CE - N° 441065

CE - N° 441065
Court:	CE (France)
Jurisdiction:	France
Relevant Law:	Article 4(1) GDPR Article 4(2) GDPR Article 7 GDPR Article 8 GDPR Article 9(1) GDPR Article 9(2)(a) GDPR Article 9(2)(g) GDPR Article 9(2)(h) GDPR Article 35 GDPR L 521-2 Code of Administrative Justice
Decided:	26.06.2020
Published:
Parties:	Ligue des droits de l'Homme Commune de Lisses
National Case Number/Name:	N° 441065
European Case Law Identifier:
Appeal from:	Tribunal administratif de Versailles
Appeal to:	Not appealed
Original Language(s):	French
Original Source:	Conseil d'Etat (in French)
Initial Contributor:	n/a

The body temperature capture by cameras without any legal bases is manifestly unlawful and can trigger the urgency interim procedure under Art. L 521-2 of the French code of Administrative Justice. The interim relief judge is entitled to enjoin the administrative authority which allowed the processing to remove the cameras and to suspend the effect of the administrative decision authorising the processing of these sensitive data.

English Summary

Facts

The NGO « Ligue des droits de l’Homme » brought an action for interim measures under L 521-2 of the code of Administrative justice (“CAJ”), before the administrative judge of first instance of Versailles to remove fixe and portable thermal cameras installed in Lisses’ municipal offices and used in the entrance of schools to monitor the body temperature of agents and citizens. The NGO also required to suspend the execution of the decision allowing the installation of both kinds (fixed and portable cameras). After confirming that the GDPR applied, the judge of first instance issued an order rejecting the request. Thus, the NGO appealed the order before the Council of State (Conseil d’Etat) and requested mainly to annul the order, grant its request at first instance and enjoin the city of Lisses to adopt any appropriate measure to indicate that the processing of body temperature remains optional, under Art. L 521-2 CAJ. By virtue of Art. 521-2 CAJ, the interim relief judge may order any measures necessary to safeguard a fundame

Dispute

The supreme Court had to assess whether the right to the protection of personal data included in the right to privacy, constitute a fundamental freedom within the meaning of L 521-1 CAJ. Thus, if the judge could enjoin the city of Lisses to suspend the execution of its decision and remove the thermal cameras.

Holding

Although the portable thermal cameras do not record personal data, the judge clarified that the decision based on the information captured by the thermal cameras must be regarded as a processing, within the meaning of Art. 4 GDPR. Indeed, the city report to the teachers and pupils the need to leave the school depending on the highness of the body temperatures captured. Furthermore, the judge held that the body temperature was accurate enough to identify individuals and must be regarded as a sensitive personal data under the GDPR. Regarding the lawfulness, the judge rejected all the legal bases claimed by the city and hold that the processing was manifestly unlawful. Indeed, no provision has be taken regarding the thermal cameras installed by a city (Article 9(2)(g) GDPR), no provision on the necessity of the processing with regard to a health policy (Article 9(2)(g) GDPR), and the city did not demonstrate that the consent has been collected prior the processing (Article 9(1)(a) and Articles 7 and 8 GDPR). The Court added that the processing of sensitive personal data regardless the prior performance of a data protection impact assessment – under Article 35 GDPR - was sufficient to be regarded as unlawful.

As a consequence, the right to the protection of personal data has been manifestly infringed and the NGO rightly asked for the suspension of the execution of the measure and the removal of the portable thermal cameras.

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English Machine Translation of the Decision

The decision below is a machine translation of the French original. Please refer to the French original for more details.

