Decision no. 2020-834 QPC of 3 April 2020

On 16 January 2020, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 433296 and no. 433297 of 15 January 2020). This application was made on behalf of the Union nationale des étudiants de France by SCP Anne Sevaux et Paul Mathonnet, Attorney for the Conseil d'État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2020-834 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in the last section of paragraph I of Article L. 612-3 of the Education Code, in its formulation resulting from Act No. 2018-166 of 8 March 2018 relating to student orientation and success.
Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Education Code;
• the Code on Relations between the Public and the Administration;
• Act No. 2018-166 of 8 March 2018 relating to student orientation and success;
• Decision no. 427916 and no. 427919 of the Conseil d'État of 12 June 2019;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
  Having regard to the following documents:
• the observations of intervenors on behalf of the Conférence des présidents d'université, the Conférence des grandes écoles, the Conférence des directeurs des écoles françaises d'ingénieurs, the Assemblée des directeurs d'instituts universitaires de technologie and the Association des proviseurs de lycées à classes préparatoires aux grandes écoles by SCP Rocheteau et Uzan-Sarano, Attorney for the Conseil d'État and for the Cour de Cassation, registered on 5 February 2020;
• the observations on behalf of the applicant association by SCP Anne Sevaux et Paul Mathonnet, registered on 6 February 2020;
• the observations of the Prime Minister, registered on the same date;
• the observations of intervenors by Léo G., registered on the same date;
• the observations of intervenors on behalf of the association La Quadrature du Net, by Alexis Fitzjean Ó Cobhthaigh, Attorney at the Paris Bar, registered on the same date;
• the observations of intervenors on behalf of the Syndicat national de l'enseignement supérieur, the Union national des syndicats CGT des établissements d'enseignement supérieur et de recherche , the Syndicat national Force ouvrière de l'enseignement supérieur et de la recherche, and the Fédération des syndicats solidaires démocratiques education by Florian Borg, Attorney at the Paris Bar, registered on the same date;
• the observations of intervenors on behalf of the Union nationale lycéenne, the Fédération des conseils de parents d'élèves des écoles publiques, the Solidaires étudiant-e-s - syndicat de luttes union and the Syndicat des avocats de France by Gérard Tcholakian and Juan Prosper, Attorneys at the Paris Bar, registered on the same date;
• the second observations of intervenors by Léo G., registered on 20 February 2020;
• the second observations on behalf of the applicant association by SCP Anne Sevaux et Paul Mathonnet, registered on 21 February 2020;
• the second observations of the Prime Minister, registered on the same date;
• the second observations of intervenors on behalf of the association La Quadrature du Net, by Alexis Fitzjean Ó Cobhthaigh, registered on the same date;
• the additional documents produced and appended to the case files;
  After having heard Paul Mathonnet, Attorney for the Conseil d'État and for the Cour de Cassation, for the applicant union, Cédric Uzan-Sarano, Attorney for the Conseil d'État and for the Cour de Cassation, for the Conférence des présidents d'université and four other intervenors, Juliette Lesueur, Attorney at the Paris Bar, on behalf of Léo G., Fitzjean Ó Cobhthaigh on behalf of La Quadrature du Net, Florian Borg on behalf of the Syndicat national de l'enseignement supérieur and three other intervenors, Juan Prosper on behalf of the Union nationale lycéenne and three other intervenors, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 10 March 2020;
  Having regard to the following documents:
• the post-hearing submission (note en délibéré) on behalf of the Conférence des présidents d'université, the Conférence des grandes écoles, the Conférence des directeurs des écoles françaises d'ingénieurs, the Assemblée des directeurs d'instituts universitaires de technologie and the Association des proviseurs de lycées à classes préparatoires aux grandes écoles by SCP Rocheteau et Uzan-Sarano, registered on 13 March 2020;
• the post-hearing submission (note en délibéré) of the Prime Minister, registered on 1 April 2020;
  And after having heard the rapporteur;
  THE CONSTITUTIONAL COUNCIL DECIDED THAT :

