ECJ Disallows Air Passenger Data Sharing Agreement

by Ulrika Lomas, for LawAndTax-News.com, Brussels

01 June 2006

The European Court of Justice on Tuesday annulled an agreement between the European Union and the United States government regarding the handover of air passenger data to US security agencies.

In the face of grave concerns, the EC had issued assurances that the US authorities would provide the necessary privacy protections for such data. However, the ECJ disputed that decision this week, arguing that:

"Neither the Commission decision finding that the data are adequately protected by the United States nor the Council decision approving the conclusion of an agreement on their transfer to that country are founded on an appropriate legal basis."

Giving his opinion in November 2005 on the transfer of air passenger data between the European Union and the United States, ECJ Advocate General Philippe Léger proposed that decisions issued by the European Commission and the European Council with regard to the matter be revoked.

Following the terrorist attacks of 11 September 2001, the United States adopted legislation to the effect that airlines carrying passengers to, from or across United States territory are required to give the American authorities electronic access to the data contained in their system for controlling and monitoring departures (Passenger Name Records). Taking the view that those provisions might conflict with Community and Member State legislation on the protection of personal data, the Commission began negotiations with the American authorities.

At the conclusion of those negotiations, on 14 May 2004, the Commission adopted a decision (the adequacy decision), holding that the United States Bureau of Customs and Border Protection (CBP) offered a sufficient level of protection for personal data transferred from the Community. On 17 May 2004, the Council adopted a decision approving the conclusion of an agreement between the European Community and the United States on the transfer of data from Passenger Name Records by airlines established in the territory of Community Member States to the CBP.

The European Parliament asked the ECJ to annul both agreements.

M. Léger stated that in his view, neither the Council decision approving the agreement nor the Commission decision holding that information to be sufficiently protected by the United States had an adequate legal basis, a finding supported - as expected - by the ECJ this week.

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