Are EU's plans regarding Passenger Name Record (PNR) system controversial?

More security for less liberty?

Abstract

The recent terrorist attacks in EU shocked its community, which already had fresh memories of them. Hence, a need for security question is raised. The ‘EU Passenger Name Record (PNR) system, which provides the storage and exchange of passenger data among EU member states and between member states and non-EU countries under specific agreements, came in the spotlight for once more. However, both the EU institutions and member states have to take international human rights and freedoms standards adequately into account. PNR system as a surveillance and control measure has a serious impact on the right to privacy and data protection. To date, the use of PNR data is not regulated at EU level. The establishment of an efficient and common EU PNR system seems to be the most urgent and important issue of the new measures ahead. Nevertheless, the so-called ‘EU PNR regime’ has been welcomed with contradicting opinions.

List of Abbreviations

API Advanced Passenger InformationAEA Association of European AirlinesECHR European Convention on Human RightsECtHR European Court of Human RightsECJ European Court of JusticeEU European UnionPNR Passenger Name RecordSIS Schengen Information SystemVIS Visa Information System

I. Introduction

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The need to fight terrorism on European grounds has become increasingly obvious after the recent attacks in France and Copenhagen, while the memories of the Madrid and London bombings are still alive. Moreover, Europol has investigated around 3,600 organized crime groups currently in the EU1. In the wake of the above-mentioned facts, the fight against terrorism and organized crime are principally national competences and does not know borders. Therefore, terrorism and organized crime are often associated with international travel and they have targeted European values and fundamental freedoms: freedom of speech, freedom of religion and tolerance and respect for differences. Also, they endanger peace as a goal and as a means of finding a solution for conflicts; in that, it poses a threat to the European way of life. Moreover, the contemporary digital environment builds a new space for unlawful behavior. In other words, it creates criminal activity, by enabling criminal groups to access a vast range of victims, allowing them to conduct their illegal acts in a very short period of time and, simultaneously on a much larger scale than ever before. The spread of the Internet and technological assets have caused important changes in crime areas, motivating criminal activity2.

It is entirely true that the immediate and urgent priority in EU level is to track down terrorists, avoid further attacks and fight serious crimes that affect many areas of the EU’s action and policies. The integrated approach guiding the actions of the EU extends from prevention to law enforcement. This is based essentially on an effective cooperation between the authorities of the Member States, and especially the law enforcement agencies, including the exchange of information and mutual assistance in commitments 3. One of the tools to achieve that, as far as the importance of data as a major source of information in today’s world is concerned, is the establishment of an EU PNR system. Travel information gathered by carriers is an important instrument for law enforcement authorities to impede, discover and investigate crime and prosecute those who committed unlawful activities. The EU approach promises more security by the protection of privacy and personal data. So, that is why European Union, while it is united in diversity, it is also united when it is facing any adversity.

On the other hand, there are opponents of the establishment of a EU PNR system regarding its influence on the rights to data protection and privacy. For instance, European Digital Rights vacillates between the favorable and obscure use of PNR in Europe. They support that the proposed system jeopardizes limiting primary rights, such as non-discrimination, the right to privacy and the protection of personal data (Article 8 of the Charter and Article 8 of the ECHR). Last but not least, they who worry about the Commission’s allegation that “PNR data is unverified information provided by passengers”, it seems to be convinced that these unconfirmed data provided by the traveller can be

1 https://www.europol.europa.eu/content/europol-identifies-3600-organised-crime-groups-active-eu-europol-report-warns-new-breed-crim2 ‘The rule of law on the internet and in the wider digital world’, Issue paper published by the Council of Europe Commissioner for Human Rights 3http://europa.eu/legislation_summaries/justice_freedom_security/ fight_against_organised_crime/index_en.htm

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used in real time “to prevent a crime, watch or arrest persons before a crime has been committed” 4 and to identify radicalized fighters, who have not committed any crime in the past. This statement recognizes that the revelation of the profiles and the information regarding innocent individuals is inevitable.

I a . What is PNR?

