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Verbatim report of proceedings
Wednesday, 12 March 2003 - Strasbourg OJ edition

5. Transfer of personal data by airlines to the US immigration service
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  President. – The next item is the Commission statement on the transfer of personal data by airlines to the US immigration service.

 
  
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  Patten, Commission. – Mr President, if you agree, as indicated on the board, this Commissioner – who is less knowledgeable than his colleague – could begin the debate and then my colleague Commissioner Bolkestein will continue, as this issue touches on both our competences. I repeat what I said at the outset of the previous debate, and offer my apologies to Parliament that I will have to leave early, though my distinguished colleague will be here until the end of the debate. I explained in the last debate that I am due to fly to Croatia and Belgrade later this afternoon and, not least because of the tragic events today, I know that Parliament will understand that.

Let me now turn to the business in hand. The Aviation and Security Act, passed by the US Congress on 19 November 2001, is one of a series of laws introduced in the United States after 11 September 2001, with one overriding aim: to enhance national security, in particular through transport security measures. The basic aim is to prevent terrorist acts by detecting potential perpetrators before they enter the country.

In this context, the United States Congress has required that carriers make passenger name record information available to US Customs upon request.

The Commission shares the security concerns of the United States. Nevertheless, the United States measures have raised concern with regard to the respect of Community and Member States’ laws on data protection. Airlines operating flights across the Atlantic risked being caught between two sets of incompatible measures and suffering severe losses as a result of penalties the United States threatened to impose, including fines and even the withdrawal of landing rights. Passengers - between 10 and 11 million a year - would have also suffered from the disrupted air traffic and from the time-consuming 'secondary' checks that the United States planned to introduce at point of entry. Moreover, airlines not in compliance risked being seen as higher security risks, with potential consequences for significant falls in passenger numbers.

The stakes, therefore, were very high and the consequences of not acting would have been extremely serious. We had to ensure, as far as we could, that the important interests of European Union citizens in preserving their right to privacy was balanced against the need to protect many thousands of jobs in our airlines and associated industries like travel agencies. I want to assure this House that, right from the outset, the European Commission has done its utmost to try to engage the United States in a discussion on how to find a solution compatible with both sets of legislation and one that would ensure legal certainty for all concerned.

The European Commission has assumed its responsibilities and in recent weeks undertook difficult discussions to overcome a stalemate created by the United States initially taking our concerns lightly and not responding to our questions.

In fact, the European Commission had raised this issue with the United States on numerous occasions, with particular emphasis since the US Customs Service issued its interim rule of 19 June 2002, containing the concrete implementation methods. As a result of these efforts by the Commission, the United States first postponed the entry into force of the new requirements until 5 February and then agreed to waive the imposition of penalties on non-complying airlines until 5 March.

Following a high-level meeting on 17 and 18 February on access to personal data contained in passenger name records, both sides issued a joint statement which sets out the steps that need to be taken to reach a mutually satisfactory and legally certain solution to this issue.

Further talks took place on 4 March, as a result of which the United States has given additional undertakings with respect to the handling and protection of sensitive data.

I am also aware that questions have been raised as to the legal basis for the action undertaken so far by the Commission. This, as my colleague Commissioner Bolkestein will explain in more detail, seems to be founded on a misunderstanding. There has been no 'agreement' and no 'decision' so far. Instead, we have engaged with the United States authorities in an intensive dialogue aimed at obtaining the necessary guarantees regarding the proper handling and use of the data concerned by the US side.

Both sides are now committed to continuing their discussions in order to find a more legally secure solution. The possibility of such discussions is provided for in the Data Protection Directive, as the initial and necessary steps towards the adequacy finding provided for in its Article 25(6). Following comitology procedures, the draft Commission decision will then have to be discussed by this House before being finalised.

In the interim, we have obtained from the United States a provisional set of undertakings on how they will protect the personal data they access and a specific commitment not to make use of any sensitive data for profiling purposes.

Before passing the debate to my distinguished colleague to provide honourable Members with further details on this issue, I would like to ask this House to recognise the considerable efforts made by the Commission and the positive results we have achieved so far – even if these still have to be finalised – and I hope Parliament will join forces with us in obtaining from the United States the necessary data protection guarantees for European citizens so that a permanent solution to the problem can be achieved.

I should like to make one final personal remark. The whole House recognises how the events of 11 September produced a real feeling of vulnerability and shock in the United States. The House will recognise the concern in the United States to put in place measures to ensure that further terrorist attacks are less, rather than more, likely in the future. Like a number of honourable Members, I come from a country which has also had to take steps to deal with terrorist threats. That said, I hope that we can engage the United States at a much earlier stage in the policy-making process in discussing these security issues. If we can have a dialogue earlier in the process, it will be easier to avoid the sort of political difficulties that we have had from time to time over the last year. There should be no difference between us at all on the importance of putting in place security measures which are recognised as being reasonable by both sides. It would be easier to do that if we could talk more openly and earlier about these sorts of measures.

 
  
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  President. – Commissioner, I would like to take this opportunity to assure you that it was not the intention of the Chair to exclude you from taking the floor. However, we were informed that owing to constraints of time you had to leave earlier.

 
  
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  Alavanos (GUE/NGL).(EL) Mr President, this is of course a Commission statement, but on a very important issue, an issue with political implications. It concerns relations between the European Union and the United States, where a legislative solution is required, as Commissioner Patten said, and where the Council needs to be involved in any such legislative solution. Do you not think that the Council should be present at this issue and should be able to express an opinion, if it so wishes?

 
  
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  President. – Mr Alavanos, I have, of course, noted your comment and we shall investigate exactly what is going on. However, it was agreed at the outset that the Commission would make statements on this issue.

 
  
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  Bolkestein, Commission. – Mr President, I should like to add the following to what Commissioner Patten has just said.

The new American law requiring airlines operating flights to, from or through the United States to grant electronic access to their passenger name records raises a number of policy issues: firstly, the fight against terrorism; secondly, the right to privacy; thirdly, the ability of our airlines to compete; fourthly, the security and convenience of legitimate air travellers; fifthly, the relationship between Europe and the United States in general.

It is necessary to pull all these strands together and to strike an appropriate balance. It is also necessary to be practical and not theoretical. My first message is that we should work together for an outcome that achieves the best possible results, responding to the need to combat terrorism while respecting data protection in practice, without damaging the commercial interests of our airlines and without inconvenience for legitimate air travellers.

The Commission very much welcomes the opportunity to address Parliament on this matter. Underlying the technical issues are some fundamental questions about security and civil liberties which all democracies have to ask themselves. Discussions amongst elected parliamentarians on such issues is essential.

