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Discretionary Power, Scientific Uncertainty and Right to Life in the Context of the COVID-19 Pandemic: Lessons Learnt from the Administrative Tribunal of Guadeloupe and the French Council of State

Published online by Cambridge University Press:  16 July 2020

Alessandra DONATI Open the ORCID record for Alessandra DONATI [Opens in a new window]
Alessandra DONATI*
Affiliation:
Senior Research Fellow at the Max Planck Institute for procedural law in Luxembourg. She holds a PhD in law at the University Paris 1 – Panthéon Sorbonne (with a thesis on the precautionary principle under European Union law) and is an Attorney in Law in Italy and France, email: alessandra.donati@mpi.lu.
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Abstract

Administrative Tribunal of Guadeloupe 28 March 2020, case n° 2000295 (Judge for interim relief); French Council of State 4 April 2020, cases n° 439904, 439905 (Judge for interim relief)

Based on the precautionary principle and to protect the right to life under Article L. 521-2 of the French Code of Administrative Justice, the Administrative Tribunal of Guadeloupe (Judge for interim relief) ordered the Regional Health Agency of Guadeloupe and the University Hospital Centre of Guadeloupe to procure 200,000 COVID-19 screening tests corresponding to half of the population of Guadeloupe and to buy the doses necessary for the treatment of the COVID-19 epidemic with hydroxychloroquine and azithromycin for 20,000 patients. On appeal, the French Council of State, by disregarding the application of the precautionary principle and with controversial reasoning concerning the relationship between discretionary power and scientific uncertainty, annulled the decision of the Administrative Tribunal of Guadeloupe.

Information

Type
Case Annotations
Information
European Journal of Risk Regulation , Volume 11 , Issue 3 , September 2020 , pp. 698 - 708
Copyright
© The Author(s), 2020. Published by Cambridge University Press

I. Facts

Since its outbreak in Europe in February 2020, the coronavirus pandemic has significantly challenged both the robustness of Member States’ healthcare systems and the handling and adaptability of our economic, political, legal and social systems. The coronavirus pandemic “puts societies to the test: it is a test of political leadership, of national health systems, of social care services, of solidarity, of the social contract – a test of our very own fabric”.Footnote 1 In this context marked by the rapid evolution of the virus with the consequent smooth adaptation of the measures taken to fight it, two issues have remained relatively constant since the beginning of the pandemic and will, very likely, also characterise the way out from the emergency.

On the one hand, from the outset of the crisis, the Member States showed a severe lack of anticipation in the management of the risk.Footnote 2 This lack of anticipation, which entailed the delay of decision-makers in implementing timely and effective preventative measures, had various manifestations. First, Member States were not able to react to the crisis promptly. Protective measures were taken only when the risk of spreading the virus was already certain in Italy, weeks after the first signals of the outspread of the virus in China. Second, Member States incurred major problems in providing their hospitals, health workers and the population in general with the equipment, namely masks and gloves, necessary to ensure protection against the virus.Footnote 3 The same delays and difficulties concerned the implementation of screening tests to verify if and to what extent the population had contracted the virus. While the World Health Organization (WHO) advocated mass screening to follow the evolution of the pandemic and to better organise the lifting of the containment measures, each Member State acted differently according to the seriousness of the situation in its territory and based on its means and available stocks.Footnote 4

