 July 2021. For criticism beyond the French Academia: Y Marique, “A ‘New Normal’: Legality in Times of Necessity: French Administrative Law under the Health Emergency’ in C Ferstman, A Fagan, Covid-19, Law and Human Rights : Essex Dialogues (The Human Rights, Big Data & Technology Project 2020) 63-71 https://www.hrbdt.ac.uk/covid-19-law-and-human-rights-essex-dialogues/ accessed 30 July 2021. This goes to show the limits of the role of the administrative courts in safeguarding fundamental rights, especially those whose effectiveness implies the enforcement of positive obligations. It reiterates that the main obligation of the administrative courts remains ensuring compliance with the legality principle. This most often implies balancing fundamental freedoms with the public interest, and not the primacy of fundamental freedoms alone. However, compliance with the rule of law also depends on the enforcement of positive obligations. It is unfortunate that the Council of State does not intend to become more involved in such societal challenges. Doing so would not depart from its legal missionJ-D Combrexelle, ‘Les juges administratifs du Conseil d’Etat se situent loin des polémiques’ (12 April 2020) Le Monde. but would add potential to the review of administrative discretion.