This English to French translation of the judgment of the French Constitutional Court known as the Constitutional Council (Le Conseil Constitutionel) in the case of Parcoursup was first made by Google Translate. Robin Allen QC has sought to improve that translation in the document below. The accuracy of this translation is not warranted, accordingly readers are advised to read the original French text . It may be that in due course an official English translation will appear on the website of Le Conseil Constitutionel.
A blog discussing the views of the AI Law Consultancy as to the importance of the decision is available here.
Please note those parts of this judgment which the AI Law Consultancy consider to be particularly important have been emphasised in bold below.
Decision no.2020-834 QPC April 3, 2020 (National Union of Students of France)
On the 16th January 2020, pursuant to the Council of State Decision No 433296 and 433297 of 15 January 2020, and article 61-1 of the Constitution, the Constitutional Council (Le Conseil Constitutionel) considered a priority question of constitutionality
This issue was raised by the National Union of Students of France represented by SCP Anne Sevaux and Paul Mathonnet, lawyer at the Council of State and at the Court of Cassation, registered at the General Secretariat of the Constitutional Council under the n° 2020-834 QPC.
The case relates to compliance with the rights and freedoms that the Constitution guarantees in the last paragraph of paragraph I of article L. 612-3 of the education code, as drafted following law n° 2018-166 of March 8, 2018 relating to the orientation and success of the students.
In view of the following texts:
– the Constitution;
– Ordinance No. 58-1067 of 7 November 1958 laying down the law organic on the Constitutional Council;
– the education code;
– the code of relations between the public and the administration;
– Law n ° 2018-166 of March 8, 2018 relating to the orientation and student success;
– Decision Nos 427 916 and 427 919 of the State Council of 12 June 2019;
– the regulation of February 4, 2010 on the procedure followed before the Constitutional Council for priority questions of constitutionality;
In view of the following documents:
– comments in an intervention presented for the conference of university presidents, the grandes écoles conference, the conference of directors of French engineering schools, the assembly of directors of university institutes of technology, and the association of principals of high schools with preparatory classes for grandes écoles by SCP Rocheteau and Uzan-Sarano, lawyer at the Council of State and the Court of Cassation, registered February 5, 2020;
– the observations submitted for the applicant association by the SCP Anne Sevaux and Paul Mathonnet, recorded on February 6, 2020;
– the observations presented by the Prime Minister, recorded the same day;
– the observations in intervention presented by Mr. Léo G., recorded the same day;
– the observations in intervention presented for La Quadrature from the Net by Me Alexis Fitzjean Ó Cobhthaigh, avocat at the Paris bar, recorded the same day;
– the comments in intervention presented for the union national higher education, the national union of CGT unions higher education and research institutions, the union National Labor Force of Higher Education and Research and the federation of democratic solidarity unions education by Me Florian Borg, lawyer at the Paris bar, registered the same day;
– the observations in intervention presented for the union national lycée, the federation of parents’ councils of school children public, the Solidaires student-es union and the French lawyers’ union by Mes Gérard Tcholakian and Me Juan Prosper, avocats at the Paris bar, registered the same day;
– the second observations in intervention presented by Mr. LéoG., registered on February 20, 2020;
– the second observations presented for the association applicant by SCP Anne Sevaux and Paul Mathonnet, registered on February 21, 2020;
– the second observations presented by the Prime Minister,recorded the same day;
– the second intervention observations presented for LaSquaring the net by Me Fitzjean Ó Cobhthaigh, recorded the same day;
– the other documents produced and attached to the file;
After hearing Me Paul Mathonnet, lawyer at the Council of State and at the Court of Cassation, for the applicant union, Me Cédric Uzan-Sarano ,lawyer at the Council of State and at the Court of Cassation, for the conference of university presidents and four other intervening parties, Me Juliette Lesueur, avocat at the Paris bar, for Mr. Léo G., Me Fitzjean O’Cobhthaigh for La Quadrature du net, Me Borg for the national union of higher education and three other intervening parties, Me Prosper for the national high school student union and three other intervening parties and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing ofMarch 10, 2020;
In view of the following documents:
– the note under deliberation presented by the conference of presidents university, the conference of the grandes écoles, the conference of the directors French engineering schools, the assembly of directors of institutesacademics of technology and the association of high school principals at preparatory classes for grandes écoles by SCP Rocheteau and Uzan-Sarano, registered March 13, 2020;
– the note under deliberation presented by the Prime Minister, recorded 1st April 2020;
And after hearing the rapporteur;
THE CONSTITUTIONAL COUNCIL HELD AS FOLLOWS:
1.The second paragraph of paragraph I of Article L. 612-3 of the Education Code, in its version resulting from the law of 8 March 2018 mentioned above, establishes a national pre-registration procedure in the first cycle of higher education training. The last paragraph of the same paragraph provides:
“In order to guarantee the necessary protection of the secrecy of deliberations of the teaching teams responsible for examining applications submitted under the national procedure for pre-registration provided for in the same second paragraph, the obligations arising from Articles L. 311-3-1 and L. 312-1-3 of the code of relations between the public and the administration are deemed to be satisfied as soon as the candidates are informed of the possibility to obtain on request, communication of information relating to criteria and procedures for the examination of their applications as well as the educational reasons which justify the decision in their case”.
