Assessment of the case in relation to the ex ante review of fundamental rights

The prohibition of discrimination has been enshrined in Article 21 of the EUCFR by stating in paragraph 1 that “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”. According to Timo Makkonen, this provision is innovative because its scope has apparently not been restricted and it can therefore be expected to also apply to relations between private parties. Furthermore, the list of prohibited grounds set out above is not a closed list and it is additionally unprecedented among international instruments.⁶⁴⁵ These aspects make Article 21 a very special provision.

Similarly, paragraph 2 provides that “within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited”. This provision has sometimes been criticized for being narrower than the preceding paragraph and for putting non-EU country nationals in a disadvantageous position vis-à-vis EU country nationals.⁶⁴⁶

Maria Tzanou – basing her arguments on the provisions of the Data Protection Directive – finds that the principle of non-discrimination is of utmost importance proffering added value in data protection.⁶⁴⁷ The prohibition of unequal treatment can be highly relevant for some processes

643 See Opinion of the Senate of the Netherlands on the application of subsidiarity and proportionality. 15402/11, 13 October 2011. The Senate linked the proportionality concerns mainly to the retention of data of persons who are not guilty of committing a criminal offence and where the manner of processing could lead to the preparation of profiles pursuant to Article 4. Furthermore, the proposed text was considered inadequate in relation to anonymization.

644 See Letter of Commissioner Sefcovic of 11 October 2011 addressed to the Senate. Attached to the previous document.

645 Makkonen Timo: Equal in Law, Unequal in Fact: Racial and ethnic discrimination and the legal response thereto in Europe. University of Helsinki 2010, p. 157.

646 Ibid., pp. 157-158.

647 Tzanou Maria: The Added Value of Data Protection as a Fundamental Right in the EU Legal Order in the Context of Law Enforcement. European University Institute. Department of Law, p. 47. Tzanou attempts to examine what is the practical significance and normative importance of data protection in the field of counter-terrorism.

like profiling that can be discriminatory.⁶⁴⁸ In connection with the PNR case (vide infra), the risk of using this process implying the eventuality of illegal discrimination also became extremely intrinsic. Tzanou notes that Article 15 of the EU data protection directive is aimed at protecting individuals against fully automated decision-making.⁶⁴⁹

It is clear that the biggest concerns of the case of PNR were related to fundamental rights. The proposed air passenger screening practices constituted interference with right to privacy, right to data protection and prohibition of discrimination. Similarly, this case raised concerns about proportionality and the necessity of this exercise in relation to its security merits. As Tzanou sees it, the possibility of data protection to have a hard core was neglected in the PNR and there was in fact no need to fall back to the right to privacy.⁶⁵⁰

The prohibition of discrimination contains both direct (open) and indirect (hidden) forms of discrimination.⁶⁵¹ When we tackle the concept of non-discrimination we can identify its close relationship to equality. Basically, these two concepts can be held to have semantically the same meaning: The term discrimination is focused on a specific action while equality describes an ideal.⁶⁵² Hence, equality which is enshrined in Article 20 of the Charter, can be considered a more positive notion of non-discrimination.

The case of the PNR illustrates that the FRA can make a valuable contribution to the ex ante control of fundamental rights in the EU legislative process. This happens with an in-depth legal analysis of the proposed legal instrument and contains various concrete suggestions for amendments. In this legal analysis, the particular yardstick against which the fundamental rights will be evaluated is the EUCFR, with emphasis also given to the ECHR. The FRA therefore draws inspiration from this legal basis and the interpretation practice of the CJEU and the ECtHR. Very much the same can be said about the significant role of other expert bodies, the EDPS and the Article 29 Working Party, which were also capable of drawing the attention of policy-makers to fundamental rights concerns of the PNR proposals. The most essential issue is, however, the utilization of the test of permissible limitations by the FRA. This had a great impact on the process and how the substance of the legal text evolved.

In this legislative process, both the Council and the EP have taken advantage of its expertise by requesting its opinion on fundamental rights

648 Ibid., p. 47.

649 Ibid., p. 48.

650 Ibid., p. 289. Tzanou considers that the PNR case very well demonstrates reasons why data protection should be accepted as a fully-fledged fundamental right. It should be noted that Tzanou focused in her study mainly on the PNR agreements. This choice is well-founded due to incompleteness of the legislative work on internal EU PNR system. The legal points made about PNR agreements are very valid and pertinent also in the context of the “internal EU PNR system”.

651 Hölscheidt Sven: Kapitel III, Gleicheit. In Meyer Jürgen (Hrsg.): Kommentar zur Charta der Grundrechte der Europäischen Union, Nomos Verlagsgesellschaft. Baden-Baden 2003, p. 285.

652 See Schiek Dagmar, Waddington Lisa and Bell Mark: Cases, Materials and Text on National, Supranational and International Non-discrimination Law. Hart Publishing. Portland 2007, p. 26.

aspects of the proposals in question. Furthermore, the Commission has also taken into account a great number of the proposals of the FRA in its proposal for a Directive after the FRA had drawn attention to fundamental rights problems in the original Council Framework Decision.⁶⁵³ The FRA can thus serve the purpose of a neutral body involved in the EU ex ante review. It is important that it can function somewhere outside the traditional fights over competence and the political power of the EU institutions. The importance of the EDPS can especially be found in its functioning as a sector-specific expert body whose views carry a considerable authoritative weight in the field of data protection and privacy. Is it possible to draw certain conclusions from the discussion on this file in the EU? The answer is yes and in this dossier we can probably learn some procedural lessons and identify a new law-making scheme for dealing with a fundamental-rights-sensitive EU dossier. First, in this case the constitutional ex ante review of a piece of draft EU legislation cut its teeth. The more important issue was the strong involvement of the FRA that can be considered a slight novelty. This has to do especially with the action of the Agency in bringing fundamental rights more deeply into the legislative considerations, which should potentially be followed by the upcoming draft legislation. In practice this would mean a much stronger role for the Agency in the analysis of fundamental rights aspects of a given file and consequently a stronger impact on the legal text under discussion.

