Memorandum by Mr Peter Hustinx, European
Data Protection Supervisor
The EDPS would like to focus on the following
elements, taken from the list of issues in the request for evidence:
1. On the position to be adopted by the Commission
in the coming negotiations with the United States on a new agreement.
22 MARCH 2007
— It has to be kept in mind that according
to Article 24 of the EU-Treaty, the Presidency of the Council
is the primary negotiator, assisted by the Commission.
— The objective of the negotiations
should be: a long-term agreement that applies throughout the European
Union and that ensures the privacy of the citizens as well as
their physical security.
— A clear and adequate legal framework
is needed, in order to provide EU citizens with a satisfactory
level of legal certainty. This includes remedies before a court.
Such a legal framework also benefits to the legal certainty of
the airlines. It clarifies their obligations.
— An agreement with the United States
can only be concluded after an a priori assessment of the necessity,
effectiveness and proportionality of the transfer of the data.
2. Whether the existing agreement with Canada
can (with a change of legal base) be used as a model.
— On earlier occasions, the EDPS as
well as the Article 29 Working Party approved to the agreement
with Canada. Indeed, this agreement could serve as a model.
— An attractive element of the agreement
with Canada is that it covers different types of passenger data:
not only PNR but also API-data (Advanced Passenger Information
system: the data from the machine readable zone of passports).
3. Whether the EU has any realistic prospect
of securing agreement on any provisions which the United States
authorities are reluctant to agree.
— According to the EDPS, this is not
a right question to pose. It wrongly suggests that the EU is the
weaker party in the negotiations with the US. It has to be kept
in mind that the background of the agreement is a request of the
government of the United States to receive information, originating
from the territory of the European Union.
4. On the weight to be given in the negotiations
to the views of the European data protection authorities.
— The EDPS has presented his views
on the negotiations mandate (not in a public way, not to harm
the negotiations).
— The Article 29 Data Protection Working
Party, in which the EDPS actively participates, is working on
a strategic approach in order to give an effective input to the
negotiators. An essential part of this approach is to start the
dialogue with other EU-stakeholders. It aims to find a liaison
with other important interests and find common ground within Europe
with politicians, policy makers, law enforcement and the private
sector (mainly airlines).
— It goes without saying that the EDPS
expects that the views of the data protection authorities, as
they are being developed in this way, are given weight.
5. Whether the provisions of the agreement are
to be binding on the parties, or whether the United States authorities
are to be able to give a unilateral explanation of how they intend
to interpret them.
— It is crucial that the provisions
of the agreement are binding on the parties (in particular the
US). Otherwise, the protection of the privacy of the EU-citizen
can not be effectively guaranteed.
— In itself, there is no objection
to the United States authorities giving a unilateral explanation
of how they intend to interpret the provisions, as long as this
does not affect their binding nature.
— On several occasions, the EDPS has
expressed doubts whether the Undertakings of the Department of
Homeland Security Bureau of Customs and Border Protection—attached
to the 2004 Agreement with the United States—are legally
binding and could be effectively invoked by citizens before a
court. However, there are no doubts about the importance of an
instrument like the undertakings as such, precisely describing
the obligations of the parties.
— The binding nature of the agreement
on the parties must be laid down in clear and precise wordings,
but this is as such not enough. The agreement should also foresee
in a mechanism to effectively monitor if the obligations are complied
with. The instrument of a Joint Review, part of the 2004 Agreement,
has proved to be helpful in this respect.
28 February 2007
|
