Opinion 1/15 EU-Canada PNR Agreement

On 26 July 2017, the Court of Justice (Grand Chamber) delivered its opinion on the agreement envisaged between the EU and Canada on the transfer of Passenger Name Record data (PNR agreement). It is to be noted that this is the first time the Court has been called upon to give a ruling on the compatibility of a draft international agreement with the EU Charter of Fundamental Rights.

The PNR agreement was signed in 2014. The Council of the European Union requested the European Parliament’s approval of the agreement, and the European Parliament decided to refer the matter to the CJEU in order to ascertain whether the envisaged agreement was compatible with EU law and, in particular, with provisions relating to respect for private life and the protection of personal data.

The envisaged agreement permits the systematic and continuous transfer of PNR data of all air passengers to a Canadian authority with a view to that data being used and retained, and possibly transferred subsequently to other authorities and to other non-member countries, for the purpose of combating terrorism and forms of serious transnational crime. To that end, the envisaged agreement, amongst other things, provides for a data storage period of five years and lays down requirements in relation to PNR data security and integrity, immediate masking of sensitive data, rights of access to and correction and erasure of data, and for the possibility of administrative and judicial redress.

The Court found that the PNR agreement may not be concluded in its current form because several of its provisions are incompatible with the fundamental rights recognised by the EU.

The Court first held that the envisaged agreement entails an interference with the fundamental right to respect for private life and to the protection of personal data.

The Court then examines whether those interferences can be justified. It observed, in this respect, that the interferences in question are justified by the pursuit of an objective of general interest, namely to ensure public security in the context of the fight against terrorist offences and serious transnational crime, and that the transfer of PNR data to Canada and its subsequent processing is appropriate for the purposes of ensuring that that objective is achieved.

However, as regards the necessity of those interferences, the Court considered that several provisions of the envisaged agreement are not limited to what is strictly necessary and do not lay down clear and precise rules. In particular, the Court found that the provisions of the agreement on the transfer of sensitive data to Canada and on the processing and retention of that data were incompatible with fundamental rights. Similarly, the Court found that the continued storage of the PNR data of all air passengers after their departure from Canada which the envisaged agreement permits is not limited to what is strictly necessary.

The Court also considered that other provisions of the envisaged agreement are incompatible with fundamental rights unless the agreement is revised in order to better delimit and define the interferences.

Since the interferences which the envisaged agreement entails are not all limited to what is strictly necessary and are therefore not entirely justified, the Court concluded that the envisaged agreement may not be concluded in its current form.

Lastly, it should be noted that the European Parliament also wished to know whether the legal basis for the envisaged agreement must be Article 82 TFEU and Article 87 TFEU (judicial cooperation in criminal matters and police cooperation) or Article 16 TFEU (protection of personal data). In this connection, the Court stated that the agreement must be concluded both on the basis of Article16 TFEU and Article 87 TFEU.