EU May Stop Providing US-Bound Air Passenger Information

By Victor Comras

The European Court of Justice's Advocate General Philippe Leger, has just issued an Advisory Opinion favoring a EU Parliament challenge to a May 2004 agreement under which EU countries provide the US Bureau of Customs advance data on all air passengers traveling to the United States. Information provided under the agreement includes the name, address, form of payment and contact phone numbers for each passenger. It also includes other background information that may be available to airline and airport officials. The Advocate General Opinion found that the agreement, while authorized by the EU Council , lacked a sufficient legal basis and was contrary to existing EU law. His Opinion called for the agreement to be annulled. The EU Commission had previously held that the agreement fully met European privacy restrictions criteria. The Advocate General�s finding bolsters a previously existing court challenge to the agreement initiated by the EU Parliament several months ago. The Luxembourg-based European Court of Justice is expected to rule on the case in early 2006. While the Advocate General�s Opinion is not binding on the court it has been followed in a majority of cases before the court.

Since May 2004, the EU has given U.S. authorities 34 categories of information on passengers flying to the United States, including name, address, all forms of payment and contact phone numbers. The agreement followed US Congressional action requiring each air carrier operating passenger flights in foreign air transportation to or from the United States to provide the Department of Homeland Security with electronic access to passenger name record data to the extent it is collected and contained in the air carrier�s automated reservation/departure control system.

An EU court ruling abrogating the agreement would throw a major wrench into the existing US aviation control system and would represent a major set-back for the G-8�s anti-terrorism Secure and Facilitated Travel (SAFTI) initiative.

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