On the other hand, pending the development of a vaccine, the treatment of coronavirus is characterised by scientific uncertainties, and various proposals have been made to use existing antiviral drugs to treat severe COVID-19 cases.Footnote 5 One of the most popular – but still controversial – proposals is the one made by the French Professor Didier Raoult, who recommends a mixture of hydroxychloroquine (an antimalarial) and azithromycin (an antibiotic) to treat patients with COVID-19. Following the initial results of an observational study he carried out from 5 March to 16 March 2020 at the Institut hospitalo-universitaire Méditerranée in Marseille, he stated that over the 26 patients examined, 13 of them showed a reduction or disappearance of the viral load after 6 days of treatment with hydroxychloroquine alone or in combination with azithromycin. These data were confirmed by a second study Professor Raoult carried out at the end of March on 80 patients.Footnote 6 Further to these studies, the French Directorate-General for Health sought the opinion of the High Council for Public Health (Haut Conseil de la santé publique). This latter, in an opinion of 23 March 2020, stated that the results of Raoult’s study should be considered with caution and that no specific treatment is recommended for patients suffering from cases of COVID-19.Footnote 7 By a decree of 25 March 2020, by way of derogation from the provisions of the Public Health Code (Code de santé publique), the French Prime Minister authorised the prescription, dispensing and administration of hydroxychloroquine under the responsibility of a doctor to patients suffering from COVID-19 in the healthcare facilities in which they are treated and, only for the continuation of their treatment and with the authorisation of the initial prescribing doctor, at home.Footnote 8 Confirming the doubts about its effectiveness, on 23 April 2020, the European Medicines Agency (EMA) stated that the beneficial effects of hydroxychloroquine have not yet been demonstrated and that recent studies have reported serious, and in some cases fatal, heart rhythm problems associated with the use of such a drug.Footnote 9 Eventually, following the publication of a study by The Lancet on 22 May 2020 reporting that the use of hydroxychloroquine was associated with an increase of cardiac toxicity, patients’ treatment with hydroxychloroquine was prohibited in France.Footnote 10

It is in this context – characterized by a lack of anticipation in the management of the crisis and scientific uncertainty as to remedies against the coronavirus – that the judgments given in France by the Administrative Tribunal of Guadeloupe (Judge for interim relief) on 28 March 2020, and on appeal by the Council of State (Judge for interim relief) on 4 April 2020, shall be analysed.

II. Judgments

1. Administrative Tribunal of Guadeloupe 28 March 2020, case n° 2000295 (Judge for interim relief)

By an application filed on 25 March 2020, the General Workers’ Union of Guadeloupe (UGTG) asked the interim relief judge of the Administrative Tribunal of Guadeloupe (Juge des référés du Tribunal administrative de la Guadeloupe) on the basis of Article L. 521-2 of the French Code of Administrative Justice (Code de la justice administrative) to urge the Regional Health Agency of Guadeloupe (ARS) and the University Hospital Centre of Guadeloupe (CHU) to: (1) place an order of 200,000 COVID-19 screening tests, corresponding to half of the population of Guadeloupe; and (2) order the doses necessary for the treatment of the COVID-19 epidemic with hydroxychloroquine and azithromycin for 20,000 patients.

The Tribunal recalled that, under article L. 521-2 of the French Code of Administrative Justice, a measure for interim relief is justified if two conditions are met. First, the measure shall be urgent. Second, the measure shall be necessary to safeguard fundamental freedom, which a public authority or a private-law body entrusted with the management of public service has seriously, manifestly and unlawfully breached in the exercise of its powers.

Concerning the condition of urgency, the Tribunal considered it to be met given the nature of the coronavirus pandemic, which is rapidly spreading all over the country, and based on the emergency health status declared in France since 24 March 2020.Footnote 11 As to the second condition, the Tribunal considered that the right to life, under Article 2 of the European Convention on Human Rights (ECHR), constitutes a fundamental freedom within the scope of article L. 521-2 of the Code of Administrative Justice. Therefore, where the action or failure to act of the public authority creates a clear and imminent danger to the life of persons, thus seriously and manifestly infringing their right to life, the interim relief judge may prescribe all measures likely to put an end to the danger resulting from such action or failure to act.Footnote 12

