How to measure the proportionality of measures such as travel bans or access to places of worship?

Marc Fallon, professor em. UCLouvain and former Dean of the Faculty of Law

Many voices are heard to demand respect for the principle of proportionality by various measures adopted during the health crisis, whether it is the limitation of access to places of worship, the travel ban or the pandemic law in preparation. . But what does this requirement mean in concrete terms? And how to ensure the control of its application by the authority? This principle inherent in the rule of law and respect for fundamental human rights does not exclude the authority from limiting a fundamental right or freedom. But does the extent of this limitation fall within a discretionary power of the authority, the only one capable of carrying out a complex assessment of a political, economic or social nature, outside any judicial review? Certainly not, because guidelines exist.

Even if determining what is required to safeguard a legitimate objective of general interest, such as the protection of public health, calls for a certain margin of appreciation, which is all the greater in a crisis situation linked to a new risk calling for to a precautionary principle, European case law has broadly defined the contours of the proportionality test. In practice, the authority must establish, even before adopting a measure, that it meets a double evaluation test. Indeed, a restriction on a fundamental right is justified only if it is suitable for achieving the objective of general interest pursued and if it does not go beyond what is necessary to achieve that aim. More specifically, the authority must establish that the measure meets a double test of suitability and necessity.

The aptitude test

The aptitude test may reveal that the intended restriction is not achieving its goal. This may be the case if, invoking a health objective, it is in fact seeking to achieve another goal, for example purely economic. This is more often the case if it fails to cover certain situations presenting the same risk to health as the situations concerned. In a way, if comparable situations are subject to different regimes, the regulations may appear to be discriminatory. For example, if gatherings are allowed in certain closed spaces on condition of respecting a social distancing standard determining the number of participants according to the size of the establishment, while others are prohibited despite the capacity of the establishment to receive a number of participants obeying this standard, the regulations may not achieve the health goal pursued. Indeed, assuming that the standard of distance itself is effective, the fact of imposing it on an establishment is not in itself disproportionate, but the fact that other comparable establishments are exempted from complying with the standard raises doubts. that, taken as a whole, the regulation will effectively achieve its objective. The presence of breaches in the field of regulation is therefore a sign of non-proportionality, as much as of discrimination. Thus, the restriction affecting the exercise of worship even though the size of the place of worship would make it possible to accommodate a significant number of faithful while respecting a standard of distancing like other establishments not targeted because they are said to be essential, would deserve to be confronted. in the aptitude test.

The necessity test

The necessity test very concretely consists in evaluating whether another less restrictive measure of fundamental right is possible, which would enable the legitimate objective pursued by the regulation to be achieved as effectively. It is therefore incumbent on the authority to carry out technical expertise to identify all the alternatives, to retain the least invasive for fundamental right.

Example with the travel ban

The travel ban, distinguishing between essential and non-essential trips, illustrates the examination of the degree of necessity, as well as that of the suitability of the measure. From the outset, a prohibition measure is the most restrictive on a scale of regulatory severity. It therefore exposes itself by hypothesis to the identification of any less restrictive alternative. While admitting that in itself the travel ban limits the risk of contamination and is compatible with the containment technique, an alternative can be sought in the requirement of testing: any person entering the territory may have to establish proof of screening, possibly carried out abroad, or be subject to an obligation of screening upon return to the territory. The objection to the difficulty of monitoring compliance with such an obligation is obvious at first sight. However, in the European approach to respect for fundamental freedoms of movement, it is not enough for the State to invoke administrative constraints. In fact, it is not very credible to base a ban on border crossing on the impossibility of verifying compliance: this very ban assumes that control is possible. To plead otherwise risks turning against the authority, because the argument comes back to the admission of a failed State. Moreover, a ban on traveling to another EU member state which has adopted equivalent containment standards risks contradicting the principle of mutual trust which prevails in EU law.

The travel ban is still subject to an aptitude test in several ways. In fact, it targets certain mobility situations deemed to be risky, while others are not. First, many cases of internal mobility are not prohibited, although they may present a comparable risk, or even a greater risk than travel to a less contaminated area. Then, among the cases of cross-border mobility, so-called essential trips escape the ban. However, this exclusion is not discriminatory unless such trips do not present comparable risks in terms of health. At least, invoking an objective of a purely economic nature in relation to economic operators would be insufficient.

The Pandemic Bill

According to the explanatory memorandum to the draft Pandemic law, the measures taken “must in particular be necessary, adequate and proportional to the objective pursued”, without excluding, insofar as they may exempt “essential travel or shops”. “. With regard to European guidelines, these terms lack precision. The legislator is well aware of this, as evidenced for example by the law of October 27, 2020 relating to “examination of proportionality prior to the adoption or modification of professional regulations”, resulting from a directive… of the European Union .