According to European Commission’s proposal for a Directive of the European Parliament and of the Council in 2011, Article 2(c):

“‘Passenger Name Record’ or 'PNR data' means a record of each passenger’s travel requirements which contains information necessary to enable reservations to be processed and controlled by the booking and participating air carriers for each journey booked by or on behalf of any person, whether it is contained in reservation systems, Departure Control Systems (DCS) or equivalent systems providing the same functionalities;”5

The directive that was put on vote, would consider the efficient selection of data to be obligatory, such as the use and retention of PNR data on passengers boarding “international” flights6, as to assist the authorities to combat organized crime and terrorism. The committee in charge of the PNR proposal is the Civil Liberties, Justice and Home Affairs Committee7. According to general approaches of Council and European Parliament, the first supports the possible extension of PNR to internal EU flight, while MEPs want to ensure that the proposal guarantees the data protection safety.

In other words, PNR data is the information, which is provided by passengers when checking in on flights. This data contains different types of information of individual’s private life ranging from travel dates and contact details, to payment methods and food preferences8. Airlines and travel agents possess IT systems specialized in collecting and recording this data.

Member states would not have immediate access to the carrier's electronic systems, since air carriers in the EU will be expected to send this data to an independent

4 Proposal for a Directive on the use of PNR data for the prevention, detection,investigation and prosecution of terrorist offences and serious crime: https://edri.org/files/101212-EU-PNR-EDRicomments.pdf5 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)6 those entering the EU from, or leaving it for, a third country7 European Parliament: EU Passenger Name Record (PNR) proposal: what's at stakeJustice and home affairs − 26-01-2015 8 Strauss, Michael (2010): Value Creation in Travel Distribution, http://www.amazon.com/dp/0557612462

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designated unit9 of the member state in which the international flight arrives or from which it departs. Moreover, there would be an autonomous surveillance authority of the member state, which would be liable for advising and controlling the PNR’s process.

The member state would maintain these data no more than 30 days after the flight and activate law enforcement authorities to compare them with files that already held.10 Making the data anonymous, member states can maintain it up to five years, depending on the bilateral agreement in every case. For instance, if it being stored by the Australian authorities, it can be kept up to five and a half years or 15 years in the case of the US authorities.

The collection and use of sensitive data11 would be prohibited. In the case that it is transferred by mistake, it must be destroyed by the Member States. The anonymous PNR data can be re-personalized only under very strict conditions. To illustrate this point, I would like to proffer an example of a very strict condition; on condition that a person is suspected of serious breach of the law or terrorist activity in a special criminal investigation. On specific researches, member states would have in addition the privilege to demand PNR data from another member state. It will be a decentralized system with data management at national level, since in that way each Member State analyses the data and subsequently informs its partners of the results that it brought out12.

To date, the use of PNR data is not regulated at EU level. Some member states already hold a PNR system, as the UK, while others have either achieved legislation or are testing PNR data systems. The proposal aims to incorporate the member states; to agree upon a common collective and productive system of PNR data, using only the “push” method. I would like to point out that if and after it is approved, member states would have twenty four months to adopt the directive into their national laws. Moreover, the proposal provides the capability to extend the dimensions of the PNR directive by including internal European flights13, a measure that Mr Kirkhope wants to introduce urgently.

Last but not least, the European Commission has adopted a package of agreements on the exchange of PNR data between: the EU and the United States, Canada, Australia and third countries. As far as the latter is concerned, there is a restriction that a Member State has the right to transfer PNR data to a third country only if there is a necessity for the

9 This unit is the Passenger Information Unit, which belongs to every single member state. 10 EUROPEAN COMMISSION Proposal For A Directive Of The European Parliament And Of The Council On The Use Of Passenger Name Record Data For The Prevention, Detection, Investigation And Prosecution Of Terrorist Offences And Serious Crime 11 As it is recognized by the Advice paper on special categories of data, “sensitive data” are any personal data that could disclose racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership or data concerning health or sexual life of the individual concerned. (ARTICLE 29 DATA PROTECTION WORKING PARTY) http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/others/2011_04_20_letter_artwp_mme_le_bail_directive_9546ec_annex1_en.pdf12 European Commission: http://europa.eu/rapid/press-release_MEMO-11-60_en.htm13 Debates on the European Parliament: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+CRE+20120419+SIT+DOC+PDF+V0//EN&language=EN

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scope of this Directive and if the third country agrees not to transfer to another third country without the rapid authorization of the Member State. Moreover, “the safeguards provided for in Council Framework Decision 2008/977 on the Protection of Personal Data must be respected”14.

