November 30, 2021

Containment of the unvaccinated: would this measure be legal in France?

To impose a new containment, whatever it is, the government should restore the state of health emergency. (© Julien Sureau / News Nantes)

Should we expect an Austrian scenario in France? To cope with a sharp rise in Covid-19 contamination, Austria became Monday, November 15, 2021 the first nation in Europe to confine only people not vaccinated against the virus.

For the moment, a similar turn of the screw is not envisaged by the French government. “There is absolutely no containment planned for the moment, neither near nor far ”, again hammered on Tuesday the government spokesman Gabriel Attal, at the microphone of France Inter, adding however that “nothing should ever be excluded as a matter of principle”.

A different epidemic situation, but …

Moreover, even if the incidence rate is rising throughout France, confirming the epidemic resurgence at work since the beginning of November, the situation in our country is very different from that of Austria: 75% of the French population is fully vaccinated, compared to only 65% ​​in Austria.

Nevertheless, the prospect of a possible confinement of the unvaccinated – either six million people in France – generates fears among the population and stirs up political debates. She recalls the controversy raised in April 2020 by the possibility of confining older people longer than others, an option which the government had finally given up.

Most from a legal point of view, Is it possible to confine unvaccinated people only? The writing ofactu.fr asked the question to constitutional expert Jean-Philippe Derosier.

Several constitutional constraints

According to this professor of public law, if the executive wanted to take such a decision, it would come up against three major constraints. “First of all, to decide on confinement or any measure that prohibits the population from leaving their homes, light confinement or curfew, it would be necessary restore the state of health emergency“, Underlines Jean-Philippe Derosier.

The Constitutional Council was very clear on this point.

Jean-Philippe DerosierProfessor of public law, specialist in constitutional law

However, France has emerged from the state of health emergency since May 30, 2021 to enter a regime of exit from the health crisis. This kind of transitional regime allows in particular the implementation of certain restrictions in public places or the application of the health pass, provisions extended until July 31, 2022 by the law on various health vigilance provisions adopted on November 5. by Parliament.

“To impose a new confinement, the President of the Republic would therefore have to decree in the Council of Ministers the state of health emergency regime, and if it lasted more than a month, go through the vote of the Parliament”, explains the specialist in constitutional law.

Unjustified discrimination

But that would surely not be enough to decide to confine only unvaccinated people, according to the lawyer. Because so far, “the state of health emergency does not allow differentiation of populations than on a territorial basis ”.

We could declare confinement only in Paris or another department, for example. But the law does not provide for other forms of differentiation, based on vaccination status or age. So these are not justified.

Jean-Philippe DerosierProfessor of public law, specialist in constitutional law

Finally, such a measure would not meet general objectives expected from containment. “The purpose of confinement is not to protect us individually, but collectively, by limiting the circulation of the virus. However, scientific studies have shown that the vaccine protects against serious forms, but does not prevent being contaminated by the virus, the vaccinated and the non-vaccinated are therefore in the same boat when it comes to the circulation of the virus ” , advances Jean-Philippe Derosier.

Rather impose vaccination?

Imposing confinement only on the unvaccinated therefore seems questionable under the law, not to mention the problem of consistency that he would lift.

There would be a gap between saying that vaccination is not compulsory and saying “if you are not vaccinated, do not leave your home”. To be in this logic, it would at least be necessary to make vaccination compulsory.

Jean-Philippe Derosier

But a few months before the presidential election, this decision would be a risky choice for the current majority …

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