Decision no. 2017-646/647 QPC of 21 July 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON two priority matters of constitutionality on 17 May 2017 by the Cour de Cassation (Commercial Division, Decisions nos. 919 and 920 of 16 May 2017), under the conditions set out in Article 61-1 of the Constitution. These questions were raised respectively on behalf of Mr. Alexis K. and Mr. Anthony G. by the firm Piwnica and Molinié, Attorneys at the Conseil d'Etat and the Cour de Cassation. They were registered by the General Secretariat of the Constitutional Council respectively under no. 2017-646 QPC and no. 2017-647 QPC. They relate to the compliance of the second sentence of the first Subparagraph of Article L. 621-10 of the Monetary and Financial Code with the rights and freedoms that the Constitution guarantees, in this Article's drafting resulting from Law number 2013-672 of 26 July 2013 on the separation and regulation of banking activities.

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 Monetary and Financial Code;
• the Post and Electronic Communications Code;
• the amending finances Law no. 2001-1276 of 28 December 2001;
• Law no. 2004-575 of 21 June 2004 on confidence in the digital economy;
• Law no. 2013-672 of 26 July 2013 on the separation and regulation of banking activities;
• Decision number 2001-457 DC of the Constitutional Council of 27 December 2001;
• 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 presented on behalf of the two applicants by the firm Piwnica and Molinié, registered on 8 and 23 June 2017;
• the observations presented on behalf of the Autorité des Marchés Financiers (AMF) [the French financial markets authority], the defendant, by the firm Ohl and Vexliard, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 8 and 23 June 2017;
• the observations of the Prime Minister, registered on 8 June 2017;
• the intervening observations presented on behalf of the associations French Data Network and Fédération FDN by Mr. Alexis Fitzjean O Cobhthaigh, Esq., Attorney admitted to the Paris bar, and on behalf of the association La Quadrature du Net, by Mr. Hugo Roy, Esq., Attorney admitted to the Paris bar, registered on 8 and 23 June 2017;
• the intervening observations on priority matters of constitutionality no. 2017-646 QPC presented on behalf of Mr. Lucien S. by Mr. Francis Teitgen and Mr. Frédéric Peltier, Esqs., Attorneys admitted to the Paris bar, registered on 7 June 2017.
• the documents produced and appended to the case file;

After having heard Mr. Loïc Henriot, Esq., Attorney admitted to the Paris bar on behalf of Mr. Alexis K., Mr. François Molinié, Esq., Attorney at the Conseil d'État and the Cour de Cassation on behalf of Mr. Anthony G., Mr. Claude Nicole Ohl, Esq. Attorney at the Conseil d'État and the Cour de Cassation on behalf of the AMF, Mr. Fitzjean O Cobhthaigh on behalf of the associations French Data Network and the Fédération FDN, Mr. Roy on behalf of the association La Quadrature du Net, Mr. Peltier on behalf of M. Lucien S., and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 4 July 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. It is appropriate to join the two priority matters of constitutionality in order to address them with a single decision.

2. Article L. 621-10 of the Monetary and Financial Code, in its drafting resulting from the Law of 26 July 2013, mentioned herein above, defines certain investigation and evaluation options for agents of the Autorité des Marchés Financiers (AMF). The second sentence of its first Subparagraph establishes:
   “Investigators may also be informed of data held and managed by telecommunication operators in the context of Article L. 34-1 of the Post and Electronic Communications Code and the providers mentioned in Sections 1 and 2 of Article 6 of the Law no. 2004-575 of 21 June 2004 on confidence in the digital economy, and obtain a copy of it”.

3. The applicant and intervening parties claim that the contested provisions infringe on the right to respect for private life, protected by Article 2 of the Declaration of the Rights of Man and the Citizen of 1789. According to them, the legislature has not established a procedure for communicating connection data to investigators of the AMF that sufficiently guarantees that a balance is struck between the right of respect for private life and the constitutional value of protecting public order and seeking out those who commit infractions.

