Questioned by Members of Parliament on 27 April, Prime Minister Édouard Philippe announced that the decontamination plan would include dialogue between the regions and the government, in order to avoid any resurgence of the COVID-19 epidemic. ‘ In the red departments, not all communes are affected in the same way’, he declared, expressing the wish for “ a logic that commands effects and that commands the spirit of partnership between local elected representatives and the players on the ground ”.

According to the Prime Minister, the government and the players on the ground need to engage in ‘ intense, precise and confident discussion, in order to take the right measures ’. The spirit is therefore ‘ more important to understand than the rule, because it is the spirit that will enable us to manage the circulation of the virus finely and effectively’.

The government therefore promises to pay close attention: ‘ a mayor tells us that in a particular commune, given the explosion in the number of cases, we are not yet ready, so we will discuss with them and understand the specific nature of the situation in that commune, to try to find the right way, the right pace, to open the school ’, continued the head of government.

The need to involve local elected representatives, particularly mayors, is all the greater now that concerns are crystallising around the issue of reopening schools and the resources granted by the State to its municipalities. Elected representatives are already denouncing the criminal risk to which they are exposed in the event of a resurgence of the virus in their locality. This fear could lead to paralysis, or at the very least a limitation, in the action taken by the public authorities.

The provisions of the Fauchon Act of 13 May 1996, which added a specific article L. 21-2334 to the Code général des collectivités territoriales on the criminal liability of mayors, are regularly invoked. Under the terms of this article, mayors may be held criminally liable for unintentional offences if it is established that they ‘ failed to take all reasonable care in view of their competence, the power and resources at their disposal and the difficulties inherent in the tasks entrusted to them by law ’. These provisions therefore require the judge to assess the mayor’s actions in the light of the resources at his disposal and the difficulties he had to overcome.

But the real cause of concern for elected representatives lies in the provisions of article 121-3, which apply in conjunction with those of the Fauchon law. While the first paragraph states that ‘ there is no crime or misdemeanour without the intention to commit it ’, paragraphs 3 and 4 provide for exceptions that give cause for concern.

Paragraph 3 provides for the possibility of prosecution in the event of recklessness, negligence or breach of a duty of care or safety laid down by law or regulation, if it is established that the perpetrator failed to take due care having regard, where applicable, to the nature of his duties or functions, his powers and the means at his disposal.

Paragraph 4 specifies that natural persons, even if they did not directly cause the damage, are also liable to criminal prosecution if the local decision-maker created or helped to create the situation that allowed the damage to occur or did not take measures to prevent it.

Article 121-3 covers both cases where the link between the official’s fault and the damage is established and cases where this link does not exist. In other words, these two paragraphs make local players fear that their criminal liability will be virtually automatic and that it will be very difficult to discuss the facts and the law in the event of prosecution.

Regarding the provisions of paragraph 4, the likelihood of an elected official creating or helping to create the situation that led to the damage being caused is reduced. On the other hand, the offence of recklessness, negligence or breach of a duty of care or safety and failure to take measures to prevent it are plausible.

With a view to refining the interpretation of the concept of unintentional offences, and perhaps to reassure litigants about the rigor with which the High Court applies these provisions, the former President of the Court of Cassation Bruno Cotte stated in an article published in 2006 that it was a question of « an inadmissible failure in a situation that merits close attention because of the dangers or risks it generates ’.

The risks associated with deconfinement pose a particular difficulty for mayors, to whom the government expresses its confidence, without having assured them of the aid that the State will provide if necessary. This is why the possibility of a second wave of COVID-19 contamination linked to decontamination must immediately prompt local authorities to act on the measures to be taken upstream, similar to those already applied in the business world to delimit and limit the criminal risk.

The main challenge for elected representatives is to put in place all the necessary measures to protect their constituents, as this is the only way to reduce the criminal risk to which they are exposed by virtue of their office: local authorities must assess the risks of COVID-19 circulating in schools and other areas of their town. Internal management measures must be taken, with the appointment of people responsible for monitoring the proper application of health and safety measures.

The flow of information must also be considered a priority, as the implementation of measures to combat the risk of contamination requires the involvement of all players in the health chain. If shortcomings are observed, the needs to remedy them must be identified. And if the needs require immediate intervention by the State, local authorities must provide clear and detailed information as quickly as possible.

In short, transparency is no longer just a matter of ethics in politics, but of legal protection for elected representatives and efficiency in their actions.

So, while there are legitimate concerns, we can be reassuring: since the beginning of this crisis, those working on the ground have shown total dedication to their constituents and a great mastery of the situation. Partisan divisions have faded in the face of the need for unity, and have encouraged discipline and respect for measures among the French people. We can only hope that this collective effort will continue.