30 May ECJ Overturns EU Sharing of Airline Data with US
The European Court of Justice today ruled against the European Council and European Commission in a case brought by members of the European Parliament challenging the Council agreement to share airline data with the United States. The Commission had earlier issued a decision declaring the agreement on data-sharing complied with EU retstrictions on dissemination of private data; this decision was struck down. The full text of the ECJ opinion is here. The press release is here. The EU Observer notes:
“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,” the court ruling states.
But the court instead says EU countries are free to sign bilateral agreements with the US on the matter.
After the September 11 attacks of 2001, Washington demanded access to airlines’ booking records to help it fight terrorist threats.
Despite protests from MEPs and debate over travellers’ privacy rights in EU capitals and in Brussels, Washington insisted that a broad range of data held by airlines – Passenger Name Records (PNR) – be handed over to ‘homeland security’ authorities.
A deal was struck between Washington and EU member states in a fast-track procedure, leading MEPs to contest the agreement in the ECJ, saying they would not endorse or reject it until the legality of the deal had been tested.
“While the view may rightly be taken that PNR data are initially collected by airlines in the course of an activity which falls within the scope of Community law, namely sale of an aeroplane ticket which provides entitlement to a supply of services, the data processing which is taken into account in the decision on adequacy is, however, quite different in nature,” the court states.
Interestingly, the opinion does not take effect until September 30, allowing the EU to withdraw from the agreement with the US according to its terms. And, presumably, it also gives the member states time to negotiate separate arrangements with the US.
Hat tip: Bobby Chesney.
Great minds think alike or something like that… I was about to post this before Peggy put up her post, so let me just add my two cents here by adding my two cents about the decision. The basis for the decision is a bit obscure to me, and actually is a question of the internal EU law about the EU’s authority to make these sorts of agreements. Here is the article by which the European Commission based its authority to conclude the agreement with the U.S.: ‘The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.’ Although the analysis is more complicated, the basic holding (as I understand it) is that handing over airline passenger data to the U.S. for anti-terrorism security purposes is not within the Commission’s competence because it is not related to the “establishment and functioning of the internal market.” This seems plausible to me. But if does this mean the… Read more »