Tuesday 22 August 2017

Cross-border civil litigation after Brexit: analysis of the UK government’s proposals

Professor Steve Peers

Imagine you’re a prominent UK politician. You spend most of your time ranting on a radio station in the UK or grovelling in the USA, occasionally showing up in France or Belgium to do your actual full-time job. You’re now getting a divorce from your German wife. Which court rules on matters concerning divorce and access to children – and which law applies?

This dispute would be part of the broader topic of cross-border civil litigation (or private international law), which is the subject of the UK government’s latest position paper on the Brexit talks. This paper gives some interesting hints about how the UK seeks a close relationship with the EU after Brexit, while also leaving some key issues rather vague.

First of all, it’s necessary to point out that the paper doesn’t concern the future of dispute settlement between the UK and the EU after Brexit. That’s the subject of another position paper coming very soon. Rather it concerns how cross-border disputes between private citizens or companies in the UK or EU will be dealt with after Brexit.

The paper usefully sets out which EU laws in this area the UK has currently opted into, in particular: the general rules on civil and commercial jurisdiction and conflict of laws; the special rules on insolvency disputes and divorce/child access, maintenance, and stalking orders; and related laws on simplified litigation, service of documents, legal aid, evidence, legal aid, mediation and the ‘European Judicial Network’ (a talking shop on the operation of these laws). (For an overview of these issues in the Brexit context see the recent House of Lords report).

Note that the UK has opted out of some other EU laws in this area, in particular those concerning marital property after divorce (and the property of civil partnerships which ended), inheritance and conflict of divorce law. (For an overview of EU law in this area as a whole, see the chapter in the second volume of my book on EU Justice and Home Affairs Law).

The paper is mainly about the future UK/EU relationship in this area, not withdrawal from the EU as such. But there's a bit on that issue at the end, in response to the EU’s position paper on the UK’s exit from the law in this area. Of course, the UK government is correct to say that there is no need for any such transition arrangements, to the extent that the UK still participates in the law in this field after Brexit. But then, the EU won't discuss any aspects of its future relationship with the UK until there is ‘sufficient progress’ on the key issues of the UK’s so-called ‘divorce bill’ and the status of UK and EU citizens. (If and when the EU and UK do agree on post-Brexit treaties in this area, note that the EU usually votes by a qualified majority, except as regards family law, where there is a veto. At least in key areas, the ECJ has ruled that Member State ratification of such treaties is not necessary, since the EU is exclusively competent).

There’s likely to be a need to bridge the gap between Brexit Day and any future agreement between the UK and the EU. This will probably take the form of some transitional extension of current EU law, as part of the Brexit withdrawal treaty. But the position paper doesn’t mention this issue at all – perhaps because the UK government has not fully agreed on the details, and perhaps because the EU side insists that the ECJ would still have jurisdiction during that period.

Future relationship

So what relationship does the UK government want with the EU in future? The papers calls for a ‘new partnership…reflecting our close existing relationship’, but does not detail which laws the UK wants to continue participating in.  One hopes that the government will at least tell the EU which laws it wants to continue applying. 

There’s one thing the UK government clearly doesn’t want though: the continued ‘direct’ jurisdiction of the ECJ. (The notion of ‘direct’ jurisdiction isn’t explained explicitly, but we can deduce what the government will accept – see further below).  The reader gets the distinct impression that the UK is happy to continue participating in all the EU laws it has signed up to already, except for removing the ECJ’s direct jurisdiction. It’s a bit like tearing down and rebuilding a house, in order to change one brick.

The paper doesn’t address an obvious question: what if an existing EU law is revised post Brexit? This point isn't hypothetical. There's a proposal to revise the current EU law on divorce and child access already. The UK has already opted in to negotiations. But negotiations are slow, and might not conclude before Brexit Day. Other laws in this field are negotiated over time. How to address this topic?

