Last Updated on November 5, 2019 by LawEuro
FIFTH SECTION
CASE OF NATIONAL FEDERATION OF SPORTSPERSONS’ ASSOCIATIONS AND UNIONS (FNASS) AND OTHERS v. FRANCE
(Applications nos. 48151/11 and 77769/13)
JUDGMENT
This version was rectified on 29 May 2018 under Rule 81 of the Rules of the Court
STRASBOURG
18 January 2018
FINAL
18/04/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 48151/11 and 77769/13) 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”) on 23 July 2011 and 6 December 2013 respectively.The applicants in application no. 48151/11 arefive legal entities registered inFrance (see paragraph 6 below)and 99 individuals, including one Georgian national (see Annex). The applicant in application no. 77769/13 isMs Jeannie Longo.
2. The applicants in application no. 48151/11 were represented by Mr R. Palao, a lawyer practising in Avignon.Four of them (FNASS, the UNPF, Mr Da Silva and Mr Kerckhof) were represented by Mr L. Misson, a lawyer practising in Liège (Belgium). Ms Longo was represented by Ms C. Ravaz, a lawyer practising in Toulon. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs.
3. The applicants in application no. 48151/11 are sports unions and professional athletes. They alleged that the requirement as to whereabouts, imposed on a “testing pool” of athletesdesignated by the national anti‑doping agency for the purposes of carrying out unannounced doping tests, infringed their rights under Article 8 of the Convention and Article 2 of Protocol No. 4. Ms Longo alleged a violation of Article 8 of the Convention.
4. On 26 June 2013 the Government were given notice of thecomplaintslodged by the applicants in application no. 48151/11 under Article 8 and Article 2 of Protocol No. 4. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Georgian Government were informed of their right to take part in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1) but did not reply. On 18 June 2014 the Government were given notice of the complaint under Article 8 lodged by the applicant in application no. 77769/13, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. In particular, the part of the application lodged by Mr Ciprelli, the applicant’s husband, who had also applied to the Court on 6 December 2013, was declared inadmissible under the provision of the Rules of Court cited above.
5. On 8 October 2013 the World Anti-Doping Agency (hereafter “WADA”) was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Applicationno. 48151/11
6. The applicants are the National Federation of Sportspersons’ Associations and Unions (Fédération nationale des associations et syndicats de sportifs– hereafter “FNASS”), the NationalRugby Players’ Union (Syndicat national des joueurs de rugby– hereafter “Provale”), the National Professional Footballers’ Union (Union nationale des footballeurs professionnels– hereafter “the UNFP”), the Professional Handball Players’ Association (Association des joueurs professionnels de handball– hereafter “the AJPH”), and the National Basketball Players’ Union (Syndicat national des basketteurs–hereafter “the SNB”). FNASS, which was established in 1992, is a federation of trade unions representing professional athletes, which today comprises the unions representing track and field athletes (SAF), basketball players (SNB), cyclists (UNCP), footballers (UNFP), handball players (AJPH) and rugby players (Provale). It represents around 3,500 professional athletes in France. Its aim is to defend the individual and collective rights and the pecuniary and non-pecuniary interests of professional athletes in all disciplines. The remaining 99 applicants are professional handball, football, rugby and basketball players.
1. The facts set out in the application form
7. On 14 April 2010 the Government issued Order no. 2010-379 on athletes’ health,bringing the Sports Code into line with the principles of the World Anti-Doping Code (hereafter “the Order of 14 April 2010”). The Order was aimed, firstly, at bringing the provisions of the Sports Code into line with the most recent version of the World Anti-Doping Code (hereafter “the WADC”), which entered into force on 1 January 2009 (see paragraph 45 below) following the Third World Conference on Doping in Sport held in Madrid in November 2007 (Title I) and, secondly, to clarify certain provisions of the Sports Code concerning athletes’ health and efforts to combat doping (Title II). The provisions of the Order were ratified by Law no. 2012-158 of 1 February 2012 on strengthening sports ethics and athletes’ rights. They were codified in Articles L.232-2 et seq. of the Sports Code, which has undergone several amendments since.
8. Article 3 of the Order (Article L. 232-5 of the Sports Code) set forth the tasks and powers of the French Anti-Doping Agency (Agence française de lutte contre le dopage – hereafter “the AFLD”) and provided as follows:
“I. – In paragraph I of Article L. 232-5 of the Code, sub-paragraphs 1 to 13 shall be replaced by the following provisions:
(1) It shall define an annual programme of tests;
…
(3) In the case of athletes subject to the whereabouts requirement referred to in Article L. 232-15, it shall carry out tests subject to the conditions laid down in Articles L. 232-12 to L.232-16:
(a) during sporting events organised by federations approved or licensed by the federations to which powers have been delegated;
(b) during the international sporting events defined in Article L. 230-2 with the agreement of the competent international body or, failing that, the World Anti-Doping Agency;
(c) during periods of training in preparation for the sporting events referred to in Article L. 230-3;
(d) independently of the sporting events referred to in Article L. 230-3 and the periods of training in preparation for them;
…”
9. Article 6 of the Order (Article L. 232-13-1 of the Sports Code, see paragraph 63 below) provided, in particular, that individualised anti-doping testing of athletes included in the testing pool could be carried out at training and sporting venues, but also “at any location chosen with the athlete’s agreementat which the test can be carried out in compliance with the athlete’s right to respect for his or her privacy, including, at his or her request, at home.”
10. Article 7 of the Order added the following:
“Article L. 232-15 of the Code shall read as follows:
The athletes in the testing pool, designatedfor a period of one year by the French Anti-Doping Agency, shall be required to provide accurate and up-to-date information on their whereabouts for the purposes of conducting the tests referred to in Article L. 232-5. The athletes concerned shall be:
(1) those whose names are on the list of elite athletes or the list of promising young athletes (Espoir) within the meaning of the present Code, or athletes whose names have featured on one of those lists for at least one of the past three years;
(2) professional athletes who are licensed by the approved federations or who have been engaged in professional sport for at least one of the past three years;
(3) athletes who have been the subject of a disciplinary sanction on the basis of ArticlesL. 232-9, L. 232-10 or L. 232-17 during the past three years.
The information concerned may be computerised by the Agency with a view to organising tests. Computerised processing of information concerning athletes’ whereabouts is authorised by a decision of the Agency’s Board, taken after consultation with the National Commission on Data Processing and Civil Liberties.”
11. In an application registered on 1 June 2010 some of the applicants (unions and twenty-four individual applicants), together with other athletes, requested the Conseil d’État to set aside the Order, and in particular Articles 3 and 7 thereof (see paragraphs 8 and 10 above). With regard to the whereabouts requirement provided for in those Articles, they complained of a “particularly intrusive” testing system which compelled athletes in the testing pool to provide the AFLD with information concerning their places of residence, training and competition so that they could be located at any time, and to undergo immediatetests ordered on a discretionary basis and without advance notice. They complained in particular of the fact that the tests could be carried out independently of sporting events and outside training periods, that is, during periods when athletes were no longer at the disposal of their employer but were on holiday, resting or on sick leave or leave following an occupational injury. They argued that Article 3 infringed their freedom of movement by requiring them to give notice of their whereabouts on an ongoing basis, including during non-professional activities, and also infringed their right to a normal family life and their individual freedom as athletes. In their view, the unconditional implementation of Article 3(I)(3)(d) of the Order, allowing tests to be carried out independently of sporting events and outside training periods, meant that between 6 a.m. and 9 p.m. (the testing period laid down by Article L. 232-14 of the Sports Code, see paragraph 64 below) the athletesin the testing pool faced the permanent prospect of physically intrusive tests. This entailed systematically giving advance notice of their schedule, in breach of the right to establish relationships with their peers and the right to the peaceful enjoyment of their private lives. Lastly, the applicants complained of a breach of the principle of equality, as the whereabouts requirement for the purposes of anti-doping tests was confined to athletes included in the testing pool.
12. In a judgment of 24 February 2011 theConseil d’Étatrejected the application in the following terms:
“… As regards Articles 3 and 7 of the impugned Order:
These provisions provide a strict framework governing the locations where AFLD testing of athletes in the ‘testing pool’ may take place, and the period during which such tests may be carried out. They require the athletes in question, in view of the demands of efforts to combat doping, to provide accurate and up-to-date information on their whereabouts for the purposes of organising tests, including unannounced tests, with a view to the effective detection of the use of doping substances, which can be detected only for a short time after being taken despite having lasting effects. Hence, Articles 3 and 7 of the impugned order, which do nothamper athletes’ freedom of movement,interfere with their right to respect for their private and family life as guaranteed by Article 8, and with individual freedoms, only to the extent that is necessary and proportionate to the general-interest aims pursued by efforts to combat doping, namely to protect athletes’ health and to ensure fair and ethical sporting competitions. In any event, the order under challenge also complies with the provisions of the International Convention against Doping in Sport, which do not have direct effect.
The principle of equality does not prevent the regulatory authority from laying down different rules for different situations or from derogating from equality on general‑interest grounds, provided that, in both cases, the resulting difference in treatment is proportionate to the purpose of the rule establishing it. Athletes whose names feature on the list of elite sportsmen and women or the list of promising young athletes, which include amateur athletes and licensed professionals who may be required to notify their whereabouts with a view to anti-doping tests, are not in the same situation as other athletes, in view of the level at which they compete and the greater risk of doping such competition may entail. Likewise, athletes who have been the subject of disciplinary sanctions for doping during the past three years are not in the same situation as other athletes. Furthermore, athletes belonging to the ‘testing pool’ are not in the same situation as persons in other professions and may therefore be made subject to special doping control measures without the principle of equality being breached.”
2. New information resulting from the parties’ observations
(a) Information provided by the Government
13. In their initial and additional observations of 22 October 2013 and 17 February 2014 the Government provided the Court with the following information concerning the situation of the individual applicants with regard to the impugned legislation.
(a) Eight of the ninety-nine applicants had never been included in the AFLD testing pool (Mr Millo-Chluski, Mr Nallet, Mr Traille, Mr Mas, Mr Domingo, Mr Dusautoir, Mr Heymans and Mr Para).
(b) Of the twenty-four applicants who had participated in the domestic proceedings, none had belonged to the testing pool on the date on which the application was lodged with the Court.
(c) Eleven applicants who had not participated in the domestic proceedings had belonged to the testing pool on the date on which the application was lodged (Mr Da Silva, Mr Gomis, Mr Ho You Fat, Mr Perquis, Mr Congre, Mr Coulibaly, Mr Cavalli, Mr Cabarry, Mr Huget, Mr Honrubia and Mr Gharbi). According to the Government, these athletes had been included in the testing pool in September and October 2010. They had all undergone testing, some of them between two and eight times. Nine of them had been issued with one or two warnings. One (Mr Huget) had received three warnings, leading to the institution of disciplinary proceedings and to an administrative penalty which he had not contested before the Conseil d’État. Of the eleven aforementioned applicants, six had had their inclusion in the testing pool renewed following two decisions of the AFLD Board of 12 and 25 September 2013. Mr Coulibaly, Mr Cavalli, Mr Gomis, Mr Cabarry and Mr Huget had been removed from the list.
(d) With regard to Mr Kerckhof, the Government stated that he had been included in the testing pool on 7 November 2009 and had been kept on the list for a further year from 17 September 2010. During that time he had been found to be in breach of the whereabouts requirement on one occasion.
14. In a letter of 22 August 2016 the Government informed the Court that, by decisions of the AFLD of 4 September and 22 October 2014, five of the six athletes still belonging to the AFLD’s testing pool in 2013 (Mr Honrubia, Mr Perquis, Mr Congre, Mr Da Silva and Mr Gharbi, see paragraph 13 (c) above) had been removedfrom the list at their request, on the grounds that their names had been on it for four years.
(b) Information provided by the applicants
15. In their observations in reply of 3 December 2013 the eight applicants who were not in the AFLD testing pool (see paragraph 13 (a) above) stated that they were in the testing pool of the International Rugby Board (IRB). They stated that they were required to declare their whereabouts in France on the same basis as the applicants included in the AFLD testing pool and that the AFLD, which had subsidiary powers in that regard, was empowered to impose sanctions on them.
16. The twenty-four applicants who had applied to the Conseil d’État also reported as follows on their situation at the time of lodging of the application on 23 July 2011.
(a) Four of them (Mr Pierre, Mr Sissokho, Mr Psaume and Mr Talmont) had been included in the testing pool in 2010, and had remained in it for a further twelve months from 11 June 2010. They produced a letter from the AFLD dated 17 June 2011 asking the President of the Professional Football League to send a list of players by 2 September 2011 who should be included or retained in the testing pool. However, they did not produce the updated list of athletes who had been retained in the pool.
(b) A further four (Mr Busselier, Mr Ternel, Mr Kiour and Mr Haon) had beenincluded in the testing pool in 2009 or 2010 and had been retained for another twelve months from 23 September 2010. In a letter dated 23 September 2010 to the President of the National Handball League and the President of the French Handball Federation, forwarding the updated list of athletes in the testing pool, the President of the AFLD pointed out that the athletes in question were required to declare their whereabouts every day in accordance with decision no. 54 of 18 October 2007 (see paragraphs 69 and 70 below).
(c) A further thirteen applicants whohad been included in the testing pool in 2009 submitted that they had been included or retained in the pool on 11 June 2010 for a minimum twelve-month period (Mr Strunc, Mr Soliman, Mr Dondon, Mr Jeanneau, Mr Melody, Mr Kerckhof, Mr Linehan, Mr Maynier, Mr Ouattara, Mr Tsagarakis, Mr Moncade, Mr Pons and Mr Toffin). They produced a letter from the AFLD to the President of the National Basketball League dated 11 June 2010, asking the latter to send a list of players by 30 August 2010 who should be included or retained in the testing pool. The applicants did not furnish the updated list of the athletes retained in the testing pool (however, as regards Mr Kerckhof,see the Government’s observations at paragraph 13 (d) above).
(d) Three applicants had beenincluded in the pool in 2009 for a twelve‑month period (Mr Ayed, Mr Guilbert and Mr Dearlove).
17. The remaining applicants stated that they had been included in the testing pool following the Conseil d’État ruling and had joined the application to the Court in their capacity as union members. They did not provide any documents demonstrating that they belonged to the testing pool.
18. In additional observations of 5 December 2013 Mr Da Silva’s lawyer informed the Court that his client had appealed in the following terms to the President of the AFLD against the decision to retain himin the testing pool for an eighteen-month period from 26 September 2013:
“…I was first included in the testing pool on 20 September 2010, in other words a full three years ago, and you have just retained my name on the list until 2015 at least, making a total of five years! This is completely unacceptable and disproportionate.
I have complied with all the obligations entailed in belonging to the testing pool. This has affected my family life and had a considerable impact on my children, who often see inspectors turn up on my doorstep at 6 a.m. I have always provided details of my whereabouts in good time, have never missed a test and, in three years, have never received the slightest warning, still less tested positive for any banned substance…
Can you kindly explain [the] scientific reasons for keeping me in the testingpool? Does the fact that I’m nearing the end of my career make me a potential cheat? … Keeping me in the testing pool for another 18 months stigmatises me in the eyes of my teammates as a potential cheat and is not acceptable.
I agree that it’s necessary to tackle doping in sport, but not to the detriment of MY life. … I am therefore asking you to review your position on my inclusion in the testing pool: keeping the same person in the pool for five consecutive years is not an effective way of tackling doping.”
B. Application no. 77769/13
19. The applicant, who was born in 1958, is a French national. She is an international racing cyclist who is on the list of elite athletes and has set numerous world records.She stated that she had undergone more than 1,200 anti-doping tests in the course of her career. She maintained that she had undergone unannounced tests abroad (in the United States, China, Switzerland and Australia) as well as regular tests at World Championship and Olympic events.
20. By a decision of the AFLD’s director of testing of 14 March 2008 the applicant was designated as one of the athletes in the testing pool and subject to individualised testing. At that time athletes could be included in the testing pool for an indeterminate period.
21. The Order of 14 April 2010, cited above (see paragraph 10), laid down a one-year time-limit for inclusion in the pool of athletes to be tested.
22. By a decision of 10 June 2010 taken under the transitional rules, the applicant was re-registered as belonging to the testing pool.
