The implementing decree of article 12 of the law of August 5 on the injection obligation for nursing staff is open to challenge because it does not provide the details expected for the application of the law, in particular on the thorny issue. : how to reconcile the respect of medical confidentiality and the declaration of the injection?
SE
It's true ! the decree on compulsory vaccination provided for by article 12 of the law of August 5, 2013 is the subject of a debate, the government maintaining that it is incorporated in the decree of August 7. This position raises many problems, because this decree is very largely limited to citing the law, and does not contain any of the details that the latter explicitly provides. In these conditions, it seems to us that there is a way to challenge the way in which the law (insufficiently) reconciles medical confidentiality and the declaration of vaccination status to the employer.
Indeed, there is a vagueness on the publication of the decree implementing article 12 of the law of August 5, 2021, considered to be integrated into the decree of August 7, 2021. As a reminder, the law provided as follows:
II. - A decree, taken after consultation with the High Authority for Health, determines the conditions for vaccination against covid-19 for the persons mentioned in I of this article. It specifies the different vaccination schedules and, for each of them, the number of doses required.
This decree sets out the elements making it possible to establish a certificate of vaccination status for the persons mentioned in the same I and the terms of presentation of this certificate in a form allowing only the nature of it to be identified and the satisfaction of the required criteria. . It also determines the elements allowing to establish the result of a virological screening examination not concluding to contamination by covid-19 and the certificate of recovery following contamination by covid-19.
It should therefore be remembered that the law provides for a decree to fulfill two main purposes:
· explain the vaccination schedules and the number of doses to receive to be “compliant”
· specify the condition under which employers are informed of the vaccination status without violating medical confidentiality.
The decree of August 7 provides as follows:
“Art. 49-1.-Excluding the cases of medical contraindication to vaccination mentioned in article 2-4, the elements mentioned in the second paragraph of II of article 12 of law n ° 2021-1040 of August 5, 2021 above are:
"1 ° A proof of vaccination status issued under the conditions mentioned in 2 ° of article 2-2;
"2 ° A certificate of reinstatement issued under the conditions mentioned in 3 ° of article 2-2;
"3 ° From the date of entry into force of the law and until September 14, 2021 inclusive and failing to be able to present one of the supporting documents mentioned in these 1 ° or 2 °, the result of a screening examination , a test or a self-test mentioned in 1 ° of article 2-2 of at most 72 hours. From September 15, 2021 and until October 15, 2021 inclusive, this proof must be accompanied by proof of the administration of at least one of the doses of one of the vaccination schedules mentioned in 2 ° of article 2- 2 comprising several doses.
"The only antigenic tests that can be validly presented for the application of this 3 ° are those allowing the detection of the N protein of SARS-CoV-2.
"The presentation of these documents is checked under the conditions mentioned in article 2-3.
As we can see, the gist of the decree consists in… repeating the law, without adding anything to it. Under these conditions, the decree seems all the more open to challenge since it was supposed to be issued on the advice of the Haute Autorité de Santé. However, as the visas of the decree indicate, the latter issued only one post-law opinion: on autogenous tests. She did not comment on the necessary vaccination schedule. The decree is therefore tainted with illegality.
Can the decree be annulled before the Council of State?
From our point of view, this reduction of the implementing decree to a simple reference to the drafting of the law, with a very insufficient (and purely formal) opinion from the Haute Autorité de Santé, is a ground for illegality of the decree. … And the law itself. Indeed, the intervention of the decree, according to the terms of the law itself, aims to clarify the conditions of application of the law on a very sensitive point: the reconciliation of professional secrecy and vaccination declaration.
By remaining silent on this point, the decree sins through inaction on the part of the executive and endangers fundamental freedoms. It therefore seems to us that, in addition to an appeal against a suspension decision taken without disciplinary guarantees, there is a reason to request the annulment of the decree and to weaken the vaccination obligation.
What to do concretely?
Those who would like to take advantage of the inability of the government to define the rules as the law has provided for them have a real possibility of shaking the legal edifice which led to the vaccination obligation by highlighting the inaction of the government. regulatory. To do this, it is necessary to take advantage of an appeal before a court of first instance to enrich your grievances by questioning the quality of the decree.
Calling into question the illegality of the decree will force the courts to rule.
More subtle, this questioning of a system where the law invites a decree to be taken which is content to refer to the law without adding anything to it, on a subject as sensitive as medical confidentiality, can lead to raising a priority issue of constitutionality before the Constitutional Council ... A supervised procedure, but which can be successful, insofar as the question is new and serious, and where the Constitutional Council, let us repeat, did not deal with this question in its decision of 5 August.
SAISI
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