Leger urges halt of European passenger data transfer to DHS

European airlines should stop providing passenger information to the U.S. Homeland Security Department, because the legal basis for the data transfers is inadequate, a top official of the European Union's highest court recommended Nov. 21.

Phillipe Leger, advocate general of the European Court of Justice, urged annulment of a May 2004 trans-Atlantic agreement permitting the European passenger data to be shared with the U.S. Bureau of Customs and Border Protection as an anti-terrorism measure.

Though Leger's opinion is not binding, it is seen as a precursor for decisions about the passenger data to be issued by the court in early 2006.

Initial reaction from European Commission officials was negative, with warnings that if the EU agreement about information sharing is voided, it could result in chaos with dozens of separate bilateral agreements.

"If this agreement ends up being scrapped, the U.S. response could cause serious difficulties for EU airlines flying to America," Timothy Kirkhope, UK conservative spokesman in the European parliament, told EUPolitix.com, an online news publication.

Following the Sept. 11, 2001 terrorist attacks on America, Congress adopted legislation requiring airlines flying to the United States to provide electronic access to passenger name records to U.S. authorities. The U.S. and European Commission approved language in May 2004, and the Council of the European Union adopted an agreement the same month. The agreement facilitated the data transfers and stipulated that Customs and Border Protection offer sufficient protection for the personal data involved.

The European Parliament has asked the court of justice to annul the agreement, and a decision on that case is pending. However, Leger, in the advisory opinion issued Nov. 21, said the legal basis for the 2004 actions were inadequate.

"Advocate General Leger proposes annulment of the commission and council decisions on transfer to the American authorities of personal information concerning air passengers," the court said in a press release. "In his view, neither the council decision approving the agreement nor the commission decision holding that information to be sufficiently protected by the United States have an adequate legal basis."

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

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