Developing a European Standard for International Data Transfers after Snowden: Opinion 1/15 on the EU-Canada PNR Agreement

Abstract

In Opinion 1/15 Court of Justice of the European Union (CJEU) held that the proposed EU-Canada agreement on the transfer of Passenger Name Record data (PNR agreement) must be revised before its final adoption because parts of the agreement are incompatible with EU fundamental rights framework. This note argues that the real significance of the Opinion 1/15 can only be understood in a broader historical context of an increasing securitization on international level between 09/11 attacks and Snowden revelations. In particular, Opinion 1/15 emerges as a powerful addition to the existing data privacy trilogy established by the CJEU in the post-Snowden era in an attempt to re-balance the terms of international cooperation in data-sharing by the EU and other countries. These terms were largely modelled around national security interests that have gained significant prominence in the aftermath of the 9/11 events. While the pro-securitization policies have indeed been very successful in gaining support among different private and public actors, e.g., in handling passenger name records (PNR) or personal data in financial transfers (SWIFT), it is however questionable whether CJEU’s pushback – without the political support of EU Commission and Member States – will receive similar success on international level any time soon.