The motion for a resolution before Parliament criticises the Commission for not informing and consulting Parliament sooner. The Commission accepts this reprimand. It had no intention to conceal. It was more a question of when to bring this matter to the attention of Parliament and in what form.

We only have a short time. Rather than making a lengthy factual statement I will draw the attention of Parliament to two documents which the Commission has made available.

The first document is the joint statement which is the agreed account of the outcome of talks between senior officials of the Commission and US Customs on 17 and 18 February 2003. The second document is the statement by US Customs of 4 March which gives undertakings as regards the handling of sensitive data.

It is necessary to correct a misunderstanding. As my distinguished colleague Commissioner Patten has just said, many reports referred to an agreement or a decision. I stress that there is no agreement, there is no decision. It follows that, at this moment, there is no legal basis. There have been discussions and the US side has given certain assurances. This is the first step in the process. Both sides are committed to finding a more legally secure solution in due course. These discussions are necessary.

Why are they necessary? Because of information received about new US requirements, the Commission found it necessary last November to inform EU airlines and the related reservation systems that it was not clear whether they could provide the information required by US law without being in breach of their data protection obligations under EU law. In order to answer that question, it was necessary to obtain information from the US side, in particular as regards the use of the data and the conditions under which they would be processed.

Unfortunately the American side was very slow to respond to these requests for information and they only started to take our concerns seriously in December 2002. In the absence of discussions with the United States, the airlines – as Commissioner Patten has already explained – would have been left in an impossible situation. They would have faced a whole range of penalties, starting with the practice of secondary inspections of arriving passengers. That indeed had already started. That meant very long delays at arrival points for hundreds, if not thousands, of legitimate travellers.

That is an option, but is it what we really want? It is certainly not what the airlines wanted, and there was every likelihood that these airlines would have complied with American requirements anyway.

I strongly agree with Members who expressed the view in the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs on Monday that the American way of proceeding by unilateral action and threats of penalties is unacceptable. But not having discussions with the American side would have left them with the data and no means for the European Union side to influence their handling of it. It would have left the airlines open to either US or Member States' enforcement action when they – the airlines – are the wrong target.

If we want to bring pressure to bear it should be on those who can deliver a solution – and that is not the airlines. Our aim has thus been to open up a process of dialogue through which we can influence US practices and obtain assurances from them that will ensure that data is adequately protected.

The Commission considers that the outcome of the February talks was positive for data protection for the following two reasons. Firstly, we secured US agreement on the further steps to be taken to reach a mutually satisfactory solution that would and can provide legal certainty to all concerned. The second reason is that the United States made a number of significant, unilateral undertakings of immediate application. For example they made undertakings on what data they would not use and how they would handle the data they do use. They confirmed in particular that their data gathering would be limited to flights to, from or through the US.

Clearly we need more time and information from the United States before we can say that we have a solution. We can only be satisfied when we have an arrangement which provides a maximum amount of legal security for all concerned. There are in the meantime transfers of data. Are such transfers legal? Only the courts can answer that question in a definitive way, but I would like to make two points in this respect.

Firstly, the airlines have to meet their obligations as data controllers and they must inform passengers fully, in line with Article 10 of the Directive, and obtain their consent for the processing of sensitive data in line with Article 8.

Secondly, legality has to be examined from the angle of the need for adequate protection for data that is transferred to a third country. Transfers may however benefit from one of the exceptions in Article 26(1) of the Directive. For example, certain transfers may be necessary in order to fulfil a contract with a data subject – in other words the contract to fly the passenger to the United States. – Since such an exception could be challenged, however, this solution lacks legal security. Moreover, although exceptions may be legal for specific transfers, they offer no guarantees that the data will subsequently be protected.

Article 25(6) of the Directive, on the other hand, provides for a finding by the Commission that a third country ensures adequate protection for transfers of personal data from the European Union. An Article 25(6) decision by the Commission is therefore much to be preferred to relying on the exceptions to the adequacy rule because it means that the data go on being protected. The prospect of such a decision and the legal security that it brings allow the Commission to engage the third country concerned in discussions about the protection provided, and hold it to ensuring a high standard.

Moreover, Article 25(6) decisions always contain safeguard clauses which can be triggered if protection does not in practice match up to the standards expected. They can also be unilaterally abrogated if necessary.

Finally, an Article 25(6) decision is a Community procedure, producing a result that is binding on all Member States. It is very much to be preferred to leaving Member States to act in dispersed order. It is worth mentioning that one or two Member States have or are planning measures very similar to those in place in the United States.

On my own behalf and also on behalf of my colleague Mr Patten, I should like to invite the House to take a positive view of the Commission's actions of 17 and 18 February. The American side has committed itself to a process which recognises our legitimate interest in their data protection practices, under which they subject their arrangements to our scrutiny according to our standards. That I think is a major step forward. Of course the United States still must provide the elements needed for the Commission to make such an adequacy finding.

As a comitology decision, an adequacy finding under Article 25(6) is always brought to Parliament before being finalised, as was also explained by Mr Patten. I certainly look forward to discussing this further with Members of Parliament on a future occasion.

 
  
  

IN THE CHAIR: MR IMBENI
Vice-President

 
  
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  Hernández Mollar (PPE-DE).(ES) Mr President, I wish to thank the two Commissioners for their statements and say to Commissioner Bolkestein that his acceptance of the reprimand that, as he himself says, we gave the Commission, does him credit. The fact remains, however, that the debate we are now holding should have taken place long before 5 March, the date of the entry into force of the measures adopted by the United States making airlines that schedule flights from the European Union to that country fulfil the obligations imposed by US legislation to transfer passengers’ personal data to the immigration services, as has been said, with these airlines facing stiff financial penalties if they fail to comply.

Commissioner Patten, we share the concern of the United States following the events of 11 September, but we also wish to say that we have an obligation to demand compliance with European legislation, specifically Directive 95/46/EC, which protects the transfer and use of personal data – in this case, of around 11 million passengers who make transatlantic flights every year. Article 25(6) of this directive even lays down a specific procedure for the transfer of data to third countries and, on this occasion, Commissioners, we believe that this procedure has not been adhered to.

We also have a duty, of course, to protect the interests of the airlines, which have to comply, on the one hand, with the obligations imposed by US legislation and, on the other, with the principles of Community legislation. In the current situation, the airlines are facing considerable uncertainty.

I therefore wish, Commissioner, first of all to convey to you this Parliament’s unease at your belated – from my committee’s point of view – reaction to this issue, which also leads us to doubt the legality of the actions referred to in the joint statement issued by senior officials of the European Union and the United States Customs Service on 17 and 18 February.

