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On 26 July 2017 the Court of Justice of the European Union (CJEU) delivered its Opinion that the draft Passenger Name Record (PNR) Agreement between the EU and Canada is not compatible with the EU Charter of Fundamental Rights (the Charter) and may not be concluded in its current form. The Opinion follows a referral by the European Parliament to the CJEU and is the first time the Court has been requested to examine the compatibility of an international agreement with the EU Charter.

The Court observed that the Charter rights are not absolute, and that an agreement allowing for the transfer and retention of data to ensure public security would be capable of justifying even serious interference with fundamental rights such as privacy and personal data protection. Any such interference should, however, be (1) proportionate, (2) strictly necessary and (3) guided by clear and precise rules governing its scope and application. The transfer of sensitive data would also require a precise and solid justification in addition to that of public security and the Court concluded that in this instance, there was no such justification.

Retention of Data

The envisaged Agreement provided that PNR data may be retained by Canada for five years after receipt of such data. The Court observed that the retention of data for the duration of a visitor’s stay in Canada did not exceed the limits of what is strictly necessary, but noted that as PNR data would be used as part of the verification process to grant entry into the territory, subsequent use of that data would require fresh justification by way of new circumstances or objective evidence. The Court suggested that except in cases of valid urgency, any decision by Canadian authorities to use PSN data after entry has been granted should be subject to prior review by a court or independent body. The retention of data after departure from Canada should also be limited to air passengers only when there is objective evidence available inferring a terrorism or crime risk.

The Court declared that as a number of other provisions were vague and did not adequately address the processing of PNR data in a clear and precise manner, it was not satisfied that the Agreement in its current form was compatible with the Charter.