French High Court cancels the creation of illegal migrants database

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

In a decision published on 13 March, the Conseil d’État, the French
highest administrative court, cancelled the ministerial order
(“Arrêté”) by which the Interior Ministry created the ELOI file, a
database aimed at facilitating the expulsion of illegal migrants. On
2 October 2006, four French NGOs filed this case against the
Interior minister: CIMADE and GISTI (two associations defending the
rights of migrants), LDH (the French Human Rights League), and French
EDRI member IRIS. While the database creation itself is allowed by
the French code on immigration and asylum (CESEDA), the NGOs argued
that the ELOI file would contain excessive and inadequate personal
data on the foreigners themselves, their children, the citizens with
which they were staying, and their visitors in retention centres.
Moreover, these data were supposed to be kept for an excessive
duration.

During the proceedings of the case, the French Ministry of Interior
had to downsize its expectations, recognizing that no data should be
kept on some categories of retention centres visitors (members of
Parliament, social workers, doctors, and specially habilitated NGOs,
like volunteers from CIMADE). It also had to recognize that keeping
data about visitors for 3 months rather than 3 years was enough,
clearly showing how arbitrarily this duration had been initially set.

However, at this step the Conseil d’État has only based its decision
on a procedural issue: given that the database was supposed to
include a digitised photograph of illegal migrants, the ministry of
Interior should not have created the database by a simple ministerial
order, but rather by an administrative decree (‘Décret’) submitted to
the Conseil d’État after consulting the CNIL, the French data
protection authority.

Beyond the fact that the French administrative court reminded the
French Interior Minister Nicolas Sarkozy – who is currently running
for French presidency – that he, too, had to obey the law, this
decision acknowledges that a digitised photograph is a biometric
identifier, even when not processed by automatic facial recognition
software. Although based on the CESEDA rather than on the French data
protection law, this ruling by the highest administrative court is
important since there is no official definition in France of what is
a biometric identifier.

On the very day of the ruling, the French Ministry of Interior
announced that it had submitted the new draft decree to the CNIL, and
that “the Conseil d’État has not found valid the arguments claiming
that the ELOI database was infringing fundamental freedoms”. This
claim is refuted by the 4 NGOs in a press release, since the French
court has judged first, as usual, upon procedural arguments, without
the need to examine the substance of the complaint. The NGOs
announced that if the new database characteristics remain the same,
this would be as unacceptable as the former file. They now call the
CNIL and the Conseil d’État to make fundamental rights prevail on the
temptation of generalized indexing of people.

French ministry of Interior press release (in French only, 13.03.07)
http://www.interieur.gouv.fr/misill/sections/a_la_une/toute_l_actualite/etrangers-circulation-transf/traitement-eloi

Cancelling of ELOI file: after the victory of law, the CNIL and the Conseil
d’État must make rights prevail (in French only, 13.03.2007)
http://www.iris.sgdg.org/info-debat/comm-eloi0307.html

IRIS dossier on the case, with all legal documents (in French only)
http://www.iris.sgdg.org/actions/fichiers/index.html

(Contribution by Meryem Marzouki, EDRI member IRIS – France)