23. In 2011, following three failures to comply with the rules on whereabouts, the applicant gave evidence before a disciplinary board of the French Cycling Federation. She was cleared of misconduct on the grounds that, at the time of the most recent failure to comply, in the United States in June 2011, she had no longer been in the testing pool and had thus no longer been liable for testing.
24. In a letter of 20 December 2011 the AFLD invited the applicant to submit observations on her possible re-inclusion in the testing pool. In a letter, and subsequently during an interview with the President of the AFLD at which her lawyer was present, the applicant expressed her objections. She argued, among other things, that she was includedin the testing pool of the Union Cycliste Internationale (UCI). In an email of 16 March 2012 the UCI informed the AFLD that the applicant was no longer in the UCI testing pool.
25. In the meantime, on 10 February 2012, the applicant’s husband and coach was placed under investigation for importing prohibited goods, infringements of the regulations on the trading and use ofpoisonous substances, and importing doping substances without duly substantiated medical reasons.
26. On 19 March 2012 the AFLD’s director of testing included the applicant in the testing pool. She lodged an application for reconsideration of that decision which was rejected on 22 May 2012.
27. A few days previously the President of the French Cycling Federation (Fédération française de cyclisme) had contacted the President of the AFLD in connection with the applicant’s planned selection for the London Olympics, expressing regret at the time taken to include the applicant in the testing pool.
28. In a decision taken on 27 September 2012,anticipating a Conseil d’État decision of 10 October 2012 (CE, no. 357097) to the effect that the director of testing did not have power to decide on the inclusion of an athlete in the testing pool (see paragraph 60 below), the AFLD Board, in order to prevent a legal vacuum that might adversely affect the implementation of checks on athletes’ whereabouts, approved the applicant’s inclusion in the testing pool.
29. On 11 February 2013 the applicant and her husband brought proceedings in the Paris Criminal Court against the AFLD and three of its senior officials, accusing them of forwarding confidential information to the newspaper L’Équipe concerning the disciplinary proceedings instituted in 2011 and the ongoing criminal proceedings.
30. In a letter dated 20 March 2013 the applicant contested the possibility of her renewed inclusion in the testing pool.
31. By a decision of the AFLD Board of 28 March 2013 the applicant was again designated for inclusion in the “testing pool”. The decision contained the following reasoning:
“She maintains … that, since the entry into force of the Order of 14 April 2010, inclusion in the testing pool is possible only for a non-renewable one-year period. This argument has to be dismissed on the grounds that the provisions of the Sports Code concerning the whereabouts requirement must be read in the light of the ‘principles’ established by the World Anti-Doping Code … Article 2.4 of the World Anti-Doping Code lays down the principle of checks on whereabouts and possible sanctions for violations of the resulting requirements in the event of three failures to comply‘within a twelve-month period’. Moreover, limiting inclusion in the pool to a non-renewable one-year period could render the whereabouts checks ineffective; this is clearly not what the legislature intended.”
32. On 28 December 2012 and 28 May 2013 the applicant lodged an application with the Conseil d’État for judicial review of the AFLD’s decisions of 27 September 2012 and 28 March 2013. She argued, in particular, that the rules on whereabouts and the unannounced testing of athletes in the testing pool were contrary to Article 8 of the Convention, and complained of being made subject to these rules for several years.
33. In the meantime, in a memorial of 11 March 2013, the applicant requested the Conseil d’État to refer the following question to the Constitutional Council for a preliminary ruling on constitutionality with regard to the whereabouts requirement:
“Do the provisions of Articles L. 232-5-3 and L. 232-15 of the Sports Code establishing rules on the whereabouts and unannounced testing of athletes in the testing pool infringe the rights and freedoms guaranteed by the Constitution, in the light of Article 34 of the Constitution, Articles 2 and 4 of the Declaration of the Rights of Man and of the Citizen (freedom of movement, respect for private life and inviolability of the home), Article 66 of the Constitution (‘No one may be detained arbitrarily. The judicial authority, as the guardian of individual freedoms, shall ensure compliance with this principle …’) and, finally, the principle of equality before the law?”
34. In a decision of 29 May 2013 the Conseil d’État decided not to refer the question. It observed that the provisions complained of did not call into question the individual freedom which Article 66 of the Constitution placed under the protection of the ordinary courts (arbitrary detention), but fell within the jurisdiction of the administrative courts (see the position of the Court of Cassation on this issue at paragraph 73 below).
35. In a judgment of 18 December 2013 the Conseil d’État joined the two applications of 28 December 2012 and 28 May 2013 and rejected them, after deciding not to refer a second question for a preliminary ruling on constitutionality. With regard to the alleged violation of the right to respect for private and family life, the Conseil d’État found as follows:
“… Firstly, the aforementioned provisions of the Sports Code relating to the obligations of athletes in the ‘testing pool’do not infringe the right to freedom of movement or the equivalent right under Article 2 of Protocol No. 4 to the [Convention]. They lay down strict rules for determining the locations where testing of athletes in the ‘testing pool’ may be carried out and the periods and hours during which these tests may be conducted, and preclude the testing of athletes at home without their consent. The computer processing provided for in Article L. 232-15 for the purposes of organising tests is subject to the Law of 6 January 1978 on data processing, files and freedoms. While the arrangements thus defined place restrictions on athletes, notably by requiring them to provide accurate and up-to-date information on their whereabouts, the legislative provisions at issue are justified by the demands of efforts to combat doping. These entail, in particular, the ability to carry out unannounced tests in order effectively to detect the use of certain performance-enhancing drugs which can be detected only for a short time after being taken despite having more lasting effects. Hence, these provisions interfere with the right of the athletes concerned to respect for their private and family life, as guaranteed by Article 8 of the Convention, only to the extent that is necessary and proportionate to the general-interest aims pursued by efforts to combat doping, namely to protect athletes’ health and to ensure fair and ethical sporting competitions….
Seventhly, although the provisions of L. 232-15 of the Sports Code, which provide that inclusion in the ‘testing pool’ is ‘for a period of one year’, require the [AFLD] to review periodically the composition of the testing pool, in order to ensure that the athletes are not subjected for unduly long periods and without specific reasons to the constraints linked to the requirement to provide accurate and up-to-date information on their whereabouts, those provisions do not have the purpose or effect of prohibiting the Agency from designating athletes who have already been included inthe ‘testing pool’. Thus, the argument that Article L. 232-15 of itself prevents the Agency from designating an athlete previously included in the testing pool must be dismissed.”
36. In a judgment delivered in 2014 the Paris Criminal Court dismissed the applicant’s action against the AFLD.
37. By a decision of 9 April 2015 the AFLD removed the applicant from the list of athletes in the testing pool.
38. In a judgment of 9 March 2017, following proceedings whose fairness he challenged before the Court (see paragraph 4 above), the applicant’s husband was sentenced to one year’s imprisonment, suspended, for importing erythropoietin (EPO).
II. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. Council of Europe
39. In 1967 the Committee of Ministers of the Council of Europe (“the Committee of Ministers”) adopted Resolution (67) 12 on the Doping of Athletes.This was followed in 1979, 1984 and 1988 by three recommendations, the most recent of which provided for the introduction of out-of-competition doping controls without prior notice (Recommendation No. R (88) 12 of the Committee of Ministers to member States on the Institution of Doping Controls without Warning outside Competitions).
40. Subsequently, the Anti-Doping Convention (ETS No. 135, hereafter “the Council of Europe Convention”) was adopted by the Committee of Ministers on 16 November 1989. This convention, which is the European reference instrument, has been ratified by all the Council of Europe member States and by five non-member States (Australia, Belarus, Canada, Morocco and Tunisia). It lays down a number of common rules and standards on the basis of which the States Parties undertake to adopt the necessary harmonisation measures at national and international level in order to effectively combat doping in sport. A Monitoring Group was set up to monitor implementation of the Convention; its activities involve working with the World Anti-Doping Agency (WADA, established in 1999, see paragraph 45 below) and the international sports federations. There is also an Ad Hoc European Committee for the World Anti-Doping Agency (CAHAMA), which is a committee of experts responsible for coordinating the positions of the European countries acting on behalf of WADA.
41. The preamble to the Council of Europe Convention highlights the ethical, moral and health-related aspects of efforts to combat doping:
“… Concerned by the growing use of doping agents and methods by sportsmen and sportswomen throughout sport and the consequences thereof for the health of participants and the future of sport. …
Aware that public authorities and the voluntary sports organisations have complementary responsibilities to combat doping in sport, notably to ensure the proper conduct, on the basis of the principle of fair play, of sports events and to protect the health of those that take part in them.”
42. Point 3 of Article 7 of the Council of Europe Convention, entitled “Co-operation with sports organisations on measures to be taken by them”, reads as follows:
“Moreover, the Parties shall encourage their sports organisations:
(a)to introduce, on an effective scale, doping controls not only at, but also without advance warning at any appropriate time outside, competitions, such controls to be conducted in a way which is equitable for all sportsmen and sportswomen and which include testing and retesting of persons selected, where appropriate, on a random basis …”
43. An Additional Protocol to the Council of Europe Convention was opened for signature on 12 September 2002 and entered into force on 1 April 2004. Its aim is to ensure the mutual recognition of doping controls and to reinforce the application of the Convention by means of a binding monitoring mechanism.
44. At the fourteenth Council of Europe conference of Ministers responsible for sport, held on 29 November 2016, the Ministers adopted Resolution No. 1.1 on the role of the governments in addressing emerging challenges in the fight against doping in sport at national and international level. The resolution recognised the considerable challenges that had recently threatened the integrity of the international anti-doping system and observed the need to protect athletes against forced or encouraged doping schemes and to provide them with proper anti-doping education. It reaffirmed the Ministers’ support for WADA as the “global anti-doping regulator responsible for standard-setting and monitoring”, and called for a strengthening of WADA’s capacity. It welcomed the enhanced cooperation between the Council of Europe and WADA, and encouraged the Monitoring Group set up to monitor the implementation of the 1989 Convention to continue its standard-setting work in order to offer practical guidance to the States Parties on addressing emerging anti-doping issues in compliance with the Convention. The Ministers recognised that all anti-doping organisations must comply with the rules of good governance and the principle of proportionality, while respecting the fundamental rights of the individuals subjected to the anti-doping regulations, particularly when it came to data protection.
B. The World Anti-Doping Code and International Standards
45. Anti-doping activities took on a new dimension in the early twenty‑first century. The World Anti-Doping Agency (hereafter “WADA”) was established in the wake of the scandal that followed the discovery at the 1998 Tour de France of large-scale trafficking in doping substances involving one team and several well-known cyclists. WADA is an independent international organisation and a foundation under Swiss private law. It is composed of and financed by the Olympic Movement and governments. It draws up the WADC, which was adopted in 2003 and came into force on 1 January 2004 and which was subsequently revised in 2009 and 2015. WADA coordinates and supervises worldwide anti-doping activities in all sporting disciplines, with a view to harmonised implementation of a common set of general principles at international level, encompassing the definition of dopingoffences, the list of prohibited substances, tests, sanctions and the system of exemptions for therapeutic use.
46. The WADC is the instrument for bringing consistency to the anti‑doping practices of the different international federations and States. The introductory part spells out the “fundamental rationale for the World Anti-Doping Code” as follows:
“Anti-doping programs seek to preserve what is intrinsically valuable about sport. This intrinsic value is often referred to as ‘the spirit of sport’. It is the essence of Olympism, the pursuit of human excellence through the dedicated perfection of each person’s natural talents. It is how we play true. The spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport, including: ethics, fair play and honesty, health, excellence in performance, character and education, fun and joy, teamwork, dedication and commitment, respect for rules and laws, respect for self and other participants, courage, community and solidarity. Doping is fundamentally contrary to the spirit of sport.”
47. Article 2 of the WADC lists violations of the anti-doping rules, including the rule on athletes’ whereabouts, which at the relevant time read as follows:
“2.4 Violation of applicable requirements regarding Athlete availability for Out‑of‑Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.”
48. As worded at the relevant time, Article 5 of the WADC concerning testing specified that the national anti-doping organisations and international federations had jurisdiction in the matter.The relevant parts read as follows:
“5.1.1 [The above-mentioned organisations shall p]lan and conduct an effective number of In-Competition and Out-of-Competition tests on Athletes over whom they have jurisdiction, including but not limited to Athletes in their respective Registered Testing Pools. Each International Federation shall establish a Registered Testing Pool for International-Level Athletes in its sport, and each National Anti-Doping Organization shall establish a national Registered Testing Pool for Athletes who are present in that National Anti-Doping Organization’s country or who are nationals, residents, license-holders or members of sport organizations of that country. In accordance with Article 14.3, any Athlete included in a Registered Testing Pool shall be subject to the whereabouts requirements set out in the International Standard for Testing.
5.1.2 Except in exceptional circumstances all Out-of-Competition Testing shall be No Advance Notice.
5.1.3 Make Target Testing a priority. …”
49. In its wording at the time of the events, Article 10.3.3 of the WADC, entitled “Sanctions on Individuals”, provided as follows:
“For violations of Article 2.4 (Whereabouts Filing Failures and/or Missed Tests), the period of Ineligibility shall be at a minimum one (1) year and at a maximum two (2) years based on the Athlete’s degree of fault.”
50. Article 14.3, entitled “Athletes whereabouts information” provided at the relevant time that the International Federation and the national anti‑doping organisation were to coordinate the identification of athletes and the collecting of current location information and submit them to WADA.
51. The revised version of the WADC, which entered into force on 1 January 2015, contained numerous amendments. Those of interest in the context of the present applications are as follows. Under the revised Article 2.4, a violation is established where three “whereabouts failures” occur within a twelve-month period (rather than eighteen months as previously, see paragraph 47 above). The revised Article 5.2 now provides that “[a]ny Athletemay be required to provide a Sampleat any time and at any place” if, according to the comment on the Article by WADA itself, the anti‑doping organisation has a serious and specific suspicion that the athlete may be engaged in doping.
52. The provisions of the WADC operate in conjunction with five international standards. Section 11 of the standard on testing (“Athlete whereabouts Requirements”), as in force at the material time, read, inter alia, as follows:
“11.1 Objective/general principles
11.1.1 It is recognised and accepted that (a) No Advance Notice Out-of-Competition Testing is at the core of effective Doping Control; and (b) without accurate information as to an Athlete’s whereabouts, such Testing can be inefficient and often impossible.
[11.1.1 Comment: Such recognition is the fundamental rationale underlying Code Article 2.4 and this Section 11 of the International Standard for Testing.]
11.1.2 Therefore, in addition to developing a Test Distribution Plan in accordance with Section 4 of this International Standard, each IF [International Federation] and NADO[National Anti-Doping Organisation]shall create a Registered Testing Pool of Athletes …Athletes in a Registered Testing Pool shall be subject to and required to comply with the Athlete whereabouts requirements set out in this Section 11: see Code Article 14.3.
11.1.3 An Athlete in a Registered Testing Pool is required to make a quarterly Whereabouts Filing that provides accurate and complete information about the Athlete’s whereabouts during the forthcoming quarter, including identifying where he/she will be living, training and competing during that quarter, so that he/she can be located for Testing at any time during that quarter: see Clause 11.3. A failure to do so amounts to a Filing Failure and therefore a Whereabouts Failure for purposes of Code Article 2.4.
11.1.4 An Athlete in a Registered Testing Pool is also required to specify in his/her Whereabouts Filing, for each day in the forthcoming quarter, one specific 60-minute time slot where he/she will be available at a specified location for Testing: see Clause 11.4. This does not limit in any way the Athlete’s obligation to be available for Testing at any time and place. Nor does it limit his/her obligation to provide the information specified in Clause 11.3 as to his/her whereabouts outside of that 60‑minute time slot. However, if the Athlete is not available for Testing at such location during the 60-minute time slot specified for that day in his/her Whereabouts Filing, and has not updated his/her Whereabouts Filing prior to that 60-minute time slot to provide an alternative time slot/location for that day, that failure shall amount to a Missed Test and shall therefore constitute a Whereabouts Failure for purposes of Code Article 2.4.