I b. Background of the EU-PNR directive

In April 2004, the Council adopted Directive 2004/82/EC on the obligation of air carriers to communicate information concerning their passengers travelling to border control authorities of the EU member states 15. This Directive, however, concerned the transfer of API data16. This defective directive filled in November 2007, when the European Commission announced a proposal on the use of PNR for law enforcement purposes The creation of an ‘EU PNR system’ is considered not only as a weapon against terrorism and organized crime, but also as a mean of the investigation of other crimes and of the anticipation of illegal immigration. However, following the entry into force of the Treaty of Lisbon, it elapsed. The Proposal for the use of EU PNR re-submitted by the Commission in February 2011 and it is still in the "co-decision procedure”.

The 2011 draft directive, was rejected by the Civil Liberties Committee (LIBE) of the European Parliament (EP) in April 2013, by 30 votes against and 25 in favor of an EU PNR Scheme17. The debate points, among others, were the necessity and proposal, its scope, international and intra-EU flights; and the data retention period.

In June 2013, Parliament decided to return the issue back to the Civil Liberties Committee, in order for the latter to continue its work in search of an agreement. Debates on the proposal based on worries regarding potential threats to the EU's internal security posed by European citizens coming back home after fighting abroad. On August 2014, the European Council called on Parliament and the Council of Ministers to finalize work on the EU PNR proposal. 18 The Civil Liberties Committee debated the EU PNR proposal again on November 2014. MEPs were still divided on the issue, with the most to stress the need to assess the ECJ out-ruling the data retention directive, to evaluate the current measures first and establish proper data protection safeguards.

14 EU proposal for passenger data to fight serious crime and terrorism – guide 02 February 2011  http://www.eubusiness.com/topics/transport/pnr-guide/ 15 Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, OJ L 261. 16 API concerns data from the automatic-readable area of the passport, including name, date of birth, passport number and nationality.17 LIBE EP Committee: No PNR data sharing within the EU : http://history.edri.org/book/export/html/330018 European Commission - Passenger Name Record (PNR)http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/police-cooperation/passenger-name-record/index_en.htm

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This proposal is again under the spotlight after the January 2015 terrorist attacks in Paris. On February 2015, the European Parliament passed a resolution on anti-terrorism measures in which it: "Commits itself to work towards the finalization of an EU PNR Directive by the end of the year;”19. Moreover, it “encourages the Commission to invite independent experts from the law enforcement, security and intelligence communities and representatives of Working Party 29 to contribute views and principles, in light of security needs”. In February 2015, the main political groups ( EPP, S&D, ALDE and ECR ) at the EP reached a commitment to conclude the European PNR “by the end of the year”20.

I c. The right to privacy

The right to privacy is definitely stated under Article 12 of the Universal Declaration of Human Rights, 1948 : “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.21”

Of all the human rights, privacy is maybe the most difficult to give description. It can be divided into the information privacy, bodily privacy, privacy of communications and territorial privacy. The absence of a separate definition should not mean that the issue lacks importance22. Privacy is a primary human right recognized in the UN Declaration of Human Rights23, the International Covenant on Civil and Political Rights24 and in many other international and regional treaties. Privacy stands by human dignity and affects the ability to exercise other key values, such as freedom of speech, freedom of expression and freedom of assembly and association.

As it has been underlined several times by the ECtHR, the systematic collection and storage of personal information, including administrative data, fall within the scope of the right to a private life as protected by Article 8 ECHR25. Dealing with the criterion of ‘necessary in a democratic society’, even when national governments invoke internal security objectives, the ECtHR requires evidence of a substantiated balance of the different interests at stake26. Also, the ECtHR allows independent courts or authorities to assess the necessity and proportionality of the security measures27.

19 Ibid. 7, p. 420 Members of the Parliament wish to finalize the EU PNR Directive by the end of 2015: http://www.anat.ro/en/members-of-the-parliament-wish-to-finalize-the-eu-pnr-directive-by-the-end-of-2015/21 The Universal Declaration of Human Rights: http://www.un.org/Overview/rights.html22 Samuel Warren and Louis Brandeis, "The right to privacy", Harvard Law Review 4, 1890 pp 193 - 220.23 Article 12 of the Universal Declaration of Human Rights, 194824 ICCPR, Article 17.25 European Agency for Fundamental Rights in the Opinion on the proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes, 28 October 2008.26 Article 8 of the European Convention on Human Rights: http://echr-online.info/article-8-echr/27 ibid.

