At a meeting Thursday of the European Parliament's Civil Liberties Committee, MEPs discussed the current status of the agreement between the EU and Canada on the sharing of airline passenger name records.
At the outset, Parliament legal advisor Dominque Moore briefed the committee on the Court of Justice of the European Union's July opinion on the proposed agreement, which, in summary, said the agreement could not proceed without significant amendment. The court had been asked by the European Parliament to weigh in on the agreement's compliance with EU law. In its opinion, the court cited conflicts with the EU Charter of Fundamental Rights.
Moore noted the court's opinion here is significant in that it's the first time the court has opined on whether an international treaty agreed with the charter. It's also significant, he said, because the court said both the issues of police cooperation and data protection are the basis upon which the agreement should be made, arguing the two are inextricably linked. However, according to established case law, there should only be one legal basis applied.
It's "rather a big change from the existing model" that the court is arguing for, Moore said, and the consequences of the opinion are big, because "where the court delivers an adverse opinion, an international treaty cannot enter into force." Meaning "this particular agreement, at least in its current form, cannot enter into force." The deal must be renegotiated.
In brief summary, Moore outlined the three stages of PNR data, as the court sees them. In laymen's terms, it all comes down to passenger movement, and the court wants to make sure that at every stage where personal data is being collected or retained, it's absolutely necessary that it be collected.
First, under international law, Moore explained, all states are entitled to make checks and controls on passengers arriving in their territory, meaning PNR data collection and processing at that stage is okay in the court's eyes. But there are caveats there: Sensitive data shouldn't be transferred, and, because algorithms are employed to determine which passengers on board might be a risk to security, there must be some way the EU can check on how that profiling is being carried out to ensure it isn't discriminatory.
The second stage of the process happens once the passenger is deemed not a risk. While it's understood the data shouldn't be deleted just yet, and the data can be retained during the passenger's stay in Canada, the CJEU finds Canadian authorities shouldn't be allowed to access that data directly, but instead must ask for a judge's approval for such access.
Third, and the final stage, is when a passenger leaves the country. "When a passenger has left the country, the court considers no further security risk which justifies keeping PNR data," so the data must be deleted. Moore said that's a "big change from the current situation," which now states all data is retained for five years.
Responding to Moore's presentation of facts, Dutch MEP and rapporteur on the agreement, Sophie in 't Veld, wanted to know that kind of implications the ruling may have on other agreements.
"If you look at the criteria used by the court, at the least the PNR agreement with the U.S. doesn't remotely meet those criteria," she said. "The agreement with Australia is probably closer. If we were to conclude those other agreements also don't meet those standards set by the court, what has to be done then to make sure they will meet the criteria? Can they continue to be in force even if we establish they aren't in line with the Charter of Fundamental Rights and don't have the right legal basis?"
Moore said international agreements that haven't been concluded yet, such as the EU's ongoing negotiations with Mexico on PNR, must now consider the court's opinion. "There's no way that agreement can happen without this being taken into account." As for existing agreements, Moore continued, "It's complicated."
While no international treaty can be entered into if the court finds an adverse opinion, agreements already in force under international law "do not automatically lapse." They remain in place. Even if, in principle, the facts of the case involving the agreement with Canada on PNR data could theoretically apply elsewhere based on similarities, the opinion only affects that specific agreement.
German MEP Jan Philipp Albrecht advocated the importance of bringing the PNR agreement in line with the court's opinion: "In times when member states start to ignore Court of Justice decisions, we should send a message that we accept them."
Albrecht's main concern is with the idea that retention of a subject's personal data who's not seen as a risk or suspicious is not seen as justifiable once travel is complete. He said the court's opinion here, though specific to Canada's PNR agreement, clearly has implications for other agreements, namely the Entry/Exit System proposal which MEPs are to vote on in coming weeks. Albrecht said he doesn't think MEPs can vote on Entry/Exit under the court's current view of the PNR deal.
"We can't ask Canada to be more restrictive with the data of Europeans traveling to Canada than we ask ourselves to treat travelers from outside who come here," Albrecht said. "That would be completely arbitrary."
The LIBE Committee aims to discuss the issue again as early as next week with the European Council's presidency in order to better find a solution ahead of the plenary vote on Entry/Exit, though a specific date was not named.
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