FRANCE: Controversial business secrecy law gets constitutional green light

(Translated with DeepL from RTL info) It was denounced as a threat to the freedom of expression: the law on business secrecy, which transposes into French law a European directive on the protection of know-how and commercial information, was validated on Thursday by the Constitutional Council.

The members of the Constitutional council were solicitated by more than 120 deputies and senators of the left (PS, PCF, La France insoumise), to which about fifty associations, trade unions and journalists’ societies had joined.

The applicants complained of “serious, excessive and unjustified interference with freedom of expression and information”. In particular, they contested ‘an overly broad definition of business secrecy, in particular with regard to the protection of employees’.

After several weeks of heated debate led by the left, the media and civil society organisations, the Parliament definitively adopted on 21 June the LREM bill transposing a European directive by 248 votes in favour and 95 against, all on the left.

The law aims to “protect companies against the plundering of innovations, fight against unfair competition,” explained Justice Minister Nicole Belloubet to the Assembly.

Opponents doubt that the bill will be useful to SMEs and fear that it will be misused to silence journalists and whistleblowers.

More than a hundred editorial offices, NGOs, journalists and journalists’ companies had called on Emmanuel Macron to modify “an unprecedented censorship tool”.

In its decision, the Constitutional Council recalls in its preamble its limited capacity to exercise its control over this type of text, Article 88-1 of the Constitution establishing the transposition of European directives into French law as a “requirement”.

However, the judges may verify that the directive does not contradict “a rule or principle inherent in France’s constitutional identity”.

They also have the possibility of declaring non-constitutional a legislative provision which they would consider “manifestly incompatible with the Directive which it is intended to transpose”. A hypothesis quickly discarded, the French text perfectly adhering to the European directive.

– “Right to alert” –

The Council said it was not in its competence to rule on the complaint that the directive transposed into law infringed freedom of expression and information. A freedom protected both by the Charter of Fundamental Rights of the European Union and by the Declaration of Human Rights and of the Citizen of 1789.

However, after stressing that the Directive gives the Member States a margin of discretion, the Council reviewed the main criticisms raised on the text, in particular, those relating to freedom of expression and information, in order to discard them more effectively.

In this regard, they pointed out in particular the existence of an “exception to the protection of business secrecy benefiting not only natural persons exercising the right of alert” but also “any person disclosing, for the purpose of protecting the general interest and in good faith, illegal activity, misconduct or reprehensible conduct”.

On the freedom to conduct business, they considered that the protective measures imposed on undertakings to claim protection of business secrecy were “reasonable” and could be assessed taking into account the “circumstances”, i.e. the means of the undertaking.


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