Advanced Search

Decision No. 2014-412 Qpc Of September 19, 2014

Original Language Title: Décision n° 2014-412 QPC du 19 septembre 2014

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

Text information




JORF n ° 0219 dated September 21, 2014 page 15469
text #30




Decision No. 2014-412 QPC of 19 September 2014

NOR: CSCX1422264S ELI: Not available


(Mr. LAURENT D.)


The Constitutional Council was seized on 20 June 2014 by the Court of Cassation (Criminal Division, Judgment No. 3450 of 17 June 2014), under the conditions laid down in Article 61-1 of the Constitution, of a question Priority of constitutionality posed by Mr. Laurent D., relating to the conformity with the rights and freedoms guaranteed by the Constitution Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006070719&idArticle=LEGIARTI000006417970&dateTexte=29990101 &categorieLink = cid"> sections 226-19 of the Penal Code and L. 1223-3 of the Public Health Code.
The Constitutional Council,
Given the Constitution;
Given theAct No. 58-1067 of 7 November 1958 Organic on the Constitutional Council;
Given the Penal Code ;
Seen public health code ;
Seen Law n ° 78-17 of January 6, 1978 on computers, files and freedoms;
Seen Law n ° 2004-801 of 6 August 2004 on the protection of individuals with respect to personal data processing and modifying Law n ° 78-17 of January 6, 1978 relating to computers, The files and freedoms, together with the decision of the Constitutional Council n ° 2004-499 DC of 29 July 2004;
In view of the Act No. 2004-806 of 9 August 2004 on the Public health policy, in particular Article 116;
In the light ofOrder No. 2005-1087 of 1 September 2005 on national public institutions of character Health and litigation related to blood transfusion;
Due to Law n ° 2011-2012 of 29 December 2011 on strengthening the health safety of the drug and health products;
Due to the regulation of 4 February 2010 On the procedure followed before the Constitutional Council on the priority issues of constitutionality;
In view of the observations made for the applicant by the Spinosi and Sureau SCP, counsel for the Conseil d' Etat and the Court of Cassation, Registered July 15, July 30 and August 27, 2014;
Seen Observations produced for the French Blood Establishment and Mr Ramdane B., defence parties, by CPC Waquet, Farge, Hazan, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 15 July, 30 July and 2 September 2014;
Vu The observations submitted by the Prime Minister, registered on 15 July 2014;
In view of the letter of 31 July 2014 by which the Constitutional Council invited the parties to submit comments on the question of whether order N ° 2005-1087 of 1 September 2005 on national public health establishments and disputes in the field of blood transfusion, of which provisions of article L. 1223-3 of the public health code, have been ratified;
Seen the documents produced and attached On file;
Me Patrice Spinosi for the applicant, Me Claire Waquet and Mr. Pierre-Yves Fouré, counsel for the Paris Bar, For the defence parties and Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 9 September 2014;
The rapporteur was heard;
1. Considering that under the terms of article 226-19 of the Penal Code, in its drafting resulting from section 14 of the August 6, 2004 Act : " The fact, outside the cases provided for by law, of putting or keeping in computerised memory, without the express consent of the person concerned, personal data which, directly or indirectly, show the racial origins or Ethnic, political, philosophical or religious opinions, or the trade union membership of persons, or which relate to the health or sexual orientation of persons, shall be punished by five years' imprisonment and a fine of EUR 300 000 " ; The same penalties shall be imposed on the fact, outside the cases provided for by law, of putting or storing in computerized memory personal data relating to offences, convictions or security measures " ;
2. Considering that, according to the of Article L. 1223-3 of the Public Health, as a result of August 9, 2004 law : " Blood establishments, the blood transfusion centre of the armed forces and the health facilities authorised to maintain and distribute blood components must have good practices whose principles are defined By a regulation established by the French Health Products Safety Agency after the opinion of the French Blood Establishment, approved by order of the Minister for Health and the Minister of Defence and published in the Official Journal of The French Republic " ;
3. Considering that, in its wording resulting from 4, paragraph III, of the order of 1 September 2005 Above, Article L. 1223-3 states: " Blood establishments, the blood transfusion centre of the armed forces and the health facilities authorised to maintain and distribute or deliver blood products must have good practices whose principles Are defined by decision of the French Health Products Safety Agency after notification of the French Blood Establishment and the blood transfusion centre of the armed forces " ;
4. Considering that, according to the applicant, by making an exception to the obligation to collect the express consent of a person wishing to donate his blood for the purpose of putting or keeping in computerised memory of personal data relating to the Health and sexual orientation, the combined provisions of Articles 226-19 of the Penal Code and L. 1223-3 of the Public Health Code disregard the principle of the legality of offences and penalties, the principle of the need for penalties, as well as the " Predictability of the law " And, in addition, by referring to undefined and undetermined legislative provisions, and in particular to those of the L. 1223-3 of the Public Health Code, the exceptions to the consent requirement underArticle 226-19 of the Code Criminal, the legislature would have Not known the " Constitutional principle of consent to the capture and retention of personal data " ;
On provisions for consideration by the Constitutional Council:
5. Considering, first, that the priority issue of constitutionality relates the first paragraph of the article 226-19 of the Penal Code ;
