Businesses covered by emergency coronavirus legislation that are required to close during the pandemic can be criminally liable for failing to comply with the restrictions. All businesses, whether covered by the emergency legislation or not, must comply with existing health and safety laws and regulations. Breach of those requirements also carry criminal liability as explained below.
Law No. 2020-290 of 23 March 2020 declaring public health emergency
Business closure and restriction rules
Law No. 2020-290 of 23 March 2020 declared COVID-19 a public health emergency and addressed various health and business issues arising from the epidemic and subsequent lockdowns. During the state of public health emergency, the Prime Minister was (and is), relying on the report of the Minister in charge of Health, authorised by regulatory decree to take specific measures for the sole purpose of guaranteeing public health, inter alia:
- restriction of the freedom of movement;
- lockdowns and quarantine;
- control of the prices of some necessary products;
- limitations of gatherings in public places;
- temporary closure of certain businesses open to the public, except those that offer essential goods and services;
- requisition of goods and services necessary to address the health disaster; and
- any measure to provide medicine and drugs necessary to eradicate the virus.
Penalties and sanctions for non-compliance with the police decrees and orders passed have, since the declaration of the public health emergency, increased.
Failure to comply with requisitions for goods and services (such as masks) or care staff is heavily punished, with six months' imprisonment and a fine of EUR 10,000. Apart from these requisitions, the violation of other prohibitions or obligations is graduated, with a fine of EUR 135, rising to EUR 375 if the fine is increased and could, in case of repeated offences, lead to six months' imprisonment and a fine of EUR 3,750. As regards legal entities, the amount of the fines is increased by five times.
Notwithstanding the above, the principal new criminal offence created since the beginning of the Covid-19 epidemic in France relates to the prohibition of movements outside home, with the need to certify the exceptions listed exhaustively (e.g. the purchase of professional and essential supplies). Committing this offence may lead to a EUR 135 fine, but this does not apply to companies asking their employees to come to work. A company that asks its employees to come to work needs to issue a special certificate to authorise the employee to move from home during the lockdown period.
Thus, criminal liability for exposure or risk of exposure to COVID-19 must be considered essentially on the basis of general French criminal law rules and principles.
General French Criminal Law Rules and Principles
Several offences already exist and could be applicable to exposure or risk of exposure to COVID-19:
- Unintentional homicide or injury (articles 221-6, 121-3 and 222-19 of the French Criminal Code).
- Reckless endangerment (article 223-1 of the French Criminal Code).
- Failure to provide for assistance (article 223-6, al. 2 of the French Criminal Code).
- Intentional abstention (article 223-7 of the French Criminal Code).
- Employer’s duty of care (articles L.4121-1 and L.4741-1 of the French Labour Law Code).
Except for unintentional homicide or injury, these offences do not require an actual injury to the plaintiff. Consequently, they could ground claims for exposure or risk of exposure, even if the victim has not been ill or did not suffer any damage.
Pursuant to article 121-3 of the French Criminal Code, there is no crime or offence without intent to commit it, but where the law so provides, cases of deliberate endangerment of another person may trigger criminal liability. If it is established that the perpetrator did not take due care, having regard, where appropriate, to the nature of his/her duties or functions, his/her competence and the power and means at his/her disposal, criminal liability may arise. For example, where the law so provides, in the event of imprudence, negligence or failure to comply with an obligation of prudence or safety laid down by law or regulation.
As regards legal entities, they are liable for offences committed on their behalf by their organs or representatives. Such liability does not exclude the criminal liability of individuals who are perpetrators or accomplices in the same acts, but as regards individuals, the fault is qualified as follows : Individuals who did not directly cause the damage, but who created or contributed to the creation of the situation that made the damage possible or who did not take the measures to avoid it, shall be criminally liable if it is established that they either manifestly deliberately violated a particular obligation of prudence or safety provided for by law or regulation, or committed a serious fault that exposed others to a risk of particular gravity that they could not ignore. The concept of serious fault is defined by case law.
Potentially, the guidelines published by the Labour Ministry for employers and employees could qualify as a regulation imposing an obligation of prudence or security. and, depending on the circumstances, non-compliance could constitute a fault of negligence and therefore lead to the wrongful conduct being punishable.
To prevent, as far as possible, prosecution on any of these grounds, businesses have to implement at least all national guidelines towards staff, business partners and public.
An employer must be vigilant, as the French Labour Code requires preventing biological risks in the workplace, which can be the source of infectious or allergic risks. The criminal liability of the company or its representatives may therefore be incurred, if it is shown that the employer has violated a "particular duty of care or safety imposed by law or regulation". In order to slow down the spread of the virus, general provisions, which apply to all businesses and individuals, envisaging "measures of hygiene and social distancing, known as ’barriers’, defined at the national level, [which] must be observed in all places and in all circumstances" (Decree No. 2020-293, art. 2).
The Labour Ministry published notes to assist employees and employers in the implementation of protective measures against COVID-19 in the workplace.
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