Airline passenger data rules face long-haul trip

Proposals to set up an EU-wide system for the collecting and sharing of personal data about airline passengers face a critical examination from MEPs before they can become law. Proponents in the Council of Ministers and the European Commission are preparing for a long haul.

A proposal for a passenger name record (PNR) scheme was put forward by Franco Frattini, the European commissioner for justice, freedom and security, in November 2007. He argued that it would provide the EU with a valuable new weapon in the fight against terrorism and organised crime. The idea went on to receive general support from justice and interior ministers at an informal meeting on 24-26 January.

But the EU’s PNR plan is up against significant obstacles. Perhaps chief among them is the imminence of the entry into force of the Lisbon treaty. Under the existing treaty arrangements, the proposal could be approved by the Council with only limited involvement from the Parliament, which has to be consulted but whose opinion is not binding. The Lisbon treaty, however, would grant MEPs co-decision powers, thus allowing them to make binding changes to the plans, or even to throw them out.

Another point of contention is the legal basis of the proposal. The Council’s legal service stressed, in an official opinion produced in December, that measures forcing airlines to collect and transfer PNR data have to be considered as transport policy and adopted accordingly. It was the legal service’s view that the legal base of the proposal should be changed to reflect this, which would give the Parliament co-decision powers even before the Lisbon treaty comes in.

The increased involvement of the Parliament is an issue because MEPs are noticeably more sceptical of the merits of PNR than national governments. Sophia in ’t Veld, a Dutch Liberal MEP, has been placed in charge of the dossier and has already made clear her belief that the scheme will lead to data profiling, something she sees as unacceptable. Her criticisms have been backed up by others, including Stavros Lambrinidis, a Greek Socialist member of the civil liberties committee, who has stated that the plans are "unnecessary, unjustified and plain dangerous".

The view in the Council is different. A diplomatic source explained that "there is enthusiasm and no member state has said that they oppose the idea, although there is a need to resolve many outstanding issues". Some countries want to reduce the length of time that data can be held. Some want to attach limits to the use of data. The Commission proposal restricts its use to the fight against terrorism and organised crime, but the UK has an existing national PNR scheme which is more flexible. A letter from the UK’s Home Office to Frattini, dated 20 November 2007, noted that people had been identified and arrested simply for carrying falsified documents, without there being any suggestion of terrorism or organised crime.

Slovenia, the current holder of the EU presidency, had proposed that ministers could try to address the uncertainties about Parliament’s involvement by sprinting to the finish. A briefing note circulated to ministers, prior to the informal meeting on 24-26 January, suggested that the Council could decide that "this matter should be handled on the current legal basis because of its importance" and that "in this case, in order to succeed, a clear commitment of all member states should be expressed to progress quickly with the adoption and to raise parliamentary reserves in time". The feeling now, however, is that there is not enough time left for this tactic to be successful. Dragutin Mate, Slovenia’s interior minister, has since stated that the closest possible date for adoption is the first half of 2009. The Lisbon treaty is currently scheduled to enter into force on 1 January.

So how do the Council and Frattini get out of this squeeze? According to a diplomat, "the plan is to prepare a strong united front among the member states". The Slovenians have scheduled seven working party meetings between now and June whose entire agenda will be devoted to PNR. These meetings will ignore the legal base question and focus on ironing out disagreements about the content of the proposals. The intention is that negotiations will not be held with Parliament until there is a clear common position among national governments. MEPs will eventually get their hands on the dossier with co-decision powers, but the Council wants to be as well prepared as possible for the battles which lie ahead.

Proposals to set up an EU-wide system for the collecting and sharing of personal data about airline passengers face a critical examination from MEPs before they can become law. Proponents in the Council of Ministers and the European Commission are preparing for a long haul.