• On its admissibility:

4. Pursuant to the provisions of the third Subparagraph of Article 23-2 and the third Subparagraph of Article 23-5 of the Ordinance of 7 November 1958 mentioned herein above, the Constitutional Council shall not decide on a priority matter of constitutionality regarding a provision already declared constitutional on the grounds and procedures of a decision of the Constitutional Council, except due to a change in circumstances.

5. The contested provisions result from Article 62 of the law of 28 December 2001 mentioned herein above. However, the Constitutional Council, which specifically examined this Article in Paragraph 4 to 9 of its Decision of 27 December 2001 mentioned herein above, did not declare it constitutional in the procedures of this Decision.

6. Thus, the priority matters of constitutionality are admissible.

• On the merits:

7. Pursuant to Article 34 of the Constitution, it is for the legislature to determine the rules concerning the fundamental guarantees granted to citizens to exercise public freedoms. It shall be for the legislature to ensure that a balance is struck, on the one hand, between the prevention of attacks on public order and to seek out perpetrators of infractions, necessary in order to safeguard the rights and principles of constitutional value, and on the other, the exercise of the rights and freedoms guaranteed under the Constitution. Included among these freedoms is the right to respect for private life and the secrecy of correspondence, protected by Articles 2 and 4 of the Declaration of 1789.

8. Under the contested provisions, the agents of the AMF are authorised to conduct investigations that they order so that they are informed of the connection data retained by telecommunication providers, those providing access to online public communications, or web hosts of such services. Paragraph VI of Article L. 34-1 of the Post and Electronic Communications Code establishes that connection data held by online communication providers “exclusively relates to the identification of the persons using the services provided by the operators, the technical characteristics of the communications ensured by the latter, and the location of the terminals”. This data “may in no way include the content of correspondence exchanged or the information consulted, in any way whatsoever, in the framework of this communication”. Pursuant to the first Subparagraph of Paragraph II of Article 6 of the Law of 21 June 2004 mentioned herein above, the access and hosting providers “shall hold and retain the data in a way that would allow the identification of the individual who contributed to creating the content or some of the content of the service being provided”.

9. The communication of connection data by nature infringes on the right to respect the private life of the person in question. If the legislature reserved for the authorised agents, and subject to the respect of professional secrecy, the power to obtain this data in the framework of an investigation, and did not confer upon them the power of enforcement, it did not include within the procedure established in the contested provisions any other guarantee. Under these conditions, the legislature did not include within the procedure established in the contested provisions proper guarantees to ensure an equal balance between, on the one hand, the right to respect for private life, and on the other, the prevention of attacks on public order and seeking out perpetrators of infractions.

10. Consequently, the second sentence of the first Subparagraph of Article L. 621-10 of the Monetary and Financial Code should be declared unconstitutional.

• On the Effects of the Ruling of Unconstitutionality:

11. According to the second Subparagraph of Article 62 of the Constitution:
    “A provision declared unconstitutional on the basis of Article 61-1 is repealed as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision may be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the Constitutional Council's Decision. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.

12. The Constitutional Council does not have general discretionary powers of the same nature that Parliament does. It cannot indicate the modifications that must be made in order to remedy the ascertained unconstitutionality. In this case, the immediate repeal of the contested provisions would bring about clearly excessive consequences, and therefore, it is best to delay the date of appeal to 31 December 2018.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The second sentence of the first Subparagraph of Article L. 621-10 of the Monetary and Financial Code in its drafting resulting from Law no. 2013-672 of 26 July 2013 on the separation and regulation of banking activities is unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in paragraph 12 of this decision.

Article 3. - This decision shall be published in the Journal officiel 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 20 July 2017, in attendance: Mr. Lionel JOSPIN, exercising the role of Chairman, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Ms. Corinne LUQUIENS, and Ms. Nicole MAESTRACCI

Made public on 21 July 2017.