Procedure : 2016/3004(RSP)
Document stages in plenary
Document selected : B8-1305/2016

Texts tabled :

B8-1305/2016

Debates :

Votes :

PV 01/12/2016 - 6.9
Explanations of votes

Texts adopted :


MOTION FOR A RESOLUTION
PDF 264kWORD 70k
24.11.2016
PE593.742v01-00
 
B8-1305/2016

pursuant to Rule 108(2) of the Rules of Procedure


on seeking an opinion from the Court of Justice on the compatibility with the Treaties of the Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offenses  (2016/3004(RSP))


Sophia in ‘t Veld, Cecilia Wikström, Angelika Mlinar on behalf of the ALDE Group

European Parliament resolution on seeking an opinion from the Court of Justice on the compatibility with the Treaties of the Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offenses  (2016/3004(RSP))  
B8‑1305/2016

The European Parliament,

–  having regard to Article 218 of the Treaty on the Functioning of the European Union (TFEU), in particular paragraphs 6 and 11 thereof,

–  having regard to the proposal for a Council decision on the conclusion, on behalf of the European Union, of an Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offenses,

–  having regard to the Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offenses approved on behalf of the European Union,

–  having regard to its Committee on Civil Liberties, Justice and Home Affairs working documents of 19 September 2010 on a Future European Union (EU) - United States of America (US) international agreement on the protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police and judicial cooperation in criminal matters (DT\830119EN and DT\830120EN),

–  having regard to the Commission communication on Rebuilding Trust in EU-U.S. Data Flows (COM(2013)0846) of 27 November 2013,

–  having regard to its resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs(1),

–  having regard to its Committee on Civil Liberties, Justice and Home Affairs working document of 14 July 2014 on a Future European Union (EU) - United States of America (US) international agreement on the protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police and judicial cooperation in criminal matters (DT\1031547EN),

–  having regard to resolution of 29 October 2015 on the follow-up to the European Parliament resolution of 12 March 2014 on the electronic mass surveillance of EU citizens(2),

–  having regard to the preliminary opinion of the European Data Protection Supervisor of 12 February 2016 on the Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offenses,

–  having regard to its resolution of 26 May 2016 on transatlantic data flows(3),

–  having regard to the statement of the Article 29 Data Protection Working Party, adopted on 26 October 2016, on the EU – US Umbrella Agreement,

–  having regard to Article 16 TFEU and to Articles 7, 8, 21, 47 and 52(1) of the Charter of Fundamental Rights of the European Union,

–  having regard to the Court of Justice judgment of 9 March 2010 in Case C-518/07, European Commission v Federal Republic of Germany,

–  having regard to the Court of Justice judgment of 6 October 2015 in Case C-362/14, in which the Commission Decision 2000/520 was declared invalid,

–  having regard to the opinion of its legal service of 14 January 2016 on the EU – US Umbrella Agreement (SJ-0784/15),

–  having regard to the opinion of the Advocate General of the Court of Justice of 8 September 2016 on the draft agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data,

–  having regard to Rule 108(2) of its Rules of Procedure,

A.  whereas a High Level Contact Group (HLCG), composed of senior officials from the Commission, the Council Presidency and the US Departments of Justice, Homeland Security and State, was established in November 2006 to explore ways that would enable the EU and the US to work more closely and efficiently together in the exchange of law enforcement information while ensuring that the protection of personal data and privacy are guaranteed;

B.  whereas the conclusion reached in the HLCG final report of October 2009 was that an international agreement binding both the EU and the US to apply agreed common data protection principles for transatlantic data transfers in the law enforcement area was the best option;

C.  whereas on 3 December 2010 the Council adopted a decision authorising the Commission to open negotiations on an agreement between the European Union and the United States of America on the protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters;

D.  whereas on 29 April 2016 the Commission asked the Council to take a decision on the adoption of the agreement;

E.  whereas on 19 July 2016 the Council decided to ask Parliament for its consent to the conclusion of the agreement;

F.  whereas the agreement was initialled on 9 September 2015 and signed on 2 June 2016;

G.  whereas on 6 October 2015 the Court of Justice, in its judgment in Case C-362/14, declared the Commission Decision 2000/520 invalid;

