Tag Archives: EU-Canada PNR

Analysis of the AG Opinion in the “PNR Canada” Case: unlocking an “unprecedented and delicate” matter

AG Mengozzi delivered his Opinion in the EU-Canada PNR case (Opinion 1/15) on 8 September 2016. While his conclusions clearly indicate that, in part, the current form of the agreement between Canada and the EU “on the transfer and processing of Passenger Name Record data” is not compliant with EU primary law – and in particular with Articles 7, 8 and 52(1) of the Charter[1] and Article 16(2) TFEU[2], the AG seems to accept that PNR schemes in general (involving indiscriminate targeting, profiling, preemptive policing) are compatible with fundamental rights in the EU.

In summary, it seems to me that the AG’s message is: “if you do it unambiguously and transparently, under independent supervision, and without sensitive data, you can process PNR data of all travellers, creating profiles and targeting persons matching patterns of suspicious behaviour”.

This is problematic for the effectiveness of the right to the protection of personal data and the right to respect for private life. Even though the AG agrees that the scrutiny of an international agreement such as the EU-Canada PNR Agreement should not be looser than that of an ordinary adequacy decision or that of an EU Directive, and considers that both Schrems and Digital Rights Ireland should apply in this case, he doesn’t apply in all instances the rigorous scrutiny the Court uses in those two landmark judgments. One significant way in which he is doing this is by enriching the ‘strict necessity test’ so that it comprises a “fair balance” criterion and an “equivalent effectiveness” threshold (See Section 5).

On another hand, AG Mengozzi is quite strict with the safeguards he sees as essential in order to make PNR agreements such as the one in this case compatible with fundamental rights in the EU.

Data protection authorities have warned time and again that PNR schemes are not strictly necessary to fight terrorism, serious and transnational crimes – they are too invasive and their effectiveness has not yet been proven. The European Data Protection Supervisor – the independent advisor of the EU institutions on all legislation concerning processing of personal data, has issued a long series of Opinions on PNR schemes – be it in the form of international agreements on data transfers, adequacy decisions or EU legislation, always questioning their necessity and proportionality[3]. In the latest Opinion from this series, on the EU PNR Directive, the EDPS clearly states that the non-targeted and bulk collection and processing of data of the PNR scheme amount to a measure of general surveillance” (§63) and in the lack of appropriate and unambiguous evidence that such a scheme is necessary, the PNR scheme is not compliant with Articles 7, 8 and 52 of the Charter, Article 16 TFEU and Article 8 ECHR (§64).

The Article 29 Working Party also has a long tradition in questioning the idea itself of a PNR system. A good reflection of this is Opinion 7/2010, where the WP states that “the usefulness of large-scale profiling on the basis of passenger data must be questioned thoroughly, based on both scientific elements and recent studies” (p. 4) and declares that it is not satisfied with the evidence for the necessity of such systems.

The European Parliament suspended the procedure to conclude the Agreement and decided to use one of its new powers granted by the Treaty of Lisbon and asked the CJEU to issue an Opinion on the compliance of the Agreement with EU primary law (TFEU and the Charter).

Having the CJEU finally look at PNR schemes is a matter of great interest for all EU travellers, and not only them. Especially at a time like this, when it feels like surveillance is served to the people by states all over the world – from liberal democracies to authoritarian states, as an acceptable social norm.

General remarks: first-timers and wide implications

The AG acknowledges in the introductory part of the Opinion that the questions this case brought before the Court are “unprecedented and delicate” (§5). In fact, the AG observes later on in the Opinion that the “methods” applied to PNR data, once transferred, in order to identify individuals on the basis of patterns of behavior of concern are not at all provided for in the agreement and “seem to be entirely at the discretion of the Canadian authorities” (§164). This is why the AG states that one of the greatest difficulties of this case is that it “entails ascertaining … not merely what the agreement envisaged makes provision for, but also, and above all, what it has failed to make provision for” (§164).