This statement, Mr President, Commissioners, even provides for – and I find this most surprising – an exception to be made to the application of our legislation in light of the United States’ wishes. I wonder how this is possible.

On the other hand, the Union’s national data protection authorities now have their hands tied because, if passengers complain, they must apply the European directives in force and are obliged to impose penalties on the airlines. We will, therefore, have to find a quick way out of this situation of uncertainty, by defining a clear framework for action and by reconciling the legitimate demands of the United States with respect for European legislation.

For this reason, the dialogue that has taken place to date within the administrations’ services must be conveyed urgently, given the transparency required, to the institutions’ political representatives and formulas must be quickly found for enabling the data that must be transferred, and the conditions in which they will be processed by the United States’ agencies, to be clearly defined. It is absolutely essential, at the same time, to inform the citizens that their data might be transferred and should this happen, to obtain their consent because, Commissioners, this is what Community legislation requires.

The ideal situation would be for the US authorities to be able swiftly to define their data protection standards, the adoption of which is already provided for in US legislation, and for the Commission to be able then to state that the necessary data can be transferred under the conditions laid down by Community legislation. This is also a requirement laid down in Article 7 of our Charter of Fundamental Rights.

I therefore call on the Commissioners responsible to make up for lost time and I rely – also on behalf of the committee which I have the honour to chair – on the Commission’s willingness to study with all due attention and urgency the texts that have been submitted to us on the basis of Directive 95/46/EC. We should also like to be informed, starting from today, of all meetings and of every stage in negotiations on this matter, not when the decision is about to be adopted, to ensure that we can cooperate and work together with the Commission, as we have been asked to do.

(Applause)

 
  
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  Paciotti (PSE).(IT) Mr President, I fully agree with what Mr Hernández Mollar has said. We are aware of the United States’ security requirements but, Commissioners, it is the Charter of Fundamental Rights of the European Union, which the Commission is committed to upholding, which sanctions the fundamental right to protection of personal data, and it is the 1995 directive, proposed by the Commission and approved by us, that lays down the rules for the protection of that data. That directive stipulates that the Commission, through a specified procedure that it lays down, must ascertain whether the third country offers adequate protection for data transferred to it regarding our citizens and, if not, that it must open negotiations, find solutions and submit its assessment to the scrutiny of the European Parliament.

In the case we have here, the transfer of passengers’ personal data by airlines that fly to the United States, as required by the US authorities on the basis of laws passed in 2001 and 2002, presents serious problems of compatibility with European legislation, particularly as regards the possibility of direct access by the US customs to our airlines’ reservation systems and passenger name records.

Amongst other things, I must point out that the data to be acquired – through that direct access – could also contain information of a financial nature or of a medical, religious or ethnic nature which might also refer to persons other than passengers bound for the territory of the United States, that the data might be transferred to other bodies without the consent or control of those it refers to, and that US law only protects US citizens.

In this situation, the Commission failed to inform Parliament – as it has admitted – it failed to inform the European citizens prior to the date, 5 March, when the demands on the airlines enter into force, and it did not fulfil its obligation to check whether suitable protection exists in due time but has relied on statements by officials and press releases to convey the promise and reassurance of future interventions.

Thus, a fundamental right of European citizens is now at risk. The airlines and national authorities that safeguard personal data are placed in a situation of legal uncertainty, exposed to prosecution for breaking national laws and to the risk of serious financial damage. The Commissioners who have competence in this area must accept their responsibilities straight away and obtain a temporary suspension of the effects of the laws in question; they must request formal and verifiable guarantees, obtain the opinions provided for by the directives and submit a decision to the European Parliament under Article 25 of the directive. Otherwise, I believe the European Parliament will have to consider appealing to the Court of Justice to ensure protection for the citizens of Europe.

 
  
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  Ludford (ELDR). – Mr President, Commissioner Bolkestein invited us to take a positive view of the Commission's action in the 17 February joint statement. I am sure the Commission was motivated by a genuine desire to rescue European airlines from being stuck between a rock and a hard place, in that if they complied with Community law on data protection they would be grounded and refused US landing rights, whereas if they gave into US demands they would fall foul of data protection authorities. However, the Commission made the wrong call, not least in consulting neither the European Parliament nor, previously, the National Data Protection Commissioners' Article 29 Working Party.

It is disingenuous to try to claim that it is not an agreement. It is called a joint statement and it is also referred to in the text as an understanding of both sides which will be implemented. That, in plain English, is surely an agreement. However, it does not deliver legal certainty and the Chairman of the Article 29 Working Party has contested the assertion by the Commission that EU data protection authorities may not find it necessary to take enforcement actions – that is for breaches of the Data Protection Directive – against airlines complying with the US requirements. This is a stunning rebuff to the Commission. He said in essence that National Data Protection Commissioners and courts were not free to suspend application of relevant laws just on the say-so of the Commission. That must be right. It is a reminder to the Commission that if it will not be the guardian of Community law, then others have to be.

The political groups are in wide agreement on this matter. The only point of contention is the amendment calling for the Commission to secure suspension of the US demands until there is a decision on compatibility with the Data Protection Directive, which means an Article 25(6) decision. The PPE-DE Group has not signed this amendment, and I understand they believe it would leave the airlines exposed. However, the Article 29 Working Party has stated that they are exposed anyway to sanction for breach of data protection legislation. Therefore it is academic.

The text of the statement makes it quite clear that the Data Protection Directive applies, because it states that US customs will access the data in the territory of the Community.

The basic problem is that the US has no data protection laws. This is a problem for the Europol Agreement and the EU-US Mutual Legal Assistance Agreement. There is huge concern about the balance between security and civil liberties being tipped too far towards security in the United States. In the light of various apparent miscarriages of justice recently in the US, the lack of control on use of data by other law enforcement agencies is of great concern. We need an Article 25(6) decision after consultation of this House. The Commission may have tried its best, but it did the wrong thing.

 
  
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  Alavanos (GUE/NGL).(EL) Mr President, I wish to tell the House that, 10 days ago, Professor Venios Angelopoulos of the Athens Polytechnic travelled to JFK airport in the United States and disappeared. He disappeared for five hours because he was being interrogated by the FBI. They grabbed him with no explanation whatsoever and they let him go with no explanation whatsoever. There was an outcry in Greece about the how, why and wherefore until the citizens of the European Union, the Member States of the European Union and parliamentarians gradually found out that the European Commission and the United States had already come to an agreement on the transfer of personal data on people travelling to the United States. And that is not all. The United States are allowed to access data systems, passenger files recording the date the seat was booked, the travel agency, ticketing information, credit card number and expiry date, itinerary, previous files on the passenger containing details of previous trips, religious or ethnic information based on their choice of meal etc., who they accompanied, where they stayed, how they communicated with other people and their medical data, as well as frequent flyer programmes, which also contain a wealth of data.

