February 17, 2011
By Staff Reporter
The agreement was signed in May of last year but is this week being challenged by one of the European Union’s top law officers.
The agreement is known by the acronym ‘PNR’ which stands for Passenger Name Record.
PNR is an advance on existing rules that mean airlines flying passengers into the U.S. must supply a passenger manifest to U.S. Customs and Border Protection, a division of the Department of Homeland Security.
The PNR agreement was actually signed on behalf of the EU by Ireland’s Ambassador to the United States, Noel Fahey, because Ireland held the rotating EU presidents at the time.
The deal was additionally signed on behalf of the European Union Commission by then EU ambassador to the U.S., Gunter Burghardt, who has since been succeeded by former Taoiseach John Bruton.
It is the Commission’s role in the deal that has thrown up a legal red flag.
The EU Advocate General, who is the top legal adviser to the European Court of Justice, has taken the view that the agreement has to be annulled because it is in breach of EU law.
In stating this position, Phillippe Leger has sided with the European Parliament which is of the view that the Commission and individual member government exceeded their powers by agreeing to hand over data on EU citizens to a foreign authority, in this case the U.S. government.
While the argument might appear on the surface to be just another Euro spat, there is within it the very real potential for travel chaos and significant retaliation by the U.S. if PNR is nullified by the Luxembourg-based European Court.
Prior to the agreement being signed, the U.S. warned that European airlines flying to U.S. cities could be denied landing rights and face fines if they did not supply PNR data.
If the EU unilaterally pulls out of the agreement, passengers leaving the 25 EU countries for American destinations could face nightmare lines at either or both ends of their journeys while they are checked out on a face-to-face basis by U.S. immigration officers.
There is a very real possibility of this scenario coming about, though not this side of the New Year.
The European Court tends to accept the opinion of the Advocate General in about 80 percent of cases.
PNR, which has a built-in lifespan of three-and-a-half years before it comes up for renewal, requires European carriers such as Aer Lingus to supply 34 separate pieces of information on every passenger within 15 minutes of a plane taking off.
The information ranges from credit card details to where and how the passenger purchased a flight ticket.
Certain mutually agreed “sensitive data” is filtered and deleted by the U.S. authorities. An example of such information is a passenger’s special meal request, which might reveal race or religion.
“PNR is an extremely important counter terror tool and we place great value on it,” a spokesman for the Department of Homeland Security told the Irish Echo.
However, the spokesman said that privacy issues were viewed by DHS as being equally important to the benefits derived from collecting the PNR data.
There were a number of safeguards built into the data gathering system, the spokesman stressed.
He said that the U.S. was not expecting a ruling from the European Court for a few months.
“Nothing will change immediately,” the spokesman said.
Sources close to Ireland’s Minister for Transport, Martin Cullen, said
EU ministers were already anxious to address the issue before the expected court ruling.
A spokeswoman for Cullen would not be drawn on the details of any such approach, but indicated that it could involve a fresh agreement rather than reviving the existing one.
“This will be examined by Minister Cullen and his colleague ministers
in the European Union, taking into account the significant progress made in addressing aviation security issues in the context of the EU-U.S. ‘Open Skies’ agreement,” the spokeswoman said.