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O-000170/2011 (B7-0417/2011)

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PV 04/07/2011 - 24
CRE 04/07/2011 - 24

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Monday, 4 July 2011 - Strasbourg OJ edition

24. Negotiations on the PNR agreements with the US, Australia and Canada (debate)
Video of the speeches

  President. − The next item is the debate on

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Cornelia Ernst, Helmut Scholz and Søren Bo Søndergaard, on behalf of the Confederal Group of the European United Left – Nordic Green Left (O-000156/2011 – B7-0412/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Jan Philipp Albrecht, on behalf of the Group of the Greens/European Free Alliance (O-000159/2011 – B7-0413/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Birgit Sippel, on behalf of the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament (O-000160/2011 – B7-0414/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Timothy Kirkhope, on behalf of the European Conservatives and Reformists (O-000164/2011 – B7-0415/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Sophia in ’t Veld, on behalf of the Group of the Alliance of Liberals and Democrats for Europe (O-000165/2011 – B7-0416/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Axel Voss, Simon Busuttil and Manfred Weber, on behalf of the Group of the European People’s Party (Christian Democrats) (O-000170/2011 – B7-0417/2011).


  Cornelia Ernst, author.(DE) Madam President, ladies and gentlemen, we have already adopted a number of resolutions on the subject of passenger name records (PNR), which include specific requirements. In all cases these have been concerned with necessity, appropriateness, proportionality and the prohibition of profiling. We consider the legal basis of the agreement with Australia to be inappropriate. The agreement with Australia is aimed at harmonising the transfer of data prescribed under Australian law with European law, and particularly the law on data protection. An absolute requirement, therefore, is that reference must be made to Article 16 of the Treaty on the Functioning of the European Union.

Moreover, we would question once again its proportionality. If you bear in mind that, according to the Australian Government, in 2009 just five people were traced and accused of terrorist offences – and it was not even clear whether this was achieved as a result of PNR data – then it does not seem particularly proportionate for millions of records nonetheless to be retained for years on end. As we all know, when it comes down to it they are being used for profiling purposes – and we do not even have a uniform agreed definition of profiling yet. I do not know how often the Commission has already been asked for such reasons to prove that the transfer of PNR data is necessary, or to present and look into alternatives. A really substantive report is necessary if this is to be investigated.

One more comment on purpose limitation: how can we ensure that the data is used only for the intended purpose if various third countries conclude agreements with each other under which PNR data is systematically exchanged? This makes it difficult, if not impossible, to ensure this.

Moreover, we are awaiting a very clear answer from the Commission on the relationship between PNR and the US Secure Flight programme. As everyone is aware, the purpose of the Secure Flight programme is to exclude so-called potentially dangerous passengers from flights. There have been frequent cases of mistakes being made and passengers being misidentified, as a result of which the persons concerned have been prevented from travelling and have practically no legal means by which to defend themselves.

One final word: please do not forget that we are talking not just about self-determination – about self-determination in the sphere of information – but also, and above all, about freedom of movement as a basic right, as laid down in the European Charter of Fundamental Rights.


  Jan Philipp Albrecht , author.(DE) Madam President, Commissioner Malmström, ladies and gentlemen, this esteemed House has repeatedly made clear what it expects before it is prepared to even consider accepting agreements on passenger name records (PNR).

Firstly, we decided over a year ago that in no circumstances was PNR data to be used for so-called data mining or profiling. That means putting a stop to wholesale searches being carried out on an arbitrary basis and a return to investigation based on genuine cause. Yet what has the Commission delivered? A licence to link up and analyse all kinds of data for personality profiles and risk indicators. Ladies and gentlemen, that is not acceptable.

Secondly, we expressly asked the Commission to obtain an expert opinion from the Fundamental Rights Agency. What has been done? Nothing whatsoever. It was only at our instigation that the Agency has now submitted a report on the planned EU PNR system, in which it has flagged up clear breaches of basic rights.

Thirdly, we expressly asked the Commission to obtain a data protection impact assessment. What has been done? Once again, nothing.

Fourthly, we have repeatedly demanded proof that such a measure is proportionate and necessary; in other words, that there is not a less intensive measure that could perform the same purpose. This proof has not been provided either.

I am pleased that the Polish Presidency wants to proactively address this issue. Commissioner Malmström, I find it embarrassing that you are evidently not in a position to resolve these issues. Instead you pull the blanket over your head like a frightened child. Please would you finally take note of the fact that there are huge legal problems with the PNR agreement and the planned EU system. Your own Legal Service says so. The Legal Service of the Council says so. The Fundamental Rights Agency says so. The European Data Protection Supervisor says so. Various highly regarded think-tanks say so. It is high time to put an end to this business of storing data ‘just in case’, on no basis whatsoever, in every area of life. Were you actually to present these PNR agreements to Parliament, then the Group of the Greens/European Free Alliance would insist on having them examined by the European Court of Justice.

