After the decisions of the administrative courts of Strasbourg and Lyon, the Council of State exceptionally rendered its decision this Sunday, September 6. In these two ordinances, the highest court in matters of administrative justice validates the choice of the Prefects to create large areas where wearing a mask is compulsory, but under certain conditions.
- The Council of State validates the obligation to wear a mask outdoors in large areas if it includes “several areas at risk of contamination”.
- However, the Prefecture must justify this decision and justify the risks in order to delimit the area.
- Participants in sports activities are excluded from this obligation
Clarity in the name of the general interest takes precedence over the real density of the population. This is the meaning of the decision rendered by the Council of State on Sunday September 6 after being urgently seized by the Minister of Health, Olivier Véran a few days after the decisions of the Administrative Courts of Strasbourg and the Rhône. In two ordinances, the judge in chambers of the Council of State ensures that the obligation to wear the mask outdoors is legal given the current health situation. “En the current state of knowledge, systematically wearing a mask outdoors is justified in the presence of a high density of people or when respect for physical distance cannot be guaranteed“, writes the judge.
For reasons of “simplicity” and of “readability“, and therefore of application of the obligation to wear a mask outdoors, the Council of State ensures that it is”justified that the wearing of a mask be imposed within sufficiently wide perimeters to coherently encompass the areas at risk, so that people who go there easily know the applicable rule and are not encouraged to remove and then put their mask back on several times times during the same outing.“Similarly, the judge considers that the absence of a mask-wearing schedule is not the result of a”manifestly unlawful interference with a fundamental freedom“since it ensures that it is possible to circulate without a mask at night”very limited interest“.
Circulation of the virus, density, but no obligation for physical activities
However, the Council of State does not give carte blanche to the Prefectures. For this high court, the delimitation of zones and timetables must take into account “take into account the constraint that this represents for the inhabitants“. Therefore, the areas where wearing a mask is compulsory must be delimited and justified “by the existence of several areas at high risk of contamination.“
The Council of State obliges the Prefecture of Bas-Rhin to limit the obligation to wear a mask, in the municipalities concerned, “to perimeters making it possible to coherently encompass places characterized by a high density of people or difficulty in ensuring respect for physical distance.“Similarly, the Council of State validates the obligation to wear a mask for the entire territory of Lyon and Villeurbanne but it enjoins the Rhône Prefecture to exclude this obligation”people practicing physical activities or sports“.
These decisions suspend most of the requisitions made in the two orders issued earlier in the week by the administrative judges of Strasbourg and Lyon, which are more favorable to the applicants. The two prefectures have until noon tomorrow to modify their decrees in accordance with the decisions of the court.
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