1. The second section of paragraph I of Article L. 612-3 of the Education Code, in its formulation resulting from the aforementioned Act of 8 March 2018, implements a national preregistration procedure in undergraduate-level higher education programmes of study. The last section of the same paragraph states:
   “In order to guarantee the necessary protection of the secrecy of deliberations of pedagogical teams that are in charge of reviewing applications presented as part of the national preregistration procedure provided for in the same second section, the obligations that issue from Articles L. 311-3-1 and L. 312-1-3 of the Code on Relations between the Public and the Administration are considered met as soon as the applicants are informed of the possibility of receiving, if they so request, information relating to the criteria and methods used to evaluate their applications as well as the pedagogical reasons that justify the decision made.”
2. The applicant union, joined by several intervenors, accuses these provisions of restricting access to information relating to the criteria and methods used by higher education establishments to evaluate applications for registration in an undergraduate programme of study. According to the applicant union, these provisions are contrary to the right of access to administrative documents that issues from Article 15 of the Declaration of Human and Civic Rights of 1789. These provisions would exclude all access, both to school applicants and to third parties, to the algorithms that might be used by institutions to process registration applications for said programmes of study, entered using the “Parcoursup” digital platform. Yet, such an exclusion would be justified neither for maintaining the secrecy of the deliberations of juries handling applications, nor for any other reason. Moreover, these provisions would violate the right to effective legal protection, on two grounds. On the one hand, they would impede successful execution of an appeal against the absence of disclosure of the information concerned. On the other hand, they would deny litigants the elements necessary to effectively challenge the validity of the refusal of registration.
3. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the words “In order to guarantee the necessary protection of the secrecy of deliberations of pedagogical teams that are in charge of reviewing applications presented as part of the national preregistration procedure provided for in the same second section, the obligations that issue from Articles L. 311-3-1 and L. 312-1-3 of the Code on Relations between the Public and the Administration are considered met as soon as” that are in the last section of paragraph I of Article L. 612-3 of the Education Code.

• Concerning certain intervenors:

4. According to the second section of Article 6 of the aforementioned Internal Regulation of 4 February 2010, only persons that demonstrate a “special interest” are permitted to intervene.
5. On the one hand, if Léo G. bases this claim on his university work based on the communicability of administrative documents and if he claims that his position as a teacher-researcher brings him into contact with students registered in higher education as per the procedure provided for in Article L. 612-3 of the Education Code, these two elements are not of a nature to give him special interest to intervene in the procedure for the current application for a priority preliminary ruling on the issue of constitutionality.
6. On the other hand, the Syndicat des avocats de France also does not demonstrate such a special interest.
7. Consequently, these two interventions are not admitted.

• In substance:
  . Concerning the objection due to the violation of Article 15 of the Declaration of Human and Civic Rights of 1789:

8. According to Article 15 of the Declaration of Human and Civic Rights of 1789: “Society has the right to ask a public official for an accounting of his administration.” The right to access administrative documents is guaranteed by this provision. The legislator has the liberty to impose limitations related to constitutional requirements or requirements that are justified by the public interest, on condition that they do not result in disproportionate infringements of the pursued objective.
9. Paragraph I of Article L. 612-3 of the Education Code determines the rules of registration in undergraduate programmes of study in higher education provided by public institutions. It provides that a national preregistration procedure must be completed prior to registering in one of these programmes. During the national preregistration procedure, applicants will be informed of the characteristics of each programme of study. These characteristics are subject to a “national framework” set by decree of the Minister of Higher Education. They can be rounded out by institutions to take the specific conditions of their programmes of study into account.
10. Paragraph IV of Article L. 612-3 is applicable to non-selective programmes of study, and it puts in place a separation of applicants when the quantity of applicants exceeds the available spaces in the requested programmes of study. In this case, the registrations are decided by the head of the institution according to the consistency between, on the one hand, the programme of study that the applicants plan on entering, their acquired knowledge and skills, and on the other hand, the characteristics of the programme of study. The head of the institution rules according to the proposals that are presented to them by the application review commissions that are formed within the institution for each of the programmes of study that are offered. These commissions review the short lists of preferred programmes of study presented by applicants. Each commission defines the criteria and the methods for review of applications, in compliance with the general criteria set by the institution.
11. The last section of paragraph I of Article L. 612-3 provides that the applicants can obtain the information related to the criteria for and methods of review that are thus implemented by the institutions as well as the pedagogical rationale that justifies the decision made concerning the applicants. However, the disputed provisions of this section exclude the application of two articles of the Code on Relations between the Public and the Administration related to provision and public disclosure of information concerning the use of algorithmic processing used as a basis, whether exclusively or in part, for an individual administrative decision. As such, the application of Article L. 311-3-1 of said code is dismissed, which would require the administration, excluding secrets protected by law, to disclose the rules that define the algorithmic processing used and the main characteristics of its implementation to applicants that request them. As well, the application of Article 312-1-3 of the same code is dismissed, which would require the administration, under the same conditions, to publish on the web the rules defining the main algorithmic processing used to complete its missions.
12. Established case law from the Conseil d'État provides that applicants requesting access are the only parties that the disputed provisions therefore allow to access the administrative documents related to the algorithmic processes used, if applicable, by the higher education institutions for reviewing applications. This request for access is made following the decision made concerning these applicants, and only concerns the information related to the criteria of and methods for reviewing said applicants' specific registration applications. Neither third parties nor applicants, prior to a decision being made related to them, can therefore request that these criteria and methods be disclosed to them.
13. However, firstly, in preparatory work the legislator considered that the determination of these criteria and methods for reviewing applications, when they are subject to algorithmic processing, was not separable from the evaluation provided for each application. Consequently, by restricting the access to administrative documents that give details concerning these criteria and methods, the legislator sought to protect the secrecy of the review process of the pedagogical teams within the institutions. The legislator has thus ensured the independence of these pedagogical teams and the authority of their decisions. In so doing, the legislator pursued an objective in the general interest.
14. Secondly, the national preregistration procedure instituted with Article L. 612-3 of the Education Code, specifically in that it organises the conditions under which the institutions review the short lists of applicant registration requests, is not fully automated. On the one hand, the use of algorithmic processing to carry out this review is only a feature for the institutions. On the other hand, when the institutions use this algorithmic processing, the decision made for each application cannot be exclusively based on an algorithm. It also requires an evaluation of the merits of the applications by the application review commissions (which review the short lists of preferences of applicants), then by the head of the institution.
15. Thirdly, in application of the second section of paragraph I of Article L. 612-3, the characteristics of each programme of study are disclosed to the applicants, prior to the applicants making their short list of requests, via the digital platform implemented for the national preregistration procedure. They are subject to a national framework set by decree of the Minister of Higher Education. On the one hand, this results in applicants having access to information relating to the knowledge and skills they are expected to possess in order to succeed in the programme of study, as they were determined at the national level and rounded out by each institution. They may therefore be informed of the considerations by which the institutions will evaluate their applications. On the other hand, this results in the applicants also having access to the general criteria that are the framework for the review of applications by the application review commissions. While the law does not provide specific access to third parties to this information, this information is not considered confidential. The administrative documents related to the expected knowledge and skills and to these general criteria can therefore be disclosed to persons who request them, under the conditions of ordinary law provided for by the Code on Relations between the Public and the Administration.
16. Lastly, in application of the last section of paragraph 1 of Article L. 612-3, once the decision to refuse admission has been made concerning the applicant, the applicant can request to obtain information from the institution relating to the criteria and methods used to review their application, as well as the pedagogical reasons that justify the decision made in their case. They can therefore be informed of the hierarchy structure and the weighting of the different general criteria set by the institutions as well as the specific and additional information added to these general criteria to review the registration requests. Moreover, the disclosure provided for in these provisions can contain information related to the criteria used by the algorithmic processing that may be used by the application review commissions.
17. However, this disclosure can only be for the benefit of applicants. Yet, once the national preregistration procedure is finished, the absence of access by third parties to all information relating to criteria and methods for reviewing applications actually selected by the institutions would, in relation to the right guaranteed by Article 15 of the Declaration of Human and Civic Rights of 1789, cause a disproportionate infringement in relation to the pursuit of an objective in the general interest, drawn from the protection of the secrecy of the review carried out by the pedagogical team. Consequently, the disputed provisions cannot be interpreted as exempting each institution from publishing the criteria by which applicants were reviewed once the national preregistration procedure is complete, and doing so in compliance with the applicants' right to privacy. The institutions must also specify, if applicable, to what extent algorithmic processing was used to carry out this review, published in the form of a report. If the disputed provisions were interpreted as exempting institutions from publishing this information, they would violate the right of access to administrative documents.
18. It follows from the foregoing that, subject to the condition stated in the previous paragraph, the limitations provided by the disputed provisions on the exercise of the right of access to administrative documents resulting from Article 15 of the Declaration of Human and Civic Rights of 1789 are justified for reasons of general interest and are proportional to this objective. The objection due to the violation of this article, with this condition, must therefore be dismissed.
    . Concerning the objections to the violation of the right to effective legal protection:
19. According to Article 16 of the Declaration of Human and Civic Rights of 1789: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” It follows from this provision that the right of the persons concerned to access effective legal recourse before a court must not be substantially impaired.
20. On the one hand, if an institute of higher education refuses to provide an administrative document relating to the review of a registration application in an undergraduate programme of study, that refusal constitutes an administrative decision that can be appealed before an administrative court. This also applies to refusal of registration in such a programme of study. On the other hand, restricting access to certain administrative documents relating to algorithmic processing that may be used by the institution does not infringe on the effectiveness of legal recourse for appealing a decision to refuse registration in a programme of study.
21. Consequently, the objection due to the violation of Article 16 of the Declaration of Human and Civic Rights of 1789 must be dismissed.
22. It follows from the foregoing that the disputed provisions, which do not violate any other right or freedom guaranteed by the Constitution, subject to the condition stated in paragraph 17, must therefore be declared as conforming to the Constitution.
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1. - The interventions of Léo G. and of the Syndicat des avocats de France are not admitted.
    Article 2- Subject to the condition stated in paragraph 17, the words “In order to guarantee the necessary protection of the secrecy of deliberations of pedagogical teams that are in charge of reviewing applications presented as part of the national preregistration procedure provided for in the same second section, the obligations that issue from Articles L. 311-3-1 and L. 312-1-3 of the Code on Relations between the Public and the Administration are considered met as soon as” that are in the last section of paragraph I of Article L. 612-3 of the Education Code, in its formulation resulting from Act No. 2018-166 of 8 March 2018 relating to student orientation and success, conform to the Constitution.
    Article 3. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
    Ruled by the Constitutional Council in its 2 April 2020 session, with the following members present: Laurent FABIUS, President, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.
    Published on 3 April 2020.