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EU agrees US PNR deal

- European Parliament by-passed in shoddy deal that undermines privacy and EU data protection rights
- leading MEPs call for the "Conference of Presidents" to discuss on 15 June

The General Affairs Council of the EU meeting in Brussels on Monday 17 May 2004 adopted - without debate - the EU-US "light" international agreement which obliges European airlines to give access to passenger name records (PNR data) to US agencies (this followed the Commission's finding of "adequacy" of the US "Undertakings", see below).

This decision effectively annuls the case that the European Parliament had sent to the Court of Justice for an opinion on the legality of the measure. However, the parliament can still exercise its rights under Article 230 of the EC Treaty to seek the annulment of the international agreement or of the "adequacy" finding or both. This is exactly what Graham Watson MEP (leader of the ELDR, Liberal group) and Johnna Boogerd-Quaak MEP (the rapporteur) have called for by requesting that Pat Cox, the President of the parliament, ensures that the matter is on the agenda of the "Conference of Presidents" (the meeting of group leaders) on 15 June: Letter to Pat Cox, 18 May 2004 Pat Cox wrote to the Irish Presidency of the Council and to Mr Prodi, President of the European Commission, on 5 May informing them of the parliament's opposition to the deal and the impending case before the court and calling on them to wait for the court's Opinion. The very same day the Commission started the "written procedure" process to adopt their finding of adequacy.

The Watson/Boogerd-Quaak letter to Cox says that despite the Commission having been informed of the parliament's Resolution of 30 March and its decisions of 21 April and 5 May to seek the opinion of the court they have gone ahead. The letter also refers to the Boogerd-Quaak MEP: Letter to Pat Cox, 7.5.04 (pdf).

One matter in the US "Undertakings", on which the Commission's finding of "adequacy" was based, emerged only recently according to Commissioner Bolkestein. This was the US demand that passenger data plus any "intelligence" added by US agencies could be passed to third countries - this has apparently been resolved by the US "informing" the Commission when it has done so. This gives no protection whatsoever to EU citizens and is yet another breach of EU standards under the 1995 EC Directive on data protection.

The European Association for the Protection of Human Rights (FIDH-AE): Press statement (18 May, pdf)

Tony Bunyan, Statewatch editor, comments:

"The Council and the Commission have throughout this process shown a contempt for the opinions of the democratically-elected European Parliament which has voted against the EU-US PNR deal on three occasions - and ignored the highly critical reports from the EU's Article 29 Data Protection Working Group.

Under the guise of the "war on terrorism" personal data - including e-mail addresses and credit card details - will be checked out against an unspecified number of US agencies and commercial databases, data will be added and stored on an unspecified number of databases, the data will form part of a "life-time" record of travel and can be transferred without the consent or knowledge of the individual to third states. The "deal" breaks the rights and protections of the 1995 Directive on all these counts.

The scheme will not stop terrorists travelling to the USA - if they are on a "watch-list" they would presumably be arrested when booking the ticket or on arrival at the airport. If they are not on a "watch-list" they will simply be allowed in.

While the "deal" obliges airlines based in the EU to hand over personal data people still have the right under the 1995 Directive to demand copies of the data passed over from the airlines and from the USA how this data is added to and used in the USA."

The Article 31 Committee vote

The adoption of the "light" international agreement in the General Affairs Council followed the decision of the EC Article 31 Committee to agree on the European Commission's finding of "adequacy" in its report on the EU-US PNR deal on Tuesday 11 May:

Article 31 Committee (Data Protection) voting figures under "Written Procedure" (11 May 2004)

 Member State Voting strength  Favourable  Unfavourable  Abstention
Belgium (BE) (5) * (5)    
Czech Republic (CZ) (5)     X (5)
Denmark (DK) (3) * (3)    
Germany (DE) (10) X (10)    
Estonia (EE) (3) X (3)    
Greece (EL) (5) * (5)    
Spain (ES) (8) * (8)    
France (FR) (10) * (10)    
Ireland (IE) (3) X (3)    
Italy (IT) (10)   X (10)  
Cyprus (CY) (2) * (2)    
Latvia (LV) (3) X (3)    
Lithuania (LT) (3) * (3)    
Luxembourg (LU)  (2)   X (2)  
Hungary (HU)  (5) X (5)    
Malta (MT)  (2) X (2)    
Netherlands (NL)  (5) * (5)    
 Austria (AT)  (4) * (4)    
 Poland (PL)  (8) * (8)    
 Portugal (PT)  (5) * (5)    
 Slovenia (SI)  (3) X (3)    
 Slovakia (SK)  (3)      X (3)
 Finland (FI)  (3) * (3)    
 Sweden (SE)  (4) X (4)    
 UK  (10) X (10)    

This gave 43 positive votes in favour and 61 "passive" votes in favour (not voting under "written procedure" is taken to mean assent/agreement), 12 votes against with 8 votes in abstention.Nine member states voted positively in favour of the EU-US PNR deal, 12 member states voted "passively" by not recording a vote. Only Italy and Luxembourg voted against (who thought that the Commission should wait for the Court of Justice to rule on the European Parliament's case before going ahead) and the Czech Republic and Slovakia abstained.

Of the 10 new EU member states: Two abstained (Czech Republic and Slovakia), while five voted in favour (Estonia, Latvia, Hungary, Malta and Slovenia) and three voted "passively" in favour (Cyprus, Lithuania and Poland). The only previous members of the EU to vote positively were: Germany, Spain, Ireland, Sweden and the UK.

1. Full-text of Commission's finding of "adequacy" plus EU-US agreement on the transfer of personal data: EU-US agreement
2. Text of the Council's "light" international agreement: EU-US agreement (pdf)
3. Article 29 Data Prorection Working Party report on EU-US PNR: Report 87 (pdf)
4. 1995 EC Data Protection Directive (link)
5. 1989 Regulation on computerised reservation systems
6. For the full history and documentation please see Statewatch's Observatory

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