Against this backdrop, the Tribunal decided as follows. On the one hand, with regards to the screening tests, the Tribunal stated that the limited number of resuscitation beds in Guadeloupe, the island’s insularity that considerably limits the possibility of mass medical evacuations in the event of overloading of local healthcare facilities, the unreliability of data on the number of contaminated persons, the proven shortage of protective equipment for healthcare workers and law enforcement personnel and the lack of screening tests are as such revealing a shortcoming in the local healthcare system, which constitutes a serious and manifestly unlawful breach of the right to life. As a result, in application of the precautionary principle and to prevent a new, predictable and even more serious situation of shortage, the ARS and the CHU are enjoined by the Tribunal to order 200,000 COVID-19 screening tests.Footnote 13 On the other hand, as to the use of hydroxychloroquine, the Tribunal stated that – while it is necessary to be cautious about the results of the study conducted by Professor Raoult – on the basis of the precautionary principle, it is necessary to anticipate, even in a context of scientific uncertainties, the possible needs of the population in terms of available remedies against COVID-19. Therefore, the ARS and the CHU are enjoined by the Tribunal to order, without delay, the doses of hydroxychloroquine necessary for the treatment of 20,000 COVID-19 patients.

2. French Council of State 4 April 2020, cases n° 439904, 439905 (Judge for interim relief)

Following an appeal made by the CHU asking for the annulment of the decision of the Administrative Tribunal of Guadeloupe on the ground that no breach of Article L. 521-2 had been committed, the French Council of State (Conseil d’Etat) rendered its decision on 4 April 2020. While acknowledging that the right to life constitutes a fundamental freedom within the meaning of Article L. 521-2 of the French Code of Administrative Justice, the Council of State upheld the request made by the CHU and annulled the decision taken by the Administrative Tribunal of Guadeloupe.

First, the Council of State considered that in a situation of scientific uncertainty – such as the one at stake – the public authorities are granted a margin of discretion as to the choice of the protective measures to be taken. Because the authorities are granted such a margin of discretion, the judge cannot enforce Article L. 521-2, which requires the authorities to commit a serious and manifestly unlawful breach of fundamental freedom.Footnote 14

Second, regarding the screening tests, the Council of State underlined that, based on the available data (the Pasteur Institute of Guadeloupe carried out around 100 test every day, had a stock of reagents to carry out 1500 tests and had recently ordered 4000 additional tests) and in light of the current situation in Guadeloupe, there was no need to order the ARS and the CHU to order additional screening tests.Footnote 15

Third, as to the use of hydroxychloroquine, the Council of State considered that the evidence provided by the CHU – which was not contested by the UGTG – indicated that the CHU had sufficient stocks to treat patients with hydroxychloroquine and therefore it was not necessary to order the ARS and CHU to procure additional stocks of this drug.Footnote 16

III. Comment

The decisions of the Administrative Tribunal of Guadeloupe and the Council of State share a common understanding of the right to life as a fundamental freedom under Article L. 521-2 of the French Code of Administrative Justice. Still, they differ as to the interpretation given to the relation between, on the one side, the right to life and, on the other side, the notions of discretionary power and scientific uncertainty, which are at the heart of the application of the precautionary principle.

1. Right to life, fundamental freedoms and the coronavirus pandemic

The protection of the right to life as a fundamental freedom under Article L. 521-2 is not new.Footnote 17 In the past, the Council of State had previously considered that in order to tackle the inaction or failure of the public authority creating a clear and imminent danger to the lives of persons, the interim relief judge is competent to prescribe all measures likely to put an end to the danger.Footnote 18 However, it is under the ongoing pandemic that such an interpretation has become particularly important in order to decide on the great amount of cases brought before the administrative tribunals and the Council of State.Footnote 19 In all of these cases, the right to life has been invoked to assess the decisions taken by the French public authorities in the management of COVID-19. As an example, after the injunction issued by the Council of State to the government to specify its policy measures,Footnote 20 it was first the associations for the defence of foreigners as well as the National Council of Bars and Lawyers (Conseil national des barreaux et des avocats) that – by invoking the protection of the right to life – attempted to obtain the closure of all administrative detention centres. The Council of State rejected these pleas.Footnote 21 Several individuals and professional associations then asked the administrative judge to enjoin the government to take measures to better manage the epidemic by protecting healthcare workers. They all invoked the right to life and its corollary, the right to receive appropriate treatments. In case n° 439693, some nurses and a trade union asked the judge to order the distribution of protective equipment and especially FFP2 masks.Footnote 22 In case n° 439726, the Union of Doctors of Aix-en Provence and Region also demanded FFP2 and FFP3 masks for health professionals and surgical masks for patients and the population, as well as massive screening tests and a broad authorisation for the prescription of hydroxychloroquine.Footnote 23 This request was also included in the application made by some individuals (case n° 439765) who asked the administrative judge to enjoin the government to increase the production and stock of hydroxychloroquine.Footnote 24 The Council of State rejected all of these requests.

