Privacy, Right To

• Author: International Law Group
• Pages: 131-134

Page 131

Following the terrorist attacks of September 11, 2001, the U.S. passed legislation in November 2001 providing that air carriers operating fl ights to, or from, the U.S. or across U.S. territory had to provide the U.S. customs authorities with electronic access to the Passenger Name Record (PNR) data contained in their automated reservation and departure control systems.

While conceding the validity of the security interests at stake, the EC Commission cautioned the U.S. authorities, in June 2002, that those provisions could confl ict with EC and Member State legislation on data protection and privacy. The U.S. authorities put off the entry into force of the new provisions.

Ultimately, however, they declined to waive the right to impose penalties on airlines failing to comply with the U.S. legislation on electronic access to PNR data after March 5, 2003. Since then, several large airlines headquartered in the European Union have given the U.S. authorities access to their PNR data.

The Commission next began negotiating with U.S. authorities; this gave rise to a document containing specifi ed undertakings on the part of CBP, looking toward the Commission's adoption of a decision on adequacy pursuant to Article 25(6) of Directive 95/46/EC (as amended) (see below).

On March 17, 2004, pursuant to Article 300(3) EC, the Commission presented to the Parliament, with a view to its consultation, a proposal for a Council decision about fi nalizing an agreement with the U.S. The Council, referring to the urgent procedure, asked the Parliament to deliver an opinion on that proposal no later than April 22, 2004. The Parliament twice failed to respond to the described urgency.

The Council reminded the Parliament that the fi ght against terrorism was a key priority of the European Union. It noted that air carriers and passengers were at that time in a state of uncertainty which urgently needed relief. Moreover, it was arguably essential to safeguard the fi nancial interests of the parties concerned.

On April 21, 2004 the Parliament decided, in accordance with Article 300(6) EC, to obtain an Opinion from the Court of Justice on the harmony or lack of same between the proposed agreement and the organic Treaty. It started that procedure that same day.

The Commission approved the Decision on adequacy, which is the subject of Case C-318/04 on May 14, 2004. Three days later, the Council adopted Decision 2004/496, which is implicated in Case C-317/04.

Later in 2004 and in early 2005, the ECJ granted the United Kingdom leave to intervene in support of the Commission's orders in both joined cases. In March, the Court allowed the European Data Protection Supervisor to intervene to argue in favor of the forms of orders which Parliament had suggested in both cases.

Page 132

The European Court of Justice (ECJ), in a Grand Chamber of 13 judges, addressed the question of the interchange of personal information on international air passengers. In Case C-317/04, the European Parliament asked the ECJ to annul Council Decision 2004/496/EC of May 17, 2004; it pertains to an Agreement between the European Community (EC) and the United States on the processing and transfer of PNR data by EC Air Carriers to the U.S. Department of Homeland Security, Bureau of...