Courts annul EU-US air data deal

Controversial EU air passenger data transfers to US security agencies have been annulled by the European courts.

To preserve “legal certainty” and to avert transatlantic air chaos, the EU courts will allow the agreement to stand until September 30.

Tuesday’s European Court of Justice judgment annuls both a council of EU ministers decision and a Brussels ruling that the agreement honoured data protection law.

The legal challenge came from the European parliament but the judgment does not mean MEPs will necessarily be consulted on any new arrangement.

Security not data protection

EU judges backed a November 2005 opinion from European advocate general Phillipe Léger that the transfers fell outside the scope Europe’s data protection rules as a security deal.

“[The] decision concerns not data processing necessary for a supply of services, but data processing regarded as necessary for safeguarding public security and for law-enforcement purposes,” said an ECJ statement.

“The fact that the passenger name record data (PNR) have been collected by private operators for commercial purposes and it is they who arrange for transfer of the data to a non-member state does not prevent that transfer from being regarded as data processing that is excluded from the directive’s scope.”

Rejecting the legal basis of the commission’s decision, made under EU internal market laws setting common data protection standards, could have implications for other security legislation, including recent data protection laws.

The argument on the legal basis is used to unpick a decision clearing the transfers by the EU council of national governments - also made under single market powers.

But the ruling does not rule out the passenger name record transfers themselves or raise human rights privacy objections – another setback for parliament.

Instead, the Luxembourg courts seem to hold the door open for an agreement between the EU and US under inter-governmental European justice decision-making.

Chaos

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 the EU-US agreement.

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

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’.

Controversy

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

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 in June 2004 rejected Washington and Brussels assurances that the transfers would respect EU privacy law.

 

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