Decision no. 2021-952 QPC of 3 December 2021

On 23 September 2021, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (criminal chamber, case no. 1230 of 21 September 2021). This application was submitted on behalf of Mr. Omar Y. by Sarah Bensaber and Pierre-Jean Gribouva, lawyers at the Douai bar. It was registered by the general secretariat of the Constitutional Council under no. 2021-952 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in Articles 77-1-1 and 77-1-2 of the Code of Criminal Procedure.

Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Code of Criminal Procedure;
• Act No. 2019-222 of 23 March 2019 on planning for 2018-2022 and for judicial system reform;
• Act No. 2020-1672 of 24 December 2020 relating to the European Public Prosecutor's Office, environmental justice, and specialised criminal justice;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
  Having regard to the following documents:
• the observations on behalf of the applicant by SCP Spinosi, lawyer at the Conseil d'État and at the Cour de Cassation, registered on 13 October 2021;
• the observations of the Prime Minister, registered on the same date;
• the second observations on behalf of the applicant by SCP Spinosi, registered on 28 October 2021;
• the additional documents produced and appended to the case files;
  After having heard Patrice Spinosi, lawyer at the Conseil d'État and the Cour de Cassation, on behalf of the applicant, and Antoine Pavageau, appointed by the Prime Minister, at the public hearing of 23 November 2021;
  And after having heard the rapporteur;
  THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Consequently, a referral to the Constitutional Council is made for Article 77-1-1 of the Code of Criminal Procedure in its formulation resulting from the aforementioned Act of 24 December 2020, and of Article 77-1-2 of the same code, in its formulation resulting from the aforementioned law of 23 March 2019.
2. Article 77-1-1 of the Code of Criminal Procedure, in its formulation resulting from the Act of 24 December 2020, stipulates:
   “The district prosecutor or, with their authorisation, the judicial police officer or agent may, by any means, requisition any person, private or public establishment or body or public administration likely to hold information relevant to the investigation, including information from a computer system or processing of nominative data, to provide them with this information, particularly in digital form, where appropriate in accordance with standards set by regulations, without being able to invoke the obligation of professional secrecy without legitimate reason. Where the requisitions concern persons mentioned in Articles 56-1 to 56-5, the information may only be handed over with their consent.
   “If the person fails to respond to the requisitions, the provisions of the second section of Article 60-1 shall apply. “The last section of Article 60-1 shall also apply. “The district prosecutor may, by means of general instructions issued pursuant to Article 39-3, authorise officers or agents of the judicial police, for categories of offences that they determine, to requisition any person, private or public establishment or body or any public administration to hand over to them information of interest to the investigation that is obtained from a video protection system. The district prosecutor shall be notified without delay of such requisitions. These general instructions shall have a duration not exceeding six months. They can be renewed.”
3. Article 77-1-2 of the same code, in its formulation resulting from the Act of 23 March 2019, stipulates:
   “Upon authorisation of the district prosecutor, the officer or agent of the judicial police may make the requisitions provided for in the first section of Article 60-2.
   “Upon authorisation of the judge for liberties and detention referred to for this purpose by the district prosecutor, the police officer or agent may make the requisitions provided for in the second section of Article 60-2.
   “The bodies or persons concerned shall make the required information available by telematic or computerised means as soon as possible.
   “Refusal to respond to such requisitions without legitimate reason shall be punished in accordance with the provisions of the fourth section of Article 60-2.”
4. The applicant criticises these provisions for allowing the district prosecutor to authorise, without prior review by an independent court, the requisition of information from a computer system or processing of nominative data, which includes connection data. This would result in an infringement of EU law on the one hand, and of the right to personal privacy, defendant's rights, and the right to effective legal protection on the other. For the same reasons, the legislator also disregarded the scope of their competence in conditions affecting the aforementioned rights.
5. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the words “, including those from a computer system or processing of nominative data,” appearing in the first sentence of the first section of Article 77-1-1 of the Code of Criminal Procedure and “the requisitions provided for in the first section of Article 60-2” appearing in the first section of Article 77-1-2 of the same code.