Representatives of the Commission, right from the start you have hushed things up, distorted the facts and concealed the truth. You have put on a brave face and in so doing pulled the wool over people’s eyes. It will not enable you to succeed, however.


  Birgit Sippel , author.(DE) Madam President, I must admit to the House that I am a little confused where the debate on passenger name records (PNR) is concerned, because the facts and the issues that need to be clarified are not new. Nonetheless, one gets the impression that we are not making any progress – worse still, that we are moving back to worse conditions than those previously agreed.

The signing of the agreement with Australia is currently also stalled because the Member States have asked for more time to review it. I fear that the reality is somewhat different, but I would like to hope that this has something to do with the fact that the Member States, too, have realised that not every means is justified in the fight against terror. As most of us here will remember, negotiations on the SWIFT Agreement were very difficult, but were eventually brought to a successful conclusion. I am astonished that we are now moving at a different level as regards data protection and data security, and I get the impression that we are back to standards below those that we have agreed previously. A retention period of 15 years is far too long. In the case of the 11 September 2001 attack that was so incisive for the US, for example, 15-year-old data would have been no help whatsoever because the perpetrators were much too young for data that was so old to have had any relevance.

In my view, there is a very close link between proportionality and the use of data for a particular purpose. You cannot collect millions of data records from innocent citizens for 15 years and then say: ‘Actually, we are going to use this data for everything’, as is currently stated in the text of the US agreement. That is not acceptable. I would like to make it quite clear that this requirement applies not just to the US, but also to the Commission and to our Member States. If you adopt a measure to fight terrorism and serious international crime, then this measure must be limited to precisely that and cannot be expanded to allow other areas to be included by the back door.


  Timothy Kirkhope, author. − Madam President, I want to particularly thank the Commissioner for coming here this evening and of course Sophia in ’t Veld, our rapporteur, and all the other shadow rapporteurs who are still working hard on what has been a very long journey on these three PNR agreements.

I had hoped that in this plenary session we would be voting through the agreements between the EU, Canada, the US and Australia. However, for reasons which you have already heard and explained yourself, Commissioner, there are still outstanding issues.

I believe that the swift adoption of these agreements is essential and that such agreements are an essential tool in the fight against terrorism. I think it is right that we use this time to ask the right questions and gather as much information as we can from the Commission as to the compatibility of such agreements with European law, and on their practical implementation. These questions will no doubt be raised once again in my own report on the EU PNR agreement.

But, for me personally, the necessity and the proportionality of these agreements have been long apparent from the number of crimes they have helped prevent, and the number of criminals that they have contributed to catching. These are serious crimes and serious criminals: murderers, rapists, drug-traffickers, child-traffickers and terrorists. The questions which we are asking here this evening are incredibly important. Answers to them would make the process of decision-making for this House a lot easier and a lot more informed.

There will always be ideological differences within this House, for example as to how long data should be stored, and there are even those who would argue it should not be collected at all. But I believe we have reached a workable and reasonable conclusion on these questions which should satisfy all, with good safeguards and checks and rights for EU citizens.

We are at a crucial juncture, at which every negotiation and every process finds itself. A time when we have to move forward and do our jobs; when we have to look at what we have on the table and then make some positive decisions, and I hope that is the way that we will now go forward.


  Sophia in 't Veld, author. − Madam President, I am very much looking forward to the answers to these very detailed questions.

I would like to start by adding yet another one. We know that South Korea and Qatar have repeatedly asked to begin negotiations with the European Commission for an agreement because they too are requesting the transfer of PNR. So far the Commission has turned their request down. That means that there is no legal basis for the transfer of data to those countries. We know that other countries will soon follow suit. I would like to know what the Commission’s course of action will be.

Secondly, I would like to highlight one point from the oral question, and that is the issue of necessity and proportionality. The demonstration that we had two weeks ago in Manchester of the use of PNR underlined what we have been saying here for a long time. PNR data can, in particular circumstances, be useful, maybe even necessary, when people cross borders, but the long-term storage of data concerning all passengers remains very problematic.

Essentially, what is being done is that data is stored because it may come in handy one day in order to solve crimes that have not yet been committed and that we are not aware of. That is not proportional and your own legal advisers and those of the Council agree. I look forward to your answer.


