ENDitorial: French biometric passport: case still pending after 2 years

By EDRi · July 14, 2010

This article is also available in:
Deutsch: [ENDitorial: Beschwerde gegen französische Biometrie-Pässe nach 2 Jahren immer noch anhängig | http://www.unwatched.org/node/2067]

It took more than two years after the complaint against the French biometric
passport was filed to have the conclusions of the “public rapporteur”
publicly presented at the Conseil d’Etat (French highest administrative
Court), on 30 June 2010. While the final court decision was expected some
weeks later as it usually occurs, the plaintiffs received instead an
official note that the conclusions presented on 30 June were dismissed, and
that some more analysis was needed: the case will now be heard on October

The French biometric passport entered into force after a decree was
published on 4 May 2008. On 4 July 2008, a case was jointly filed before the
Conseil d’Etat by two NGOs: French EDRI member IRIS and the French Human
Rights League, to obtain the annulment of this decree. Other complaints were
filed by a group of 10 citizens from Toulouse, and by photographers
associations and companies, the latter complaint highlighting economic
issues with the decree.

The main provisions targeted by the two NGOs are: the establishment of a
centralized national biometric database; the collection and storage in the
database of 8 fingerprints (only 2 of them being also stored in the passport
chip), instead of the 2 required by the European regulation on biometric
passports; the collection of fingerprints of children starting from age 6.
Legal substantive and procedural arguments against these provisions are
provided in the complaint.

In the French Conseil d’Etat judicial system, the “public rapporteur” is a
member of the Council in charge of presenting to the court the claim put
forward in the complaint, of analyzing the circumstances and the applicable
law, and of proposing independent and impartial conclusions and
recommendations regarding the final decision. Usually, the court follows
these conclusions, or simply makes slight modifications before delivering
its judgement.

Two years after the complaint was filed, the “public rapporteur” recommended
the annulment of the provision requiring to collect and store in the
centralized database the 6 additional fingerprints, on the basis that this
was disproportionate with respect to the European regulation. While he
didn’t recommend the annulment of the provision creating a centralized
database, the “public rapporteur” pointed out that this was not required by
European regulation, and that French and European data protection
institutions, as well as the European Parliament, voiced strong concerns
against this provision. However, the “public rapporteur” considered,
following the opinions of the French Ministry of Interior, that this
centralized database is necessary to avoid identity fraud and passport
trafficking, including in the case of children starting from age of 6.

Apparently, these timid conclusions were still too provocative for the
Conseil d’Etat or were they, on the contrary, indeed too timid in the
Court’s view as well? No one knows yet why the Conseil d’Etat considered
that they needed to be dismissed, and that four additional months of
investigations and discussions were still needed to reach a decision. In the
mean time, the deployment of the French biometric passport has been going on
since the publication of the decree, given that such complaints do not have
any suspensive effect.

EDRi-gram: Complaint Against The French Govt To Annul The Biometric Passport
Decree. The French Government goes against CNIL in biometric passports

French biometric passport dossier (all available documents, only in French)

(Contribution by Meryem Marzouki – EDRi-member IRIS – France)