• In substance:

6. As stated in Article 2 of the Declaration of Human and Civic Rights of 1789: “The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are liberty, property, security, and resistance to oppression.” The liberty declared by this article implies the right to personal privacy.
7. Under Article 34 of the Constitution, it is the responsibility of the legislator to lay down rules concerning the fundamental guarantees granted to citizens for the exercise of public freedoms. They have to ensure that the constitutional objective of investigating offenders is reconciled with the right to personal privacy.
8. Article 77-1-1 of the Code of Criminal Procedure allows the district prosecutor or, with his or her authorisation, an officer or agent of the judicial police, in the context of a preliminary investigation, to requisition, by any means, information held by any public or private person, including information from a computer system or processing of nominative data, without being able to invoke the obligation of professional secrecy without legitimate reason.
9. Article 77-1-2 provides that, with the authorisation of the district prosecutor, the officer or agent of the judicial police may requisition from a public body or certain legal entities under private law, by telematic or computerised means, the provision of information not protected by secrecy provided for by law, contained in a computer system or processing of nominative data.
10. By making it possible to requisition information from a computer system or processing of nominative data, the disputed provisions authorise the district prosecutor and officers and agents of the judicial police to be given connection data or given access to connection data.
11. On the one hand, elements of connection data include data relating to the identification of individuals, their location and their telephone and digital contacts as well as the online public communication services they consult. Given their nature, their diversity and the processing to which they may be subjected, elements of connection data provide numerous and precise information on the persons concerned and, where applicable, on third parties, which is particularly invasive of their privacy.
12. On the other hand, under the disputed provisions, the requisition of such data is authorised in the context of a preliminary investigation which may concern any type of offence and which is not justified by urgency or limited in time.
13. While these requisitions are subject to the authorisation of the district prosecutor, a judicial officer who is responsible, under Article 39-3 of the Code of Criminal Procedure, for monitoring the legality of the means used by investigators and the proportionality of the investigative acts with regard to the nature and seriousness of the facts, the legislator has not attached any other guarantee to the use of requisitions for connection data.
14. In these circumstances, the legislator has not equipped the procedure provided for by the disputed provisions with guarantees that ensure a balanced reconciliation between, on the one hand, the right to personal privacy and, on the other, investigating offenders.
15. Consequently, without the need to rule on the complaint that European Union law has been infringed, which it is not the Constitutional Council's task to examine, or on the other complaints, the disputed provisions must be declared unconstitutional.

• Concerning the effects of the declaration of unconstitutionality:

16. According to section 2 of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge.” In principle, the declaration of unconstitutionality must benefit the person who brought the application for a priority preliminary ruling on the issue of constitutionality, and the provision declared unconstitutional may not be applied in the proceedings under way on the date of the publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution maintain the right for the latter both to set the date of the repeal and to postpone its effects, and allowing for challenging the effects that the provision produced before the declaration was made. These same provisions also maintain the Constitutional Council's power to oppose engaging the government's responsibility given the provisions declared unconstitutional, or to determine specific conditions or limits.
17. In the present case, the immediate repeal of the disputed provisions would entail clearly excessive consequences. As a result, the date of repeal of the disputed provisions should be postponed to 31 December 2022. On the other hand, measures taken before that date cannot be challenged on the basis of this unconstitutionality.
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1. - The words “, including those from a computer system or processing of nominative data,” appearing in the first sentence of the first section of Article 77-1-1 of the Code of Criminal Procedure, in its wording resulting from Act No. 2020-1672 of 24 December 2020 relating to the European Public Prosecutor's Office, environmental justice and specialised criminal justice, and “the requisitions provided for by the first section of Article 60-2” in the first section of Article 77-1-2 of the same code, in its wording resulting from Act No. 2019-222 of 23 March 2019 on planning for 2018-2022 and for judicial system reform, are unconstitutional.
    Article 2. - The declaration of the unconstitutionality of Article 1 becomes effective according to the conditions of paragraph 17 of this decision.
    Article 3. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned ordinance of 7 November 1958.
    Ruled by the Constitutional Council in its 2 December 2021 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.
    Published on 3 December 2021.