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terrorist threat, is to be carried out in real time. The same is true of the provisions of
Article L. 851‑4, which authorise the real-time transmission by operators exclusively of technical
data relating to the location of terminal equipment. Those techniques regulate the real-time access
of the administrative authorities to data retained under the CPCE and the LCEN for various
purposes and by various means, without, however, imposing on the providers concerned any
additional retention requirement over and above what is necessary for the billing and provision of
their services. In the same vein, nor do the provisions of Article L. 851‑3 of the CSI, which require
service providers to implement on their networks an automated system for the analysis of
connections, entail general and indiscriminate retention.
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The referring court considers that both general and indiscriminate retention and real-time access to
connection data are of unparalleled operational usefulness, against a background of serious and
persistent threats to national security, in particular the terrorist threat. General and indiscriminate
retention allows the intelligence services to obtain access to communications data before the
reasons for believing that the person concerned poses a threat to public security, defence or State
security are identified. In addition, real-time access to connection data makes it possible to monitor,
with a high level of responsiveness, the conduct of individuals who may pose an immediate threat
to public order.
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Furthermore, the technique provided for in Article L. 851‑3 of the CSI makes it possible to detect,
on the basis of criteria specifically defined for that purpose, those individuals whose conduct may,
in view of their methods of communication, constitute a terrorist threat.
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In the third place, as regards access by the competent authorities to retained data, the referring
court is unsure whether Directive 2002/58, read in the light of the Charter, is to be interpreted as
meaning that it is a prerequisite for the lawfulness of the procedures for the collection of connection
data that the data subjects are informed whenever their being so informed is no longer liable to
jeopardise the investigations being undertaken by the competent authorities, or whether such
procedures may be regarded as lawful taking into account all the other procedural safeguards
provided for in national law where those safeguards ensure that the right to a remedy is effective.
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As regards those other procedural safeguards, the referring court states in particular that any person
wishing to verify that no intelligence techniques have been unlawfully implemented against him or
her may bring the matter before a specialist panel of the Conseil d’État (Council of State, France),
which is responsible for determining – in the light of the information communicated to it outside
inter partes proceedings – whether the applicant has been the subject of an intelligence technique
and whether that technique was implemented in accordance with Book VIII of the CSI. The powers
conferred on that panel to investigate applications ensure that the judicial review conducted by it is
effective. Thus, it has jurisdiction to investigate applications, to raise of its own motion any
illegalities it may find and to order the authorities to take all appropriate measures to remedy the
illegalities found. In addition, it is for the Commission for the Oversight of Intelligence Techniques
to check that intelligence gathering techniques are implemented, on national territory, in accordance
with the requirements flowing from the CSI. Thus, the fact that the legislative provisions at issue in
the main proceedings do not provide for the notification to the persons concerned of the
surveillance measures applied to them does not, in itself, constitute excessive interference with the
right to respect for private life.
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It is on that basis that the Conseil d’État (Council of State, France) decided to stay proceedings and
to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is the general and indiscriminate retention obligation imposed on providers on the basis of
the implementing provisions of Article 15(1) of [Directive 2002/58] to be regarded, against a
background of serious and persistent threats to national security, and in particular the terrorist
threat, as interference justified by the right to security guaranteed in Article 6 of the [Charter]
and the requirements of national security, responsibility for which falls to the Member States
2/15/2021, 4:58 PM