International treaties

The paper seems keen to reassure those who litigate in the UK (in particular, London) that the UK will still be ‘open for business’ in this field after Brexit. To that end, the government confirms that it will remain a party to a list of international treaties in the field (as distinct from EU law), drawn up in the auspices of an international body which focusses on cross-border civil litigation – the Hague Conference on Private International Law, including the important Hague Convention on child abduction. For most of these treaties, this will be simple, because the UK is a party to them in its own right, not as an EU Member State. For some others, the UK participates only as an EU Member State, although it ought to be an easy transition to participating in its own name: it can simply sign and ratify them on Brexit Day.

However, the UK also wants to stay part of the Lugano Convention - which extends an earlier version of the main EU law on civil and commercial jurisdiction to relations between the EU and EFTA states (Norway, Iceland, and Switzerland – along with EU Member State Denmark for convoluted reasons). This is another kettle of fish. According to that Convention, to sign up in its own name, the UK either has to become an EFTA state (which is a big issue in itself, since EFTA is a trade agreement) or wangle a special invitation to sign up. And as the government’s position paper acknowledges, it’s awkward that the Convention only relates to an earlier version of that EU law.

Signing up to the Lugano Convention also raises an issue about the ECJ. The Convention states that the courts of non-EU states must ‘pay due account’ to ECJ judgments. So we can deduce that the UK government does not believe that such an obligation violates its ‘red line’ against ‘direct jurisdiction’ of the ECJ. It might have been better to say this explicitly, and to propose it as a template for UK/EU relations in this field, given that the UK apparently wants to keep participation in other relevant EU laws as well. Indeed, it might also be a template for other areas where the UK seeks to continue participation in EU laws as a non-EU state. Perhaps the forthcoming paper on EU/UK dispute settlement will say more on this.

Furthermore, the ECJ clause in the Lugano Convention is similar (but not identical) to the ECJ clause in the EU Withdrawal Bill as proposed by the government – which says that pre-Brexit ECJ rulings stay binding (subject to the UK Supreme Court possibly overruling them, or the government or parliament overruling them), while post-Brexit ECJ may be taken into account by courts in the UK.

This may be enough of a compromise to satisfy hardline Brexiteers; we’ll see. It ought to be acceptable to the EU side, given that it’s been accepted in the context of relations with EFTA states for nearly thirty years (the first version of the Lugano Convention dates back to 1988). But then, the UK is asking for a closer relationship in this field of law than any other non-EU country. In any event, the areas of law where the EU insists on an ECJ role (citizens’ rights, the ‘divorce bill’, a transitional deal) will be more difficult to agree. Time will tell if talks eventually founder – either on those ECJ issues, or indeed on the bill itself.

Barnard & Peers: chapter 27
JHA4: chapter II:8

Photo credit: Metro

The UK government’s position paper on Northern Ireland after Brexit – some initial thoughts

Professor Dagmar Schiek, Queen’s University Belfast

On 16 August the UK government’s Department for Exiting the EU (DEXEU) posted its long awaited position paper on the position of Northern Ireland and Ireland after Brexit. The government itself states that the paper needs to be considered in combination with the “Future Partnership Paper” on Custom’s arrangements, while no mention is made of EU citizens’ rights, which – alongside the situation of Northern Ireland and Ireland and the UK’s financial obligations - also are a priority under the EU’s strategy to negotiate the withdrawal agreement. For a first appreciation of this position paper it is worthwhile highlighting what they do not address.

Its first part addresses the Belfast Peace Agreement, concluded on Good Friday 1998, with three very specific negotiation proposals: EU support for the peace process should be maintained, citizenship rights set out in the Belfast agreement should be maintained, and EU financial aid for the Peace process should be maintained. Two of these issues are at best loosely related to the UK’s withdrawal from the EU. The EU is engaged in numerous peace processes beyond its borders, and there is no reason why it should stop engaging in the Northern Irish peace process. The question whether Ireland grants citizenship to persons born in Northern Ireland is not even within the EU competences: the Treaty on European Union does not determine who Member States may recognise as citizens. These proposals do not mention the EU citizenship dimension at all, as they remain purely on the national level. One wonders why the continuation of EU funding for the peace process in Northern Ireland is not included in the negotiations on the UK’s financial liabilities: if the UK does not wish to continue paying in the EU budget, a division of responsibilities on the funding for this budget would seem more logical –if only to avoid the impression that the bill may be addressed to the EU alone.

