CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 septembre 2022

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padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .s90EB8675 { margin-top:14pt; margin-left:53pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.2pt; font-family:Arial; font-weight:bold } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s74818F78 { margin-top:14pt; margin-bottom:3pt; text-align:justify; font-family:Arial; list-style-position:inside } .sE7B3A78A { width:1.99pt; font:7pt 'Times New Roman'; display:inline-block } .sFBC99493 { font-style:italic } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s543FF837 { width:151.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   FIFTH SECTION CASE OF DRELON v. FRANCE (Applications nos. 3153/16 and 27758/18)     JUDGMENT   Art 8 • Private life • Collection of data on sexual behaviour of potential blood donor based on speculation, and excessive length of data retention by public body • Applicant deferred from blood donation on basis of law requiring contraindication for men who had had sexual intercourse with another man •   Relevant and sufficient reasons of blood safety • Mere speculation due to applicant’s refusal to provide information on his sexual behaviour during pre ‑ donation medical interview • Margin of appreciation exceeded   STRASBOURG 8   September 2022   FINAL   08/12/2022     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Drelon v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary , President ,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Lətif Hüseynov,   Arnfinn Bårdsen,   Mattias Guyomar,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the applications (nos.   3153/16 and 27758/18) against the French Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Laurent Drelon (“the applicant”), on 8   January 2016 and 8   June 2018; the decision to give notice of the applications to the French Government (“the Government”); the parties’ observations; Having deliberated in private on 5   July 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applications concern, first, the collection and retention of personal data reflecting the applicant’s presumed sexual orientation and, second, the rejection of his offers to donate blood. The applicant complained of a violation of Articles   8 and   14 of the Convention. THE FACTS 2.     The applicant was born in 1970 and lives in Paris. He was represented by Mr   P.   Spinosi, a lawyer practising in Paris. 3.     The Government were represented by their Agent, Mr   F.   Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs. THE APPLICANT’S ATTEMPTS TO GIVE BLOOD AND THE COLLECTION OF HIS PERSONAL DATA 4.     On 16   November 2004 the applicant attempted to give blood at a donation site operated by the Île-de-France branch of the French blood donation service ( Établissement français du sang – “the EFS”), a State-run body. During a pre-donation medical interview, he was asked whether he had ever had sexual intercourse with another man. He refused to answer and, as a result, his offer to give blood was rejected. 5.     During the interview, personal data on the applicant were entered into a computer database specific to the organisation. These included his identification and contact details. The database entry also showed that he was subject to a contraindication to blood donation under code “FR08”, which was used at the material time for men who had had sexual intercourse with another man (see paragraphs   59 and 60 below). 6 .     On 9   August 2006 the applicant made another attempt to give blood. He was told that he was listed under code “FR08” and was deferred. At his request he was given a copy of his personal data. A section on applicable “disqualifications” indicated that the contraindication to donation in issue had been registered on 16   November 2004. It also specified that the disqualification was valid until 2278. 7 .     On 26   May 2016 the applicant tried once again to give blood. To this end, he presented biological tests dated 15   March and 3   May 2016 showing that he was not infected with HIV-1, HIV-2 or HCV. He was again rejected and the doctor who interviewed him merely noted that his previous offers to give blood had been rejected due to his presumed homosexual behaviour. THE CRIMINAL COMPLAINT BY THE APPLICANT WITH AN APPLICATION TO JOIN THE PROCEEDINGS AS A CIVIL PARTY (APPLICATION NO.   3153/16) 8.     On 6   February 2007 the applicant lodged a criminal complaint for discrimination, together with an application to join the proceedings as a civil party, with the senior investigating judge of the Paris tribunal de grande instance , complaining about the refusals to accept him as a blood donor in 2004 and 2006 and the fact that the EFS had registered his presumed homosexual behaviour. 9.     On 22   February 2008 the investigating judge examining the complaint found that these facts did not amount to a criminal offence and refused to open a criminal investigation. 10 .     