The October 2011 national "flu pandemic" prevention and control plan, issued by the Prime Minister, specified that "vital activities and essential services that cannot be interrupted [are]: defence, health, food, electronic communications, energy [...]".
Electricity and gas may not be treated the same way. If electricity is a "good of basic necessity", under Article L. 121-1 of the Energy Code, however, "gas, for which other energy sources are substitutable, does not constitute a good of basic necessity", according to the Conseil d'Etat (CE, Ass., 19 July 2017, req. n°370321).
In the event of a COVID-19 epidemic, the public authorities could be involved in two scenarii that will be analysed successively: on the one hand, maintaining production in order to guarantee supply (1.), and on the other hand, stopping production in the name of personal safety (2.).
1. Maintaining production in order to guarantee supply
One of the objectives of energy policy is to "ensure the security of supply" (Article L. 100-1 of the Energy Code). With regard to electricity, the code specifies that "the purpose of the public electricity service is to guarantee, in the general interest, the supply of electricity throughout the national territory" (Article L. 121-1 of the same code). The preservation of energy supply must withstand any crisis effect.
Faced with energy shortages, the Government could first "subject energy resources to control and distribution, in whole or in part". The purpose of such a measure, limited to a specific time period, would be "to remedy an energy shortage, including a localised one" (Article L. 143-1 of the Energy Code).
Precautionary measures "in the event of a serious and immediate attack on the security and safety" of the networks could also be ordered by the Minister in charge of energy (Article L. 143-5 of the Energy Code), based on a possible proposal from the Commission de Régulation de l’Energie (Article R. 143-1 of the same Code).
For his part, the prefect could requisition staff in order to maintain the production facilities in working order (Article L. 2215-1 of the General Code for Local Authorities). This provision had notably been used during a strike (see CE, 27 October 2010, Fédération nationale des industries chimiques, req. No. 343966). Thus, prefect could requisition employees to ensure the continuity of supply, particularly if the production facilities are under the threat of being shut down.
In addition, the “Conseil d'Etat” has recognised, in an Assembly ruling, the specific power of company managers, invested with a public service mission and responsible for the proper functioning of a public service, to require (in this case, in the event of a strike) the presence of employees to enable them to carry out their public service missions (in this case, the production and distribution of energy) (see CE, 12 April 2013, Fédération Force Ouvrière Énergie et Mines, req. No. 329570).
Moreover, specific measures, planned for gas and oil, also have to be enhanced. A national plan was adopted for gas by an order of 28 November 2013 regarding the adoption of the gas emergency plan. The Minister in charge of energy, in response to shortcomings on the gas system, could implement the aforementioned plan. As for oil, the government could "regulate or suspend the import or export of crude oil or petroleum products" (Article L. 143-7 of the Energy Code).
However, these measures seem to concern war situations more than pandemic situations.
Thus, in the event of a COVID-19 epidemic , the public authorities have at their disposal a complex set of rules aiming at ensuring the continuity of energy production.
2. Interruption of production in the name of personal safety
Nonetheless, the principle of maintaining energy production could be defeated if the public authorities were to take action against the spread of COVID-19. Several provisions are indeed embedded in the French Public Health Code to implement the World health organization (WHO) International Health Regulations of 2005.
Thus, the Minister in charge of health could take any measure "proportionate to the risks and appropriate to the circumstances of time and place to prevent and limit the consequences of possible threats to the health of the population" (Article L. 3131-1 of the Public Health Code). To that extent, the prefect could be empowered by the minister to take measures, specifically individual ones, provided that he informs the public prosecutor priorly. This provision has been very recently implemented in the case of COVID-19 by a ministerial order dated of 30 January 2020 relating to the situation of persons having stayed in an area affected by the 2019-nCov virus epidemic.
In the event one or more employees of a plant are quarantined, energy production could be directly or indirectly impacted. Indeed, the Minister in charge of energy could take temporary measures such as granting or withdrawing authorisations of electricity production (i) "in the event of a serious crisis on the energy market", (ii) "a threat to the security or safety of electrical networks and installations", or (iii) "a risk to the safety of individuals" (Article L. 143-4 of the Energy Code). These measures cannot give right to compensation. Therefore, there are serious consequences for energy players.
Finally, regarding gas, the granting or withdrawing of gas authorisations could be decided by the Minister for Energy "in the event of a threat to the country's security of natural gas supply" (Article L. 143-6 of the Energy Code). Pursuant to the gas emergency plan, as defined by the aforementioned order dated of 28 November 2013, load-shedding can be decided, as a measure of "last resort".
* * *
An outbreak of COVID-19 and the unprecedented nature of the situation created by such a health crisis may lead to government decisions. However, these decisions would not be unquestionable nor unlimited.
Indeed, producers affected could challenge the proportionality of these decisions before the administrative judge. Their content may not exceed what is necessary to achieve the pursued goals.
♦ ♦ ♦
Gide's Public Law & Enironment practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.
This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.
>> Click here to read the legal updates of Gide's multidisciplinary taskforce set up to answer all your legal issues relating to Covid-19.