  Axel Voss , author. (DE) Madam President, Commissioner, the challenge that we constantly face when it comes to data and data transfer is the endless search for balance between security and freedom. Freedom without security is fragile. Security without freedom is repressive. In other words, we need as much security as is necessary in order to allow freedoms, but not so much security that these freedoms are jeopardised. In my view, that is exactly what the debate on passenger name records (PNR) is about.

Such a system can indeed generate greater security and make travel easier, but in this area – where we must constantly find the right balance – there is one question that continually arises, and that is: where is the line that we do not want to cross? These questions are our attempt to communicate this to you. There are legal problems. There are practical problems. There may be problems relating to its application generally under European law.

Where the agreement with Australia is concerned, it seems to me that we have a good starting point that we can build on. The same cannot be said of the agreement with the US. This naturally leads us to ask – as Mrs in ’t Veld has just mentioned – just how so many different agreements can be reconciled with each other. What do the others want? To start with, we need to clarify exactly what profiling means. It may sound highly dangerous at first, but profiling can also be highly objective – as in the case of the UK authorities. That seems to me to be entirely acceptable. I have a feeling that this is our last opportunity where the US agreement is concerned, so we should continue negotiating in any event.

I have a last brief question regarding Canada. I have heard that the negotiations have been broken off. I would be grateful if you could give me some feedback on this.


  Cecilia Malmström, Member of the Commission. − Madam President, let me try to answer all these questions, which are indeed very detailed. But this is a good moment to take stock of where we are.

The negotiations with the US, Australia and Canada have now reached an advanced stage. The negotiations with Australia have been concluded and the Commission has recommended that the Council sign and conclude the agreement and put it to Parliament. The procedure for signing is pending in the Council due to parliamentary scrutiny in some Member States.

The negotiations with the US are well advanced but still ongoing. The draft text has been made available to the Council and to some members of the Committee on Civil Liberties, Justice and Home Affairs. The negotiations with Canada are also ongoing. There have been delays due to the parliamentary elections in Canada. We hope to be able to present you with a draft text very soon but I cannot undertake to do so before the summer break.

So important decisions will shortly be made on these three agreements. Ms in ’t Veld and certain others mentioned agreements concerning numerous countries, but the aim is to make a single joint multilateral agreement out of these three bilateral agreements. But that is for later, there are no negotiations whatsoever ongoing with any other country.

Let me start with a few remarks on necessity and proportionality and on profiling. The question of necessity and proportionality is something you face in many issues, including EU PNR. It is a very important question.

This issue was analysed in depth in both our communication on PNR from last year and the impact assessment that accompanied the proposal for an EU PNR. The analysis essentially revealed three things: firstly, PNR is used by a growing number of countries globally to prevent and to bring to justice those guilty of serious crimes and terrorism. Serious crimes and terrorism continue to cause very serious harm to victims, as well as to the economy and citizens’ sense of security.

Secondly, PNR can make a unique contribution because it helps identify people who are not known to be involved in criminal activities but whose travel patterns fit with those of drug smugglers or human traffickers. In other words, while simple passport data may not be enough to catch criminals already on the wanted list, PNR data makes it possible to identify a wider range of persons who are likely to pose a security risk.

Thirdly, there is evidence that PNR data has already been successful in preventing and fighting serious crimes and terrorism, both in Member States and in third countries. Data has been particularly important in identifying and dismantling criminal networks involving crimes such as drug-smuggling and human trafficking. My services have already met with you once to present evidence on the necessity of PNR and there will be a follow-up meeting tomorrow.

The Commission is therefore convinced that PNR is an important tool in fighting serious crime and terrorism, when it is complemented by strong data-protection guarantees and when the necessity and proportionality principles are respected.

The issue of profiling was also raised. That has been discussed already and there is no exact definition of it in EU law. Profiling is generally understood to be an automatic data processing technique where a profile is applied to an individual in order to take a decision that affects him or her.

There are, therefore, three different uses of PNR: firstly, reactive use in specific investigations after the flight. Secondly, real-time use prior to the flight, by checking PNR against pre-determined risk assessment criteria and against databases on wanted persons. Thirdly, there is pro-active use – also known as trend analysis – to create or update risk assessment criteria.

Of these three uses of PNR data, only one – real-time use – might potentially be considered to be a form of profiling, in this case the checking of the PNR against pre-determined risk assessment criteria. To ensure that this use will not adversely affect individuals, the new EU-Australia PNR agreement explicitly prohibits automated processing and always requires human involvement before adverse decisions are taken on the basis of PNR data.