The AG also makes it clear in the beginning of the Opinion that the outcome of this case has implications on the other “PNR” international agreements the EU concluded with Australia and the US and on the EU PNR Directive (§4). A straightforward example of a possible impact on these other international agreements, beyond analyzing their content, is the finding that the legal basis on which they were adopted is incomplete (they must be also based on Article 16 TFEU) and wrong (Article 82(1)(d) TFEU on judicial cooperation is incompatible as legal basis with PNR agreements).

The implications are even wider than the AG acknowledged. For instance, a legal instrument that could be impacted is the EU-US Umbrella Agreement – another international agreement on transfers of personal data from the EU to the US in the law enforcement area, which has both similarities and differences compared to the PNR agreements. In addition, an immediately affected legal process will be the negotiations that the European Commission is currently undertaking with Mexico for a PNR Agreement.

Even if it is not an international agreement, the adequacy decision based on the EU-US Privacy Shield deal could be impacted as well, especially with regard to the findings on the independence of the supervisory authority in the third country where data are transferred (See Section 6 for more on this topic).

Finally, the AG also mentions that this case allows the Court to “break the ice” in two matters:

  • It will examine for the first time the scope of Article 16(2) TFEU (§6) and
  • rule for the first time on the compatibility of a draft international agreement with the fundamental rights enshrined in the Charter, and more particularly with those in Article 7 and Article 8 (§7).

Therefore, the complexity and novelty of this case are considerable. And they are also a good opportunity for the CJEU to create solid precedents in such delicate matters.

I structured this post around the main ideas I found notable to look at and summarize, after reading the 328-paragraphs long Opinion. In order to make it easier to read, I’ve split it into 6 Sections, which you can find following the links below.

  1. De-mystifying Article 16 TFEU: yes, it is an appropriate legal basis for international agreements on transfers of personal data
  2. A look at the surface: it is not an adequacy decision, but it establishes adequacy
  3. An interference of “a not insignificant gravity”: systematic, transforming all passengers into potential suspects and amounting to preemptive policing
  4. Innovative thinking: Article 8(2) + Article 52(1) = conditions for justification of interference with Article 8(1)
  5. The awkward two level necessity test that convinced the AG the PNR scheme is acceptable
  6. The list of reasons why the Agreement is incompatible with the Charter and the Treaty

……………………………………………………….

[1] Article 7 – the right to respect for private life, Article 8 – the right to the protection of personal data, Article 52(1) – limitations of the exercise of fundamental rights.

[2] With regard to the obligation to have independent supervision of processing of personal data.

[3] See the latest one, Opinion 5/2015 on the EU PNR Directive and see the Opinion on the EU-Canada draft agreement.

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Section 5. The awkward two level necessity test that convinced the AG PNR schemes are acceptable

(Section 5 of the Analysis of the AG Opinion in the “PNR Canada” Case: unlocking an “unprecedented and delicate” matter)

After he establishes that the Court should carry out “a strict review of compliance with the requirements resulting from the principle of proportionality, and more particularly, from the adequacy of the level of protection of the fundamental rights guaranteed in the Union when Canada processes and uses the PNR data pursuant to the agreement envisaged” (§200), the AG further assesses if the interference is “strictly necessary”.

He considers the “strict necessity” test as a component of the proportionality test, together with “the ability of the interference to achieve the ‘public security’ objective pursued by the Agreement”.

With regard to the latter criterion, the AG does not believe “there are any real obstacles to recognising that the interference constituted by the agreement envisaged is capable of attaining the objective of public security, in particular the objective of combating terrorism and serious transnational crime” (§205). “As the United Kingdom Government and the Commission, in particular, have claimed, the transfer of PNR data for analysis and retention provides the Canadian authorities with additional opportunities to identify passengers, hitherto not known and not suspected, who might have connections with other persons and/or passengers involved in a terrorist network or participating in serious transnational criminal activities” (§205).

