Opinion of the Court of Justice on the Agreement Envisaged between the European Union and Canada on the Transfer of Passenger Name Record Data

Abstract

In its Opinion delivered on 26 July 2017 (in Case Opinion 1/15), the Court declared that the agreement envisaged between the European Union and Canada on the transfer of Passenger Name Record (PNR) data may not be concluded in its current form. Although the Court found that the systematic transfer, retention and use of all passenger data, as provided for by the draft agreement, are, in essence, permissible; however, it reached the conclusion that several provisions of this draft agreement do not meet requirements stemming from the fundamental rights of the European Union. First, the Court set out that the provisions on the transfer of sensitive data to Canada and on the processing and retention of such data are incompatible with the fundamental rights. Second, the Court ruled that the use by the Canadian authorities of PNR data during the air passengers’ stay in Canada is not adequately regulated by the draft agreement, which fails to provide for guarantees capable of preventing abuses. Likewise, the continued storage of the PNR data of all air passengers after their departure from Canada which the draft agreement permits is not limited to what is strictly necessary to fight terrorism and serious transnational crimes. Third, the Court considered that a series of other provisions of the draft agreement are incompatible with fundamental rights unless the agreement is revised in order to better delimit and define the interferences. These provisions concern, in particular, definition of PNR data, regulation of automatic treatment of these data, disclosure of PNR data by the Canadian authorities to the government authorities of a non-EU country and information of passengers of the use and disclosure of their data.