P5_TA(2003)0097

B5-0187/2003

European Parliament resolution on transfer of personal data by airlines in the case of transatlantic flights

The European Parliament,

-       having regard to European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data⁽¹⁾ and to Council Regulation (EEC) No 2299/89 of 24 July 1989 on a code of conduct for computerised reservation systems⁽²⁾,

A.       whereas, in the wake of 11 September 2001, the US has carried out a root-and-branch overhaul of its legislation with a view to tightening internal security, including security in the area of transport, adopting, on 19 November 2001, the Aviation and Transportation Security Act (ATSA)⁽³⁾ and, on 5 May 2002, the Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSV)⁽⁴⁾, as well as other related measures, affecting, for transatlantic flights alone, between 10 and 11 million passengers a year,

B.       whereas at first the US Administration confined itself to asking airlines to supply data on passengers and crew (Passenger Manifest Information) (⁽⁵⁾) using the Advanced Passenger Information System (APIS); whereas, however, it has subsequently interpreted the interim agreement so as to impose, under threat of severe penalties, direct access to computerised reservation systems and, in particular, to the Passenger Name Record (PNR), which can be linked up not only with identification data but with other information of the most various kinds⁽⁶⁾, including sensitive information as defined in Article 8 of Directive 95/46/EC,

C.       sharing the doubts and concerns that have been expressed by the national authorities⁽⁷⁾ concerning the legitimacy of this demand, including its legitimacy under US law, and in particular doubts about its compliance with EU data protection legislation given the risk that reservation system databases may become de facto 'data-mining' territory for the US Administration,

D.       expressing its doubts as to whether these data will be protected (⁽⁸⁾i) in an 'adequate' fashion once they have been transferred to American databases; regretting the Commission's failure to set under way, in good time, the procedure for assessing the compatibility of the US legislation with Community law⁽⁹⁾,

E.       noting that the new legislation proposed by the US Immigration services⁽¹⁰⁾ would make it possible to go beyond the limits of the existing transmission system (known as US EDIFACT) via a more detailed format (UN EDIFACT) which would permit inclusion of the passenger's address in the US and of the number, date and place of issue of his visa (as required by Section 402 of the EBSV), as well as more clearly defining the effective scope of the PNR by limiting it to a set of predetermined data,

1.  Expresses its regret at the Commission's delay in submitting proposals to Parliament and the Council on a set of problems which have been on the agenda for more than fifteen months, affect data protection and have a huge impact on other Community policies (transport and immigration) and Union policies (police and judicial cooperation and the fight against terrorism and organised crime);

2.  Regrets the failure of the Commission, given its role as guardian of the Treaties and Community law, to assume its responsibilities with the necessary diligence insofar as:

-       it has not verified whether there is a real basis in US law to justify access to reservation systems' data or whether this is an over-broad interpretation on the part of the present Administration⁽¹¹⁾; calls, furthermore, on the Commission to take advantage of the debates under way in the US on the new APIS and PNR legislation with a view to securing a pledge from the US authorities that this new legislation will take account of the data protection requirements of Community law;

-       it has delayed the verification of the US legislation required under Article 25 of Directive 95/46/EC; a delay creates obvious problems for the airlines, which are caught between a rock (if they follow Community law, they are liable to US sanctions) and a hard place (if they give in to the US authorities' demands, they fall foul of the data protection authorities) and also creates difficulties for the national data protection authorities, which are obliged to enforce the Community rules;

-       it has not provided information to the public, who should be the first to know what is being done with information about them;

3.  Regrets the joint declaration of 19 February 2003 by EU and US officials, which lacks any legal basis and could be interpreted as an indirect invitation to the national authorities to disregard Community law; instructs its President to activate the procedure provided for in Rule 91 of the Rules of Procedure with a view to determining whether an action may be brought before the European Court of Justice;

4.  Believes that, if negotiations are to be launched, they should be based, on the one hand, on the Community's powers in the field of air transport, which, as far as transatlantic links are concerned, affect between 10 and 11 million passengers a year, and for which the Commission is preparing to negotiate an 'open skies' accord, and, on the other, on its powers in the sphere of immigration policy; is, furthermore, surprised that these issues have not been considered in the context of the agreements on judicial and police cooperation, which have now reached an advanced stage;

5.  Calls on the Commission to secure the suspension of the effects of the measures taken by the US authorities pending the adoption of a decision regarding the compatibility of those measures with Community law;

6.  Calls on the Commission to examine the problems raised in this resolution; reserves the right to examine the action taken before the next EU-US summit;

7.  Instructs its President to forward this resolution to the Commission, the Council, the governments and parliaments of the Member States, the Permanent Representation of the United States to the European Union, and the US Congress.