Developing a European Standard for International Data Transfers after Snowden: Opinion 1/15 on the EU‐Canada PNR Agreement
| Published date | 01 November 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12378 |
| Date | 01 November 2018 |
| Author | Monika Zalnieriute |
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CASE
Developing a European Standard for International Data
Transfers after Snowden: Opinion 1/15 on the
EU-Canada PNR Agreement
Monika Zalnieriute∗
In Opinion 1/15 the Court of Justice of the European Union (CJEU) held that the proposed
EU-Canada Passenger Name Record (PNR) agreement must be revised because parts of
it are incompatible with the EU fundamental rights framework. This note argues that the
significance of Opinion 1/15 can only be understood in the broader historical context of
increasing international securitisation between the 9/11 attacks in 2001 and the Snowden
revelations in 2013. Opinion 1/15 emerges as a powerful addition to the existing data privacy
trilogy established by the CJEU in the post-Snowden era in an attempt to re-balance the
terms of international cooperation in data-sharing between the EU and other countr ies. These
terms were largely modelled around national security interests that have gained significant
prominence in the aftermath of 9/11. While pro-securitisation policies have been successful in
gaining support among private and public actors, it is doubtful whether the CJEU pushback –
without political support from EU Commission and Member States - will achieve similar
success.
INTRODUCTION
The new international significance of data privacy can hardly go unnoticed, and
it seems that everyone is talking about this perplexing area of international law
and international relations. Indeed, the importance of ‘data privacy momentum’
inspired by the Snowden revelations of 2013 is still unfolding five years later
and numerous ‘wars’,1‘battles’,2‘fights’, ‘tensions’3and ‘Great Games’4over
data privacy between various actors in the international arena are more visible
than ever. Far-reaching manifestations of international disagreements over data
privacy regulation, such as the Court of Justice of the European Union’s (CJEU)
∗Postdoctoral Fellow, Allens Hub for Technology, Law, & Innovation, Faculty of Law, UNSW
Sydney, Australia. The author is grateful for insightful comments and constructive feedback that
Megan Richardson and anonymous reviewers provided on earlier drafts. The author is also grateful
for the continuous support and encouragement from Sandra Amanka.
1 H. Farrell and A. Newman, ‘The Transatlantic Data War: Europe Fights Back Against the NSA’
(2016) 95 Foreign Affairs 124.
2 S. Hare, ‘For your eyes only: US technology companies, sovereign states, and the battle over data
protection’ (2016) 59 Business Horizons 549.
3 L. A. Bygrave, ‘Transatlantic Tensions on Data Privacy’ (Transworld, Working Paper No 19,
2013) 3–4, 6.
4 G. Greenleaf, ‘International Data Privacy Agreements after the GDPR and Schrems’ (30 January
2016) 139 Privacy Laws & Business International Report 12-15; UNSW Law Research Paper No
2016-29 at https://ssrn.com/abstract=2764864, 8.
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited. (2018)81(6) MLR1046–1063
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Monika Zalnieriute
invalidation of the US-EU Safe Harbour agreement,5the (in)famous ‘right to
be forgotten’ case decided in Google Spain,6the creation of the new Privacy
Shield agreement7and the potential overthrow of the standard contractual
clauses in the currently unfolding Schrems II saga,8are emerging one after
another. In this politically charged transatlantic climate, the EU judicature was
requested by the European Parliament(EP), pur suant to Article 218(11) TFEU,
to ascertain whether the proposed EU-Canada agreement negotiated in 2014
on the transfer of Passenger Name Record (PNR) data was compatible with
primary EU law and, in particular, with the rights to respect for private life
and the protection of personal data guaranteed by Articles 7 and 8 of the EU
Charter of Fundamental Rights (EUCFR).9Opinion 1/15, delivered on 26
July 2017 by the Grand Chamber of the CJEU in response to this request, is
a ground-breaking example of law-making, with important implications for
many areas of EU law, the future of the EU legal framework for the PNR
agreement, as well as international data transfers and transatlantic data relations
more generally.
It is not possible to discuss all the different aspects of this judgment here.
Instead, this case note argues that the real significance of Opinion 1/15 can
only be understood in the broader historical context of increasing securiti-
sation on the international level between the 9/11 attacks and the Snowden
revelations. The note adopts an interdisciplinary lens of international law and
international relations10 to better understand the so-called ‘legal politics’ and
institutional preferences of different actors in the transatlantic data privacy
landscape. While international law and political science disciplines are still
quite distant because they are organised around distinct goals and addressed to
different audiences, nonetheless there is a substantial and burgeoning intersec-
tion between the two.11 In particular, the article relies on historical institu-
tionalism12 which emphasises the importance of time and timing (also called
5 Case C-362/14 Schrems vData Protection Commissioner EU:C:2015:650, [2015] ECR i-627.
6 Case C-131/12 Google Spain, SL, Google Inc vAgencia Espanola de Proteccion de Datos (Google
Spain) EU:C:2014:317, [2014] ECR I-317.
7 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive
95/46/EC of the European Parliament and of the Council on the adequacy of the protection
provided by the EU-US Privacy Shield (notified under document C(2016) 4176) (Text with EEA
relevance) OJ L 207.
8 ‘Schrems Busts Privacy Shield Wide Open’ The Register 3 October 2017 at https://www.there-
gister.co.uk/2017/10/03/schrems_busts_privacy_shield_wide_open/ (last accessed 6 October
2017).
9 Charter of Fundamental Rights of the European Union OJ 2010 C 83/389.
10 R. Keohane,‘Inter national Relations and International Law: Two Optics’ (1997) 38 Harv Int’L LJ
487; A-M. Slaughter, A. Tulumello and S. Wood, ‘International Law and International Relations
Theory: a New Generation of Interdisciplinary Scholarship’ (1998) 92 AJIL 367; K. Abbott,
‘Toward a Richer Institutionalism for International Law And Policy’ (2005) 1 J Int’l L& Int’l
Rev 9.
11 J. Dunoff and M. Pollack (eds), Interdisciplinary Perspectives on International Law And International
Relations: State Of The Art (Cambridge: CUP, 2012); E. M. Hafner-Burton, D. G. Victor and Y.
Lupu, ‘Political Science Research in International Law: The State of the Field’ (2012) 106 The
American Journalof International Law 47.
12 S. Steinmo, ‘What is Historical Institutionalism?’ in D. Della Porta and M. Keating (eds), Ap-
proaches in the Social Sciences (Cambridge: CUP, 2008); K. Thelen and S. Steinmo, ‘Historical
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(6) MLR 1046–1063 1047
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