Ahead: EU Body Scanner Rules

A potential new EU legal framework for security scanners would likely lead to all EU airports being required to have security scanners (estimated to cost between EUR 100,000 and EUR 200,000 each).

A new Communication from the Commission elaborates upon the need for an EU legal framework on the use of security scanners. The Commission will debate the issue with the European Parliament and the Council and based on the outcome of those talks a legislative proposal establishing such a framework may be proposed in the future.

However, such a proposal would have to take into account and resolve the two most pressing complications relating to this issue, namely fundamental rights and health.

Several Member States have started to test security scanners at some of their airports (including airports in the UK, the Netherlands, Finland, Italy and France).

The Commission takes the position that this ad-hoc approach is unsustainable and that a “harmonized” EU approach would be preferable; not only from a security standpoint but also to protect fundamental rights and health – both areas where it is easy to argue that the EU has competency.

Hence it is considering proposing common standards for security scanners; basic detection performance and safeguards that would make security scanners compatible with European fundamental rights and health provisions are viewed as being very important.

Two issues stand out in the debate on security scanners: the creation of body images, and the use of x-ray radiation. Regarding the body images that are created by the security scanners, the issue of fundamental rights, as enshrined in EU law, highlights the possibility that some of the EU citizens’ rights (relating to, amongst other rights, human dignity, protection of personal data and the rights of the child) might be violated. Any EU legislative approach to this issue is likely focus on limitations on the use and storage of images of passengers, and what information such images contain (for example, which parts of the body can be seen through the scanner) rather than on legal ways to suspend or curtail the rights themselves.

Addressing health issues may involve requirements relating to the choice of technology (there are already various types of scanners available) as well as elements of practice and procedure in the use of the scanners.

Full-body scanners are expected to improve efficiency at airport security checks even while they increase security, although their limited use so far makes a rigorous cost-benefit analysis difficult. Also, they are expected to become less expensive as they are more widely adopted.

The Commission has made it clear that it will consider proposing an EU legal framework for security scanners at EU airports. A proposal for such a Framework would only follow after the discussions have taken place between the Commission and the European Parliament and the Council.