Case A-1/15, The Canada-EU ‘PNR’ Agreement – contrary to the EU Charter?

Canada and the EU have negotiated a new Passenger Name Record Agreement. A plank of the Agreement involves the transfer and processing of data. The European Parliament is asking the CJEU for a legal opinion on the compatibility of that Agreement with the EU Charter.

After the CJEU’s judgment in Case C-293/12, Digital Rights Ireland, which declared the EU’s Data Retention Directive to be invalid, the European Parliament has requested a legal opinion from the CJEU about the new Passenger Name Record Agreement which the EU has negotiated with Canada.

According to a Resolution of the European Parliament dated 25 November 2014, the opinion is to centre on whether this Agreement complies with various provisions of EU law and the EU Charter.

Of particular concern to the European Parliament is the Agreement’s compatibility with Articles 7, 8 and 52(1) of the EU Charter as regards the right of individuals to protection of personal data. The European Parliament also queries the choice of legal basis of the Agreement, namely Articles 82(1)(d) and 87(2)(a) TFEU (police and judicial cooperation) rather than Article 16 TFEU (data protection).

Questions Referred
According to the Curia website, the European Parliament has asked:

1. Is the envisaged agreement [Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data][…] compatible with the provisions of the Treaties (Article 16 TFEU) and the Charter of Fundamental Rights of the European Union (Articles 7, 8 and Article 52(1)) as regards the right of individuals to protection of personal data?

2. Do Articles 82(1)(d) and 87(2)(a) TFEU constitute the appropriate legal basis for the act of the Council concluding the envisaged agreement or must that act be based on Article 16 TFEU?

Three years ago, concerns about privacy and the enforcement of intellectual property rights sparked a high-profile dispute between the EU Commission and EU Parliament. The EU Commission escalated the dispute by asking the CJEU for a legal opinion about the compatibility of the ACTA international trade agreement with the EU Charter; see further, Case A-001/12, ACTA – is an international IP law trade agreement compatible with EU law? In the end, the EU Commission withdrew its request before the CJEU had given its legal opinion, and ACTA was not implemented in the EU.

In contrast, the European Parliament’s request for the CJEU’s legal opinion in respect of the PNR Agreement is almost out of the public eye. Notwithstanding the fact that the EP decided to ask for the legal opinion in November 2014, the Curia website indicates this only arrived at the CJEU on 30 January 2015. It has also taken a further 10 weeks for the CJEU to publish the questions on its website.

In those intervening 10 weeks, the Grand Chamber of the CJEU has heard another ‘transfer and data processing’ case involving the EU Charter, Case C-362/14, Schrems – does a ‘safe harbour’ shelter states that deprive EU citizens of their EU Charter rights?

In a couple of days’ time, the CJEU’s Fourth Chamber will also hand down a quartet of judgments about privacy, passports and ID cards in Case C-447/12, Kooistra; Case C-446/12, Willems; Case C-448/12, Roest; and Case C-449/12, van Luijk.

Readers interested in international trade agreements and EU law more generally, might also look at Case T-754/14, Efler. This is a case which has been brought against the EU Commission about the ‘Stop TTIP’ citizens’ initiative. The case is now being heard by the EU’s General Court. According to the EUR-Lex website, Case T-754/14, Efler and Others concerns:

Form of order sought
The applicants claim that the Court should:
annul the Commission Decision of 10 September 2014 on the refusal to register the European Citizens’ Initiative ‘STOP TTIP’ — C (2014)6501;
order the Commission to pay the costs of the proceedings and the costs of any intervening party.

Pleas in law and main arguments
In support of the action, the applicants rely on two pleas in law.
First plea in law: By assuming that the proposed citizens’ initiative does not fall within its competence, the Commission infringed Article 11(4) TEU as well as Article 2(1) and Article 4(2)(b) of Regulation (EU) No 211/2011.[…]

The applicants submit in that regard that the Commission’s reasoning — that the intended recommendation to the Commission to withdraw the negotiating mandate for the ‘Transatlantic Trade and Investment Partnership’ (TTIP) is not directed at a ‘legal act’ within the meaning of Article 11(4) TFEU — is defective. For both the grant of the negotiating mandate and its withdrawal are decisions of the Council within the meaning of the fourth paragraph of Article 288 TFEU, which at the same time are ‘legal acts’ within the meaning of Article 11(4) TFEU.

The applicants further submit that the Commission’s additional reasoning — that the citizens’ initiative against the ‘Comprehensive Economic and Trade Agreement’ (CETA) and TTIP cannot require the Commission to refrain from recommending the Council to accept the respective negotiated international agreements, and also cannot require the Commission to recommend a decision on the non-acceptance of the respective negotiated agreements — is also defective. For it is in no way apparent from Article 11(4) TEU, Article 2(1) and Article 4(2)(b) of Regulation No 211/2011 that citizens’ initiatives directed at the abolition of existing legal acts or citizens’ initiatives directed at the non-adoption of proposed legal acts are to be inadmissible.

The applicants further submit that the non-registration of the ‘STOP-TTIP’ citizens’ initiative is also unlawful because, in any event, the proposed citizens’ initiative does not ‘manifestly’ fall outside the Commission’s competence in accordance with Article 4(2)(b) of Regulation No 211/2011.

Second plea in law: Infringement of the general principles of good administrative practice as provided for in Article 41 of the Charter of Fundamental Rights of the European Union and of equal treatment as provided for in Article 20 of the Charter

The applicant takes the view that, by refusing, in the applicant’s case, to register the citizens’ initiative directed against TTIP and CETA, although it previously registered a citizens’ initiative directed at the termination of the agreement with Switzerland on freedom of movement (‘Swiss-Out-Initiative’), the Commission did not observe those principles.

Update – 16 April 2015
Yesterday, the European Parliament debated the possibility of exchanging PNR data with Mexico.

Update – 1 May 2015
The issue of American companies, and the non-protection of EU privacy and data processing rights is also at stake in Case C-192/15, Rease – secretly spied on, medical data leaked, and left unprotected by the Dutch regulator.

Update – 6 March 2016
The Grand Chamber is due to hear the Canada-EU ‘PNR’ Agreement case on 5 April 2016.

Update – 12 August 2016
The Opinion of Advocate General Mengozzi is due to be given to the Grand Chamber on 8 September 2016.