Brussels, 28/11/2007 (Agence Europe) - The Dutch MEP Sophie in't Veld has once again accused the European Commission and the Council of overstepping the mark in their conclusion of the EU-US PNR agreement last June (EUROPE 9467). “The agreement does not respect the standards in force in the field of data protection”, Ms in't Veld told EUROPE on 22 November. “How could the Commission and the Council negotiate an agreement which does not conform to European laws?”, she asked, on the basis of a recent opinion returned by the legal service of the European Parliament (EP). At the beginning of September, the president of the committee on civil liberties of the European Parliament, Jean-Marie Cavada (ALDE, France), had called on the legal services of the assembly for its opinion on the conformity with European law of the provisions of the agreement signed with the United States.
In its opinion dated 25 October, the legal service of the EP flagged up two main points which may contradict the European legal texts in force. The first relates to the duration for the PNR data to be held. The legal services have criticised the fact that the duration for data to be kept, as laid down in the 2007 agreement - a minimum of seven years, to which an additional period of eight years can be added before they can be deleted - is being applied to data collected in application of the previous agreements of 2004 and 2006. “Extending the practice of keeping PNR data for this length of time to data collected under previous PNR regimes may constitute a violation of the principle of non-retroactivity and the principle of legal security”, according to the legal services. The opinion goes on to say that regarding article 5(a) of Convention 108 of the Council of Europe, the retroactive application of the PNR agreement may, therefore, prove “unfair”. The other point of contention concerns the fact that the United States will have the option to transfer the data collected to third countries, even when these countries do not have safe personal data protection regimes in place. First of all, and unlike the first PNR agreement, clause 6 of the new agreement and the assurances given by the Americans by letter do not limit the transfer of PNR data to third countries on a case-by-case basis. Furthermore, the EU would be powerless to control such transfers, even to ascertain the level of data protection in place in the country of destination. Even if the EU recognises adequate data protection levels for certain third countries (Argentina, for example), this scenario is more likely to be an exception than the rule. This means that the Council has failed to reserve the possibility of blocking subsequent transfers to third countries, the legal service stresses. It is worth noting that the PNR agreement with Canada provides that this country can authorise data transfers, on the condition that the third country of destination has an adequate level of data protection, or one which is comparable to that in place in Canada. Lastly, there are no rules in the 2007 agreement obliging the United States to ascertain that the third countries to which the data are transferred have an adequate level of protection. The consequence of these potential transfers is that the EU and the member states will lose all control over the PNR data. Given these considerations, and in the absence of clear justifications, particularly on the part of the EU, the legal services take the view that such transfers of PNR data to third countries “may constitute a violation of the principle of proportionality” in line with article 8 (2) of the European Convention on Human Rights.
The opinion of the legal service of the EP is just “a legal analysis” and “not a verdict” on which an application for a quashing order could be based, Sophie in't Veld freely admits. The legal service itself points out that under the current situation of European legislation, the possibility that the Parliament may call into question the legality of the 2007 PNR agreement appears to be “null and void”. However, the Council and the Commission may be called upon to explain to the Parliament how the agreement respects the European principles of data protection, in light of Mr Cavada's request and the opinion of the legal service. The problem, Ms in't Veld points out, is that the response from Commissioner Franco Frattini is “unsatisfactory” and that the Council is “completely absent”. According to the Greek MEP Stavros Lambrinidis (PES), one of the only ways of dealing with it would be to inform the national parliaments, for example at the inter-Parliamentary meeting to be held in Brussels on 26-27 November, so that the jurisdictions of the member states can challenge the legality of this agreement. If, however, the agreement was annulled, “the situation will be even worse”, says Ms in't Veld, who believes that the Parliament now has no choice but to wait for the new Treaty to be in place, so that the Parliament will finally get to have its say when sensitive issues regarding police and legal cooperation are under discussion. (B.C.)