How can this be? Who do the United States think they are? The international police? And where does this leave the European Union? Why does the European Union have data protection laws? How can we stand by while the United States imposes fines on airlines for wanting to apply the laws of the European Union? How humiliating is that?

The European Parliament calls on the Commission in its motions – and the Commissioner said nothing about this – to put an end to this, pending harmonisation with the laws of the European Union. I think we should apply Rule 91 of the Rules of Procedure, as we have had no response from the Commission, and institute proceedings before the Court of Justice.

 
  
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  Buitenweg (Verts/ALE).(NL) Mr President, the right to privacy is not sacrosanct, it is a basic right but it can be violated if there are important issues at stake, if it is effective, if it is proportional and if there are guarantees against misuse. I can tell the Commission now that as far as I am concerned blackmail by a third country or long waiting times for air travel do not count as important issues. This will really have to be solved another way.

Privacy is not an obstacle, but an essential part of security. Dealing carelessly with the privacy of our citizens jeopardises the basic trust of the people in their government and in the constitutional state and then we are worse off. For my group it is logical that the United States wants to know who is setting foot on its territory and in this context we can of course talk about the exchange of data. But then agreements must also be made about what data we exchange, which authorities have access to them and how long they may be retained.

US Customs may pass the data on to other authorities that are concerned with combating terrorism. The interest on the American side in the personal data of aircraft passengers cannot, however, be seen separately from their efforts to bring about a Global Computer Surveillance System. The United States, as my colleague Mr Alavanos has just said, wants to track the travel patterns of citizens, their credit card purchases, and so on, worldwide.

Now the Commission is really pleased because the Americans have made a solemn undertaking not to use data about religion and health. What does that mean? Does it mean that while they do have access to these data, they have simply undertaken not to do anything with them? Do you really believe, Commissioner, that if the American authorities have these data and if they think that it is useful for their system, they are really not going to use them? Even meal preferences can say something about a person. I myself have been vegetarian for years and years, even on aircraft. Now, all of this is going to be recorded and analysed. For people who do not like this, a European Commission spokesman had good advice. ‘The choice is clear,’ he said, ‘either you do not go to the United States, or you go for the sandwich option.’ Do you, Commissioner, endorse this advice, and do you also think it so enormously funny?

In itself it fits in well with your liberal remark of a few moments ago that passengers must in particular be well informed about sensitive information that is gathered about them. Now the small print on an aircraft ticket is one thing, but do passengers really have any other option? I would like to hear what you have to say on that as well.

Mr President, I would otherwise like to associate myself with the many comments of my fellow Members about the precise technical and legal problems with this. We for our part say that the exchange of data must stop immediately. European rules apply here on the European continent and if we are going to make agreements about changing these rules, then the partner with whom we are making these agreements must also respect our rules, our basic principles. This is how it works in a partnership between well-meaning countries.

 
  
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  Cappato (NI).(IT) Commissioner, I will focus on procedure first: you say it is not a question of a legislative act, a Community act. The problem is that it seems to us at least possible that that act, those joint statements – first the February ones and then the March ones – give rise to legal effects, actions, exchanges of data and information that have taken place because of those meetings and those statements.

The joint statement issued by the two parties in February already mentions the fact that the most sensitive data should be – and are – processed in accordance with European Union legislation. This statement is also an assessment of the data transfer procedures, a conclusive assessment; it has legislative force and, indeed, serves to legitimise an exchange of data that already exists. The same is true of Paragraph 4 of the Commission recommendation to the national data protection authorities, according to which it is not necessary to take enforcement measures against airlines that are not complying with the United States’ requests. This is another recommendation that has legislative force and effect: the Commission is saying ‘Do not intervene!’ regarding those airlines that are transferring data in compliance with US legislation.

I therefore believe that there is at least the possibility and the suspicion that this act should be considered a legislative act, against which Parliament can appeal to the Court of Justice. I also believe this procedure might help the Commission and the European Union themselves to strengthen their own position in a dialogue that should be conducted on equal terms, between parties of equal rank, between a market of 250 million people and a market of 350 million people, because we have to consider very seriously the fact that, right now, collecting these data and transferring them to the United States cannot be in compliance with Community law.

Contrary to what the Commission said in the joint statements, the collecting of data that is intended for commercial purposes and the subsequent use thereof for security or intelligence purposes constitutes in itself a breach of the principle of necessity and the principle of proportionality laid down by Community law. This, in fact, creates a situation of so-called generalised surveillance, which is definitely against Community law, and not just might be or something we must check up on to see whether it contravenes the law.

What is needed, then, is to open formal, official negotiations to see what agreement, what compromise can be found, but it is not possible to resolve the issue pre-emptively by thus attributing de facto legitimacy to a transfer of data that has already begun. This is why Parliament must continue down this road, and I also believe it will strengthen the Commission and the Community institutions.

 
  
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  Hatzidakis (PPE-DE).(EL) Mr President, this is an unfortunate situation, of that there can be no doubt. Sensitive personal data on citizens of the European Union can be transferred to the authorities in the United States, with no guarantees whatsoever, and our citizens are clearly concerned about this. At the same time, the United States have taken a threatening stand. They are threatening to take measures against our airlines if they fail to do as they are told, which is hardly what one expects from friends and allies. This is just the latest in a series of incidents over recent years, especially lately, incidents which often have what might well be seen as comic-tragic overtones. For example, as we have seen in the case of Iraq, numerous European countries are now at the point where they have more in common with powers such as China and Russia than with the United States, with which we basically share the same values. Consequently, at some point, both sides will have to sit down, we and the Americans, and talk seriously and on an equal footing about where this relationship is going and what we can do to save it before it implodes completely.

Now, on this particular issue, criticism is being levied at the Commission which I endorse in large part, although I must say that, in my personal opinion, I do not believe that there was any intention on the part of the Commission to support the Americans. Its intention was to take certain steps in order to deal with a difficult situation it was facing. In all events, what I want to see is this problem resolved as quickly as possible in a way that is, first, legally correct and, secondly, legally secure with respect to the rights of the citizens of the European Union.

I think that this approach, Mr President, is far preferable to the immediate suspension of the interim agreement between the Commission and the American authorities that several political groups have called for in their proposed amendment. If we automatically suspend the agreement with immediate effect, I think that we will be doing ourselves more harm than good, to tell you the truth, not to mention European airlines, which will be denied landing rights in the United States. So let us find a legally secure solution as quickly as possible, let the Commission act along these lines, even at this late stage, perhaps by correcting any mistakes made, and let us leave it at that.

