How a Sentence Can Affect International Agreements

An opinion from the Court of Justice of the European Union could change all forthcoming international agreements on the transfer and processing of the so-called Passenger Name Record data, that is data of passengers carried by commercial airlines. In July 2017, the Court wrote that the agreement between Canada and the EU, which is similar to those already secured with many Countries including the United States, is incompatible with the Charter of Fundamental Rights of the European Union on the matter of privacy and data protection.

"The January 15 opinion is important on many levels", says Arianna Vedaschi, who confronts the matter in a forthcoming article in Constitutional Law. "On the one hand, the Court recognizes, at least theoretically, the legitimacy of mass monitoring of passengers carried out through the systematic collection and storage of their data. On the other hand, the Court considers the specific regulation to be unlawful". The judges based in Luxembourg did not chose to balance the right of public security and the right of freedom. They rather seemed to want to protect them both at the same time. "There is another side to the story. For the first time ever, the Court sent an opinion on an international agreement. The Court has assessed its legitimacy and has laid down strict guidelines to be followed by the institutions that will rewrite the agreement. The Court has acted as a lawmaker. There will be consequences on the whole EU system".

The agreements currently under negotiation were judicially suspended. Any new agreement will take into account the this opinion in order to avoid another ruling of illegality. An impact on European legislation cannot be ruled out either, since "some aspects of the recent PNR Directive are not aligned with the opinion of the Court of Justice".

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