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The proposal for an EU PNR system concerns EU and non-EU passengers, who are (generally) not suspected of any crime and the only reason their data are submitted is because they have booked a flight. The fact that the information is only stored or transferred and not always used in practice is unrelated to the application of Article 8 ECHR28. The ECHR has developed criteria for the necessary balance of powers between the data-collecting authorities and the protection of the interests and rights of the individual29. These criteria are consisted of limitations on the exercise of storing and using the information; the commitment to inform the person concerned in advance about the storage of his or her data; clear definition of the kind of information that may be recorded, of the categories of individuals against whom surveillance measures may be taken and the purposes for which the information can be used. In this case, the ECtHR has stated that the way of exercise used by the qualified authorities should be “sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference”30.

Under the Swedish Presidency, the European Commission published the Communication: An area of freedom, security and justice serving the citizen in June 2009. Under the headings: “Promoting citizens’ rights – a Europe of rights”, this Communication recalls that:

“The principle of safeguarding the right to privacy and freedoms of EU citizens, but also of ‘vulnerable people’ has never been more important, considering the different legislative measures and proposals dealing with the large-scale processing of personal data of EU citizens and other nationals traveling within, towards and outside the EU territory.31”

II. Opinions on the EU-PNR

28 Human Rights Review 2012: http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_8.pdf29 Van de Hof, S. and Marga M.Groothuis “Innovating Government: Normative, Policy and Technological Dimensions of Moderne Government”, Springer30 Cyril Laucci, The Annotated Digest of the International Criminal Court, 2008. p.723, par.3831 COUNCIL OF THE EUROPEAN UNION: The Stockholm Programme – An open and secure Europe serving and protecting the citizens (2009)

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New surveillance and control measures, like PNR system, are enforced in the name of combating terrorism and have a serious impact on the right to privacy and data protection, which belong to the fundamental rights and freedoms of the individual. The so-called ‘EU PNR regime’ has contradiction of opinions. Firstly, some support that it would use in preventing, tracking, exploring and prosecuting significant crimes. By contrast, concerns have been raised over the impact of PNR system on individual’s right to privacy32.

II a. In favor of EU PNR system

To begin with, according to the question of whether any interference in the right to private life meets the criterion ‘necessary in a democratic society’, the ECtHR generally gives a broaden allowance to the national authorities when it comes to national security or the prevention of offences in contrast to what it would in regular cases33. Terrorism and organized crimes are activities against to individual’s liberties and national security. So, those who believe that more security is required, are based on one of the main principles of the rules of state to protect their citizens and create a peaceful environment to live in. The Civil Liberties Committee rapporteur Timothy Kirkhope (ECR, UK) has argued that in order to prohibit criminals exploiting gaps in the EU, the EU has to place its own rules and standards as soon as possible. Timothy Kirkhope in order to support his argument published a revised proposal for an EU PNR system on 24th February 2015. By using data, highly-trained authorities are able to build up a model of behavior that point towards the perpetrators’ behavior. The use of PNR data diminishes profiling by basing law enforcement decisions, which are associated with the traveller’s behavior and not the traveller’s profile34.

Secondly, the usage of PNR data has certainly stated that is only for profiling purposes of those persons who are most likely, depending on objective assessment criteria and former experience, for the investigation of general crimes or security threats. During the Council discussions about the value of PNR data for law enforcement purposes, it was stated that “PNR allows the proactive use of the information contained in it, with the aim of preventing crime and detecting crimes which have been committed or are being planned; also, thanks to the later use of data which have been stored”, it may help to clear up unsolved crimes35.” In achieving this, the law enforcement authorities are required to use PNR data in real-time to run the PNR data against to various databases of 'known'

32 Parliament gears up for tricky debate on Passenger Name Record Directive: http://www.political-intelligence.com/parliament-gears-up-for-tricky-debate-on-passenger-name-rights/33 European Commission - Towards A European Pnr System? Questions On The Added Value And The Protection Of Fundamental Rights: http://www.statewatch.org/news/2009/jan/eu-pnr-ep-study.pdf34 Revised Passenger Name Records proposal published: http://ecrgroup.eu/news/revised-passenger-name-records-proposal-published/35 Council doc. 15319/1/08, 20 November 2008, p. 7

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persons and/or objects. PNR data is useful, as well as, in an active approach to collect evidence and, where relevant, to find affiliates of criminals and uncover criminal networks.

