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Table of Contents: I. Introduction. – II. From its commercial origin to the acquired purpose: the shifts of PNR data. – III. The EU-UK TCA and the problem of oversight in EU PNR Law. – III.1. The UK-EU TCA PNR provisions. – III.2. Operation of the TCA oversight provisions in practice. – III.3. Analysis. – IV. “Adequacy” standard for the UK-EU PNR data transfers. – IV.1. Overview of “Adequacy”. – IV.2. The shifting maze of PNR data processing purposes: From law enforcement to border control. – IV.3. Conditions to access PNR data. – V. PNR data processed for criminal justice or border control? – V.1. Overview of EU law. – V.2. The juxtaposition of border control and criminal justice in EU PNR agreements. – VI. Conclusion.
Abstract: The EU-UK Trade and Cooperation Agreement (TCA) offers a new chapter in the treatment of Passenger Name Records (PNR), placing PNR law in an EU trade agreement. The TCA exemplifies acutely pre-existing tensions now in the framework of an EU agreement with a third country. In this Article, we examine the evolution of PNR law and look at aspects of the TCA as to PNR relating to the sensitive issue of personal data protection in the context of cross-border data sharing for law enforcement, criminal justice, and border control purposes as an example of the thorny intersection of public law obligations placed on the private sector to provide bulk access to personal data collected for commercial purposes to public sector actors in the framework of counter-terrorism or countering serious crime. First, we provide a brief account of ‘repurposing’ the use of PNR data at the intersection of criminal justice and border controls in EU law and UK law. Secondly, we examine the question of oversight in EU law and under the TCA. Thirdly, we consider the TCA provisions on PNR data sharing in light of the strict fundamental rights review that the CJEU has adopted. Finally, we look at the incorporation of PNR data sharing into the agreement’s law enforcement section and the character of border control and criminal justice. The Article argues that PNR law appears vulnerable when seen in the light of the other international data transfers emerging on the question of oversight and accountability.
Keywords: Passenger Name Records – UK-EU relations – trade and cooperation agreement – data adequacy – governance – CJEU.
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European Papers, Vol. 8, 2023, No 1, pp. 273-299
ISSN 2499-8249 - doi: 10.15166/2499-8249/651
* Professor of Law, City University of London, elaine.fahey.1@city.ac.uk.
** Professor of Law, Queen Mary University of London, e.guild@qmul.ac.uk.
*** Lecturer in Law, University of Essex, e.m.kuskonmaz@essex.ac.uk.
