Several passages of the law governing telephone canvassing and commercial prospecting have been declared unconstitutional by the Constitutional Council.
Seized by Orange, the Constitutional Council declared contrary to the Constitution several provisions of the 2020 law governing telephone canvassing. If the decision modifies the sanctions regime, it does not call into question the main applicable rules, in particular theban on approaching individuals for energy renovation work.
Part of the law censored
The legal framework for telephone canvassing is evolving once again. In a decision rendered following a priority question of constitutionality (QPC) raised by the operator Orange in the context of a dispute before the Council of State, the Constitutional Council censored part of the law of July 24, 2020 aimed at regulating telephone canvassing and to fight against fraudulent calls.
This decision does not, however, call into question the general architecture of the text, which prohibits in particular any telephone prospecting in matters of energy renovation and requires professionals to consult the Bloctel opposition list before any canvassing campaign. It concerns only the system of administrative sanctions provided for by law.
The principle of “non bis in idem“at the heart of the decision
The Constitutional Council examined the provisions allowing several independent administrative authorities to sanction the same professional for identical facts. As the law stands, the National Commission for Information Technology and Liberties (Cnil), the Regulatory Authority for Electronic Communications, Posts and Press Distribution (Arcep) as well as the administration responsible for competition and consumption could each initiate proceedings and impose sanctions when they noted breaches falling within their respective jurisdictions.
For the Sages, this mechanism ignores the constitutional principle according to which the same person cannot be sanctioned several times for the same acts. The possibility of combining several administrative procedures was therefore deemed contrary to the Constitution.
The rule “non bis in idem” – or “ne bis in idem” – is a classic principle of criminal procedure, already known from Roman law, according to which “no one can be prosecuted or punished criminally for the same facts” (former Code of Criminal Investigation). © Magnific
A repeal postponed to 2027
In order to avoid weakening the procedures currently underway and to give the legislator time to adapt the system, the Constitutional Council chose to postpone the effects of its decision. The censored provisions will thus only be repealed from October 31, 2027. Until this deadline, the administrative authorities will retain their powers of control, but they will no longer be able to initiate proceedings against a professional already prosecuted or sanctioned by another authority for the same facts.
This transitional period must ensure the continuity of the fight against fraudulent calls while guaranteeing respect for constitutional principles.
Quid the ban on canvassing in energy renovation?
For the building professionalsthe decision in no way modifies the rules relating to commercial prospecting in the energy renovation sector. Since the entry into force of the 2020 law, companies no longer have the right to approach individuals by telephone to offer them energy renovation work. They also remain required to verify that the persons contacted do not appear on the Bloctel list when they carry out authorized prospecting operations. These obligations remain in full force.
This decision comes just as a new legislative change is about to apply. Indeed, adopted in 2025, a new law must come into force at the beginning of August and profoundly modify the rules of telephone canvassing. The text reverses the logic currently in force: companies will no longer be able to freely call consumers, unless they object, but on the contrary must obtain their prior agreement before any commercial solicitation.
