France’s Data Retention Laws and the 2015 Intelligence Act
Following the Court of Justice of the EU (CJEU) ruling, the case is now back to the French Council of State (or Conseil d’État).
Following the Digital Rights judgment of the CJEU, French Data Network initiates a legal action to enforce European case law in France, where the general retention of electronic communications data (often called meta data) exists since September 2001
Request for repeal
While Parliament debates the Intelligence Act which provides - among other things - for new techniques to process communications data, the first step in this case is to request the government for the repeal of the decrees organizing the general retention of data in France (R.10-13 of the French the Postal and Electronic Communications Code and Decree 2011-219 implementing the French Law on confidence in the digital economy (LCEN)).
The decrees dating back from 2006 and 2011, an action directed against them is no longer legally allowed. This repeal request therefore aimed to open a judicial remedy before the French Council of State (or Conseil d’État) for an action against the general retention of communication data (often referred to as metadata).
Promulgation of the Intelligence Law (law no 2015-912, later referred to as two laws thanks to our victory on international surveillance provisions), which provides for several implementing decrees which will be published in the following autumn and winter, opening the possibility of appeal before the French Council of State.
Introduction of appeals before the French Council of State
Filing of the request to start the proceedings before the French Council of State against the refusal to repeal the decrees organizing the general storage of communication data (metadata) by operators in France
Filing of five requests to the French Council of State against the implementing decrees of the Intelligence Law
Intervention from Privacy International and Center for Democracy and Technology
Cases Nos: 393099, 394922, 394924, 394925, 397844, 397851
With French Data Network, La Quadrature du Net, FFDN, Igwan.net, Privacy International and le Center for Democracy and Technology, together with the collaboration of the Spinosi & Sureau law firm.
Priority Preliminary ruling request on wireless surveillance before the French Constitutional Council
Filing of a Priority Preliminary ruling for the French Constitutional Council (QPC) due to the discovery of a vast legal loophole created in 1991. This loophole meanthad survived the wide ranging 2015 reform and stated that all communications via wireless means would not be granted any of the safeguards created by the 2015 reform. In practice, this meant that most of today’s communications (e.g. via wifi, rfid, blouetooth) remained easy to surveil with absolutely no proportionality legal safeguards from abuse. This filing was arguing before the French Constitutional Council that such a provision could simply not be deemed constitutional. We won the QPC - the vast loophole on wireless communications interception with no oversight is now history.
Procedural detail on QPCs: The QPC is a French Constitutional Law procedure allowing persons involved in a pending case to ask the Constitutional Council to assess the constitutionality of laws relating to the case at hand. Here the QPC was made possible as part of the pending case we had started on the Decrees of the Intelligence Law.
Repeal of article 24 of the Intelligence law and return to the French Council of State
The Court of Justice of the EU renders the Tele2/Watson ruling and upholds its Digital Rights Ireland one. The ruling confirms that French law does not comply with European law.
Filing of additional observations in the six different procedures opened before the Council of State.
Briefs and observations to the Council of State and the Court of Justice of the EU (2015-2019) [FR] dir (12 Mo)
Preliminary rulings to the Court of Justice of the EU
The French Council of State renders two rulings (1 & 2), by which it suspends its prodeedings and passes on EU law interpretation questions to the Court of Justice of the EU (CJEU), in Luxembourg.
The two preliminary rulings become C-511/18 et C-512/18 before the CJEU. We file written observations.
Hearings in Luxembourg
Briefs and observations to the Council of State and the Court of Justice of the EU (2015-2019) [FR] dir (12 Mo)
CJEU ruling and back to the French Council of State
The Court of Justice of the European Union highlighted the failings of surveillance laws in France, Belgium and the United Kingdom. The EU’s highest court is thus paving the way for structural reforms of European surveillance laws.
Back to the French Council of State: hearing and judgment
Hearing at the Council of State and reading of the opinion of the Public Rapporteur
The French Council of State will hold an “Assembly” hearing to finally judge in this case. At the hearing, Public Rapporteur Alexandre Lallet will read his opinion. We already know that he will conclude, against the Government, towards the annulment of the main challenged executive decrees (providing however 6 months of delay for the Government to adopt necessary acts). The opinion contains, however, worrying development to “save” the French law in spite of the October 2020 ruling of the EUCJ.
This opinion does not bind the Council of State for its judgment.
Final judgment by the Council of State
We will update this page on Wednesday or early Thursday. Stay tuned @DataRights_