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Transfer of personal data by Airlines to US
March 12, 2003 12:00 AM
By Sarah Ludford MEP in European Parliament
By Sarah Ludford MEP in European Parliament
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 States, 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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