The League for Human Rights has asked the judge of the Versailles Administrative Court for interim measures, ruling on the basis of article L. 521-2 of the Code of Administrative Justice, on the one hand, to suspend the execution of the decision, revealed in the press and on the social network Facebook, by which the municipality of Lisses decided from 17 April 2020 to install fixed and portable thermal cameras in the premises of the municipal services, in order to monitor the body temperature of persons entering the administrative centre of the commune and other communal establishments receiving the public and, secondly, to enjoin the commune of Lisses to proceed with the removal of all thermal cameras used to monitor the body temperature of agents and citizens frequenting the buildings and places managed by the administration. By order no. 2002891 of 22 May 2020, the interim relief judge of the Versailles administrative court rejected his request.

By a petition and a reply brief, registered on 8 and 21 June 2020 at the Secretariat for Litigation of the Council of State, the Human Rights League asked the judge of the Council of State's interim measures court, ruling on the basis of Article L. 521-2 of the Code of Administrative Justice:

1°) to annul this order;

2°) to grant its requests at first instance;

3°) in the alternative, to enjoin the commune of Lisses to adopt all appropriate measures to expressly and unequivocally indicate, by means of appropriate signage, that the taking of temperature by the thermal camera remains optional;

4°) in any event, to charge the commune of Lisses the sum of 3,000 euros under Article L. 761-1 of the Code of Administrative Justice.

It submits that :
- the contested order is vitiated by irregularities in that, first, the interim relief judge of the Administrative Court of Versailles refrained from submitting to the adversarial procedure the pleading which the Commune of Lisses submitted on 22 May 2020, whereas the solution adopted confirms that he relied on that pleading and, second, that the Court of First Instance of the European Communities, in its judgment of 22 May 2020, held that failing to refer to and respond to its subsidiary conclusions, which were, if the interim relief judge had accepted the legality of the contested measure, that the Commune of Lisses should be ordered to adopt all measures capable of expressly and unequivocally indicating, by means of appropriate signs, that the taking of temperature by the thermal camera remains optional;
- it is vitiated by an error of law in that it holds that the data likely to be used by the processing operation at issue should be regarded as personal data concerning health, within the meaning and for the purposes of the general regulation on data protection, without drawing the consequences, in the absence of a text authorising such processing;
- it is vitiated by an inadequate statement of reasons inasmuch as it does not respond to the plea made in the absence of a text authorising the processing in question, in breach of Article 9 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and Article 6 of Law No 78-17 of 6 January 1978;
- it is vitiated by a distortion of the documents in the file in that it retains the voluntary nature of the taking of temperature, whereas several documents in the file, such as the presentation of the system by the mayor, the charter drawn up by the administration and several staff representatives to define the health measures taken and the protocol for after-school care, explicitly indicate the compulsory nature of the system and, conversely, no document reveals the purely optional nature of the taking of body temperature and the consequences of refusing to submit to temperature monitoring;
- the contested device, consisting of a fixed thermal camera installed at the entrance to the Mechelen building and portable thermal cameras used in school and extracurricular buildings, constitutes processing of personal data which, without having received explicit and free consent or, in any event, having been authorised by a text, is prohibited by Articles 6, 7 and 9 of the General Data Protection Regulation.
By a statement of defence and a rejoinder, registered on 16 and 22 June 2020, the commune of Lisses claims that the application should be dismissed and that the sum of EUR 3 000 should be charged to the applicant association under Article L. 761-1 of the Code of Administrative Justice. It submits that the order under appeal is not vitiated by any irregularity, that the Ligue des droits de l'homme does not justify an interest giving it standing, that the condition of special urgency required by Article L. 521-2 of the Code of Administrative Justice is not satisfied and that no serious and manifestly unlawful interference with a fundamental freedom has been made.
The request was communicated to the Prime Minister, the Minister for Solidarity and Health and the Minister of the Interior, who did not submit any observations.
Having regard to the other documents in the file ;
Having regard:
- the Constitution;
- the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ;
- the general code of local and regional authorities;
- the Public Health Code;
- the Internal Security Code;
- Law No. 78-17 of January 6, 1978;
- Law No. 2020-290 of 23 March 2020;
- Law No. 2020-546 of May 11, 2020;
- decree n° 2020-548 of May 11, 2020;
- the code of administrative justice;


After summoning to a public hearing, on the one hand, the League of Human Rights and, on the other hand, the municipality of Lisses;

Were heard at the public hearing of June 23, 2020, at 10:00 a.m.:

- Mr. Spinosi, lawyer at the Council of State and the Court of Cassation, lawyer for the League of Human Rights;

- the representatives of the Human Rights League;

- Me Waquet, lawyer at the Council of State and the Court of Cassation, lawyer for the municipality of Lisses;

- the representatives of the commune of Lisses;

at the end of which the summary judge closed the investigation.


