In a few days, France’s highest administrative court, the Conseil d’Etat, will announce a decision on data retention in the country – and could thus oppose a ruling by the European Court of Justice on the matter. On Friday, the rapporteur of the Conseil d’Etat declared himself and found the ECJ judgment at least partially open to challenge. The question is whether France is sticking to its implementation of data retention, although the ECJ has generally stated that the project is incompatible with European law.
The rapporteur recommends that the generalized storage of all traffic data for one year in France should fall. In key points, however, the official still considers the French version of data retention to be feasible, for example when storing IP addresses. A complete rejection of the Luxembourg judgment, as requested by the French government, goes a little too far for the rapporteur. Like France, the Federal Ministry of the Interior also maintains that data retention is indispensable.
Dispute over compatibility with European law
In October last year, the European Court of Justice had in that of La Quadrature du Net strenuous proceedings France’s version of data retention also declared incompatible with European law. The court had previously ruled in 2014 and 2016 that the generalized storage of connection and content data was incompatible with European law.
Although the European judges have already made more concessions on exceptions to confidentiality in the ruling on French data retention, the French government has asked the Conseil D’Etat, the referring court, to refrain from implementing the ruling, because this would result in French constitutional law, in particular protection national security being violated.
Interpretation instead of questioning?
Neither the Conseil d’Etat nor the Constitutional Council, which is responsible for constitutional issues, has ever questioned the authority of the European Court of Justice, assured the rapporteur, Alexandre Lallet, according to the protocol from La Quadrature. The implementation of the judgment on the basis of the primacy of EU law corresponds to the French constitution, he said. A questioning on the basis of the “Ultra Vires” principle – the exceeding of competencies by the EU authorities – should only be the last resort.
With the expression “ultra vires” lawyers refer to the case that a European body has exceeded its competences. Lallet referred to the precedent set by the Federal Constitutional Court. Last year, the ECB’s decisions on the government bond purchase program were unconstitutional and a ruling by the European Court of Justice supporting these decisions was deemed incompetent.
Range of a verdict
In the case of data retention, the Conseil d’Etat, on the other hand, should not unpack the big club straight away: “Not Ultra Vires, but a decision by the Conseil on the scope of the verdict” from Luxembourg, according to the preliminary conclusion of the rapporteur recorded by LaQuadrature.
At the same time, however, the French government admits to Lallet that the Conseil must check whether the rejection of the non-EU data retention legislation would not violate guarantees from the French constitution. The primacy of EU law has constitutional status, but there are also other requirements of the constitution. According to Lallet, the central problem is national security – and here he again dutifully follows the French government. The European Court of Justice actually neglected this in its decision.