In addition, the AG finds the statistics provided by the Commission and the UK relevant to find that “the data constitutes a valuable tool for criminal investigations” (§205). He reaches this conclusion in spite of the fact that at §151, when summarizing the contributions of the parties before the Court, the AG recalls that “The Commission accepts that there are no precise statistics indicating the contribution which PNR data makes to the prevention and detection of crime and terrorism, and to the investigation and prosecution of offences of those types.”

With regard to the strict necessity of the interference, the AG establishes that its assessment “entails ascertaining whether the contracting parties have struck a ‘fair balance’ between the objective of combating terrorism and serious transnational crime and the objective of protecting personal data and respecting the private life of the persons concerned” (§207), by making a reference to §77 of the Schecke judgment. That paragraph in Schecke seems to me to establish a different principle – namely that, when balancing two opposing rights, one of which is the right to the protection of personal data, it must be taken into account that “derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary”[1].

Notwithstanding, the AG follows by stating that “the terms of the agreement envisaged must also consist of the measures least harmful to the rights recognised by Articles 7 and 8 of the Charter, while making an effective contribution to the public security objective pursued by the agreement envisaged” (§208). He explains:

“That means that it is not sufficient to imagine, in the abstract, the existence of alternative measures that would be less intrusive in the fundamental rights at issue. Those alternative measures must also be sufficiently effective, that is to say, their effectiveness must, in my view, be comparable with those provided for in the agreement envisaged, in order to attain the public security objective pursued by that agreement” (§208).

In quite a big leap, AG Mengozzi relies for this twofold test for necessity on a paragraph in the Schwartz judgment, §53, which states that “the Court has not been made aware of any measures which would be both sufficiently effective in helping to achieve the aim of protecting against the fraudulent use of passports and less of a threat to the rights recognised by Articles 7 and 8 of the Charter than the measures deriving from the method based on the use of fingerprints.”

This twofold test is not used in any of the most recent landmark judgments of the Court – DRI, which relies greatly on the analysis of the condition of “necessity”, and Schrems. However, looking at strict necessity through this lens of proportionality and equivalent effectiveness persuaded the AG to conclude that PNR schemes, even if they constitute the kind of interference he accurately described in §176, are acceptable.

Comparing the wealth of PNR data to data collected usually for border control purposes by immigration authorities, including Advance Passenger Information and information collected by Canadian authorities for their eVA program, the AG concluded that “data of that type (API, eVA – my note) does not reveal information about the booking methods, payment methods used and travel habits, the cross-checking of which can be useful for the purposes of combating terrorism and other serious transnational criminal activities. Independently of the methods used to process that data, the API and the data required for the issue of an eVA are therefore not sufficient to attain with comparable effectiveness the public security objective pursued by the agreement envisaged” (§214).

The AG further justifies that PNR data of all passengers are transferred to the Canadian authorities, “even though there is no indication that their conduct may have a connection with terrorism or serious transnational crime” (215) by arguing that “as the interested parties have explained, the actual interest of PNR schemes, whether they are adopted unilaterally or form the subject matter of an international agreement, is specifically to guarantee the bulk transfer of data that will allow the competent authorities to identify, with the assistance of automated processing and scenario tools or predetermined assessment criteria, individuals not known to the law enforcement services who may nonetheless present an ‘interest’ or a risk to public security and who are therefore liable to be subjected subsequently to more thorough individual checks” (§216).

He finds at §244, referring to the fact that the Agreement involves transfers of data of all passengers between the Union and Canada, irrespective of whether they are suspects or not, that no other measure which, while limiting the number of persons whose PNR data is automatically processed by the Canadian competent authority, would be capable of attaining with comparable effectiveness the public security aim pursued by the contracting parties has been brought to the Court’s attention in the context of the present proceedings”.

The AG therefore concluded that “generally, the scope ratione personae of the agreement envisaged cannot be limited further without harming the very object of the PNR regimes” (§245).

Another characteristic of PNR schemes that is generally considered questionable – the lack of an ex ante control of access to PNR data, is found justifiable by the AG in the light of the “fair balance” test for strict necessity: “the appropriate balance that must be struck between the effective pursuit of the fight against terrorism and serious transnational crime and respect for a high level of protection of the personal data of the passengers concerned does not necessarily require that a prior control of access to the PNR data must be envisaged” (§269).

