Will lawyers succeed in bringing down the vaccination obligation for caregivers and, at the same time, their suspension without pay? To do so, several of them have filed priority questions of constitutionality, in order to have the conformity of the law of August 5, 2021 verified.
By Alix Jouan
It won’t be for lack of trying. For nearly a year, lawyers for suspended health care workers have filed a dozen priority questions of constitutionality (QPC) all over France. Their goal: to verify the constitutionality of the law of August 5, 2021, known as the “health crisis management” law, in particular its articles 12 and 14 relating to the vaccination obligation of caregivers.
For the moment, all these questions have been rejected by the Conseil d’Etat (in administrative matters) or by the Cour de cassation (in judicial matters), but the lawyers remain determined and hopeful. One of them will eventually succeed and be transmitted to the Constitutional Council. Their eyes are currently turned towards the Court of Appeal of Montpellier, where a QPC was pleaded on October 4 by Me Alexandra Soulier (see below). The deliberation is imminent: we will know this Wednesday, November 30 if the question is validated or not. Suspense…
Another QPC was filed with the Nancy administrative court of appeal in May 2022 (see also below), by Me Nancy Risacher of the Épinal bar and Me David Guyon, a lawyer from Montpellier specializing in the defense of fundamental freedoms. But for the moment, no news.
Laws that are not always constitutional
What is a priority question of constitutionality? This is a fairly recent legal mechanism (it dates from 2008) that allows the constitutionality of a law to be verified a posteriori by the Constitutional Council. One should not believe that all the laws enacted are in conformity with the Constitution. In reality, many of them have not been verified, because in order to be verified, the Constitutional Council must be seized within the 15 regulatory days that separate the adoption of a law by Parliament and its promulgation by the Head of State. This referral, which is optional, 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 by members of parliament, provided that there are at least 60 deputies or 60 senators. It is usually the deputies of the opposition who do it. But if no one reacts, the law comes into force without its constitutionality having been checked.
Moreover, even if the Constitutional Council is seized, it only answers questions that are put to it. If the question is badly formulated, the right answer will not be given. And if certain articles of the law are not referred to it, their constitutionality will not be verified. This mechanism, while it has the merit of existing, remains imperfect.
The right to challenge a law in force
Fortunately, since 2008, the priority question of constitutionality allows any citizen to challenge the constitutionality of a law a posteriori, i.e. after its entry into force. To do so, several conditions must be met: the QPC must be filed during a trial, it must concern a law that concerns the current proceedings, it must be serious, i.e. decisive for the plaintiff, and it must be new, i.e. not concern an aspect of the law that has already been reviewed. One quickly understands that everything will depend on the relevance of the question asked, its formulation and the strength of the accompanying argument. In short, a big job for a lawyer.
Concerning the law of August 5, 2021, the Constitutional Council was indeed seized before its promulgation, both by the Prime Minister, by more than 60 deputies and by 120 senators. However, the questions submitted to it never concerned the vaccination obligation of health care providers, which, in the event of refusal, would result in the suspension of their contract without remuneration. However, the constitutionality of this provision is more than doubtful according to the lawyers of the suspended caregivers. Hence the QPC filed.
Can one be suspended forever?
At the administrative court of appeal in Nancy, the question drafted by Me Risacher and Me Guyon concerns the absence of a time limit set by law for the suspension without pay of unvaccinated caregivers. “It’s a never-ending story, they can be suspended without pay forever, while still being under contract, and therefore unable to earn a living elsewhere and unable to benefit from any social assistance,” commented Me Risacher, one of whose clients was forced to live in her car. “How can we put people on the street and let them languish on the sidewalk indefinitely? This is contrary to the principle of fraternity enshrined in the Constitution,” the Spinalian lawyer rightly expressed indignation.
Moreover, a sanction that has no end becomes necessarily disproportionate, not to say cruel. “For me, the reasonable period of time is largely exceeded and it will be necessary to get out of this situation in one way or another. If the unvaccinated caregivers are considered unfit for work, their employers should take their responsibilities and propose a solution”, insists Me Guyon.
Moreover, time will eventually render this law obsolete, since it has now been demonstrated that the vaccine prevents neither contamination nor transmission. In this case, what difference is there in terms of health between a vaccinated caregiver and a non-vaccinated caregiver? None, but we know that all this has nothing to do with health and is only a political sanction towards those who refused to obey, France being now the only country in the world not to have reinstated its suspended health workers.
Can the rules be changed during the game?
At the Montpellier Court of Appeal, Me Soulier chose another angle of attack for his QPC, pleading the infringement of contractual freedom. Indeed, when one signs a contract, one freely accepts its conditions, form and content. Any modification of the terms of the contract must therefore logically be done with the agreement of the contracting party. However, with the law of August 5, 2021, unvaccinated caregivers found themselves with contract rules that changed in midstream, without their consent, and with important, not to say vital, consequences for them, since failure to comply with these new rules led to the immediate suspension of their contract, accompanied by a suspension of salary.
In her QPC, the lawyer also raises the question of the infringement of legal security. In particular, Ms. Soulier points to the numerous modifications of the law’s application decree and the uncertainty regarding a state of health emergency that has been postponed several times until July 31, 2022. Here again, it is as if the rules of the game were constantly changing, with no way of knowing when the new rules would end.
Finally, like her two colleagues mentioned above, the lawyer of the Montpellier bar pleads the infringement of individual freedom, physical integrity, freedom of opinion and freedom of conscience.
Despite its relevance, will this QPC join the “salon des refusés” of the Conseil d’Etat and the Cour de cassation? Answer this Wednesday.