[11.1.4 Comment: The purpose of the 60-minute time slot is to strike a balance between the need to locate the Athlete for Testing and the impracticality and unfairness of making Athletes potentially accountable for a Missed Test every time they depart from their previously-declared routine. … After extensive consultation with stakeholders with substantial whereabouts experience, the view was taken that the best way to maximize the chances of finding the Athlete at any time, while providing a reasonable and appropriate mitigation of ‘24/7’ Missed Test liability, was to combine the best elements of each system, i.e. requiring disclosure of whereabouts information on a ‘24/7’ basis, while limiting exposure to a Missed Test to a 60-minute time slot …]”
Under heading 11.3 (“Whereabouts Filing Requirements”), Clause 11.3.1 stated thatthe athletes concerned had to provide the International Federation or the national anti-doping organisation with the following information: a complete mailing address; details of any disability; specific confirmation of theirconsent to the sharing of their whereabouts information with other organisationshaving authority to test them; for each day during the following quarter, the full address of the place where theywould be residing (for example, home, temporary lodgings, hotel, and so on); and for each day during the following quarter, the name and address of each location where theywould train, work or conduct any other regular activity (for instance, school), as well as the usual time-frames for such regular activities. Clause 11.3.2 provided that the whereabouts information also had to include, for each day during the following quarter, one specific sixty-minute time slot between 6 a.m. and 11 p.m. each day during which the athlete concerned would be available and accessible for testing at a specific location. The comment on this clause stated that the athletes concerned could choose which location to nominate for this sixty-minute time slot: it could be their place of residence, training or competition, or it could be another location (for instance, work or school).A failure to be available for testing at the specified location during the specified time slot would be regarded as a missed test. Clause 11.3.6 specified that athletes could delegate the filing of the information to a third party.
Under heading11.4 (“Availability for Testing”), Clause 11.4.1 provided as follows:
“11.4.1 An Athlete in a Registered Testing Pool must specifically be present and available for Testing on any given day in the relevant quarter for the 60-minute time slot specified for that day in his/her Whereabouts Filing, at the location that the Athlete has specified for that time slot in such filing.”
C. International Convention against Doping in Sport of 19 October 2005
53. The International Convention against Doping in Sport, adopted under the auspices of UNESCO (hereafter “the UNESCO Convention”) came into force on 1 February 2007. The preamble to this Convention reads as follows:
“… Conscious that sport should play an important role in the protection of health, …
Concerned by the use of doping by athletes in sport and the consequences thereof for their health, the principle of fair play, the elimination of cheating and the future of sport, …
Mindful also of the influence that elite athletes have on youth, …
Aware that public authorities and the organizations responsible for sport havecomplementary responsibilities to prevent and combat doping in sport, notably to ensure the proper conduct, on the basis of the principle of fair play, of sports events and to protect the health of those that take part in them, …
Recognizing that the elimination of doping in sport is dependent in part upon progressive harmonization of anti-doping standards and practices in sport and cooperation at the national and global levels, …”
54. As the WADC is not binding on States because the instruments adopted by WADA are governed by private law, it was decided to draw up an international Convention in order to provide an internationally recognised legal framework allowing States to incorporate the Code into their domestic legislation. The UNESCO Convention has hitherto been ratified by France and by 186 other States. Article 4 stipulates that the provisions of the WADC are not an integral part of the Convention and do not have direct effect in national law. It states that “[i]n order to coordinate the implementation, at the national and international levels, of the fight against doping in sport, States Parties commit themselves to the principles of the Code as the basis for the measures provided for in Article 5 of this Convention.” Articles 3 and 5 provide that States undertake to “adopt appropriate measures at the national and international levels which are consistent with the principles of the Code” and that “such measures may include legislation, regulation, policies or administrative practices”. According to Article 12, States are to encourage the implementation of doping controls in a manner consistent with the Code, including no‑advance-notice and out-of-competition testing. Article 19 encourages States to implement education and training programmes on anti-doping, both for athletes and for the sporting community in general, who should be provided with information on “the harm of doping to the ethical values of sport” and “the health consequences of doping”.
III. EUROPEAN UNION LAW
55. Articles 6 and 165 of the Treaty on the Functioning of the European Union (TFEU) provide as follows:
Article 6
“The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: …
(e) education, vocational training, youth and sport; ”
Article 165
“1. … The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.
2. Union action shall be aimed at: …
– developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe. …”
56. The EU contributes to the revision of the WADC. Hence, in a contribution sent to WADA in March 2012 (6846/12), the Council of the European Union expressed its point of view on the whereabouts requirement, referring to an opinion of the “Article 29” Data Protection Working Party (opinion 4/2009). That opinion stressed that the information to be provided concerning the whereabouts and the time slots for controls should be clearly determined by taking into account the requirements of the principles of necessity and proportionality with respect to the purposes of out-of-competition testing. In another contribution concerning the revision of the WADC (no. 6427/13), the Council observed that athletes’ rights could be enhanced by the preparation of guidance aimed at ensuring the proportionality of measures concerning registered testing pools and athletes’whereabouts.
IV. RELEVANT DOMESTIC LAW AND PRACTICE
57. In France, Law no. 2006-405 of 5 April 2006 amended the French legislation to meet the requirements of the WADC and established the AFLD, which took over responsibility for anti-doping testing from the Ministry of Sport. Article L. 235-5-1 of the Sports Code (contained in Part III (Athletes’ health and efforts to combat doping) of Book II (Sports stakeholders)), states that this agency is an independent public authority with legal personality which defines and implements measures to combat doping. It has limited regulatory powers and has exclusive power to conduct anti-doping tests and analyse the results. It also has disciplinary powers in addition to the powers exercised in principle by the sports federations.
58. Unlike in many countries, sport in France is regarded as a public service, a fact which explains the State’s involvement. Under Article L. 230-1 of the Sports Code “the Minister of Sport, in cooperation with the other ministers and organisations concerned, shall initiate and coordinate actionsin the sphere ofprevention, medical supervision, research and education, with the assistance, among others, of the approved sports federations …, with a view to protecting athletes’ health and combating doping”. The sports federations are associations, and hence private entities, but are granted approval “with a view to participating in a public-service activity” (Article L. 131-15 of the Sports Code).They have powers delegated to them by the Sports Minister for the purpose of organising competitions (Article 131-8 of the Sports Code).
59. The above-mentioned Law of 5 April 2006 also introduced a whereabouts requirement for some elite athletes. The Order of 14 April 2010 at issue in the present case brought the Sports Code into line with the WADC by broadening the scope of the rules on unannounced testing with regard to the categories of athletes concerned and the periods during which tests could be carried out.
60. Inclusion in the registered testing pool of athletes required to provide whereabouts information is preceded by an adversarial stage. From the date of receipt of the letter informing them of their inclusion in the testing pool, athletes have fifteen days in which to contest the measure. The decision to include an athlete in the pool was taken at the relevant time by the AFLD’s director of testing. Nowadays, the decision is taken by the AFLD Board (see paragraph 28 above). It must be accompanied by reasons and is open to appeal before the Conseil d’État. Since 2010, under Article R. 311-1 of the Administrative Courts Code, the Conseil d’État has jurisdiction at first and last instance to hear appeals against decisions taken by the AFLD in the performance of its supervisory or regulatory tasks.
A. The Sports Code
61. In addition to the impugned provisions of theOrder contained in Articles L. 232-5 and L. 232-15 of the Sports Code (see paragraphs 8 and 10 above), the Articles of relevance at the material timewere as follows.
62. Article L. 232-13 provided that anti-doping tests could be carried out as part of the AFLD’s annual testing programme or as requested by an approved federation, WADA, a national anti-doping organisation or an international sports body.
63. Article L. 232-13-1 concerned testing locations. It read as follows:
Article L. 232-13-1
“Tests may be carried out:
(1) at the location of any training session or event referred to in Article L. 230-3 [sporting events organised by an approved federation or authorised by a federation to which powers have been delegated, and international sporting events];
(2) in any establishment referred to by Article L. 322-2 [establishments where one or more physical or sports activities are practised and which must afford, for each type of activity, the safeguards required by the rules on hygiene and safety] in which physical or sports activities are practised, and by the Annexes to that Article;
(3) at any location chosen with the athlete’s agreement at which the test can be carried out in compliance with the athlete’s right to privacy, including, at his or her request, at home;
(4) in the context of the police custody of an athlete suspected of committing one of the offences referred to in Articles L. 232-9 and 232-10.”
64. Articles L. 232-14 and L. 232-17 concerned the time slots for testing and the sanctions applicable in the event of failure to comply with the whereabouts requirements in particular. They provided as follows:
Article L. 232-14
“In the performance of their testing duties, the persons referred to in Article L. 232‑11 may enter the premises referred to in Article L. 232-13-1 only between 6 a.m. and 9 p.m., or at any time if the premises are open to the public or a sporting event or pre-event training session is in progress. Tests at athletes’ homes may be carried out between 6 a.m. and 9 p.m. only. …”
Article L. 232-17
“I.- Persons evading, attempting to evade or refusing to undergo the tests provided for in Articles L. 232-12 to L. 232-16 or to comply with the arrangements governing them shall be liable to incur the administrative sanctions laid down in Articles L. 232‑21 to L. 232-23.
II.- Failure to comply with the whereabouts requirements laid down in Articles L. 232-15 may also give rise to the administrative sanctions provided for in Articles L. 232-21 to L. 232-23.”
65. Articles L. 232-21 and L. 232-23 of the Sports Code stated that the sanctions were administrative in nature (warning, temporary or permanent ban on participating in sporting events) and could be accompanied by a fine not exceeding 45,000 euros (EUR). Under Article L. 232-24, the decisions taken were open to appeal before the administrative courts. WADA could also lodge an appeal with the administrative courts against a decision of a sports federation or the AFLD.
66. In addition to the doping controls consisting in the taking of samples, the Sports Code (Article L. 232-19) specified that checks (house searches and seizures) could be carried out in order to investigate possible offences, under the supervision of the public prosecutor and the liberties and detention judge.
67. France transposed the provisions of the most recent WADC (see paragraph 51 above) in the Order of 30 September 2015, which was ratified by Law no. 2016-41 of 26 January 2016 and was followed by two implementing decrees of 29 January 2016. In particular, Article L. 232-13-1 of the Sports Code (see paragraph 63 above) was revised, with the reference in the third sub-paragraph to the athlete’s agreement being deleted. In addition, Article L. 232-14 (see paragraph 64 above) now provides that anti‑doping tests may be carried out between 6 a.m. and 11 p.m. (compared with 9 p.m. previously). The 2015 Order also made it possible to carry out night-time tests, subject to the athlete’s consent. Article 232-14-1 of the Sports Code now provides that tests may be conducted at the athlete’s home address or temporary lodgings between 11 p.m. and 6 a.m., subject to respect for his or her privacy, if the athlete concerned is in a registered testing pool or is taking part in an international sporting event and there are strong and consistent reasons to suspect that he or she has violated or is about to violate the anti-doping rules and that there is a risk of the evidence being lost.
B. AFLD decisions
68. The whereabouts requirements for athletes are laid down in AFLD decision no. 54, as rectified on 12 July 2007 and 18 October 2007, on arrangements for the filing and management of whereabouts information for athletes subject to individualised testing and to sanctions in the event of an infringement (hereafter “decision no. 54”), and in decision no. 219 of 29 March 2012 supplementing Article 2 of decision no. 54. Articles 16 and 36 of Annex II-2 (Article R. 232-86 of the Sports Code – Model disciplinary regulations for approved sports federations on combating doping), as in force from 25 July 2007 to 16 January 2011 (Decree no. 2007-1133 of 24 July 2007 on the regulatory provisions of the Sports Code), provided that the arrangements for the filing of information on athletes’ whereabouts were to be determined by a decision of the AFLD Board. The preamble to decision no. 54 refers to Article 36 of Annex II-2, cited above. Decision no. 53 of 7 June 2007 authorised the automated processing of data concerning the whereabouts of athletes subject to individualised testing. In decision no. 68 of 4 October 2007, the AFLD Board undertook to comply with the principles set forth in the WADC and to implement the provisions of the WADC in its spheres of responsibility. Its commitment to the principles set forth in the 2009 revision of the WADC was reiterated in a 2011 decision.
69. At the relevant time, Articles 1, 2, 3, 9, 12 and 13 of decision no. 54 read as follows:
Article 1
“The Agency shall inform … the persons designated by the Agency’s director of testing from the lists of elite athletes and professional sportsmen and women licensed by the approved sports federations that they may be the subject of individualised testing as provided for by Article L. 232-5 of the Sports Code and that they are therefore required to provide information on their whereabouts for the purposes of unannounced doping controls. …
The Agency shall draw the attention of athletes who are subject to this requirement to the fact that failure to submit information on their whereabouts within the time‑limits laid down in Article 2 of this decision, or the filing of insufficiently accurate and up-to-date information concerning the one-hour time slot, or absence during this time slot from the address or location indicated, shall constitute failure to comply with the whereabouts requirement leading, save in exceptional circumstances, to the issuing of a warning.”
Article 2
“The information in question must make it possible to establish a detailed daily schedule for the athletes concerned so that samples can be taken at their place of training, on any premisesthat ensure respect for their privacy, or at their home address. The information for each quarter must be submitted to the Agency no later than the fifteenth day of the month preceding that quarter …”
Article 3
“Athletes identified by the Agency’s director of testing as targets for individualised testing must declare, for each day, a one-hour time slot during which they may be required to undergo one or more individualised tests by the French Anti-Doping Agency under Article L. 232-15 of the Sports Code. The test may be carried out only between 6 a.m. and 9 p.m., unless the premises are open to the public or a sporting competition or event, or a preparatory training event, is in progress and the athlete concerned is taking part or has taken part in it.
Individualised tests may be carried out at any time within the time slots declared by the athlete.
The Agency may also conduct tests outside these time slots. …”
Article 4
“In order to submit the whereabouts information the athlete concerned, his or her legal representative or the person or persons with parental responsibility may:
– either send the form referred to in Article 5, duly completed, to the Agency by registered letter with recorded delivery, by fax or by email;
– or connect to the server referred to in Article 6 and enter the details online via the management module for the athletes’ whereabouts information referred to in the aforementioned decision of the National Commission on Data Processing and Civil Liberties of 25 April 2007.
The athlete may delegate in writing to a person of his or her choosing the task of submitting his or her whereabouts information to the Agency, by means of the form attached to this decision. The delegation must be sent to the Agency’s director of testing by registered letter with recorded delivery. However, the athlete shall continue to have sole responsibility for the information submitted to the Agency. …”
Article 7
“Any change to the information declared must be made as soon as possible, and no later than 5 p.m. on the day before the date of effect. In order to make changes, the athlete concerned may either use the change-of-information form attached to this decision, to be sent to the Agency by registered letter with recorded delivery, by fax or by email, or update the information online using the software referred to in Article 4.
In exceptional circumstances, and provided that the athlete has previously informed or tried by all possible means to inform the Agency’s testing department, changes may be made up to the beginning of the time slot. …”
Article 9
“The following shall constitute failures to comply with the requirement for athletes in the Agency’s testing pool to submit whereabouts information:
– failure to submit the requisite whereabouts information to the Agency within the time-limit specified in the second paragraph of Article 2;
– submission to the Agency of insufficiently accurate and up-to-date information to enable individualised tests to be conducted under Article L. 232-5 of the Sports Code during the one-hour time slot declared by the athlete;
– absence of the athlete during the one-hour time slot from the address or location that he or she has declared for the purposes of individualised testing. The official responsible for taking the sample shall record a failure to comply if the athlete has been continuously absent from the address or location concerned for thirty minutes during the time slot.
The fact of being able to carry out a test on the athlete in question the same day, outside the specified time slot or despite a failure to submit the required information, will not alter the finding of failure to comply. …”
Article 12
“As regards failure to submit the required information, or the submission of information that is insufficient to enable individualised tests to be carried out during the daily one-hour time slot, a further warning may be issued to the athlete concerned if he or she has not satisfied the information requirements within seven working days from notification of the first warning.
In the case of all athletes subject to the whereabouts requirement, a first finding by the Agency of one of the failures referred to in the previous paragraph shall give rise to a reminder, sent by registered letter with recorded delivery, of the athlete’s obligations as specified in Article 2 of this decision. The athlete concerned then has three working days from notification of the letter in which to submit the information requested without a warning being issued by the Agency. If the information is not submitted within that period, the Agency shall issue a warning to the athlete, sent by registered letter with recorded delivery.
