Difference between revisions of "CE - 431875"

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Latest revision as of 09:38, 26 November 2021

CE - 431875
Courts logo1.png
Court: CE (France)
Jurisdiction: France
Relevant Law: Article 4 GDPR
Article 9 GDPR
Article 28 de la loi n° 84-16 du 11 janvier 1984
Article 4 de la loi 78-17 du 6 janvier 1978
Article 6 de la déclaration du 26 août 1789 des droits de l'homme et du citoyen
Article 6 de la loi 78-17 du 6 janvier 1978
Décret n°63-280 du 19 mars 1963
Décret n°95-979 du 25 août 1995 modifié
L. 761-1 du code de justice administrative
L. 821-2 du code de justice administrative
L. 911-1 du code de justice administrative
Decided: 10.06.2021
Published:
Parties: Ministère de l'économie, des finances et de la relance
M. B... A...-C...
National Case Number/Name: 431875
European Case Law Identifier: ECLI:FR:CECHR:2021:431875.20210610
Appeal from: CAA Paris (France)
18PA00415
Appeal to: Unknown
Original Language(s): French
Original Source: CE (in French)
Initial Contributor: n/a

The French Council of State held that an information mentioning the fact that a person is disabled, without any detail on the type or gravity of the disability, could not be considered as data concerning health under Article 9 GDPR.

English Summary[edit | edit source]

Facts[edit | edit source]

A public officer asked for personal data to be removed from his appointment notice as published on the Ministry's website since it mentioned his status as a disabled person. The Ministry however refused to do so, on the ground that French law requires the publication of such information.

Holding[edit | edit source]

The French Council of State ('CE') held that, although the data had to be published for compliance with the law, such information was not necessary in relation to the purpose to be achieved, and should therefore be removed from the Ministry's website, in compliance with the principles of purpose limitation and data minimization (Article 5(1)(b) and (c) GDPR). However, the CE held that information about the existence of a disability could not be considered as health data when it didn't mention the type or gravity of the disability, and that Article 9 GDPR therefore did not apply to this type of data.

Comment[edit | edit source]

The interpretation given by the French Council of State's on the notion of "data concerning health" is very restrictive and seems to contradict the recitals of the GDPR as well as the EDPB guidelines on the subject.

Recital 35 of the GDPR provides in particular : "Personal data concerning health should include all data pertaining to the health status of a data subject which reveal information relating to the past, current or future physical or mental health status of the data subject. This includes (....) a number, symbol or particular assigned to a natural person to uniquely identify the natural person for health purposes; information derived from the testing or examination of a body part or bodily substance, including from genetic data and biological samples; and any information on, for example, a disease, disability, disease risk, medical history, clinical treatment or the physiological or biomedical state of the data subject independent of its source, for example from a physician or other health professional, a hospital, a medical device or an in vitro diagnostic test."

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English Machine Translation of the Decision[edit | edit source]

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

Council of State N ° 431875
ECLI:FR:CECHR:2021:431875.20210610
Mentioned at the tables of the Lebon collection 10th - 9th chambers combined
Ms Christelle Thomas, rapporteur
Mr. Laurent Domingo, public reporter
SCP MARLANGE, DE LA BURGADE, lawyers
Reading of Thursday, June 10, 2021 FRENCH REPUBLIC NAME OF THE FRENCH PEOPLE
See the following procedure:
     
     MB .. A ...- C ... asked the Administrative Court of Paris to annul the decision of the Director General of Public Finances dated May 30, 2016 rejecting his gracious appeal of April 14, 2016 tending to withdraw information concerning him in the decree of July 8, 2015 appointing him and titularizing in the grade of inspector of public finances as posted on the portal of the economic and financial ministries and to order the administration to withdraw the information concerning him appearing in this decree. By judgment n ° 1612597 / 5-2 of November 30, 2017, the Paris administrative court rejected his request.
     
     By a judgment n ° 18PA00415 of April 24, 2019, the administrative court of appeal of Paris, rejected the appeal formed by Mr. A ...- C ... against this judgment.
     
     By a summary appeal and an additional brief, registered on June 24, 2019 and September 18, 2019 at the litigation secretariat of the Council of State, Mr. A ...- C ... asks the Council of State:
     
     1 °) to cancel this stop;
      
     2 °) settling the case on the merits, to allow his appeal;
     
     3) to charge the State the sum of 3,000 euros under article L. 761-1 of the code of administrative justice.
     
