EU-US air data accord under legal threat

Chaos for air travellers, the break-up of Brussels aviation policy and a question-mark over key anti-terror measures could follow the scrapping of an EU-US agreement on air data transfers.

Officials have given an appalled first reaction to Monday’s EU advocate-general opinion urging an end to European handovers of air passenger data to US security agencies.

European Court of Justice advocate general Phillipe Léger has issued an opinion that is a severe setback for the commission and the EU council of national governments.

AG opinions are followed by the full court in 80 per cent of cases and commission officials have warned of dire consequences should it become a legally binding ruling.

“Everybody would lose. If the court follows this reasoning the whole system would collapse. If cancelled, each individual airline would stand alone in front of the US authorities,” said an official.

“If the ECJ goes along with this opinion it would weaken the EU in international negotiations where the ECJ has previously backed the commission.”

EU officials suggest that an ECJ judgment annulling a May 2004 Trans-Atlantic agreement would be deeply damaging.

Individual airlines could be hit by bans and fines from the US side for not handing over electronic Passenger Name Records.

And they could also face domestic sanctions from national data protection authorities for transferring the data – a real possibility in countries like Italy or the Netherlands.

An end to the agreement could bring air travel chaos to passengers and leave tens of thousands of EU travellers in long queues while their details are checked.

The EU-wide approach could then disintegrate into 25 bilateral agreements between member states and Washington.

Such a development, EU officials warn, could spell the end of European aviation policy and negotiations such as ‘open skies’.

Dutch Liberal MEP Sophie Int’ Veld is the European Parliament’s rapporteur on a similar agreement with Canada.

She welcomed the ECJ opinion but stressed that MEPs were “a bit mystified” over Léger’s dismissal of full parliament scrutiny for such security deals.

“The first reaction is that we are delighted. This is a very positive sign, and to a large extent what the parliament wanted,” she told EUpolitix.com.

“The implications of this will be very interesting, it is an opinion that is very difficult to ignore.”

Graham Watson, leader of the parliament’s Alliance of Liberals and Democrats, hailed a victory.

“This is a victory for liberals and democrats, who steered the PNR case through the European Parliament.

“The opinion is welcome because it concurs with the parliament’s main concerns, which are that the council and commission decisions were inadequate and do not have the appropriate legal basis.”

Int’ Veld believes the opinion, if it becomes the basis of a full ECJ ruling, could call other EU anti-terror measures into question.

Controversial telecoms data retention legislation currently in the pipeline is to be carried out under a similar legal basis to the PNR transfers.

“This has to be seen in the context of introducing crime fighting policy by the backdoor,” she said.

Commission officials stress that the parliament – the source of the PNR challenge in the EU courts – is a loser too under the opinion.

“The parliament is not a winner, it would not be consulted if this opinion became a ruling,” said an official.

UK Conservative justice spokesman in the European parliament Timothy Kirkhope has attacked the Léger opinion.

“Binning this accord would be an unnecessary and retrograde step which could potentially undermine the international fight against terrorism,” he said.
 
“If this agreement ends up being scrapped, the US response could cause serious difficulties for EU airlines flying to America.”

Brussels sources acknowledge the legal difficulties in a “nascent” area of legislation driven by post-September 11 terror attacks.

“It is a young legal area where EU treaties have recently changed… it is a dynamic are of law and all institutions must try to find a path,” said one official.

EU-US security cooperation over handover of computerised PNR to US security agencies has been controversial since March 2003.

Information – 34 fields of data – has been delivered straight from European central reservation systems to US law enforcement databases.

Details include the names of all travellers, all contact details, telephone numbers, addresses, emails, payment information, bank numbers and credit card data.

The parliament last June rejected Washington and Brussels assurances that the transfers would respect EU privacy law.

The commission snubbed MEPs on May 17 2004 by overriding data protection concerns to give the OK to handovers of EU air passenger data to US security agencies.

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