The European Commission has decided to update EU aviation security measures. It has recently proposed a draft regulation supplementing the common standards on civil aviation security laid down in the Annex to Regulation 300/2008 on common rules in the field of civil aviation security. According to the Commission general measures supplementing the common basic standards on civil aviation security should be adopted in the field of screening, access control and other security controls as well as in the field of prohibited articles, third country recognition of equivalence, staff recruitment, training, special security procedures and exemptions from security controls.
The Commission wants to adopt rules aiming at allowing the use of methods of screening individually or in combination, as a primary or secondary means. For the screening of persons the Commission is considering as screening methods walk-through metal detection (WTMD) equipment, hand-held metal detection (HHMD) equipment, body scanners, explosive detection dogs and explosive trace detection (ETD) equipment. Hence, the European Commission has added body scanners to the EU's list of allowed methods for screening in airports.
The Commission has not considered yet how body scanning technology would be used specially as regards impact on health and passengers privacy. The Commission has not accompanied the draft measure with an impact assessment relating to fundamental rights. The Commission has also not consulted the European Data Protection Supervisor (EDPS).
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.
From the Commission draft regulation it is not clear if the body scanners would become mandatory at all EU airports. 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.
This Regulation would be binding and directly applicable in all Member States, including Britain. The regulation states that it will enter into force from the date specified in the implementing rules but not latter than 29 April 2010.
The Commission is allowed under Regulation 300/2008 to adopt, through the comitology procedure, general measures designed to amend non-essential elements of the common basic standards on civil aviation security laid down in the Annex to that Regulation by supplementing them. The Committee on Civil Aviation Security assists the Commission updating non essential elements of Community legislation and has voted favourably on the Commission proposed measures. Such measures on methods of screening allowed shall be adopted in accordance with the regulatory procedure with scrutiny, hence, the Council and the European Parliament may oppose to the measure.
Obviously, the Commission will adopt detailed measures for implementing methods of screening of passengers. According to the Commission draft regulation “In order to evaluate methods of screening using new technologies not foreseen at the time of adoption of this Regulation, the implementing rules (…) may allow the use of other methods on a trial basis and for a limited period of time on condition that such trials do not prejudice the overall levels of security.” However, such implementing measures shall be adopted in accordance with the regulatory procedure which means that the Commission will adopt the measure without the Member States or the European Parliament having a say if the Committee on Civil Aviation Security delivers a favorable opinion.
It is clear that the Commission proposal is not a mere technical measure related to aviation security nevertheless it would be adopted through the comitology procedure. The comitology procedure is not transparent and gives to much power to unaccountable committees composed from Commission officials and civil servants from Member States. It should be a matter to the UK government to decide if body scanners are a proportional and effective security measure and not for the Commission to decide through the comitology procedure.
Body scanning technology has been tested on a voluntary basis and as an alternative to strip searches at Heathrow but it has been discontinued. The technology has also already been trialed at Paddington railway station but has been abandoned.
The European Parliament adopted on 23 October 2008 a non binding resolution on the impact of aviation security measures and body scanners on human rights, privacy, personal dignity and data protection. The European Parliament has doubts over “the justification of this measure and its proportionality and necessity in a democratic society.”
The European Parliament has stressed that “this draft measure on methods of screening of passengers, which has been examined by way of the regulatory procedure with scrutiny (comitology), will be followed by implementing measures relating to requirements and procedures for screening, which will be decided through procedures under which Parliament has almost no powers.”
The MEPs have pointed out that the “draft measure, far from being merely technical, has a serious impact on the right to privacy, the right to data protection and the right to personal dignity, and therefore needs to be accompanied by strong and adequate safeguards.”
The MEPs considered that the conditions for taking a decision have not yet been met as essential information is still lacking. 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 Transport committee has been considered the Commission proposal. The Transports European Commissioner, Antonio Tajani, has written to the European Parliament Transports Committee chairman saying that “It is the intention of the Commission to allow the use of body-scanners only as an additional option for the screening of passengers, not as an obligation.” According to the Commission the use of scanners facilitates security checks and reduces queues at airports and the need for body searches.
According to StateWatch, taking into account the Commission reply, the European Parliament's Transport Committee, lead committee on the issue, is not going to use its powers to oppose the Commission's plans to introduce body scanners.
In the mean time, the Commission informed, recently, the Justice and Home Affairs Council, about its plans to introduce body scanners in the EU airports. Unsurprisingly, Member States are divided on the issue. Whereas Germany is completely against it France is willing to accept it. German Home Affairs Minister Wolfgang Schäuble has said “I do not want to run the risk that the police are accused of voyeurism.” According to Reuters a spokeswoman for the German interior ministry has said "I can tell you in all clarity that we will not take part in this nonsense." In the other hand, French interior minister, Michele Alliot-Marie has said "we must use, with great determination, all advanced technology to fight the terrorists and major criminals, because they know perfectly well how to use it and are often a jump ahead of us."
The European Parliament or the Council, acting by a qualified majority, may oppose the adoption of the Commission draft measure if they believe it exceeds the Commission implementing powers.
The European Commission has recently decided to withdraw its proposal on "body scanners" taking into account the European Parliament opposition. However, the European Commission will try again to introduce "body scanners" in the future.
