Constitutional Court (Belgium) - 135/2019

Consitutional Court - 135/2019
Court:	Constitutional Court (Belgium)
Jurisdiction:	Belgium
Relevant Law:	PNR Directive 2016/681/EU Article 23 GDPR API Directive 2004/82/EC
Decided:	n/a
Published:	n/a
Parties:	Ligue des droits humains v Conseil des ministres
Case Number:	135/2019
European Case Law Identifier:	n/a
Language:	French and Dutch
Original Source:	Constitutional Court of Belgium (in EN)

The Belgian Constitutional Court refereed ten preliminary questions to the CJEU concerning the obligation to transfer passenger information in light of the review of the law requiring transportation providers and traveloperators to communicatepassenger information, under Article 261 TFEU.

English Summary

Facts

The federal Act of 25 December 2016 concerning the treatment of passenger information establishes an obligation for carriers and travel operators to communicate passenger information, the so-called PNR data. This law mainly aims to transpose the PNR Directive 2016/681/EU (Passenger Name Record) into Belgian legislation. The collected PNR data are transferred to a Passenger Information Unit (PIU), which is in charge of the database set up for that purpose. The PNR system is applicable in Belgium to air carriers (as determined by the PNR Directive). It was extended to bus and train carriers. The contested Act also transposes the API Directive 2004/82/EG (Advanced Passenger Information), which requires air carriers to transfer certain data, inter alia, to combat illegal immigration and to improve border control. The NGO Ligue des droits de l’homme (currently Ligue des droits humains) has introduced an action before the Constitutional Court for annulment of the federal Act of 25 December 2016. The applicant in essence invokes a violation of the right to respect for private life and the protection of personal data, protected by the Constitution and the Charter of Fundamental Rights of the European Union. The applicant objects to the general character of the collection, transferral and processing of the PNR data, which concern all passengers, as well as the very broad nature of these data. The Act is also contended to violate the free movement of persons, protected by the Treaty on European Union and the EU Charter, by extending the PNR system to flights within the European Union, as it would indirectly reintroduce border controls.

Dispute

The Belgian Constitutional Court validates several measures that are contested in the action for annulment. The Court holds that the delegations to the King for the execution of the law do not violate the right to respect for private life (B.21-B.29). It validates the terms «identity document» and «travel documents», which the applicant found too vague. According to the Court, these terms have an ordinary meaning and do not create legal uncertainty (B.30-33). The creation of the passenger database and its administration by the PIU is also considered constitutional, taking into account the guarantees provided for by the contested law (B.56-B.59). Furthermore, the Court refers ten preliminary questions to the Court of Justice, in particular in view of the Opinion 1/15 of 26 July 2017 of the Court of Justice on the PNR draft agreement between the European Union and Canada. Firstly, the Court refers a question to the Court of Justice on the compatibility of the system of the PNR Directive with the right to respect for private life and the protection of personal data, in particular on the following points:

-the extremely broad and non-exhaustive character of the PNR data(B.34-B.43);

-the general and untargeted character of the PNR system, which concerns all passengers without distinction (B.44-B.47);

-the systematic prior assessment of the PNR data of all passengers (B.60-B.61).

In addition, several questions concern the interpretation that must be given to provisions of the PNR Directive with respect to:

-the possibility to process PNR data in the framework of monitoring the activities pursued by intelligence and security services (B.54);

-the designation of the Passenger Information Unit (PIU) as authority that decides on granting access to PNR data in the framework of targeted searches, after a period of six months (B.62-B.63);

-the general retention period of the data of five years, without making a distinction between passengers that could pose a risk for public safety and other passengers (B.64-B.67).

Moreover, the Court inquires whether Article 23 GDPR applies to the contested law (B.19). The Court also refers a question to the Court of Justice with respect to the applicability of the obligations to the API Directive to flights within the European Union, which could indirectly implicate the reintroduction of internal border controls (B.68-B.70). Lastly, the Court asks the Court of Justice whether it can temporarily maintain the effects of the Act if, based on the answers of the Court of Justice, it would come to the conclusion that the contested Act violates European law. This would permit the Court to avoid legal uncertainty and enable the continued usage of prior collected and saved information.

Holding

Pending the response of the Court of Justice which is necessary to enable the Constitutional Court to give judgment, the case before in the main proceeding is suspended.

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