Parliament to seek legal opinion on EU-US passenger data deal

The European Parliament is expected to seek a legal opinion on a new agreement to transfer airline passenger information to the US authorities. But MEPs are not expected to challenge the deal at the European Court of Justice (ECJ).

A resolution to be debated in Parliament’s plenary today (12 July) sets out the intention "to seek legal appraisal of the agreement for conformity with national and EU legislation". MEPs will call on Peter Hustinx, the EU’s top data protection official, and the group of data protection supervisors from member states, known as the Article 29 Working Party, to scrutinise the deal and present opinions.

But Sophia in ’t Veld, a Dutch Liberal MEP and the Parliament’s author of a report on passenger name records (PNR) said that there was probably no legal basis to challenge the deal at the ECJ. "It’s a very bad agreement and I would be surprised if a lawyer could not shoot holes in it…I’m not a lawyer but I don’t think it’s possible for the European Parliament to challenge it since it’s not based on EU law," she said.

Following the 11 September 2001 attacks on the US, Washington demanded PNR data from all European airlines landing in the US. An agreement was reached between the EU and the US but the Parliament was unhappy with the deal on the grounds that it violated EU data protection laws and challenged it at the ECJ. The court last July struck the deal down - but on the grounds that the wrong legal basis was used. The European Commission and the presidency negotiated a new interim deal with the US last October moving the deal out of community law, or first pillar, and into inter-governmental law, or third pillar. As a result the ECJ has no jurisdiction over the new deal.

Political agreement was reached on a new deal two weeks ago (27 June) and is awaiting approval by national parliaments.

In ’t Veld said that the deal was open to challenge in member states. "Member states can say ‘no’ [to the deal] but I don’t think it would be helpful at this stage. What we need is a long-term solution," she said.

Sarah Ludford, a UK Liberal MEP, said: "A new deal on European and international security is needed, with law enforcement agencies required to demonstrate efficient cooperation in sharing available data on suspects before resorting to vast invasions of privacy."

The new deal is being criticised by MEPs and Hustinx for the extra length of time the US will be able to store the information - from three and a half years to 15 years, where for seven years the data will be considered "active" and for eight years the data will be considered "dormant". MEPs fear that the storing of ‘active’ data will mean "significant risk of massive profiling and data mining", according to the resolution. There are also criticisms that the deal allows the US to share the data with third countries, though it is stipulated that certain conditions must be respected. "What the EU has done is sign a PNR agreement with every country in the world," said Stavros Lambrinidis, a Greek Socialist MEP.

But Franco Frattini, the European commissioner for justice, freedom and security, told Parliament this week (9 July) that the previous PNR agreement also allowed for the storing of "dormant" data and that therefore the real increase in length of time for storage was seven years. He added that the US had extended privacy rights under US laws to European citizens, which would strengthen the protection of the data. Frattini claimed that the EU was able to win a reduction in the number of data required by the US - from 34 to 19 pieces of information. But MEPs said that this involved a merging of data fields and not a reduction in the amount of data.

The European Parliament is expected to seek a legal opinion on a new agreement to transfer airline passenger information to the US authorities. But MEPs are not expected to challenge the deal at the European Court of Justice (ECJ).