The Advocate General is set to publish his opinion on the
decisions today, advising the European Court of Justice on how he
feels Europe’s top court should approach the dispute between MEPs,
the Commission and the Council.
Background
Airlines operating passenger flights to, from or through the US
have been transferring passenger data contained in their
reservation and departure control systems to US Customs since March
2003, in order to comply with US anti-terror requirements.
The EU and the US began negotiating to agree matters formally,
but faced criticism – not only because the US does not meet general
EU data protection requirements, but because the agreement setting
out the terms of the transfer was also found wanting.
The problem in Europe is that its Data Protection Directive of
1995 provides that personal data may only be transferred to third
countries if the specific country ensures an adequate level of
protection. The Commission decides which countries have adequate
laws but, to date, only a few countries – not including the US –
have met the criteria.
Nevertheless, on 14th May 2004, the Commission adopted a
decision (the adequacy decision) holding that the US Bureau of
Customs and Border Protection (CBP) offered a sufficient level of
protection for personal data transferred from the Community.
But the decision to make this adequacy finding was largely a
political one, and civil liberties groups and the European
Parliament took issue, arguing that the decision, and the
international agreement upon which the finding was made, did not
provide sufficient protection, in terms of EU law, for European
passengers travelling to the US.
MEPs sought a judicial ruling on the agreement, but before this
could be heard, the Council of Ministers adopted a decision
approving the conclusion of the agreement with the US. This was
signed a few weeks later, rendering the Parliamentary court
referral redundant.
MEPs were furious at what they saw as the bypassing of the
Parliament, and filed suit against the Council and the Commission,
seeking an annulment of both decisions.
Advocate General Léger has now issued his opinion on the
decisions. While he did not accept MEPs' arguments about the
procedure for consulting the Parliament or infringement of the
right to respect for private life, he still found that the
decisions should be annulled.
The Advocate General's opinion is highly influential and usually
followed by the Court.
The Adequacy Decision
According to the Advocate General, the adequacy decision is not
validly based in EU law, because the Commission was not empowered
by the Directive on which it was relying – the Data Protection
Directive – to make such a decision.
The Data Protection Directive, he says, does not apply to the
processing of personal data undertaken in pursuance of activities
that do not fall within the scope of Community law, particularly
the processing of such data for such matters as public security and
the activities of the State in relation to areas of criminal
law.
In this case, he says, the consultation of air passengers’ data,
and those data being put at the disposal of, and used by, the CBP,
constitutes the processing of personal data concerning public
security and the activities of the State in relation to areas of
criminal law.
Such activity is therefore outside the scope of the
Directive
The Council’s decision
The supposed legal basis for the Council decision, says the
Advocate General, is Article 95 of the EC Treaty, which concerns
the adoption of measures for approximating the legal, regulatory
and administrative provisions of Member States which have as their
object the establishment and functioning of the internal
market.
However, on examining the aim and the content of the agreement
with the US, approved by the Council’s decision, the Advocate
General concludes that it simultaneously pursues two objectives:
the fight against terrorism and other serious crime and the
protection of personal data.
He therefore considers that Article 95 of the EC Treaty does not
constitute an appropriate legal basis for the Council’s decision
and proposes that the Court should annul it.
