Ceci n’est pas un contrôle: PNR Data Processing and the Reshaping of Borderless Travel in the Schengen Area

Abstract

Can national authorities perform systematic checks on persons engaged in cross-border travel in the Schengen area without these checks being considered as border checks or as having an equivalent effect to border checks? The present article investigates a specific set of measures that involve the harnessing of “new technology” to enact systematic controls on persons traveling across the internal borders of Schengen states, through the processing of Passenger Name Record (PNR) data and in the framework of the EU PNR Directive. It argues that PNR data processing should at the same time be understood as part of the alternatives to border checks available for Member States to regulate cross-border mobility in the Schengen area and as a standout among these measures. PNR data processing challenges the existing legal framework of Article 23(a) of the Schengen Borders Code (SBC) as well as the assessment framework developed by the CJEU in its relevant case-law, not because it contravenes Schengen rules, but because it stretches and overflows them. Ultimately, PNR data processing puts into question the very understanding of what checks performed in relation to the act or intention of crossing a border actually stand for or whether controls related to border crossings can be characterised as border controls.