France, Council of State, 29 April 2022, Decision No. 450885
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
Several individuals and associations appealed regulation No. 6245, of February 22, 2021 before the Council of State since it did not provide for marriage as one of the compelling reasons for entering France from non-EU countries. The Council of State considered that the regulation violated the right to marry and the right to private and family life.
Facts of the case
Regulation No. 6245 of February 22, 2021 provided for several border measures within the framework of the state of emergency. Inter alia, it determined the groups of people who were allowed to enter France coming from non-EU countries, such as health professionals, holders of talent passports, researchers, etc. In addition to these categories, people were also granted a pass in case of compelling reasons. Thus, those citizens of third countries who might need to enter France to marry a French citizen and who did not hold any of the visas or passports described, could apply for a pass to enter France. Several individuals and associations appealed that provision before the Council of State.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court stated that it was the administrative authority who should balance the right to health and other freedoms such as, in this case, the right to marry which is a component of a more general personal freedom. Regulation No. 6245 of February 22, 2021 restricted entry to France of those coming from third countries who were not included in any of the categories provided for. At the moment of its adoption, there was mounting pressure on hospitals and new and very contagious Covid-19 variants. However, given that the regulation did not mention marriage as one of the possible compelling reasons that justified an exception to the prohibition of entry into France from third countries, the Court considered that it violated the right to marry and the right to a private and family life.
Conclusions of the deciding body
The Court determined that regulation No. 6245, of February 22, 2021 violated the right to marry and the right to a private and family life since it did not provide for marriage as a compelling reason for entering France from non-EU countries.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to marry
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. right to privacy (private and family life)
- Health v. private life
Balancing techniques and principles (proportionality, reasonableness, others)
The Court determined that not including marriage as an exception for entering France from third countries violated the right to marry and the right to private and family life. However, it did not apply any concrete balancing technique to come to that conclusion.
