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:	TA Versailles (France)
Appeal to:	Not appealed
Original Language(s):	French
Original Source:	Conseil d'Etat (in French)
Initial Contributor:	n/a

The body temperature captured 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.