Covid-19: requisition regime for respiratory masks

By decree No. 2020-247 of 13 March 2020, which was abrogated and replaced by decree No. 2020-293 of 23 March 2020 published in the Official journal on 24 March (articles 12 and 13), the Prime Minister ordered the requisition of stocks until 31 May 2020:

- of respiratory protection masks of types FFP2, FFP3, N95, N99, N100, P95, P99, P100, R95, R99, R100 held by any legal person governed by public or private law; and

- spray masks complying with standard EN 14683 held by undertakings that manufacture or distribute them,

- this being specified that masks produced between the publication of the above-mentioned decrees and the day when the health state of emergency ceases will be requisitioned to the same end until that day.

In doing so, these successive decrees broaden the scope of the requisition measure, which concerned only FFP2 respiratory masks at the stage of the first decree (decree No. 2020-190 of 3 March 2020).

The implementation of such a requisition raises a number of questions.

Legal framework for health requisitioning

Created by Law No. 2004-806 of 9 August 2004 on public health policy and now referred to in Articles L.3131-8 and L.3131-9 of the French Public Health Code, the necessary requisitions of all goods and services may be decided by the local State representative (préfet), on the proposal of the Director General of the regional health agency, if it is justified by the influx of patients or victims or the health situation (French Public Health Code, Art. L.3131-8). This measure may be ordered by the Prime Minister, as is the case here, whenthe nature of the health situation or the scale of the influx of patients or victims justifies it (French Public Health Code, Art. L.3131-9).

The emergency Law n° 2020-290 of 23 March 2020 aimed at dealing with the Covid-19 epidemic also contains provisions on this subject, amending Title III of Book I of Part III of the French Public Health Code, whose title will from now on be "Serious threats and health crises". The aim of this Law is, on the one hand, to supplement the existing provisions of articles L.3131-1 and following (contained in Chapter I: "Health threats") and, on the other hand, following these provisions, to create a new Chapter I bis entitled "health state of emergency" (cf. Title I of the Law of 23 March 2020, relating to the health state of emergency).

The masks that are subject to the requisition may not be used, including when they are essential to the production of goods by an undertaking, nor may they be disposed of or exported.

Not complying with these measures is punishable by six-month imprisonment and a fine up to € 10,000, according to the provisions of Article L.3136-1 of the French Public Health Code.

The provisions of the French Public Health Code do not, however, provide any details as to the practical arrangements for implementing these requisitions.

In comparison, the provisions of the French Defence Code are more precise. Its Articles L.2213-1 and following and R.2213-1 and following apply to the requisitioning of goods and services to meet the country's needs in the cases provided for by law.

In particular, Article R.2213-4 of the French Defence Code refers to a requisition order, which must include the nature, quantum or duration of the service, the designation of the service provider, the date and place of the requisition. It should be noted that the decree of 13 March 2020 does not contain any details relating to every single of these elements, which may raise questions about the practicalities for implementing this measure for the undertakings concerned.

Moreover, as Article L.3131-8 of the French Public Health Code was previously formulated, there was room for doubt as to the compensation conditions applicable to the health requisition. The emergency Law aimed at dealing with the Covid-19 epidemic removes the uncertainty by inserting a sentence that into Article L.3131-8 of the French Public Health Code: the compensation provided for in Article R.2234-1 of the French Defence Code will apply to requisitions in health matters. Consequently, the person subject to a requisition for health reasons will be able to benefit from compensation, limited to the effective loss, i.e. the material, direct and certain loss, that the requisition imposes on them – which excludes any net benefit or profit.

What about imported masks?

In its initial wording, the decree of 13 March 2020 had a broad scope of implementation that covered masks held by various undertakings whose activity, although not related to the medical sector, consists in the manufacture of products requiring the use of respiratory protection masks as protection equipment for employees. It seems that the employees of many undertakings had announced their intention to exercise their right of withdrawal if they were unable to benefit from these masks, which may have led the French Government to limit the scope of implementation of the decree dated 13 March.

Following an amendment made initially by decree No. 2020-281 of 20 March 2020 and repeated in the decree dated 23 March, it is now specified that the requisition is only applicable to stocks of masks that are already present on the national territory and to masks produced on the national territory.

In principle, stocks imported later than 21 March 2020 – the date on which the decree of 20 March 2020 was published in the Official Journal, since it is immediately enforceable – are consequently not covered by the mask requisition. Undertakings can therefore escape requisitioning for masks they would bring from abroad, provided of course that they identify foreign suppliers capable of providing them with masks in the current context.

However, by exception, stocks of masks imported above a threshold of five million units per quarter per legal entity may be subject to total or partial requisition by order of the French Minister of Health. In such a case, silence kept by the said Minister more than 72 hours after receipt of an import request sent by the relevant legal entity or the importer will prevent the requisition.

What can you do in practice to find out the impact of the decree of 23 March 2020 for your undertaking?

In practice, it seems advisable to spontaneously contact the regional health agency and/or the local State representative (préfet) having authority on the location of your undertaking in order to agree with the authorities on the quantity of masks to be requisitioned. The quantity determined should make it possible to meet the country's needs while maintaining, as much as possible, the economic activity of the undertaking.