What is missing here? Interestingly, the negotiation position only mentions the Belfast Agreement. This was only the first step in a longer process overcoming conflict in Northern Ireland, aiming at an all-Ireland economy and society (North South Dimension) as well as integration across the British Islands (East West Dimension). The success of such a process requires socio-economic and civic integration, alongside political institutional cooperation. Among the agreements complementing the Belfast agreement the Stormont House Agreement adds some of those aspects, for example by stressing the need to overcome discrimination on grounds of ethno-religious allegiances in the provision of goods and services, housing and other areas.

However, the socio-economic and civil society dimension of integration mainly rests on the common EU membership of Ireland and the UK, which enabled socio-economic and civic transaction without frictions on the island of Ireland as well as with Britain. EU law, directly applicable in both states, and enforced by national courts and the ECJ, guarantees among others free trade in goods and services, the freedom of business to establish and the free movement of workers as well as EU citizenship rights for non-economically active persons. EU legislation ensures regulatory harmonisation necessary for the smooth operation of this. Both have been central to achieving a degree of normalisation accompanying the peace process, one expression of which is that citizens from other EU Member States have made the island of Ireland their home, as well as coming here to live, work or study for limited periods. The economy relies on EU workers from beyond the UK or Ireland, as well as on service provision from other parts of the EU. Does the position paper address these conundrums?

Its second part (paragraphs 18-33) is focused on the Common Travel Area (CTA), correctly stating that this is a form of cooperation for the benefit of UK and Irish citizens, allowing them the right to enter, reside, work and study in each other’s’ state, while also accessing some social welfare entitlements and health services. The CTA also includes specific measures for securing its external borders, and it lacks any one document setting out all the principles and details, including enforcement mechanisms. The UK negotiation position focuses on the preservation of rights to move by Irish and UK citizens. However, the UK government states that border and immigration controls for EEA nationals can only be addressed as part of the future relationship with the EU, while stressing that immigration controls are not restricted to border controls, but can also be operated as controls of access to labour market and social security at other points.

The 3rd part of the paper (paragraphs 34-57) addresses the customs border. Again, the UK government proposes to omit implementing border posts, and to conduct all necessary controls of customs, compliance with agricultural product codes (sanitary and phytosanitary measures) through other controls. It assumes its separate proposals on customs are sufficient to control the movement of goods. These proposals have been criticised for lack of practicability elsewhere already: they either refuse any practical control of what will be a customs border, or shift the burden of those controls onto business, who will need to ensure compliance with EU standards by robust mechanisms which do not come for free.

Again, what is missing in part 2 and 3? The paper acknowledges that it does not touch the service sector, and relegates this aspect to the deep and special future partnership (paragraph 35) to be negotiated after the withdrawal agreement has been concluded. Further, both sections are pre-occupied with borders, the land border between the UK and Ireland, which meanders at a length of more than 300 miles through the island of Ireland, as well as the sea border between Britain and the island of Ireland. Given the traumatic experiences of border communities during the “troubles”, this pre-occupation is understandable. However, maintaining the degree of normality achieved in Northern Ireland and on the island of Ireland as a whole would require a different focus, a focus on cooperation and integration in socio-economic and civic respects. Any commitment to achieve this still has to be formulated.

