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EU-Canada: Court of Justice says no to EU-Canada travel surveillance deal as implementation of European system continues

26 July 2017

EU-Canada 
Court of Justice says no to EU-Canada travel surveillance deal as implementation of European system continues
26.7.17
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The EU's proposed Passenger Name Record (PNR) agreement with Canada to profile air passengers is incompatible with the fundamental rights to privacy, data protection, non-discrimination and does not meet the requirements of necessity and proportionality, according to an opinion issued today by the European Court of Justice.

Digital rights group EDRi said that the EU should now suspend its Passenger Name Record (PNR) agreements with the USA and Austrlia and that the ruling "should now also lead to an end to national laws transposing the EU PNR Directive" - a measure that Member States consider as "crucial in the fight against terrorism and serious crime", according to Council of the EU and Europol documents on the implementation process published today by Statewatch.

See: PNR: EU Court rules that draft EU/Canada air passenger data deal is unacceptable (EDRi, link):

"Today, on 26 July 2017, the Court of Justice of the European Union (CJEU) confirmed that the EU/Canada deal on collection of air travellers’ data and sharing it breaches European law. This is the third time that the European Court has ruled against arrangements for mandatory storage of personal data.

This is good news for EU citizens, as the risks associated with massive and unnecessary databases of sensitive personal data are unacceptable. Blindly collecting data, hoping it will magically protect our society, is bad for security and bad for fundamental rights.

(...)

The agreement between the EU and Canada allows for the transfer and processing of PNR data of passengers flying between the EU and Canada. This ruling should now also lead to an end to national laws transposing the EU PNR Directive, adopted in 2016.

The proposed EU/Canada PNR agreement was considered to be the least restrictive of all of the EU’s PNR agreements. To respect the ruling, the EU must now immediately suspend its deals with Australia and the United States."

Estelle Massé of the group Access Now (link) said:

“This decision demonstrates the need to closely evaluate the necessity and proportionality of proposed EU legislation. This is not the first time that EU Commission-proposed measures turn out to be in violation of fundamental rights, despite its role as ‘guardian’ of the treaties... Globally, governments must stop treating all travellers as suspects and reform broad and indiscriminate border surveillance measures."

The Court has not ruled against the EU-Canada agreement as a whole, but considers that for it to proceed, significant amendments are required - something that the Council will no doubt now endavour to do.

Meanwhile, the EU and its Member States continue with their efforts to implement at national level the EU PNR Directive, which is supposed to be in place by May 2018 (see documentation below).

On the proposed EU-Canada PNR deal: OPINION 1/15 OF THE COURT (Grand Chamber)(pdf, emphasis in original):

"1. The Council Decision on the conclusion, on behalf of the Union, of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data must be based jointly on Article 16(2) TFEU and Article 87(2)(a) TFEU.

2. The Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data is incompatible with Articles 7, 8 and 21 and Article 52(1) of the Charter of Fundamental Rights of the European Union in so far as it does not preclude the transfer of sensitive data from the European Union to Canada and the use and retention of that data.

3. The Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data must, in order to be compatible with Articles 7 and 8 and Article 52(1) of the Charter of Fundamental Rights:

(a) determine in a clear and precise manner the PNR data to be transferred from the European Union to Canada;

(b) provide that the models and criteria used in the context of automated processing of PNR data will be specific and reliable and non-discriminatory; provide that the databases used will be limited to those used by Canada in relation to the fight against terrorism and serious transnational crime;

(c) save in the context of verifications in relation to the pre-established models and criteria on which automated processing of Passenger Name Record data is based, make the use of that data by the Canadian Competent Authority during the air passengers’ stay in Canada and after their departure from that country, and any disclosure of that data to other authorities, subject to substantive and procedural conditions based on objective criteria; make that use and that disclosure, except in cases of validly established urgency, subject to a prior review carried out either by a court or by an independent administrative body, the decision of that court or body authorising the use being made following a reasoned request by those authorities, inter alia, within the framework of procedures for the prevention, detection or prosecution of crime;

(d) limit the retention of Passenger Name Record data after the air passengers’ departure to that of passengers in respect of whom there is objective evidence from which it may be inferred that they may present a risk in terms of the fight against terrorism and serious transnational crime;

(e) make the disclosure of Passenger Name Record data by the Canadian Competent Authority to the government authorities of a third country subject to the condition that there be either an agreement between the European Union and that third country equivalent to the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data, or a decision of the European Commission, under Article 25(6) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, covering the authorities to which it is intended that Passenger Name Record data be disclosed;

(f) provide for a right to individual notification for air passengers in the event of use of Passenger Name Record data concerning them during their stay in Canada and after their departure from that country, and in the event of disclosure of that data by the Canadian Competent Authority to other authorities or to individuals; and

(g) guarantee that the oversight of the rules laid down in the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data relating to the protection of air passengers with regard to the processing of Passenger Name Record data concerning them will be carried out by an independent supervisory authority."

EU PNR Directive implementation

The efforts of the EU and the Member States to implement the EU PNR Directive, requiring the surveillance and profiling of all air passengers flying into, out of, or within the EU, are continuing, with a coordinating role likely to be given to the Council's Working Party on Information Exchange and Data Protection (DAPIX). Minutes of the most recent meeting of the Informal Working Group on PNR (IWG PNR) given some further details on the implementation process.

See: Presidency: Implementation of Directive (EU) 2016/681 on the use of PNR data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime - discussion note (11378/17, LIMITE, pdf):

"The implementation deadline of the Directive is 25 May 2018. In view of the tight implementation schedule, discussions on implementation issues started immediately after the adoption of the Directive. They took place in formal and informal settings, either within or outside of Council structures, or on initiative of the Commission and pursuant to certain provisions of the Directive. Notably, the Commission is holding regular meetings with Member States to discuss issues related to the implementation of the PNR Directive. Member States have also set up an Informal Working Group on PNR (IWG PNR), to address the implementation of the PNR Directive from a more technical and operational point of view.

(...)

The aim during the current Presidency would be the mapping of blocking issues at legal and technical level in order to alert the Council in due time. This mapping should provide an overview of main shortcomings in a traffic-light system and thus help to prioritize work in areas where effort is needed most urgently. To establish such an overview, the coordinator would need to rely on high-level contacts in the MSs and a good working relationship with the members of the IWG PNR. Furthermore, recommendations on how to solve the blocking issues should be developed so as to prevent belated adaptation and exuberant costs for uniform information exchange, both at the side of the carriers and the MS."

And: Europol/Dutch National Coordinator for Security and Counterterrorism: Minutes Informal Working Group on PNR, June 20 and 21 2017 The Hague (pdf):

"Taking into consideration the rules of procedure we agreed upon in 2016 the aim of Informal Working Group on PNR is to share knowledge and expertise regarding the implementation of the PNR Directive allow the alignment of initiatives."

Background

PNR Directive: USA offers a helping hand to EU air travel surveillance and profiling efforts (Statewatch News Online, 14 June 2017)

Casting the PNR net wider: Netherlands offers recommendations for customs authorities (Statewatch News Online, 13 March 2017)

PNR: €70 million for swift implementation of travel surveillance and profiling infrastructure (Statewatch News Online, 21 December 2016)

Putting the PNR pieces in place: more EU funding for mass surveillance (Statewatch News Online, 30 March 2016)

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