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The life cycle of passenger name records in European Union law—on the normalisation of crisis

Fahey, Elaine ORCID: 0000-0003-2603-5300 (2023). The life cycle of passenger name records in European Union law—on the normalisation of crisis. Irish Jurist,

Abstract

The topic of passenger name records constitutes one of the thorniest areas of European Union (EU) law. EU law has given rise to a Passenger Name Records Directive which has its origins in a third country international law agreement with the United States, foisted upon the European Union by US law in the wake of 9/11. The debacle with the US resulted in several highly controversial international agreements and initially disastrous European Parliament litigation. Several decades on, the passenger name records saga shows no sign of abating. It has witnessed nearly two decades of policy shifts on data transfer with third countries, a stream of controversial decisions by the European Court of Justice (the Court) as to third country legal orders and has failed to quell concerns as to its evolution. The European Union now has a range of transfer agreements with many countries (and many under negotiation) that continue to give rise to complexity when it comes to renegotiations and to evolve in line with case-law. Internally, i.e. within the EU legal order, the Directive has been upheld in 2022 by the European Court of Justice and has been the subject of challenges by civil liberties organisations from the outset. Recent Court of Justice litigation has evinced a degree of “whitewashing” of the Directive’s origins—i.e. the Court not being transparent about the Directive’s provenance. Whether the European Court of Justice has actually “Charter-proofed” or even “whitewashed” the Directive (i.e. approved or even downplayed its complex origins), however, remains to be seen. Externally, the European Union has faced complex negotiations with many developed countries over the place of passenger name records in international agreements. This article explores the “normalisation” of the passenger name records into European Union law from wholesale crisis law, through its internalisation (Section I), institutionalisation (Section II) and constitutional normalisation (Section III). It thus considers the internal and external reach of the passenger name records regime and the deepening and widening of policy which it has involved.

Publication Type: Article
Additional Information: This is a pre-copyedited, author-produced version of an article accepted for publication in The Irish Jurist following peer review. The definitive published version Fahey, Elaine (2023). The life cycle of passenger name records in European Union law—on the normalisation of crisis. Irish Jurist, is available online on Westlaw UK.
Publisher Keywords: Area of Freedom, Security and Justice, crisis data transfer, European Court of Justice, passenger name records
Subjects: H Social Sciences > HN Social history and conditions. Social problems. Social reform
H Social Sciences > HV Social pathology. Social and public welfare
J Political Science > JN Political institutions (Europe)
K Law
Departments: The City Law School > Academic Programmes
The City Law School > Institute for the Study of European Laws
The City Law School > International Law and Affairs Group
[thumbnail of final.pdf] Text - Accepted Version
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