Brussels, 20/06/2011 (Agence Europe) - The draft agreement negotiated between the European Commission and the US on the subject of passenger name records (PNR) has provoked much criticism even in the Commission. An opinion of its legal service dated 18 May takes note of number of “serious concerns”.
In the agreement negotiated, the US and the Commission agreed on a broader definition of “serious crimes” in accordance with which PNR data can be processed by the US services. This can include crimes where prison sentences are at least a year versus the three years contained within the European PNR draft. They also agreed on a 15-year data retention period. The terms of the negotiations were not to the taste of the Commission legal experts either, who point out in the preamble of their opinion that all Europeans, as stipulated in the Charter of Fundamental Rights, have the right to personal data protection and that “any restriction of this fundamental right must be limited to what is necessary and proportional”.
On the issue of serious crimes, the legal opinion notes that the agreement with the US is “considerably broader” than the European PNR or the draft agreement with Australia. This single point alone “questions the proportionality of the agreement”, indicates the opinion. With regard to the duration of data retention, the agreement with the US goes way beyond what had been included in the European PNR (5 years and 30 days) or the one with Australia (3.5 years and 2 years) and legal experts consider that in this field no progress has been achieved by the Europeans.
The legal experts are also concerned about the absence of a genuine legal appeal procedure to the US jurisdictions given that “any judicial reparation is subject to American law”, which does not apply to Europeans. With regard to the supervision of data protection, the experts are concerned about the absence of genuinely independent supervision, as opposed to that with Australia, which has an independent data protection body.
In conclusion, the Commission legal experts note that this draft agreement does not contain any substantial improvements over the current agreements and could even be incompatible with fundamental rights.
Certain groups of the EP have already criticised the terms of this agreement and are preparing an oral question to the Commission and Council on the different PNR agreements. They should notably respond to questions regarding respect for the principles of proportionality, the necessity of these agreements and the question regarding data retention with the Americans. (S.P./transl.fl)