ECJ ruling: This is how the EU states want to trick air passenger surveillance

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ecj ruling this is how the eu states want to.jpg
ecj ruling this is how the eu states want to.jpg

According to the EU Council, it would be best if the countries declared a “real and current or foreseeable terrorist threat” in court.

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The Czech Presidency of the EU Council of Ministers is desperately looking for ways for the member states to circumvent the various restrictions from the landmark judgment of the European Court of Justice (ECJ) on the screening of flight passenger data. In a 14-page discussion paper dated September 9, which was marked confidential and published by the British civil rights organisation state watch has now published.

The EU states are particularly upset by the ECJ’s announcement that the unreasonable transmission and processing of passenger data on flights within the EU should only be permitted if there is a “real and current or foreseeable terrorist threat” in a country of the community. According to the Czechs, it would be easiest “if all or most of the member states” could credibly assure a court that they are confronted with such a widespread threat.

The Council Presidency is asking the delegations to check “whether this is a realistic assumption, at least in their situation”. She justifies this option of declaring a permanent state of emergency with the fact that, despite the restrictions from the judgment, there appear to be “weighty operational reasons” for continuing to apply the directive for the storage of so-called Passenger Name Records (PNR) on flights within the EU .

For this reason, Europol was also asked to present its own activities in connection with passenger name records and a potential EU-wide threat analysis for air traffic, according to the brainstorming session. The European police office could possibly generate “added value” for the member states.

According to the paper, many EU countries have pointed out “that applying the system introduced by the PNR Directive only to a selection of specific flights within the EU entails a number of significant disadvantages”. Against this background, it would make sense to look for “practicable alternatives” that “could do justice” to the ECJ decision.

According to a report at the Federal Criminal Police Office (BKA), which acts as the PNR central office in Germany, 61 percent of the data records so far relate to such “intra-EU flights”. If the line of the Luxembourg judges were strictly followed, the majority of the collective basis would be lost from the outset. The police office considers these restrictions to be “not conducive” in terms of effective law enforcement and ensuring public safety, although the hit rate for potential threats when using the instrument was well below one per thousand in around 2019.

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