Hustinx warns that PNR deal could return to court

A possible agreement this week with the US on the transfer of airline passenger data could be challenged in court if proper safeguards are not included, the EU’s data protection supervisor has warned.

Peter Hustinx said that it was "unfortunate" that his office had not been consulted on a deal offered by the US last Saturday (30 September) which demands greater changes than the EU wants to give.

EU justice ministers are to decide tomorrow (6 October) whether to agree to US demands, which are thought to include keeping passenger information for longer than the current limit of three and a half years and sharing it with other US agencies, such as the FBI.

Regardless of whether ministers agree to the deal it may still be challenged, Hustinx told European Voice.

"If it is unacceptable it is not going to stick…when I’m saying unacceptable it’s against the applicable standards, human rights standards," he said.

"When this is unacceptable by the European standards, it could be the decision of the Council [of Ministers] being challenged again in court either in Luxembourg [European Court of Justice] or in Strasbourg [European Court of Human Rights], on the national level by citizens holding member states to their standards."

The EU is trying to replace an agreement with the US to transfer the data after the European Court of Justice annulled an original agreement ­because the wrong legal basis was used. The court did not rule on concerns over civil liberties from the ­European Parliament, which took the case and was supported by Hustinx.

In trying quickly to reach a replacement deal by the court deadline of 30 September the European Commission and the Finnish presidency have been trying to negotiate a similar deal with the US. The US has rejected this and wants to add changes to the replacement deal, despite the fact that a new agreement must be renegotiated by November next year when the EU said it would be open to discussing new demands.

Hustinx warned whatever new demands were made adequate safeguards must be put in place. "It’s all about safeguards and about details. If you say sharing [data] with third parties, who the hell is the third party? If the third party under certain circumstances says there is an immediate signal of action needed, I would say go ahead, but if it is third parties no matter whom?"

He added: "What ­worries me is that the trend is more, more, more, and that they’re not very forthcoming on the safeguards so there you have the problem."

In his role as European Data Protection Supervisor, the EU institutions can consult Hustinx on legislation and agreements affecting his remit, but this has not happened so far on the new deal with the US. ­"Although I expect to be consulted on the agreement, it will have some sort of ‘after dinner’ effect and that’s unfortunate."

Since the original deal with the US expired, a ­legal vacuum has existed whereby 25 different ­national laws apply in protecting data transferred to the US. If justice ministers do not decide to sign off on the deal and there is a prolonged period without an EU-wide law, the data transfer could be ­challenged in court, ­Hustinx said. "In the ­absence of an agreement it may well be that private persons take the initiative, and they start to sue ­airlines or governments ­ignoring these standards."

A possible agreement this week with the US on the transfer of airline passenger data could be challenged in court if proper safeguards are not included, the EU’s data protection supervisor has warned.