Following the Belgian Constitutional Court, yesterday also the German judge referred questions to the European Court of Justice on the PNR Directive, which obliges retention of passenger name records, and on whether this is in line with fundamental rights and the EU treaties. A third referral of questions is in the pipeline in Austria, through a complaint of NGO Epicenter.works, whose case I have joined. After many years (I myself am involved in this topic since 2004!), the European Court of Justice will finally judge the PNR Directive. It is high time, as it is abundantly clear that the PNR Directive will not be able to stand the test of legality.
Because of this European law, data of all air passengers, innocent or not, must be registered and stored for years. No one contests that these data may be useful in the fight against crime and terror. But the large-scale non-targeted retention of ALL data, without any suspicion, is unnecessary and disproportionate. Various courts have repeatedly established that mass surveillance laws are not allowed. But the Member States are enthusiastically going on, and even are asking the Commission to investigate the storage of PNR of all train, bus and boat passengers.
If indeed many terrorists and criminals would be convicted because of unlimited retention of PNR data, then we could still assess whether it is indeed proportionate to have such an intrusive measure. But despite asking repeatedly for fifteen years what exactly makes PNR effective (how many people have been convicted after they were spotted through PNR), I have never found any evidence. The Dutch Minister Ferd Grapperhaus literally said that there is no statistical evidence available, but he was still convinced of PNR as instrument against serious crime and terrorism. The European courts and many experts have repeatedly established that a more targeted, limited retention of data, and obligatory exchange between Member States, is a better method to find criminals, and more in respect of fundamental rights.
In an earlier judgment on an agreement between the EU and Canada on the transfer of PNR data, the European Court of Justice decided that the storage and the use of those data is allowed, but only for what is actually necessary and proportionate. Despite the clear opinion of the Court, the European Commission has not done anything to adapt the PNR Directive to bring it in line with the standards set by this court. Despite our numerous questions and letters on this, the Commission buries its head in the sand. We will have to wait until the judge takes up the role of a politician and takes action. If the European Court of Justice will apply the same principles as it did earlier, in similar cases, it can be very well expected that it will strike down the EU PNR Directive.