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Criminal liability of employers : Yes to the obligation of means, not the obligation of result

It is time to déconfiner gradually. Our economy urgently needs. But if, in spite of all sanitary precautions, an employee of your team falls sick of the Covid, whether you are elected or private employer, your criminal liability may be incurred even as you do not have the right to offer your employees the benefit of the tests carried out by laboratories on the grounds of protecting health data. This situation is preposterous. There is an urgent need to act to ensure that school principals, the mayors of small and large communes, leaders of TPE may not be stunned in the face of the déconfinement. So yes to the obligation of means, but not the obligation of result.

read also : The difficult consent to the déconfinement

elected officials are mounted to the niche in the Senate to require safeguards on the criminal liability of mayors, government officials, and employers in the framework of the déconfinement. Indeed, there are real risks for citizens or employees to turn against their mayor or their employer because they would have been infected during the phase of déconfinement, even as they have complied with all rules and regulations of safety.

The law "Fauchon" in the July 10, 2000, "seeking to clarify the definition of the offences non intentional" has certainly tried to reduce to the elect the field of the cases in which could be found the " negligence ". It has added a subparagraph 4 of article 121-3 of the penal Code provides that persons who have not directly caused the damage but who created or helped to create the situation without taking steps to avoid it, are criminally liable if they have violated knowingly a measure of safety and caution, or committed a characterized fault. This writing, however, has not fully secured, even if the current drafting imposes on judges a real assessment of the negligence.

read also : can An employer require its employees to wear a mask in a company ?

For private employers, criminal responsibility is today exposed. That said, in the field of labour law, developments in case law are favourable to them because the security obligation (of result) is now virtually dead (in cases of harassment), at the end of the case-law Air France to the Court of cassation (25 November 2015), and confirmed definitively in plenary Meeting by the judgment n°643 of April 5, 2019, EDF, saying that " not contrary to the legal obligation requiring him to take the necessary measures to ensure the safety and protect the physical and mental health of workers the employer that justifies having taken all the measures provided for in articles L. 4121-1 and L. 4121-2 of the labour Code. "

A brake to the recovery of activity

in the Face of these two difficulties which will inevitably face the déconfinement, since the employers and the elected officials will curb to get their teams on-site, extending de facto the cost of partial unemployment and the cost of the special permissions of absence, the government was strangely closed the door to the debate, holding that the provisions securing the mayors were sufficiently clear and effective. Edouard Philippe was then seemed to be open to an amendment to the elected local representatives, but an amendment of the removal of the government was tabled to remove one of the senators raising their criminal responsibility in case of contamination at Covid. Amendment deletion which has collected Tuesday evening zero votes. While he was a public voting (348 votes to 0). Including in the ranks of the presidential majority, a first. While the amendment of senators was adopted.

The government's arguments are weak. It is merely to point out that the changes made by the Senate would no longer be able to prosecute the criminal offence characterized during a state of public health emergency, resulting in a difference in treatment infringes the principle of equality before the criminal law... of Course, but it is necessary to know if we share a collective interest to ensure that all employers in France, public or private, are not stunned by their criminal responsibility.

read also : Health at work: what should the employer do to protect employees?

Fondation iFRAP argues that the extension provided by the Senate is fair and of a nature to secure the situation of public and private employers throughout the state of public health emergency. And this more especially as it highlights the risks involved in the event express where employers are alleged to have acted intentionally, recklessly or negligence or violation clearly deliberate a measure of administrative police, or a particular obligation of prudence or security... This does not constitute a tax exemption scheme for general and indistinct, as the government claims. You eventually ask for the blocks to this point the government. Some unions, perhaps ? Hope that the national Assembly, the measure will be adopted. There goes the economic future of our country.


The Macronomètre, the observatory of reforms in the government, is a site of the Fondation iFRAP in partnership with Le Figaro. It is a tool dedicated to the assessment of the quinquennium of Emmanuel Macron: econometric evaluation in relation to its electoral programme and announcements of his government. With The Macronomètre, the action of the government is to be marked out of 10 each Wednesday prior to the council of ministers and becomes readable in a single glance. The Macronomètre allows each to make a notice on the holding or not of the promises of the president of the Republic and on the effectiveness of the reforms of the government.

The editorial team conseilleDr Andrea Ammon: "the success of The déconfinement depends on the tests and tracing"Déconfinement: companies responding to the puzzle of the health of the recovery of the travailSujetLe Macronomètre12 commentairesHGW27le 12/05/2020 at 08:56

What about you it about the tests abroad, for the tests in business ?

Vincent NETTERle 08/05/2020 17:04

The purpose of Philippe remains the extension's eternal confinement, and, if this is not possible, the maintenance of a situation of obstacles to freedomés and the economy like it a lot.

mistophorele 07/05/2020 at 10:47 am

3 out of 10 for a "work" which is worth 0 out of 10 , this is super well-paid .

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