Containment and closure of shops: the mayors’ sling

In the aftermath of the designation, by the government, of businesses authorized to remain open within the framework of confinement, misunderstandings, protests, and demonstrations of opposition multiply among some mayors.

“Anger roars”

Many do not understand that downtown non-food businesses must close, while shopping areas that remain open do not necessarily sell essential products.

A meeting between the associations of elected officials and several members of the government took place this Friday afternoon. “Anger is rumbling in the departments over the opening of downtown businesses,” reports Olivier Richefou, the president (LR) of Mayenne. For him, “we must leave room for maneuver to the prefects: we respect barrier gestures even better in a small business than in supermarkets. “

At the end of the Friday afternoon, theAMF is also stepped up to the plate, in a press release. “The criteria having led to distinguish the shops of first necessity, mentioned by the Prime Minister, and the others, are obviously difficult to justify with regard to the application which is made of them concretely”, begins the association, before to indicate that “François Baroin and André Laignel ask the government to quickly review the definition of essential trade and to broaden it, since health security conditions make it possible to preserve the health of traders, their employees and their clients “.

For his part, Philippe Laurent, the president of Center-Ville en Mouvement ⁽¹⁾, Mayor of Sceaux and Secretary General of the AMF, calls for equal treatment between independent shops and supermarkets. “To avoid permanently ruining these efforts, and still have a chance to keep our city centers alive, if we are to prohibit all non-food traders from opening, we must also clearly prohibit mass distribution from selling everything. other product than those of first necessity, this in order to be perfectly fair ”, he asked the government in a forum. A position also shared by Villes de France.

These protests are in addition to many arrests (especially on Twitter) so that bookstores can open, while certain cultural hypermarkets of the Fnac type can be opened.

The mayor of Migennes (7000 inhabitants, Yonne), François Boucher (LR), signed a decree on October 29, authorizing non-food traders in the city center to remain open “until equal treatment be restored ”. He is indignant that the “non-food” and “non-essential” departments of supermarkets and hypermarkets are not forced to close, creating, according to him, an inequality of treatment, and an unfair practice.

According to LCI, the Yonne prefecture has already expressed its opposition to the decree, François Boucher saying he is ready to go before the administrative judge. That of Saône-et-Loire has announced seizing the administrative court, recalling that these provisions are in contradiction with the decree of October 30 establishing the period of confinement.

The same decree was signed by Justine Guyot, mayor (PS) of Decize (5,600 inhabitants, Nièvre). She bases her decision on the article L2212-2 of the CGCT, which provides that “The purpose of the municipal police is to ensure good order, public safety, security and sanitation”, and in particular, in its 5 °: “The care to prevent, by suitable precautions, and to put an end to epidemic or contagious diseases and epizootics by distributing the necessary aid ”.

In Chalon sur Saône (45,000 inhabitants, Saône-et-Loire), Gilles Platret, the mayor (LR), invokes the same article to make the same decision. Its decree adds, however, that the closure of downtown businesses would cause an influx into shopping centers incompatible with health measures.

Same position for the mayor of Brive, which has nearly 46,000 inhabitants. Frédéric Soulier (LR) posted his decree at the start of the afternoon on Facebook.
In Aubusson (3300 inhab. Creuse), the mayor, Michel Moine (PS), expressed his opposition, and his incomprehension on Facebook, saying he was ulcerated. “I’m waiting for someone to show me that they [les commerces de proximité, ndlr] could have been the source of contamination, ”he asserts, in the message accompanying the decree.

His decree, dated October 30, uses the same terms as that of his colleagues.

In Vendée, it is West France which pays off an identical decision by Véronique Besse (ex-Modem), the mayor of Les Herbiers (16,000 inhabitants) “The State tells us to support local shops but obliges them to close. I don’t understand, that’s why I took this order, ”she explains.

In Pussay (Essonne), the mayor Grégory Courtas took up the case for the three hairdressing salons through a decree which should allow their reopening. ” It is absurd to close hairdressing salons, especially as in Pussay the three salons in the town have no employees and therefore there is only the hairdresser and the customer present at the same time, while we allow the opening of supermarkets where several hundred people go at the same time », He underlines to our colleagues from Republican of Essonne.

From hour to hour, the movement spreads. The municipalities of Barneville-Carteret, Anet, Fresnay-sur-Sarthe, Brive, Malemort, Yerres have also taken the same type of decree. And the list is not exhaustive.

Parliamentarians in support

The elected officials received the support of several parliamentarians. In a letter addressed to Prime Minister Jean Castex, Friday, October 30, deputies Stéphane Travert, Jean-Claude Leclabart, Eric Girardin, Bruno Questel, Jean-Jacques Bridey (LREM), Thierry Benoit and Sophie Auconie (UDI and Independents), ask quite simply a reopening of these businesses, “in strict compliance with barrier gestures and distancing measures” in order to avoid this distortion of competition.

At the very least, they are proposing “a contribution from the players in mass distribution and digital platforms so that they can supplement the solidarity fund for the sectors most affected”, the situation calling for “measures of equity and solidarity national ”.

An initiative supported and taken up on Twitter by several other members of the majority, such as the member of Indre, François Jolivet, or that of Nièvre, Perrine Goulet.

The UDI deputy for Mayenne Yannick Favennec for his part wrote to the Minister of the Economy, Bruno Lemaire. To preserve “traders, essential to the life and attractiveness of the territories”, he wants measures to be taken to “prohibit supermarkets from selling any non-essential product”.

What about the legality of these decisions?

If nothing guarantees the legality of these decrees, those taken when leaving confinement imposing in particular the mask had been rebutted by the Council of State. In an analysis devoted to the “Ville de Sceaux” judgment, several months ago, lawyer Yvon Goutal noted: “The use by the mayor of his general police power to enact measures to combat this epidemic is subject to the double condition that they are required by overriding reasons specific to the municipality and that they are not liable to compromise the consistency and effectiveness of the measures taken by the State within the framework of its special police powers . ” In addition, “the local measure must strengthen, and not lighten, the national police measure”.

An analysis shared by Nicolas Hervieu on Twitter,

A ceux qui s'interrogent sur la légalité (douteuse) de ces arrêtés municipaux : Le @Conseil_Etat a jugé en avril dernier que les pouvoirs du maire sont très réduits durant l'état d'urgence sanitaire.

Surtout s'il s'agit de contredire une mesure étatique (https://t.co/Fo6ua3JJhC) https://t.co/WKCvBW4JPZ pic.twitter.com/LAepV0xPUA

— Nicolas Hervieu (@N_Hervieu) October 30, 2020

“The Council of State ruled last April that the powers of the mayor are very reduced during the state of health emergency”. Prefectures have requested the suspension of the decrees, but mayors have announced that they will take the case to administrative courts. To be continued.

Support from Carrefour

Full of opportunism, the boss of Carrefour, Alexandre Bompard, former boss of the FNAC, offers services to booksellers. Rather than asking for the opening of city-center bookstores, the head of mass distribution announces that his brand “provides independent booksellers with sales areas in its hypermarkets.”

But according to our colleague Guillaume Daret, citing the entourage of the Minister of the Economy, the case would already be resolved, the government prohibiting Supermarkets and Fnac from opening their book shelves.