Considering the following:

1. Under the terms of Article L. 511-1 of the Code of Administrative Justice: "The judge in charge of summary proceedings shall rule by measures of a provisional nature. It shall not hear the case in the main proceedings and shall give its decision as soon as possible. "Under the terms of Article L. 521-2 of the same code: "On receipt of a request to this effect justified by urgency, the interim relief judge may order any measures necessary to safeguard a fundamental freedom which a public-law legal person or a private-law body responsible for managing a public service has, in the exercise of one of its powers, seriously and manifestly unlawfully infringed. The interim relief judge shall give a ruling within 48 hours.

On the office of the interim relief judge and the fundamental freedoms at stake:

2. It follows from the combination of the provisions of Articles L. 511-1 and L. 521-2 of the Code of Administrative Justice that it is up to the interim relief judge, when a case is referred to him on the basis of Article L., to decide on the basis of the provisions of Article L. 511-1 and L. 521-2 of the Code of Administrative Justice. 521-2 and that it finds a serious and manifestly unlawful infringement by a legal person governed by public law of a fundamental freedom, resulting from the action or failure to act of that public person, to prescribe measures which are likely to eliminate the effects of that infringement, where there is a situation of serious and manifestly unlawful urgency justifying the pronouncement of protective measures at very short notice. Such measures must, in principle, be of a provisional nature, except where no such measure is likely to safeguard the effective exercise of the fundamental freedom infringed. On the basis of Article L. 521-2, the interim relief judge may order the competent authority to take, on a provisional basis, measures to organise the services placed under its authority, where these are emergency measures which appear to him to be necessary to safeguard, at very short notice, the fundamental freedom which is seriously and manifestly unlawfully infringed. The manifestly unlawful nature of the infringement must be assessed in particular by taking account of the means at the disposal of the competent administrative authority and the measures which it has already taken.
 
3. For the application of Article L. 521-2 of the Code of Administrative Justice, the right to respect for private life, which includes the right to protection of personal data and the freedom to come and go, constitute fundamental freedoms within the meaning of the provisions of that article.
 
On the application for interim measures:

4. In order to implement the resumption of public service activities as part of the measures to combat the covid-19 epidemic, the municipality of Lisses has deployed, on the one hand, in a municipal building, a fixed thermal camera which makes it possible to report excessive body temperature of any person standing in its measurement axis, on the other hand, on the other hand, several portable thermal cameras entrusted to municipal officials so that at school entrances and during school time they can measure excessive body temperature of students, teachers or municipal staff working in schools. On the basis of article L. 521-2 of the Code of Administrative Justice, the League for Human Rights asked the interim relief judge of the Versailles Administrative Court to suspend the enforcement of the decisions leading to the deployment of these thermal cameras and to enjoin the municipality to remove the equipment. After considering that these thermal cameras constituted processing within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC ("General Data Protection Regulation") (hereinafter the "GDPR"), the interim relief judge rejected these conclusions by an order appealed by the Ligue des droits de l'homme.

On the legal interest of the Ligue des droits de l'homme :

5. Insofar as, on the one hand, thermal cameras are deployed at the entrance to premises assigned to the public service and open to its users and, on the other hand, their implementation may be regarded as that of processing sensitive personal data, the installation of this equipment is likely to affect the interests that the League for Human Rights has set itself the task of defending a sufficient infringement to give it an interest to act.