H.  whereas the agreement, as an international agreement, may well have primacy over secondary Union legislation adopted by the EU legislature, and this primacy of the EU-US Umbrella agreement would then apply in the future to the data protection package;

I.  whereas the purpose of the agreement, as stated in Article 1 thereof, is to ensure a high level of protection of personal information and enhance cooperation between the United States and the European Union and its Member States in relation to the prevention, investigation, detection or prosecution of criminal offences, including terrorism;

J.  whereas on 12 February 2016 the European Data Protection Supervisor issued its preliminary opinion on the agreement, recommending essential improvements in order for the text to comply with the Charter and Article 16 TFEU, and in particular clarification that all the safeguards apply to all individuals in the EU, not only to EU nationals, ensuring judicial redress provisions are effective within the meaning of the Charter, and clarification that transfers of sensitive data in bulk are not authorised;

K.  whereas the US Judicial Redress Act of 2015 was signed into law by President Obama on 24 February 2016 (H.R.1428), authorising the US Department of Justice (DOJ) to designate foreign countries or regional economic integration organisations whose natural citizens may bring civil actions under the Privacy Act of 1974 against certain US government agencies for the purposes of accessing, amending or redressing unlawful disclosures of records transferred from a foreign country to the United States to prevent, investigate, detect or prosecute criminal offences;

L.  whereas the US Department of Justice may designate countries or organisations whose citizens may pursue such civil remedies if the person’s country or organisation has appropriate privacy protections for sharing information with the United States, as provided for in an agreement with the United States or as determined by the DOJ, permits the transfer of personal data for commercial purposes between its territory and the United States, and has DOJ-certified data transfer policies that do not impede US national security interests;

M.  whereas, to date, the European Union or its Member States have not been designated by the US Department of Justice as a ‘covered country’ for its citizens to be able to bring civil actions against certain US government agencies under the Privacy Act of 1974;

N.  whereas the judicial remedies afforded by the US Judicial Redress Act would not be granted to non-EU nationals in the Union whose personal data are processed and transferred to the US pursuant to the Agreement;

O.  whereas the current US legislation includes various limitations and preconditions as to the scope of application, the causes of action provided, the designation of agencies covered, and the application of the Privacy Act of 1974 in law enforcement matters;

P.  whereas, personal data processed on the basis of the EU-US Agreement on Passenger Name Records (PNR) and the EU-US Agreement on the processing and transfer of Financial Messaging Data from the EU to the US for the purposes of the Terrorist Finance Tracking Program (TFTP) are currently exempted from the provisions on civil remedies under the Privacy Act of 1974;

Q.  whereas, in its statement of 26 October 2016, the Article 29 Data Protection Working Party highlighted that some clarifications may be needed in order to ensure that the level of protection of personal data afforded by the Umbrella Agreement is fully consistent with EU law, and that, in particular, attention should be paid to the following points: the definitions of the concepts of ‘personal data’ and ‘data processing’ differ from the EU definitions; the data retention period should be defined more strictly in relation to the purpose pursued; the restrictions to an individual’s access rights are very broad and access could be improved by the establishment of an indirect access right mechanism;

1.  Takes the view that there is legal uncertainty as to whether the agreement is compatible with the provisions of the Treaties (Article 16) and the Charter of Fundamental Rights of the European Union (Articles 7, 8, 21, 47 and 52(1)) as regards the right of individuals to protection of personal data, the principle of non-discrimination and the right to an effective remedy and to a fair trial;

2.  Decides to seek an opinion from the Court of Justice on the compatibility of the agreement with the Treaties;

3.  Instructs its President to forward this resolution to the Council and the Commission for information and to take the necessary measures to obtain such an opinion from the Court of Justice.

(1)

Texts adopted, P7_TA(2014)0230.

(2)

Texts adopted, P8_TA(2015)0388.

(3)

Texts adopted, P8_TA(2016)0233.

Legal notice - Privacy policy