     Having regard to the other documents in the file;
     
     Seen :
     - the Constitution, in particular its Preamble;
     - the European convention for the protection of human rights and fundamental freedoms;
     - the Charter of Fundamental Rights of the European Union;
     - Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995;
     - Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016;
     - Convention No. 108 of the Council of Europe for the protection of individuals with regard to automatic processing of personal data of 28 January 1981;
     - the civil code;
     - the code of relations between the public and the administration;
     - Law n ° 78-17 of January 6, 1978;
     - Law n ° 84-16 of January 11, 1984;
     - Decree No. 63-280 of March 19, 1963;
     - Decree No. 95-979 of August 25, 1995;
     - the code of administrative justice;
     
     
     
     After hearing in public session:
     
     - the report of Mrs Christelle Thomas, master of requests in extraordinary service,
     
     - the conclusions of Mr. Laurent Domingo, public protractor;
     
     The floor having been given, after the conclusions, to SCP Marlange, de la Burgade, lawyer of Mr. B ... A ...- C ...;
     
     
              
              Considering the following:
              
              1. MA ..- C ..., who was recruited at the General Directorate of Public Finances on September 1, 2014 to exercise the functions of Inspector of Public Finances under a contract of employment for a period of 'one year, concluded on the basis of the decree of 25 August 1995 relating to the recruitment of disabled workers in the public service, was, at the end of this contract, appointed and established in the corresponding grade as from 1 September 2015 by a decree dated July 8, 2015 establishing the list of staff members in the grade of public finance inspector on the basis of this decree. Believing that this decree, which was the subject of a publication in the Official Bulletin of the General Directorate of Public Finance and was posted on the internet portal of the economic and financial ministries, violated his privacy, MA. .-C ... has, by letter of December 18, 2015, requested the deletion of the mention of his name and date of birth on the version of the decree posted online. The administration rejected his request by letter dated February 12, 2016, as well as, by letter dated May 30, 2016, the free appeal filed by the person concerned on April 14, 2016 against this refusal. The latter appeals in cassation against the judgment of April 24, 2019 by which the administrative court of appeal of Paris rejected his appeal against the judgment of November 30, 2017 by which the administrative court of Paris rejected his request for 'annulment of the refusal by the administration and that the latter be ordered to withdraw the information concerning him appearing in the decree of July 8, 2015.
              
              2. Under Article 4 of Regulation (EU) 2016/679 of 27 April 2016, "1)" personal data "means any information relating to an identified or identifiable natural person (hereinafter referred to as "data subject"); is deemed to be an "identifiable natural person" a natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location, an online identifier, or to one or more specific elements specific to its physical, physiological, genetic, psychological, economic, cultural or social identity; 2) "treatment", any operation or any set of operations carried out or not at using automated processes applied to data or sets of personal data, such as collection, recording, organization, structuring, storage, adaptation or modification, extrac tion, consultation, use, communication by transmission, dissemination or any other form of making available, reconciliation or interconnection, limitation, erasure or destruction (...) "
              
              3. It emerges from the statements of the judgment under appeal that, in order to rule out the plea alleging disregard of national and European rules applicable to the processing of personal data, the administrative court of appeal ruled that neither publication by computer of a decree appointing public officials containing only the name of the persons concerned and an indication of the legal basis for their appointment, nor the decision refusing to put an end to this publication, could not be regarded as relating to the treatment of personal data by computer. By ruling out the application of these rules, while the mere publication of personal data on a website is sufficient to make them applicable, the administrative court of appeal committed an error of law.
              
              4. Consequently, and without there being any need to rule on the other grounds of appeal, its judgment must be set aside.
              
              5. It is necessary, in the circumstances of the case, to settle the case on the merits in application of the provisions of article L. 821-2 of the code of administrative justice.
              
              6. The useful effect of the annulment for excess of power of the refusal of the competent authority to proceed with the deletion of a reference appearing in a data processing lies in the obligation, which the judge can prescribe ex officio. under the provisions of article L. 911-1 of the administrative justice code, for this authority to do so. It follows that, when it is seized of conclusions for the purpose of annulment of such a refusal, the judge of the excess of power is led to assess its legality in the light of the applicable rules and the circumstances prevailing on the date of the decision. her decision.
              
