On May 16, 2019, the Conseil Constitutionnel issued a decision on the conformity with the French Constitution of various provisions of the Law on the growth and the transformation of companies (“Loi Pacte”).[1] The Conseil censured several provisions of that law for the lack of connection with the initial bill. These included in particular Article 211, which provided the Government with the power to transpose the directive ECN+ into French law, and adopt various measures meant to strengthen the efficiency of procedures implemented by the FCA.

However, the Conseil upheld the conformity with the Constitution of Article 212 of the Loi Pacte, which enables the FCA to request access to telephone data of companies’ employees in order to detect or investigate potential violations of competition law. These data include detailed bills that list calls made by the telephone owner. The FCA agents, however, cannot get access to the content of these phone calls.

The Conseil had initially annulled similar provisions in the Law Macron[2] in 2015 in order to preserve the right to privacy. The Loi Pacte instituted a new procedure, which subjects all requests for data access to the prior approval of a controlling officer.[3] This position will be assumed by a judge from the Conseil d’État or the Cour de Cassation, appointed for a period of four years.

[1]              Law n°2019-486 of May 22, 2019 regarding the growth and transformation of companies.

[2]              Law n°2015-990 of August 6, 2015 for the growth, the activity and equality of economic chances.

[3]              Article L.450-3-3 of the Commerce Code.