Decision no. 2012-652 DC of 22 March 2012

In the conditions provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of an application relating to the Identity Protection Act on 7 March 2012 by Mr François REBSAMEN, Ms Jacqueline ALQUIER, Ms Michèle ANDRÉ, Messrs Alain ANZIANI, David ASSOULINE, Bertrand AUBAN, Dominique BAILLY, Ms Delphine BATAILLE, Messrs Claude BÉRIT-DÉBAT, Michel BERSON, Jean BESSON, Ms Maryvonne BLONDIN, Messrs Yannick BOTREL, Martial BOURQUIN, Ms Bernadette BOURZAI, Ms Nicole BRICQ, Messrs Jean-Pierre CAFFET, Pierre CAMANI, Ms Claire-Lise CAMPION, Messrs Jean-Louis CARRÈRE, Luc CARVOUNAS, Bernard CAZEAU, Yves CHASTAN, Jacques CHIRON, Ms Karine CLAIREAUX, Mr Gérard COLLOMB, Ms Hélène CONWAY MOURET, Messrs Jacques CORNANO, Roland COURTEAU, Jean-Pierre DEMERLIAT, Ms Christiane DEMONTÈS, Messrs Claude DILAIN, Claude DOMEIZEL, Ms Odette DURIEZ, Ms Frédérique ESPAGNAC, Messrs Jean-Luc FICHET, Jean-Jacques FILLEUL, Ms Catherine GÉNISSON, Samia GHALI, Messrs Jean-Pierre GODEFROY, Claude HAUT, Edmond HERVÉ, Claude JEANNEROT, Ronan KERDRAON, MS Virginie KLÈS, Messrs Jacky LE MENN, Alain LE VERN, Jean-Yves LECONTE, Ms Marie-Noëlle LIENEMANN, Messrs Jeanny LORGEOUX, Jacques-Bernard MAGNER, François MARC, Marc MASSION, Ms Michelle MEUNIER, Ms Danielle MICHEL, Messrs Jean-Pierre MICHEL, Gérard MIQUEL, Jean-Jacques MIRASSOU, Thani MOHAMED SOILIHI, Jean-Marc PASTOR, François PATRIAT, Daniel PERCHERON, Bernard PIRAS, Ms Gisèle PRINTZ, Messrs Daniel RAOUL, Thierry REPENTIN, Roland RIES, Gilbert ROGER,
Ms Patricia SCHILLINGER, Messrs Jean-Pierre SUEUR, Simon SUTOUR, Michel TESTON, René TEULADE, Richard YUNG, Ms Leila AÏCHI, Ms Esther BENBASSA, Messrs Ronan DANTEC, André GATTOLIN, Joël LABBÉ, Jean-Vincent PLACÉ, Ms Aline ARCHIMBAUD, Marie-Christine BLANDIN, Corinne BOUCHOUX, Messrs Jean DESESSARD, Jacques MÉZARD, Pierre-Yves COLLOMBAT, Robert TROPEANO, Jean-Claude REQUIER, Jean-Pierre PLANCADE, Yvon COLLIN, Ms Anne-Marie ESCOFFIER, Messrs François FORTASSIN, Raymond VALL, Jean-Michel BAYLET, Ms Françoise LABORDE, Ms Nicole BORVO COHEN-SEAT, Ms Eliane ASSASSI, Ms Marie-France BEAUFILS, Mr Eric BOCQUET, Ms Laurence COHEN, Ms Cécile CUKIERMAN, Ms Annie DAVID, Ms Michelle DEMESSINE, Ms Evelyne DIDIER, Messrs Christian FAVIER, Guy FISCHER, Thierry FOUCAUD, Ms Brigitte GONTHIER-MAURIN, Messrs Gérard LE CAM, Michel LE SCOUARNEC, Ms Isabelle PASQUET, Ms Mireille SCHURCH and Mr Paul VERGÈS, senators;