The President of the European Council, Donald Tusk, has prompted MEPs to approve the creation of a unique and shared data based on personal information on air passengers when they arrive in, or leave an EU country, by saying: ”this Parliament has rightly taken seriously its role in defending the freedoms of European citizens”. He further added that if the EU member states don’t succeed in establishing a single PNR system, they will end up with 28 national systems, which won’t prove to be as beneficial, as they may interfere with the privacy of civilians but wouldn’t provide enough protection to them. Moreover, Marine Le Pen said "We refuse to abandon any sovereignty. We refuse to have anything decided for us. We should be able to decide who enters and who leaves our borders.”

This claim includes the ‘nothing to hide’ argument, which supports that if you are not committing any offence you have nothing to hide, thus you should not be against to government data subversion and surveillance. That means that governments do not threaten privacy if they not reveal some unlawful activities, and in that way if they do, the person performing these activities does not have the right to keep them private.

There are existing mechanisms for the collection and exchange of personal data between law enforcement authorities, such as Schengen Information System (SIS) and second-generation Schengen Information System (SIS II), Visa Information System (VIS) and the directive on Advantage Passenger Information (API), which are mainly used to verify identity and manage the EU’s external border. They are not provide sufficient raw data to enable law enforcement authorities to identify 'unknown' suspects in the combined proactive and real-time way that the analysis of PNR data does36. Moreover, it does not demand air carriers to retain any additional data from passengers, nor does it demand passengers to provide any extra data to that already being holding to air carriers.

Last but not least, the need of using PNR data should be in a limited method and in the same time to be under the control of accurate data protection guarantees. It is supported not only by third countries, but also by Member States that have already used such PNR data for law enforcement objectives and noticed progress in the fight against drugs- in particular. For instance, Belgium reported that almost all the drugs seizures were mainly due to the processing of PNR data, five years ago. Also, Member States that have already used such PNR data for law enforcement scopes, they also have a better comprehension of the contents and functions of the criminal networks.

II b. The dangers of EU PNR system

36 Great Britain: Parliament: House of Commons, Twenty-first Report of Session 2010-11, Documents Considered by the European Scrutiny Committee on 9 March 2011.

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Some organizations concerning the right to privacy, are thinking about the percentage of personal data that a PNR might contain. Although the amount of data that is needed for a booking is quite small, “a PNR will typically contain much more information of (…) ‘sensitive’ personal data37. Despite the fact that the amount is small, that does not mean that the data, which is transferred is not sensitive. Taking this into account, those who support the opinion that the character of the information that PNRs contain, deserves the same privacy protection and importance as that afforded to medical and financial information, they have right38. They, in addition, must be aware of the risks of some types of data, since they can build profiles. For instance, meal desires can present information about religion and hotel reservations can show passengers’ personal relationships39.

Civil rights organizations among others, expressed their concerns regarding the cost of the PNR system reaching the excessive amount of 50 million euros in order to be established in some Member States. Simultaneously, the ruling of the ECJ, believe that the current proposal would be impossible to considered lawful because of its lacks on storing of data and profiling.

The same reasoning about the proposed EU PNR is followed by the Fundamental Rights Agency and the Article 29 Working party, which agrees on the deficient proportionality of the proposal, since the system does not predict specific data collection and analysis for targeted passengers. Instead, it is the same for all passengers on international flights40. Home affairs and civil liberties spokesperson Jan Philipp Albrecht MEP claims that "This disproportionate proposal would have been a grave departure from the constitutional presumption of innocence, as well as breaching rulings of constitutional courts in Europe and the ECHR”. Moreover, there are more issues that have been raised as problems of the EU PNR proposal, such as the privacy violations and the lack of protection against discrimination.

Regarding the protection of individuals’ rights, the EP therefore stressed that forceful safeguards for privacy and legal protection must be put in place. More specifically, the EP proposes further clarification of the relationship between the use of PNR and other measures such as the API Directive, the Electronic System for Travel Authorization, biometrics in passports, SIS, VIS and national border protection schemes41. Finally, the EP emphasized the importance of an explicit definition of the role and powers of the PIUs “in particular in terms of transparency and democratic accountability and in order to lay down appropriate data protection rules”. Also, the Spanish Socialist MEP Enrique Guerrero

37 i.Privacy & Human Rights, 80ii. See Edward Hasbrouck, “What’s in A Passenger Name Record (PNR)?,” http://hasbrouck.org/articles/PNR.html38 ibid39 “We still need to watch you, really”: PNR back in the Parliament: https://edri.org/pnr-back-in-the-ep/40 Protecting Digital Freedom: https://edri.org/41 European Parliament v Council, Joined cases C-317/04 and C-318/04, 30 May 2006

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Salom warned that the PNR legislation "should be debated calmly and not in the heat of the latest events”.

