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France: Conseil d'Etat rules telecoms data retention is justified by national security threat and compatible with CJEU judgment

The Conseil d'Etat issued, on 21 April 2021, a judgment on the compatibility of the French legal framework on access to and retention of connection data (i.e. identity data, traffic data, and location data) for the purposes of combatting crime and safeguarding national security with the Court of Justice of the European Union's judgment of 6 October 2020. In particular, the Conseil d'Etat was seeking to reconcile the French legal framework's requirement that telecommunications operators must retain all user connection data for one year for the purposes of intelligence and criminal investigations.

In its judgment, the Conseil d'Etat held that although EU law does not provide equivalent protection to the French Constitution in terms of requirements relating to safeguarding the fundamental interests of the nation, preventing breaches of public order, counter-terrorism, and criminal investigations, the CJEU's interpretation is nonetheless compatible with the requirements of the Constitution. Specifically, the Conseil d'Etat outlined that the requirement currently imposed on operators by French law is justified by a threat to national security, as required by the CJEU judgment. However, the Conseil d'Etat found that the generalised obligation to retain data for purposes other than national security, notably the prosecution of criminal offences, is unlawful.

Furthermore, the Conseil d'Etat ordered the Government to regularly reassess the threat that exists in France to justify the generalised retention of data and to submit a request for approval to an independent authority, the National Commission for the Control of Intelligence Techniques ('CNCTR'). The Conseil d'Etat further noted that this prior review mechanism must be legally required and ordered the Government to modify the law within six months accordingly. 

You can read the press release, available in English here and French here, and download the judgment, only available in French, here.

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