And on the same day by Mr Jean-Marc AYRAULT, Ms Patricia
ADAM, Messrs Jean-Paul BACQUET, Dominique BAERT, Jean-Pierre BALLIGAND, Gérard BAPT, Ms Delphine BATHO, Ms Marie-Noëlle BATTISTEL, Messrs Jean-Louis BIANCO, Serge BLISKO, Daniel BOISSERIE, Ms Marie-Odile BOUILLÉ, Ms Monique BOULESTIN, Messrs Pierre BOURGUIGNON, Jérôme CAHUZAC, Jean-Christophe CAMBADÉLIS, Thierry CARCENAC, Laurent CATHALA, Guy CHAMBEFORT, Jean-Paul CHANTEGUET, Gérard CHARASSE, Alain CLAEYS, Ms Marie-Françoise CLERGEAU, Messrs Pierre COHEN, Frédéric CUVILLIER, Pascal DEGUILHEM, Guy DELCOURT, Bernard DEROSIER, Julien DRAY, Tony DREYFUS, William DUMAS, Ms Laurence DUMONT, Messrs Jean-Paul DUPRÉ, Olivier DUSSOPT, Christian ECKERT, Henri EMMANUELLI, Ms Corinne ERHEL, Ms Martine FAURE, Mr Hervé FÉRON, Ms Aurélie FILIPPETTI, Ms Geneviève FIORASO, Messrs Pierre FORGUES, Jean-Louis GAGNAIRE, Ms Geneviève GAILLARD, Messrs Guillaume GAROT, Paul GIACOBBI, Jean-Patrick GILLE, Ms Annick GIRARDIN, Messrs Joël GIRAUD, Daniel GOLDBERG, Ms Pascale GOT, Messrs Marc GOUA, Jean GRELLIER, Ms Elisabeth GUIGOU, Mr David HABIB, Ms Danièle HOFFMAN-RISPAL, Ms Sandrine HUREL, Ms Françoise IMBERT, Messrs Michel ISSINDOU, Serge JANQUIN, Henri JIBRAYEL, Régis JUANICO, Armand JUNG, Ms Marietta KARAMANLI, Messrs Jean-Pierre KUCHEIDA, Jérôme LAMBERT, Jack LANG, Ms Colette LANGLADE, Messrs Jean-Yves LE BOUILLONNEC, Gilbert LE BRIS, Jean-Marie LE GUEN, Bruno LE ROUX, Ms Marylise LEBRANCHU, Messrs Michel LEFAIT, Patrick LEMASLE, Ms Catherine LEMORTON, Ms Annick LEPETIT, Messrs Bernard LESTERLIN, Michel LIEBGOTT, François LONCLE, Jean MALLOT, Jean-René MARSAC, Philippe MARTIN, Ms Martine MARTINEL, Ms Frédérique MASSAT, Mr Didier MATHUS, Ms Sandrine MAZETIER, Messrs Kléber MESQUIDA, Jean MICHEL, Arnaud MONTEBOURG, Pierre-Alain MUET, Philippe NAUCHE, Henri NAYROU, Christian PAUL, Germinal PEIRO, Jean-Luc PÉRAT, Jean-Claude PEREZ, Ms Sylvia PINEL, Mr François PUPPONI, Ms Catherine QUÉRÉ, Messrs Dominique RAIMBOURG, Simon RENUCCI, Ms Marie-Line REYNAUD, Ms Chantal ROBIN-RODRIGO, Messrs Marcel ROGEMONT, Bernard ROMAN, Gwendal ROUILLARD, René ROUQUET, Christophe SIRUGUE, Jean-Louis TOURAINE, Philippe TOURTELIER, Jean-Jacques URVOAS, Daniel VAILLANT, Jacques VALAX, Alain VIDALIES, Jean-Michel VILLAUMÉ and Philippe VUILQUE, Members of Parliament.

THE CONSTITUTIONAL COUNCIL,

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to Act n° 78-17 of 6 January 1978 on Data Processing, Data Files and Individual Liberties;

Having regard to the observations of the Government in response to the application and its complementary observations submitted upon request by the Constitutional Council, registered on 15 March 2012;

Having regard to the observations in response filed by the applicant senators, filed on 20 March 2012;

Having heard the rapporteur;

1. Considering that the applicant members of Parliament and senators have submitted the Identity Protection Act to the Constitutional Council; that they object that the provisions of Articles 5 and 10 of that act are unconstitutional;

• WITH RESPECT TO ARTICLES 5 and 10:

3. Considering that Article 5 of the act referred provides for the establishment, in the conditions provided for under the aforementioned act of 6 January 1978, of a database containing personal data in order to facilitate the collection and conservation of the data required for the issue of French passports and national identity cards which is intended to maintain the integrity of these data; that these include the data contained in the secure electronic chip on the national identity card and passport as listed in Article 2 of the act which include, in addition to the marital status and residence of the holder, its height, eye colour, fingerprints and photograph;

4. Considering that Article 5 enables an applicant for an identity or travel document to be identified by consulting the database containing personal data through the data listed in Article 2, with the exception of the photograph; that it also provides that the database containing personal data may be consulted using two fingerprints collected in the database, first upon issue of identity and travel documents, secondly for investigative requirements relating to certain offences if authorised by the public prosecutor or the examining judge, and thirdly upon request by the public prosecutor in order to establish the identity of a deceased person who has fallen victim to a natural disaster or a collective accident, if it is unknown;

5. Considering that Article 6 of the act referred enables the identity of the holder or an identity card or passport to be verified on the basis of the data reported on the identity or travel document or on the secure electronic chip; that it also enables this verification to be carried out by consulting the data conserved in the database provided for under Article 5 “in the event that there is a serious doubt as to the identity of the person or where the document presented is defective or appears to have been damaged or modified”;

6. Considering that Article 10 enables officers who have been individually designated and duly authorised from the national police and gendarmerie departments to gain access to the database containing personal data established pursuant to Article 5 for the purpose of preventing or punishing attacks against the independence of the Nation, its territorial integrity, its security, the republican form of its institutions, its defence or diplomatic service, to safeguard its population in France and abroad and the essential elements of its scientific and economic potential, and to prevent or punish acts of terrorism;

