Discretionary Power, Scientific Uncertainty and Right to Life in the Context of the COVID-19 Pandemic: Lessons Learnt from the Administrative Tribunal of Guadeloupe and the French Council of State

Abstract

Administrative Tribunal of Guadeloupe 28 March 2020, case n° 2000295 (Judge for interim relief); French Council of State 4 April 2020, cases n° 439904, 439905 (Judge for interim relief)Based on the precautionary principle and to protect the right to life under Article L. 521-2 of the French Code of Administrative Justice, the Administrative Tribunal of Guadeloupe (Judge for interim relief) ordered the Regional Health Agency of Guadeloupe and the University Hospital Centre of Guadeloupe to procure 200,000 COVID-19 screening tests corresponding to half of the population of Guadeloupe and to buy the doses necessary for the treatment of the COVID-19 epidemic with hydroxychloroquine and azithromycin for 20,000 patients. On appeal, the French Council of State, by disregarding the application of the precautionary principle and with controversial reasoning concerning the relationship between discretionary power and scientific uncertainty, annulled the decision of the Administrative Tribunal of Guadeloupe.