This prohibition was not present in the PNR agreement from 2007, so it is an important step forward. The Commission is seeking to have the same provisions included in the US and Canadian agreements. A similar provision is also included in the Commission’s proposal for the directive on the European PNR.

The Commission’s approach to both the European PNR and PNR agreements with third countries is therefore in line with EU data protection legislation, which grants every individual the right not to be subject to a decision which produces legal effects concerning him or her, and which is based exclusively, or to a decisive extent, on automated processing of data on him or her. Against this background, the Commission is not convinced of the need to develop any new legal definition of profiling.

On the EU-Australia agreement, the Commission’s view is that the new agreement respects the Council’s negotiating mandate and the resolution of this House. We consider that it respects the principles of necessity and proportionality. We should bear in mind that the agreement has a well-defined and specific purpose limitation – a limited period of detention of all PNR. PNR will be masked-out a short time after the flight and stored anonymously. Strict conditions apply on transfers of data to third countries and PNR must be transmitted by air carriers exclusively by the ‘push’ method. The question of proportionality should be viewed in the general context of the laws of the third country, in this case Australia, and the security threat faced by that country.

Members have raised important questions on dispute resolution, suspension and termination. The procedures for terminating the agreement would be the same as those for concluding the agreement and therefore Parliament’s role is fully assured.

Suspension of the agreement is regulated by Article 218(9) of the Treaty. There is no formal role for Parliament. However, a parliamentary resolution calling for a suspension would certainly be a very important political consideration for whether the Commission would desire to launch such a procedure.

Finally, the Commission agrees with the European Court of Justice that the main purpose of PNR agreements is police and judicial cooperation, and not data protection. That was confirmed in 2005 by the European Court of Justice in the US PNR case. It was clearly stated that PNR agreements should be drawn up using the legal bases for police and judicial cooperation.

On the US agreement, you asked whether there were any bilateral agreements between the US and Member States on PNR. This issue was discussed in detail in this House in October 2010. The US signed a memorandum of understanding with several Member States as part of the Visa Waiver Programme. The memorandum of understanding was intended to commit the parties – the US and the specific Member States – to enter into negotiations on passenger information, information on the screening of known or suspected terrorists, information to combat terrorism and serious crime and information on migration and border security matters.

The memorandum of understanding was not intended to be in itself the legal basis for the exchange of data between that Member State and the US. It merely expressed the intention of the two parties to have specific agreements to govern the exchange of data. Only such an agreement would then be the legal basis for exchanging data.

In order to implement the memorandum of understanding, the US and the relevant Member States signed only two types of agreement, namely agreements on enhancing cooperation in preventing and combating serious crime and agreements on the exchange of screening information concerning known or suspected terrorists.

Following that debate, and in the context of the negotiations, we again examined the issue, and asked both the Member States and the US whether there were any bilateral agreements between them on PNR. Both sides replied categorically negatively. Both the Member States and the US assure us that the only agreement regulating PNR is the one that the US signed with the EU in 2007. No further agreement exists.

Secure flight data are not to be confused with PNR data. They differ both in nature and in function. They are much more limited in scope since secure flight data include only the name, date of birth and gender of passengers. Such data are used by the US authorities exclusively to prevent individuals already known to pose a security risk – i.e. those on the US no-fly list – from boarding an aircraft. Secure flight data is collected by air carriers on behalf of the US authorities and PNR data is collected by air carriers for their own commercial purposes. To reduce their economic burden, carriers generally choose to provide the required secure data with the PNR data to the US Department of Homeland Security (DHS). On receipt, the secure flight data is retrieved from the PNR and stored separately for seven days and then deleted.

Another very important issue is ad hoc ‘pulls’ by the US authorities. Last year’s joint review acknowledged that there was a problem with regard to both the number of ad hoc requests for PNR data and the fact that the DHS executed such requests by ‘pulling’ the data. It strongly called for improvements to this state of affairs and for the US authorities to step up their efforts to encourage air carriers to use the ‘push’ method of transmission only.

The US has acknowledged that the high frequency of ‘pulls’ is problematic. The issue is being re-discussed in the context of negotiations with the US on the new PNR agreement. The Commission’s aim is to ensure that data are transferred using the ‘push’ method, with recourse to ‘pulls’ only in strictly limited circumstances.

Finally, you asked about the opinion of our Legal Service. I can say that the Commission is seeking improvements to the text on a small number of key issues. We have emphasised to the US that the support of both the Council and the Parliament is needed for the final outcome of the negotiations.

