Passenger name record (PNR) data: How the EU is promoting (virtual) security by actually limiting Passengers' fundamental rights

• Published date: 01 January 2023
• Author: Emilio De Capitani
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/eulj.12479

KALEIDOSCOPE: COMMENT ARTICLE

Passenger name record (PNR) data: How the EU is

promoting (virtual) security by actually limiting

Passengers' fundamental rights

Emilio De Capitani

*

Abstract

The use for security purposes of airline passenger data (PNR) has gradually come to the fore espe-

cially in EU-US relations because of the tension between those who considered the use of PNR an

effective tool in the fight against terrorism and those who considered the interference in citizens'

privacy disproportionate. The Court of Justice intervened decisively on the issue in June 2022 with

the “Ligue des Droits Humains”Judgment C-817/19. This ruling should have been followed by a

review of the national legislations that transposed the Directive. On the contrary, the Member States

are still going in theopposite direction to that indicatedby the Court.

1|INTRODUCTION: THE PNR DATA LEGAL REGIME IN HISTORICAL

PERSPECTIVE: HOW TO BUILD A MULTILEVEL IMBROGLIO?

Security controls on the movement of people are a relatively recent historical phenomenon that developed, particu-

larly with the establishment of modern nation states,

1

for reasons related to the control of entry into their territories

both for security purposes and even for preventing potential epidemics. For instance, in the 17th century, ships

entering a foreign port were required to provide a list of their passengers, the so-called “Manifest”, before they could

disembark. After World War I, possession of a valid passport became the norm following the Paris Conference of

1920 organised by the League of Nations. In Europe, even with the abolition of identity control at borders as part

of the Schengen cooperation system, alternative, stringent security measures have been adopted to ‘compensate’

for such freedom of movement. Thus, even today, identity checks remain the general rule when boarding a ship or

airplane, applying recommended practices adopted by international organisations such as the ICAO, whose purpose

is not only facilitating the mobility of people

2

but also to ensure the security needs of participating states.

The most widely used system internationally is the API (Advance Passenger Information) system dealing with

the collection of information of a passenger travelling by air during check-in, either online or at the airport. The

types of information gathered includes, notably: the number and type of travel document used; nationality; first

* Former Secretary of the Civil Liberties Commission (LIBE) of the European Parliament -1998-2011, Belgium

1

Although forms of ship passenger registration date back to the 16th century. See for example: Lancour, Harold, comp. A Bibliography of Ship Passenger

Lists, 1538–1825; Being a Guide to Published Lists of Early Immigrants to North America. 3d ed. New York: New York Public Library, 1978.

2

The reference text for this type of practice is Annex 9 “Facilitation”of the ICAO Convention.

Received: 19 November 2023 Accepted: 20 November 2023

DOI: 10.1111/eulj.12479

212 © 2023 John Wiley & Sons Ltd. Eur Law J. 2023;29:212–222.wileyonlinelibrary.com/journal/eulj