It would be important to involve the FRA more closely in the ex ante review of fundamental rights in the EU legislative process. The EU institutions, including the EP, should consider the Agency as a useful body in analysing fundamental rights aspects of EU legislation in preparation. It has been the EP that has repeatedly brought the FRA legal opinions into the political discussion and we can therefore claim that the EP has been the co-legislator that has used the FRA expertise most extensively. One more observation that can be made is that of the longue durée of the PNR in the legislative process. The reason for this is the sensitivity of this file from the point of view of fundamental rights.

It is also obvious that ordinary legislative procedure with more legislative actors has been one reason for the relatively long-lasting law-making phase.

In this case, I can fully associate myself to Gearty's notion of liberty being subjugated to security by the executive, in this case the Commission, at the expense of fundamental rights.⁶⁵⁴ PNR can be considered very much as a child of its time.

If we assess the case against the criteria discussed previously we can see that the problems resulted mainly from disproportionality. If we use the criteria developed for the analysis we can see that in terms of substance, the PNR case failed the tests of proportionality, necessity and also the

653 This was the general impression of the FRA on the Commission’s new proposal. According to the opinion, the Commission took account of the previous opinion of the FRA in its new proposal and referred also to the explanatory memorandum accompanying the proposal. See opinion of 14 June 2011, p. 5.

654 Gearty Conor: Escaping Hobbes: Liberty and Security for Our Democratic (Not Anti-Terrorist) Age. LSE Law, Society and Economy Working Papers 3/2010. London School of Economics and Political Science. Law Department 2010, pp. 15-16 and p. 22. Gearty analyses the US and the UK policies with regard to human rights against the background of security and liberty in the aftermath of the "war against terrorism".

interference with the core of a fundamental right. Probably the grimmest interference happened with regard to the proportionality, where the Commission crossed the line and did not sufficiently take into account Article 52 (1) of the Charter. Should the PNR have been adopted in its initial form it would most probably have been annulled by the CJEU at a later stage due to serious shortcomings with regard to proportionality. In this scenario, the court would have clearly sent a signal to the EU legislature on compliance with the requirements of this Charter provision.

The focus in this file was mainly in limiting fundamental rights with only a minor role given to promoting fundamental rights. This is clearly a result of the overly far-reaching initial legal proposal which drew the attention mainly to the limitation aspects of the legal text. In this setting, the positive obligation had no possibility to be passed.

We should nevertheless note that the text was improved in the course of the handling and this can be considered as proof of strength of ex ante review focused on the test of permissible limitations which takes place in the EU at different levels. Looking at the case from an institutional perspective, we can see that EU institutions supplemented with other stakeholders in the law-making process can function as a system of checks and balances in fundamental rights issues. The legislative process on PNR witnessed institutional struggle as a consequence of the entry into force of the Lisbon Treaty and the altered competences of EU institutions. In spite of this, the EU was able to put this file on a more sustainable track in terms of fundamental rights protection. This demonstrates the usefulness of pluralism with multiple ex ante review actors.

According to Blume, the fundamental principle in the rules on trans-border data transfer is simple: "transferring personal data to another country must presuppose that the protection level in the importing country corresponds to that of the exporting country since it assumed that the laws of each country aim at safeguarding integrity at a certain level".⁶⁵⁵ This was not the case in the PNR, and the level protection of data with regard to international transfers was a considerable problem, especially in the first Commission PNR proposals. We can see that even though the EU can be seen as a leader in data protection legislation in the world, at the same time it has its counter-terrorism and law-enforcement measures that affect this right significantly.⁶⁵⁶ In this case the text was significantly ameliorated in the course of the law-making process and problems with proportionality were duly taken care of.

Why did the Commission make such a disproportionate proposal in the first place? It seems that there was a good intention to combat terrorism. This together with the huge political pressure to do something about it led to the initial proposal. I do, however, believe that there was also a certain kind of aspiration to test some limits with regard to Commission powers and the proportionality in the proposal. If this far-reaching interpretation was

655 Blume Peter: Protection of informational Privacy. DJOF Publishing. Copenhagen 2002, p. 190.

656 Tzanou, p. 358.

accepted by other institutions, it would have been an important precedent for the Commission to go on like this also in other files. It was important that this tendency was eventually stopped.

The terrorist attacks in Paris during 2015 and in Brussels in March 2016 have put significantly more pressure on taking the PNR file further. Attempts have been made to persuade the EP, which for its part has been a loud critic of the Commission and the Council stances. The PNR file did not proceed in the EP for some years due to the resistance among mainly liberal democrat, socialist and green MEPs. In the face of a huge political pressure, the EP, however, adopted in the plenary the PNR Directive on 14 April 2016. The main elements of the compromise were related to setting up passenger information units, application to extra-EU flights with the Member States' option to apply it also to intra-EU flights and the review clause.⁶⁵⁷

657 In the practical EU law-making review clauses very often carry a significant political weight as it can be politically easier for different actors involved in the decision-making to explain that the problematic issues can be opened within a certain timeframe.

VI The use of security scanners as a