Statewatch News online: European Parliament votes to go to court on EU-US PNR deal

European Parliament votes to go to court on EU-US PNR deal

At its plenary session today, Wednesday 21 April, the European Parliament voted to take the European Commission to the Court of Justice over the proposed EU-US deal to exchange passenger name records (PNR). 276 voted in favour, 260 against, 13 abstentions to refer the PNR agreement to the ECJ for opinion under Article 300(6). The report on the issue from Johanna Boogerd-Quaak, MEP was referred back to the Committee on Citizens' Rights and Freedoms who said that "in order to be logical the EP should not take a position when the report states that the Court should rule on whether the agreement is compatible with of the Treaty. Second, if we were to adopt my report and reject the agreement, the Court could consider that the Parliament has already made up its mind and is not really interested in obtaining the opinion of the Court." Parliament voted by 299 in favour, 218 against and 6 abstenstions to refer the Johanna L.A. BOOGERD-QUAAK (ELDR, NL) report on the transfer of passenger data back to the committee. The reasoning is that Parliament cannot endorse or reject the agreement as long as it does not know the European Court of Justice position on it.

Before the vote MEPs came under enormous pressure to back the deal from the Commission and their national governments. Three MEPs circulated a letter calling on colleagues to back the recommendation to go to the court:

"Dear Colleague,

Today the European Parliament will vote on whether to ask the European Court of Justice to rule on the legality of the EU/US agreement on the transfer of PNR data on air travellers to the USA. This step has become necessary to resolve a conflict between Parliament and Commission, which has at its heart fundamental questions of privacy and security. The Court will be asked to act as a lawyer would, advising a client who is preparing to sign an important contract.

The recommendation from the Legal Affairs Committee to refer this matter to the ECJ is neither obstructionist nor frivolous. It is not gesture politics and it is not anti-Americanism. Some data demanded by American authorities and currently surrendered by European airlines and travel agents is not only classified as sensitive in Europe, but once stored in the United States there are no guarantees that it will not be shared or even transferred again to third countries. Europeans will have no effective right to access or correct this data or seek judicial redress for its misuse. They will be subject to American administrative and unilateral undertakings without commensurate rights under it. All the national authorities competent for data protection in Europe have declared these transfers incompatible with European privacy laws.

Last, but not least, a point on which we need a clarification from the Court is the fact that the agreement in question creates a new competence for Community institutions and thus modifies the Community Legislation adopted by the European Parliament. According to the Treaty this agreement should have been submitted to us under the "assent" procedure and not only for a simple non-binding opinion under a deadline of less than 4 weeks. If one adds the fact that no national Parliament would ever be able to take a position in such a short time, at least on the transfer of its competences to the Community, one could ask whether our institutions respect the protocol of the Treaty on subsidiarity and proportionality. Yet the Commission and the Council have gone out of their way to avoid effective parliamentary scrutiny at both the national and European level.

The war against terrorism requires a number of compromises from Europeans. Surrendering all their rights to privacy is not one of them. Until we are offered better guarantees that these rights can be protected, we are justified to being critical of the conduct of the Commission and the substance of its agreement. For this reason we have supported, and invite you to support, the call by Parliament's JURI committee for recourse to the European Court of Justice as a precautionary measure.

Yours sincerely

Graham Watson MEP
Enrique Baron Crespo MEP
Johanna Boogerd-Quaak MEP, rapporteur

Prior to the vote External Affairs Commissioner, Chris Patten, urged the parliament not to go to court: Speech He said that "in the "real world" there had to be "compromises" and like Mr Bolkestein on Monday said that the parliament did not have a case as the agreement did not involve amending the 1995 Data Protection Directive - which is not what the parliament is arguing, they are saying that i) the Commission has wrongly judged the "Undertakings" by the USA as being "adequate" and that ii) there should be a proper international agreement on which the views of the parliament would be binding (they are only being "consulted" on the current "light international agreement".

Full-text of Commission's proposal and the US "Undertakings" (pdf)
Full background documentation is on Statewatch's: Observatory

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