 
  
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  Terrón i Cusí (PSE).(ES) Mr President, Commissioners, this Parliament has reacted after the attention of President Prodi, President Simitis and Mr Hernández Mollar was drawn to the matter by a source as authoritative as the chairman of the Article 29 committee. The Commission, on the other hand, tells us that these are simply misunderstandings. I must say that, now that these misunderstandings have been cleared up, I am even more concerned.

I come from a Member State which knows that measures to combat terrorism must be established, but which also knows – only too well – that this must be done within strict respect for legality and for the law unless we wish to hand final victory to the terrorists.

You tell us that the airlines are being pressured by the action of the United States Administration, which is forcing them to breach European legislation. If this is the case, the airlines have the right to claim protection from their authorities, as do, it goes without saying, the Union’s citizens.

The Commissioner says that no agreement or decision has been reached and that, therefore, there is no legal basis for such action. Commissioner, this is precisely what we are complaining about; this is precisely the question we are asking: what has been done to give the United States the idea that they can undertake unilateral action? What have we done to allow this to happen?

You ask us to take a positive view of the Commission’s actions by saying that data protection – a right recognised in the Charter of Fundamental Rights – and the loss of jobs or the penalties that airlines might suffer must be seen in a balanced way.

I genuinely believe that this is an acceptance of blackmail and I find this situation surprising. Is the European Union unable to respond in a reciprocal way, to say that some things are not acceptable and might face countermeasures? I have the impression that what we are seeing reflects the attitude of a female character from a Spanish novel who, convinced that she lives under the absolute authority of her husband, is happy because he beats her ‘no more than usual’.

In my view, this is unacceptable and this attitude must change. As most of the groups in this House are calling for, we must stop implementing decisions that have been taken, either by the Union together with the United States or by the United States alone, and attempt this time to conclude, with the means of pressure available to us and with our legislation – which must prevail – an agreement that ensures the secure processing of our data and correctly inform Parliament and, above all, our citizens, of this agreement.

(Applause)

 
  
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  Boogerd-Quaak (ELDR).(NL) Mr President, the Commissioner has said that there is no agreement and no decision, but there is an interim rule. My question therefore is how long can such an interim rule be valid and how must we view it? Protection of personal data is a fundamental right under Article 7 of the EU's Charter of Fundamental Rights. It is probably also going to form part of our European constitution. So this is a very serious matter. All this is also laid down in our directives and in particular Directive 95/46/EEC. It also contains exceptions that we could meet.

But as far as I have read these exceptions, I have to say that the transfer of data to the US is systematic and does not fall under the exception of Article 13 of that directive. It is also the case that the data in question are so all-embracing that you cannot say that they are not relevant and not excessive and therefore cannot fall under Article 6 of that directive. In addition, Directive 95/46/EEC says in general that the transfer of personal data to a third country may only take place if that third country offers an adequate level of protection. In my opinion this has not been satisfied either.

I have listened carefully to the Commissioner, who has said that he has done his best to find a balance between maintaining privacy and protecting the airlines. I have some sympathy for that, but I nonetheless believe that he has gone the wrong way about it. There is no democratic legitimacy and agreements have been concluded that could not be tested by the representative body. That is totally wrong. At the moment my position is that the measures in their present form must be suspended.

 
  
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  Krarup (GUE/NGL).(DA) The Commission’s representative – Mr Bolkestein, I believe – mentioned at one point the issue of whether Parliament might not take a positive view of the Commission's actions. I am just as incapable as my fellow MEPs of expressing such a positive view. The idea of doing so strikes me as being something of a bad joke, since such energetic kow-towing to unreasonable demands on the part of the American authorities has rarely been seen. The big picture in this matter is, of course, specifically the United States’ relations with the surrounding world.

What we are discussing here and now bears no direct relation to the use of military technology to kill other peoples, but it is all part of the same picture. The demands put forward by the American Government are clearly inconsistent with the legal requirements derived from current legislation, first and foremost Directive 95/46/EC on the principles of data protection. As is apparent from quite a few of the statements put forward by the Article 29 Group, the heart of the matter is that this data is not merely to be used in the interests of air safety, but for the purposes of what is referred to in the United States as public order, that is to say as a component part of the United States’ war against terrorism conducted under the banner of the end justifying the means. There are, however, a number of legal principles involved here that we cannot dispense with, and the Commission’s efforts to uphold these legal principles are pitiful.

What is described in the paper from the Article 29 Group is certainly alarming. Data is passed on not merely to immigration authorities but to other federal bureaux. It is, then, no longer specifically protected, as it ought to be according to American legislation.

I might add one question and one answer. The question, raised by the Commissioner, was as to whether this matter could be sorted out using a comitology procedure. That would be absurd. In my view, the matter necessarily revolves around an agreement pursuant to Article 24 – cf. also Article 38 – of the Treaty on European Union, which unfortunately means that Parliament is made redundant since it has no influence upon decisions of this kind. All the more reason, then, for informing the public in advance.

 
  
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  Pirker (PPE-DE). – (DE) Mr President, Commissioner, there can be no denying that especially since the events of 11 September stronger measures have been needed to combat terrorism, but it should equally go without saying that any measures that we implement need to have a legal basis. The United States on 5 March enacted a law that has indisputable consequences for the citizens of the European Union, for data protection and for EU legislation. The US enacted this law without concluding the necessary bilateral or multilateral negotiations and without entering into an agreement with the Union.

This – as you yourself indicated, Commissioner – has led to a problem with the airlines, which are caught in a double bind. If they do not pass on any data, they have difficulties over landing rights, leading to business problems. But if they do pass on the data as required, they run the danger of infringing EU law and being taken to court. So a horrendous problem has arisen here. This procedure is quite simply unacceptable.

The Commission is not, however, immune from criticism here, because it has been aware of this issue for 15 months and has had ample time to tackle this problem, to consult Parliament and to seek appropriate solutions. An opportunity has been missed here – yesterday was the first time we were informed of this. We now find ourselves in the position of debating something that has been in force for some time now and which involves data on our citizens being transferred to the United States without our having any real guarantees about how this data is used in practice.

Something else I am critical of is the fact that the negotiations have not been held at political level but that officials have been given the remit of reaching agreement on this, and that this has then virtually been presented to us as the legal basis for all these processes, and the citizens of the European Union have been expected to put up with this. This too is totally unacceptable.