As regards persons, the UK government has not (yet) committed to maintaining the pre-conditions for free movement of persons (including those who are not UK or Irish citizens born in Northern Ireland or Ireland), and thus to the preservation of an important element of an all-island integration. It envisages post-border controls being maintained, possibly modelled on the UK’s 2016 Immigration Act, which makes employers, landlords, universities and schools (criminally) liable for maintaining restrictions of immigrants on participation in socio-economic life. This replacement of controls at borders by civic controls is meant to disrupt socio-economic integration.

As regards the borders for products, the UK stresses that the final shape of the customs border depends on the future customs relationship. Thus, solutions for problems for Northern Ireland and Ireland caused by Brexit is postponed to a later stage in the negotiations, after the conclusion of the withdrawal agreement. An exception is made for energy products, as maintaining the common energy market is viewed as pivotal. Not even a membership of Northern Ireland in the EEA (which would not address the customs border) has been considered.

Clearly, this is a first draft for the points in the withdrawal agreement that need to be addressed to avoid disproportionate damage to Ireland and Northern Ireland in the withdrawal process. If (as at least one political party supporting the Westminster government has stated in their election programme), the free movement of goods, services and persons should be maintained on the island of Ireland, a more committed position seems necessary. Since the EU Commission and the EU 27 are dedicated to achieving a solution for the rights of EU citizens as well as for the problems of Ireland and Northern Ireland, there is hope that more constructive solutions are yet achieved.

Barnard & Peers: chapter 27
Photo credit: Business Insider

Friday 4 August 2017

Transferring personal data outside the EU: Clarification from the ECJ?

Lorna Woods, Professor of Internet Law, University of Essex

Opinion 1/15 EU/Canada PNR Agreement, 26th July 2017


Canadian law required airlines, in the interests of the fight against serious crime and terrorism, to provide certain information about passengers (API/PNR data), which obligation required airlines under EU data protection regulations to transfer data to outside the EU.  The PNR data includes the names of air passengers, the dates of intended travel, the travel itinerary, and information relating to payment and baggage. The PNR data may reveal travel habits, relationships between two individuals, information on the financial situation or the dietary habits of individuals. To regularise the transfer of data, and to support police cooperation, the EU negotiated an agreement with Canada specifying the data to be transferred, the purposes for which the data could be used, as well as some processing safeguard provisions (e.g. use of sensitive data, security obligations, oversight requirements, access by passengers).  The data was permitted to be retained for five years, albeit in a depersonalised form.  Further disclosure of the data beyond Canada and the Member States was permitted in limited circumstances.  The European Parliament requested an opinion from the Court of Justice under Article 218(11) TFEU as to whether the agreement satisfied fundamental human rights standards and whether the appropriate Treaty base had been used for the agreement.


The Court noted that the agreement fell within the EU’s constitutional framework, and must therefore comply with its constitutional principles, including (though this point was not made express), respect for fundamental human rights (whether as a general principle or by virtue of the EU Charter – the EUCFR).

After dealing with questions of admissibility, the Court addressed the question of appropriate Treaty base. It re-stated existing principles (elaborated, for example, in Case C263/14 Parliament v Council, judgment 14 June 2016, EU:C:2016:435) with regard to choice of Treaty base generally: the choice must rest on objective factors (including the aim and the content of that measure) which are amenable to judicial review.  In this context the Court found that the proposed agreement has two objectives: safeguarding public security; and safeguarding personal data [opinion, para 90].  The Court concluded that the two objectives were inextricably linked: while the driver for the need to PNR data was protection of public security, the transfer of data would be lawful only if data protection rules were respected [para 94].  Therefore, the agreement should be based on both Article 16(2) (data protection) and Article 87(2)(a) TFEU (police cooperation).  It held, however, that Article 82(1)(d) TFEU (judicial cooperation) could not be used, partly because judicial authorities were not included in the agreement.

