# C_2004228EN.01003201.xml

| 11.9.2004 | EN | Official Journal of the European Union | C 228/32 |
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11.9.2004

EN

Official Journal of the European Union

C 228/32

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Action brought on 27 July 2004 by the European Parliament against the Commission of the European Communities

(Case C-318/04)

(2004/C 228/67)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 July 2004 by the European Parliament, represented by H. Duintjer Tebbens and A. Caiola, acting as Agents, with an address for service in Luxembourg.

The European Parliament claims that the Court should:

| — | annul under Article 230 EC Commission Decision 2004/535/EC of 14 May 2004 (1); |
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annul under Article 230 EC Commission Decision 2004/535/EC of 14 May 2004 (1);

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| — | order the Commission of the European Communities to pay all of the costs. |
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order the Commission of the European Communities to pay all of the costs.

Pleas in law and main arguments

The European Parliament puts forward four pleas in support of its action, namely, misuse of powers by the Commission, breach of the fundamental principles of Directive 95/46/EC, breach of fundamental rights and breach of the principle of proportionality.

In respect of misuse of powers, the Parliament argues that the Commission's decision was adopted ultra vires, without complying with the provisions laid down in the basic directive 95/46/EC on the protection of personal data and in breach of, inter alia, the first indent of Article 3(2) of Directive 95/46 on the exclusion of activities which fall outside the scope of Community law.

The European Parliament stresses in addition the following aspects: the CBP (United States Bureau of Customs and Border Protection) is not a third country within the meaning of Article 25 of Directive 95/46, the decision on adequacy authorises transfers to other US governmental authorities as well as to third countries, the decision entails infringement of Article 13 of Directive 95/46 on exemptions from and restrictions on the principles on the processing of personal data (exemptions and restrictions reserved to the Member States), and on the basis of the decision, the CBP has direct access to PNR (Passenger Name Record) data, not provided for by the directive. In the light of the interdependence between the decision on adequacy and the agreement between the European Community and the United States, the decision must be considered a measure which is not appropriate for the objective pursued, namely to provide for transfers of PNR data.

In its second plea, the European Parliament takes the view that the Commission's decision on adequacy also infringes the fundamental principles of Directive 95/46. In particular, the purpose of the processing referred to in the decision is incompatible with the purpose of the initial processing; there is no legal processing obligation; the principles of the basic directive are infringed as regards the processing of sensitive data, the right of access and related rights; the right to judicial protection is not guaranteed and the authorisation to transfer to other US authorities and other countries is incompatible with Directive 95/46.

Thirdly, the European Parliament maintains that the Commission's decision on adequacy infringes fundamental rights, in particular the right to private life and the right to protection of personal data laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as applied by the Court of Justice and the European Court of Human Rights.

The Parliament's fourth plea alleges that the decision on adequacy also infringes the principle of proportionality, in particular on account of the fact that an excessive amount of PNR data can be transferred and those data can be kept by the US authorities for too long.

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(1)  Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection (OJ 2004 L 235, p. 11).

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