On the issue of the transfer of data between the US and Canada, this was, and continues to be, governed by the memorandum of understanding signed between those two countries. Its purpose is the sharing of ‘look-out’ and advance passenger information data between Canadian border service agencies and the United States Customs and Border Protection to identify high-risk travellers and facilitate the flow of legitimate persons across the border.

We have carefully assessed these agreements on a strictly confidential basis and we are convinced that they do not violate the PNR agreements with either country.

I am sorry this was long but there were very many questions that I had to answer. I hope I have adequately answered the questions asked in this plenary.


  Ágnes Hankiss, on behalf of the PPE Group.(HU) Madam President, Commissioner, our resolutions on issues of internal security will reflect our basic European values faithfully only if they express a continuous balance between safety and freedom. It is worth drawing attention to the fact that security, similarly to data protection, is a fundamental right of citizens. It is true that many look at profiling with hysterical rage as if it were the devil’s instrument, but do we know what profiling and data mining really mean? Do we know what we are really talking about?

It is indispensable for the Commission to create the necessary definitions – with almost scientific thoroughness – because we cannot combat the present forms of terrorism and organised crime successfully with conventional means of criminal investigation. I would like to draw your attention to the fact that profiling is a well-established and very efficient method in the broadest sense of the word in the criminal investigation procedures of Member States, and is applied without major problems.

Furthermore, when talking about PNR agreements to be concluded with third countries, we cannot avoid addressing the PNR issue of the EU itself. It would be very advantageous for the EU, for its Member States and for the aviation industry if our PNR system was centralised. If we really think that mutual data transfer is important, that is, not only to provide, but also receive information from third countries, then we have to establish a unified European institutional framework here, in the EU, which will really be able to collect and process data, providing equal access to information to all Member States. Although we have heard several proposed solutions to this issue, the final solution has not been found yet. We should consider the possibility that the most efficient solution could be to give Europol competences which would allow it to play a leading role in the operation of the PNR mechanism of the EU. I suggest that we consider these possibilities when negotiating the future mandate of Europol.




  Monika Flašíková Beňová, on behalf of the S&D Group.(SK) Mr President, in May and November last year, Parliament spelt out quite clearly in its resolutions what it was expecting from the negotiations on access to passenger name record data. The Commission was to ensure that agreements with Australia, Canada and the United States would respect European Union law on personal data protection.

The United States has been mentioned here. Looking back over the 10-year history of our mutual negotiations, the US has unilaterally imposed conditions on the European Union, but on the rare occasions when a request has been made by the Union, the United States has refused even to think about modifying its data protection system.

The opinion delivered in May by the Commission Legal Services on the agreement between the EU and the US left no room for doubt: in its current form, the agreement violates fundamental rights. The Commission’s response was to send us the text of this agreement untouched, two days after the opinion was published. If the agreement remains in this form, I hope Parliament will exercise its authority and refuse to approve the agreement.

Commissioner, we do want to see the agreement approved, and we will gladly approve it, but not until it respects European data protection standards such as proportionality, purpose limitation, legal redress and the guarantee of independent review.


  Sophia in 't Veld (ALDE). – Mr President, I will be very brief.

Firstly, I am intrigued to hear about the plans for a multilateral agreement for all the other countries. I am wondering why they get different treatment and when this will start, because some countries are already asking for PNR.

Secondly, on the legal opinions of the Commission and Council Legal Services, they were actually not on minor issues. They went right to the core. They challenged the core: the proportionality and the necessity of long-term storage. I would like to hear a little more about that.

Thirdly, regarding the legal basis, the European Court of Justice did not confirm police and justice cooperation as a legal basis; it simply rejected Article 95 – internal markets – as a legal basis.

Finally, Commissioner, on ‘push’ and ‘pull’, the Parliament’s resolution is crystal clear: ‘push’ only. No ‘pull’: not even a little bit of ‘pull’. It is like being pregnant: you cannot be ‘a little bit’ pregnant. There is no such thing as ‘a little bit’ of ‘pull’. ‘Pull’ is giving a log-in to a third country. ‘Push’ only!


  Rui Tavares, on behalf of the Verts/ALE Group.(PT) Mr President, I think that there is no excuse here for the lack of clarity. We are facing a paradigm change in investigation. Citizens know that, previously, they were investigated if they were suspected of a crime or if they had committed a crime. What happens with the processing of passenger name record (PNR) data is that everyone is investigated, including innocent people, and therefore, whether or not this is justified, proportional or necessary, it is essential that citizens are told clearly that they are being investigated, even when they are innocent. This cannot happen without a very clear debate with the citizens, particularly when their data are in the hands of third countries, as is the case. This is why we are discussing the agreement with the United States here today.