2. Right to life, discretionary power and scientific uncertainty

In its decision as of 28 March 2020, the Administrative Tribunal of Guadeloupe provided a rigorous application of the precautionary principle as a principle of anticipated action.Footnote 25 In a situation of scientific uncertainty – such as the one at stake – the authorities shall act to anticipate the occurrence of risk to public health. The discretionary power they are granted with shall not be an excuse not to act, but shall allow the decision-makers to adapt their decisions to the specific conditions of the risk at stake. This means that the existence of scientific uncertainty is not incompatible with the granting to the authorities of discretionary power. Indeed, because of the very existence of a situation of scientific uncertainty that makes it difficult to forecast in general terms the actions to be taken, the authorities need a margin of discretion to be able to decide, on a case-by-case basis, which measures at which conditions shall be adopted to better protect the public health in each circumstance.

The application by the Administrative Tribunal of Guadeloupe of the precautionary principle in the field of public health is not surprising, but it contributes to the ongoing process of the progressive shift of this principle from the environmental to the public health domain.Footnote 26 Provided for by Article 5 of the French Environmental Chart (Charte de l’environnement), the precautionary principle applies to prevent the occurrence of damage – although uncertain under the state of scientific knowledge – that could seriously and irreversibly affect the environment. Despite the formulation of Article 5, the application of the precautionary principle is not limited to the environmental domain.Footnote 27 First, according to the Council of State, this principle can be invoked concerning those risks that could affect both the environment and human health.Footnote 28 Health damages that have an environmental cause are therefore included in the scope of application of the precautionary principle. Second, a closer look at the case law of the French administrative tribunals shows that, de facto, this principle is already applied by the judge in relation to public health risks. In this regard, reference should be made to the judgment of the Nantes Court of Appeal of 3 February 2012, which agreed to examine, in the light of the precautionary principle, the risks to human health resulting from the effects of electromagnetic fields caused by mobile telephony relay antennas.Footnote 29 In similar terms, the Administrative Tribunal of Amiens considered that the precautionary principle applies to the protection of the safety of people.Footnote 30 Two rulings of the Council of State on, respectively, the exposure to asbestos fibres and cosmetic surgery seem to confirm this process of enlargement of the scope of application of the precautionary principle to encompass public health risks.Footnote 31