Therefore, the idea of PNR schemes seems to be compatible with the fundamental rights to data protection and respect for private life, in the view of AG Mengozzi. However, the list of conditions he develops for the Agreement in the current case to be fully compliant with EU primary law is quite long and quite strict and it bears bad news for other similar arrangements.

 

……………………………………………

[1] §77 of Schecke states this: “It is thus necessary to determine whether the Council of the European Union and the Commission balanced the European Union’s interest in guaranteeing the transparency of its acts and ensuring the best use of public funds against the interference with the right of the beneficiaries concerned to respect for their private life in general and to the protection of their personal data in particular. The Court has held in this respect that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Satakunnan Markkinapörssi and Satamedia, paragraph 56).”

Section 6. The list of reasons why the EU-Canada PNR Agreement is incompatible with the Charter and the Treaty

(Section 6 of the Analysis of the AG Opinion in the “PNR Canada” Case: unlocking an “unprecedented and delicate” matter)

AG Mengozzi divides his Conclusions on the compatibility of the EU-Canada PNR Agreement with EU primary law into two lists.

The first list contains 11 improvements that can be made in order for the Agreement to be compliant with Articles 7, 8 and 52(1) of the Charter and Article 16 TFEU (see paragraph 2 of the Conclusions)

A. Sensitive data must be outside the scope of PNR schemes

Notably, sensitive data must be excluded from the scope of the Agreement. The AG found that the Agreement “goes beyond what is strictly necessary by including in its scope the transfer of PNR data that is apt to contain sensitive data, which in material terms allows information about the health or ethnic origin or religious beliefs of the passenger concerned and and/or of those travelling with him to be disclosed” (§221). He follows by stating that “the risk of stigmatising a large number of individuals who are not suspected of any offence which the use of such sensitive data entails strikes me as particularly worrying and prompts me to propose that the Court should exclude data of that type from the scope of the agreement envisaged” (§222).

B. Transparency requirements

In addition, the agreement should expressly specify “the principles and rules applicable to both the pre-established scenarios or assessment criteria and the databases with which the Passenger Name Record data is compared in the context of the automated processing of that data, in such a way that the number of ‘targeted’ persons can be limited, to a large extent and in a non-discriminatory manner, to those who can be reasonably suspected of participating in a terrorist offence or serious transnational crime” (4th subparagraph of §2 of the Conclusions).

C. Article 8(3) of the Charter on independent supervision, fully applicable in the light of “essentially equivalence”

Another important condition to achieve compliance with EU primary law is that the agreement must systematically ensure “by a clear and precise rule, control by an independent authority, within the meaning of Article 8(3) of the Charter of Fundamental Rights of the European Union, of respect for the private life and protection of the personal data of passengers whose Passenger Name Record data is processed” (10th subparagraph of §2 of the Conclusions).

In this regard, the AG found that “control by an independent authority, required in particular by Article 8(3) of the Charter, is fully applicable in the present case” (§310), in the light of the fact that the intention of the contracting parties is “to ensure a level of protection that is intended to be ‘substantially equivalent’ to that which individuals would enjoy if their personal data were processed and retained within the Union” (§309).

The AG further found that the “independent supervision” condition is not fully complied with because of the alternative wording of Article 10(1) of the agreement, which gives the impression that the processing of PNR data by the Canadian authorities might also be wholly assumed by the ‘authority created by administrative means that exercises its functions in an impartial manner and that has a proven record of autonomy’ – the Recourse Directorate of the Canadian authority receiving the data, instead of the Privacy Commissioner of Canada (§314).