On the procedure followed by the interim relief judge of the Versailles Administrative Court :

6. Although the League for Human Rights maintains that it was unable to reply to the commune's defence before the first judge, it does not appear from the investigation that this circumstance would have undermined the adversarial nature of the procedure followed.

The legal framework applicable to the dispute :

7. According to Article 2(1) of the RGPD: "This Regulation shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system".

8. According to Article 4 of the DPMR: "For the purposes of this Regulation, the following definitions shall apply: Personal data" shall mean any information relating to an identified or identifiable natural person (hereinafter referred to as "data subject"); an "identifiable natural person" shall mean a natural person who can be identified, directly or indirectly (...); 2. processing" shall mean any operation or set of operations which is performed upon personal data or sets of personal data, whether or not by automatic means, such as collection, recording, (...) use, (...)".

9. Under Article 9 of the same Regulation: "1. The processing of data (...) relating to the health (...) of a natural person shall be prohibited / 2. Paragraph 1 shall not apply if one of the following conditions is met : (a) the data subject has given his explicit consent to the processing of such personal data for one or more specific purposes, except where Union law or the law of the Member State provides that the prohibition referred to in paragraph 1 may not be lifted by the data subject ; (...) (g) processing is necessary on grounds of substantial public interest on the basis of Union law or the law of a Member State which must be proportionate to the objective pursued, respect the essence of the right to data protection and provide for appropriate and specific measures to safeguard fundamental rights and the interests of the data subject ; (h) processing is necessary for the purposes of preventive or occupational medicine, evaluation of the worker's capacity for work, medical diagnosis, health or social care, or the management of health-care or social welfare systems and services on the basis of Union law, the law of a Member State or pursuant to a contract concluded with a health professional and subject to the conditions and guarantees referred to in paragraph 3; (...)".

10. According to Article 7 of the same Regulation: "(1) Where processing is based on consent, the controller must be able to demonstrate that the data subject has given his or her consent to the processing of personal data relating to him or her; / 2.   If the consent of the data subject is given in the context of a written statement which also relates to other matters, the request for consent shall be in a form which clearly distinguishes it from those other matters, in a form which is comprehensible and easily accessible, and formulated in clear and simple terms. No part of this statement which constitutes a breach of this Regulation shall be binding / 3. The data subject shall have the right to withdraw consent at any time. Withdrawal of consent shall not jeopardize the lawfulness of the processing operation based on the consent given prior to such withdrawal. The data subject shall be informed of this prior to giving his or her consent. Withdrawal is as simple as giving consent / 4.   In determining whether consent is freely given, the utmost account should be taken of, inter alia, whether the performance of a contract, including the provision of a service, is subject to consent to the processing of personal data which is not necessary for the performance of that contract. ». Article 8 makes consent for minors subject to specific rules.

11. Finally, under Article 35 of the same Regulation: "1. Where a type of processing, in particular through the use of new technologies, and having regard to the nature, scope, context and purposes of the processing, is likely to present a high risk to the rights and freedoms of natural persons, the controller shall prior to the processing carry out an analysis of the impact of the proposed processing operations on the protection of personal data (...)".

On the application of the legal framework to thermal imaging cameras :

12. When a thermal camera, installed at the disposal of a given public, has the sole function of providing instantaneous information to persons who so wish, without the intervention of a third party or a person handling the equipment, without any consequence as regards access to a place, good or service, and without recording or communication of the data otherwise than to the person concerned, so that the instantaneous information captured by the equipment is not accessible or usable by its manager, who thus does not carry out any data collection with this equipment, this camera cannot be regarded as giving rise to processing within the meaning and for the application of the RGPD. On the other hand, even though the thermal imaging cameras used do not record data, if they allow the capture of information, by a person acting on behalf of the person who decided to use them, and the latter, on the basis of this data, decides on an action, they must be regarded as giving rise to data collection and use operations, and therefore to processing within the meaning of Article 4 of the GDPR.

