Administrative Access to Metadata: French Council of State Flees EU Debate
Paris, 15 February 2016 — The French Council of State has released an eagerly awaited decision (fr) on the validity of administrative access to connection data. La Quadrature du Net, French Data Network and the FDN Federation have been calling into question the Military Programmation Law (LPM) and its application decree that enables the administration to access connection data without requiring any judicial control. By refusing to repeal the decree and to transmit the question to the European Court of Justice (ECJ) for a preliminary ruling, the Council of State avoids any judicial debate and isolates French vis-à-vis EU case law.
In this decision the French Council of State dodges pitifully and carefully to solve the central question that we were asking them, that is to say the compliance of French law regarding access to connection data with the ECJ's case law, as stated in the Digital Rights and the Schrems decisions in 2014 and 2015.
Since these rulings, all national jurisdictions of the EU who had to render decisions on the conformity of their laws or the access to connection data, have chosen to abrogate such laws or to refer to the ECJ. Only France, by this decision, refuses to conform itself to EU standards regarding privacy. In order to overcome this French dodge, we have decided to lodge a second action, more focused on the government's refusal, last spring, to consider our request to abrogate the provisions on generalised data retention.
This complaint is already pending before the Royal Palace. The Council of State will have to decide in the coming months whether to end this regime of mass surveillance of communications or to refer to the ECJ to do it in its place1.
In the meantime, following the controversial Surveillance Law, announcements of derogations to the Convention for the Protection of Human Rights and Fundamental Freedomsduring the state of emergency, and despite United Nations rapporteurs' and the Council of Europe'swarnings on the current threats to Human Rights in France, the decision of the Council of State brought France in a worrying isolationism vis-à-vis Europe and legal guarantees in favour of fundamental rights.
- 1. In this perspective, it is important to underline this decision's only bright side: the fact that, even indirectly, the Council of State recognises that EU Law and thus the European Charter of Fundamental Rights, does apply to French surveillance measures.