The application of the precautionary principle in the public health field is a precondition necessary for the Administrative Tribunal of Guadeloupe to consider that by breaching this principle – and thus by not anticipating the uncertain risks posed by coronavirus – the French government breached the right to life of Guadeloupe’s citizens. The correlation established by the Tribunal between the precautionary principle and the right to life is of particular interest and reflects the progress made both at the level of the ECHR and in climate change litigation. Under the ECHR, the precautionary principle is not mentioned. However, in recent years, this principle has been progressively recognised and then explicitly applied by the European Court of Human Rights (ECtHR) to guarantee the right to a healthy environment under Article 2 (right to life) and Article 8 (right to respect for private and family life) ECHR.Footnote 32 From this perspective, in the case Tatar vs Romania as of 27 January 2009, the Court, on the basis of the precautionary principle, condemned Romania for breach of Article 8 ECHR. Indeed, Romania allowed a company (that it partially owned) to use a technological process that was potentially dangerous to the applicants’ health without having adopted preventative measures capable of protecting the rights of the applicants for their private and family life and, more generally, their right to a healthy environment. Footnote 33 The acknowledgment of the existence of a link between the right to life, the right to the respect for private and family life and the precautionary principle is also at the heart of one of the milestone judgments in climate change litigation: the Urgenda case decided by the Supreme Court of the Netherlands on 20 December 2019. In this case, the Supreme Court upheld the lower courts’ order requiring the Dutch government to reduce Dutch greenhouse emissions by a minimum of 25% by 2020. The Supreme Court held that the Dutch State is subject to a duty of care under Article 2 (right to life) and Article 8 (right to respect for private and family life) ECHR. Therefore, through the combined effect of the duty of care and the precautionary principle, the Dutch State is under the obligation to significantly reduce its emissions even if the specific effects and timing of climate change are still uncertain. This positive obligation is necessary to ensure the respect of the right to life and the right for private and family life of Dutch citizens.Footnote 34 Against this backdrop, and considering both the possibility of a second wave of the COVID-19 pandemic or another correlated pandemic and the progressive worsening of our health and environmental conditions in a climate change scenario, the precautionary principle could become a key tool to ensure both the protection of the planet and our fundament right to live on it.

Notwithstanding the progress made by the Administrative Tribunal of Guadeloupe in the interpretation and the application of the precautionary principle and the protection of the right to life, the Council of State, in its ruling as of 4 April 2020, annulled the decision of the Tribunal. This decision is in line with the other ones taken by the Council of State in the context of the ongoing pandemic, in which the judge for the interim relief rejected the requests made by the applicants.Footnote 35 In the case at stake, without mentioning the precautionary principle, the Council of State employed the wording that is traditionally used to refer to such a principle to overturn the decision of the Tribunal.Footnote 36 Therefore, without expressly denying its application, the Council of State de facto excluded the application of the precautionary principle in the case at stake. Two reasons may explain this approach. First, the Council of State focused on the present situation and the present stock of screening tests and hydroxychloroquine doses. The Council of State indicated that, based on the available scientific data and at the date thereof, there was no need to urge the French government to buy additional tests and to stock additional doses of hydroxychloroquine.Footnote 37 Yet, by limiting its analysis to the current situation, the Council of State disregarded the primary function of the precautionary principle, which is the anticipation from a long-term perspective of the occurrence of uncertain risks. Second, the Council of State provided a misleading interpretation of the relation between scientific uncertainty and discretionary power under the framework of the precautionary principle. The Council of State considered that in a situation of scientific uncertainty – such as the one at stake – the public authorities are granted with a margin of discretion as to the choice of the protective measures to be taken. In such circumstances, the existence of uncertainties accompanied by the use of discretionary power is, for the Court, an obstacle to the recognition of a serious and manifestly unlawful infringement by a public authority of fundamental freedom under Article L. 521-2 of the Code of Administrative Justice.Footnote 38 In other terms, for the Council of State, in a situation of scientific uncertainty where the public authorities are granted a margin of discretion relating to the choice of the course of action to be taken, the judge cannot enforce Article L. 521-2, which requires the authorities to commit a serious and manifestly unlawful breach of a fundamental freedom. However, if this were true, this would mean that the public authorities would no longer be responsible for the decisions taken in a context of scientific uncertainty and that the people potentially affected by such decisions would not be able to have their right to life protected by the judge under Article L. 521-2. Yet, if it is important that the public authorities have a margin of discretion to manage with flexibility the risk at stake, it is also essential that the recipients of such public management measures can enforce their rights by invoking the precautionary principle. From this perspective, the existence of discretionary power should not be an excuse to exclude the applicability of the precautionary principle, but should be a guarantee for the public authorities that the judge will limit its control to the existence only of a serious and manifestly unlawful infringement of a fundamental freedom. Besides the acknowledgment of such a serious and manifestly unlawful infringement, the public authorities shall be granted a margin of discretion that is excluded from the scope of judicial control. The exercise of such a limited but fundamental judicial control is even more important in a situation of emergency – such as the one at stake – where the need to act fast together with the existence of uncertainties as to the management of the risks at stake significantly increase the discretionary power granted to the authorities.

