ECJ set to deliver verdict on EU-US passenger data

By David Cronin

Date: 13/10/05

A long-awaited verdict on the legality of transferring airline passenger data from the EU to the US will be delivered by the European Court of Justice next Tuesday (18 October).

The court in Luxembourg is to rule on a legal challenge brought by MEPs against both the European Commission and the Council of Ministers.

In the Parliament's view, the other two EU institutions were wrong to conclude a 2003 deal on handing over Passenger Name Record (PNR) details to the US, without first obtaining MEPs' assent.

The deputies also claim that the accord violates the privacy provisions of the European Convention on Human Rights. They contend, too, that handing over vast swathes of personal data to the US would be disproportionate to the threat of terrorism.

The PNR deal is one of the most tangible results of trans-Atlantic co-operation since the 11 September 2001 atrocities.

Franco Frattini, the European commissioner for justice, freedom and security, has visited Washington over the last fortnight, to discuss the surrounding issues with Michael Chertoff, the secretary at the US Department of Homeland Security.

Before travelling, Frattini said he had recently been given an "extremely positive" report on the functioning of the PNR accord by the Commission's services. There does not appear to be a possibility for the data handed over to the American authorities to be abused, he added.

But Peter Hustinx, the EU's data protection supervisor, has maintained that the Commission should not have given its blessing to the PNR accord and has filed a legal brief with the court on that point. Hustinx contends that the level of data protection in the US does not meet the standards required by a 1995 EU directive.

He has suggested that a subsequent PNR agreement between the EU and Canada offers better guarantees on civil liberties. Among the reasons he has cited are that the data protection commitments given by the Canadian authorities are binding and that the implementation of the accord will be supervised by an independent privacy commissioner.

Last week Frattini presented a more general proposal on how police and judicial authorities should handle personal data. Although it stated that data should not be given to countries outside the EU if their privacy rules were not considered adequate, Frattini denied that there was any link between the proposal and the imminent court ruling.

An analysis by the Centre for European Policy Studies published earlier this year found there were grounds for a "healthy dose of scepticism" about pledges that the US' data protection standards will be upheld in the case of PNR. "It is not clear that the US data protection rules on airline passenger movements would be sufficient to guarantee EU civil liberties for EU citizens," the study added. "The operational implications of data collected and analysed by intelligence agencies remain vague, to say the least. Safeguards seem to be weak."

Article anticipates a judgement by the European Court of Justice on the legality of an agreement between the European Union and the United States to transfer personal data of airline passengers as an anti-terrorist measure.

• Primary Source