13. 13. Such processing falls within the scope of the GDMP pursuant to Article 2 of the GDMP if it meets one of the two definitions in that Article. The recording of the data collected in a file is sufficient to trigger the application of the EPMR to the file. The same applies if the processing is wholly or partly automated. For example, a single temperature reading taken with an electronic device cannot be considered automated if it is limited to the measurement of a quantified variable. On the other hand, the reporting of a deviation from the mean, which implies that the measured data is then compared to a reference standard and the compliance or deviation from the standard is reported, in the case of thermal imaging cameras by displaying a colour code, constitutes an automation of the data processing which makes it subject to the DMPR.

14. This processing, if it relates to identifiable persons and when it aims to assess the state of a significant parameter of their state of health with regard to a particular pathology, relates to personal health data.

15. A processing operation relates to identifiable data if the data it processes make it possible, by themselves, to identify individuals. However, as stated in Recital 26 of the GDMPR: "In order to determine whether an individual is identifiable, account should be taken of all the means reasonably likely to be used by the controller or by any other person to identify the individual directly or indirectly". It follows that where the implementation of the processing operation necessarily implies that the person about whom data are collected is known or identified on that occasion, even though the data collected would not be the source or basis of the identification, the processing operation must be regarded as relating to personal data within the meaning of the GDMP.
16. Pursuant to Article 35 of the GDPR, in view of the sensitivity of the data concerned and their impact on private life, such processing, where it is based, as in the present case, on previously little-used devices, the usefulness of which for public health is controversial, may be implemented only after an impact assessment has been carried out to determine the conditions and risks of operation and to decide on the measures necessary to prevent the high risks involved.

17. Pursuant to Article 9, the processing of such personal health data is prohibited unless, as far as thermal imaging cameras are concerned, it is carried out either on the basis of a text setting out the public-interest grounds which made it necessary and containing adequate safeguards, or it is carried out in the context of a prevention policy by health professionals bound by medical confidentiality and on the basis of a text governing that policy, or it is subject to the consent of each person concerned to such processing. In the latter case, the consent must meet the requirements of Article 7 of the GDPR, i.e. be free, express, specific, withdrawable and traceable, and if it concerns minors, comply with the protection rules of Article 8 of the GDPR.

Application to the individual case :

On the qualification of processing under the GDPR:

18. Firstly, at the date of this order, the fixed thermal camera installed in municipal premises does not give rise to any recording, the supplier having, at the request of the municipality, delivered it without memory capacity. It indicates by means of a colour code to the person voluntarily placing himself in the space allowing its operation, if his body temperature is higher than normal. No employee of the controller handles the camera or has access to the results of its operation. No consequences are drawn from the existence or absence of voluntary taking of body temperature by the persons who take part in it. Access to the premises for both staff and service users is possible without any difficulty by avoiding the use of the thermal camera. No text or information can be considered as constraining or inducing or even suggesting the use of this camera.

19. 19. Consequently, in the light of the abovementioned rules, the thermal camera cannot be regarded as giving rise to processing within the meaning and for the application of the abovementioned provisions. The Ligue des droits de l'homme is thus not entitled to complain that, despite the erroneous legal characterisation of treatment given by the order which it attacked the cameras whose removal it was seeking, the interim relief judge of the Administrative Court of Versailles rejected its conclusions to that extent.

20. 20. Secondly, the hearing established that portable thermal cameras handled by municipal officials in schools are used, not only at the beginning of the school day but also during the school day, to measure the body temperature of pupils, teachers and municipal staff working on school premises. When an abnormal difference in temperature is found, teachers or municipal staff are asked to leave the service and, as far as pupils are concerned, parents are immediately contacted to collect children who have to leave the school.

