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EU-US: PNR (passenger name record) Treaty annulled by Court of Justice in case brought by the European Parliament - but is it a "pyrrhic" victory?

01 May 2006

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Full-text of Judgment (pdf)

Court of Justice press release (pdf)

The treaty conclusion and Commission decision have clearly been annulled because (following the opinion of the Advocate-General, see below) their subject-matter fell outside the scope of the data protection directive, as they concerned essentially the processing of data by law enforcement authorities. The other pleas by the EP, in particular the privacy plea, are therefore not considered at all (the Advocate-General had considered them for the sake of argument, but rejected them). The EP has therefore won a "pyrrhic" victory, as the agreement will now be replaced either by national agreements, or by a third pillar agreement with the US. Either way the EP has no power over approval of the treaty/treaties or even the power to bring legal proceedings against them. The press may describe this as a victory for the EP or for privacy but they will be mistaken.

Moreover, there is a risk that if an EU treaty or purely national treaties are signed with the US that the standard of privacy protection could actually be worse than in the original PNR deal. The treaty is still valid for 3 months after being denounced, so access to the airline reservation databases would only be illegal if there are no replacement measures by that point.

1. Opinion of the Advocate-General of the European Court of Justice (delivered on 22 November 2005)

2. See Statewatch's Observatory on the exchange of data on passengers (PNR) with USA

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