To conclude, how can the different approaches followed by the Administrative Tribunal of Guadeloupe and the Council of State be explained? Can we consider that the refusal by the Council of State to invoke the precautionary principle in the case at stake is an attempt to deny, in more general terms, the application of such a principle in the context of a pandemic and in relation to health risks? If – given the exceptionality of the circumstances and in the absence of other decisions in this respect – it is difficult to draw a substantiated conclusion, it may nevertheless be considered that the different paths followed by the two judges seem to be more the results of a practical reason than of an attempt to render the application of the precautionary principle – which has constitutional value in France – meaningless. On the one hand, the Administrative Tribunal of Guadeloupe had to cope with the fragility of the health system in Guadeloupe, the lack of sufficient structures, the shortage of protective equipment for healthcare workers and the unreliability of data on the number of contaminated persons. Under these specific circumstances, the only way to effectively ensure the protection of the right to life of Guadeloupe’s citizens was for the Tribunal to ensure the anticipation of the time of action and the prevention of the risks stemming from coronavirus by applying the precautionary principle in a timely manner. On the other hand, when deciding on the appeal, the Council of State evaluated the concrete means at the disposal of the CHU and ARS and the measures – in terms of the ordering of screening tests and hydroxychloroquine doses – that they had already taken or had announced that they would take. From this perspective, the Council of State avoided entering into a legal discussion as to the conditions of the application of the precautionary principle and confined itself to noting that both the CHU and the ARS of Guadeloupe had a sufficient number of screening tests and doses of hydroxychloroquine. As some scholars have argued, in this framework and within the limits set forth by Article L. 521-2, the interim relief judge, which shall act within 48 hours from the receipt of the application, does not see the past; they do not consider the future, but they can only evaluate the immediate situation offered to them in order to remedy the alleged infringement. This limitation of the timeframe examined by the interim relief judge exacerbates the dilemma with which the judge is confronted. From one side, because of its specific function, the interim relief judge appears to be best placed to respond quickly and effectively to requests from litigants concerned about the infringements of their rights and freedoms that could result from the management of the coronavirus crisis by the government. From the other, the judge finds themselves in a particularly delicate situation that seems to require them to show particular deference to the actions of the government, which holds the executive power to manage the crisis.Footnote 39 In this framework, and to avoid any interference with the risk management decisions taken by the government, the judge could be tempted to restrict the limits of its control by applying strictly the traditional formula according to which the interim relief judge is not competent to prescribe structural measures based on public policy choices that are unlikely to be implemented and therefore to take effect at very short notice.Footnote 40 Such a finding seems to produce a surprising reversal of the function of the interim relief judge. While its introduction in the French system manifested a desire for efficiency in the protection of fundamental freedoms,Footnote 41 its decision in the case at stake may have ambiguous implications for the conception of administrative discretion and, as a consequence, for the judge’s control over it. Under the pretext of protecting the right to life, the interim relief judge seems no longer to act as the guarantor of liberties by setting limits to the discretion of the government, but, on the contrary, it participates in the extension of the government’s margin of appreciation.Footnote 42

References

1 The Lancet Public Health, Editorial, “COVID-19 puts societies to the test” (2020) 5 <https://www.thelancet.com/journals/lanpub/article/PIIS2468-2667(20)30097-9/fulltext?dgcid=raven_jbs_etoc_email> (last accessed 12 May 2020).

2 A Donati, “The coronavirus crisis in Europe – is this the time of the precautionary principle?” EU Law live, Weekend Edition (27 March 2020) <https://eulawlive.com/weekend-edition/weekend-edition-no11/> (last accessed 12 May 2020).

3 ES Nicolas, “EU countries unable to follow WHO’s call for mass testing” EUObserver (20 March 2020) <https://euobserver.com/coronavirus/147830> (last accessed 12 May 2020).