On an appeal by the applicant against this refusal, the Investigation Division of the Paris Court of Appeal ruled on   15 September 2009 that the facts complained of did not constitute discrimination within the meaning of Articles   225-1 et seq. of the Criminal Code. The court did, however, find that the investigating judge should have ascertained whether those facts might constitute the offence provided for in Article   226-19 of the Criminal Code, which at the material time criminalised “the act, except in the cases provided for by law, of recording or retaining in electronic format, without the express consent of the person concerned, personal data ... on health or sexual orientation”. The court thus set aside the refusal to open a criminal investigation in that respect. 11.     As a result, an investigation into the processing of the applicant’s data was carried out under the instructions of the investigating judge. In particular, the investigators interviewed the applicant, the donation site manager and the EFS’s legal director. 12 .     In a memorandum drawn up on 9   February 2010 at the instance of the investigators, the EFS confirmed that in 2004 its Île-de-France branch operated a database containing such personal data as contraindications to blood donation. The automatic data processing had been disclosed to the National Commission on Data Processing and Civil Liberties ( Commission nationale de l’informatique et des libertés – “the CNIL”) in advance and implemented on the basis of a regulation published in the regional prefecture’s compendium of administrative decisions. The EFS further explained that donor selection criteria at the material time were set out in the medical and technical documentation shared by all its branches. The codes used in the database to designate contraindications (particularly the code “FR08”), however, were specific to the Île-de-France branch. The EFS also specified that the applicant’s personal data had been transferred in 2007 to another database operated by the branch as part of the roll-out of a new IT tool. While the codification had changed, a specific code was still used for the contraindication in issue. 13.     The investigating judge interviewed the applicant. The EFS and the donation site manager were given the status of “legally assisted witness” ( témoin assisté ). 14.     On 21   November 2012 the criminal proceedings were discontinued. 15.     The applicant appealed against that decision. 16 .     In a judgment delivered on 18   April 2013 the Investigation Division upheld the decision. First, it noted that the classification of contraindications to blood donation was provided for in an order issued on 10   September 2003 for the application of Article L.   1223 ­ ‑ 3 of the Public Health Code, and that the processing of the data in issue had been disclosed to the CNIL on 31   July 2000. It inferred from this that the legislature had intentionally made an exception to the prohibition laid down in Article   226-19 of the Criminal Code and that it was thus not a criminal offence to collect the data in issue. 17.     Second, the Investigation Division found that the applicant had been informed in 2004 that data on his sexuality might be retained by the EFS. In that connection, it observed that the health questionnaire that potential donors were asked to fill out prior to their medial interview at the material time ended with the following note: “... you are hereby informed that certain information requested from you, in particular in the pre-donation questionnaire and the pre-donation interview, will be recorded in electronic format by the Établissement français du sang , as will certain personal information collected during the blood donation itself. ... You have the right to access [these data] and, if they are inaccurate, to have them rectified or deleted.” The Investigation Division further noted that similar information was displayed inside the donation site. 18.     The applicant appealed on points of law against the judgment, arguing in particular a violation of Articles   8 and 14 of the Convention. 19.     At the applicant’s request, a preliminary ruling on constitutionality was sought from the Constitutional Council with respect to Article L.   1223 ‑ 3 of the Public Health Code and Article 226-19 of the Criminal Code. 20.     In its decision of 19   September 2014 the Constitutional Council held that the provisions submitted to it for review were compatible with the Constitution. It pointed out, as a secondary consideration, that it was not the purpose of Article L.   1223 ‑ 3 of the Public Health Code to make an exception for the offence provided for in Article   226-19 of the Criminal Code, but rather that of section   8 of the Law of 6   January 1978 (see paragraph 37 below). 21.     