Further attempts to test an athlete belonging to the Agency’s testing pool during the daily one-hour time slot shall not be considered as a missed test resulting in a warning unless the attempts are made after the date on which the athlete received notice of the previous missed test.”
Article 13
“In the event of three failures of the kind referred to in Article 9 over a period of eighteen consecutive months, the Agency shall send a notice of violation to the competent federation with a view to implementation of the sanction provided for in Article 36 of the model disciplinary regulations for approved sports federations on combating human doping attached to Article R. 232-86 of the Sports Code.”
70. According to the AFLD whereabouts form, athletes in the testing pool must provide information for the coming quarter no later than the fifteenth day of the month preceding the start of the quarter. The following personal information must be provided: name, home address, nationality, telephone number, email address, federation, discipline and licence. The whereabouts information must include the following details: main training location, secondary training location, other regular activities, further temporary addresses, competitions, training sessions, and a timetable for the quarter, that is, for each day, the address at which the athlete can be found during the chosen time slot.
71. By decision no. 2014-145 of 3 December 2014 the AFLD amended the above-mentioned decision no. 54 and decided to reduce from eighteen to twelve months the period during which a specified number offailures to comply could result in disciplinary proceedings (see paragraph 51 above).
C. Case-law
72. In a decision of 9 July 2014 (CE, No. 373304), theConseil d’Étatreaffirmed its position on the whereabouts rules (see paragraphs 12 and 35 above).
73. In a judgment of 16 October 2013 the Court of Cassation rejected a request for a preliminary ruling on constitutionality regarding the whereabouts requirement for athletes in the testing pool. It dismissed the possibility that allegations of breaches of their rights raised by athletes subject to the whereabouts requirement could come within the jurisdiction of the ordinary courts. The Court of Cassation found as follows:
“… the action brought by Mr X and Mr Y against the [AFLD] – an independent public authority with legal personality which carries out public duties, in the performance of which it took the measure which this court is requested to lift while providing compensation for the damaging consequences thereof – falls by its nature within the jurisdiction of the administrative courts….The constitutional rights and freedoms which the impugned provisions allegedly infringe do not come within the scope of individual liberty within the meaning of Article 66 of the Constitution as interpreted by the Constitutional Council. Furthermore, the whereabouts requirement for athletes in the testing pool does not of itself amount to a restriction of freedom of movement, as the controls must respect athletes’ privacy,are carried out at home only at the athlete’s request and within a fixed time slot, and are subject to the supervision of the courts where they are aimed at investigating offences or are liable to give rise to seizures. Accordingly, in the absence of a violation of a right or freedom placed under the sole protection of the ordinary courts, the ground of appeal alleging that the legislative provisions complained of infringe the rights and freedoms guaranteed by the Constitution cannot be raised before the ordinary courts, which do not have jurisdiction to hear the dispute.”
D. The Senate report on behalf of the Commission of Inquiry into the Effectiveness of Efforts to Combat Doping (17 July 2013)
74. In February 2013 a commission of inquiry was set up within the Senate with a view to proposing new approaches to anti-doping policy. The report, which was submitted on 17 July 2013 and runs to around 235 pages, is divided into two sections, entitled “Doping: an ethical and health-related issue” and “Ways and means of combating doping” (including improved monitoring of competition schedules), with a concluding part under the heading “A multi-faceted approach”. The rapporteur’s introduction states that “the real dangers of doping for users are well documented”. According to the report, between 1% and 2% of tests worldwide are positive. However, the statistics underestimate the scale of doping practices within sport, in particular because the development of detection methods always lags behind the emergence of new substances and the ingeniousness of doping protocols.More generally, the report criticises the culture of silence encountered by efforts to combat doping: the difficulty of obtaining evidence, attempts at intimidation, the lack of credibility of the sporting world’s attempts at self-regulation, a general denial of the problem in society, and threats to information and educational activities.
75. In the part entitled “The dangers of doping” the report stresses that, at first, doping was largely confined to the improper use of medication, hormones and psychoactive substances: anabolic steroids in the 1970s, and testosterone, peptide hormones (EPO and growth hormones) from the 1990s onwards. Today, improper use of medication and hormones co-exists with the development of particularly sophisticated doping protocols and even the emergence of molecules created specifically for doping purposes. The report states that “[d]oping protocols are based in particular on the simultaneous use of minute doses of several substances with different chemical structures and on a subtle balancing act between the duration of the desired effects and the duration of the window for detection”. One of the salient features of modern-day doping, according to the report, is the misuse of certain molecules that have not been placed on the market and the emergence of a specific doping-related industry. Genetic doping also constitutes a very real threat.
76. According to the report, the threat to public health from doping is twofold:
“ – the substances used have potentially serious secondary effects, most of which are known [the report refers to a report by the Medical Academy, see paragraph 81 below], resulting directly from their use or indirectly from the increased exercise intensity which they make possible;
– doping undermines the effectiveness of campaigns to promote sporting activities based on the health benefits of sport.”
The report goes on to state that “although the undesirable effects of doping products are well known, efforts to combat doping are hindered by the lack of reliable health indicators based on accurate epidemiological data (mortality, morbidity, and so on)”. Among the proposals made by the report in that regard is the funding of epidemiological studies with a view to improving the state of knowledge concerning doping practices and the health risks involved.
77. The report also stresses the extent of doping among amateur and non-licensed athletes,especiallythe young. It notes that this group is not covered by the provisions of the Sports Code relating to athletes’ health and efforts to combat doping. “Thus, there continues to be very little monitoring of the non-licensed sector despite the fact that this appears to be the very area affected by what could be termed ‘mass doping’”. The report makes numerous recommendations for preventive and educational action in this regard.
78. The report states that doping is in very many respects an international issue which requires a worldwide response. It stresses the importance of the above-mentioned European and international instruments (the Council of Europe Convention, the WADC, and so on). At the level of the European Union in particular, it notes the differences in anti-doping legislation and encourages the EU to adopt harmonising directives on measures to combat trafficking in doping products.
79. The report regards the whereabouts requirement for athletes as a severe but necessary constraint. It refers to the decisions of the Conseil d’État (see paragraphs 12 and 35 above) and to the safeguards and adjustments provided for by the relevant instruments, concluding that the interference with athletes’ private lives and with the opportunity to live a normal family life “appears to be proportionate to the general-interest objectives pursued by efforts to combat doping”.
80. With regard to the list of locations for the unannounced testing provided for by Article L. 232-13-1 of the Sports Code, the report goes on to state that no exemption from these rules is possible. If an athlete does not wish the test to be carried out at home, he or she can be escorted to the location of his or her choice (the sample-taker’s surgery, the athlete’s club, and so on). As to the timing of the unannounced tests, which is often viewed unfavourably by athletes because it disrupts the training or recovery cycle, the report stresses that these are the very stages that are “risky” in terms of the taking of doping substances. The report further specifies that the only time when unannounced tests may not be carried out is during the night, from 9 p.m. to 6 a.m.
81. Lastly, the report advocates systematic recourse to athletes’ biological reports as a tool for targeting tests in accordance with Law no. 2012-348 of 12 March 2012, which introduced the concept of athletes’ “biological profiles”. The procedure consists in examining the results of athletes’ successive tests, looking for abnormal variations in athletes’ biological parameters revealing the use of prohibited substances rather than for traces of the substances themselves.
E. Senate information report on the European Union and professional sport, prepared on behalf of the European Affairs Committee (20 February 2013)
82. This report provides an overview of European sports policy. While, under European law, sport was initially regarded purely as an economic activity, the Lisbon Treaty established the EU’s role in the field of sport (see paragraph 55 above). The report contains a section on measures to combat doping, which emphasises the following:
“The nature of anti-doping measures varies from one European Union member State to another. Hence three categories of countries can be distinguished: those which have legislation on the subject, where the public authorities lay down anti-doping rules, as is the case in France; those in which the Government and the sports authorities work together to tackle the phenomenon, as in Austria; and those in which doping issues come mainly within the remit of the sports associations, as in Germany.”
The report also observes a wide disparity between certain member States as regards the formation of the testing pools:
“In 2010 Belgium, Estonia, Lithuania and Slovakia were notable in having a very high number of athletes in the testing pool as a proportion of the country’s population. Meanwhile, this kind of monitoring was not carried out in Bulgaria, Cyprus, Malta, Poland or Romania.”
F. Report of the National Medical Academy entitled “Efforts to combat doping: a public-health issue” (2012)
83. In the section of its report entitled “Use and dangers of doping agents”, the Medical Academy states that doping pursues three main aims:
“- To increase the sustainable level of intensity in training and in competition by masking the physiological warning signals (euphoria and aggressiveness overcoming the sensation of tiredness, pain-relieving effects).
This is achieved by the use of stimulants, and in particular amphetamine derivatives;by narcotics and opioids, cocaine and cannabinoids;and by glucocorticoids. Mixtures of drugs are common, the most famous being thepot belge, comprising a mix of amphetamines, cocaine and heroin! In the short term, exceeding the body’s limits may result in exhaustion, heat stroke or even death, especially in adverse heat conditions (the death of Tom Simpson during the 1967 Tour de France is an example). In the medium and long term, behavioural problems, psychiatric decompensation and drug addiction may develop and, more particularly with the use of amphetamines, cardiovascular diseases may occur such as arterial hypertension or valvular heart disease, or cardiomyopathy in the case of cocaine use. Particular mention should be made of the regular, prolonged used of glucocorticoids, the adverse effects of which are well documented and include increased fragility of the muscles and tendons, immunosuppression, arterial hypertension and corticoadrenal insufficiency.
– To enhance aerobic capacity through the use of erythropoietin (EPO) or autologous blood transfusion, most commonly in endurance sports such as marathon running and road cycling. These methods are linked to a significant risk of increased blood viscosity leading to thrombosis and embolisms, and to intolerance syndromes or transfusion-related adverse events and transmission of infectious agents.
– To increase muscle mass, in sports such as sprinting and weight lifting where explosive power is key. Growth hormones, anabolic steroids and beta2-agonists are the most commonly used drugs. The consequences of abuse of these drugs, which are usually administered in supra-therapeutic doses, are many and varied and include cardiovascular problems (enlarged heart, coronary disease, arterial hypertension, rhythm disorders) and cancer (of the colon, prostate and liver).
In addition, more specific adverse effects are associated with anabolic steroids (dermatological – acne; psychiatric – aggressiveness and dependency; sexual – testicular insufficiency and development of breast tissue in men, change in morphotype and hypertrophied clitoris in women) and with growth hormones (morphological – hypertrophied jaw and extremities; metabolic – development of insulin resistance and lipid disorders such as elevated triglyceride levels; and endocrinological – thyroid insufficiency).
The harmful consequences of this misuse of drugs are even greater when the drugs are administered to growing children. The disastrous effects of these practices are extensively documented in the Spitzer report on the consequences of State-sponsored doping as practised on very young athletes in the German Democratic Republic (GDR). The study, which covered 10,000 athletes who had taken doping agents, identified 1,000 minor disorders and 500 serious disorders including sex change, sterility and cancer.”
84. According to the section of the report entitled “At-risk populations”, it is difficult to conduct epidemiological studies on the issue of doping in view of the extreme reluctance of those concerned to discuss the issue. Nevertheless, the findings made in France and certain research studies suggest that the phenomenon extends far beyond the confines of top-level sports. According to studies conducted worldwide, between 3% and 5% of adolescents who train on a daily basis have already been confronted with the issue of doping. The report quotes an article from the newspaper La Libre Belgique which was posted online in 2010 and which states that “almost 8% of young people between the ages of 14 and 18 reportedly use growth hormones, which they order for home delivery on Belgian and foreign websites”. The report adds that while the impact of doping on adults is less well known, “an older series of articles revealed that the prevalence of doping among adults was between 5% and 15%”.
85. The difficulties in tackling doping, according to the report, are of a scientific, regulatory and sociological nature. Among the scientific aspects it notes that “certain products are the result of chemical manipulation of the structure of drugs already on the market by small laboratories operating to a greater or lesser extent illegally … What is more worrying is the emergence of new products currently being developed by the pharmaceutical industry.” Moreover, “possibly in the near future, there is a danger of the spread of abusive techniques involving the use of ‘normal or genetically modified cells or the transfer of nucleic acids’”. The difficulties facing anti-doping organisations also include the speed of metabolisation of certain products such as EPO, and very sophisticated doping protocols. In that regard the report states that doping in top-level sports is now:
“…in the hands of professionals with a good knowledge of pharmacology, the pharmacokinetics of the drugs and the physiology of the practice: the elimination time and the period during which the products or their metabolites can be detected in urine, the duration of the effects and the mixtures of drugs which reduce the dose administered and result in a shorter window of detection. They also have access to laboratories capable of testing before a competition for the residual presence or absence of illegal products in the blood and urine. It is clear that the current doping protocols could not be established without the active participation of scientists, doctors and pharmacists.”
The report also notes the regulatory obstacles to anti-doping measures, including the pre-eminent but ambiguous role of the federations.
86. The report stresses the need for “proactive, targeted and large-scale” prevention in order to tackle doping. This prevention requires the involvement oftop-level sports:
“Efforts to tackle doping in top-level sports and particularly in spectator sports should be given special priority since sporting champions, who are celebrated in the sports press and are the focus of much attention from the political authorities, act as role models for young athletes, for whom they represent the pinnacle of social and financial success.”
87. The report goes on to note that the merits of anti-doping measures are the subject of debate. It observes the following:
“Those who cast doubt on this approach point to the increasing reliance on medication in contemporary societies, the failure of prohibition in the US in the 1930s and the economic cost. They cite the fact that administering the biological passport programme costs the Union Cycliste Internationale (UCI) around four to five million euros annually. Opponents of this approach advocate legalising doping and placing it under medical supervision. This position appears to ignore the reality. Sporting careers are continuous: elite athletes are not ‘born’, they evolve gradually through talent and hard work and after overcoming numerous selection hurdles. This lengthy process begins at a young age and may result in addictive behaviours. Consequently, if doping were to be made legal and appeared essential in order to succeed in sport, children would follow the example of their role models, magnified by the media, and would engage in doping very early on, with potentially harmful consequences for their health.
Lastly, sports ethics are based on equality of opportunity. If doping were authorised, champions’ victories and performances would be largely the result of the skill of the teams of scientists; the latter’s reputation would grow accordingly, placing athletes at risk of turning into human guinea pigs.”
88. The report makes the following recommendations. The State should devise a proactive anti-doping policy, independent of any economic, sporting or political pressures; a watchdog should be set up to monitor doping-related incidents and complications; all possibilities for cooperation should be used in order to share useful information concerning doping agents, including those under development, as well as analytical methods enabling them to be detected at an early stage; the WADC should provide for a reduction in the number of sporting fixtures, or rules should be laid down setting limits for each sport on the number of competitions in which an athlete may participate; the remit of the international federations should be restricted to major high-profile sporting events of a genuinely international nature; a research policy should be devised, especially in the field of epidemiology, in order to assess the extent of the doping scourge and its health impact; in-depth training on doping, doping methods and the risks entailed should be provided and should be the main focus of preventive measures aimed at young people; and audiovisual companies should be required to broadcast information campaigns on doping.
THE LAW
I. JOINDER OF THE APPLICATIONS
89. The Court considers that, in the interests of the proper administration of justice and in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined in view of their similarity as regards the facts and the legal issues raised.
II. THE GOVERNMENT’S INADMISSIBILITY PLEAS
90. The Government raised several pleas of inadmissibility in relation to application no. 48151/11 and one plea of inadmissibility in relation to application no. 77769/13.
A. Application no. 48158/11
1. Victim status of the applicant unions
91. The Government submitted that the applicant unions could not claim to be victims, within the meaning of Article 34 of the Convention, of measures which allegedly infringed their members’ rights under the Convention. They stressed that the recognition that these organisations had standing before the Conseil d’État was not to be confused with the requirement for the legal entities per se to be directly affected by the measure at issue.
