EP's Civil Liberties Committee Discusses Air Passenger Data Agreement

by Ulrika Lomas, for LawAndTax-News.com, Brussels

07 June 2006

Late last week, MEPs in the Civil Liberties Committee put forward a three point plan to ensure that the EU is able to quickly reach a new agreement with the United States on the transfer of personal data by airlines flying to America which respects proper standards of data protection, and gives the European Parliament a real say on the content.

The meeting came two days after the Court of Justice’s decision to annul the EU’s current agreement with the United States. The Court argued last week that:

"Neither the Commission decision finding that the data are adequately protected by the United States nor the Council decision approving the conclusion of an agreement on their transfer to that country are founded on an appropriate legal basis."

Following the terrorist attacks of 11 September 2001, the United States adopted legislation to the effect that airlines carrying passengers to, from or across United States territory are required to give the American authorities electronic access to the data contained in their system for controlling and monitoring departures (Passenger Name Records). Taking the view that those provisions might conflict with Community and Member State legislation on the protection of personal data, the Commission began negotiations with the American authorities.

At the conclusion of those negotiations, on 14 May 2004, the Commission adopted a decision (the adequacy decision), holding that the United States Bureau of Customs and Border Protection (CBP) offered a sufficient level of protection for personal data transferred from the Community. On 17 May 2004, the Council adopted a decision approving the conclusion of an agreement between the European Community and the United States on the transfer of data from Passenger Name Records by airlines established in the territory of Community Member States to the CBP.

However, the European Parliament asked the ECJ to annul both agreements.

MEPs at last week's meeting expressed their satisfaction that it was Parliament which took the case to court in June 2004. They went on to agree a three point plan for Parliament's future strategy, which was set out in a formal letter from the Civil Liberties chair Jean-Marie Cavada to EP President Josep Borrell, Commissioner Franco Frattini and Austrian Interior Minister Liese Proko.

First, MEPs in the committee stated that it is essential to begin a debate with the Council and Commission on the different legal bases on which a new agreement could be founded. Parliament will present oral questions to both institutions at the July plenary.

Secondly, MEPs they argued that it is vital to involve national parliaments in the debate on data protection standards for the transfer of PNRs, since "the Court just confirmed the national competence over public security issues", as Mr Cavada stated in his letter. European governments should, the MEPs reasoned, avoid leaving national parliaments out of the loop as they did when they signed the first agreement.

Thirdly, the European politicians stated that EU institutions need to agree on the rules on data protection within the public security domain. Currently, there is a Community directive on data protection, but it does not cover measures adopted through the so-called third pillar (including public security, police and judicial cooperation).

MEPs in the committee therefore asked the Council to speed up the adoption of a draft decision on data protection in third pillar areas, which has been proposed by the Commission.

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