              7. On the one hand, article 28 of the law of January 11, 1984 laying down statutory provisions relating to the civil service of the State provides that: "Decisions relating to appointments, promotions of ranks and retirements must be taken into account. 'subject to publication in accordance with the terms set by decree of the Council of State ". Under the terms of article 1 of the decree of March 19, 1963 relating to public administration regulations and relating to the publication of decisions concerning the individual situation of civil servants: "The publication provided for in article 28 of law n ° 84-16 of January 11, 1984 laying down statutory provisions relating to the civil service of the State, decisions on appointments, promotions of ranks and retirement are made in the Official Journal of the French Republic with regard to: (...) 2 ° Civil servants appointed by decree belonging to category A bodies of central State administrations or similar administrations; 3 ° Civil servants appointed by decree belonging to category A bodies of decentralized services or State public establishments and whose the list is established by joint decree of the Prime Minister and the minister concerned ". Under the terms of article 2 of the same decree: "The publication in the Official Journal of the French Republic of decisions concerning officials not mentioned in the preceding article is not compulsory. / In the absence of such an insertion, the publication provided for in article 28 of law n ° 84-16 of January 11, 1984 on statutory provisions relating to the civil service of the State is validly ensured with regard to these civil servants by all other procedures allowing to carry the decisions considered to knowledge of interested third parties, such as inclusion in collections or bulletins published by the administrations or professional organizations concerned, posting in administrative premises, dissemination by means of memoranda, inclusion in the local press " . By virtue of article 3 of the same decree: "The publication of a decision concerning a civil servant consists either in reproducing it in full, or in giving an extract mentioning its nature, its authors, its date and its subject".
              
              8. On the other hand, article 4 of the law of January 6, 1978 requires that the personal data which are the subject of processing are "adequate, relevant and, with regard to the purposes for which they are processed. , limited to what is necessary or, for processing under Titles III and IV, not excessive ". According to the I of article 6 of this same law: "It is forbidden to process data (...) concerning the health" of a person. Its II provides that "the exceptions to the prohibition mentioned in I are set under the conditions provided for by 2 of article 9 of regulation (EU) 2016/679 of 27 April 2016 and by this law". Under the terms of g) of 2 of Article 9 of this Regulation, the prohibition does not apply if "the processing is necessary for reasons of important public interest, on the basis of Union law or of 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 the fundamental rights and interests of the data subject ".
              
              9. It appears from the documents in the file submitted to the trial judges that the decree of 8 July 2015 appointing, classifying and establishing category A contract employees in the grade of public finance inspector, which was the subject of a publication in the Official Bulletin of the General Directorate of Public Finances and has been posted on the internet portal of the economic and financial ministries, includes the visa of the decree of 25 August 1995 relating to the recruitment of disabled workers in the public service.
              
              10. If putting such information online indirectly reveals that the people recruited in this capacity suffer from a disability, it does not directly provide any information on the nature or seriousness of this disability and cannot, therefore, be regarded as processing data relating to the health of the persons in question. However, the permanent maintenance on the website of the Ministry of this personal data exceeds what is necessary with regard to the purposes of the processing in question, which aims to guarantee the rights of third parties and respect for the principle of equal access to public employment stated. in Article 6 of the Declaration of the Rights of Man and of the Citizen of 1789. It is thus up to the competent authority, seized of a request to this effect, once the time limit for appealing against such an act has expired, to take measures to limit the processing of the data in question to what is necessary, by maintaining this publication only in the form of an extract not mentioning the legal basis of the appointment decree. In the present case, on the date of this decision, the appeal period has expired and the continued posting of information indirectly revealing the applicant's disability exceeds what is necessary with regard to the purposes of the processing.
              
              11. It follows from all the foregoing, without there being any need to rule on the other means of his request, that Mr. A. ..- C ... is justified in maintaining that it is wrong that the administrative tribunal de Paris rejected its conclusions seeking the annulment of the decision of May 30, 2016 of the Director General of Public Finances.
              
              12. The annulment of this decision necessarily implies that the Minister takes all useful measures so that the mention of the fact that Mr. A. ..- C ... was recruited on the basis of the decree of August 25, 1995 relating to the recruitment of disabled workers no longer appears on the version of the decree of July 8, 2015 posted on the website of the ministry, within a period which should be set at three months.
              
              13. It is appropriate, in the circumstances of the case, to charge the State the sum of 3,000 euros to be paid to Mr. A. ..- C… under Article L. 761 -1 of the administrative justice code.
              
              
     
     D E C I D E:
     --------------
     
Article 1: The judgment of April 24, 2019 of the administrative court of appeal of Paris and the judgment of November 30, 2017 of the administrative court of Paris are annulled.
Article 2: The decision of May 30, 2016 of the Director General of Public Finances is annulled.
Article 3: The Minister of the Economy, Finance and Recovery is enjoined to remove the mention that MA ..- C ... was recruited on the basis of the decree of 25 August 1995 relating to the recruitment of disabled workers on the version of the decree of July 8, 2015 posted on the website of the ministry, within three months of the notification of this decision.
Article 4: The State will pay the sum of 3,000 euros to Mr. A ...- C ... under article L. 761-1 of the code of administrative justice.
Article 5: this decision will be notified to Mr. B ... A ...- C ... and to the Minister of the Economy, Finance and Recovery.