What we expect and indeed demand is that those responsible should be held to account for allowing a situation in which data is now being passed on from the European Union without any legal basis. We in the PPE-DE Group are also calling for the scope for an action in the European Court of Justice to be investigated, and we are demanding in particular, and with immediate effect, that anything that has been illegally enacted and is now in force should be rectified. However, we also expect that cooperation with the United Nations in the fight against terror should continue, but on a proper legal footing.

We all know that we can only win the war on terror by means of international cooperation. We are therefore committed to cooperation with the United States, but let me make this clear once more – only if our rights are defended!

(Applause)

 
  
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  Ceyhun (PSE). – (DE) Mr President, Commissioner, I am pleased that we have witnesses here today to hear us – their visit to the European Parliament will have served a useful purpose. All the citizens who are listening to us today are taxpayers and in the final analysis they are the ones who finance officials' salaries and some of them are following our debates with a certain sense of irony. And, Commissioner, it is the Commission's third-tier officials in particular who ought to be aware that they bear an enormous responsibility in Brussels, and that they also have to protect the interests of Europe's citizens.

It is already clear that we need to fight terrorism. I myself am each year the budget rapporteur of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, and we give Commissioner Vitorino everything he needs for the war on terror. None of us will refuse if the measures proposed are reasonable. Especially since 11 September we have been aware of the need for vigilance on our planet and the need to take appropriate measures at any given time. On the other hand – and I say this as someone from Germany – data protection is not just something that you can surrender if you consider it important that the European Union should not become like America. It is our task as Members, as representatives of the people, to take our electors' and our citizens' interests seriously and to defend them. We are not just talking about the airlines' interests here. We are talking about the interests of people who will soon find – without their knowing anything about it – that every detail of their lives has been handed over to the American security services, without ever having approved that and without knowing how this data will be used. Up to now they have always assumed that constitutional arrangements apply in the European Union and that data about them is sacrosanct.

What I would now like to know is this: how will we be able to convince these citizens in the future if the American authorities, who are giving no guarantees at all, are in a position to use or abuse their data as they wish?

 
  
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  Jarzembowski (PPE-DE). – (DE) Mr President, Commissioner, once again I wish to contradict the previous speaker. He needs to get a sense of proportion. Germany's airlines and those of other countries are informing the public about the new situation, and telling them that if they wish to fly to the USA, they need to agree that this data should be passed on. Nothing is being hushed up here, the public is being told about this. Yes, it is evident that that is not enough, but you are acting as if the public were being deceived by the airlines, and that is simply not the case.

I shall try to look at this whole issue from the standpoint of the airlines and their passengers for once. Because of the general recession, Europe's airlines were already in trouble before 11 September. The events of 11 September and the period that followed caused enormous problems not only for all European airlines but also for airlines in the US. As you will have read over the last few days, even American Airlines may have to file for Chapter 11 protection.

So the airlines find themselves in an extremely difficult situation. This will also have an impact on airports and on employment. It therefore has to be said that there is no point in disrupting air traffic between the USA and Europe over the next few weeks because of arguments of principle. We need to ensure that we can find a constitutional and practical solution to this problem.

Nor can I allow to go unchallenged the insinuation made by some Members that the US authorities will willingly misuse data on European and other citizens that comes into their possession. You need to bear in mind that before data protection was introduced in Europe, the Americans already had far more stringent data protection arrangements than we have, combined with strict rules about passing on data to third parties. So to that extent the allegation that the Americans would regularly misuse data passed to them is quite simply mistaken.

What we do of course need, Mr Bolkestein, is clear answers from you. How do you intend to achieve legal certainty that the US authorities will only receive data needed to fight terrorism and no other data? How do you intend to ensure that the Americans – and this also applies to company data – are only given the data they need, as opposed to data they can use to outmanoeuvre our businesses, our airlines and so on? You need to guarantee that by means of unambiguous agreements with the Americans.

That is the reason for my two other questions about the extent to which you are prepared to negotiate with the Americans. Which of the two possible legal solutions you have identified do you actually intend to pursue now, and how long will that take? I believe that in the present difficult situation faced by the airlines we cannot afford effectively to provoke an interruption of air traffic between the US and Europe.

 
  
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  Swiebel (PSE).(NL) Mr President, the fight against terrorism is necessary, but not all means are permitted. That is a very simple basic principle. You cannot play games with democratic legitimacy and the credibility of politics. If under the guise of the fight against terrorism the European Union were to permit excessive violation of citizens’ rights, we would be sliding towards the breakdown of the rule of law. If, as the previous speaker appears to be advocating, we lean too far in our sympathies for the airlines' difficulties, then we shall also be seriously off beam. This is the way things would go if Parliament were to acquiesce in the agreement between the Commission and the United States.

That according to Commissioner Bolkestein it should now all of a sudden not be allowed to be called an agreement does not make things any better. After all, the European Commission has overstepped the mark in this dossier and that is especially disappointing of Commissioner Bolkestein, who this very week has very cheerfully announced his candidacy as member of the European Commission for a second term – remarkable.

The European Commission, as I said, has overstepped the mark. In the first place it has failed to keep to its own plan to test its own action in advance against Article 8 of the Charter of Fundamental Rights. In addition, as guardian of the Treaties, the Commission is under an obligation to uphold existing European legislation, in respect of data protection in this case. As earlier speakers have already explained in detail I shall not repeat it everything is inconsistent with everything else. Instead of performing its duties properly, the Commission has acted like a mayor in time of war, yielding to American pressure – also known as blackmail – in order, supposedly, to prevent something worse happening. This action lacks any legal foundation, is completely non-transparent and uncontrollable. If the Commission had demonstrated greater political courage and had brought in Parliament in good time, a decent debate could have taken place regarding the scope within the fight against terrorism and the limits of data transfer.

The Commission must therefore retrace its steps and take action to defer the agreement's entry into force. If the agreements are properly tested against the European rules, a proper agreement can be concluded rather than this half-baked effort that jeopardises legal security. I am therefore especially pleased that in the resolution we shall be voting on tomorrow we shall also be opening up the route to the European Court, because it is not the first time that the Commission has tried to sidetrack Parliament.

 
  
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  Coelho (PPE-DE).(PT) Mr President, Commissioner, ladies and gentlemen, we are living in times in which the United States of America persists in adopting undesirable unilateral initiatives. It is unacceptable for that country to impose measures on airlines unilaterally and on pain of severe sanctions. As a matter of fact, I think that the Commission and the Council must take a careful look at whether this type of measure is entirely compatible with international agreements and conventions on air traffic and transport.

As various speakers have emphasised, primarily the committee chairman, Mr Hernández Mollar, our airlines are facing a dilemma, which is on the one hand that they are obliged to comply with Union data protection rules, specifically Directive 9546 and, on the other, they are obliged, due to this US legislation, to forward this data on passengers flying to, from or within the United States, in the knowledge that if they fail to do so or do so incorrectly or incompletely, they will be hit with severe sanctions, which could range from losing landing rights to having to pay substantial fines.