2. The applicant union, joined by several parties interveners, criticizes these provisions for restricting access to information relating to the criteria and methods of examination, used by the higher education institutions, in relation to applications for enrollment in undergraduate training. According to the union, these provisions are contrary to the right to communicate administrative documents contained in article 15 of the Declaration of Rights of Man and Citizens of 1789. Indeed, these provisions would exclude all access, by candidates, just as much as by third parties, to the algorithms likely to be used by establishments to process applications for entry to such a training, formulated on the digital platform called “Parcoursup”. Moreover, it is argued that such an exclusion is not justified either by the secrecy of jury deliberations or for any other reason. Furthermore, these provisions are contrary to the right to an effective judicial remedy for two reasons. First, they prevent a successful appeal against the absence of communication of the information in question. Second, they deprive the student of the necessary elements to make an effective challenge of well-founded refusals of registration.
3. In this respect, the priority question of constitutionality turns on the words “In order to guarantee the necessary protection of the secrecy of deliberations of the teaching teams responsible for examining applications submitted under the national procedure for pre-registration provided for in the same second paragraph, the obligations arising from Articles L. 311-3-1 and L. 312-1-3 of the code of relations between the public and the administration are deemed satisfied as soon as “ appearing in the last paragraph of paragraph I of article L. 612-3 of the education code.
– As to the interventions:
4. According to the second paragraph of article 6 of the internal regulations of February 4, 2010 mentioned above, only those who have a “Special interest” are allowed to present an intervention.
5. Mr. Léo G. bases his application to be permitted to intervene on his academic work on the communicability of administrative documents, and his quality as a teacher-researcher, which brings him into contact with students enrolled in higher education following the procedure provided for in article L. 612-3 of the education code, but these two elements are not such as to give him the special interest necessary to intervene in the proceedings concerning this priority question of constitutionality.
6. Likewise, the French lawyers’ union does not justify either of such special interest provisions.
7. Consequently, these two interventions are not allowed.
– As to the background for this issue:
As regards the complaint alleging a failure to take into account Article 15 of the 1789 Declaration:
8.Under Article 15 of the 1789 Declaration: “Society has the right to require of every public agent an account of his administration. ” . The right of access to administrative documents is guaranteed by this provision. The legislature may establish limitations to this right based on constitutional requirements or justified by the general interest, provided they are not disproportionate to the objective pursued.
9.Paragraph I of article L. 612-3 of the Education Code determines the rules for registration in the initial training of the first higher education provided by public establishments. It provides that registration in one of these courses is preceded by a national pre-registration procedure, that considers the knowledge of the candidates against the characteristics of each such training. These characteristics are subject to a “national framework” fixed by decree of the Minister of Higher Education. Establishments can supplement these by taking into account the specificities of their particular training courses.
10. In the case of non-selective training, paragraph IV ofArticle L. 612-3 establishes a mechanism for selecting candidates when their number exceeds the capacity to deliver the requested training. In this case, enrollments are decided by the school head comparing the training project of candidates, and their acquired skills, with the nature of the training. The school head decides on the information given by the establishment’s review committees, for each of its training courses . Each committee defines the criteria and procedures for examining applications, in compliance with the general criteria set by the establishment.
11. The last paragraph of paragraph I of article L. 612-3 provides that applicants can seek disclosure of the criteria and methods of examination used by the establishments and the educational reasons justifying the decision taken in respect of them. However, the provisions of this paragraph are disputed in that they have the effect of excluding the application of two articles of the public relations code and administration relating to the communication and publicity of algorithmic processing, that is used as the exclusive or part basis for an individual administrative decision. The first provision excluded is the application of article L. 311-3-1 of the said code, which would require the administration, subject to there being no secrets protected by law, to communicate to the candidate who requests, the rules defining the algorithmic processing and the main characteristics of its implementation. The second provision which is excluded is the application of article L. 312-1-3 of the same code, which would require the administration, subject to the same reservation, to publish online the rules defining the main treatments algorithms used in the accomplishment of its missions.
12. It follows from settled case-law of the Council of State that the contested provisions provide access to administrative documents relating to the algorithmic processing (if used by higher education institutions for the review of applications), only to candidates and only once the decision concerning them has been taken, and only for information relating to the criteria and procedures for examining their application. Third parties ask that these criteria and methods are communicated to them. Likewise before a decision has been made about them, candidates cannot therefore ask that these criteria and methods are communicated to them.