Most people would agree to their data being used to stop a terrorist blowing up the plane in which they are flying. That is not the issue. However, what would people say if a large part of their data, including credit card details and addresses, were in the hands of a third country for 15 years, a long time after the aeroplane had reached its destination? This is what is happening now with the agreement that we have with the United States. Let us be clear: over 15 years many administrations come and go, so an administration that says that it will not carry out data mining might do so at a later date. It is therefore necessary for the agreement to be perfectly clear, as I believe that the agreement that we have today contains large gaps and loopholes that can be exploited for different purposes. I would like to know what the Commission is going to do to close these big gaps in the agreement that we have at the moment.


  Marie-Christine Vergiat, on behalf of the GUE/NGL Group.(FR) Mr President, how can the fight against terrorism and crime be reconciled with the protection of personal data? Since 11 September 2011, security-related legislation and the recording of personal data have been amplified, namely on the grounds that current techniques should allow us to progress towards ‘zero insecurity’ while carrying out ever increasing checks on our fellow citizens.

Numerous studies now show, however, the adverse effects of this legislation; Commissioner, even the Commission’s own Legal Service and the European Data Protection Supervisor acknowledge these effects, but nothing is being done about them. Personal data continues to be recorded and increasingly so. You state that results can be seen: I remain perplexed and I would in this respect like to refer to a comment made by a US senator in encouraging the US Government to stand its ground. He said: ‘Since the agreement with the EU was signed, at least two terrorists have been arrested.’ How many thousands of people’s personal data have been recorded for two terrorists? Could their arrests not have been achieved by other means? Of course they could, especially as the two persons in question were arrested after having made very numerous plane trips between their country and the United States. Moreover, one of them was not even arrested in the US. Therefore why is the number of people for whom we record data increasing? Why is the period for which data are held being increased to 15 years? Why do we hand over such great quantities of data, including bank details, without the least guarantee as to how they are used as far as profiling and passing on to third countries are concerned, and without our fellow citizens having the least guarantee as to whether legal action is possible?

I have to say, Commissioner, that I found your answers unconvincing.

(The President interrupted the speaker)

I remain unsatisfied and I maintain that it is not through wide-scale recording of personal data that the problem will be solved, but rather by allocating resources, and in particular human resources, to the departments concerned.


  Martin Ehrenhauser (NI).(DE) Mr President, I have just three very simple and brief questions for the Commissioner. The Commission has already received various legal opinions on the subject of passenger name records (PNR). We asked the Commission to provide us with the three most recent. In response we have received just the cover pages of two, and nothing at all of the third.

My question to you is as follows: is that what you mean by transparent policy, and when are you going to publish the most recent opinions by the Legal Service? This is very important, because above all there is a suspicion that the applicable law is being breached.

My second question concerns proportionality. The retention periods in the drafts vary from five to 15 years. My specific question to you is: what retention period would you consider to be no longer proportionate – 15, 20, 30, 100 years? Perhaps you could provide us with specific figures.

My third question concerns necessity. The Commission has yet to provide adequate figures on the costs. When will the Commission finally commission an independent study that guarantees cost transparency?


  Claude Moraes (S&D). – Mr President, as one minute is not long, could I just check whether the Commissioner answered the question about the scope of the US agreement. I am not sure if we heard your answer to that.

You have said what the status of the various negotiations is. For the Socialist and Democrat Group there are currently too many differences between the PNR negotiations. It is important that, regardless of what third state we are negotiating with, we build on common principles.

Secondly, we cannot have vastly different standards of protection for European citizens depending on which third state they are flying to. By doing this we risk creating an incentive for Member States to begin to develop bilateral agreements which will then undermine our work at EU level. We should ensure full respect for the Charter. The scope – as everyone has said – should not be unnecessarily wide. Data retention periods should respect the tests of proportionality and necessity and we should have proper redress.

All of these principles are still up for grabs in some of the negotiations. If the EU institutions’ own legal services are providing opinions against the current status of negotiations, then we should listen and ensure the agreements we put in place respect the fundamental rights of EU citizens.


  Andreas Mölzer (NI).(DE) Mr President, the high-flown statements from the EU that it would ensure adequate data protection have now been exposed even by the Commission’s own Legal Service as mere window-dressing, as has been our criticism all along. Fundamental rights, human rights and data protection are clearly foreign concepts to the Americans in the so-called fight against terror. Millions of data records are being stored there, airlines are being forced to pass on data and passengers are being refused entry to the US without even being told on what suspicions the decision is based. Part of the Commission’s negotiating mandate was to bring to an end the illegal blackmail that is forcing the airlines to hand over data. While the retention periods in the Australian agreement have been set at five and a half years, without sensitive data being released, the US Department of Homeland Security is to continue to be given 15 years more or less unrestricted access to all personal data. It is all too Orwellian.