6. Considering, second, that it is not for the Constitutional Council, seized of a priority question of constitutionality, to question the decision by which the Conseil d' Etat or the Court of Cassation held, in accordance with article 23-5 of the order of November 7, 1958,or not a provision was applicable to the dispute or Procedure or was or not the basis of the proceedings; That, in the absence of any clarification, in the decision of the Council of State or the Court of Cassation, on the version of the provisions referred to the Constitutional Council, the priority question of constitutionality must be regarded as referring to the The provisions applicable to the dispute on the occasion of which it was raised; that, in the light of the facts underlying the dispute, the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=LEGIARTI000006686128&dateTexte=29990101 &categorieLink = cid"> article L. 1223-3 of the public health code must be looked at As having been referred to the Constitutional Council both in its version prior to theorder of 1 September 2005 referred to above and in its subsequent version Prescription;
7. Considering, however, that under the first paragraph of Article 61-1 of the Constitution: Where, on the occasion of an ongoing proceeding before a court, it is submitted that a legislative provision infrings the rights and freedoms guaranteed by the Constitution, the Constitutional Council may be seized of this matter on Reference by the Council of State or the Court of Cassation, which shall take a decision within a specified period of time " ; that the Constitutional Council may be seized under the conditions laid down in that article only by provisions of a legislative nature;
8. Considering that neither the Act of 29 December 2011 referred to above nor any other legislative provision proceeded to ratify the order of 1 September 2005; that the provisions of article L. 1223-3 of the code of public health, in drafting paragraph III of article 4 Of the order of 1 September 2005, Are not legislative provisions within the meaning of Article 61-1 of the Constitution; that there is no need for the Constitutional Council to know; that, as a result, the Constitutional Council is only seized of the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=LEGIARTI000006686128&dateTexte=29990101 &categorieLink = cid"> article L. 1223-3 of the Public Health Code in its August 9, 2004 act;
On the Constitutionality of contested provisions:
9. Considering that the legislator derives Article 34 of the Constitution, as well as the principle of legality of the offences and penalties resulting from Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789, the obligation to fix itself The scope of criminal law and the definition of crimes and offences in sufficiently clear and precise terms;
10. Considering that the first paragraph of Article 226-19 of the Penal Code punishes five years' imprisonment and 300 000 Euros fines the fact, " Outside the cases provided for by law ", to put or keep in computerised memory, without the express consent of the person concerned, personal data which show racial or ethnic origin, political opinions, Philosophical or religious, or the union membership of persons, " Or that are related to the health or sexual orientation of the ;
11. Considering that the provisions of Article L. 1223-3 of the Public Health Code are not intended to define a Exception to this criminalisation; that such exceptions are in particular defined by8 of the Law of 6 January 1978 above ; that the first Paragraph of this article prohibits the collection of personal data revealing racial or ethnic origin, political, philosophical or religious views or trade union membership of persons, " Or that are related to the health or sexual life of those " ; that the second paragraph lists the exceptions to this principle and, in particular, ' The treatment required for the purposes of preventive medicine, medical diagnosis, care or treatment, or the management of health services " ; that, in its decision of 29 July 2004, the Constitutional Council declared that Article 8 of the Act of 6 January 1978 was in conformity with the Constitution. Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000441676&idArticle=LEGIARTI000006529395&dateTexte=20040807 &categorieLink = cid"> section 2 of the aforementioned August 6, 2004 Act ;
12. Taking the view, on the one hand, that by adopting Article 226-19, the legislator has clearly and precisely defined the crime of registration or storage in the computerised memory of personal data; that, by providing for exceptions in The " Statutory cases " The provisions of this article do not misunderstand the principle of legality of offences and penalties;
13. Considering that it is not for the Constitutional Council to assess the regulatory measures taken for the application of the provisions of Article 8 of the Act of 6 January 1978;
14. Considering that it follows from the foregoing that the provisions of the first paragraph of Article 226-19 of the Criminal Code Have no infringement of the principle of legality of offences and penalties;
15. Considering, on the other hand, that the provisions of Article L. 1223-3 of the Code of Public Health, which are limited to Impose on blood establishments of " Establish good practices, the principles of which are defined by a regulation established by the French Health Products Safety Agency after the opinion of the French Blood Establishment, approved by the Minister responsible for health And the Minister of Defence " shall not disregard any right or freedom that the Constitution guarantees;
16. Considering that the contested provisions, which are contrary to any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution,
Decides:

Item 1 Read more about this Article ...


For the Constitutional Council, there is no need to rule on the constitutionality of the rights and freedoms guaranteed by the Constitution. Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=LEGIARTI000006686128&dateTexte= &categorieLink = cid"> article L. 1223-3 of the public health code in its output from Article 4, paragraph III, of Order No. 2005-1087 of 1 September 2005 on national public institutions Health and litigation related to blood transfusion.

Item 2 Read more about this Article ...


Compliant with the Constitution:


-the first paragraph of Article 226-19 of the Penal Code, in its wording from section 14 of Act No. 2004-801 of August 6, 2004 on the protection of individuals with respect to the treatment of Personal data and modifying Law n ° 78-17 of January 6, 1978 relating to computers, files and freedoms;
-the article L. 1223-3 of the public health code, in its output from Law n ° 2004-806 of 9 August 2004 on public health policy.

Item 3 Learn more about this Article ...


This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the Order of November 7, 1958, above.
Deliberated by the Constitutional Council in its session of 18 Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL, and Nicole MAESTRACCI.


Rendu public on September 19, 2014.


The President,

Jean-Louis Debré


Download The document in RTF (weight < 1MB) Excerpt from the authenticated Official Journal (format: pdf, weight: 0.21 MB)