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Where the authorisation is issued after obtaining an unfavourable opinion from the Commission for
the Oversight of Intelligence Techniques, it shall state the reasons why that opinion was not
followed.
…’
38
Article L. 833‑4 of the CSI, which appears in Chapter III of Title III, provides:
‘The Commission shall – on its own initiative or after receiving a complaint from any person
wishing to verify that no intelligence techniques have been unlawfully implemented against him or
her – conduct a review of the technique or techniques referred to with a view to determining
whether they have been or are being implemented in accordance with this Book. It shall notify the
complainant that the necessary investigations have been carried out, without confirming or denying
their implementation.’
39
The first and second paragraphs of Article L. 841‑1 of the CSI read as follows:
‘Subject to the special provisions set out in Article L. 854‑9 of this Code, the Conseil d’État
(Council of State, France) shall have jurisdiction to hear, under the conditions laid down in
Chapter III bis of Title VII of Book VII of the code de justice administrative (Code of
Administrative Justice), actions concerning the implementation of the intelligence techniques
referred to in Title V of this Book.
An action may be brought before it by:
1.
any person wishing to verify that no intelligence techniques have been unlawfully
implemented against him or her and who can demonstrate that the procedure provided for in
Article L. 833‑4 has been conducted beforehand;
2.
the Commission for the Oversight of Intelligence Techniques, under the conditions laid down
in Article L. 833‑8.’
40
Title V of Book VIII of the legislative part of the CSI, concerning ‘intelligence gathering
techniques subject to authorisation’, includes, inter alia, Chapter I, headed ‘Access of the
administrative authorities to connection data’, containing Articles L. 851‑1 to L. 851‑7 of the CSI.
41
Article L. 851‑1 of the CSI provides:
‘Subject to the conditions laid down in Chapter I of Title II of this Book, the collection of
information or documents processed or retained by their networks or electronic communications
services, including technical data relating to the identification of the subscription or connection
numbers to electronic communications services, the inventorying of the subscription and connection
numbers of a specified person, the location of the terminal equipment used and the communications
of a subscriber, namely the list of numbers called and calling and the duration and date of the
communications, may be authorised from electronic communications operators and the persons
referred to in Article L. 34‑1 of the [CPCE] as well as from the persons referred to in Article 6(I)(1)
and (2) of Loi n.° 2004‑575 du 21 juin 2004 pour la confiance dans l’économie numérique (Law
No 2004‑575 of 21 June 2004 to promote trust in the digital economy) [(JORF of 22 June 2004,
p. 11168)].
By way of derogation from Article L. 821‑2, written and reasoned applications for technical data
relating to the identification of subscription or connection numbers to electronic communications
services, or the inventorying of all the subscription or connection numbers of a specified person,
shall be sent directly to the Commission for the Oversight of Intelligence Techniques by
individually designated and authorised agents of the intelligence services referred to in
Articles L. 811‑2 and L. 811‑4. The Commission shall issue its opinion under the conditions laid
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