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EU: Commission makes €50 million available for the development of "big brother" PNR databases - before legislation has even been agreed

11 January 2013

11.01.2013 - One of the most controversial pieces of EU legislation currently on the table is the proposed EU-Passenger Name Record (PNR) directive, which would require the establishment throughout the Member States of systems for collecting, storing and analysing vast amounts of personal data from people flying into (and possibly within) Europe, with the stated purpose of preventing, detecting, investigating and prosecuting terrorist offences and serious crime.

Three European Parliament committees - dealing with civil liberties, foreign affairs, and transport and tourism - have so far examined the proposal, but the Civil Liberties Committee's key vote on whether to agree to it or not will not take place until the end of January, while the Council will discuss "certain issues" in the proposal at its meeting in Luxembourg in June. [1]

Only after the two institutions reach an agreement will there be a legal basis for the establishment of the system, described by Green MEP Jan Philipp Albrecht last year as part of the "ever-creeping drive for more pervasive retention and analysis of private data and big brother-style surveillance." [2]

"There is scant evidence that these far-reaching data retention measures do anything to achieve their stated aim of ensuring greater security," said Albrecht. "What is clear is that they compromise EU citizens' privacy and civil liberties."

Development without a mandate?

Despite its controversial nature, some interested parties are pushing ahead with the development of the PNR system - despite the fact there is not yet a legal basis for it. The Commission is making €50 million available to Member States for the establishment of Passenger Information Units (PIUs), which will be responsible for collecting, processing and analysing PNR data, as well as exchanging it with other PIUs and law enforcement authorities.

On 9 January the Commission published a call for proposals for projects that at the very least see the "establishment of a unit in the Member State which will be responsible for the collection, processing and retention of PNR data," and preferably also the actual ability to collect, store, process and share the data. [3]

Under the terms of the proposal, up to 90% of the costs of Member States' projects can be met by EU money, while "a minimum of 10% of the total eligible costs" must be contributed by the applicant or one of their partners.

The money will come from the Prevention of and Fight against Crime fund, despite the fact that the current PNR draft legislative proposal stating that it is "desirable that co-financing of the costs related to the establishment of the national Passenger Information Units" comes from the Internal Security Fund, also currently subject to negotiation and due to come into force from 2014 until 2020. [4]

This article was inserted into the Directive at the insistence of the Member States, who in late 2011 raised complaints over financing: "It is crucial for the Member States to have a direct, binding reassurance that they will not have to rely on the conventional selection-based choice of financial reimbursement for the costs covered," said a note from the Presidency to the Article 36 Committee (CATS). [5]

The Commission opposed this, arguing at a subsequent meeting of CATS that "it had no budget line to fund the establishment of the passenger information units and was opposed to the insertion of an article in the draft PNR Directive imposing financial obligations to that effect."

Despite the fact that "running costs of any system set up further to EU legislation, in principle have to be borne by the Member States," the Commission said it was "willing to use existing financial funds to support Member States in the establishment of the passenger information units." [6]

Fait accompli?

Indeed, the Commission had already agreed to do so. In September 2011 its 2012 work programme for the Prevention of and Fight against Crime programme was adopted, which specifically stated that in 2012 there would be a "targeted call for proposals" related to "measures to set up Passenger Information Units in the Member States," earmarking €25 million for the work.

The Commission may have missed its 2012 deadline, but in the meantime the money available for the project has doubled, and looks set to keep coming. As already noted, draft legislation for the forthcoming Internal Security Fund specifically notes that "setting up national passenger information units for the collection, processing, analysis and exchange of passenger name record data" will receive financial support.

The behind-the-scenes development of ambitious technological projects whilst legislative negotiations are ongoing is not unknown in the EU. EUROSUR, the EU's latest highly-controversial border control and surveillance project, has been under development for five years, yet legislation establishing the system is not expected to be adopted until 2013.

With EUROSUR, the Commission has been accused of "presenting the European Parliament with an effective fait accompli," by using a "technocratic process that has allowed for the development of the system and substantial public expenditure to occur well in advance of the legislation now on the table," according to a report highly critical of the project. [7]

The deadline for Member States' applications for financial assistance with developing Passenger Information Units is 10 April, with successful proposals to be decided upon the end of September. "The projects are expected to commence shortly after the award of a grant, at the latest 1 January 2014," says the Commission document.

Sources
[1] General Secretariat of the Council, Provisional agendas for Council meetings, during the first semester of 2013 (Irish Presidency), 21 December 2012
[2] Jan Philipp Albrecht, EU plans for big brother data analysis must be nipped in the bud, EUobserver, 24 April 2012
[3] European Commission, Law enforcement cooperation through measures to set up Passenger Information Units in Member States for the collection, processing, analysis and exchange of Passenger Name Record (PNR) data, 9 January 2013
[4] Article 13(a), Proposal for a Directive of the Council and the European Parliament on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, 23 April 2012
[5] Presidency, Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime - Way forward on financial related matters, 18 November 2011, p.2
[6] CATS, Outcome of proceedings on 24 and 25 November 2011, 13 December 2011, p.3
[7] Ben Hayes and Matthias Vermeulen, Borderline: The EU's New Border Surveillance Initiatives, Heinrich Böll Foundation, June 2012