13. First, it appears from the preparatory work, however, that the legislator considered that the determination of these criteria and modalities for examining applications, when processed algorithmically, was not dissociable from the assessment of each application. By restricting access to administrative documents specifying these criteria and methods, the legislator therefore wished to protect the secrecy of the deliberations the establishments’ teaching teams. This was intended to ensure the independence of these teaching teams and the authority of their decisions. In doing so, it pursued an objective of general interest.
14. Second, the national pre-registration procedure established in Article L. 612-3 of the Education Code, is not fully automated, when organizing the conditions under which establishments examine the registration of candidates. In addition, it is is only a possibility that establishments might use algorithmic processing in carrying out this examination. Moreover, when appealed, the decision taken on each application cannot be exclusively based on an algorithm. On the contrary, the merits of candidacies, must be subject to an appreciation by the review committee and then by the Headmaster.
15. Third, pursuant to the second paragraph of paragraph I ofAarticle L. 612-3, the characteristics of each process are brought to the attention of candidates, before they express their wishes on the digital platform set up as part of the national pre-registration procedure. They are the subject of a national framework fixed by decree of the Minister of Higher Education. It follows, on the one hand, that candidates have access to information relating to the knowledge and skills expected for the success in training, as set at national level and completed by each establishment. They can thus be informed of considerations by which institutions will assess their applications. It follows, on the other hand, that candidates also have access to the general criteria governing the examination of applications by the review boards. If the law does not provide for third parties only to have specific limited access to this information, it is not covered by secrecy. The administrative documents relating to this knowledge and skills expected and to these general criteria can therefore be communicated to people who request it, under common law conditions provided for by the code of relations between the public and the administration.
16. Lastly, pursuant to the last paragraph of paragraph I of Article L. 612-3, once a refusal decision has been taken against them, candidates may, on request, obtain communication of the information relating to the criteria and procedures for examining their applications, as well as the educational reasons for the decision made about them, from the establishment. They can thus be informed of the prioritization and weighting of the different criteria established by the establishments. as well as the details and additions to these general criteria for the examination of applications for registration. The communication provided by these provisions may, in addition, include information relating to the criteria used by the processing operations algorithms which may have been used by review panels.
17. This communication only benefits candidates. However, once the national pre-registration procedure is completed, the absence of third party access to all information relating to the criteria and procedures of examination of the applications actually accepted by the establishments would be a disproportionate interference with the right guaranteed by article 15 of the Declaration of 1789, with regard to the objective of general interest pursued, derived from the protection of the secrecy of the deliberations of the teaching teams. Consequently, the contested provisions cannot, without infringing the right of access to administrative documents, be interpreted as permitting each establishment to avoid publishing, at the end of the national pre-registration process (and subject to maintaining the privacy of candidates), a report of the criteria by which applications have been reviewed and, if so, to what extent algorithmic processing was used to carry out this examination.
18. It follows from the above that, subject to the reservation set out in the previous paragraph, the limitations brought by the provisions challenged with the exercise of the right of access to administrative documents resulting from article 15 of the Declaration of 1789 are justified by a reason of general interest and proportionate to this objective. The complaint based on the ignorance of this article must therefore, with this reservation, be dismissed.
As regards the complaint alleging breach of the right to an effective judicial remedy:
19. Under article 16 of the 1789 Declaration: “”A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”. It results from this provision that there should be no substantial infringements of the right persons interested in exercising an effective judicial remedy.
20. On the one hand, the refusal by a superior educational institution to communicate an administrative document relating to the exam on application for registration in an undergraduate course, constitutes an administrative decision subject to appeal to the administrative judge . The same applies to the refusal to register in such training. On the other hand, the restriction of access to certain administrative documents relating to the algorithmic treatment possibly used by the establishment does not undermine the effectiveness of appeals against a decision refusing registration.
21. Consequently, the complaint alleging breach of Article 16 of the Declaration of 1789 must be dismissed.
22. It follows from all of the above that the disputed provisions, which are not contrary to any other right or freedom that the Constitution guarantees, must, subject to the paragraph set out in paragraph 17, be declared in accordance with the Constitution.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. – The statements by Mr. Léo G. and the lawyers’ union of France are not admitted.
Article 2. – Subject to paragraph 17, the words “In order to guarantee the necessary protection of the secrecy of team deliberations, resources responsible for examining the applications presented in the part of the national pre-registration procedure provided for in the same second paragraph, in the obligations resulting from articles L. 311-3-1 and L. 312-1-3 of the code relations between the public and the administration are deemed to be satisfied as soon as when » appearing in the last paragraph of paragraph I of article L. 612-3 of education code, in its version resulting from law n ° 2018-166 of March 8, 2018 relating to the orientation and success of the students, are in accordance with the Constitution.
Article 3. – This decision will be published in the Official Journal of the French Republic and notified under the conditions provided for in article 23-11 of the aforementioned ordinance of November 7, 1958.
Judged by the Constitutional Council in its session of April 2, 2020, by Mr. Laurent FABIUS, President, Mr. Alain JUPPÉ, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET and Michel PINAULT.
Released on April 3, 2020.