Lawyers Seek Repeal of August 5, 2021 Law

Will lawyers be successful in lowering caregiver vaccination requirements and simultaneously suspending them without pay? To do so, I submitted a priority question of constitutionality.

Alix Juan

It’s not a lack of effort. For about a year, the suspended health worker’s attorney has filed more than 10 priority questions on constitutionality (QPC) for her across France. Their goal is to verify the constitutionality of the law of 5 August 2021, known as the “Health Emergency Management” Act, in particular Articles 12 and 14 regarding mandatory vaccination of caregivers.
At present, all these questions have been dismissed by the State Council (administrative matters) or the Court of Cassation (judicial matters), but the lawyer remains determined and hopeful. sent to the meeting. Their eyes are now on the Court of Appeal in Montpellier, where on 4 October she was filed for her QPC by Me Alexandra Soulier (see below). Judgment is imminent. We’ll find out on Wednesday, November 30th if the question is valid. Suspense…
Another QPC was filed in May 2022 with the Nancy Court of Administrative Appeals (see also below). This was done by her Me Nancy Risacher of the Epinal Bar Association and Me David Guyon, a Montpellier lawyer who specializes in defending fundamental liberties. But for now, no news.

Laws that are not necessarily constitutional

What are the top priorities for constitutionality? This is a fairly recent legal mechanism (since 2008) that allows the constitutionality of laws to be verified ex post facto by the Constitutional Council. We should not believe that all laws enacted are constitutionally compliant. In practice, many of them are not verified. For to be verified, the Constitutional Council must be seized within his 15-day stipulation separating the adoption of the law by Parliament and its promulgation by the Head of State. This inquiry is voluntary and can only be made by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate or a Member of Parliament. 60 senators. It is usually opposition lawmakers who do that. But if no one responds, the law will be enforced without a constitutional check.
Moreover, even if the Constitutional Council is seized, it will only answer the questions posed there. A badly formulated question will not give you the right answer. And if a particular article of law does not refer to it, their constitutionality is not verified. This mechanism has the merit of being present, but remains imperfect.

Right to challenge the law in force

Fortunately, since 2008, the constitutionality overriding issue has enabled all citizens to challenge the constitutionality of a law after it has taken effect. In order to do so, several conditions must be fulfilled: A QPC must be submitted during the hearing, it must relate to the law relating to the current proceedings, it must be serious. It must be conclusive to the plaintiff and it must be new. Aspects of the law that have already been reviewed. It quickly turns out that everything depends on the relevance of the question, its formulation, and the strength of the accompanying arguments. In short, it’s a big job for a lawyer.
Regarding the August 5, 2021 law, the Constitutional Council was actually seized by both the prime minister, over 60 members of parliament, and 120 senators prior to its promulgation. However, the questions submitted were not about the health care provider’s vaccination obligations, and denials would result in termination of the contract without compensation. Sex is questionable. Therefore, QPC filed.

Can it be stopped permanently?

The issue drafted by Me Risacher and Me Guyon in the Administrative Court of Appeals in Nancy concerns the lack of a statutory time limit for unpaid suspension of unvaccinated caregivers. “This is a never-ending story. They could be permanently suspended without pay while they are still on contract. I can’t even get one,” commented Me Risacher, one of her clients forced to live in her car. “How can we keep people out on the streets and tortured on the sidewalks forever? This is against the principle of fraternity enshrined in the Constitution,” Spinaria’s lawyers understandably expressed indignation. .
Moreover, endless sanctions are inevitably disproportionate, if not cruel. “For me, it’s well beyond a reasonable period of time and I need to get out of this situation in some way. If an unvaccinated caregiver is deemed unfit for work, employers are to blame.” We have to take responsibility and propose a solution,” argues Me Guyon.
Moreover, over time this law will become obsolete, as vaccines have now been demonstrated not to prevent contamination or transmission. In this case, what are the health differences between vaccinated and unvaccinated caregivers? Nothing, but what does all this have to do with health? We know it is nothing more than political sanctions for those who refuse to comply. France is currently the only country in the world that has not reinstated suspended health workers.

Can I change the rules during the game?

At the Montpellier Court of Appeal, Me Soulier chose a different angle of attack against his QPC, claiming infringement of contractual freedom. In fact, when signing a contract, one freely accepts its terms, form and content. Therefore, any changes to the terms of the contract must logically be made with the consent of the parties to the contract. However, due to the August 5, 2021 law, unvaccinated caregivers were made aware of contract rules that were changed midway without their consent. Failure to comply with these new rules had important, if not serious, consequences for them. Immediate termination of contract with suspension of salary.
In her QPC, the attorney also raises the issue of breach of legal security. In particular, Ms Soulier points to the numerous amendments to the applicable legislation and the uncertainty regarding health emergencies, which have been postponed several times until 31 July 2022. There is no way of knowing when the new rules will end and they are constantly changing.
Finally, like the two colleagues above, lawyers from the Montpellier Bar Association defend violations of personal liberty, physical integrity, freedom of opinion, and freedom of conscience.
Although related, will this QPC join the “salon des refusés” of Conseil d’Etat and Cour de cassation? Answer this Wednesday.