Brussels, 17/05/2004 (Agence Europe) - The agreement between the EU and the US on the transfer of data on passengers of transatlantic flights is to be signed next week in Washington, the European Commission announced on Monday. It formally adopted the decision establishing that the US will ensure "adequate protection" of privacy, in line with the European directive on personal data. On Monday, the Council approved, without discussion, the agreement concluded in December 2003 between the Commission and the American Bureau of Customs and Border Protection. This agreement will prevent the Member States of the EU from blocking the transfer of data to the American authorities.
The Council and the Commission decided not to take the Parliament's position into account, which opposes the conclusion of this agreement. On 21 April, the Parliament asked the Court of Justice to take position on this agreement, and on 31 March, called upon Council not to adopt the agreement until the Court had returned its judgement (see EUROPE of 22 April, p.12, and of 5 May, p.9). MEPs felt that on the one hand, commitments taken by Washington were insufficient, and on the other, that the agreement should have been an international Treaty, requiring the Parliament's agreement.
The European Commission decided not to publish its decision, which was basically approved last Wednesday (see EUROPE of 13 May, p.9 and of 14 May, p.8), before informing the Parliament. "A negotiated solution is never perfect, especially when you are up against a law adopted by the Congress of the United States in the understandable belief that the protection of the United States against terrorism is of vital importance", said Commissioner Frits Bolkestein, in a long press release. "The European Parliament sees things differently, but the Commission feels that the solution negotiated will improve the situation for the citizens and the airlines of the European Union", he added. "We are not seeking a confrontation with the Parliament, which has helped us to obtain improvements from the US by the strong political pressure it has applied since March 2003".
The Commission believes that the agreement concluded with Washington has enabled "notable improvements". It refers to the reduction of the number of data collected: 34 out of the 60 fields covered by the files of certain airlines (representatives of the national authorities meeting in the "article 29" group would have preferred just 14). It also welcomes the fact that the duration of storage will be 3.5 years for "most data", instead of 50 years as originally proposed by the United States. However, it recognises that the data consulted "will be kept in a file of deleted data for an extra period of eight years for auditing purposes". The data "will only be used in the fight against and the prevention of terrorism, crime related to terrorism and large-scale crime organised transitionally, and not for the broader range of repressive provisions the US had originally wanted". Lastly, there will only be an exchange of data with the security forces of third countries "on a limited and case-by-case basis, and only to answer the agreed objectives". This clarification had to be negotiated at the last minute, in March, because in December, the Commission "had not understood that when the security department talked of transferring data to other agencies, it was talking about third-country agencies", said the spokesperson on Monday.
Airlines are obliged to inform passengers of this transfer to the American authorities. Citizens can go through their national legal authorities to introduce an appeal against abuse, or errors in the data.
The implementation of these commitments will be assessed on a yearly basis, by the American Chief Privacy Officer, and a "team led by the Commission and made up of representatives of the data protection authorities for the Member States and law enforcement authorities". In case of abuse, the EU could decide to suspend the agreement, said the Commission.
According to the Commission, the alternative would be to stick with the current situation, which allows the American authorities limitless and direct access to information held in airline files, with no legal framework. Airlines which refuse to comply could be fined or banned from landing on American soil. "The other scenario would be the absence of new concessions on the part of the US, legal uncertainty and the possible cancellation of commitments by the EU to protect the transferred data- in other words, chaos for EU airlines", said Commissioner Bolkestein.
In its press release, the Commission states that: "According to the case law of the Court, the Europoean Parliament's request for an opinion will be devoid of purpose if the agreement is concluded by the Council. Howsever, the Parliament would then have the option of exercising its right under Article 230 of the EC Treaty to seek the annulment of the i nternational agreement or of the adequacy finding or both".
MEPs object to ostensible lack of compliance with this decision
The co-president of the Greens Group at the European Parliament, Daniel Cohn-Bendit, voiced protest in a press release against the decision which would, in his view, be detrimental to the relations between the Council and the Commission on one side and the Parliament on the other. Such obvious lack of respect toward the Parliament would, he said, be unacceptable. He stresses that the EP's position "in no way represents a refusal to cooperate with the United States in combating terrorism. It is simply that we wish to carry out this fight on a sound legal basis in compliance with the rule of law".
Dutch Liberal Johanna Boogerd-Quaak, rapporteur on the subject, was also highly critical of the "contempt for the rule of law" shown by Council and Commission. "Foreign Ministers have shown breathtaking arrogance by elevating their judgement above that of the Union's highest Court, which was due to give its opinion shortly", she comments. Along the same lines, Elena Paciotti (PES, Italy) considers that the Council has "taken advantage of the conclusion of (Parliament's) work without waiting for the Court's opinion" before adopting an agreement that will be ratified by no parliament, "either in Europe or in the United States".