The French Conseil d’Etat, supreme administrative Court in the French legal order, examined the conformity of the French rules on the retention of metadata with European law. The French judges renounced to cross swords with the European Court of justice while preserving their national system of data retention.
For almost fifteen years, the French law has required telecommunications operators to retain the metadata of the entire population for one year for intelligence and criminal investigation purposes. These data includes three categories of information: who talks to whom, when, and from where (Viepublique, 2021).
Several associations fighting for personal data protection contested the legality of the French regulation, obliging the phone service providers to conserve such data to organize their processing for the purposes of criminal investigations, in front of the French Conseil d’Etat ( La Quadrature du net, 2020). The French administrative Court turned to the European Court of justice, by way of a primary ruling in 2018, inviting European judges to clarify the scope of European rules on this matter (Press release of the Conseil d'Etat, 2021). These ones refer to the directive 2002/58, known as "privacy and electronic communications directive" and the General Data Protection Regulation.
The European Court of Luxembourg, in a case law published on October 6th 2020 (ECJ October 6 2020 n° C-511/18), made its position clear on whether such practices were compatible with the European rules. Following the Courts judgement, the generalized and undifferentiated conservation of metadata can only be imposed in case of serious threat for national security purposes. Moreover, access to such data by intelligence services must be subject to prior control by an independent authority and to control by a judge when the stored data is used (Press release of the Conseil d'Etat, 2021). This case law of last October is therefore in line with previous ones (ECJ April 8 2014 n°C‑293/12 and C‑594/12) that strongly limits the possibility of imposing a general and undifferentiated retention of such data. However, among the few derogations offered by the European Court for the continuation of this practice is the "threat to national security", constituting an important exception, leading the applicants to speak of a “victorious defeat” ( La Quadrature du net, 2020).
It is precisely this gap that the French Conseil d’Etat chose to use to the French government’s advantage. The French administrative judges of the Palais Royal, in a case law of April 21 2021, considered that, in the light of the European Court’s decision of October 2020, the generalized retention imposed on operators by the French law is justified by a threat to national security, in accordance with the derogations authorized by the European Court (Viepublique, 2021). France has indeed been confronted with terrorism since 2015, but also with the risk of espionage and foreign interference as well as serious threats to public peace. The French judges of the Palais Royal only enjoined the government to provide for periodic review of the existence of a real and present or foreseeable threat (De Montecler, 2021).
In definitive, the French system of generalized retention of metadata shook on its foundations after the ruling of the Court of Justice of the European Union, but the latest decision of the Conseil d’Etat on April 21, through a skillful interpretation of the CJEU ruling, preserves its essence.
This French caselaw, providing a broad interpretation of the European Court’s position, could be seen as an “accommodating interpretation” of the European rules, circumventing the prohibition laid down by the judges of Luxembourg. It must however be noted that a fine balance has been struck between the requirements of European law and national imperatives.
Indeed, if the supreme court of the French administrative order was able to reaffirm the existence of a "safeguard clause" allowing the Constitution to take precedence over EU law, it did not make use of it (De Montecler, 2021). The administrative judges refused, as the Government had urged him to do, to carry out an ultra vires review (Press release of the Conseil d'Etat, 2021). However, it recalled, with unprecedented force, that the French Constitution remains the supreme norm in national law (Conseil d'Etat April 21 2021, 2021) and achieved a fine balance between European law and the effectiveness of the fight against terrorism. Although this ruling may seem like a warning, it must be noted that the judges of the Palais-Royal have in fact refused to cross swords with the Union. The Conseil d'Etat considered that in the event of disagreement between the Luxembourg and national judges, "the war of the judges is not the solution", but rather dialogue in order to allow the emergence of a new balance (De Montecler, 2021).
Bibliography
La Quadrature du net. (2020, Octobre 6). La Quadrature du net. Récupéré sur https://www.laquadrature.net/2020/10/06/surveillance-une-defaite-victorieuse/
Conseil d'Etat April 21 2021, n. §. (2021, April 21).
De Montecler, M.-C. (2021, April 26). Conservation des données, la guerre des juges n’aura pas lieu.Récupéré sur Dallozactualités.fr: https://www.dalloz-actualite.fr/flash/conservation-des-donnees-guerre-des-juges-n-aura-pas-lieu.
ECJ April 8 2014 n°C‑293/12 and C‑594/12, ". r. (s.d.).
ECJ October 6 2020 n° C-511/18, «. L. (s.d.).
Press release of the Conseil d'Etat. (2021, April 21). Récupéré sur Conseildetat.fr: https://www.conseil-etat.fr/actualites/actualites/donnees-de-connexion-le-conseil-d-etat-concilie-le-respect-du-droit-de-l-union-europeenne-et-l-efficacite-de-la-lutte-contre-le-terrorisme-et-la
Viepublique. (2021, April 28). viepublique.fr. Récupéré sur https://www.vie-publique.fr/en-bref/279652-conservation-des-donnees-internet-conforme-au-droit-de-lue
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