Translations:Recours au Conseil d État et au Conseil constitutionnel/119/en

• External Legality
  • The decree was adopted following an irregular procedure where the final published text does not match the version submitted for review to the Council of State
• Internal Legality
  • The decree lacks of legal basis: It was taken on the basis of provisions of the Surveillance Law that are contrary to the Constitution, the Charter of Fundamental Rights of the European Union, to Directive 2002/58/EC of 12 July 2008 concerning the processing of personal data, and the European Convention on Human rights.
    • Ignorance of the Constitution: The GIC authorised to carry out all intelligence techniques without exception, the process of "monitoring and control of transmissions through radio waves." But under the provisions of Article L. 811-5 of the Code of internal security, like an intervention of the GIC - which notably involves the collection and retention of informations - will not subject to any legal framework and this against all constitutional requirements.
    • Ignorance of the Charter of Fundamental Rights: The contested provisions, allowing the administration the collection of data, constitute a limitation to the principles of confidentiality, erasure and anonymization of the data as provided by Directive 2002/58/EC (called ePrivacy) and do not meet the need for proportionality as stated in the Charter in case of limitation of rights.
    • Concerning the breach of the right to privacy and the right to protection of personal data: The contested provisions bear a disproportionate infringement of the rights for privacy and protection of personal data. This is contrary to Articles 7, 8 and 52 of the Charter but also to the jurisprudence of the Court of Justice of the European Union (ECJ, April 8, 2014, Digital Rights Ireland, C-293/12 and C-594/12).
    • Concerning the disproportionate interferences: article 52 of the Charter of Fundamental Rights of the European Union requires legal safeguards to ensure the proportionality of the interferences. But the guarantees provided by the litigious provisions are not sufficient, for example regarding the aims which might justify the interference or types of information technology or the data retention periods. Other provisions demonstrate the disproportionate nature of the decree. This is the case for example of the lack of effective control by an independent authority.
    • Moreover, many provisions of the decree are contrary to Article 47 of the Charter of Fundamental Rights which guarantees the right to an effective appeal and access to an impartial tribunal. This is the case especially because: - Limitations on access to data within the judicial framework (Article 41 of Law No. 78-17 of 6 January 1978) - The lack of judicial appeal for international surveillance - The lack of safeguards concerning the access of data transmitted by foreign services - The lack of guarantees the applicant's access to parts protected by the secret defense.
    • Furthermore the requirement for operators to set up an automated data processing is contrary to Directive 2000/31/EC on electronic trade.
    • Finally, the provisions attacked are contrary to Articles 8 and 13 of the European Convention on Human Rights, where: - They do not guarantee an effective possibility to challenge retrospectively implemented intelligence techniques. - They do not provide any mechanism to effectively and sufficiently balance the absence of any prior notification