By Kirsten Fiedler

The European Commission has released its plans for providing financial support to national security measures. These plans, despite the absence of a legal basis, privacy concerns and a pending EU Court of Justice (CJEU) decision, include the financing of a European mass surveillance measure: namely the long-term storage and exchange of citizens’ air travel data, Passenger Name Record (PNR).

In 2013, the European Commission made 50 million euro available to fund the development of a PNR system in Europe. This sum was split between 14 of the EU’s 28 Member States for projects aimed at “setting up national passenger information units”. Now the Commission continues to introduce surveillance by the back door and announces to provide support to harmonise and “facilitate the exchange” between the individual national systems it previously helped to develop.

However, no legislative measure that would provide a sound legal basis for this EU-wide system has been adopted. For more than four years, the EU has been trying to introduce a Directive with a draft launched by the Commission in 2011 and extensive discussions in three European Parliament committees. In 2013, the key committee (Civil Liberties Committee, LIBE) rejected the proposal because it considered its measures to be disproportionate and privacy invasive – and now it is back in the Parliament. Following political charades and a subsequent referral back to the LIBE committee, the Parliament is expected to vote on the draft proposal before the end of 2015.

In the meantime, the EU Commission continues to release funds for a measure which has been considered in breach of fundamental rights by various bodies, including the European Data Protection Supervisor and the Fundamental Rights Agency.

The Commission’s 2013 grants for national systems contributed to a disharmony of the single market, instead of harmonising it. After releasing this first batch of money, the Commission argued that the development of the PNR system had nothing to do with the ongoing legislative discussions. Now, after having tried to use this fragmentation as a means to advance negotiations on the Directive, it moves on to resolve the problem it helped to create, by facilitating information exchange between the national systems – which is one of the main goals of the draft Directive. In this context, it would be interesting to hear the Commission’s justification of the new grant, as a selection criterion states that applicants must be able to demonstrate a “European added value of the proposed action”. The Parliament might soon be forced to recognise a fait accompli.

European Commission Annual Work Programme for 2015 for support to Union Actions under the Internal Security Fund, 8 June 2015
http://ec.europa.eu/dgs/home-affairs/financing/fundings/security-and-safeguarding-liberties/internal-security-fund-police/union-actions/docs/awp_2015_isf_p_en.pdf

European Commission funds for national PNR systems, action grants 2012
http://ec.europa.eu/dgs/home-affairs/financing/fundings/security-and-safeguarding-liberties/prevention-of-and-fight-against-crime/calls/call-2012/pnr-targeted-call/docs/pnr_call_for_proposals_2012_final_en.pdf

Civil Liberties Committee rejects EU Passenger Name records proposal http://www.europarl.europa.eu/news/en/news-room/content/20130422IPR07523/html/Civil-Liberties-Committee-rejects-EU-Passenger-Name-Record-proposal

PNR is back in the European Parliament
https://edri.org/pnr-back-in-the-ep/

Timeline of the proposal for A Directive on the retention and use of PNR data
https://edri.org/surveillance-of-air-passengers-letter-to-parliamentarians/

The proposed EU passenger name records (PNR) directive Revived in the new security context
http://www.europarl.europa.eu/EPRS/EPRS-Briefing-554215-The-EU-PNR-Proposal-FINAL.pdf

(Contribution by Kirsten Fiedler, EDRi)

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