VI The use of security scanners as a fundamental rights dilemma
3. Assessment of the case in relation to the ex ante review of fundamental rights: EP as an initiator of the review of
fundamental rights and the change of the position of the Commission
On the right to privacy it is set out in the Charter:
Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
This classical human right can be seen to reflect the right to protection of this realm as stated in all constitutions of Member States and hence to belong to the basic rules of Union law.700 We should take note that privacy and the right to privacy do not mean the same. The right to privacy is instrumentally targeted on something while in privacy at issue is something, i.e. certain special interests that are targeted by the norms.701 Article 7 can also be considered to entail a positive obligation, which is stronger when the possibilities of an individual to take care of the protection by himself are weaker.702
For a long time, the right to privacy was deemed to mean the right to be left alone.703 Nowadays, according to many commentators there is more to privacy. The respect for a private and family life is more than simply the right to be left alone.704 Underlying the discussion on privacy is the classical dichotomy between private and public realms discussed already in the works of Socrates and Aristotle.705 The CJEU has increasingly referred to Article 7 of the Charter in its recent interpretation practice.706 It is particularly noteworthy that in May 2014 the CJEU came out with an extremely important ruling in
699 See Report from the Commission to the European Parliament and the Council. 2011 annual report on the implementation of regulation (EC) No 300/2008 on common rules in the field of civil aviation security. COM(2012) 412 final, Brussels 24.7.2012, p. 4.
700 See Bernsdorff Norbert: Kapitel II, Freiheiten. In Meyer Jürgen (Hrsg.): Kommentar zur Charta der Grundrechte der Europäischen Union. Nomos Verlagsgesellschaft. Baden-Baden 2003, p. 146. This study is creditable due to thorough discussion on the preparation of the Charter in the European Convention.
701 Mahkonen Sami: Oikeus yksityisyyteen. Werner Söderström Lakitieto Oy. Porvoo 1997, p. 14.
702 Bernsdorff, p. 151.
703 See Blume, pp. 13-14.
704 See Bernsdorff, p. 152.
705 Turkington Richard C., Trubow George B. and Allen Anita L.: Privacy. Cases and Materials. The John Marshall Publishing Company. Houston 1992, p. 1.
706 See for instance C-212/13 Rynes.
the case Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González.707 The Court confirmed in this case
"the right to be forgotten" of individuals. The verdict represents an important interpretation of Data Protection Directive and Articles 7 and 8 of the Charter and it will certainly change the whole setting of EU data protection regime in relation to the right to be forgotten.
We can interestingly conclude that in the case of security scanners of all the EU institutions, it was the EP that most effectively fulfilled its role in the ex ante review of fundamental rights. The Commission probably acted somewhat hastily with certain kind of a tunnel view focused on security aspects. Because the Council was more or less unable to act and in this situation it was the EP that raised the fundamental right concerns and somehow got the discussion on the right track. The EP functioned as a primus motor in securing compliance ex ante with fundamental rights in the EU legislative process. The role of the EP as a protagonist in policy-making with regard to human rights has been obvious. Very often this has been seen in a conflicting relation to the Council.708
It is interesting that the beginning of this legislative story happened already before the entry into force of the Lisbon Treaty. In the current situation, there are even more constitutional powers for the EP to carry out its role. Another observation links the example with procedural handling of fundamental rights issues within the EP architecture. The problems that emerged were largely dealt with in the context of a sectorial EP Committee, namely the TRAN. This can be regarded as the most welcome sign since it indicates that the EP structure is prepared to detect and tackle horizontal fundamental rights issues in prima facie sector-specific legislative dossiers.
Lessons learnt from the case of security scanners can be concluded by stating that in this legislative file, the EP exercised strong ex ante review of fundamental rights. The EP was able to take a leading role in highlighting the serious fundamental rights concerns, and also bringing a strong political impetus, to take into account fundamental rights dimension of the dossier. A good quality of legal technical analysis and argumentation was successfully combined with the necessary political thrust. The case of body scanners is a good example that ex ante review of the EP can have a positive effect on the EU legislative process. With this file, the EP put the whole process on the right track that would not have been the case otherwise. I find it quite obvious that if the initial security scanner legislation would have been adopted, it would eventually have ended in the docket of the CJEU. In this case, annulling this piece of legislation would have been at issue due to insufficient proportionality considerations. The focus in the assessment would then have been on whether the legislation is in line with Article 52 (1).
707 C-131/12 Google. Also this landmark ruling originated from a reference for a preliminary ruling under Article 267 of TFEU.
708 See Schneider Catherine: Menschenrechte und Übertragung der Souveränität auf die Europäische Union: Folgen für die Definition und Entwicklung der Menschenrechte. In Haller Gret, Günther Klaus, Neumann Ulfrid (Hg.): Menschenrechte und Volkssouveränität in Europa. Gerichte als Vormunde der Demokratie? Campus Verlag GmbH. Frankfurt am Main 2011, pp. 205-206
What conclusions can we draw from the EP position presented above? It is obvious that the EP is keen on taking a significantly higher profile in the AFSJ and protection of fundamental rights. It is encouraging to note that at least in these statements, the EP pays a lot of attention to the preparatory phase of legislation that would have the merit of improving quality of legislative texts.
It remains to be seen if the views presented in the resolution are more likely showing the new competence of the EP in the AFSJ or if these notions of taking fundamental rights more seriously, also in the preparatory phase of legislation, will lead to concrete actions from the part of the EP. In any case, we have a reason to believe that a new form of ex ante review of fundamental rights in the EP has emerged in addition to traditional methods of bringing fundamental rights into EU discussion, like the written questions of MEPs.709 One could even say that the ex ante review of the EP is already in a consolidation phase. This is also a proof of the strength of European constitutionalism with one expression thereof being the pluralist ex ante review: After all, the EP was able to influence the Commission with fundamental right arguments in an effective manner, which was responsible for the preparation of this legislative file. Consequently, the Commission had to engage in a wide-ranging impact assessment focusing on the relation of the proposed legislative act to fundamental rights set out in the Charter.
Substance-wise, the problem from the beginning was the inadequate handling of the Charter rights in the preparation of legislative proposal.
As for the case of PNR, in the initial security scanner proposal the issue of limiting fundamental rights went too far. If we look at the substance, we can identify again the emerging concern on proportionality and we have a good reason to say that this test was failed in the initial proposal. The principal claim in this file can be found in non-discrimination, right to privacy and the right to data protection. In this case, ex ante review was also carried successfully in the law-making process, despite the failure of the Commission to take fundamental rights seriously in its initial proposal. Once more, the discussion was focused on the limitation dimension of the legislative proposal where the Commission tried to stretch the boundaries of limitation. It has been argued that counter-terrorism is a policy area labelled by externalization and Europeanisation and hence illustrative for the expanding powers of the executive branch.710 Only seldom were calls for positive obligations heard in this case.
709 The question for written answer is a procedure in accordance with rule 117 of the Rules of Procedure of the European Parliament whereby any Member may put questions for written answer to the President of the European Council, the Council, the Commission or the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy. MEPs very often have used this method to take up issues related to fundamental and human rights.
710 See Curtin Deirdre: Executive Power of the European Union: Law, Practices and Living Constitution. Oxford University Press. Oxford 2009, p. 195.