Looking at the issue of data protection, the Court re-stated the question as being ‘on the compatibility of the envisaged agreement with, in particular, the right to respect for private life and the right to the protection of personal data’ [para 119].  It then commented that although both Article 16 TFEU and Article 8 EUCFR enshrine the right to data protection, in its analysis it would refer to Article 8 only, because that provision lays down in a more specific manner the conditions for data processing.  The agreement refers to the processing of data concerning identified individuals, and therefore may affect the fundamental right to respect for private life guaranteed in Article 7 EUCFR as well as the right to protection to personal data in Article 8 EUCFR. The Court re-iterated a number of principles regarding the scope of the right to private life:

‘the communication of personal data to a third party, such as a public authority, constitutes an interference with the fundamental right enshrined in Article 7 of the Charter, whatever the subsequent use of the information communicated. The same is true of the retention of personal data and access to that data with a view to its use by public authorities. In this connection, it does not matter whether the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way on account of that interference’ [para 124].

The transfer of PNR data and its retention and any use constituted an interference with both Article 7 [para 125] and Article 8 EUCFR [para 126]. In assessing the seriousness of the interference, the Court flagged ‘the systematic and continuous’ nature of the PNR system, the insight into private life of individuals, the fact that the system is used as an intelligence tool and the length of time for which the data is available.

Interferences with these rights may be justified.  Nonetheless, there are constraints on any justification: Article 8(2)  of the EU Charter specifies that processing must be ‘for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law’; and, according to Article 52(1) of the EU Charter, any limitation must be provided for by law and respect the essence of those rights and freedoms. Further, limitations must be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 

Following WebMindLicenses (Case C‑419/14, judgment of 17 December 2015, EU:C:2015:832, para 81), the law that permits the interference should also set down the extent of that interference. Proportionality requires that any derogation from and limitation on the protection of personal data should apply only insofar as is strictly necessary. To this end and to prevent the risk of abuse, the legislation must set down ‘clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards’, specifically ‘indicat[ing] in what circumstances and under which conditions a measure providing for the processing of such data may be adopted’ [para 141], especially when automated processing is involved.

The Court considered whether there was a legitimate basis for the processing, noting that although passengers may be said to consent to the processing of PNR data, this consent related to a different purpose. The transfer of the PNR data is not conditional on the specific consent of the passengers and must therefore be grounded on some other basis, within the terms of Article 8(2) EUCFR. The Court rejected the Parliament’s submission that the meaning of ‘law’ be restricted to ‘legislative act’ internally. The Court, following the reasoning of the Advocate General, found that in this regard the international agreement was the external equivalent of the legislative act.

In line with its previous jurisprudence, the Court accepted that public security is an objective of public interest capable of justifying even serious interferences with Articles 7 and 8 EUCFR. It also noted that everybody has the right to security of the person (Art. 6 EUCFR), though this point was taken no further. The Court considered that PNR data revealed only limited aspects of a person’s private life, so that the essence of the right was not adversely affected [para 151]. In principle, limitation may then be possible. The Court accepted that PNR data transfer was appropriate, but not that the test of necessity was satisfied. It agreed with the Advocate General that the categories of data to be transferred were not sufficiently precise, specifically ‘available frequent flyer and benefit information (free tickets, upgrades, etc.)’, ‘all available contact information (including originator information)’ and ‘general remarks including Other Supplementary Information (OSI), Special Service Information (SSI) and Special Service Request (SSR) information’. Although the agreement required the Canadian authorities to delete any data transferred to them which fell outside these categories, this obligation did not compensate for the lack of precision regarding the scope of these categories.

The Court noted that the agreement identified a category of ‘sensitive data’; it was therefore to be presumed that sensitive data would be transferred under the agreement. The Court then reasoned:

any measure based on the premiss that one or more of the characteristics set out in Article 2(e) of the envisaged agreement may be relevant, in itself or in themselves and regardless of the individual conduct of the traveller concerned, having regard to the purpose for which PNR data is to be processed, namely combating terrorism and serious transnational crime, would infringe the rights guaranteed in Articles 7 and 8 of the Charter, read in conjunction with Article 21 thereof [para 165]

Additionally, any transfer of sensitive data would require a ‘precise and particularly solid’ reason beyond that of public security and prevention of terrorism. This justification was lacking. The transfer of sensitive data and the framework for the use of those data would be incompatible with the EU Charter [para 167].