It is one thing to retain data on suspects, but hoarding data on innocent citizens is quite unacceptable.


  Carmen Romero López (S&D).(ES) Mr President, Commissioner, as we have seen throughout this afternoon’s debate, we are still far from reaching a conclusion on this issue, because in my opinion – and Parliament has taken the same view – there is not much transparency in the talks held by the Commission with the various countries, and there are many outstanding and confusing issues that we do not fully understand. It is a very important agreement, because the common standards to be used in the agreement with the United States will later serve as a benchmark for other agreements, and above all for the European Passenger Name Records (PNR), for which I am going to be a shadow rapporteur.

I believe it is important to have the maximum possible level of transparency, and for us to know exactly, for example, when the ‘pull’ system mentioned here will be used. What will the profiles consist of, exactly? It is not acceptable for a person to be prevented from travelling and to be monitored because he or she has the same surname as a citizen of the same country who is being sought for drug trafficking.

There have been many mistakes. The more guarantees and the more safeguards we create on such an important issue, the better things will be, because Parliament, following the Treaty of Lisbon, will be responsible for voting on it. This is why we must reach a conclusion on this issue, and we have not done so yet.


  Tanja Fajon (S&D).(SL) Mr President, Commissioner, you have replied to some of the concerns but, unfortunately, it seems to me that, once again, we have before us an offer which the citizens of Europe simply cannot and should not accept. This proposal does not improve the standards of protection of personal data, as even our Legal Service has recognised.

I get the impression that someone is persistently turning a blind eye. Will practically any reason, even the slightest crime, really justify our personal data being stored in this way? We need to know for exactly what purposes the US authorities will be using the data. We cannot allow them to use the data of many millions of passengers, including their credit card numbers, at US borders for security purposes unrelated to the prevention of terrorism and serious crime. This is a major retrograde step for the protection of personal data.

I do not know how we are going to explain to people that the US authorities may store our records for up to 15 years. The draft agreement is highly inconsistent with fundamental human rights. We have every reason to reject it. It is high time therefore that the Union showed some resolve and that the European Commission returned to the negotiating table, improved the proposal and ensured that any encroachment on our privacy has a genuine legal basis.


  Petru Constantin Luhan (PPE).(RO) Mr President, in a letter sent on 16 May 2011 to the Directorate General for Home Affairs, the European Commission’s Legal Service warns that the draft EU-US agreement on the exchange of passenger name record (PNR) data is contrary to fundamental human rights.

The Commission’s legal experts mentioned grounds for concern about the draft EU-US agreement, such as the proportionality of its enforcement in the event of minor crimes which do not come under the scope of the prevention of terrorism or serious crime. The draft document proposes keeping the collected data for up to 15 years and does not provide for any course of legal action.

The Commission’s Legal Service points out that its previous comments were not taken into consideration when drafting the current version.

I would like to ask the Commission whether negotiations are ongoing with the United States at the moment and separately with Australia, and how the Commission views this legal report because, if the Commission ignores it, it is disregarding the legal advice of its own Legal Service.


  Ioan Enciu (S&D).(RO) Mr President, I have understood how important passenger name record (PNR) agreements are to the European Union. However, at the same time, it is important that a proper balance is also struck between protecting European citizens’ privacy and the need to combat terrorism.

Commissioner, we must have firm guarantees from these states to the effect that the level of protection afforded European citizens’ personal data will be just as high as it is in the European Union. In addition, rules must apply which correspond to those in the European Union concerning how long data can be kept and the provision of access to administrative and legal appeals. It was not appropriate for me to raise the issue now, this evening, about the lack of visa waiver reciprocity for five Member States – Bulgaria, the Czech Republic, Cyprus, Poland and Romania – with regard to the United States and Canada. However, as you have mentioned this subject, I would like to ask you when this rather uncomfortable problem for the European Union will also be resolved.


  Jaroslav Paška (EFD).(SK) Mr President, a civilised society plainly needs to defend itself effectively against the criminal actions of various terrorist groups. In connection with the draft agreement on the use and transfer of passenger name record data, however, we would like to express concern as to the adequacy and proportionality of the agreement, particularly in relation to the European Union’s responsibility for protecting the personal data of its citizens.

