June 13, 2021

The health pass and the exit from the state of health emergency validated by the Constitutional Council

The Constitutional Council validated, Monday, May 31, the implementation of the health pass, a device at the heart of the bill on “Management of the way out of the health crisis”, adopted in Parliament on Thursday 27 May. The institution had been seized just after the final vote of the bill in the Senate by 70 left-wing deputies (Socialist Party, La France insoumise, the communist group Left, Democratic and Republican, Liberties and Territories). For these elected officials, a series of provisions related to the government’s deconfinement measures posed a problem.

Article reserved for our subscribers Read also Health pass: left-wing deputies seize the Constitutional Council after its adoption in the Senate

First, the health pass, which conditions access to “Large gatherings of people”, especially for “Leisure activities”, fairs and other trade shows, on presentation of proof of vaccination, a negative PCR test or a Covid-19 contamination certificate. These elected officials believed that the law should have mentioned a precise list of the events concerned.

They also considered the concept of” hobbies “ too vague, and regretted that the law did not mention the minimum threshold of people at the events concerned by the establishment of a health pass. The government evokes the threshold of “1,000 people” for these major events, the list of which will be specified by regulation, via the application decrees. « The notion of leisure activity, which excludes in particular political, trade union or religious activity, is neither imprecise nor ambiguous ”, confirmed the members of the Constitutional Council.

“Subject to interpretation”

In the streets of Glasgow, graffiti on the walls.

The entry into force of the health pass is therefore scheduled for June 9, before the European system, which should see the light of day 1is July 2021. During the parliamentary discussion in the National Assembly, the government tabled an amendment in committee to introduce the health pass, ignoring the opinion of the Council of State and the National Commission for Informatics and freedoms, and arousing the anger of part of the elected opposition.

The Constitutional Council does not question either the transitional period of exit from a state of health emergency, which must run from June 2 to September 30. Until June 30, the Prime Minister still has the possibility of decreeing a curfew in the event of “Active circulation of the virus”. An expression considered again vague by the 70 deputies, and for which the government has specified that it will be “Identified from indicators such as the incidence rate, the virus reproduction factor, the test positivity rate, which it was not up to the legislator to specify in detail”. However, such a scenario seems to be receding in view of the improvement in the epidemic situation and the acceleration of the vaccination campaign.

Read also Covid-19: the CNIL in favor of a temporary health pass, if additional guarantees are provided

Another point of contention for these elected officials: the collection and storage of health data as part of the fight against Covid-19, such as the TousAntiCovid digital device. During the parliamentary debates, some elected officials were concerned about seeing this anonymized data, kept for a maximum period of twenty years in the national health data system, while the law of May 11, 2020 provided for their retention only for three months.

The members of the Constitutional Council consider that this provision does not contravene respect for the right to privacy, “Subject to interpretation”. For them, it seems necessary that the authorities exclude “Telephone or electronic contact details of interested parties in the National Health Data System”. This is already in question for the names and surnames of individuals, for their registration number in the national identification directory of natural persons and for their address.