While the agreement tried to limit the impact of automated decision-making, the Court found it problematic because of the need to have reliable models on which the automated decisions were made. These models, in the view of the Court, must produce results that identify persons under a ‘reasonable suspicion’ of participation in terrorist offences or serious transnational crime and should be non-discriminatory. Models/databases should also be kept up-to-date and accurate and subject to review for bias. Because of the error risk, all positive automated decisions should be individually checked.

In terms of the purposes for processing the data, the definition of terrorist offences and serious transnational crime were sufficiently clear. There were however other provisions, allowing case-by-case assessment.  These provisions (Article 3(5)(a) and (b) of the treaty) were found to be too vague.  By contrast, the Court determined that the authorities who would receive the data were sufficiently identified. Further, it accepted that the transfer of data of all passengers, whether or not they were identified as posing a risk or not, does not exceed what is necessary as passengers must comply with Canadian law and ‘the identification, by means of PNR data, of passengers liable to present a risk to public security forms part of border control’ [para 188].

Relying on its recent judgment in Tele2/Watson (Joined Cases C‑203/15 and C‑698/15, EU:C:2016:970), which I discussed here, the Court reiterated that there must be a connection between the data retained and the objective pursued for the duration of the time the data are held, which brought into question the use of the PNR data after passengers had disembarked in Canada.  Further, the use of the data must be restricted in accordance with those purposes. However,

where there is objective evidence from which it may be inferred that the PNR data of one or more air passengers might make an effective contribution to combating terrorist offences and serious transnational crime, the use of that data does not exceed the limits of what is strictly necessary [para 201].

Following verification of passenger data and permission to enter Canadian territory, the use of PNR data during passengers’ stay must be based on new justifying circumstances. The Court expected that this should be subject to prior review by an independent body. The Court held that the agreement did not meet the required standards.  Similar points were made, even more strongly, in relation to the use of PNR data after the passengers had left Canada. In general, this was not strictly necessary, as there would no longer be a connection between the data and the objective pursued by the PNR Agreement such as to justify the retention of their data. PNR data may be stored in Canada, however, when particular passengers present a risk of terrorism of serious transnational crime. Moreover, given the average lifespan of international serious crime networks and the duration and complexity of investigations relating to them, the Court did not hold that the retention of data for five years went beyond the limits of necessity [para 209].

The agreement allows PNR data to be disclosed by the Canadian authority to other Canadian government authorities and to government authorities of third countries. The recipient country must satisfy EU data protection standards; an international agreement between the third country and the EU or an adequacy decision would be required. There is a further, unlimited and ill-defined possibility of disclosure to individuals ‘subject to reasonable legal requirements and limitations ... with due regard for the legitimate interests of the individual concerned’. This provision did not satisfy the necessity test.

To ensure that the individuals’ rights to access their data and to have data rectified is protected, in line with Tele2/Watson, passengers must be notified of the transfer of their PNR data to Canada and of its use as soon as that information is no longer liable to jeopardise the investigations being carried out by the government authorities referred to in the envisaged agreement. In this respect, the agreement is deficient. While passengers are told that the data will be used for security checks/border control, they are not told whether their data has been used by the Canadian Competent Authority beyond use for those checks.  While the Court accepted that the agreement provided passengers with a possible remedy, the agreement was deficient in that it did not guarantee in a sufficiently clear and precise manner that the oversight of compliance would be carried out by an independent authority, as required by Article 8(3) EUCFR.


There are lots of issues in this judgment, of interest from a range of perspectives, but its length and complexity means it is not an easy read. Because of these characteristics, a blog – even a lengthy blog – could hardly do justice to all issues, especially as in some instances, it is hardly clear what the Court’s position is.