I agree with all the speakers who have emphasised that something is wrong in the relationship between the Commission and Parliament. It took fifteen months for the Commission to submit the matter to Parliament. It is also clear that the joint declaration by officials of 18 February does not establish a derogation for Community law and therefore does not provide a legal basis for airlines to authorise access to their data. Consequently, airlines face a real risk of being taken to court, as a result of complaints from passengers whose personal details have been forwarded to the US authorities. The directive on data protection lays down that personal data can only be forwarded to third countries if adequate protection is in place. Have the United States given us sufficient guarantees that this data will be protected? Guarantees must be provided for a definition of the reasons, for restrictions on the use of these data, for the conditions and restrictions on forwarding and sharing data, for protecting data from unauthorised access, for the duration and conditions of storage, for national measures for the protection of sensitive data, for passengers’ means of recourse to review and correct data kept by the US authorities and, finally, for conditions of reciprocity.

I hope that this matter will not be omitted from the next EU-US summit, due to take place on 25 June and that the European Union will adopt a forceful stance on this. Mr President, we all reject and condemn terrorism and its criminal acts. We support the US objective of preventing and combating terrorism and we roundly condemn the appalling acts of 11 September 2001. These acts were intolerable for their blind violence and because they affected innocent citizens. We do not believe, however, that the end justifies the means. As Mr Pirker and Mrs Terrón i Cusí have said, in waging the fight against crime, the rule of law must be upheld and citizens’ rights must not be called into question. Our respect for US law must be based on mutual respect for our own legal system. Our fight for security cannot and must not call freedom into question.

 
  
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  Cederschiöld (PPE-DE). (SV) Mr President, those sympathetic to the United States also have cause to criticise legislation that forces airlines to choose between the EU and the United States. It is extremely unfortunate that there has been no political discussion of this issue, either with the United States or within the Commission, in spite of the fact that it has been known about for 15 months. It is good that the attempt has been made to bring about legal guarantees, but this has unfortunately been unsuccessful. A form of technical data protection has, however, been established, which is obviously quite effective, and perhaps as effective as it can be.

As we all know, legislation must balance personal privacy and the fight against crime. Instead, we are now in danger of seeing a misuse of information – concerning, for example, credit card numbers, religious affiliation and race – which goes much further than what the airlines are entitled to supply. The United States has also introduced unreasonable storage periods for information, apparently based upon the notion that each of us is some kind of potential criminal. There is a period of ten years in the case of ordinary citizens and of 50 years for those who are under suspicion. This must be seen in the perspective of our discussions in the EU of a one-year storage period. Our points of view are oceans apart. It would of course be more sensible to delete information once it has served its purpose and once it has been used. Global discussions are obviously required in this case, and not only with the United States. Rather, we also need to hold discussions with other countries in the world that have special rules. It would probably be a good idea if the Commission were also to make use of Parliament, which can in actual fact contribute to this discussion. I believe that Commissioner Patten has understood this in as much as he talked about Parliament’s and the Commission’s needing to join forces.

Just over a week ago, we had discussions in Parliament with US congressmen who, we clearly observed, now have a much greater understanding of data protection and the protection of privacy than they would have done two years ago, for example. If we do not organise serious discussions, we shall end up in a position in which we have to discuss mutual and reciprocal reactions, and it would probably be better if we were to reach agreement in some other way.

What is at issue here? The aim is to protect people. People are, then, also entitled to know what information has been given out to whom and how it is used. This is also a good example of the discussion in the Convention and of the need for people to be able to demand political accountability. It clearly shows that this is the way matters stand.

In conclusion, I hope that my fellow MEPs will give very strong backing to this resolution so that our voice is heard in the Commission. We are perhaps heard already, but our voice must also be heard across the Atlantic and lead to joint talks prior to legislation’s being introduced. In that way, we shall obtain legal guarantees and be able to combat crime.

Finally, a message to the United States and the Commission: respecting someone means talking with them in time.

 
  
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  Santini (PPE-DE).(IT) Mr President, Commissioner, in spite of everything, I am one of those who are still trying to understand the underlying reasons that have driven the United States to adopt this measure – we know what they are: 11 September, the climate of fear, the preparations for war and the latent threat of attack – but I am certainly also one of those who are prepared to declare openly that they can in no way accept that an ally government, notwithstanding all these reasons, should breach international agreements based above all, as in this case, on the EU Treaty.

We all know – we have already been reminded, but I shall repeat it to refresh our memories at the end of the debate – that the most serious and controversial point is that referred to in recital B of the resolution, which states that at first the United States had just asked for these data to be made available. In Italy there is a proverb that says, ‘It is fair enough to ask, but it is a courtesy to answer’; except that the United States did not have the courtesy to wait for our decision but went straight to the second stage of their action. They immediately appropriated the data, even threatening companies that did not provide the information with a fine of EUR 1000 per person.

And what information, Commissioner, Mr President! Not just passengers’ full names and details of the flight in question, but even all their credit card details, information on other trips they had made, data, for instance, that could lead back to descriptions of passengers’ ethnic and religious backgrounds, medical data, addresses of all kinds, their occupation, membership of certain groups, and so forth.

The Commission has justified this measure by saying that the airlines did not want to have the burden of creating filters and therefore gave immediate access, as they were afraid of the EUR 1000 fine, amongst other things. The Commission has also said that this would have prevented long queues for passengers arriving at the various destinations in the United States. Really, this explanation seems rather childish, to say the least: justifications that are not acceptable in that there is a complete breach – as has also been mentioned already – of Article 8 of Directive 95/46/EC, and the Commission’s role above all is to enforce the directives and hence Community law.

Another point of disagreement is this: as has been mentioned, the Commission knew a good 15 months ago that the United States was going to bring this measure into force on 5 March. Well, the Commission’s duty would have been promptly to inform the citizens of Europe and the European Parliament, which would automatically have acted as a sounding board.

The United States Congress does not seem to have had much respect for democracy either: it never discussed this measure; it simply interpreted the legislation broadly, it is said, and then moved on to action. I would say that this too is a moment of serious discourtesy.

The only point of contact is the well-known high-level agreement of 19 February, which, however, is not a written agreement and has no validity, certainly not enough for us to take to the Court of Justice. We ask the Commission what the legal basis is for this agreement and what European interests are safeguarded in this case.

