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25th Sep 2022

Court casts doubt on EU's flight-data regime

  • Tuesday's court ruling could embolden further legal challenges in EU (Photo: Ray Swi-hymn)
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The European Court of Justice (ECJ) in Luxembourg has struck a blow against Europe's data-collection regime on flight passengers — in the name of civil liberties.

The EU passed its Passenger Name Record (PNR) law in 2016, forcing airlines to tell EU states details of who was flying into or inside Europe, including credit card information and phone numbers, in case these matched with people flagged as terrorist suspects in law-enforcement databases.

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The law was hotly-contested by privacy advocates at the time, while also being credited with helping to extend US visa waivers for EU travellers.

But Tuesday's (21 June) ruling said the way Belgium had interpreted the EU directive amounted to "undeniably serious interferences with the rights guaranteed in Articles 7 and 8 of the Charter [of Fundamental Rights — an EU accord]".

Belgium "seeks to introduce a surveillance regime that is continuous, untargetted and systematic, including the automated assessment of the personal data of everyone using air transport services," it added.

It said the PNR system should only be used subject to very strict conditions when it came to internal EU flights.

These included limiting its use to fight "terrorist offences and serious crime having an objective link ... with the carriage of passengers by air" — but not to combat irregular migration, for instance.

The ECJ judges said Belgium's PNR usage should "be open to effective review, either by a court or by an independent administrative body whose decision is binding".

It said authorities must demonstrate "a terrorist threat which is shown to be genuine and present or foreseeable" to use the full force of the regime.

They must also delete people's PNR data after six months unless they can demonstrate an "objective link" to their "terrorist offences or serious crime", the court added, while lamenting "the extremely high rate of false positives and errors" in Belgium's handling of its new powers over the past six years.

The case arose after the League of Human Rights (LHR), a Belgian branch of a German group, challenged the PNR regime in Belgium's constitutional court.

"This judgment undoubtedly calls into question our [Belgium's] law [on PNR]," Catherine Forget, the LHR's lawyer, who pleaded its case in Luxembourg, told EUobserver Tuesday.

"The ball is now in the court of the Constitutional Court," she added.

Forget described the verdict as a "victory" and said the Belgian tribunal will need to either amend Belgium's interpretation of the EU-wide PNR law, or scrap it altogether.

The precedent-setting EU court ruling would likely embolden anti-PNR challenges in other EU countries, she added.

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