Upcoming judgment against mass surveillance in France

On Wednesday 21 April, the Conseil d'Etat (France's highest administrative court) will issue its final decision in the most important case that EDRi's observer La Quadrature du Net (LQDN) has ever brought against the intelligence services. This will be the end of six years of proceedings, dozens of briefs and countless twists and turns that have made LQDN what it is today.

Judges against surveillance

The adventure began seven years ago. On 8 April 2014, the Court of Justice of the European Union (CJEU) ruled that European law prohibits a state from forcing telecommunications operators to retain metadata on the entire population. This is what was happening in France, where every person is treated as a potential suspect to be monitored.

In 2015, La Quadrature du Net joined forces with two associations, FFDN and FDN, to take legal action against the French system of generalised data retention. On 21 December 2016, while the case was slowly progressing, the CJEU issued a second historic decision: in its famous Tele2 ruling, it denounced the blanket retention of metadata imposed by Swedish and English law. All that remained for the Council of State to do was to apply this decision directly to the French case to make LQDN’s case victorious.

Dialogue between judges

However, by a decision taken on July 2018, rather than submitting directly to the CJEU, whose authority is superior to its own, the Conseil d’État chose to ask the Court to confirm its position a third time.

On 6 October 2020, the CJEU issued its decision, the last chapter of this European trilogy. Unfortunately, the Court largely reversed its intransigence of the first episodes and was now looking for a “balance” between the protection of freedoms and mass surveillance (a bitter happy medium in which we had seen a “victorious defeat“). However, even if the requirements set by the Court were lowered, French law is still very far from complying with them.

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Desperate attempt

The French government is now trying to escape with a desperate affront: it claims that the Court of Justice has usurped its powers because, contrary to what it claims, the European treaties prohibit it from limiting the capacities of Member States in the fight against terrorism and in security surveillance.

The government is playing its last cards in a strategy as desperate as it is destructive: denying the legitimacy of the European institutions and thus placing France in a de facto quasi-independence vis-à-vis the European Union. Their stance seems to be “No matter what the law says, everything must be sacrificed to save mass surveillance”. As reported, the French government even goes so far as to ask for the modification of founding treaties or the Charter of Fundamental Rights to avert the EU’s top court.

The effects of the future decision of the Conseil d’Etat are likely to be considerable: if LQDN wins, it will be the end of the blanket retention of metadata in France. If LQDN loses, France will become de facto independent from the European Union in order to continue its mass surveillance.

Read the article in French.

(Image credit: Eticas Foundation)