Shortcomings of the Passenger Name Record Directive in Light of Opinion 1/15 of the Court of Justice of the European Union

Abstract

By 25 May 2020, the European Commission is obliged to conduct a full review of the Passenger Name Record (PNR) Directive and provide a comprehensive report to the European Parliament and the Council on seven key aspects of the said Directive. These range from an assessment of the necessity and proportionality for collecting and processing PNR data in relation to each of the Directive’s purposes, to the length of the data retention period, and even the effectiveness of exchanging information among Member States, including statistical information on the number of passengers whose PNR data has been collected, exchanged or identified for further examination. The review could lead the European Commission to present a legislative proposal to amend the PNR Directive which could either reinforce, maintain or dilute the EU PNR system. More recently, two not-for-profit associations have legally challenged the national PNR schemes based on the PNR Directive. This paper questions the validity of certain provisions of the Directive in light of Opinion 1/15 of the Court of Justice of the European Union of 26 July 2017 concerning the EU-Canada PNR Agreement. It also calls on the European Commission, as guardian of the EU Treaties and of EU law, to conform the PNR Directive to the Luxembourg Court case-law on mass data retention schemes, taking advantage of the review momentum. Keywords: CJEU; Opinion 1/15; Directive 2016/681; data protection; PNR; law enforcement; data retention; Articles 7 and 8 of the Charter of Fundamental Rights