92. The applicant unions observed that their constitutions provided that they should defend the interests of their members, professional athletes who, by definition, were included or liable to be included in the testing pool. FNASS and the unions stressed their legitimate claim to assert the interests of all athletes, who, acting for the most part individually, had no practical opportunity to put forward their grievances and arguments. The applicant unions submitted that their standing before the domestic courts should enable them to apply to the Court on the basis that they were responsible for the conditions in which sports were practised at national and international level; to decide otherwise would deprive them of an effective remedy. They argued that they should therefore be considered at least as potential victims for the purposes of Article 34 of the Convention.
93. The Court reiterates that under Article 34 of the Convention it may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. For an applicant to be able to claim to be a victim of a violation, there must be a sufficiently direct link between the applicant and the alleged violation. The concept of “victim” must be interpreted autonomously and irrespective of rules of domestic law such as those concerning an interest or capacity to act (see, in particular, Association de défense des intérêts du sport v. France (dec.), no. 36178/03, 10 April 2007;Stukus and Others v. Poland, no. 12534/03, § 34, 1 April 2008; andTunnel Report Limited v. France, no. 27940/07, § 24, 18 November 2010).
94. Furthermore, according to the Court’s settled case-law, “victim” status may be granted to an association or trade union only if it is directly affected by the measure complained of (see Winterstein and Othersv. France, no. 27013/07, § 108, 17 October 2013, and Syndicat CFDT des services de santé et des services sociaux de Côtes d’Or and Others v. France (dec.), no. 11052/06, 21 October 2008).
95. In the instant case the Court observes that, although FNASS and the four unions were recognised by the Conseil d’État as having standing to challenge the impugned order, this is not sufficient for them to be considered as victims for the purposes of Article 34 of the Convention. The organisations concerned are not direct and personal victims of the alleged violation of Article 8 and Article 2 of Protocol No. 4, and the mere fact that one of their objectives under their constitutions is to defend their members’ interests is not sufficient to confer such status on them. Accordingly, in so far as it was lodged by FNASS, Provale, the UNFP, the AJPH and the SNB, the application is incompatible ratione personaewith the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. Victim status of the individual applicants
96. In the light of the details provided as to the situation of the persons concerned with regard to the impugned legislation, the Government submitted that the eight applicants who had never been placed in the AFLD’s testing pool could not claim to be victims of a violation of the Convention within the meaning of Article 34 of the Convention. Likewise, the fact that they were in the IRB’s testing pool did not confer victim status on them, as that federation had its registered office in Ireland and therefore did not come within the jurisdiction of the French State. Moreover, the possibility of disciplinary sanctions being imposed on these applicants by the AFLD or the French Rugby Federation was merely hypothetical.
97. With regard to the remaining ninety-one applicants, the Government stressed that the assessment of their situation was of necessity ongoing, bearing in mind the period of validity of registration in the testing pool, which since the adoption of the Order of 14 April 2010 was limited to one year, with the possibility of renewal. It was true that the ninety-one athletes had been included in the AFLD testing pool at various times. However, only eleven of them had been in the testing pool when the application had been lodged with the Court and when the Court had notified the Government of the application (see paragraph 13 (c) above). Lastly, the Government submitted that the AFLD’s decisions of 4 September 2014 and 22 October 2014 (see paragraph 14 above) constituted new facts of which the five applicants in question should have informed the Court. The removal of the applicants’ names from the list of athletes in the testing pool deprived their allegations of a violation of Article 8 of any effect or purpose. In view of this new circumstance, the Government requested the Court to find that the five athletes concerned no longer had victim status for the purposes of Article 34 of the Convention.
98. Regarding the eight athletes belonging to the IRB’s testing pool, the applicants specified that although the AFLD did not directly manage their whereabouts, it was entitled to impose sanctions on them under the Sports Code. They added that they were still liable for inclusion in the AFLD’s testing pool. In these circumstances, they considered themselves to be victims within the meaning of Article 34 of the Convention.
99. The twenty-four applicants referred to in paragraph 16 above claimed to have victim status as they had been in the testing pool at the time the application was lodged with the Court.
100. The remaining applicants stated that they had joined the proceedings before the Court simply because they had been included in the testing pool after the Conseil d’État’s decision.
101. The Court notes that the Government submitted two pleas of inadmissibility: one concerning the eight applicants included in the IRB testing pool and referred to at paragraph 15 above, and the other concerning the alleged loss of victim status of the five applicants referred to at paragraph 14 above, on the grounds that they allegedly failed to inform the Court of their removal from the testing pool in 2014.
102. The Court observes in this connection that the whereabouts requirement criticised by the applicants is laid down in Article L. 232-15 of the Sports Code and in decision no. 54, which stipulate that the athletes registered in the testing pool for a one-year period are required to provide accurate and up-to-date information on their whereabouts. In these circumstances it considers that only those applicants who were included in the testing pool on the date on which the application was lodged, that is, on 23 July 2011, can claim victim status under Article 34 of the Convention. This was not the case with the eight applicants in the IRB pool. Furthermore, and having regard to the evidence before it, it considers that only the applicants referred to in paragraphs 13 (c) and (d) and 16 (b) above may claim victim status under Article 34. Lastly, as regards the victim status of the five applicants referred to in paragraph 14 above, the Court notes that the persons in question were included in the testing pool on the date on which the application was lodged, and that it is not disputed that they were subject to the whereabouts requirement and to tests which resulted in warnings being issued. It therefore considers that their removal from the testing pool in 2014 is not apt to deprive them of their victim status, as inclusion in the pool is by definition limited in duration. The Court therefore rejects the second inadmissibility plea raised by the Government.
103. In sum, in so far as the application was lodged by Mr Da Silva, Mr Gomis, MrHo You Fat, MrPerquis, MrCongre, MrCoulibaly, Mr Cavalli, MrCabarry, MrHuget, MrHonrubia, MrGharbi, MrKerckhof, MrBusselier, MrTernel, MrKiour and Mr Haon (“the applicants” for the purposes of the remainder of this judgment), it is compatible ratione personae with the provisions of the Convention. As regards the remaining individual applicants, the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. Exhaustion of domestic remedies
104. The Government requested the Court to reject the application for failure to exhaust domestic remedies with regard to the seventy-five applicants who did not apply to the Conseil d’État for judicial review of the impugned provisions of the Order of 14 April 2010 (see paragraph 11 above).
105. In the alternative, the Government submitted that some of the complaints raised by the applicants in their observations had not been submitted to the Conseil d’État and should also be rejected for failure to exhaust domestic remedies. The complaints in question concerned the automated processing of the information relating to athletes’ whereabouts and the detrimental effects on athletes’ health and on medical practitioners’ freedom to prescribe resulting from the procedure for exempting drugs used for therapeutic purposes.
106. The applicants who did not apply to the Conseil d’État submitted that they had been included in the testing pool a posterioriand that a fresh appeal to that body would have served no purpose.
107. The Court observes that eleven of the applicants whom it has found to have victim status under Article 34 of the Convention did not make use of any remedy before the Conseil d’État, owing to the fact that they had not yet been included in the testing pool (see paragraph 13 (c) above) when the application for judicial review of the Order of 14 April 2010 was lodged on 1 June 2010. In these circumstances, and in view of the rejection of the application by the Conseil d’État on 24 February 2011, the Court considers that they were not required to lodge a further application with that court that was manifestly bound to fail. This plea should therefore be dismissed.
108. As a subsidiary consideration, the Court observes that the complaints referred to by the Government at paragraph 105 above were declared inadmissible on 26 June 2013 by the Section President sitting as a single judge (see paragraph 4 above), on the grounds that they had been raised for the first time in a supplementary pleading of 15 March 2013that was submitted out of time. Accordingly, the Court will not examine these complaints despite the observations made by the parties on these two issues. While the same considerationapplies to the complaint concerning the right to respect for “private life”, this complaint nevertheless concerns a specific aspect of the initial complaint raised within the time-limit under the right to respect for “family life” and may thus be examined by the Court (see, for example, Sâmbata Bihor Greek Catholic Parish v. Romania (dec.), no. 48107/99, 25 May 2004).
B. Application no. 77769/13
109. The Government maintained that, on account of her removal from the testing pool on 9 April 2015, of which she did not inform the Court, the applicant no longer had victim status for the purposes of Article 34 of the Convention.
110. The applicant did not submit any observations on this point.
111. The Court observes that the applicant was included in the testing pool at the time of lodging of the application and that she was subject to the impugned whereabouts requirement. In these circumstances it considers that her removal from the pool in 2015 is not apt to deprive her of her victim status (see paragraph 102 above). The Court therefore dismisses the Government’s inadmissibility plea.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
112. The applicants in both applications alleged that the whereabouts requirement was in breach of Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
113. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It therefore declares it admissible.
B. Merits
1. The parties’ submissions
(a) Application no. 48151/11
(i) The applicants
114. The observations were submitted in an initial set of pleadings on behalf of all the applicants. The supplementary pleadings specifically concern the applicants Mr Da Silva and Mr Kerckhof, and contain arguments which will be referred to as those of the “two applicants”, in order to distinguish them.
115. The applicants maintained that the whereabouts scheme compelled them to provide accurate information on their movements between 6 a.m. and 9 p.m. or, according to the wording of Article L. 232-14 of the Sports Code, “at any time if the premises are open to the public or a sporting event or pre-event training session is in progress”. In their view, this constraint constituted interference with their right to respect for their private and family lives and their homes.
116. The information to be submitted concerned their daily schedule, including at the weekend and on public and other holidays. In practical terms this included the place where they slept, since they were not necessarily up and about at 6 a.m. Furthermore, the information concerned all the places where they stayed such as their home, any temporary residences and hotels (even those unconnected with sports activities), and thus also their holiday accommodation, both in France and abroad. The applicants, observing that the law aligned the timetable for the anti-doping whereabouts system with the timetable for home searches, complained of being permanently monitored. They added that the one-hour time slot which they had to declare for the purposes of individualised tests did not prevent tests being carried out at any time, as provided for by Article L. 232-14 of the Sports Code and Article 3 of decision no. 54 (see paragraphs 64 and 69 above).
117. The applicants argued that the whereabouts requirement deprivedathletes of their right to enjoy the rare occasions when they could lead a normal family life in view of the constraints inherent in their profession (weekend work, travel to competitions, training periods). Their lifestyle was also adversely affected as they were limited in their choice of where to conduct their private lives: for instance, they could not go hiking or camping or be more than twenty-four hours away from a location where a test could be carried out.
118. Lastly, the applicants complained of interference with their homes, on account of the overlapping of their professional and private lives as a result of the whereabouts requirement. Firstly, the training and competition venues at which testing could be conducted were professionalpremises which attracted the protection of Article 8. Secondly, in order to be able to declare a location for the purposes of the sixty-minute time slot (Article 3 of decision no. 54, see paragraph 69 above) that was suitable for tests and satisfied the criteria of respect for their privacy, especially at weekends and on public and other holidays, they were obliged, de facto if not de jure, to declare a time slot when they would be at home. In view of this aspect, they could not actually be said to consent to the possibility of the test being carried out at their home address.
119. The applicants acknowledged that the interference was provided for by the Order of 14 April 2010, which had the status of law within the meaning of the Court’s case-law, but disputed the assertion that decision no. 54 could be classified in this way. The purpose of their application was to challenge the constraints laid down by law and not those determined by the AFLD itself, which were liable to be changed simply by means of a decision. They cited as an example the daily time slot,which was laid down solely by a decision of the AFLD. Given the non-binding nature of the UNESCO Convention the Agency could, by means of a similar decision, require athletes to be available for a three-hour period.
120. In the applicants’view the whereabouts requirement for professional athletes did not address a more significant public-health issue than that affecting amateurs. Furthermore, the health of professional athletes was already taken care of by means of medical supervision of a high standard, unannounced tests at training and competition venues, and the biological monitoring organised by the federations. By way of comparison, no coercive measures were taken with regard to the major public-health issues of smoking and alcohol abuse. The two applicants also argued that it was inconsistent to ban doping while promoting sports such as boxing and American football which caused harm to athletes. By definition, top-level sports carried risks and could adversely affect athletes’ health in the long term. Lastly, the products consumed were not damaging to athletes’ health in so far as they could be prescribed for anyone.
The two applicants submitted that the reference by the Government and WADA in their observations to the ethical dimension of efforts to combat doping should be qualified, as doping was a structural phenomenon linked to the professionalisation and commercialisation of sport. Measures to tackle doping were confined to protecting the economic interests of spectator sports.
121. As to the necessity of the interference the applicants submitted the following arguments. Firstly, referring to the remarks made by the Senate Committee concerning the lack of an epidemiological study on doping agents and the health risks of doping (see paragraph 76 above), they argued that it had never been demonstrated that prohibited substances could be detected for only a very short period and that samples therefore had to be taken every day, including at weekends.
122. Secondly, the statistics on out-of-competition testing showed that the number of athletes testing positive for doping agents was extremely small. In this regard the applicants cited a year-long study conducted in nine European countries by Uni Global Union (a world federation of sports unions) which showed that, of 13,738 tests carried out during competitions, 222 had been positive, while the 17,166 out-of-competition tests carried out had revealed only 28 violations of the anti-doping rules.
123. Thirdly, the interference in question was in any event disproportionate to the aim of protecting health since, as paid professional athletes, they already underwent checks in the context of occupational health schemes. They worked under the responsibility and supervision of an employer, and unannounced checks could be carriedout at their places of work for almost eleven months of the year. Furthermore, they were subject to legislation which derogated from the ordinary law. In the applicants’ submission, no other professional category was subject to such intrusive requirements entailing heavy disciplinary penalties. They cited the examples of members of the armed forces, doctors, airline pilots, senior industrialists and politicians.
124. The two applicants maintained that the anti-doping measures in place were ineffective. Firstly, they emphasised the spectacular increase in the industrial manufacture of doping agents and the time lag in monitoring the technology used by the pharmaceutical industry. Inspectors were looking for substances which athletes no longer used while the athletes were taking substances which the inspectors were not yet looking for. They also stressed the ambiguous role of the national and international sports federations in tackling doping and the limited powers of those federations, as private entities, to take action.
125. The two applicants added that their situation was comparable to that of sex offenders who were on a register or individuals wearing an electronic tag who had to declare their whereabouts. Top-level athletes were presumed to be potentially engaged in doping.
126. The two applicants further submitted that the supposed international consensus in favour of unannounced testing, on which WADA and the Government based their approach, was a false consensus. States could not be legally bound by the WADC, which was the work of a private foundation. Those which had finally ratified the UNESCO Convention had done so under pressure and in order to be considered as candidates for hosting the Olympic Games or world championships.
127. The two applicants stressed that the system of declaring one’s whereabouts for one hour each day as described by WADA in its observations (see paragraph 150 below) did not fully correspond to the system in place or to the French system. A testing system that was less detrimental to athletes’ rights could be implemented. This would entail taking into account the seriousness of the suspected infringement, a whereabouts requirement that applied only after a first violation of the WADC, the possibility of a “holiday period” from the whereabouts requirement after the season had passed its peak, freedom to choose between the requirement to provide details of one’s place of residence and a daily sixty-minute period of availability, and strengthening States’ efforts to combat the illegal production of doping agents and trafficking.
128. Lastly, the two applicants stressed that they had not given their consent to the testing system in place and that their waiver of the right to respect for their private life had been flawed and uninformed. They could not secure employment as professional athletes unless they were affiliated to a sports federation which applied the WADC and the whereabouts system.
(ii) The Government
129. The Government submitted that the applicants were mistaken as to the extent of the whereabouts requirement. While the WADA international standard (clause 11.1.4, see paragraph 52 above) established the principle whereby athletes had to be available for testing at any time, no such provision featured either in the Sports Code or in decision no. 54. In France, the athletes in question were required to submit a provisional schedule for each quarter declaring, for each day, a location and a sixty-minute time slot of their own choosing for the purposes of individualised testing; the time slot had to be between 6 a.m. and 9 p.m.
130. The Government acknowledged that the obligation for the persons concerned to declare their whereabouts each day between 6 a.m. and 9 p.m. constituted interference with their private and family life.