4 M Morvillo, “I Just Can’t Get Enough (of Experts): The Numbers of COVID-19 and the Need for a European Approach to Testing” (2020) 11(2) European Journal of Risk Regulation 366.

5 Discovery is a French clinical trial that started in March 2020 and aims to test antivirals against coronavirus. The Discovery clinical trial is led by the French National Institute for Health and Medical Research (INSERM) as part of the European programme REACTing. The clinical trial is being conducted on approximately 3000 patients in France, Belgium, the Netherlands, Luxembourg, the UK, Germany and Spain. Each of the examined groups will receive for testing the following drugs: remdesivir, an injectable antiviral used in clinical research against Ebola, but has no marketing authorisation; lopinavir/ritonavir (distributed under the brand name Kaletra), an anti-HIV treatment; lopinavir/ritonavir and interferon-β, a molecule naturally produced by the immune system; and hydroxychloroquine. With regards to this clinical trial, see LCI, “Coronavirus: pourquoi l’essai européen Discovery ne donne toujours rien” (11 May 2020) <https://www.lci.fr/sante/covid-19-traitement-contre-le-coronavirus-hydroxychloroquine-pourquoi-l-essai-europeen-discovery-ne-donne-toujours-rien-2153475.html> (last accessed 12 May 2020).

6 Franceinfo, “Coronavirus: ce que l’on sait de la seconde étude du professeur Raoult, qui conclut à nouveau que la chloroquine est efficace contre le Covid-19” (28 March 2020) <https://www.francetvinfo.fr/sante/maladie/coronavirus/coronavirus-ce-que-l-on-sait-de-la-seconde-etude-du-professeur-raoult-qui-conclut-a-nouveau-que-la-chloroquine-est-efficace-contre-le-covid-19_3889183.html> (last accessed 12 May 2020).

7 Haut Conseil de la santé publique, “Coronavirus SARS-CoV-2: recommandations thérapeutiques” (2020) <https://www.hcsp.fr/Explore.cgi/avisrapportsdomaine?clefr=785> (last accessed 12 May 2020).

8 Décret n° 2020-314 du 25 mars 2020 complétant le décret n° 2020-293 du 23 mars 2020 prescrivant les mesures générales nécessaires pour faire face à l’épidémie de covid-19 dans le cadre de l’état d’urgence sanitaire [2020] JORF n°0074 du 26 mars 2020.

9 European Medicines Agency, “COVID-19: reminder of risk of serious side effects with chloroquine and hydroxychloroquine” (23 April 2020) <https://www.ema.europa.eu/en/news/covid-19-reminder-risk-serious-side-effects-chloroquine-hydroxychloroquine> (last accessed 12 May 2020).

10 The Lancet, “Chloroquine or hydroxychloroquine for COVID-19: why might they be hazardous?” (22 May 2020) <https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31174-0/fulltext> (last accessed 16 June 2020).

11 Article 4, LOI n° 2020-290 du 23 mars 2020 d’urgence pour faire face à l’épidémie de covid-19 [2020] JORF n° 0072 du 24 mars 2020.

12 Administrative Tribunal of Guadeloupe (Tribunal administrative de la Guadeloupe) 28 March 2020, n° 2000295, para 8.

13 ibid, para 12.

14 Council of State (Conseil d’État) 4 April 2020, n° 439904, para 4.

15 ibid, para 16.

16 ibid, para 14.

17 Council of State (Conseil d’État), 26 July 2017, n° 412618.

18 Council of State (Conseil d’État), 16 November 2011, n° 353172, para 4.

19 JM Pastor, “L’épidémie de coronavirus dope l’activité du Conseil d’État, ou plus exactement celle du juge des référés surtout, qui vient de rendre des ordonnances dans des domaines très divers”, Dalloz Actualité (9 April 2020) <https://www.dalloz-actualite.fr/flash/des-referes-liberte-tous-azimuts#.XrPXw5rgpE5; https://www.dalloz-actualite.fr/flash/juge-des-referes-du-conseil-d-etat-sur-front-du-coronavirus#.XrPZJJrgpE5> (last accessed 12 May 2020).