The Court of Cassation then dismissed the applicant’s appeal in a judgment of 8   July 2015, giving the following reasons: “Although the Investigation Division wrongly cited Article L.   1223-3 of the Public Health Code and the Order of 10   September 2003 ... when finding that the offence provided for in Article 226-19 of the Criminal Code was not applicable in the present case, its decision should not necessarily be overruled, because the matter in issue, as assessed by the judges in the exercise of their unfettered discretion, falls within the scope of section   8(II)   6 o of the Law of 6   January 1978, which states that the prohibition under subsection   I thereof on the collection and processing of personal data concerning, in particular, individuals’ health or sex life does not apply to processing that is (i)   required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health services, and (ii) performed by a health professional or another person subject to the obligation of professional secrecy. It follows that, even without Mr Drelon’s express consent to the recording or retention of his personal data, the behaviour of the health professionals and facilities of which he complained does not fall within the scope of the offence provided for in Article   226-19 of the Criminal Code, which itself refers to statutory exceptions to the prohibition on recording sensitive personal data in electronic format. ... ... [T]he Investigation Division did not violate any of the European legislation referred to in the grounds of appeal [and in particular Articles   8 and 14 of the Convention], because the exception to the requirement of obtaining an individual’s consent for the recording and retention of personal data relating to health or sexual orientation, pursuant to the provisions of Article   226-19 of the Criminal Code and section   8 of the Law of 6   January 1978 taken together, is a measure that is legitimate, necessary to protect people’s health, defined by law with sufficient precision so as to avoid arbitrariness, and suitable as matters stand for ensuring a not unbalanced reconciliation between respect for privacy and protection of public health. ...” ACTIONS CHALLENGING the orders defining contraindications to blood donation (application no.   27758/18) 22.     From 2009 onwards, the contraindications to blood donation were defined by the Minister of Health by means of ministerial orders (see paragraph   61 below). The applicant challenged the list on two occasions, on the basis that it provided for a contraindication to donation for men who had had sexual intercourse with another man. The dispute relating to the rejection of the request to repeal the Order of 12   January 2009 23.     The applicant first sought the repeal of the Order of 12   January 2009. The Minister of Health rejected this request. 24.     The applicant then brought judicial-review proceedings before the Conseil d’État to have the rejection set aside. However, the order in issue was repealed while the proceedings were pending and the Conseil d’État noted, in a decision of 18   July 2016, that they had become without object. The application for judicial review of the Order of 5   April 2016 25.     By an application of 10   June 2016 the applicant then brought a judicial-review claim asking the Conseil d’État to strike down the Order of 5   April 2016, which had modified the selection criteria for blood donors (see paragraph   63 below). 26.     The applicant first argued that the contraindication in issue was in breach of Directive 2004/33/EC and the principle of non-discrimination enshrined in Article   21 of the Charter of Fundamental Rights of the European Union, read in the light of Articles   8 and 14 of the Convention and the Court’s case-law, and in breach of the constitutional principle of equality. He then asserted that that reason for contraindication to blood donation violated the constitutional principle of the protection of human dignity. In that connection, he claimed that giving blood was an “act of human solidarity” and that deferring people from donation on the grounds of their sexual orientation was stigmatising and demeaning. Lastly, he submitted that that reason for contraindication to donation entailed specific registration of homosexual men who had attempted to give blood, which he considered to be in breach of the rules of constitutional, EU and treaty law protecting the right to respect for private life. 27 .     On 28   December 2017 the Conseil d’État dismissed his claim, giving the following reasons for its decision: “5. In accordance with recitals   2 and   24 of Directive 2002/98/EC of the European Parliament and of the Council of 27   January 2003, the Minister of Health must take all precautionary measures when determining contraindications to blood donation in order to minimise any risk of transmission of infectious diseases. Given how serious the consequences of such a transmission to a blood recipient could be, and the need to preserve the doner-recipient trust underpinning the blood donation and transfusion system, the health authorities have a duty to prioritise measures best able to ensure recipients’ safety when a risk cannot be ruled out based on the scientific and epidemiological data available. These measures may include selecting blood donors based on objective risk-exposure criteria, without such selection constituting illegal discrimination against certain potential donors. The grounds of the applications : 6.     