Furthermore, the level of adjustment has been questioned by the AEA, which prefers an airline basic compiling and filtering system at EU level42. As the AEA stated in its position paper of December 2007, “security of citizens cannot be the responsibility of airlines: this should remain the exclusive task of national Authorities”.

As pointed out by different key actors, it is important that technical potentialities don’t have an impact to the EU policy-makers, ignoring the real necessities of ‘actors in the field’43, as well as the private rights and freedoms44. Alternatively the new improvements will not lead to a ‘Europe of Rights’ as intended by the European Commission, but to a ‘Europe of Lost Freedoms’ due to the technical and bureaucratic limits45. The EU approach collaborates for more security and a strict protection of individual’s data. A society that does not take into account properly the personal privacy is a society in which dignity, autonomy and trust are hazardous undermined. 46.

It would be important to be referred as an argument that privacy was missing in the society of Oceania in George Orwell's book ‘1984’. It depicts a society, which under the missing of privacy, a 'Big Brother'-existence can manage people’s lives. We should not quit our liberties, or anyone else’s liberties, in order to gain purely symbolic benefits in the fight against terrorism47.

Conclusion

42 AEA Policy Paper on transfer of airline passenger data to governments, April 2008 43 these actors are the border guards, the law enforcement authorities and the air carriers44 The Opinion of the European Data Protection Supervisor of 10 July 2009 on the aforementioned Communication of the Commission of 10 June 2009, stating in point 53.45 ibid. 39.46 Liberty: protecting civil liberties, promoting human rights: https://www.liberty-human-rights.org.uk/human-rights/privacy47 Jeremy Waldron , VIII. The Journal of Political Philosophy: Volume 11, Number 2, 2003, pp. 191–210 Security and Liberty: The Image of Balance, Law, Columbia University

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Some times, security technologies are more than items used for the protection, security and surveillance. Many times the security practices, are political tactics to create a need for security to citizens; this is the contradiction: the more security, the more the fear of insecurity will be.

The creation of an efficient and common for European countries, PNR system seems to be the most ambitious part of the new measures ahead, beneficial to recognize the travel routes terrorists and criminals may use. Although most EU member states have their own PNR system, as a result to the European legislation’s deficiencies, it is difficult to gather PNR data under a common system and use it in a common way across Europe and abroad. In fact, the topic since the proposal of 2011 is, that no PNR legislation has been able to prevail the support of the European Parliament.

Members of the EU Parliament rejected it concerning the high possibilities of violation of citizens’ privacy, while those voting in favor highlighted its potential added value for the EU counter-terrorism policy, adding that a EU legislation would prevail over a group of separated national systems. In my point of view, MEPs should conclude to an agreement that protects lives and liberties by offering strong data protection rules under the European principles and simultaneous make it more hard for a radicalized fighter to penetrate into Europe without being noticed48. Consequently, with the Council already in agreement on its position on the Directive, all eyes are on the Parliament, where the various political groups remain divided on the proposed Directive.

Furthermore, as far as I am concerned, I believe that in order to protect EU against terrorist attacks without compromising citizens’ rights, member states should make talks in parallel with those on an EU PNR proposal and an EU data protection rules. Europe needs one coherent PNR system with common personal data protection standards across the EU, no 28 different. If they are not able to do this and to confront this situation, the member states are going to deviate from European legislation, they are going to take their own action and they will lose the opportunity to follow a common approach.

For all the aforementioned reasons, it would be significant for the Commission to assess the effects of the EU Court of Justice’s annulment of the Data Retention Directive and to look for autonomous experts' views on the "necessity and proportionality" of the PNR proposal49. The criteria as developed on the basis of Article 8 (2) ECHR should also be taken into account when assessing the EU PNR system.

Bibliography

48 http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=d9149905-6653-4c38-a296-a44b00a8fadd49 Passenger Name Record and data protection talks should go hand in hand. Press release - Justice and home affairs − 11-02-2015

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