EU exclusive jurisdiction on surveillance related to terrorism and serious transnational crime, case review on opinion 1/15 of the CJEU

This case review examines the Opinion by the Court of Justice of the European Union (CJEU) published on 26 July 2017 on the legal basis of an international agreement signed between the EU and Canada providing for the transfer of information on passengers taking flights from the EU to Canada and the compatibility of that Agreement with the EU fundamental rights, particularly the rights to respect for private life and to protect personal data. Rather spectacularly, the CJEU struck down the Agreement, finding the legal basis inadequate and the terms incompatible with the EU privacy and data protection guarantees. This case review starts by providing a backdrop for the conclusion of the PNR Agreement concerned and for the CJEU’s Opinion on that Agreement. Then it moves on to analysing the procedural and substantive aspects of the Opinion and finishes with an analysis of the consequences regarding counter-terrorism measures and for the future of the exchange of personal data in the field of fight against terrorism and serious transnational crime. It is argued here that although Opinion 1/15 deviated from the standard of judicial review established by the CJEU in Digital Rights Ireland, Schrems, and Tele, it should be considered as a step towards protecting the EU fundamental rights due to the tight procedural conditions for the legality of data sharing agreements it introduced and the high risk of litigation following it.