The Control of Administrative Inaction in the Context of the COVID-19 Health Emergency in France: an Inadequate Response from the Interim Relief Judge?

Abstract

Interim remedies before administrative courts are an essential tool for the protection of individuals' fundamental rights in the French legal system. The months of Covid-19 health crisis have given the French administrative courts the opportunity to develop their role when using the so-called 'fundamental rights interim remedy'. In this context, the use of the power of injunction in the context of the fundamental rights interim remedy is not limited to a purely technical dimension. It takes place in a political context and reflects the capacity of the administrative courts, and especially of the Council of State, to play the role of a counter-power vis-à-vis the executive power. This article examines the decisions of the Council of State adopted since 16 March 2020, following fundamental rights interim remedies whose purpose was to request an injunction. It analyses how the fundamental rights interim remedy can be a means of remedying administrative inaction and, on the basis of the analysis of the cases where the requests for interim injunctions have been rejected, it draws lessons on the role of the French administrative courts in the context of the health crisis.