European Commission Moves To Comply With ECJ Ruling On Passenger Data

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

21 June 2006

The European Commission on Monday adopted two initiatives to put a legally sound framework in place for the transfer of PNR (Passenger Name Records) data to the United States.

These initiatives are designed to correct the legal basis for the agreement with the US that was struck down by the European Court of Justice on 30 May 2006.

The ECJ annulled the 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 late last month, 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."

As the Agreement with the United-States remains in force under international law for a period of 90 days after it is abrogated by either Party, the Commission recommended that the Council terminate the Agreement with the US before the end of this month.

At the same time the Commission asked the Council for an authorisation to open negotiations for an Agreement with the United States of America on the use of PNR data to prevent and combat terrorism and transnational crime, including organised crime.

In a statement on the matter, the EC confirmed that:

"With the adoption of these initiatives only two weeks after the Court ruling, the Commission underlines its willingness to fully respect the Court's judgement and its commitment to continue the fight against terrorism while respecting fundamental rights and freedoms."

"The Commission is working closely with the other Institutions involved in order to ensure full compliance with the Court ruling. The Commission recommends that the Commission and the Council act together to denounce the current PNR Agreement with the US. Once notified through diplomatic channels the Agreement will be terminated 90 days after its notification to the United States."

"At the same time the Commission recommends to the Council to give an authorisation to open negotiations for a new Agreement with the US on the basis of Art. 38 of Title VI, Treaty on European Union. Title VI (3rd Pillar)is the correct legal environment to conclude an International Agreement for matters dealing with public security and criminal law matters."

"The Commission is in favour of an approach whereby the current Agreement is replaced by a new one having a correct legal basis in compliance with the ruling of the Court. The content of the current Agreement has not been criticised by the Court and should therefore continue to offer the same level of safeguards regarding the legal certainty for air carriers, the respect of Human rights and the purposes for which PNR data may be used. To protect public security and the economic interests of European air carriers this new Agreement should replace the current Agreement when it will be terminated, i.e. 30 September 2006."

"The Commission wanted to launch these initiatives without delay and will continue to work with all the parties concerned over the period permitted by the Court to put in place the measures required by the ruling."

Recommended