Face masks in Strasbourg

10 August 2020 by Rosalind English

 Tribunal Administrative de Strasbourg, N°2003058 M. A. et autres 

M. Simon, Juge des référés 

Ordonnance du 25 mai 2020 

This judgment was handed down over two months ago but its relevance to the current rules on face masks in the UK makes for interesting reading. It is available only in French.

A group of individuals brought a challenge to a decree issued by the mayor of Strasbourg obliging citizens over the age of eleven to wear facemarks in the streets and other areas, in particular the Grande-Ile (an island in the centre of Strasbourg), from 10am – 8pm, enforceable by a fine. The obligation was in force from May 21 to 2 June.

The claimants argued that the decision undermined freedom of movement, the right to protection of health, and the right to respect for private and family life under Article 8 of the ECHR. They contended that the decree was outwith the powers of the mayor since police measures relating to health emergencies were reserved to the national authorities and the  préfets de département. This decree was, they said, unjustified and disproportionate.

The municipality of Strasbourg argued that the decree was strictly limited in time and space and was therefore proportionate to the specific local circumstances of the area. Referring to the French legal code relating to public authorities, administrative justice and public health, and the lockdown law passed on March 23 2020, the respondents argued that this emergency law allows, amongst other things, the prime minister to regulate or prohibit the movement of people unless strictly essential for the needs of health or family.

Legal background

The gravamen of the claimants’ argument was that the mayor’s decree had gone beyond his power to issue it. The court clarified that the mayor had been entitled to exercise his municipal police power to prevent and reduce the effects of the covid epidemic. Under French law, a municipal mayor can only act on these two conditions:

• there are “compelling reasons” linked to local circumstances
• and these measures do not compromise the consistency and effectiveness of the measures already taken by the State. 

The claimants relied on article (521-2) of the Code of Administrative Justice which reads:

On receipt of a request justified by urgency, the interim relief judge may order any measures necessary to safeguard a fundamental freedom which a legal person governed by public law or a private-law body responsible for managing a public service has, in the exercise of one of its powers, seriously and manifestly unlawfully infringed. The interim relief judge shall give a ruling within 48 hours.

The emergency law of 23 March 2020 that was introduced to deal with the covid-19 epidemic says that

A state of health emergency may be declared in all or part of the territory (…) in the event of a health disaster which, by its nature and seriousness, endangers the health of the population.

According to the terms of Article L. I of the Code. 3131-15 of the same code, in the territorial districts where a state of health emergency is declared, the Prime Minister may, in particular, for the sole purpose of guaranteeing public health : “1° Regulate or prohibit the movement of persons and vehicles and regulate access to means of transport and the conditions of their use

other powers to restrict movement and enforce quarantine follow. Under the terms of I of Article L. 3131-17 of this Code:

When the Prime Minister or the Minister responsible for health takes the measures mentioned in Articles L. 3131-15 and L. 3131-16, they may authorise the representative of the territorially competent State to take all general or individual measures for the application of these provisions.

As far as the mayor’s jurisdiction is concerned, here are the terms of article L. 2542-3 of the General Code of Local Authorities applicable in Alsace Moselle:

The mayor’s duties are to ensure that the inhabitants enjoy the advantages of good policing, in particular cleanliness, health, safety and tranquillity in the streets, places and public buildings. The mayor is also responsible for ensuring the tranquility, health and safety of the countryside.

Judgment

 The summary judge in this application ruled that the circumstances obtaining in Strasbourg revealed “no compelling reason” to justify the mayor’s decree obliging citizens to wear a mask.

Under these conditions, the decree [under challenge] …, which is a general administrative police measure taken by the mayor in addition to the special police measures taken by the state authorities, is not justified by any compelling reason related to to local circumstances specific to the municipality of Strasbourg

The court rejected the arguments of the Strasbourg municipality under Article L. 761-1 of the Code of Administrative Justice and suspended the Mayor’s decree of 20 May 2020.

Comment

This ruling is worth noting in that it recognises under the right to respect for private life a “freedom of physical appearance”. The decree under attack, which obliged Strasbourg citizens to wear a mask, was not considered by the judge to be justified by an overriding reason linked to a local circumstance:

Indeed the choices made as to the appearance that one wishes to have, in the public space as in private, relate to the expression of the personality of each one and thus of the private life.

As to the Article 8 right to respect for private life, the following observation from the judge shows the extent to which this ECHR provision can be stretched:

Indeed the choices made as to the appearance that one wishes to have, in the public space as in private, depend on the expression of the personality of each one and therefore of the private life.

The flexibility of the right to respect for private life as enshrined in Article 8 proved to be very useful for the claimants in this case. The judge upheld the right to respect for private life and freedom of physical appearance over the justifications advanced by the municipality. 

For a broader discussion of the judgment and the important role of Article 8 and the recognition in law of the freedom of physical appearance, I recommend this post by Arnaud Gossement, which he concludes with this note:

any interference with this right to respect for private life that constitutes freedom of appearance is not necessarily illegal. It has to be justified by “an overriding reason linked to local circumstances”. In this case, in the judge’s view, the justification advanced was insufficient.