On 30 July 2022, the French Constitutional Council dismissed the challenge brought by more than sixty Members of Parliament against certain provisions of Article 3 of the law putting an end to the exceptional regimes created to combat the COVID-19 pandemic.
This article allows the Prime Minister, in the interests of public health and for the sole purpose of combating the spread of COVID-19, to regulate travel to the ‘national territory’ from foreign countries or from one of the overseas departments and regions (mentioned in Article 72-3 of the Constitution) and travel to these collectivities. In particular, the provision allows the Prime Minister to require persons aged at least twelve years who wish to travel to ‘national territory’ from foreign countries or one of these collectivities affected by the appearance and circulation of a new COVID-19 variant likely to constitute a serious health threat, to present the result of a negative COVID-19 test.
The applicants had first argued that the use of the words ‘national territory’ was erroneous, as it excluded the overseas collectivities and referred only to the territory of France, resulting in a breach of the principle of clarity of the law and of the constitutional objective of accessibility and intelligibility of the law. Second, that the contested provision allowed the Prime Minister to regulate travel from the overseas collectivities to France in the event of the appearance of a new variant on their territory, without providing for the same possibility for travel to those collectivities in the event of the appearance of a new variant on French territory. In their view, this resulted in an unjustified difference in treatment depending on the place of origin of the trip.
However, the Constitutional Council rejected their claims. First, the terms ‘national territory’ referred to the territory of France, Corsica and the overseas collectivities and were thus neither imprecise nor ambiguous – the contested provisions therefore enabled the Prime Minister to regulate travel from one overseas collectivity to another or to another part of the national territory. Second, while the contested provisions do not provide for the possibility for the Prime Minister to impose the presentation of a negative test on persons wishing to travel to the overseas collectivities from metropolitan territory in the event of the appearance and circulation of a new dangerous COVID-19 variant, it can impose this measure on persons wishing to travel to one of the overseas collectivities in the event of a risk of saturation of the health system of one of these collectivities. However, the appearance and circulation in metropolitan France of a new dangerous variant is likely to constitute such a serious health risk. The contested provision thus does not infringe the principle of equality. Therefore, the Council rejected the applicants’ claims and confirmed the constitutionality of the contested measures.
Reference: decision n° 2022-840 DC / ECLI:FR:CC:2022:2022.840.DC.