European Parliament debate taking the Commission to court on EU-US PNR deal

The European Parliament held a brief debate on Monday 19 April on the already agreed position of taking the Commission to the Court of Justice over the passing of passenger name records (PNR) to the USA. The decision to have yet another vote on taking court action was taken by the Conference of President's (the Group Leaders) on 15 April and gives the Commission a second chance to meet the parliament's demands by withdrawing its "adequacy" finding on the "Undertakings" given by the USA.

In the debate Paciotti for the PSE (Socialist group), Graham Watson for the ELDR (Liberal group), Di Lello Finuoli for the GUE (United Left group) and Monica Frassoni for the Green/EFA group all spoke in favour of taking the case to court. Only the PPE (Conservative group) spoke against. The parliament will vote on Wednesday whether to go ahead with a court action and given the close vote the first time - 229 votes to 202 with 19 abstentions - the result will depend on defections by the German and UK PSE groups who are in favour of the "deal". For background see: Observatory

Addressing the parliament on Monday Commissioner Bolkestein ignored most of the criticisms set out in the parliament's report and dealt with only two issues. The first that the agreement amended the EU's Data Protection Directive, which he said it did not - which is hardly surprising as no-one was claiming it did. The criticism is that it undermines the Directive by giving away the right to protections on the data collected and its use because the USA does not have a data protection law. The second point he made concerned an outstanding substantive point - it appears that negotiations are still going on with the USA over the transfer of data to law enforcement agencies in third countries. The USA considers that it has the right to transfer any data in its possession to whom it chooses. Mr Bolkestein argued that "clarification" on this point would not alter the agreement.

Tony Bunyan, Statewatch editor, comments:

"This is turning into a pantomime. The parliament has already voted on the question, the Legal Affairs Committee - as is usual - took the decision to go to court but the party leaders then decided to take it back to the plenary for another vote. If national parliaments acted like this they would quickly lose legitimacy.

And the Commission is saying that there is still outstanding issue with the USA over its demand to hand over passenger data to law enforcement agencies in any country it chooses. How the Commission can maintain this does not affect its finding of "adequacy" of the promises given by the USA is beyond rational belief"

Conference of Presidents on 15 April

2. Request for the opinion of the Court of Justice on a draft agreement with the USA on the transfer of passenger data on transatlantic flights

The Conference of Presidents

- noted a statement by the President concerning a Legal Affairs Committee recommendation (forwarded to him by means of a letter of 14 April 2004 from Mr GARGANI) in favour of Parliament’s requesting a Court of Justice opinion on whether or not the draft EU-USA agreement on the transfer of data relating to passengers on transatlantic flights was compatible with the EC Treaty;

- agreed that the Commission would first have to consider Parliament’s request for the draft ‘light’ agreement which had been proposed to be replaced by a proper international agreement;

- called upon, the Commission to make a statement on this subject on the agenda for sitting in Strasbourg on Monday, 19 April;

- noted that if the Commission did not come out clearly in favour of the approach adopted by Parliament, the President would ask the plenary to take a decision the following day on the merits of submitting a request for a Court of Justice opinion.

Commissioner Bolkestein's speech to the parliament on 19 April

"Mr President, thank you for giving me the floor on this much-debated subject. The question that has been put to the Commission is a precise one: is the Commission prepared to withdraw its proposal to the Council to conclude an international agreement with the United States of America on the processing and transfer of passenger name record data by air carriers to the US?

The context in which this question is asked is also clear. If the Commission does not indicate its willingness to follow Parliament's wish expressed in its Resolution of 31 March - namely to replace the present 'light' agreement and adequacy finding with a more substantive international agreement - Parliament will vote to seek an opinion from the European Court of Justice on the legality of the agreement currently before the House.

The Commission is grateful for this opportunity to state its position in advance of the vote. In this context, I understand that Parliament seeks answers from the Commission on two issues. Firstly, Parliament wishes to know whether or not the proposed international agreement modifies the Data Protection Directive as far as data exchange with the United States is concerned, and, therefore, whether or not the agreement is well founded as far as both the protection of fundamental rights and the European Parliament's prerogatives are concerned. Secondly, Parliament wants the Commission to clarify the situation regarding data transfers by the United States to third country governments.

On the first point, the Commission does not consider that the international agreement amends the Data Protection Directive and, therefore, there is no ground for basing it on the second subparagraph of Article 300(3) of the Treaty. If the agreement had amended the directive, the Commission would have proposed a different legal basis for the agreement and would have sought the assent of Parliament. But, I repeat, in our view, the agreement does not amend the directive.

The agreement leaves the protection afforded by the directive unchanged; in particular the proportionality requirement and the need for personal data to be processed fairly and lawfully. However, the international agreement is necessary to ensure a legitimate basis for air carriers and computer reservation systems to process the PNR data as asked for by the United States, insofar as they are covered by the adequacy finding.

Beyond that, the international agreement contains a number of important guarantees for the European Union; notably US commitments regarding non-discrimination and reciprocity and a joint EU-US review of the implementation of the agreement.

With regard to the second point concerning transfers to third countries, this is a new issue which came up in our talks with the United States only relatively recently. It concerns the safeguards that apply to the sharing by the United States of PNR data with law enforcement authorities in third countries.

As I drew to the attention of the House in my statement of 29 March, the Commission is still holding discussions with the United States on this point. In fact they have been continuing today and will continue further. I understand that the House would welcome further information on this point. In particular, the rapporteur raised the question of whether the Commission had come to a firm conclusion that there is adequate protection or whether these further talks meant that this question remained open.

Our discussions with the United States on third country transfers have not yet been concluded. As I said earlier, they have been going on today and may continue tomorrow morning. Therefore, I cannot inform Parliament at this moment of the outcome in the required detail. Currently, Director-General Alex Schaub of the Directorate General for the Internal Market is, with his staff, negotiating this issue with the American side.

These talks are not designed to bring about any changes in the documents you have seen, but rather to clarify how the undertakings will be applied in the case of the transfer of PNR data to other countries. They will seek to ensure, in particular, that the purpose limitation agreed in paragraph 3 of the undertakings is respected, even when data is passed on to third countries. Of course, the Commission is pushing the United States for guarantees that are as strong as possible.

This issue will be discussed at the meeting of the College of Commissioners tomorrow afternoon. My colleague Chris Patten will be addressing this House tomorrow evening on the international agreement. He will inform the House on the outcome of the discussions with the United States, and of any relevant developments.

It seems to me, therefore, that it would be best for Mr Patten to inform the House following the Commission meeting tomorrow afternoon and then for the House to decide as it thinks best."

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