Appendix   II to the order in issue sets contraindications to blood donation based on the risk for either the donor or the recipient. In terms of the risk of transmitting an infectious agent to the recipient, various situations that may have exposed the potential donor to a sexually transmitted infection are listed, differentiating between several types of sexual behaviour for homosexual and heterosexual individuals of both sexes and, for each hypothesis, defining the appropriate length of the contraindication period following exposure to the risk. In particular, the order repeals former provisions providing for a permanent contraindication for all men who have had sexual intercourse with another man and replaces them, for whole-blood donations, with a twelve-month contraindication as of the last episode of sexual intercourse with another man and, for apheresis plasma donations with a subsequent quarantine period, with a four-month contraindication as of the end of any four-month period in which the donor has had sexual intercourse with more than one male partner – the same length of time as the contraindication period, for all donation types, for people who have had sexual intercourse with more than one partner of the opposite sex. 7.     First, the case-file material shows that, based on the work of French public health surveillance body Institut de veille sanitaire used by the Minister of Social Affairs and Health, the proportion of individuals infected with human immunodeficiency virus (HIV) among men who have had sexual intercourse with another man may be estimated at 14%, a prevalence some 70   times higher than in the heterosexual population, where the rate is 0.2%. Similarly, the proportion of newly infected individuals in 2012 may be estimated at 1% of men who had had sexual intercourse with another man, a figure some 115   times higher than in the heterosexual population. 8.     The case-file material also shows that there is a twelve-day period on average, known as the ‘window period’, during which an individual may have been infected with HIV but displays undetectable levels of the virus even with the most effective screening tests, which are based on viral genome detection. Similar periods of varying duration are also observed for other sexually transmitted infections. ... 9.     Furthermore, an analysis of donations from 2011 to 2013 in which HIV was detected – despite their being made by regular, formerly seronegative donors – revealed that 62% of such individuals were men who had had sex with another man and given blood regardless of the permanent contraindication in force at the time. Based on research conducted notably in Canada and Australia on compliance with contraindications in those countries, it was estimated that the adoption of a twelve-month contraindication in France would have little impact on the transfusion risk observed at the time, which stood at around one infected donation in 3.45   million. However, no data are available to assess compliance with a shorter contraindication period or, where appropriate, the impact thereon of criteria based on a more in-depth analysis of sexual behaviour, such as whether protection was used during intercourse. Such information would have to be assessed during the pre-donation interview and could be experienced as an intrusion into the individual’s private life. ... 12.     It follows from the foregoing that, given the seriousness of the risk as well as the measures that could reasonably be implemented and the lack of data available to assess the impact of a shorter contraindication period on the risk of transfusion-transmission of HIV and other sexually transmitted infections, the Minister of Social Affairs and Health, working on the grounds not of sexual orientation but rather of sexual behaviour as provided for in Directive   2004/33/EC, did not take an illegal discriminatory measure by replacing the former permanent contraindication for any man who has had homosexual intercourse with a contraindication, for whole-blood donations, of twelve months as of the last episode of sexual intercourse with another man – a similar period, moreover, to that used by half of the ten European Union member States that have ceased applying a permanent contraindication ... Consequently, the arguments alleging a violation of Articles   8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article   21 of the Charter of Fundamental Rights of the European Union, the purposes of Commission Directive 2004/33/EC of 22   March 2004, the principles of equality and respect for human dignity, and the provisions of Articles L.   1211 ‑ 6-1 and R.   1221-5 of the Public Health Code, must be dismissed. 13.     Second, contrary to what has been contended, the order in issue neither provides for nor in itself entails the collection or retention of personal data on potential donors rejected due to a contraindication. The argument alleging a violation of the right to respect for private life must therefore also be dismissed.” RELEVANT LEGAL FRAMEWORK AND PRACTICE 28.     The legal framework governing personal data protection and blood donor selection will be presented in turn. PERSONAL DATA PROTECTION International law 29.     