131. That interference was in accordance with the law, namely Articles L. 232-5, L. 232-14 and L. 232-15 of the Sports Code (see paragraph 61 above, referring to paragraphs 8 and 10 above, and paragraph 64 above) and, contrary to the applicants’ assertion, AFLD decision no. 54, published in the Official Gazette of the French Republic and on the AFLD website. In the Government’s submission, these legislative and regulatory instruments gave precise details of the requirements in question. According to the case-law of the Constitutional Council, an independent administrative authority could be vested with regulatory powers, and the model disciplinary regulations (referred to in Article 13 in fine of decision no. 54, see paragraph 69 above) authorised the AFLD to take action with regard to whereabouts (see paragraph 68 above). In this sphere the AFLD had to comply with the requirements inherent in the hierarchy of norms, including international treaties and undertakings such as the Council of Europe Convention and the UNESCO Convention.
132. The interference pursued the dual aim of protecting athletes’ health and ensuring that sporting competitions were fair and ethical. These were near-universal values, a fact reflected in the preamble to the UNESCO Convention (see paragraph 53 above), and were in accordance with the aims referred to in Article 8 § 2 in the context of “protection of health or morals”. With regard to the protection of health the Government argued that the fact that the whereabouts requirement was confined to professional athletes did not mean that the authorities were indifferent to the situation of amateur sportsmen and women. They further stressed that it was not the use of the drugs as such that was damaging to health, but their misuse for non‑therapeutic purposes. The Government rejected the argument that doping should be authorised subject to “proper medical supervision”. This would encourage a return to practices which the sporting community and States had resolved to put behind them. Sporting competition should not become a confrontation between laboratories with athletes caught in the middle. As to morals, the Governmentdismissed the idea that efforts to combat doping were confined to protecting the economic interests of “spectator sports” without concern for ethics. The fact that sport was not immune to certain excesses should not lead to their being tolerated, at the risk of increasing the harmful effects, but rather to their being tackled, precisely for ethical reasons.
133. The Government argued that the restrictions in question were necessary and proportionate in order to tackle new doping methods. Some prohibited substances such as growth hormones and EPO had a very short life and became impossible to detect after a few days or even a few hours, and there were numerous means of avoiding detection. There was broad international consensus on the necessity of unannounced tests and how they should be conducted, as evidenced by the undertakings given by States in ratifying the UNESCO Convention and the fact that 660 bodies representing all the actors involved in anti-doping (with the exception of the professional sports leagues in the United States), as well as the AFLD, abided by the WADC (see paragraph 68 above). The Government concluded from this that States had a wide discretion with regard to the interference complained of.
134. As to the proportionality of the measures, the Government stressed the following.
(a) In France, the tests concerned only a small number of athletes. The percentage of athletes in the AFLD’s testing pool (556 in 2011 and 728 in 2012 ahead of the London Olympic Games) as a proportion of the national population was one of the lowest among the 28 EU countries.
(b) The decision to include an athlete in the testing pool was taken after an adversarial stage. It was taken by the AFLD Board, had to be accompanied by reasons and was amenable to review by the administrative courts.
(c) The duration of inclusion in the pool was limited since inclusion was on an annual basis. Re-registering an athlete in the pool entailed reviewing his or her situation.
(d) The chosen location could be changed up to 5 p.m. the previous day, or in exceptional circumstances even up to the start of the sixty-minute time slot declared by the person concerned.
(e) Tests were carried out at athletes’ homes only with their consent, and athleteswere required only to provide information about the location and not about their private and family life.
(f) The sanction imposed related only to the athlete’s absence from the declared location during the time slot. The sanctions were administrative rather than criminal and were proportionate, being imposed only following three failures to comply over an eighteen-month period; the first missed test was not regarded as a failure to comply.
(g) The low rate of positive tests was widely interpreted as a sign of the effectiveness and deterrent impact of the means deployed, including the tests carried out on the basis of the whereabouts information.
135. In reply to the two applicants’observations concerning athletes’ lack of consent to the system in place, the Government observed that the rules were applied not on the basis of athletes’support for them but on the basis of the law and the regulations. The applicants appeared to confuse the principle of inviolability of the home, which was not applicable where there was “consent”, and waiver of a right guaranteed by the Convention.
136. Replying to the applicants’ argument that professional athletes were not the “right people” to be testing, the Government stated that it was not their professional status that made them subject to the legislation but rather their status as athletes. The controls were not designed to test their aptitude for a job but pursued a public-health objective. That was why the testing was not carried out by the employer but by an independent public authority.
137. The Government added that the parallel drawn by the two applicants with the wearing of an electronic tag was misleadingsince, contrary to their assertion, athletes were not monitored permanently. They were perfectly free to organise their private and family lives provided that they set aside a time slot of one hour, which could be at a place and time of their choosing. Declaring that location certainly did not mean that they were required to inform the AFLD of all the places they frequented. Furthermore, the application of the system during public and other holidays was justified in order to ensure its effectiveness.
(b) Application no. 77769/13
(i) The applicant
138. The applicant maintained that her inclusion in the testing pool from 2008 onwards constituted serious and repeated interference with her private life. In practice, the unannounced tests took place at her home or at her temporary lodgings when she was travelling, as this was the only fixed point where she could definitely be located. This requirement had had an impact on all her family, and therefore also amounted to interference with family life.
139. In the applicant’s view, this interference was not in accordance with the law. The Order of 14 April 2010 referred to above made no provision for registration in the testing pool to be renewed beyond the one-year period. Furthermore, prior to 2012 (see paragraph 28 above), the authority responsible for registering athletes in the testing pool had not been clearly designated, giving rise to heavy-handed and arbitrary decisions. The law did not define the nature and content of the unannounced tests. Hence, the AFLD was acting outside any legal framework and was conducting urine and blood tests and biological monitoring without warning and without seeking authorisation.
140. In the applicant’s submission, the whereabouts requirement did not pursue any public-health goal. It did not protect athletes’ health as it subjected them to permanent stress that was very damaging to their physical and mental health. Giving samples repeatedly – the applicant stated that she had been required to give one every three or four days – damaged the veins and strength in the arms, and in conjunction with training resulted in intense fatigue which posed a danger to the athletes concerned. Professional athletes took greater care of their health than people who were sedentary; therefore, there was no real reason to protect athletes’ health any more than the health of pregnant women who smoked, drank or took drugs, or students who took drugs in order to succeed. Since the introduction of the testing pool, virtually no cases of doping had come to light as a result of unannounced testing. The creation of a testing pool was incompatible with the principles of fairness and equity because it stigmatised the athletes concerned, who were “presumed guilty”, vis-à-vis their colleagues who had freedom of movement and action. Lastly, the applicant’s inclusion in such a pool discriminated against her on the basis of her age and gender, and was the very opposite of fair given that she had represented France with dignity in numerous competitions.
141. As to the necessity of the measure, the applicant stressed, firstly, that only genuinely random tests conducted outside the sports season and for all sports were likely to be effective. Secondly, there was no reason for always registering the same athletes in the testing pool, which was already small; the applicant maintained that her situation had not been reviewed after she had been cleared of misconduct. Her re-registration in the testing pool after she had been cleared, which had attracted media coverage, had amounted to a breach of her right to be presumed innocent. Thirdly, the applicant complained of voyeurism on the part of the AFLD, which knew at all times where athletes were and what they were doing. This meant that there was no provision for unforeseen events (a meal that lasted longer than expected, an unexpected meeting, a short bout of tiredness, family problems, and so on). The applicant complained in particular of the tests carried out in hotels, which were intrusive and humiliating because they were conducted in full public view. Family members were not spared either as they were confronted with the reality of the tests, like habitual offenders in their own home. Fourthly, last-minute changes to the time slot could not be made by telephone, and the athlete’s relatives could not change it by email at the last minute. Fifthly, the athletes’ consent was not sought before a tester visited them at home, at a hotel or with their family.
142. The applicant maintained that she was the only athlete who had been included in the testing pool continuously since 2008. She submitted that the refusal of her request to be removed from the pool had been disproportionate as she had never committed a public-order offence or a doping offence. She complained that the operation of the AFLD lacked transparency: the public should be informed of the names of the athletes in the pool, the discipline concerned, the reasons for inclusion, the number of failures to comply, the samples taken, the length of time for which they were kept and their destruction. This was the only means of verifying compliance with the rules of equality and fairness for each sport and each category of athletes. The applicant also regretted the fact that she could not obtain the results of the analyses, and inferred from this that the AFLD deliberately kept her in a state of anxiety for a purpose other than that of protecting her health.
143. If one were to follow the logic adopted by the Government in their observations, which sought to justify her inclusion in the testing pool by reference to themedalsshe had won and the length of her career, she could have been in the testing pool since 1979 given all the titles she had won each year, and would have remained in it for over thirty-five years. In fact, her lengthy career was scientific proof that she had never used dangerous substances.
(ii) The Government
144. The Government reiterated the observations they had made in application no. 48151/11 (see paragraphs 129 to 137 above) and specified that the applicant’s retention in the testing pool had been justified in view of the large number of titles she had won and the exceptional length of her career (she had won numerous competitions between 2008 and 2011), the prospect of her being selected for the London Olympics in 2012, her three failures to comply and the fact that her husband had been implicated in a preliminary investigation into the importing of prohibited substances.
145. The Government stressed that it was not uncommon for elite athletes to continue to be required to provide whereabouts information for several years.
146. They produced a table summarising the tests which the applicant had undergone between 2008 and 2013 and the samples taken. Twenty tests had been carried out and thirty-three samples had been taken; this differed from the figure which the applicant had submitted to the Court.
147. For all the above reasons the Government contended that there had been no violation of Article 8 of the Convention.
2. Submissionsof the third-party intervener in application no. 48151/11
148. WADA, in its capacity as an intervener, argued that anti-doping measures were necessary in order to ensure a level playing field for athletes and to protect their health. Anti-doping measures were taken across the globe by governments and the sports world alike, both of which had adopted international instruments in this sphere (the Council of Europe Convention, the WADC and the UNESCO Convention). A consensus existed on the absolute necessity of out-of-competition testing, which was not possible without the whereabouts system. Moreover, the instruments in question made provision for such testing. WADA added that this policy reflected athletes’ wishes.
149. New doping practices, which enabled athletes to engage in doping while preparing for competition and to continue to benefit from the effects during the competition itself when the doping was no longer detectable, made out-of-competition testing essential. Moreover, some athletes consumed minute doses of certain substances (EPO, steroids) which could not be detected during competitions. Hence, the surprise effect of out‑of‑competition testing was necessary in order to take account of manipulations such as hyperhydration, dilution of the blood or urine substitution, which masked prohibited substances or made it impossible,within a very short space of time, to detect them.
150. According to WADA, out-of-competition testing necessarily entailed a whereabouts system that was accurate but compatible with athletes’ private lives. This was so because (1) only athletes included in the testing pool were subject to the whereabouts requirement; (2) prior to 2009, athletes could betested at any time. Since then, the window during which tests could be carried out had been reduced to the period between 6 a.m. and 11 p.m., and between 6 a.m. and 9 p.m. in France, and athletes had to make themselves available only for one hour; (3) athletes could choose the location where they wished to be tested during their chosen one-hour time slot and which did not have to be their home; (4) the system was sufficiently flexible to allow athletes to declare a change of whereabouts easily; and (5) as far as sanctions were concerned, there had to be at least three failures to comply before disciplinary proceedings could be instituted. In sum, athletes remained entirely free for 23 hours a day, since only one sixty-minute period had to be declared.
3. The Court’s assessment
(a) Applicability of Article 8 of the Convention and existence of interference with private and family life
151. The Court observes that the parties agree that the whereabouts requirement constitutes interference with the rights guaranteed by Article 8 of the Convention. Nevertheless, it must define the extent of that interference, as the whereabouts system complained of affects several aspects of private life, and even of private social life, and has repercussions for family life, all protected by Article 8.
(i) General principles
152. The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008). The concept of “family life” implies that those concerned are allowed to lead a normal family life (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31).The concept of “private life” is initially understood as the right to privacy, that is, the right to live, as far as one wishes, protected from publicity (see X. v. Iceland, no. 6825/74, Commission decision of 18 May 1976, DR 5) or the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003-IX).
153. Article 8 protects the right to personal development, whether in terms of personality or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see Bărbulescu v. Romania [GC], no. 61496/08, § 70, 5 September 2017 and the case-law cited therein). It encompasses the right for each individual to approach others in order to establish and develop relationships with them and with the outside world, that is, the right to a “private social life”, and may include professional activities or activities taking place in a public context (ibid., §§ 70 and 71). According to the Court, “[t]here is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’” (see Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003‑I, and Uzun v. Germany, no. 35623/05, § 43, ECHR 2010).
154. The Court further reiterates that, just like “private life”, the concept of “home” in Article 8 of the Convention is an autonomous concept which does not depend on classification under domestic law but is defined by reference to the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see Prokopovich v. Russia, no. 58255/00, § 36, ECHR 2004‑XI). A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area (see Giacomelli v. Italy, no. 59909/00, § 76, ECHR 2006‑XII). It is protected, among other things, from concrete or physical breaches, such as unauthorised entry into a person’s home (ibid.). The notion of “home” can be interpreted widely and may apply to a holiday home (see Demades v. Turkey,no. 16219/90, §§ 31 to 34, 31 July 2003, and Fägerskiöld v. Sweden, no. 37664/04, 26 February 2008). The Court has not ruled out that an artist’s dressing room or a hotel room may be considered as a “home” (see Hartung v. France (dec.), no. 10231/07, 3 November 2009,and O’Rourke v. the United Kingdom (dec.), no. 39022/97, 26 June 2001). Lastly, the concept of home is not confined to places of residence where private life is conducted. It encompasses professional premises, because to interpret the words “private life” and “home” as including certain professional or business activities or premises is consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities (see Niemietz v. Germany, 16 December 1992, § 31, Series A no. 251‑B).
(ii) Application in the present case
155. In the present case the Court observes that the whereabouts requirement in question, as determined at the relevant time, obligedthe athletes in the testing pool to provide details for the next quarter, using the ADAMS system (Anti-doping Administration and Management System) or the AFLD form, of their daily schedule, including at weekends, and to declare a one-hour time slot between 6 a.m. and 9 p.m. during which they would be available at a specific location for the purposes of unannounced testing (see paragraph 69 above). The tests in question may be carried out independently of sports events and training periods. They may therefore be conducted at an athlete’s home if the athlete concerned haschosen it as the location for the one-hour time slot during which he or she is liable for testing by the AFLD.
156. The Court thus notes that the athletes in the testing pool are required to provide a public authority with accurate, detailed and up-to-date information on their places of residence and their daily movements, seven days a week. They are further subject, for one hour each day, to a stringent requirement regarding their whereabouts and availability.Non-compliance with these obligations is regarded as a failure to comply with the requirement to submit whereabouts information (Article 9 of decision no. 54, see paragraph 69 above). At the relevant time, three failures to comply over a period of eighteen consecutive months resulted in a sanction (Article 13 of decision no. 54, see paragraph 69 above). In order to determine whether such obligations amount to interference with the right to respect for private life, the Court must examine the repercussions of these measures on the applicants’ daily lives, and in particular the constraints and restrictions to which they may give rise.
157. In that connection the Court notes the varied and exhaustive nature of the information which the applicants are required to provide concerning their private lives, and which covers all the public and private spaces they frequent. The information in fact relates to the places in which all their activities are carried out, both professional (for instance, training venues)andthose unrelated to sport. It also encompasses their private address, whether it be their home or any temporary lodgings they may be staying in for professional or private reasons. Furthermore, as these details must be provided for each coming quarter, the persons concerned are obliged to plan their private lives by organising their schedule a long time in advance. In addition, these plans are binding because any change during the quarter has to be notified. Lastly, the requirements in question limit athletes’ life choices, as they are strictly obliged to be present and available for one hour each day at a precise location suitable for testing purposes. Even though it is foreseeable for top-level athletes, this requirement of transparency and availability suffices for the Court to consider that the obligations complained of by the applicants adversely affect the quality of their private lives and entail consequences for their family life and lifestyle. In particular, they reduce the immediate personal autonomy of the persons concerned.
158. The privacy of the places where private life is conducted, in other words respect for the home, is also affected by the whereabouts system. Firstly, the Court does not rule out that training grounds and the venues of sporting events or competitions, and places related thereto such as hotel rooms for persons travelling, may be considered as a home within the meaning of Article 8 of the Convention. Secondly, it notes in any event that Article L. 232-13-1-3 of the Sports Code makes provision for the tests to be carried out at athletes’ homes. The Court observes that the applicants sometimes have no choice but to stay at home during this daily time slot, a fact which the Government did not dispute. They therefore face a dilemma: either they comply with the impugned requirement and thus give up the peaceful enjoyment of their home, or they refuse to comply and thus lay themselves open to sanctions even if they have not used prohibited substances.
