After the failed jet attack in the United States on Christmas Day there have been renewed calls for body scanners to be introduced in EU airports. In October 2008, the Commission presented a draft regulation updating the EU aviation security measures trying to add body scanners to the EU's list of allowed methods for screening in airports. However, it has not considered how body scanning technology would be used specially as regards impact on health and passengers privacy and it has not accompanied the draft measure with an impact assessment relating to fundamental rights.
The body scanners are machines which produce images of individuals as if they were naked therefore there are concerns over how such images will be viewed and stored by security officials. The MEPs considered that the conditions for taking a decision have not been met as essential information is still lacking and they asked the Commission to carry out an impact assessment relating to fundamental rights, to consult the EDPS, the Article 29 Working Party (charged by Directive 95/46/EC with giving the Commission opinions on data protection issues) and the Fundamental Rights Agency. Moreover, the Commission has also been asked to carry out a scientific and medical assessment of the possible health impact of such technologies as well as to carry out an economic, commercial and cost-benefit impact assessment. The proposal on “body scanners” was, therefore, withdrawn.
Presently, member states may introduce body scanners provided that EU legislation is respected. Obviously, the Commission wants to harmonise the conditions in which body scanners can be operated, avoiding, in this way, Member State’s airports from applying different rules. The former EU Transport Commissioner Antonio Tajani has said "It is better to have a European rule than to leave it to member states to decide (…)" However, it is far from clear if the body scanners would become mandatory at all EU airports. Viviane Reding, the EU's commissioner-designate for justice, fundamental rights and citizenship, said, at her conformation hearing in the European Parliament, that health, privacy and data protection concerns must be answered before the compulsory introduction of body scanners at EU airports. Moreover, the new Transport Commissioner, Siim Kallas, favours “a single EU regulation on body scanners.” In fact, he criticised the Member States who have already introduced them in their airports, he said "it is very bad that some Member States already use body scanners in the absence of any EU common standards.”
Member states, including UK and the Netherlands, have decided to introduce scanners at their airports after the Christmas day terrorist attack. Body scanners are presently in trials at Manchester and Heathrow airports. This is a matter to UK government to decide and definitely not for the Commission to decide through the unaccountable comitology procedure. However, are there enough safeguards to protect the privacy of passengers involved? Are these devises a proportional and effective security measure? It seems that there is no evidence that such devices are an effective response to the terrorist threat. According to the Independent security experts have said that the body scanners could not have detected the explosive device used in the attempted terrorist attack on 25th December 2009.
Unsurprisingly, Member States are divided on the issue. Germany has been against the use of such devices. Spain, which currently holds the rotating presidency, is calling for a common EU rule on the use of body scanners at EU airports. On 21 January, at an informal meeting, the EU Member States’ Justice and Interior ministers asked the European Commission to present, as soon as possible, its report on the effectiveness of body scanners and their possible impact on health and privacy. Aviation security, including the use of body scanners, was also the focus of an informal transport Council held on 12 February.
Siim Kallas is expected to present a report on body scanners in April. Then, the Commission is likely to put forward a legislative proposal aiming at establishing common rules at EU level.
In the meantime, according to the BBC, the Equality and Human Rights Commission has warned that the use of body scanners at Heathrow and Manchester Airports “may be breaking discrimination law as well as breaching passengers' rights to privacy.”
