By Epicenter.works

Austrian EDRi member epicenter.works filed a complaint with the Austrian data protection authority (DPA) about the Passenger Name Records (PNR) in August 2019, with the aim to overturn the EU PNR Directive. On 6 September, the DPA rejected the complaint, which was a good news, because that was the only way to lodge a complaint to the Federal Administrative Court.

The complaint: Objections

Epicenter.works’ complaint about the PNR system to the Federal Administrative Court contains a number of objections. The largest and most central one concerns the entire PNR Directive itself. The Court of Justice of the European Union (CJEU) has already repeatedly declared similar mass surveillance measures to be contrary to fundamental rights, for example in the case of data retention or in the expert opinion on the PNR agreement with Canada.

A complaint can’t be directly lodged to the CJEU, but the Administrative Court must submit questions on the interpretation of the law to the CJEU, as epicenter.works suggested in the complaint. The first question suggested is summarised as follows: “Does the PNR Directive contradict the fundamental rights of the EU?”

Moreover, Austria has not correctly implemented the PNR Directive, has partially extended its application, and has not implemented important restrictions from the Directive. For example, the Directive obliges all automatic hits, for example when someone is identified as a potential terrorist, to be checked by a person. This has not been implemented in the Austrian PNR Act. The question to the CJEU proposed in the complaint is therefore: “If the PNR Directive is valid in principle, is the processing of PNR data permitted even though the automatic hits do not have to be checked by a person?”

Where the Austrian PNR Act goes beyond the Directive, epicenter.works suggests that the Court should request the Constitutional Court to repeal certain provisions.

The Austrian PNR Act goes further than the Directive

According to the PNR Directive, PNR data may only be processed for the purpose of prosecuting terrorist offences and certain serious criminal offences. These serious crimes are listed in an annex to the Austrian PNR Act, which are directly translated from the PNR Directive. However, some of these crimes do not have an equivalent crime in Austrian law, leaving the entire provision unclear. Because of this flaw, the complaint asks the Constitutional Court to repeal this provision of the PNR Act. The list of terrorist offences in the PNR Act also goes much further than the Directive.

The PNR Directive only requires EU Member States to record flights to or from third countries, leaving the recording of intra-EU flights optional for Member States. Many countries have also extended this to domestic flights. In Austria, the Minister of the Interior can do this by decree without giving any specific reason. The complaint suggests that the Constitutional Court should delete this provision, because it has a strong impact on the fundamental rights of millions of people — without any justification of its necessity or proportionality.

Finally, the PNR Act also provides for the possibility for customs authorities and even the military to have access to PNR data. This is neither provided for in the PNR Directive, nor necessary for the prosecution of alleged terrorist and those suspected of serious crimes, and therefore it’s an excessive measure. Here, too, the complaint suggests that the Constitutional Court should delete the provisions that give these authorities access to PNR data.

epicenter.works
https://en.epicenter.works/

Our PNR complaint to the Federal Administrative Court
https://en.epicenter.works/content/our-pnr-complaint-to-the-federal-administrative-court

PNR: EU Court rules that draft EU/Canada air passenger data deal is unacceptable (26.07.2017)
https://edri.org/pnr-eu-court-rules-draft-eu-canada-air-passenger-data-deal-is-unacceptable/

Why EU passenger surveillance fails its purpose (25.09.2019)
https://edri.org/why-eu-passenger-surveillance-fails-its-purpose/

Passenger surveillance brought before courts in Germany and Austria (22.05.2019)
https://edri.org/passenger-surveillance-brought-before-courts-in-germany-and-austria/

(Contribution by EDRi member epicenter.works, Austria)