The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No.   108, “the 1981 Convention”) was ratified by France on 24   March 1983 and entered into force on 1   October 1985. The relevant provisions are as follows: Article   5 – Quality of data “Personal data undergoing automatic processing shall be: obtained and processed fairly and lawfully; stored for specified and legitimate purposes and not used in a way incompatible with those purposes; adequate, relevant and not excessive in relation to the purposes for which they are stored; accurate and, where necessary, kept up to date; preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” Article   6 – Special categories of data “Personal data ... concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards ...” Article   9 – Exceptions and restrictions “... 2.     Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a.     ... b.     protecting the data subject or the rights and freedoms of others.” European Union law Secondary legislation 30 .     The relevant provisions of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L   281, pp.   31 ‑ 50, as in force at the material time, provided: Article   6 “1.     Member States shall provide that personal data must be: ... (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; (d)     accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; (e)     kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. ...” Article   7 “Member States shall provide that personal data may be processed only if: (a)     the data subject has unambiguously given his consent; or ... (e)     processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed ...” Article 8: The processing of special categories of data “1.     Member States shall prohibit ... the processing of data concerning health or sex life. 2.     Paragraph 1 shall not apply where: (a)     the data subject has given his explicit consent to the processing of those data, ... 3.     Paragraph 1 shall not apply where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy. ...” 31 .     Regulation (EU) 2016/679 of the European Parliament and of the Council of 27   April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ   2016 L   119, pp.   1 ‑ 88, entered into force on 25   May 2018. 32 .     Moreover, Directive 2002/98/EC of the European Parliament and of the Council of 27   January 2003 setting standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components and amending Directive 2001/83/EC, OJ   2003 L   33, pp.   30 ‑ 40, contains provisions requiring certain donor selection data to be retained: Article   18: Eligibility of donors “... 2.     The results of the donor evaluation and testing procedures shall be documented   ...” Article   24: Data protection and confidentiality “Member States ... shall ensure: (a)     that data security measures are in place as well as safeguards against unauthorised data additions, deletions or modifications to donor files or deferral records, and transfer of information; ...” Case-law of the Court of Justice of the European Union (“the CJEU”) (a)    The requirement for processed data to be accurate 33.     In its Rijkeboer judgment of 7   May 2009, the CJEU found that the right to respect for private life, which Directive   95/46/EC was intended to protect, “mean[t] that the data subject [might] be certain that his personal data [were] processed in a correct and lawful manner, ... in particular, that the basic data regarding him [were] accurate and that they [were] disclosed to authorised recipients” (judgment C-553/07, EU:C:2009:293, §§   46-49). 34.     In its Opinion   1/15 of 26   July 2017 on a draft agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data, the Grand Chamber of the CJEU clarified that this requirement was inferred directly from Article   7 of the Charter of Fundamental Rights of the European Union, which enshrined the right to respect for private life (EU:C:2017:592, §   219). 35.     In its Nowak judgment of 20   December 2017 the CJEU ruled that the assessment of whether personal data were accurate and complete had to be made in the light of the purpose for which that data had been collected (C ‑ 434/16, EU:C:2017:994, §   53). (b)    The data retention period 36.     In its judgment of 8   April 2014 in Digital Rights Ireland and Seitlinger and Others , the Grand Chamber of the CJEU found that EU legislation requiring that personal data be retained must circumscribe the period of retention for each of the categories of data concerned on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned, based on objective criteria (C ‑ 293/13, EU:C:2014:238, §§   63-64). Domestic law 37 .     At the material time, the relevant provisions of Law   no.   78 ‑ 17 of 6   January 1978 on data processing, files and civil liberties were as follows: Section   6 “Only personal data that meet the following conditions may be processed: 1 o The data are collected and processed fairly and lawfully; 2 o They are collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes. ...; 3 o They are adequate, relevant and not excessive with regard to the purposes for which they are collected and any further processing; 4 o They are accurate, complete and, where necessary, up to date; ... 5 o They are kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected and are processed.” Section 8 “I.