The Legislative Framework
The legal framework governing the activities of French official statistics producers is based on seven key texts.
Two of these texts fall within the scope of European Union law. They are:
- Ouvrir dans un nouvel ongletRegulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics. The regulation provides the legal framework for statistics within Europe and sets out the conditions for cooperation between the Community level (Eurostat) and the national level (INSEE and other statistical authorities, including certain Ministerial Statistical Departments);
- Ouvrir dans un nouvel ongletRegulation (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. Known more commonly as the General Data Protection Regulation (GDPR) and implemented in May 2018, this regulation underwent adjustments at the domestic level prior to that date (notably with Act No 78-17 of 6 January 1978 on Data Processing, Data Files and Individual Liberties; see below). It is the reference text at the European level with regard to the protection of personal freedoms, providing a legal framework designed to create a balance between a high level of protection of personal privacy and the free circulation of personal data within the European Union. On entering into force, the regulation replaced Directive No 95/46/EC, which established the framework for the processing of personal data within the European Union.
As regards French law, the five texts in question are:
- Ouvrir dans un nouvel ongletAct No 51-711 of 7 June 1951 (amended) on Legal Obligation, Coordination and Confidentiality in the Field of Statistics, which serves as the legal framework governing the activities of French official statistics producers. The law sets out the rules relating to the obligation to respond to certain mandatory surveys, the confidentiality of collected data and the procedures for exemption from such confidentiality, including for scientific research and official statistical purposes. Under certain conditions, the law permits the transfer of confidential administrative (including tax) data to the Official Statistical Service for the purpose of the economic studies carried out by the SSP. The law was amended in 2016 by the Law for a Digital Republic to enable INSEE and the Ministerial Statistical Departments to access the data held by persons governed by private law in their database. Ouvrir dans un nouvel ongletDecree No 2009-318 of 20 March 2019 on the National Council for Statistical Information and the Statistical Confidentiality Committee provides for implementing measures. Law 51-711 defines the French Official Statistical Service (SSP): the service consists of the French National Institute of Statistics and Economic Studies (INSEE) and the Ministerial Statistical Offices responsible for conducting statistical operations in their areas of expertise;
- Ouvrir dans un nouvel ongletDecree No 46-1432 of 14 June 1946 as amended defines the missions of INSEE. In particular, the decree specifies that INSEE’s mission is to “coordinate the methods, means and statistical work of public bodies and private organisations subsidised or controlled by the State, to centralise their statistical and economic documentation and to unify statistical classifications and codes”. Within the SSP, INSEE carries out its coordination role through the Statistical Programme Committee chaired by the Director-General of INSEE and incorporating all the Directors of the Ministerial Statistical Offices. The committee is responsible for determining the programme of future statistical work to be carried out by the SSP. Coordination responsibilities relate to a range of matters of common interest to the SSP as a whole, whether of a strategic or technical nature. Ouvrir dans un nouvel ongletRegulation (EC) No 223/2009 of the European Parliament and of the Council on European Statistics, (amended in 2015) strengthens the coordination role of INSEE as part of the development, production and dissemination of European statistics, notably with respect to quality. The Director-General of INSEE coordinates the oversight of quality across the entire Official Statistical Service, determining “national guidelines […] to ensure, within the national statistical system, the quality of all European statistics during their development, production and dissemination”;
- Ouvrir dans un nouvel ongletAct No 2018-493 of 20 June 2018 on the Protection of Personal Data amended Act No 78-17 of 6 January 1978 on Data Processing, Data Files and Individual Liberties to incorporate the specificities of the General Data Protection Regulation (GDPR). The implementation of the European regulation on data protection represents a radical change, marking a shift from a logic of prior formalities to a logic of greater accountability of actors, subcontractors and operators involved in processing activities. Under the new law, a Data Protection Officer (DPO) is responsible for maintaining an inventory and ensuring the compliance of processing activities identified and described in a register, and impact assessments are required where data processing presents a high risk for the individuals concerned. Other provisions relate specifically to processing activities governed by Act No 51-711, in particular the use of “sensitive” data, meaning data revealing, whether directly or indirectly, the racial or ethnic origin, political opinions, religious or other beliefs or trade union membership of data subjects, or which relate to the health or sex life of such subjects. The law provides for exemptions applicable to the SSP in respect of the use of data for research or official statistical purposes;
- Book II of the French Heritage Code, which lays down the periods of protection applicable to public records and, consequently, to data on households and businesses collected in statistical surveys. The book was amended by Ouvrir dans un nouvel ongletAct No 2008-696 of 15 July 2008 on Archives, which specifies the periods of protection, as being periods compatible with maintaining the trust of respondents, both as concerns businesses (25 years) and private individuals (75 years);
- the Ouvrir dans un nouvel onglet Law for a Digital Republic, promulgated on 7 October 2016, provides for greater access to public data. Its various measures apply for the most part to all government bodies, although some apply more specifically to INSEE and the Official Statistical Service. Broadly speaking, its measures cover three categories: dissemination obligations, free reuse of data and measures promoting the practice of official statistics. The digital law reinforces INSEE’s dissemination strategy on an open data basis, which consists in making the results of its research available to as wide an audience as possible and free of charge. These measures do not cover commission work and study agreements. The law provides for the creation of the Public Data Service, which entered into force on 7 April 2017 and provides the general public with access to reference data including nine databases, of which two are managed by INSEE: the SIRENE base and the Official Geographic Code. The Law for a Digital Republic introduces the notion of obligation in respect of the transfer of databases maintained by private law legal entities by introducing Article 3 bis into the Law of 7 June 1951. Under this article, by decision of the Minister of the Economy, private law legal entities are required to communicate, using secure electronic means, information contained in the databases which they hold to the Official Statistical Service for the exclusive purpose of producing statistics where such information is required as part of mandatory statistical surveys. The law also provides that such a decision may only be taken after the National Council for Statistical Information has issued an opinion and that it must be preceded by a consultation with the private law entities which have been requested to take part in such surveys and by a feasibility and opportunity study made publicly available. To protect commercial confidentiality, the law also ensures the strict confidentiality of the data transmitted. Lastly, and in addition to the foregoing provisions, the Law for a Digital Republic provides researchers with greater access to data covered by confidentiality.