New PNR Agreement published

The new passenger name record (PNR) between the EU and the USA has been published.

This new agreement follows the annulment of the old PNR Agreement with the USA by the Court of Justice in Joined Cases C-317/04 and C-318/04 European Parliament v. Council and Commission and its denunciation. The judgment was noted here and Professor Bignami's comment can be found here.

As for the new agreement, Council Decision 2006/729/CFSP/JHA of October 16th 2006 authorizing the President of the Council to sign it has been published here. The text of the actual agreement is here.

Also published is a letter from the Department of Homeland Security to the Council Presidency concerning the interpretation of the agreement and its reply.

Here's a statement by Micheal Chertoff on the new PNR agreement. But where's the new agreement itself ?

Comments

[Philippe]

Here it is :

http://www.statewatch.org/news/2006/oct/eu-usa-pnr-coun-new-agreement.pdf

(but i don't know if it was published in the official journal)

Retrospectively, I m quite amazed they thought they could base this on Article 95 EC ...

Cheers !

ph.

[Bartolus]

Thanks Philippe !
The agreement is actually published on the EU's OJ now. What the question posed meant to ask was where it was to be found on the DHS website.
As for the Article 95 EC issue, there is a school of thought according to which the ECJ's judgment is just wrong. After all, the data involved is held in the EU by private persons (the airlines) and processed/sent to a public authority outside the EU (the DHS in the US). Consequently, it comes within the ambit of the Directive and could be covered by its Article 13 provided there was a statutory scheme for the processing. The ECJ simply ignored that. Well, it does not matter now.

[Philippe]

Many thx for your reply Bartolus.

I m sorry for the misunderstanding (i skim more than i read... bad me).

As you said, it does not matter now but, let me just precise that I was mentioning the decision concerning the agreement, for which the Court adopted quite a straightforward motivation.
The decision of adequacy you may have thought of (I m not sure), if it had been within the scope of the directive, had obviously to be based on it. In that respect, it is quite clear (to me only?) that the Court is right to consider that the process of PNR (by the US and not the airlines companies !) is an operation concerning public security, which as such was outside the scope of the directive.

Concerning the decision to conclude the EU-US agreement (which was based on 95 EC), I can only relate your argument to the one made by the council : "if our internal legislation (the directive) is based on article 95, so should be our external relations instruments" (the Commission's argument being more technical and far-fetched). This cannot work, since "according to settled case-law, the legal basis for an act must be determined having regard to its own aim and content and not to the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics (Case C-178/03, Commission v Parliament and Council, nyr, par. 55 and Case C-187/93 Parliament v Council [1994] ECR I-2857, par. 28)". I happened to notice this in the field of social law. Consequently, like the parliament, i really cannot understand why they chose article 95 as i do not see how this agreement removed the barriers to trade, or the establishment and functioning of the internal market... This agreement looks much more normal to me with its current CFSP basis in the EU treaty.

The judgement in question is perfectly sound with respect to the question of competence.

Cheers !

ph

[vb keyder]

Query: EU has no legal personality and cannot therefore sign an international agreement. Member states must individually ratify this as international agreement. Agreement violates EC law, specifically Personal Data Directive (is anyone involved actually thinking data will be protected?). Will Commission bring member states to ECJ for violation and if found, fine them for each day it is in effect?

[Philippe]

Hello VB Keyder,

You should read the decision itself and its legal basis, which is article 34 EU, introduced by Amsterdam. The wording of the latter article is the recognition of a legal personality to the Union. It is moreover clear in that article that the agreement binds both the MS and the institutions of the Union.
There are plenty of examples of treaties concluded by the EU in which the EU is considered as a party in its own right. See Lenaerts and Van Nuffel, Constitutional law of the European Union. (It's always a good advice to read the text of the legal basis itself.)

Moreover, I don't not share your view on the compatibility of the agreement with the directive, since, as i said, it does not enter its scope. But I may agree that it should be submitted to a review on the basis of fundamental rights.

Here you go!

ph

[Bartolus]

Well, these are great comments !
On the matter of the EU's legal personnality, there is a good post over at "Opinion Juris" (http://www.opiniojuris.org/) by Duncan Hollis on that very topic. Here is a link to it :
http://www.opiniojuris.org/posts/1161293655.shtml

[Martyna]

Take care of it and keep it on the road!
Good luck

[Dawid]

Thank you for your site
Good luck

[Jennie]

Cool!.. Nice work...
Good luck

[Simon]

I glad too see this interest site, I tell my friends about it! They like sites like that: site

[Ambrose]

I have been looking for sites like this for a long time. Thank you!

[Brygida]

It was a great pleasure for me to visit and enjoy your site. Keep it running!

[Apolonia]

Excellent site - do keep up the good work.

[male]

Well well well... Not bad, not bad... Can better? ;)

[Klementyna]

Hi! Very interesting!

[Joachim]

Hello good design. Very nice.

[Szczepan]

Lets go now!

[Severin]

Jade will say they didn’t choose

[Zofia]

Best site.

[Peter]

ah non c bon

[Sylvester]

Your work is marvelous!!

[Zachariasz]

I like it and the background and colors make it easy to read.

[Balthasar]

un peu court mais pas mal du tout