dr. Johan Adriaensen

Mathijs olde Scheper

Introduction

In the aftermath of the terrorist attacks in Paris, Brussels, Berlin, and London, national governments in the EU rushed to implement a series of counter-measures to avoid the repetition of such a tragedy. Many such measures ultimately led to the re-instatement of border controls. The Belgian federal government drafted thirty measures to counter terrorist activity. One of these measures is the gathering of passenger name records for travel into the country. The law obliges rail and bus operators that enter Belgian territory to provide records on the passengers transported to the Belgian intelligence services. Being able to cross-check the passengers’ name records with known criminal databases would allow the authorities to identify potential suspects and facilitate the prevention of criminal or terrorist attacks.

The regulation and executive orders

The adopted measure originates from the implementation of an EU directive on the retention of passenger name records for flights between member states and non-member states. The novelty of the Belgian initiative is that it not only covers intra-European flights, but -more importantly- that it also targets transportation by land which may affect cross-border regions disproportionally. While the regulation has been approved by the Belgian parliament in December 2016, its implementation awaits the adoption of a series of executive orders.

These orders have been due to the concerns voiced by several stakeholders including the affected service providers, passenger organisations, the European Union, and neighbouring countries. Opposition to the initial proposal already resulted in the exclusion of local cross-border train services as well as bus lines operating under a public service obligation. The executive orders are expected to detail several other sensitive aspects of the regulation such as the information to be transmitted, the method of passenger identification, the time frame and method to submit information to the Passenger Information Unit and so forth. To inform the executive order for rail services, the government has ordered an impact assessment which is expected by the end of 2017.

Conflicts with EU law and impact

The specification of these modalities is critical to assess the potential impact of the measure on cross-border mobility as well as to identify any potential conflicts with EU law. Such conflict can be foreseeable on two grounds: conformity with EU laws on data protection and the freedom of movement within the EU. In both cases, the key question will revolve around the measure’s proportionality. While the use of passenger name records to protect public security has been accepted by the Court of Justice of the EU as far as international flights are concerned, it remains to be seen whether it is also deemed proportional for passenger services by land. Especially if the passenger name records regulation ultimately results in the introduction of border checks, the obligations under the Schengen accords will be violated.

As far as the expected impact is concerned, we hypothesized and studied four distinct channels through which the regulation affects cross-border mobility. First and foremost, the measure will provide an administrative burden on the service provider. In addition to the ICT costs of operating such a system, the loss of flexibility in the provision of its services (inability to sell tickets over the counter or requirements to arrive 30 minutes before departure) can result in higher ticket prices or reduced service provision. Interviews additionally showed concern for security of staff and passengers as terrorists could also attack the security check points and security personnel, instead of attacking the trains and busses themselves. Second, as the measure demands the gathering of personal information, passengers might be deterred from using such services as they are in opposition to the collection of their personal data by the government. This could influence the demand for international travel. A third impact of the passenger name records measure pertains to travellers’ greater sense of security. This could potentially increase cross-border mobility. Considering the questionable effectiveness of passenger name records on terrorism prevention and considering passengers’ limited concern for terrorist attacks, we expect the positive effects of the passenger name records regulation on citizens’ mobility to be negligible. A fourth and final effect refers to the opportunity costs that arise from the government’s budget allocation to implement the measure. The direct impact of the measure’s expected cost of 13.45 million euro on cross-border mobility is – at best – indirect and limited as these costs are borne by the entire population. The costs feature most prominently in debates about the cost-effectiveness of the passenger name records measure as opposed to other preventive measures. Preliminary evidence suggests the existence of several alternatives that fare better in attaining the legislation’s objective to prevent terrorist and criminal attacks at a lower societal and financial cost.

Proportionality

Concerns about the legality of the eventual regulation as well as its potential impact on cross-border mobility boil down to questions of proportionality. In the end, the key challenge is to conceive a passenger name records regulation that is both effective in attaining its security objectives while being minimally distortive to cross-border mobility (at a reasonable cost). The revisions made to the original proposals and further refinements introduced through stakeholder consultation have shaven off the rough edges of the proposal. Thus, we have seen carve outs from the regulation for regional cross-border trains and busses operating under a public service obligation. We are equally likely to observe a more calibrated approach to gather and process the solicited passengers’ information to avoid legal (and political) contestation through the executive orders implementing the regulation. At the same time, many of these revisions have widened the meshes of the net, making it less effective in addressing the security threats for which the measure was originally designed.

Conclusion

The eventual fate of the Belgian passenger name records regulation – as far as transport by land is concerned – depends to no small extent on the results of the impact assessment ordered by the Belgian government. The specific focus of our study on mobility in a cross-border region allows us to provide several insights that may guide (the reading of) the commissioned impact assessment. First, any impact assessment should ideally cover questions of proportionality if it is to serve the policy process. This is not only important to pre-empt any potential legal conflicts but also to reconcile opposing political views both within government and between the government and affected stakeholders due to implement the measure. Two other recommendations follow: Second, to address questions of proportionality, any impact assessment should give due attention to the welfare effects on the passengers and not just the costs on transporters and government (unlike the Commission’s impact assessment on the passenger name records directive). Third, the assessment should ideally cover alternative measures beyond the modality of the passenger name records measure to inform any proportionality test.