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Deutsch: EU-US PNR Abkommen mit Menschenrechten unvereinbar

In a note sent on 16 May 2011 to the Director-General of DG Home Affairs, the Legal Service of the European Commission warns that the draft EU-US agreement on the exchange of PNR data is not compatible with fundamental rights.

The EC's lawyers found several areas of concern related to the planned agreement. Significant issues are the proportionality of the agreement which covers minor crimes as well, its extension to US border security "which is not linked to the purpose of preventing terrorism or serious crime", a far too long (15 years) data retention period for the data collected for the agreement purpose, the lack of judicial redress for the data subjects, the lack of "guarantee of independent oversight".

After having reviewed the present draft, the Legal Service draws the attention over the fact that its earlier comments had not been considered in drafting the present variant of the agreement: "all (these) comments were already transmitted to your services in the course of the negotiations."

The Legal Service concludes that "despite certain presentational improvements, the draft agreement does not constitute a sufficiently substantial improvement of the agreement currently applied on a provisional basis, the conclusion of which was refused on data protection grounds by the European Parliament." Moreover, the use of the PNR data for US border security is considered a step back from the point of view of data protection. The conclusion therefore related to the agreement is that "the Legal Service does not consider the agreement in its present form as compatible with fundamental rights."

Hopefully this opinion may weigh in the decision of the European Parliament which, according to the Lisbon Treaty, has the power to refuse it. "This Agreement does not meet EU data protection standards of proportionality or purpose limitation, nor does it provide judicial redress to data subjects or any guarantee of independent oversight" says Tony Bunyan, Statewatch Director who believes that it's high time EU takes a firmer stand in the matter. "Secret Minutes of EU-US meetings since 2001 show that they have always been a one-way channel with the US setting the agenda by making demands on the EU. When the EU does make rare requests like on data protection, because US law only offers protection and redress to US citizens, they are bluntly told that the US is not going to change its data protection system".

MEP Jan Philipp Albrecht, member of the European parliament's civil liberties committee, believes that by pushing forward this agreement, EU is acting against its own legal advice. "The commission cannot simply continue to stick its fingers in its ears, and it is high time that it dropped its obsession with PNR. This means going back to the drawing board and renegotiating the draft agreements with the US, Australia and Canada on passenger record retention, ensuring these agreements are in line with EU data protection law. It also means dropping the proposed legislation on the retention of passenger data within the EU."

As regards the EU PNR proposal, this has been slammed also by the European Union Agency for Fundamental Rights (FRA). The Agency has issued an opinion on the Proposal for a Directive on the use of PNR data, identifying a series of issues regarding the compliance of the proposal with the Charter of Fundamental Rights of the European Union.

FRA is concerned by the risk of direct discrimination related to PNR data transmitted by air carriers, which may include sensitive or special data. "It would therefore be useful to introduce a prohibition on the transmission of such data by air carriers."

Regarding the limitation of fundamental rights covered by the proposal, FRA is concerned by the vagueness of several formulations and believes the explanatory memorandum of the proposal "does not sufficiently substantiate the necessity of the limitation for all crimes covered," and that "the necessity and proportionality of the PNR system would need to be demonstrated."

For the compliance with the right to protection of personal data, FRA suggests the control should be provided by fully independent supervisory authorities that "can take action on their own initiative to protect proactively and effectively the interests of data subjects and have sufficient resources to do so in practice."

European Commission's Legal Service says EU-USA PNR agreement is "not compatible with fundamental rights" (03.06.2011)
http://www.statewatch.org/news/2011/jun/03eu-us-pnr-com-ls.htm

Observatory on the exchange of data on passengers (PNR) with USA
http://www.statewatch.org/pnrobservatory.htm

Air passenger data plans in US-EU agreement are illegal, say lawyers (20.06.2011)
http://www.guardian.co.uk/world/2011/jun/20/air-passenger-data-plans-i...

Opinion of the European Union Agency for Fundamental Rights (FRA) on the Proposal for a Directive on the use of Passenger Name Record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (COM(2011) 32 final) (14.06.2011)
http://www.statewatch.org/news/2011/jun/eu-pnr-fra-opinion.pdf