In order to clarify this and other points, the European Parliament has now convened a public hearing and, perhaps, after this hearing we shall first of all know a little more about how it was possible for all this to have come about and, secondly, have a rather clearer idea especially about what it would be best to do now, while avoiding emotional schizophrenia and agreeing on joint, coherent standards to be enforced in future.

 
  
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  President. – I have received a motion for a resolution pursuant to Rule 37(2), of the Rules of Procedure.(1)

Commissioner, it seems to me that, at the end of this debate, all the uncertainties remain. You said in your first speech, ‘There is no agreement, there is no decision,’ but all the Members have instead insisted on the fact that the answers on this point were not clear. Lastly, I must unfortunately ask you to be quite brief in your reply because we have to leave room for Question Time.

 
  
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  Bolkestein, Commission. – Mr President, I shall do my best to answer the most important questions and remarks addressed to me. It is difficult to be brief as this is a complicated and important subject.

So far we have achieved two things: first, we secured American agreement on the further steps to be taken to reach a mutually satisfactory solution that can provide legal certainty to all concerned. I should like to stress that this seems mutually satisfactory to the Commission, the European Parliament and the European side. I say this in particular to Mrs Buitenweg, who insisted that our norms should be the touchstone for the acceptability of any agreement that might be achieved in future. It must be a mutually satisfactory solution. The American side has accepted that.

Secondly, the American side has given a number of significant unilateral undertakings of immediate application. For example, they gave undertakings on what data they would not use and how they would handle the day-to-day 'do use'. In particular, data gathering would be limited to flights to, from or through the United States. Our discussions so far have yielded this result. We have not yet reached the end of the road – far from it. We have not yet achieved an agreement. The discussions with the United States will continue, I hope as quickly and as energetically as possible. It is premature to say that the Commission has failed and that it should have achieved more than it has. On behalf of Commissioner Patten and Commissioner de Palacio, who deals with transport, I must reject those criticisms. That is not to say that there is not more to do.

It has been pointed out that, although there is no agreement as yet, the effect is nonetheless that data is being accessed where it was not accessed before. That is true. It is clear that in the absence of discussions the airlines would have provided the data anyway. The airlines know that the US airlines and US-based reservations systems are already doing this.

That is a very important point which may have been overlooked in the heat of the debate. It is not simply a question of letting the data be transferred or preventing this, much of it is flowing anyway. Therefore it seems to me that the suggestion which has been made that we should take the airlines to the European Court of Justice is not a very productive suggestion. It is happening now. The airlines are, as Baroness Ludford said, between a rock and a hard place. They know that the American side is serious about imposing penalties, including some that could put their transatlantic traffic at risk. The counterbalancing threat – namely that the Commission would start infringement proceedings, legal action for breaches of the data protection rules – was a serious concern for the airlines. However, some of them have said that is not life-threatening, whereas the American threats are. I would beg Members to understand the very difficult position in which the airlines find themselves, which will have an effect on transatlantic traffic of 10 to 11 million passengers a year, as Commissioner Patten has explained.

A number of speakers have mentioned the supply of information to European Union citizens. Under data protection law, as I am sure Members know, the first duty to inform data subjects lies with data controllers. In this case that is the airlines and possibly travel agents. On Friday 14 March there will be a meeting to ensure that they understand their obligations to inform passengers and aircraft crews about what will happen to their data and why. A duty of information also lies with the American Government. Most of us would find it hard to argue that a country such as the United States does not have the right to determine the conditions under which it allows people to enter the country. They also have a duty to inform the public so that potential travellers can make an informed choice.

Baroness Ludford made a very pertinent point about the data systems that would be based in the European Union and the way in which the United States would access those data systems. It concerns the direct application of the Directive to US Customs that give the European Directive a clear extraterritorial effect.

The Commission is at present undertaking a thorough legal analysis of the various implications of that question, for example with regard to the scope of the Directive and to the exercise of state power by US Customs within the territory of Member States. The judgment is awaited from the European courts in a case that may throw some light on the Directive's precise scope but no date has yet been fixed by the courts.

In any event this question only arises when US Customs have direct access to the airlines' databases. It would not arise if the airlines were to send the data to US Customs and this method of transfer, that is the push method, is certainly much to be preferred if it can be organised from a technical point of view.

Furthermore, the question has been raised in particular by Mrs Buitenweg and also by other Members of Parliament about meals taken on aircraft. It is important to realise that the US screening process does not use data such as meal orders, but those data are in passenger name records and they are downloaded with the rest. That is bad practice in terms of data protection. The fact is that the United States neither requires airlines to change their data collection practices nor asks them to separate relevant data from irrelevant data, which makes the exercise less costly for the airlines.

Mr Santini and Mr Jarzembowski referred to this aspect of the case. Even our Directive says that certain efforts are not mandatory where they are disproportionate to the results they achieve for data protection. We shall certainly pursue our talks with the airlines with the view to their installing filters that separate US flights from the rest and possibly also filters that separate sensitive data from other data which the US side say they do not need or use.

These are some of the more substantial points which were raised by Members of Parliament. In addition to these points, with respect to a suggestion made by Mrs Paciotti, the possibility of using 25(6), i.e. a finding of adequacy, is of course available. If the Commission should come to the conclusion that there is adequacy in this area it will and it must inform Parliament and a proper discussion can then take place on the basis of this finding of the Commission.

A question has also been raised about discussions to be held at political level. I am sensitive to that suggestion and I shall certainly discuss it with Commissioner Patten – who begs to be excused for the reasons that he mentioned – and Commissioner de Palacio, since she, for obvious reasons, is very much involved.

On the other hand I would like to say that it is not always the political input that provides a solution. After all, the staff – certainly in the case of the services that work under my supervision – are extremely able people. There is no reason to suppose that they can achieve less than Commissioners at political level, but the possibility cannot be excluded and I am therefore sensitive to this suggestion.

Various Members of Parliament have spoken about the suspension of the American measures. I am sorry, but in view of what I said earlier and also what Mr Jarzembowski said, we cannot afford, especially in these days of political uncertainty and economic downturn, to stop air traffic to the United States or seriously put it in jeopardy. After all it concerns millions of passengers per year and we cannot afford to put that in jeopardy.

Mr Jarzembowski has said that we must have a practical solution, with a proper legal basis, in cooperation with the United States. I agree entirely with him and the Commission will make every effort to achieve that practical solution, firmly based on the law. I hope to be able to discuss further developments in this area with Parliament as appropriate.

 
  
  

IN THE CHAIR: MR PUERTA
Vice-President

President. – A Member wishes to speak but this is not possible, because we have already used up 35 minutes of Question Time.
The debate is closed.
The vote will take place tomorrow at noon.

 
  

(1) See Minutes.

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