- It is prohibited to collect or process personal data ... concerning the health or sex life of data subjects. II.- In so far as the purpose of the processing so requires for certain categories of data, the prohibition provided for in subsection   I shall not apply to the following: 1 o Processing for which the data subject has given express consent ...; ... 6 o Processing required for the purposes of preventive medicine ... or the management of health services and performed by a health professional or another person who, in the performance of his or her duties, is subject to the obligation of professional secrecy provided for in Article   226-13 of the Criminal Code; ...” 38.     This version is taken from the Law of 6   January 1978, which transposed Directive 95/46/EC (see paragraph   30 above) into domestic law. The Law of 6   January 1978 has since been amended several times. In particular, Law no.   2018-493 of 20   June 2018 brought the legislation into line with Regulation (EU) 2016/679 (see paragraph   31 above). 39 .     With specific respect to data processing for blood donation, the Order of 10   September 2003 ratifying the regulation of the French Health Care Product Safety Agency ( Agence française de sécurité sanitaire des produits de santé – “the AFSSaPS”) setting the principles of best practices to be adopted by blood transfusion facilities, contained the following provisions: 3.1. Donor file “Donor identification data are recorded in the electronic donor data file, which includes, in particular, donation history along with the following information: -           the date, type and number of each donation; -           any temporary or permanent contraindications to donation, using coding; -           any reactions in the donor during or after the donation; -           the results of biological analyses and screening tests performed during previous donations; and -           where appropriate, data contributing to the donor’s medical and biological monitoring. To ensure these data remain confidential, their content, the way they are used and the personnel authorised to modify or consult them are set out in a procedure. The file or section thereof made available at the donation venue must contain all information required to ensure donor and product safety. The donor’s file is consulted, checked and completed during each donation.” 40.     These provisions were cited in the decision of the AFSSaPS’s Director General delivered on 6   November 2006. 41.     The automatic data processing performed by the EFS was later authorised by the CNIL in decision no.   2011-395 of 8   December 2011, when the data were pooled in a single national database. The decision specifies that one purpose of such processing is to identify “any temporary or permanent medical contraindications by category, any risk of blood-borne or sexually transmitted infectious agents, and any strictly necessary comments relating to such risk”. BLOOD DONOR SELECTION International law and practice Publications of the World Health Organization (“the WHO”) 42.     Resolutions WHA58.13 and WHA63.12, adopted on 23   May 2005 and 21   May 2010 by the World Health Assembly, urge member States to implement stringent criteria for donor selection in order to retain only donors at the lowest risk of carrying a blood-borne pathogen. 43 .     Furthermore, the WHO published Guidelines on Assessing Donor Suitability for Blood Donation in 2012, drawing on the work of a group of experts. Without taking a stance on the deferral from blood donation for men who have had sexual intercourse with another man, it recommends (p.   88): “[Permanent deferral] criteria for high-risk sexual behaviours in a particular country or region should be determined and reviewed frequently, based on the residual risk of transfusion-transmitted viral infections, taking into account changes in disease epidemiology, improvements in available technologies for donation testing and on ‑ going research.” Council of Europe instruments 44 .     Recommendation No.   R (95) 14 of the Committee of Ministers on the protection of the health of donors and recipients in the area of blood transfusion, adopted on 12   October 1995, reiterates “the importance of good donor selection, avoiding any possible discrimination”. It emphasises the need to avoid “donations by persons ... whose behaviour ... is likely to increase the risk of infection for the recipient”, referring in particular to the risk of transmission of HIV and hepatitis viruses. 45.     In Resolution CM/Res(2008)5 on donor responsibility and on limitation to donation of blood and blood components, adopted on 12   March 2008, the Committee of Ministers stresses the donor’s “duty” to be transparent with blood establishments about transfusion risk factors. As a corollary, it places emphasis on the need to keep information provided by the donor confidential and on the donor’s “right to withdraw from donation at any time during the procedure ... without any need to explain this decision”. It recommends that donor selection be performed “bearing in mind the right of blood recipients to the protection of their health, and the resulting obligation to minimise the risk of transmission of infectious diseases. These rights and obligations override any other considerations, including individuals’ willingness to donate blood”. 