On the whole the Court follows the approach of its Advocate General, Mengozzi, on a number of points specifically referring back to his Opinion. There is, as seems increasingly to be the trend, heavy reliance on existing case law and it is notable that the Court refers repeatedly to its ruling in Tele2/Watson.  This may be a judicial attempt to suggest that Tele2/Watson was not an aberration and to reinforce its status as good law, if that were in any doubt. It also operates to create a body of surveillance law rulings that are hopefully consistent in underpinning principles and approach, and certainly some of the points in earlier case law are reiterated with regards to the importance of ex ante review by independent bodies, rights of redress and the right of individuals to know that they have been subject to surveillance.

The case is of interest not only in regards mass surveillance but more generally in relation to Article 16(2) TFEU. It is also the first time an opinion has been given on a draft agreement considering its compatibility with human rights standards as well as the appropriate Treaty base. In this respect the judgment may be a little disappointing; certainly on Article 16, the Court did not go into the same level of detail as in the AG’s opinion [AG114-AG120]. Instead it equated Article 16 TFEU to Article 8 EUCFR, and based its analysis on the latter provision.

As a general point, it is evident that the Court has adopted a detailed level of review of the PNR agreement.  The outcome of the case has widely been recognised as having implications, as –for example – discussed earlier on this blog.  Certainly, as the Advocate General noted, possible impact on other PNR agreements [AG para 4] which relate to the same sorts of data shared for the same objectives.  The EDPS made this point too, in the context of the EU PNR Directive:

Since the functioning of the EU PNR and the EU-Canada schemes are similar, the answer ofthe Court mayhave a significant impact on the validity of all other PNR instruments …. [Opinion 2/15, para 18]

There are other forms of data sharing agreement, for example, SWIFT, the Umbrella Agreement,  the Privacy Shield (and other adequacy decisions) the last of which is coming under pressure in any event (DRI v Commission (T-670/16) and La Quadrature du Net and Others v Commission (T-738/16)).  Note that in this context, there is not just a question of considering the safeguards for protection of rights but also relates to Treaty base.  The Court found that Article 16 must be used and that – because there was no role for judicial authorities, still less their cooperation – the use of Article 82(1)(d) is wrong.  It has, however, been used for example in regards to other PNR agreements.  This means that that the basis for those agreements is thrown into doubt.

While the Court agreed with its Advocate General to suggest that a double Treaty base was necessary given the inextricable linkage, there is some room to question this assumption.  It could also be argued that there is a dominant purpose, as the primary purpose of the PNR agreement is to protect personal data, albeit with a different objective in view, that of public security. In the background, however, is the position of the UK, Ireland and Denmark and their respective ‘opt-outs’ in the field. While a finding of a joint Treaty base made possible the argument of the Court that:

since the decision on the conclusion of the envisaged agreement must be based on both Article 16 and Article 87 TFEU and falls, therefore, within the scope of Chapter 5 of Title V of Part Three of the FEU Treaty in so far as it must be founded on Article 87 TFEU, the Kingdom of Denmark will not be bound, in accordance with Articles 2 and 2a of Protocol No 22, by the provisions of that decision, nor, consequently, by the envisaged agreement. Furthermore, the Kingdom of Denmark will not take part in the adoption of that decision, in accordance with Article 1 of that protocol. [para 113, see also para 115]

The position would, however, have been different had the agreement be found to have been predominantly about data protection and therefore based on Article 16 TFEU alone.

