PNR - Passenger data opinion shock

Advocate General Léger delivered his opinion in Cases C-317/04 and C-318/04. He concludes that the Court of Justice should annul the decisions of the Council and of the Commission on the transfer of passenger data to the US authorities.

That's quite an interesting twist in the plot. Even more interesting is the reason why he came to that conclusion.
First, he considers that Commission Decision 2004/535/EC on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection was wrongly based on Directive 95/46/EC because the processing of the data put at the disposal of the United States concerned public security and the activities of the state in relation to criminal law and the fight against terrorism. Processing data for such purposes is outside the scope of the protection afforded by Directive 95/46/EC according to its Article 3 § 2. As the Commission could not lawfully adopt Decision 2004/535/EC on the basis of article 25 § 6 of Directive 95/46/EC, the Advocate General recommends that it should be annulled by the Court.
So, the reasons the Advocate General puts forward are very different from those submitted by the European Parliament which brought the action.

Second, the Advocate General considered that Article 95 EC was not the proper basis for adopting Council Decision 2004/496/EC of May 17th, 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection and it too should be annulled by the Court. The reasoning was the same. The processing of the data pursuant to the agreement between the EC and the USA concerned the fight against terrorism and serious crime whereas Article 95 EC concerned the functioning of the internal market of the EC.

We'll have to wait for the Court's judgment of course.

What is a real shame is that the Opinion is not publicly available and all of the above is gleaned from the press release of the Court of Justice. Wow, does the Court consider that the release of the Advocate General's opinion constitutes the processing of personal data covered by Directive 95/46 ?

Comments

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the little differences. Eurosceptics like their bananas curved, while Europhiles