Case C-318/04: Action brought on 27 July 2004 by the European Parliament against the Commission of the European Communities
Date: 2004-09-11
Institutions: Court of Justice
Subjects: European Commission, European Parliament, United States, abuse of power, appeal to the Court (EU), data processing, disclosure of information, personal data, principle of proportionality, protection of privacy

C 228/32

EN

Official Journal of the European Union

11.9.2004

The European Parliament claims that the Court should:

Action brought on 27 July 2004 by the European Parlia-
ment against the Commission of the European Commu-
nities

— annul Council Decision 2004/496/EC of 17 May 2004 (1);

— order the defendant to pay all of the costs.

(Case C-318/04)

(2004/C 228/67)

Pleas in law and main arguments

The European Parliament puts forward five pleas in support of
its action.

An action against the Commission of the European Commu-
nities 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 first two pleas challenge the legal basis of the contested
decision. First, the Parliament submits that recourse to Article
95 EC is not justified, having regard in particular to the Court's
recent case-law on the interpretation of that provision; indeed,
Article 95 cannot be the basis for Community power to
conclude the agreement, since it relates to the processing of
data excluded from the scope of Directive 95/46 on the protec-
tion of personal data. Secondly, the agreement entails amend-
ment of that directive adopted under the procedure referred to
in Article 251 EC, and could therefore be concluded only after
the assent of the Parliament had been obtained.

The European Parliament claims that the Court should:

— annul under Article 230 EC Commission Decision

2004/535/EC of 14 May 2004 (1);

— order the Commission of the European Communities to

pay all of the costs.

In its third plea, the Parliament takes the view that the agree-
ment infringes fundamental rights,
in particular the right to
protection of personal data with regard to essential aspects of
that right, and that it also constitutes an unjustifiable interfer-
ence with private life, which is incompatible with Article 8 of
the European Convention for the Protection of Human Rights
and Fundamental Freedoms.

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.

The fourth plea concerns infringement of
the principle of
proportionality, in particular on account of the fact that the
agreement provides for the transfer of an excessive amount of
passenger data and those data are stored by the American
authorities for too long.

Finally, the Parliament also pleads the lack of a sufficient state-
ment of reasons for a measure having such specific characteris-
tics, and infringement of the principle of cooperation in good
faith provided for in Article 10 EC, having regard to the very
the
unusual
contested decision, which took place during the procedure
before the Court of Justice for request for opinion 1/04 on the
aspects which clearly posed questions of a legal nature.

surrounding the

circumstances

adoption of

(1) Council Decision 2004/496/EC of 17 May 2004 on the conclusion
of an Agreement between the European Community and the United
States of America on the processing and transfer of PNR data by Air
Carriers to the United States Department of Homeland Security,
Bureau of Customs and Border Protection (OJ L 183 of 20.5.2004,
p. 83)

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 Com-
munity 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.

11.9.2004

EN

Official Journal of the European Union

C 228/33

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 incom-
patible 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 Commis-
sion'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 Conven-
tion for the Protection of Human Rights and Fundamental Free-
doms, as applied by the Court of Justice and the European
Court of Human Rights.

the decision on
The Parliament's fourth plea alleges that
adequacy also infringes the principle of proportionality, in par-
ticular 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.

(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).

Action brought on 23 July 2004 by the Commission of the
European Communities against the French Republic

(Case C-319/04)

(2004/C 228/68)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 23 July 2004
by the Commission of the European Communities, represented
by G. Rozet, acting as Agent, with an address for service in
Luxembourg.

The Commission of the European Communities claims that the
Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 1999/63/EC of 21 June 1999 concerning the
Agreement on the organisation of working time of seafarers
concluded by the European Community Shipowners' Asso-

ciation (ECSA) and the Federation of Transport Workers'
Unions in the European Union (FST) - Annex: European
Agreement on the organisation of working time of
seafarers (1), or,
in any event, by failing to notify the
Commission of those provisions, the French Republic has
failed to fulfil its obligations under Article 3(1) of that direc-
tive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive expired on 30
June 2002.

(1) OJ L 167, 2.7.1999, p. 33.

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

Luxembourg

(Case C-320/04)

(2004/C 228/69)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 27 July 2004 by the Commission of the European
Communities, represented by D. Martin, acting as Agent, with
an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of
racial or ethnic origin (1), the Grand Duchy of Luxembourg
has failed to fulfil its obligations under that directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive expired on 19
July 2003.

(1) OJ L 180, 19.7.2000, p. 22.