EU-US PNR agreement found incompatible with human rights

By EDRi · June 29, 2011

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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

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

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)

Observatory on the exchange of data on passengers (PNR) with USA

Air passenger data plans in US-EU agreement are illegal, say lawyers

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)