EU-US passenger name record (PNR) deal - where now?

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On Wednesday 21 April the European Parliament voted to refer the proposed EU-US deal to formalise the handing over of passenger details to the European Court of Justice for its Opinion: see: Report on vote

A US official told that the US is not going to stop requesting airlines to transfer data and that the Parliament's vote is detrimental to airlines, which are left in a limbo transferring passenger data without a proper legal basis. He said: "the US and the Commission have come to an agreement on airline passenger data that protects the security and privacy of all travellers, Europeans as well as Americans. We regret the Parliament narrowly decided to refer the agreement to ECJ in an advisory vote. The US will continue to work with the Commission and the Irish Council Presidency to implement the agreement".

However, the issue is not that simple as the court's Opinion will be binding. The parliament are requesting an opinion by the Court of Justice according to Article 300(6) EC Treaty. This article contains a specific provision on the right of the European institutions and the member states to refer an "envisaged" international agreement to the court in order for the court to determine if the agreement would be "compatible with the provisions of this treaty", that is, lawful under Community law (Under the Nice Treaty the parliament got equal rights with the other institutions and the member states to request such an opinion).

The rationale behind the provision is that things tend to become complicated from the point of view of international law, if an international agreement has been concluded by two or more parties, one of which subsequently declares that it cannot be lawfully bound by the agreement.

Therefore, concluding the agreement without waiting for the court's opinion could place both the Council and the European Commission in an embarrassing position. If the Council takes the decision to conclude the agreement before the court had delivered its opinion, then the European Parliament could challenge that decision under Article 230 EC - and if the agreement is deemed incompatible with Community law - it would be a legal nightmare.

Sor full background see Statewatch's: Observatory

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