46 .     Lastly, Resolution CM/Res(2013)3 on sexual behaviours of blood donors that have an impact on transfusion safety, adopted by the Committee of Ministers on 27   March 2013 based on scientific research compiled by a group of experts, observes that “persons engaging in male-to-male sexual acts and sex workers in many European countries are at the upper end of the risk scale for acquiring HIV and other sexually transmitted transfusion-relevant infections”. It notes that “currently available epidemiological data do not make it possible to define the precise risk of acquiring a transfusion-relevant infection with respect to donors’ individual risky sexual behaviour”. On that basis, the Committee of Ministers recommends “[deciding] on a temporary deferral policy for a given risky sexual behaviour only when having demonstrated that this sexual behaviour does not put the donors at high risk of acquiring severe infectious diseases that can be transmitted by blood”. European Union law Secondary legislation 47.     The preamble to Directive   2002/98/EC of the European Parliament and of the Council of 27   January 2003 setting standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components and amending Directive   2001/83/EC, OJ L   33, pp.   30-40, contains the following recitals: “(2)     ... In order to safeguard public health and to prevent the transmission of infectious diseases, all precautionary measures during [the] collection [of blood and blood components] ... need to be taken making appropriate use of scientific progress in the detection and inactivation and elimination of transfusion transmissible pathogenic agents.” “(24)     Blood and blood components used for therapeutic purposes ... should be obtained from individuals whose health status is such ... that any risk of transmission of infectious diseases is minimised ...” 48 .     Articles   18 and   19 of the directive require blood establishments systematically to evaluate eligibility for blood donation based on an examination, including an interview, carried out by a health professional before any donation of blood. 49 .     Article   29   (d) of Directive   2002/98/EC authorises the European Commission to set the deferral criteria for blood donation and update such criteria based on technical and scientific progress. 50.     On that basis, Annex   III of Commission Directive   2004/33/EC of 22   March 2004 implementing Directive   2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components, OJ   2004 L   91, pp.   25 ‑ 39, provides for blood donation deferral in the event of sexual behaviour putting the donor at high risk of acquiring severe infectious diseases that can be transmitted by blood. The deferral may be permanent or temporary, depending on the circumstances (points   2.1 and 2.2.2). Case-law of the Court of Justice of the European Union (“the CJEU”) 51 .     In the Léger case (judgment of 29   April 2015, C ‑ 528/13, EU:C:2015:288), the CJEU was asked to give a preliminary ruling in a case concerning a decision to defer blood donation based on the Order of 12   January 2009, which at the material time provided for a permanent contraindication for men who had had sexual intercourse with another man (see paragraph   61 below). 52.     First, the CJEU considered that Directive 2004/33/EC left member States a margin of discretion when determining what sexual behaviours justified a permanent deferral from blood donation (§   39). 53.     Second, the CJEU noted that a member State might, without infringing the principle of non-discrimination under Article   21 of the Charter of Fundamental Rights of the European Union (“the Charter”), provide for a permanent deferral from blood donation for men who had had sexual relations with another man, where it was established, on the basis of current medical, scientific and epidemiological data, and having regard to the prevailing situation in that State, that such sexual behaviour put those persons at a high risk of acquiring severe infectious blood-borne diseases and that, with due regard to the principle of proportionality, there were no effective techniques for detecting those infectious diseases or, in the absence of such techniques, any less onerous methods than such a contraindication for ensuring a high level of health protection of the recipients (§§   40-69). 54 .     In that connection, the CJEU held that it was for the referring court to determine whether a donor selection process based on a more precise identification of sexual behaviour could enable a less onerous contraindication to blood donation than a permanent contraindication for the entire group of men who had had sexual relations with a man (§§   66-69). 55 .     Following that judgment, in judgment no.   0903177 of 8   March 2016 the Strasbourg Administrative Court set aside the decision deferring blood donation for Mr   Léger. It found that the Order of 12   January 2009, which had been used to justify the decision to defer donation, violated the principle of pro