Decision no. 2017-637 QPC of 16 June 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 31 March 2017 by the Conseil d'État (Decision no. 406664 of that same date), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for the Association nationale des supporters [French national association of sports supporters] by Mr. Pierre Barthélemy, Esq., attorney admitted to the Paris bar. It was registered by the General Secretariat of the Constitutional Council under number 2017-637 QPC. It relates to the compliance with the rights and freedoms that the Constitution guarantees of the second and third Subparagraphs of Article L. 332-1 of the Sport Code, as written resulting from Law number 2016-564 of 10 May 2016 reinforcing the dialogue with supporters and the fight against hooliganism.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
• the Sport Code;
• Law no. 78-17 of 6 January 1978 on information technology, data files and personal freedoms;
• Law number 2016-564 of 10 May 2016 reinforcing the dialogue with supporters and the fight against hooliganism;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;

In light of the following items:

• the observations filed on behalf of the applicant association by Mr. Barthélemy, Esq., registered on 24 April and 9 May 2017;

• the observations of the Prime Minister, registered on 24 April 2017;

• the documents produced and appended to the case file;

Having heard Mr. Barthélemy, Esq. on behalf of the applicant association and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 6 June 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. According to the first Subparagraph of Article L. 332-1 of the Sport Code, in its drafting resulting in the Law of 10 May 2016 mentioned hereinabove, the organisers of for-profit sporting events may be held to provide a service. Its second and third Subparagraphs state:
   “In order to contribute to the safety of sporting events, the organisers of these events may refuse access or cancel the issuance of access cards to these events or refuse access to persons who have not complied or do not comply with the general terms and conditions of sale or internal regulations relating to security at these events.
   “For this purpose, the organisers may establish an automatic database of personal data relating to the non-compliances established in the penultimate Subparagraph of this Article, under the conditions set by Decree at the Conseil d'État based on the opinion of and notice published by the Commission nationale de l'informatique et des libertés [the French National Commission for Information Technology and Individual Freedom]”.

2. The applicant association claims that the provisions of the second Subparagraph of Article L. 332-1 confer policing powers on a private individual, in violation of Article 12 of the Declaration of the Rights of Man and the Citizen of 1789. These provisions also infringe on the freedom to come and go, on the principle that offences and penalties must be defined by law, on the presumption of innocence, on the rights of defence, and are undermined by negative incompetence [the legislature erroneously undermining and delegating its own powers to another]. Furthermore, the applicant association claims that the provisions of the third Subparagraph of Article L. 332-1 go against the right of respect for private life.

• On the second Subparagraph of article l. 332-1 of Sport Code:

3. In order to contribute to the safety of for-profit sporting events, the second Subparagraph of Article L. 322-1 of the Sport Code allows the organisers of these events to refuse or cancel the issuance of access cards to these events or refuse access to persons who have not complied or do not comply with the general terms and conditions of sale or internal regulations relating to security at these events.

4. Firstly, according to Article 12 of the 1789 Declaration:
   "Guaranteeing the rights of Man and the Citizen requires law enforcement: therefore this enforcement is enacted for the benefit of all, and not for the personal benefit of those to whom it is entrusted." It follows from this that it is prohibited to delegate to private individuals the competence of the administrative policing powers inherent in the exercising of “law enforcement” necessary to guarantee these rights.

5. By granting the organisers of for-profit sporting events the power to refuse access to these events, the legislature did not delegate such competence. Consequently, the claim of infringement on Article 12 of the Declaration of 1789 should be set aside.

6. Secondly, prohibiting access to a sports complex holding a for-profit sporting event, the entry thereto being subject to the presentation of an access card, does not infringe on the freedom to come and go.

7. Thirdly, with the objective of guaranteeing security at for-profit sporting events, the fact that access is denied to an individual who did not comply with the contractual obligations relating to security does not constitute a punitive sanction, or actions implemented following legal proceedings. Therefore, the claims of infringement on the principle that offences and penalties must be defined by law, on the presumption of innocence, and the rights of the defence are inapplicable.

8. Lastly, it follows from parliamentary work that the organisers of sporting events carrying out such refusals must, under the law, ensure that these measures are proportional in regard to, specifically, the time from when the non-compliance occurred and the risk of them being repeated. The contested provisions, which are not undermined by negative incompetence, do not infringe on any other right or freedom that the Constitution guarantees.

9. It follows from the foregoing that the provisions of the second Subparagraph of Article L. 332-1 of the Sport Code must be ruled constitutional.

• On the third Subparagraph of Article l. 332-1 of the Sport Code:

10. The freedom proclaimed by Article 2 of the 1789 Declaration includes the right to respect for private life. Owing to this, collecting, recording, keeping, consulting and communicating information of a personal nature must be justified by general interest and implemented in an adequate and proportional manner.

11. The third Subparagraph of Article L. 332-1 of the Sport Code allows organisers of sporting events to establish an automatic database identifying individuals who have not complied or do not comply with the general terms and conditions of sale or internal regulations relating to security at these events.

12. By allowing such a file to be established, the legislature sought to improve the security of for-profit sporting events, by allowing their organisers to identify individuals that may compromise the security thereof. Therefore, it sought the objective of public interest.

13. It follows from adopted texts and parliamentary debate that, by these provisions, the legislature did not seek to derogate from the guarantees granted by the Law of 6 January 1978 mentioned hereinabove, specifically regarding the powers of the Commission nationale de l'informatique et des libertés, relating to the data in question.

14. The file described under the contested provisions may only be established by the organisers of for-profit sporting events. It only identifies individuals who have not complied or do not comply with the general terms and conditions of sale or internal regulations relating to security at these events. It may only be used for the purposes of identifying said individuals in order to refuse them access to for-profit sporting events. It follows thereof that the databases described in the contested provisions shall be implemented in a manner that is adequate and proportional to the objective of public interest

15. Therefore, the provisions of the third Subparagraph of Article L. 332-1 of the Sport Code, which do not infringe on the right to respect for private life, or any other right or freedom guaranteed under the Constitution, must be ruled constitutional.

THE CONSTITUTIONAL COUNCIL RULES:
Article 1. - The second and third Subparagraphs of Article 332-1 of the Sport Code as written resulting in Law number 2016-564 of 10 May 2016 reinforcing the dialogue with supporters and the fight against hooliganism is constitutional.

Article 2. -This decision shall be published in the Journal official of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.

Deliberated by the Constitutional Council in its session of 15 June 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 16 June 2017.