7. Considering that, according to the applicants, the establishment of a biometric database covering almost all of the French population, the characteristics of which enable a person to be identified on the basis of its fingerprints, amounts to an unconstitutional breach of the right to respect for private life; that moreover, in permitting the information contained in this database to be consulted for administrative purposes or by the investigating police, Parliament failed to adopt legal guarantees against the risk of arbitrary action;

8. Considering in the first place that Article 34 of the Constitution provides that the act shall specify the rules relating to the fundamental guarantees to be afforded to citizens for the purpose of exercising public freedoms as well as in relation to criminal procedure; that it is for Parliament, acting within the bounds of its competence, to ensure that a balance is struck on the one hand between the safeguarding of public order and bringing offenders to justice, both of which are necessary in order to uphold principles and rights of constitutional standing, and on the other hand the respect for other rights and freedoms protected under constitutional law; that it is at any time at liberty to adopt new provisions which may appear appropriate to it and to amend earlier texts or to repeal and replace them, as the case may be, with other provisions, provided that when exercising this power it does not impinge upon the legal guarantees of constitutional standing;

9. Considering, secondly, that the freedom proclaimed under Article 2 of the 1789 Declaration of the Rights of Man and the Citizen implies the right to respect for private life; that accordingly, the collection, registration, conservation, consultation and communication of personal data must be justified on grounds of general interest and implemented in an adequate manner, proportionate to this objective;

10. Considering that the establishment of a database containing personal data intended to maintain the integrity of the data necessary for the issue of identity and travel documents makes it possible to render the issue of these documents more secure and to improve the efficiency of the fight against fraud; that it is accordingly justified on grounds of general interest;

11. Considering however that, given its object, this database containing personal data is intended to collect data relating to almost all of the population of French nationality; that since the biometric data registered in this file, including in particular fingerprints, are themselves liable to be compared with physical traces left involuntarily by an individual or collected unbeknown to him, they are particularly sensitive; that the technical characteristics of this database as defined by the contested provisions enable it to be consulted for purposes other than the verification of an individual's identity; that the provisions of the act referred authorise this database to be consulted or viewed not only in relation to the issue or renewal of identity and travel documents or to verify the holder of such a document, but also for other purposes of an administrative nature or by the investigating police;

12. Considering that according to the above, having regard to the nature of the data registered, the scope of this processing, its technical characteristics and the conditions under which it may be consulted, the provisions of Article 5 violate the right to respect for privacy in a manner which cannot be regarded as proportionate to the goal pursued; that accordingly, Articles 5 and 10 of the act must be ruled unconstitutional; that the same applies, in consequence, to the third subparagraph of article 6, Article 7 and the second phrase of Article 8;

• WITH RESPECT TO ARTICLE 3:

13. Considering that Article 3 of the act referred establishes a new function for the national identity card; that pursuant to that article: “If requested by its holder, the national identity card may also contain data, stored separately, enabling it to identify itself on electronic communication networks and to affix its electronic signature. Upon each use, the interested party shall decide which identification data are to be transmitted electronically.
    “The fact that an identity card does not have the functions described in the first subparagraph does not constitute legitimate grounds for refusal to sell or to provide services pursuant to Article L. 122-1 of the Consumer Code or to deny access to the banking operations mentioned under Article L. 311-1 of the Monetary and Financial Code.
    “Access to the electronic administration services implemented by the State, the local authorities or their groupings cannot be limited solely to the holders of a national identity card having the functions described in the first subparagraph of this Article”;

14. Considering that, according to Article 34 of the Constitution, legislation shall determine the rules concerning: civil rights and the fundamental guarantees afforded to citizens for the exercise of their civil liberties; that it shall also determine the fundamental principles of civil and commercial obligations; that under the current state of means of communication and having regard to the general development of online communication services for the public as well as the importance of these services in economic and social life, the general conditions under which the national identity card issued by the State may enable a person to identify itself on electronic communication networks and to affix its electronic signature, in particular for civil and commercial purposes, directly pertain to the rules and principles cited above, and accordingly fall within the purview of the law;

15. Considering that Article 3 on the one hand permits the national identity card to include “electronic functions” enabling its holder to identify itself on electronic communication networks and to affix its electronic signature, whilst on the other hand guarantees the optional nature of these functions; that the provisions of Article 3 do not specify either the nature of the “data” through which these functions may be implemented or the guarantees ensuring the integrity and confidentiality of this data; that they do not define in any greater detail the conditions under which the persons implementing these functions are to be authenticated, especially when they are minors or are subject to legal protection; that accordingly, Parliament acted in excess of its powers; that accordingly Article 3 must be ruled unconstitutional;

16. Considering that there are no grounds for the Constitutional Council to raise ex officio any other question concerning compatibility with the Constitution,

HELD:

Article 1.- The following provisions of the Identity Protection Act are hereby ruled unconstitutional:

• Articles 3, 5, 7 and 10;
• the third subparagraph of Article 6;
• the second phrase of Article 8.

Article 2.- This decision shall be published in the Journal officiel of the French Republic.

Deliberated by the Constitutional Council in its session on 22 March 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Messrs Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Valéry GISCARD d'ESTAING, Ms Jacqueline de GUILLENCHMIDT, and Messrs Hubert HAENEL and Pierre STEINMETZ.