20 Council of State (Conseil d’État), 22 March 2020, n° 439674.

21 Council of State (Conseil d’État), 27 March 2020, n° 439720.

22 Council of State (Conseil d’État), 28 March 2020, n° 439693.

23 Council of State (Conseil d’État), 28 March 2020, n° 439726.

24 Council of State (Conseil d’État), 28 March 2020, n° 439765.

25 On the precautionary principle as a principle of anticipated action in the context of the coronavirus crisis, see Donati, supra, note 2.

26 G Brücker, “Réflexions sur l’application du principe de précaution au domaine de la santé” (2007) Dalloz 1546; C Noiville, “Principe de précaution et santé. Le point sur quinze années de jurisprudence” (2009) 1/3.

27 E Gaillard, “Principe de precaution – droit interne” (2019) JurisClasseur Environnement et Développement durable, Fasc. 2410.

28 Council of State (Conseil d’État), 8 October 2012, n° 342423.

29 Court of Appeal (Cour d’appel) Nantes, 3 February 2012, n° 10NT01244.

30 Administrative Tribunal (Tribunal administratif) Amiens, 23 April 2007, n° 0601149.

31 Council of State (Conseil d’État), 26 February 2014, n° 351514; Council of State (Conseil d’État), 21 March 2007, n° 284951.

32 On the progression of the precautionary principle in the case law of the ECtHR, see E Gaillard, “Principe de precaution – Systèmes juridiques internationaux et européens” (2017) JurisClasseur Environnement et Développement durable, Fasc. 2415.

33 European Court of Human Rights, Tatar vs Roumanie (2009) n° 67021/21, para 87.

34 N de Sadeleer, “Quand la science climatique s’invite au prétoire, Décryptage de l’affaire Urgenda, Nicolas de Sadeleer”, blogdroiteuropéen (7 May 2020) <https://blogdroiteuropeen.com/2020/05/08/quand-la-science-climatique-sinvite-au-pretoire-decryptage-de-laffaire-urgenda-nicolas-de-sadeleer/amp/?__twitter_impression=true> (last accessed 25 June 2020).

35 Council of State (Conseil d’État), 22 March 2020, n° 439674; Council of State (Conseil d’État), 28 March 2020, n° 439765, n° 439693 and n° 439726; Council of State (Conseil d’État), 29 March 2020, n° 439798.

36 Council of State (Conseil d’État), 4 April 2020, n° 439904, 439905, para 4: if the administrative authority is entitled, where there is uncertainty as to the existence or extent of risks to human health, to take protective measures without having to wait for the reality and seriousness of those risks to be fully demonstrated, the existence of such uncertainty is, in principle, an obstacle to the recognition of a serious and manifestly unlawful infringement of fundamental freedom, justifying the interim relief judge’s use of the powers conferred on them by Article L. 521-2 of the Code of Administrative Justice.

37 ibid, paras 14 and 16.

38 ibid, para 4.

39 C Saunier, “La position délicate du juge des référés face à la crise sanitaire: entre interventionnisme ambigu et déférence nécessaire”, Jus Politicum blog (11 April 2020) <http://blog.juspoliticum.com/2020/04/11/la-position-delicate-du-juge-des-referes-face-a-la-crise-sanitaire-entre-interventionnisme-ambigu-et-deference-necessaire-par-claire-saunier/> (last accessed 12 May 2020).

40 Council of State (Conseil d’État), 28 July 2017, n° 410677; Council of State (Conseil d’État), 26 July 2018, n° 422237.

41 P Wachsmann, Libertés publiques (8th edn, Paris, Dalloz 2017) p 256.

42 XD de Boulois, “On nous change notre … référé-liberté” (2020) 12 RDLF <http://www.revuedlf.com/droit-administratif/on-nous-change-notre-refere-liberte-obs-sous-ce-ord-22-mars-2020-n439674/> (last accessed 25 June 2020).