PASSENGER NAME RECORDSTERMINATION
OF EC-US AGREEMENT (10613/06)
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland, Parliamentary Under-Secretary of State, Department
for Constitutional Affairs
Sub-Committee F (Home Affairs) of the European
Union Select Committee considered this Communication at a meeting
on 19 July 2006.
We understand that, in the light of the Court's
judgment, the Council had no alternative but to accept the proposal
from the Commission to denounce the agreement, and to do so without
delay. Your Explanatory Memorandum states that "it is necessary
for the European Council [sic] to terminate the Agreement",
though by the date of the Memorandum (6 July) this had presumably
already been done. We understand the need for this, and accordingly
we formally clear the document from scrutiny.
We are nevertheless very interested to know
how this matter will be taken forward, and would be grateful if
you would enlighten us on the following points.
We would like to know how, if at all, the undertakings
given by the US Bureau of Customs and Border Protection (CBP)
in the agreement to be signed before the end of September are
likely to differ from those in the existing agreement.
At a seminar in Brussels on 22 June Mr Lambriadis
(Vice-president of the LIBE Committee of the Parliament), Mr Peter
Hustinx (EDPS) and Mr Jonathan Faull (Commission) all argued that
the new agreement would only be a stop-gap, that an entirely new
agreement had to be negotiated by October 2007, and that this
would be their opportunity for inserting adequate data protection
provisions. They also favoured activating the Article 42 passerelle
to transfer this from the third pillar back to the first pillar,
since only in this way could the Parliament have any influence
on the agreement. We would be interested to know whether, and
if so why, it is the case that an entirely new agreement will
be needed before October 2007. What attempts will the Government
be making to ensure that the data protection undertakings offered
by the CBP are more realistic than those in the existing agreement?
Does the Government believe that there is a case for activating
the passerelle for this purpose?
There is a parallel agreement between the EC
and Canada. Although its provisions are less unsatisfactory than
the agreement with the US, its legal base is the same. It was
not the subject of the proceedings, and so has not been annulled,
but plainly will need to be replaced by an agreement with the
correct legal base. We would be glad to know what is being done
19 July 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
Thank you for your comments of 19 July concerning
the Explanatory Memorandum of 6 July about the termination of
the Agreement with the United States (US) to transfer passenger
name records (PNR) data. I am pleased to provide greater detail
on the three areas you have drawn attention to.
You have asked for further explanation regarding
the legal necessity for an EU instrument to make lawful the transfer
of PNR data by UK-based carriers. An EU instrument is not required
to make the transfer of PNR data lawful under UK law; indeed,
it would not automatically have that effect, although it could
be a relevant consideration when assessing compliance with the
Data Protection Act. The Explanatory Memorandum which has given
rise to your questions did not claim that the proposed EU-US Agreement
was a legal necessity to make the transfer of data lawful, but
I am sorry if this was not made sufficiently clear.
An Air Navigation Order (or amendments to the
existing Air Navigation Order) still appears to be the most appropriate
way to provide a clearly identified legal base for the transfer
of the data under UK law. Making such an Order would not, in itself,
secure specific data protection measures for transferred PNR data.
However, in considering whether to make an Order requiring carriers
to transfer PNR data to the US authorities, we regard US commitments
on the protection of that data as a very relevant consideration.
It would therefore be highly desirable to secure adequate data
protection arrangements by placing binding obligations on the
US via an Agreement. The question therefore is whether these binding
obligations would best be served by an EU-level instrument or
a series of bilateral Agreements.
The question above leads me to your second point
of how an EU-US instrument would comply with the principle of
subsidiarity if the necessary authorisations could be dealt with
under UK law. As I have explained above, the purpose of EU-US
Agreement would not be to provide authority for PNR transfers
under UK law. However, given the advantages of having an instrument
to place binding obligations on the US, an EU level Agreement
would appear to be a more sensible option than a number of bilateral
arrangements between the US and those Member States operating
transatlantic flights. The EU has the advantage of collective
bargaining and is likely to secure the best outcome for EU passengers
when negotiating the terms of an Agreement with the US. The EU
also has the benefit of experience and expertise in this area
following the 2003-04 negotiations resulting in the current Agreement.
Furthermore, an EU level Agreement has the advantage of providing
standard levels of protection for passengers across the EU. It
would appear to be unhelpful and confusing to passengers wishing
to fly to the US if their personal data was treated in one way
should they fly direct from, say, Heathrow, and in another should
they fly via a non-UK airport such as Paris, Frankfurt or Amsterdam,
as is commonly the case. Additionally, from an efficiency point
of view, it would also seem to be a better use of resources to
negotiate one single treaty than have a number of Member States
working through a very similar but separate process.
You have asked for an account of the views of
transatlantic carriers on this matter. My Department was present
at a meeting with the carriers, along with the Department for
Transport and the Home Office, shortly before the ruling by the
European Court of Justice was handed down, and the Department
for Transport has kept my Department and the Home Office advised
of the carriers' views, following further and ongoing consultation.
The Department for Transport continues to keep transatlantic carriers
(both UK and foreign carriers flying to the US from UK airports)
informed about its legislative proposals. The carriers are supportive
of the proposals and recognise the need to have a clearly identified
legal base, conditions, procedures and protection for the transfer
of their passengers' data.
I hope this reply is helpful and provides the
further details you require. As ever, I am very happy to discuss
any aspect of this matter further.
Undated July 2006