159. In view of the foregoing, the Court considers that the whereabouts requirement constitutes interference with the applicants’ exercise of their rights under the first paragraph of Article 8. Such interference will be in breach of Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims under the second paragraph of that Article and is “necessary in a democratic society” in order to achieve the aim or aims concerned.
(b) Whether the interference was justified
(i) In accordance with the law
160. The Court reiterates that the expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law. The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention. According to the settled case-law, the concept of “law” must be understood in its “substantive” sense, not its “formal” one. It therefore includes everything that goes to make up the written law, including enactments of lower rank than statutes, and the relevant case-law authority (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014).
161. The applicants did not dispute that the interference was provided for by Articles 3 and 7 of the Order of 14 April 2010, as codified in Articles L. 232-5 and L. 232-15 of the Sports Code. However, they considered in general terms that decisions of the AFLD were not “laws” as they were taken by an institution that was not empowered to lay down accessible and precise rules.
162. The Court observes that the aforementioned Article L. 232-15 spells out the obligations of athletes in the testing pool and the duration of their registration in that pool. For the purposes of implementing that provision the AFLD, as an independent public authority with legal personality set up by Law no. 2006-405 of 5 April 2006 and responsible, inter alia, for the planning and performance of doping controls and hence for designating the athletes included in the testing pool, defined the obligations to be met by those athletes in decision no. 54 (see paragraph 69 above), as it was required to do under Article R. 232-86 of the Sports Code (see paragraph 68 above). That instrument, which was published in the Official Gazette, is therefore accessible. It provides that athletes must be informed of their inclusion in the testing pool, a decision which is always preceded by an adversarial stage and is amenable to judicial review by the Conseil d’État (see paragraph 60 above). It also gives details concerning the content of the whereabouts information, the means by which the information may be submitted and changed, failures to comply with the whereabouts requirement and the sanctions liable to be imposed. In view of the precise and detailed provisions of this instrument, which was adopted by a State authority in accordance with the provisions of the WADC, the Court considers that it allows licensed athletes, with the support of a coach, to regulate their conduct and be afforded sufficient protection against arbitrariness.
163. In sum, the interference in question was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.
(ii) Legitimate aim
164. The parties disagreed as to the aims of the impugned requirement. The Government referred to the legitimate aims of protecting public health and morals. The applicants rejected the suggestion that anti-doping measures pursued these aims. In their view, the harmful effects of doping had not been established, measures were already taken to protect the health of professional athletes and the ethical argument was merely a facade for protecting the economic interests of sport or stigmatising certain athletes.
165. The Court considers at the outset that the applicants have done nothing to demonstrate that efforts to combat doping are dictated by economic interests.Furthermore, it takes the view that the applicants’ remaining arguments relate to the assessment of the necessity of the interference. As regards the first aim referred to, namely the protection of “health”, the Court observes, like the Government, that this aim is enshrined in the relevant international instruments and that all the evidence in the file is consistent with that aim. The Council of Europe Convention (see paragraph 40 above), the WADC (see paragraph 45 above), the UNESCO Convention (see paragraph 53 above) and the Sports Code (see paragraph 57 above) are unanimous in presenting effortsto combat doping as a health concern which the sporting world is seeking to address (see paragraphs 171 to 177 below). Consequently, the Court accepts that the whereabouts requirement is designed to address issues concerning “health”, within the meaning of the second paragraph of Article 8, with regard to both professional and amateur athletes and with a particular focus on young people (see paragraphs 77 above and 166 below).
166. As to the second aim relied upon, namely the protection of morals, the Government referred to fairness in sporting competitions. The Court observes that the need to tackle doping has always been recognised in the sporting world, and refers in this regard to the international instruments cited above, which mention fair play and equality of opportunity as being fundamental to the fight against doping. The Court considers that what the Government describe as “morals”, in the context of efforts to ensure equal and meaningful competition in sports, is also linked to the legitimate aim of “protection of the rights and freedoms of others”. The use of doping agents in order to gain an advantage over other athletes unfairly eliminates competitors of the same level who do not have recourse to them, is a dangerous incitement to amateur athletes, and in particular young people, to follow suit in order to enhance their performance, and deprives spectators of the fair competition which they are entitled to expect.
(iii) Necessary in a democratic society
167. It remains to be determined whether the interference resulting from the impugned requirement can be regarded as “necessary in a democratic society”. To be so considered, it must be shown that it corresponded to a “pressing social need”, that the reasons given by the national authorities to justify it were relevant and sufficient and that it was proportionate to the legitimate aim pursued.
168. The Court observes that in its decisions of 24 February 2011 and 18 December 2013 the Conseil d’État, after acknowledging that the whereabouts requirement imposed constraints, found that it did not constitute excessive interference with the rights under Article 8 of the Convention, in view of the general-interest aims pursued by efforts to combat doping, and notably the aims of protecting athletes’ health and ensuring that sporting competitions were fair and ethical. The Conseil d’État particularly stressed the importance of unannounced testing, since some doping agents could be detected for only a short time after being taken but had long-lasting effects.
169. The Court agrees with the Conseil d’État’s finding that the whereabouts requirements imposed on the applicants are onerous. It should be acknowledged that they have a considerable impact on the applicants’ daily lives and may be regarded as interfering to a significant extent with their private lives,owing to the extent of the information to be provided to the AFLD and the day-to-day restrictions on their personal autonomy. The whereabouts system also has implications for their enjoyment of their homes, since intrusive anti-doping tests may be carried out there. Hence, the Court accepts the applicants’claim that they are made subject to obligations not imposed on most of the working population.
170. That being so, the Court must examine the general-interest arguments put forward by the Government and by the third-party intervener as justification for the interference with the applicants’ private lives. In that connection it considers that, in order to rule on the manner in which the interests at stake were balanced, it must first consider the dangers of doping and whether there is common ground at European and international level on the issue raised by the applications.
(α) The dangers of doping
171. The Court observes that the applicants do not consider doping to pose a risk to health. It is not its place to respond to this position using arguments based on medical knowledge. However, the Court notes that there is broad consensus among medical, governmental and international authorities in favour of denouncing and combating the dangers posed by doping to the health of those athletes who engage in it.
172. It refers on this point to the relevant international instruments, all of which consider anti-doping measures to be legitimate in the interests of protecting health.
173. The Court also finds support, in particular, in the detailed reports issued by the Medical Academy and the French Senate. It is true that those reports call for improved epidemiological studies on the use of doping agents in order to enhance the state of knowledge on doping and the health risks it entails (see paragraphs 76, 84 and 88 above). However, the reports point out that it is extremely difficult to conduct such studies given the reluctance of the persons concerned to discuss the issue. In the Court’s view, this observation undermines the applicants’ criticism of the findings concerning the dangers posed by certain substances and the role of doping in the development of disorders.
174. That being said, the Court notes that both these reports spell out clearly and emphatically the dangers of doping for athletes’ health. The damaging and potentially serious consequences of the misuse of performance-enhancing drugs in sport are set out in great detail, whether the use of such drugs is aimed at increasing the level of intensity that can be sustained in training and in competition, at increasing the supply of oxygen to the body or at increasing muscle mass. Both texts also warn of the ongoing development of highly sophisticated doping protocols, made possible by the use of substances administered in very small doses and with complex chemical structures. These doping methods can be detected only for a very short period but have a lasting effect on performance. Furthermore, the reports point out that new agents are being developed by laboratories specifically devoted to such research, often operating illegally, and that the sophisticated doping protocols are established with “the active participation of scientists, doctors and pharmacists”. This makes it very difficult to adapt detection methods to keep pace with the emergence of these new substances. Lastly, these reports warn of the threat posed by the development of genetic doping techniques(see paragraphs 74 to 76 and 83 to 85 above).
175. In the light of these publications, prepared by eminent scientific and political authorities, the Court considers that the applicants underemphasisethe impact of doping agents on athletes’ health. As the evidence in the case file shows, doping represents a real threat to athletes’ physical and mental health. The Court does not rule out the possibility, as asserted by the applicants, that athletes’ health may be harmedby factors unconnected to the taking of doping agents, in view of the intensity and high level of competitions. It notes in that connection the constant pressure to which some of them are subjected and observes that the relevant reports advocate regulating the number of competition fixtures (see paragraphs 74 and 88 above). However, the Court regards the demanding nature of top‑level sporting competitions as a further reason to protect the health of those taking part against the dangers inherent in doping, rather than as a reason to reduce efforts to combat the practice.
176. Furthermore, while action to combat doping is a public-health issue in professional sport (see Ressiot and Others v. France, nos. 15054/07 and 15066/07, § 114, 28 June 2012), it concerns all athletes. The above‑mentioned reports show that doping affects amateur sports to a worrying extent, in particular among young athletes. The document adopted by the Medical Academy highlights the significant incidence of doping among adolescents and points to the numerous disorders which may affect this category of individuals, who are still growing (see paragraphs 83 and 84 above). The Senate report warns of a phenomenon which it describes as mass doping (see paragraph 77 above). The Court also attaches weight to the impact which doping among professional athletes has on the amateur sporting world. It is widely recognised that young people identify with elite athletes, who act as role models for them. The UNESCO Convention clearly demonstrates the concerns surrounding the impact of doping on the sporting community in general, and in particular on the young. For that reason it stresses the importance of educational programmes on the subject (see paragraphs 53 and 54 above). According to the Medical Academy, prevention requires the involvement of top-level athletes (see paragraphs 85 to 87 above). In the Court’s view, the fact that the conduct of elite athletes is liable to have a major influence on young people is further justification for the requirements imposed on them while they are registered in the testing pool.
177. Accordingly, the Court is satisfied that the health and public-health considerations at stake in the present case, and the legitimate ethical concerns in that regard (see paragraph 166 above), constitute a decisive argument for the necessity of the interference resulting from the impugned whereabouts requirement.
(β) Existence of common ground at European and international level
178. The Court observes that doping has historically been theprincipal focus of sports-related activities within the Council of Europe, which has constantly stepped up its efforts to reduce the practice and increase controls without prior notice (see paragraphs 39 to 43 above). Furthermore, the worldwide anti-doping strategy was established with the creation of WADA and the introduction of the WADC in 2003. In 2009 WADA intensified its efforts to secure greater harmonisation between anti-doping organisations by devising international standards, one of which deals with testing and in particular with “Athlete whereabouts requirements” (see paragraph 52 above). Since then, the UNESCO Convention has been adopted, enabling the WADC to be incorporated into the legislation of the States that have ratified it (see paragraph 54 above).
179. The Court thus observes that the gradual construction of anti-doping programmes has resulted in an international legal framework of which the WADC is the main instrument. It notes in that regard that the most recent revision of that Code, which was adopted in 2015, demonstrates a trend towards strengthening and intensifying doping controls that apply not only to the athletes in the testing pools (see paragraph 51 above).
180. The Court also notes that cooperation between the Council of Europe and WADA continues to focus on attempts to secure greater harmonisation of anti-doping measures in Europe and beyond (see paragraph 44 above). It observes that the cross-border dimension of top‑level sport makes international cooperation on efforts to combat doping essential.
181. In these circumstances it considers, in view of the international rules and practice, that common ground exists in Europe and internationally on the need for unannounced testing. In that connection it reiterates that, in assessing a specific case, and in the interests of interpreting the application of the Convention in a concrete and effective manner, it may take account of specialised international instruments and of common international-law standards, including those which are non-binding(see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85 and 86, ECHR 2008, and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 124, 8 November 2016), as is the case with the WADC –the principles of which the States Parties to the UNESCO Convention undertake to observe (see paragraph 54 above) – and with all the Council of Europe resolutions.
182. Notwithstanding the European and international consensus underpinning efforts to combat doping, other forms of organisation nevertheless continue to exist, notably, according to the materials in the Court’s possession, among the European Union member States (see paragraphs 78 and 82 above). This variety is due to the diversity of national systems regulating power structures and the relationship between the public and sports authorities. In the respondent State anti-doping measuresare implemented jointly by the public authorities, whose involvement is long‑standing, and the sports authorities (see paragraphs 57, 58 and 82 above). This is not the case in all Council of Europe member States. In accordance with the principle of subsidiarity, it is primarily for the Contracting States to decide on the measures necessary to achieve the objectives which they set, while safeguarding the Convention rights of everyone within their jurisdiction. In order to resolve within their legal systems the specific problems raised by efforts to combat doping, States must enjoy a wide margin of appreciation, in the light of the complex scientific, legal and ethical questions raised (see in general terms, as regards the State’s margin of appreciation in this regard, A, B and C v. Ireland [GC], no. 25579/05, § 185, ECHR 2010, and Lambert and Others v. France [GC], no. 46043/14, § 144, ECHR 2015).
183. France, which has ratified the UNESCO Convention, made a very clear choice to bring its domestic law into conformity with the principles of the WADC as regards athletes’ whereabouts. The enactment of the Order of 14 April 2010 and the AFLD’s commitment to theprinciples of the WADC (see paragraph 68 above) place it among the European countries that have transposed the WADC rules on whereabouts almost in their entirety as they resulted from the revision of that instrument in 2009. Some of the applicants submitted that this was irrelevant since States were not bound by WADA rules and no international consensus existed in favour of unannounced testing (see paragraph 126 above). In that connection the Court observes that the States Parties to the UNESCO Convention undertook to adopt appropriate measures consistent with the principles of the WADC. In the instant case the respondent State’s approach to anti-doping is in line with the consensus that emerges from the specialised international instruments. Hence, the Court stresses that the fact that domestic law coincided at the relevant time with the international rules concerning athletes’ whereabouts and unannounced testing is a reflection of States’ margin of appreciation with regard to the implementation of those international rules.
184. Against this background the Court observes that the relevant international instruments are indicative ofthe continuous development of the applicable norms and principles regarding the need for the unannounced testing made possible in part by the whereabouts system. Hence, it considers that the common international-law standards which form the background to the legal question before it are a factor which it must take into account in deciding whether the interference at issue was necessary in a democratic society.
(γ) Striking a balance in the present case
185. The Court noted above the particular difficulties encountered by the applicants in order to comply with the whereabouts requirements. It is mindful, firstly, that for some of them whose registration in the testing pool has been renewed several times, the constraints imposed by the whereabouts system may attain a level of day-to-day interference which, over a lengthy period, gives cause for concern. However, it observes that the Order of 14 April 2010 specifically sets a one-year term of validity for registration in the testing pool. This new provision, although it does not exclude the possibility of renewal following an interview with the athlete (see paragraph 60 above),represents an improvement of the procedural safeguards afforded to the athletes concerned.
186. Secondly, in some circumstances athletes may, for practical reasons, have to declare their whereabouts at their home address or in a holiday home during weekends and holidays, with the possibility of having to submit to tests there. Such a situation interferes with the peaceful enjoyment of their home and adversely affects their private and family life. Nevertheless, the Court observes that the use of these locations is “at [their] request and within a fixed time slot” (see paragraph 73 above) and is required in order to ensure the effectiveness of doping controls. Hence, these tests are carried out in a context that is very different from that of checks conducted under the supervision of the courts for the purpose of investigating offences and potentially giving rise to seizures (see paragraph 66 above). These last, by definition, go to the core of the right to respect for the home and the tests in question cannot be equated with them.
187. In any event the Court considers that the rules on whereabouts adopted by the French authorities provide a legal framework for efforts to combat doping which should not be underestimated in terms of safeguarding the rights of the athletes concerned. The Court refers to its finding that the “law” in France satisfies the requirement of “quality of the law”, and considers that the clarity with which the obligations imposed on the applicants are laid down affords procedural safeguards against the risks of abuse. The Order of 14 April 2010, as codified in the Sports Code, as well as the decisions of the AFLD, thus establish a framework capable of ensuring that athletes can challenge their inclusion in the testing pool, including by means of an appeal to the courts (see paragraph 60 above). The Order also enables them to anticipate and adopt the necessary conduct as regards the places and times arranged for the testing (see paragraphs 63 and 64 above), as only a failure to be available at the place and time designated by them constitutes a missed test (see paragraph 69 above). Lastly, it provides them with the possibility of challenging any sanctions imposed before the administrative courts (see paragraph 65 above).