While nobody questioned the independence of the Privacy Commissioner (§312), the AG found that “irrespective of the guarantees … from the Mission of Canada to the European Union, according to which the Recourse Directorate of the CBSA will receive no directions from the other operational bodies of the latter, that directorate, like all the other bodies of the CBSA, continues to be directly subordinate to the responsible Minister, from whom it may receive directions. Since it is liable to be subject to influence of, in particular, a political nature on the part of the authority to which it is responsible or more generally the Executive, the Recourse Directorate of the CBSA cannot be regarded as an independent supervisory authority for the purposes of Article 8(3) of the Charter” (§315).

This finding, if upheld by the Court, is perhaps the most relevant one that could apply, mutatis mutandis, to an eventual challenge of the EU-US Privacy Shield arrangement, in particular with regard to the independence of the Ombudsman.

D. It must be possible that data subjects exercise their rights from the EU

 Another notable improvement that must be done in order for the Agreement to be compliant with EU primary law is that it should make clear that “requests for access, rectification and annotation made by passengers not present on Canadian territory may be submitted, either directly or by means of an administrative appeal, to an independent public authority” (last subparagraph of §2 of the Conclusions).

The second list of the Conclusions contains 5 reasons why the Agreement is incompatible with EU primary law (§3 of the Conclusions):

  1. “Article 3(5) of the agreement envisaged allows, beyond what is strictly necessary, the possibilities of processing Passenger Name Record data to be extended, independently of the purpose, stated in Article 3 of that agreement, of preventing and detecting terrorist offences and serious transnational crime”;

The AG found that according to that article, “the processing of PNR data is ‘also’ permitted, on a case-by-case basis, in order to comply with the subpoena or warrant issued, or an order made, by a court, although it is not stated that that court must be acting in the context of the purposes of the agreement envisaged. That article therefore appears to allow the processing of PNR data for purposes unconnected with those pursued by the agreement envisaged and/or possibly in connection with conduct or offences not coming within the scope of that agreement” (§236).

  1. Article 8 of the agreement envisaged provides for the processing, use and retention by Canada of Passenger Name Record data containing sensitive data;
  2. Article 12(3) of the agreement envisaged confers on Canada, beyond what is strictly necessary, the right to make disclosure of information subject to reasonable legal requirements and limitations;

Paragraph 3 of that article extends the possibilities of access to the PNR data and information extracted from it “to anyone, without any specific guarantees being laid down” (§293). “Article 12(3) of the agreement envisaged authorises Canada to ‘make any disclosure of information subject to reasonable legal requirements and limitations …, with due regard for the legitimate interests of the individual concerned’. However, neither the recipients of that ‘information’ nor the use to which it is put is defined in the agreement envisaged. It is therefore quite possible that that information may be communicated to any natural or legal person, such as a bank, for example, provided that Canada considers that the disclosure of such information does not exceed ‘reasonable’ legal requirements, which, moreover, are not defined in the agreement envisaged” (§293).

  1. Article 16(5) of the agreement envisaged authorises Canada to retain Passenger Name Record data for up to five years for, in particular, any specific action, review, investigation or judicial proceedings, without a requirement for any connection with the purpose, stated in Article 3 of that agreement, of preventing and detecting terrorist offences and serious transnational crime;

The AG criticized that pursuant to Article 16(5) of the Agreement “sensitive data of a Union citizen who has taken a flight to Canada is liable to be retained for five years (and, where appropriate, unmasked and analysed during that period) by any Canadian public authority, for any ‘action’ or ‘investigation’ or ‘judicial proceeding’, without being in any way connected to the objective pursued by the agreement envisaged, for example, as the Parliament has pointed out, in the event of proceedings related to contract law or family law. The possibility that such a situation will arise prompts the conclusion that on this point the contracting parties have not struck a fair balance between the objectives pursued by the agreement envisaged” (§224).

  1. Article 19 of the agreement envisaged allows Passenger Name Record data to be transferred to a public authority in a third country without the Canadian competent authority, subject to control by an independent authority, first being satisfied that the public authority in the third country in question to which the data is transferred cannot itself subsequently communicate the data to another body, where relevant, in another third country. (For the relevant analysis, see §300 to §304 of the Opinion).