Looking at the substantive issues, the Court clearly accepted the need for PNR to challenge the threat from terrorism, noting in particular that Article 6 of the Charter (the “right to liberty and security of person”) can justify the processing of personal data. While it accepted that this resulted in systemic transfer of large quantities of people, we see no comments about mass surveillance. Yet, is this not similar to the ‘general and indiscriminate’ collection and analysis rejected by the Court in Tele2/Watson [para 97], and which cannot be seen as automatically justified even in the context of the fight against terrorism [para 103 and 119]? Certainly, the EDPS took the view in its opinion on the EU PNR Directive that “the non-targeted and bulk collection and processing of data of the PNR scheme amount to a measure of general surveillance” [Opinion 1/15, para 63]. It may be that the difference is in the nature of the data; even if this is so, the Court does not make this argument. Indeed, it makes no argument but rather weakly accepts the need for the data.  On this point, it should be noted 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” [Art. 29 WP Opinion 7/2010, p. 4]. In this aspect, Opinion 1/15 is not as strong a stand as Tele2/Watson [c.f para 105-106]; it seems that the Court was less emphatic about significance of surveillance even than the Advocate General [AG 176].

In terms of justification, while the Court accepts that the transfer of data and its analysis may give rise to intrusion, it suggests that the essence of the right has not been affected. In this it follows the approach in the communications data cases.  It is unclear, however, what the essence of the right is; it seems that no matter how detailed a picture of an individual can be drawn from the analysis of data, the essence of the right remains intact.  If the implication is that where the essence of the right is affected then no justification for the intrusion could be made, a narrow view of essence is understandable.  This does not, however, answer the question of what the essence is and, indeed, whether the essence of the right is the same for Article 7 as for Article 8.  In this case, the Court has once again referred to both articles, without delineating the boundaries between them, but then proceeded to base its analysis mainly on Article 8.

In terms of relationship between provisions, it is also unclear what the relationship is between Art 8(2) and Art 52.  The Court bundles the requirements for these two provisions together but they serve different purposes. Article 8(2) further elaborates the scope of the right; Article 52 deals with the limitations of Charter rights.  Despite this, it seems that some of the findings will apply Article 52 in the context of other rights. For example, in considering that an international agreement constitutes law for the purposes of the EUCFR, the Court took a broader approach to meaning of ‘law’ than the Parliament had argued for.  This however seems a sensible approach, avoiding undue formality. 

One further point about the approach to interpreting exceptions to the rights and Article 52 can be made. It seems that the Court has not followed the Advocate General who had suggested that strict necessity should be understood in the light of achieving a fair balance [AG207].
Some specific points are worth highlighting. The Court held that sensitive data (information that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, information about a person’s health or sex life) should not be transferred. It is not clear what interpretation should be given to these data, especially as regards proxies for sensitive data (e.g. food preferences may give rise to inferences about a person’s religious beliefs).

One innovation in the PNR context is the distinction the Court introduced between use of PNR data on entry, use while the traveller is in Canada, and use after the person has left, which perhaps mitigates the Court’s acceptance of undifferentiated surveillance of travellers.  The Court’s view of the acceptability of use in relation to this last category is the most stringent.  While the Court accepts the link between the processing of PNR data on arrival, after departure the Court expects that link to be proven, and absent such proof, there is no justification for the retention of data. Does this mean that on departure PNR data of persons who are not suspected of terrorism or transnational crime should be deleted at the point of their departure? Such a requirement surely gives rise to practical problems and would seem to limit the Court’s earlier acceptance of the use of general PNR data to verify/update computer models [para 198].

One of the weaknesses of the Court’s caselaw so far has been a failure to consider investigatory techniques, and whether all are equally acceptable.  Here we see the Court beginning to consider the use of automated intelligence techniques.  While the Court does not go into detail on all the issues to which predictive policing and big data might give rise, it does note that models must be accurate.  It also refers to Article 21 EUCFR (discrimination).  In that this section is phrased in general terms, it has potentially wide-reaching application, potentially even beyond the public sector.

The Court’s judgment has further implications as regards the sharing of PNR and other security data with other countries besides Canada, most notably in the context of EU/UK relations after Brexit. Negotiators now have a clearer indication of what it will take for an agreement between the EU and a non-EU state to satisfy the requirements of the Charter, in the ECJ’s view. Time will tell what impact this ruling will have on the progress of those talks.

Barnard & Peers: chapter 25
JHA4: chapter II:9

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