188. In contesting the necessity of the impugned interference the applicants argued that the tests to which they were subjected were ineffective. However, although the figures produced in the proceedings confirm that the number of positive tests is low, the Court agrees with the Government that this is due at least in part to the deterrent effect of anti‑doping measures. The Court is mindful of the fact that the tests made possible by the whereabouts requirements for athletes are just one aspect of action to tackle doping, which has numerous other aspects. However, in its view, the applicants cannot rely on the complexity of the issue in order to claim exemption from the whereabouts requirements. As they are directly concerned by a scourge that is particularly prevalent in the world of top‑level sports in which they compete, they must accept their fair share of the constraints inherent in the measures needed to combat that scourge. Likewise, the allegedly endemic nature of doping in sports cannot call into question the legitimacy of efforts to tackle it; on the contrary, it justifies the desire of the authorities to succeed in so doing.
189. The Court is not persuaded, either, by the applicants’ argument that the authorities’ supposed lack of action with regard to other health dangers such as tobacco, or the fact that other professions concerned by health issues are subject to fewer checks, are a source of injustice to them. Even assuming the applicant’s claim to be well-founded, it does not justify a failure by the authorities to take action against doping, which would be tantamount to saying that two wrongs cancel each other out.
190. Lastly, the applicants have not demonstrated that testing confined to training grounds and respecting private time would be sufficient to achieve the national authorities’ objectives, in view of the development of increasingly sophisticated doping methods and the very short time-frame within which prohibited substances can be detected. Given the risks established by the evidence in the file and the difficulty of reducing them effectively, the Court agrees with the Government that the whereabouts requirements imposed in accordance with the above-mentioned norms of international law should be regarded as justified.
(δ) Conclusion
191. The Court does not underestimate the impact of the whereabouts requirements on the applicants’ private lives. Nevertheless, the general‑interest considerations that make them necessary are particularly important and, in the Court’s view, justify the restrictions on the applicants’ rights under Article 8 of the Convention. Reducing or removing the requirements of which the applicants complain would be liable to increase the dangers of doping to their health and that of the entire sporting community, and would run counter to the European and international consensus on the need for unannounced testing. The Court therefore finds that the respondent State struck a fair balance between the different interests at stake and that there has been no violation of Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION (APPLICATIONno. 48151/11)
192. The applicants alleged that the whereabouts requirement was incompatible with their freedom of movement. They complained of a violation of Article 2 of Protocol No. 4, which provides:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
Admissibility
193. The Government observed that the Court’s case-law concerning restrictions on freedom of movement related to compulsory residence orders (Labita v. Italy [GC], no. 26772/95, ECHR 2000‑IV) and orders barring persons from leaving their place of residence (Hajibeyli v. Azerbaijan, no. 16528/05, 10 July 2008, andMiażdżyk v. Poland, no. 23592/07, 24 January 2012). As to the freedom to leave any country, including one’s own, the case-law related to administrative or judicial bans such as a requirement to obtain prior authorisation in order to leave the country (Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September 2011), the confiscation of a passport (Baumann v. France, no. 33592/96, ECHR 2001‑V, and Nalbantski v. Bulgaria, no. 30943/04, 10 February 2011) and a refusal to issue travel documents (Soltysyak v. Russia, no. 4663/05, 10 February 2011, and Ignatov v. Bulgaria, no. 50/02, 2 July 2009).
194. In the Government’s submission, the whereabouts requirement was not designed to restrict the possibility for athletes to work or take up residence wherever they wished, nor did it have that effect. Athletes remained free to travel in France and abroad and to choose their place of residence and work. The measure in no sense amounted to police surveillance of the persons concerned of the kind described in the case of Labita, cited above, and in Denizci and Others v. Cyprus(nos. 25316‑25321/94 and 27207/95, ECHR 2001‑V). Likewise, the athletes concerned did not have to apply for permission to travel abroad. The only requirement imposed on them was to inform the AFLD in good time of their whereabouts for one hour each day between 6 a.m. and 9 p.m. The AFLD sometimes requested one of its counterparts abroad to carry out a test on its behalf, in the context of cooperation between national agencies. Lastly, where an athlete included in the testing pool wished to settle permanently outside France, he or she was removed from the AFLD testing pool.
195. The Government concluded from the foregoing that the whereabouts requirement did not come within the scope of application of Article 2 of Protocol No. 4.
196. The applicants contended that they were subject to an unconditional system of checks that had no geographical or temporal limits. Having to submit their daily schedule and planned movements made it impossible for them to move around anonymously even though they could be traced for eleven months of the year in their clubs for the purposes of checks. They complained that the disclosure of their address or their destination meant that they had to account constantly for their movements. Furthermore, the requirement to indicate a time slot obliged them to be in a specific place (one that was suitable for conducting urine and blood tests) between 6 a.m. and 9 p.m. This meant, for practicalif not legal purposes, that they had to be at home.
197. The two applicants maintained that the whereabouts requirement obstructed the free movement of workers within the European Union. In their submission, the whereabouts requirements made travel and movement within the EU hazardous. They reiterated that a pragmatic approach would enable the aims of anti-doping measures to be pursued in an appropriate manner while respecting their right to freedom of movement.
198. The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person a right to liberty of movement within a territory and to leave that territory, which implies a right to leave for such country of the person’s choice to which he may be admitted (see Baumann, cited above, ECHR 2001‑V). It further observes, as did the Government, that special supervision measures accompanied by an order for compulsory residence amount in principle to restrictions on freedom of movement falling to be examined under Article 2 of Protocol No. 4 (see De Tommaso v. Italy [GC], no. 43395/09, §§ 83 et seq., 23 February 2017). Likewise, a requirement for applicants to report to the police each time they wish to change residence or visit family or friends constitutes interference with their freedom of movement (see Denizci and Others, cited above, §§ 346-47 and §§ 403-04, and Bolat v. Russia, no. 14139/03, § 65, ECHR 2006‑XI). The Court further refers to its judgment in Battista v. Italy(no. 43978/09, § 36, ECHR 2014) for an exhaustive review of restrictions on the freedom to leave a country.
199. In the present case the Court observes, as regards the examination of this complaint, that the applicants are required to notify to the AFLD a daily one-hour slot during which they will be available at a specified location for the purposes of unannounced testing. This means that they are obliged to remain in a specific place for one hour each day. However, it should be pointed out that this place is chosen by themand that it does not involve their home address unless they so request and subject to a limited time-frame. The Court concludes from this that the obligation in question precludes discreet comings and goings; this is more a matter of interference with privacy than a surveillance measure (see paragraphs 157 and 158 above). It takes note in that regard of the decisions of the domestic courts not to characterise the whereabouts requirement as a restriction on freedom of movement and to make a distinction between checks that come within the jurisdiction of the ordinary courts and those that do not (see paragraph 73 above). The measures complained of cannot therefore be equated, as the applicants contend, with electronic tagging ordered by way of adjustment of a sentence or in conjunction with a compulsory residence order as an alternative to detention. Lastly, the Court notes that the applicants are not prevented from leaving their country of residence but are merely obliged to indicate a location in the destination country where they will be available for the purposes of unannounced testing.
200. In the light of the foregoing, the Court concludes that Article 2 of Protocol No. 4 is not applicable in the present case. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares application no. 48151/11 admissible as regards the complaints made under Article 8 of the Convention by the individual applicants Mr Da Silva, Mr Gomis, Mr Ho You Fat, Mr Perquis, Mr Congre, Mr Coulibaly, Mr Cavalli, Mr Cabarry, Mr Huget, Mr Honrubia, Mr Gharbi, Mr Kerckhof, Mr Busselier, Mr Ternel, Mr Kiour and Mr Haon, and the remainder of the application inadmissible;
3. Declares application no. 77769/13 admissible as regards the applicant’s complaint under Article 8 of the Convention;
4. Holds that there has been no violation of Article 8 of the Convention in respect of any of the applicants.
Done in French, and notified in writing on 18 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Angelika Nußberger
Deputy Registrar President
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ANNEX
List of applicants
Most of the applicants are French nationals, with the exception of Mr Alvarez Kairelis (Argentinian), Mr Ayed and Mr Gharbi (Tunisian), Mr Human (South African), Mr Linehan (American), Mr Magrakvelidze (Georgian) and Mr Silvo do Nascimento (Brasilian).
1. Abdeslam AKOUZAR born on 15/04/1982, resident in Saint Denis de l’Hôtel
2. Andrew ALBICY born on 21/03/1990, resident in Levallois-Perret
3. Rimas Esteban ALVAREZ KAIRELIS born on 22/07/1974, resident in Bompas
4. Anouar AYED born on 09/05/1978, resident in Colomiers
5. Laurent BALUC-RITTENER born on 24/11/1981, resident in Albi
6. Kevin BERIGAUD born on 09/05/1988, resident in Sciez
7. David BEUN born on 26/04/1982, resident in Aix-en-Provence
8. Thibaut BOURGEOIS born on 05/01/1990, resident in Metz
9. Laurent BUSSELIER born on 27/11/1976, resident in Saint-Alban-Leysse
10. Laurent CABARRY born on 18/01/1985, resident in Boé
11. Maurice CARASSO, born on 07/05/1988, resident in Metz
12. Johan CAVALLI born on 12/09/1981, resident in Ajaccio
13. Aly CISSOKHO born on 15/09/1987, resident in Lyon
14. Daniel CONGRE born on 05/04/1985, resident in Montpellier
15. Ousmane COULIBALY born on 09/07/1989, resident in Brest
16. Guillaume CREPAIN born on 15/04/1986, resident in Aulnay sous-Bois
17. Fabrice CULINAT born on 19/12/1978, resident in Colomiers
18. Philippe DA SILVA born on 30/11/1979, resident in Evreux
19. Xane D’ALMEIDA born on 21/01/1983, resident in Limoges
20. Simon DARNAUZAN born on 04/07/1980, resident in Grésy sur Aix
21. Paul DEARLOVE born on 06/02/1979, resident in Idron
22. Maxime DERBIER born on 06/08/1986, resident in Fos sur Mer
23. Sébastien DESCONS born on 13/05/1983, resident in Fresnes
24. Frédéric DOLE born on 29/03/1975, resident in Vertou
25. Thomas DOMINGO born on 20/08/1985, resident in Orcet
26. Stéphane DONDON born on 09/01/1977, resident in Vichy
27. Geoffrey DOUMENG born on 09/11/1980, resident in Cuxac d’Aude
28. David DUCOURTIOUX born on 11/04/1978, resident in Landas
29. Thierry DUSAUTOIR born on 18/11/1981, resident in Blagnac
30. Florent ELELEARA born on 03/06/1979, resident in Strasbourg
31. Mickaël EYMARD born on 04/03/1985, resident in Plieux
32. Michel FABRE born on 15/07/1984, resident in Pont du Château
33. Emerse FAE born on 24/01/1984, resident in Nice
34. James FANCHONE born on 21/02/1980, resident in Honfleur
35. Doudou-Jacques FATY born on 25/02/1984, resident in Belfort
36. Nicolas FLORENTIN born on 16/02/1978, resident in Houdemont
37. Gary FLORIMONT born on 16/06/1987, resident in Charleville-Mézières
38. Julien FRANCOIS born on 21/09/1979, resident in La Rivière Saint Sauveur
39. Guillaume GAUCLIN born on 17/06/1981, resident in Ploeren
40. Mahmoud GHARBI born on 11/02/1982, resident in Nantes
41. Pierre GIBAUD born on 22/04/1988, resident in Levallois Perret
42. Antoine GOMIS born on 02/04/1989, resident in Bourg en Bresse
43. Fabrice GUILBERT born on 08/10/1976, resident in Ivry-sur-Seine
44. Jean-Philippe HAON born on 17/04/1981, resident in Nîmes
45. Guénaël HENRI born on 12/09/1987, resident in Saint-Etienne
46. Cédric HEYMANS born on 20/07/1978, resident in Garidech
47. Steeve HO YOU FAT born on 12/06/1988, resident in Évreux
48. Samuel HONRUBIA born on 05/07/1986, resident in Boulogne Billancourt
49. Yoann HUGET born on 02/06/1987, resident in Toulouse
50. Wylie Arthur HUMAN born on 26/02/1979, resident in Aix-en-Provence
51. Daniel HUMBERT born on 05/02/1984, resident in Marguerittes
52. Dounia ISSA born on 03/06/1981, resident in Changé
53. Aymeric JEANNEAU born on 10/10/1978, resident in Hurtigheim
54. Arnaud KERCKHOF born on 13/03/1984, resident in Boulazac
55. Mohamed KIOUR born on 20/06/1979, resident in Dijon
56. Jonathan KODJIA born on 22/10/1989, resident in Amiens
57. Sébastien LALOO born on 08/11/1978, resident in Sendets
58. Guillaume LEBURGUE born on 06/06/1980, resident in Le Portel
59. Antony LECOINTE born on 05/10/1980, resident in Outreau
60. John LINEHAN born on 01/05/1978, resident in Nancy
61. Peguy LUYINDULA born on 25/05/1979, resident in Paris
62. Mamuka MAGRAKVELIDZE born on 12/08/1977, resident in Tarbes
63. Arnaud MAIRE born on 06/03/1979, resident in Ajaccio
64. Steve MANDANDA born on 28/03/1985, resident in Aix-en-Provence
65. Joris Steve MARVEAUX born on 15/08/1982, resident in Le Cres
66. Nicolas MAS born on 23/05/1980, resident in Cabestany
67. Sylvain MAYNIER born on 08/10/1977, resident in Saint-Benoît
68. David MELODY born on 04/05/1977, resident in Dijon
69. Cyrille MERVILLE born on 14/04/1982, resident in Nimes
70. Romain MILLO-CHLUSKI born on 20/04/1983, resident in Grenade-sur-Garonne
71. Frédéric MONCADE born on 13/11/1978, resident in Sauvagnon
72. Sébastien MONGIN born on 18/04/1978, resident in Champol
73. Sylvain MONSOREAU born on 20/03/1981, resident in Cellieu
74. Vincent MOUILLARD born on 21/08/1983, resident in Quimper
75. Lionel NALLET born on 14/09/1976, resident in Antony
76. Rudy NIVORE born on 05/05/1989, resident in Paris
77. Karim OUATTARA born on 13/10/1979, resident in Clermont-Ferrand
78. Morgan PARRA born on 15/11/1988, resident in Mirefleurs
79. Damien PERQUIS born on 08/03/1986, resident in Caen
80. Jean-Jacques PIERRE born on 23/01/1981, resident in Mondeville
81. Guillaume PONS born on 13/11/1979, resident in Carrières sur Seine
82. Valentin PORTE born on 07/09/1990, resident in Aucamville
83. Benoît POULAIN born on 24/07/1987, resident in Milhaud
84. Clément POUX born on 05/11/1985, resident in Carcassonne
85. Benjamin PSAUME born on 12/01/1985, resident in Troyes
86. Julien QUERCIA born on 17/08/1986, resident in Larmor Plage
87. Sylvain ROGNON born on 12/06/1982, resident in Chalezeule
88. Pierre ROUSSARIE born on 08/09/1980, resident in Ciboure
89. Arnaud SIFFERT born on 06/12/1978, resident in Maisdon sur Sèvre
90. Andre Luiz SILVA DO NASCIMENTO born on 27/01/1980, resident in Sao Joao del Rei
91. Williams SOLIMAN born on 15/02/1980, resident in Rezé
92. Arnaud SOUQUET born on 12/02/1992, resident in Lomme
93. Nicolas STRUNC born on 25/07/1978, resident in Plomelin
94. Pierre TALMONT born on 02/04/1977, resident in Laval
95. Romain TERNEL, born on 06/08/1986, resident in Cesson-Sévigné
96. Benoît TOFFIN born on 01/01/1977, resident in Évreux
97. Damien TRAILLE born on 12/06/1979, resident in Biarritz
98. Angelo TSAGARAKIS born on 03/06/1984, resident in Bourg en Bresse
99. Alexis ZYWIEKI born on 10/04/1984, resident in Gémeaux
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