The purpose of Directive 2004/82/EC on the obligation of carriers to communicate passenger data is to improve border controls and combat illegal immigration. The purpose of Directive (EU) 2016/681 is to prevent, detect, investigate and prosecute terrorist offences and serious crime.
The German law on the implementation of international health regulations, updated as a result of the COVID-19 crisis, requires the Federal Criminal Police Office or the Federal Office of Administration to provide health offices, at their request, with data on the accessibility of travellers and people they may have had contact with.
According to the broadcaster NDR, Hamburg’s health offices are sent information with the names and addresses of passengers who have travelled by plane to a COVID-19 risk area in order to check whether the passengers are complying with quarantine obligations.
State Secretary Engelke confirmed that, in the course of 37 requests, the Federal Office of Administration provided health offices with data on the accessibility of sick air passengers and people they might have had contact with (usually in adjacent rows of seats). He stated that passenger information is not processed for the purpose of quarantine monitoring.
On 22 September 2020, Members of the European Parliament (MEPs), Moritz Korner and Sophia in’t Veld of the Renew Europe Group, addressed a written parliamentary question to the European Commission.
“At the LIBE Committee meeting of 21 September 2020, the Commission noted that the use of PNR data for health policy purposes was not in line with Union law” stated MEPs and asked the Commission “does it intend to launch an infringement procedure against Germany?” and “which Member States have adopted similar laws on the use of passenger information in the context of the COVID-19 crisis?”
Lastly, the MEPs enquired “does the Commission intend to launch infringement proceedings against them?”
On 02 December, these questions were responded by Home Affairs Commissioner Ylva Johansson, on behalf of the European Commission. Her response emphasised that “the Passenger Name Records Directive (Directive (EU) 2016/681) currently provides that passenger name record data collected in accordance with the directive may be processed only for the purposes of preventing, detecting, investigating and prosecuting terrorist offences and serious crime”.
The Commissioner stated that “the Commission refers the Honourable Members to the Passenger Name Records Review Report, in which it reported that the several Member States have indicated that the use of passenger name record data could constitute a valuable tool to protect public health and prevent the spread of infectious diseases”. She further reported that “the idea of using this data to protect public health has gained even more prominence since the emergence of the COVID-19 pandemic, with more Member States indicating that there is a need to allow for the use of passenger name record data to tackle such health-related emergencies” and “the Court of Justice, in its Opinion 1/15 on the draft EU-Canada Passenger Name Records agreement, has accepted the use of such data for purposes relating to serious public health risks, in a situation where the cases in which such use is permissible was described in a clear and precise manner and where those cases were exceptional and limited to what is strictly necessary”.
The Home Affairs Commissioner explained that “the Commission notes that, without prejudice to its powers as guardian of the Treaties, national authorities are primarily responsible for implementing and applying correctly EC law”.
In closing, Commissioner Johansson asserted that “the Commission reminds the Honourable Members that it is currently carrying out the analysis of the national measures adopted to transpose the Passenger Name Records Directive” and “following this assessment, it may decide to take enforcement actions if it detects non-compliance of national legislation”.
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