In his opinion of 22 November 2005 (Cases C-317, 318/04) European Advocate General Léger proposed anullment of Commission and Council decisions on transfer to the American authorities of personal information concerning air passengers. Following the terrorist attacks of 11 September 2001, the United States adopted legislation to require airlines carrying passengers to, from or across United States territory to give the American authorities electronic access to the data contained in their Passenger Name Records. After negotiations with US authorities the Commission adopted a decision (the adequacy decision), holding that the US Bureau of Customs and Border Protection (CBP) offered a sufficient level of protection for personal data transferred from the Community whereas the Council adopted a decision approving the conclusion of an agreement between the European Community and the United States on the transfer of data from Passenger Name Records by airlines. Both decisions were challenged by the European Parliament before the European Court of Justice (ECJ). In his opinion the Advocate General concluded that the adequacy decision infringed the underlying measure, namely Directive 95/46, and proposed to annul that decision. Concerning the Council’s decision he considerd that Article 95 EC which concerns the adoption of measures for approximating the legal, regulatory and administrative provisions of Member States which have as their object the establishment and functioning of the internal market, did not constitute an appropriate legal basis and proposed that the Court should annul that decision as well. Although Opinions of the Advocate General are not binding, ECJ judgements at a high percentage follow these proposals.