The Legal Service’s latest expert opinions indicate that the text of the draft agreement provides inadequate protection for the personal data of our citizens, and even falls short of personal data handling requirements under European law. I would therefore like to ask you, Commissioner, to consider the scope and proportionality of the European Union’s proposed commitments, so that we are not obliged to reject the draft text of this important interstate agreement in the final stages of the approval process in Parliament.


  Angelika Werthmann (NI).(DE) Mr President, there has been much debate already on the subject of passenger name records (PNR). Data protection is regulated in the EU by Article 16 of the Treaty on the Functioning of the European Union and Article 8 of the European Charter of Fundamental Rights. The joint bilateral efforts to counter terrorism are not what is in dispute here. Nonetheless, I wish to make it clear that protecting the privacy of our citizens is of the utmost importance and is highly valued by them.

I note that in the new US-EU agreement the retention period is even longer than it was in the old agreement. This is one of the aspects that cannot be allowed to remain. In the words of Ambassador Eacho, ‘freedom without security is fragile; security without freedom is repressive’. In other words, it is a matter of finding the right balance.


  Carlos Coelho (PPE).(PT) Mr President, many thanks to Commissioner Malmström for her answers. I especially liked it when she stated that this system is useful when (and this was the word she used, ‘when’) data are strongly protected. Now, the question that is raised is this: are we or are we not faced with a system, particularly with regard to the United States, in which European legislation on data protection is being respected? The Commissioner has legal opinion at her disposal. It seems to us that there is an attempt to force us to adapt to their data protection standard. As this concerns our data, however, it is they who have to adapt to our legal framework, and we have to be assured of this. However, it is not obvious whether this is actually happening in terms of proportionality and the use and retention of data.

Finally, the Commissioner gave the idea that ‘pull’ was possible in certain circumstances. I would remind you of what Mrs in ’t Veld said: that is, according to the European Parliament, no ‘pull’ is possible; only the ‘push’ system should be allowed.


  Csanád Szegedi (NI).(HU) Mr President, ladies and gentlemen, here in the issue of passenger name record (PNR) data transfer we are not talking about cooperation in the field of data protection, but about data protection error. It is simply an offence that the United States reckons that Europe is not able to filter criminals. It is extremely dangerous to give out data of European Union citizens especially in these circumstances, when the United States can store even the most private and most confidential information for 15 years. Let me ask you, who will decide who is a terrorist or a suspected terrorist in Europe? My other question to you is what will we receive in return, if this agreement – God forbid – were to be concluded? The other important point is that the EU must at last realise that it has grown up, and must change its attitude to the effect that it should enter only into agreements concluded on the basis of parity, be it with the United States, Canada or Australia.


  Cecilia Malmström, Member of the Commission. − Mr President, I will comment on a few specific questions.

The multilateral agreement that was announced in the communication on external PNR – where we also outlined a few guiding principles – will be based on the Australian system. On the legal basis, the Parliament’s Legal Service said in 2007 that the correct legal basis was police cooperation. With regard to the costs of the EU PNR, an impact assessment and an independent study have been conducted on costs. They are on our website and Members are welcome to look at them.

Let us be very clear about what we discussed today. Today we have three agreements with Australia, Canada and the US. We have decided jointly to renegotiate them. What we have achieved so far is a huge improvement, but there are no texts before you today to vote upon because negotiations are still ongoing.

I am here today to answer a few questions and I hope I can provide some clarifications. I am willing to hold further discussions, but we already have agreements and we are trying to make improvements to them. So far we have improved them immensely in terms of definition, clarity, data protection and legal clarity.

There will be developments and processes will be defined, but let me remind you that a country has the sovereign right to decide who can land on its territory and to impose certain conditions. We cannot change that.

I cannot discuss ongoing negotiations; I cannot go into details. I cannot comment on leaked documents. I have tried to provide as much information as possible to the coordinators, the rapporteur and the Committee on Civil Liberties, Justice and Home Affairs. I am willing to continue to do so and to discuss all texts we draw up as the process continues.

I am quite positive that we will reach an agreement that considers both the necessity to protect our citizens against terrorism and organised crime and that also includes robust provisions on data protection. But today we were here to answer questions on certain issues. I have done my best to do that. I am sorry if you do not like the answers but there is nothing to vote on today. Hopefully there will be before too long and then we will most likely have the chance to discuss it.

In the meantime the Commission is available to provide information. Mr Priebe will come to the committee tomorrow to give further information on the necessity and proportionality of PNR and provide some statistics. We are willing to come and see Members at any time to inform them and discuss specific details.


  President. − The debate is closed.

Last updated: 29 November 2011Legal notice