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JHA Council to agree the surveillance of all airline passengers?

01 April 2004

The Justice and Home Affairs Council (JHA) meeting in Luxembourg on 29-30 April is expected to adopt a Spanish proposal to introduce the compulsory collection of all passenger name data (PNR) from airlines in the EU. Although the measure is not listed in the Background paper issued by the Council: see: JHA Background (pdf) it has - under the terms of the Amsterdam Treaty be adopted by 1 May as it is a member state initiative or it will fall.

On 5 April the Council of the European Union (the 15 EU governments) requested the European Parliament to give its Opinion on the EU-PNR scheme by 22 April and added that: "if it is unable to give its Opinion by that date, the Council reserves the right to act without the Parliament's Opinion". The parliament's Committee on Citizens' Right and Freedoms did agree a Report on 5 April which unanimously rejected the proposal and at the plenary session of the European Parliament on 20 April MEPs voted by 287 votes to 225 votes (with 11 abstentions) to call for the withdrawal of the proposal. The technical decision was to refer the issue back to the Committee on Citizens Freedoms and Rights - thus not providing a formal response to the Council. However, the Council routinely ignores the Opinion of the European Parliament. Two national parliaments have maintained scrutiny reservations and these have not yet been lifted (UK and Netherlands). It is not known whether the substantially revised version of the Directive (see below) has been referred back to the other 13 national parliaments for their views.

The proposal has gone through major changes since it was first put forward in 2003. Its scope was first defined as covering all passengers, then it was changed to third country national, and then it was changed back to all passengers. Major changes to the draft proposal were agreed at the last JHA Council on 30 March. Under the Article on data protection the obligation to destroy records after 24 hours was changed to allow for the indefinite retention of data for use by law enforcement agencies. Access to the data, which had been limited to border control and immigration officials, has been extended to all law enforcement agencies. See: Report and draft Directive

The late changes also raise a legal problem. The measure is proposed under Article 61.2.a which covers carrying out checks at external borders which is the responsibility of border and immigration officials. To give access to all law enforcement agencies to the data is dubious.

In the USA, where similar proposals are being considered but a long way from being agreed, there are full Senate and Congress procedures and a major report from the US General Accounting Office has concluded that seven out of eight criteria (concerning privacy and the protection of data) have not been met.

Tony Bunyan, Statewatch editor, comments:

"It would be quite extraordinary if the EU were to put place all airline passengers under surveillance before the measure is even in force in the USA - where there are substantial privacy questions to be answered before the Congress and Senate can proceed in their considerations.

The European Parliament has rejected the proposal and national parliaments are being given no time to scrutinise the radically changed initiative.

To rush through such a far-reaching measure - which will affect the privacy and liberties of all - without proper parliamentary scrutiny and amendment is an abuse of the democratic process and brings the legitimacy of EU decision-making into disrepute."

Background

1. Report and draft Directive
2. Statewatch: Observatory on EU-PNR

3. USA:

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