21. The collection of health data in this way by the thermal cameras constitutes processing within the meaning of Article 4 of the GDPR. This processing, which collects temperature data and then displays the existence or absence of a deviation from normal, is automated.
22. 22. The cameras instantly display the contours of a human body and a colour code indicating the deviation of body temperature from normal. While the identification of persons whose temperature is recorded by the officers does not allow this data to be viewed as personal, it is possible that the image processed by the system, even if not stored, may be sufficiently accurate to be identifiable. In any event, it follows from the very context in which the cameras are implemented that the identity of the persons giving rise to their use is necessarily known even before the data is collected and in order to use it. The data processed are therefore personal within the meaning of the GDPR.
On the processing regime :
23. At the end of the exchanges between the parties at the hearing, it is not possible to consider that the legal conditions for processing personal health data provided for in Article 9(2)(g)(2) of the GDPR are met, in the absence of a text governing the use of the thermal cameras deployed by the municipality and specifying the public interest which may make it necessary. Similarly, the conditions laid down in Article 9(2)(g) of the RGPD are not met, in the absence of a text governing the use of thermal cameras deployed by the municipality and specifying the public interest which may make it necessary. Nor is the additional condition laid down in Article 9(3), i.e. the requirement that such data be handled by health professionals bound by medical confidentiality, satisfied. The Commune cannot therefore maintain that those provisions made it possible to process the health data concerned.

24. 24. The Municipality argues that the processing is also based on consent within the meaning of Article 9(2)(a) of the GDPR. However, there is no reason to consider this consent as meeting the requirements of Article 7 and, as far as children are concerned, the additional requirement of Article 8 of the GDPR. Indeed, although the municipality claims to have sent each family a form of consent to the rules of the health protocol for returning children to school established by the public authorities, it is not able to show that this consent was actually collected, kept and consulted before the treatment was carried out for each child, nor that it was given specifically for the treatment, containing all the necessary information, in particular as regards the exercise of the rights of access, rectification, possible opposition or the possibility of withdrawing this consent. The fact that children's access to the school is subject to acceptance of the use of temperature taking by thermal camera in any event rules out the possibility that consent may be regarded as free.

25. The infringement of fundamental freedoms resulting from the processing of personal health data in this way therefore appears manifestly unlawful. An impact assessment would have made it possible to establish the dangers of deploying the thermal cameras under those conditions, an assessment whose failure, in breach of Article 35 of the GDPR, would moreover be sufficient in itself to render the processing illegal.

26. The manifestly unlawful infringement thus constituted of the fundamental freedoms referred to in paragraph 3, the urgency of remedying it being established and not contested, is such as to justify the use of the powers referred to in Article L 521-2 of the Code of Administrative Justice.

27. It follows from the foregoing that the Ligue des droits de l'homme is entitled to argue that it is wrong that, by the order under appeal, the interim relief judge of the Versailles Administrative Court rejected its conclusions to suspend the deployment of these portable thermal imaging cameras.

28. It is therefore appropriate to annul that order and order the commune of Lisses to put an immediate end to the use of the portable thermal imaging cameras deployed in schools.

29. In the circumstances of the case, there is no need to accept the conclusions of the Human Rights League in order to obtain payment by the commune of Lisses of a sum of money on the basis of the provisions of article L. 761-1 of the Code of Administrative Justice. These same provisions prevent the sum of 3,000 euros from being charged to the Human Rights League, which is not the losing party, in favour of the commune of Lisses.


O R D O N N E :
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Article 1: The order of the interim relief judge of the Versailles administrative court dated 22 May 2020 is annulled in so far as it rejected the conclusions of the application of the Human Rights League concerning the deployment of portable thermal cameras in the schools of the commune of Lisses.

Article 2: The commune of Lisses is ordered to put an end to the use of portable thermal cameras in the schools of the commune.
Article 3: The remainder of the conclusions of the petition of the League for Human Rights and the commune of Lisses is rejected.
Article 4: The present ordinance shall be notified to the Human Rights League and the commune of Lisses.
A copy shall be sent to the Prime Minister, the Minister of Solidarity and Health and the Minister of the Interior.