AC – Court Ruling (France, 2024)

[https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000046221284?init=true&page=1&query=bio%C3%A9thique&searchField=ALL&tab_selection=all The Bioethics Law] (la loi sur la bioéthique) amended the [https://www.legifrance.gouv.fr/codes/texte_lc/LEGITEXT000006072665/ Public Health Code] (Code de la santé publique) to grant individuals who were conceived with the assistance of third party donors the right to access the identity and some non-identifying data of the donor. This amendment also required donors to expressly consent to the communication of their identity and data to the Commission for the Access of Persons born from Medical Assistance to Procreation (CAPADD). Donation was not permitted without this consent. The data included age, general condition, physical characteristics, family and personal situation, country of birth and motivation for the donation. The transitional provisions of the amendment made it possible to obtain the consent of the donor who made their donation before the amendment was enacted.   The applicants decided to challenge the legality of the amendment before the Supreme Administrative Court of France. The applicants put forward several arguments to cancel the amendment to the Public Health Code, inter alia alleged infringement of principal of legal certainty or conformity of the amendment with French constitution. One of the arguments referred to a violation of Article 21(1) GDPR and Article 6(1)(e) GDPR. The applicants claimed that the former donors, namely donors who were not under the consent requirement of the new law, could not exercise their right in relation to the authority – CAPADD. The CAPADD was entitled to processes the contact data of former donors, transferred from the organisation or establishment where they made their donation. A person conceived by medical assistance may request to access the data of a particular former donor. Then, the CAPADD would contact this former donor to obtain their consent for disclosure of the data. The court decided to reject applicants’ request as it was not substantiated enough. The court based its reasoning on the extensive interpretation of the contested provisions. Also it recalled the Constitutional Council’s [https://www.conseil-constitutionnel.fr/decision/2023/20231052QPC.htm judgement] relevant for the case at hand. Regarding the alleged violation of the GDPR, the court held that it was unfounded. As long as former donors' data transfers from the organisation or establishment where they made their donation to the CAPADD were based on Article 6(1)(e) GDPR, each donor would enjoy the right to object under Article 21(1) GDPR. Neither, the original law, nor the contested amendment would impede the application of Article 21(1) GDPR to transfer at hand. The plea that former donors could not object to the transfer of personal data concerning them was therefore rejected.