Real-time interception of data during France’s state of emergency

The Constitutional Council declared provisions of the French Emergency Act unconstitutional. Data Rights members participated in the case.

Details of the case are only available in English & French. See how to participate to translations

Repeal request

There is no procedural avenue in France that allows a citizen to appeal directly to the Constitutional Council if a law contrary to the Constitution has been promulgated. The steps followed in this case are therefore:\

1. Asking the government to repeal a regulatory text related to the law contrary to the Constitution (in our case, a decree implementing the Intelligence Law, see example below);
2. Await for a negative response or, in the absence of a response, await for the end of the legal period allowing us to deem that the absence of a response constituting an implicit refusal decision.

The government’s refusal to repeal a regulatory provision may be the subject of an appeal for “excess of power” before the Council of State.

Leter requesting the repeal pdf

Cases N^ers: QPC 2017-648, 405792

We worked with non-profit Internet service providers French Data Network, the FDN Federation and the Quadrature du Net organisation, togehter with the Spinosi & Sureau law firm.

Filing of the case before the French Council of State

The sole purpose of the filing of a case before the Council of State was to refer the matter to the Constitutional Council via the priority preliminary ruling request of constitutionality (QPC) procedure.

Application instituting proceedings pdf

Complementary memorandum doc

Priority preliminary ruling request of constitutionality (QPC) docx

Memorandum answering the Government's defence pdf

Transmission to the Constitutional Council

The French Council of State consideres there is a doubt on constitutionality, suspends proceedings and transmits the question to the Constitutional Council.

First observations pdf

Seconde observations pdf

Partial repeal of the law prolongating the French state of emergency measures

The Constitutional Council declares part of the article contrary to the Declaration of Human and Civic Rights of 1789.

The Council noted that the law extending the state of emergency measures “*made it possible for a large number of people to be the subject of this [real-time interception] technique, without their link to the threat necessarily being close*” without providing for any substantial limitation such as a maximum number of authorisations.

However, without justifying it, the Constitutional Council postponed the effects of its ruling, deciding that the immediate repeal of this recent law’s provision would entail “manifestly excessive consequences”.

Entry into force of the repeal.