Examination of Witnesses (Quesitons 116-119)
Ms Cecilia Verkleij and Ms Despina Vassiliadou
2 APRIL 2008
Q116 Chairman: Cecilia Verkleij, thank you very much indeed for coming. I think you have appeared previously before this Committee.
Ms Verkleij: Yes.
Q117 Chairman: I think you came with Jonathan Faull. I was not able to be at that meeting, which was some time ago, but you have brought with you today Despina Vassiliadou. Thank you very much also for coming. We are on the record. As you may know, this Committee is doing an extremely brief inquiry into the latest developments on a European version of PNR and we had a very forthright evidence session before lunch with Sophie in't Veld, whom you no doubt know well, and you probably will be aware of many of the things she has said about the whole business of records and the attitude of the Commission. She has told us what she thinks might be the attitude of the Parliament but we will discuss those things in greater depth over the next hour. If you look at Article 1 and Article 11 of the Framework Decision, they speak of limiting the processing of data to combating terrorist offences and organised crime. What would be the attitude of the Commission to the use of PNR to combat illegal activities beyond those two fears? I do realise that there may be differences as to how you interpret those two definitions, but if you could begin by talking about that we would be grateful.
Ms Verkleij: Thank you for inviting us to come and join you today to explain the Commission's point of view on this proposal, albeit we are at the early stages of the discussion in Council, but already a few things can be said on how the discussions are developing so we think it is a very timely moment to discuss these issues with you. On your question, it is true: Article 1 provides us with a purpose limitation, and a purpose limitation is an issue which is of huge importance, both for law enforcement and for data protection. It provides law enforcement with a clear idea for which purposes to use the data but also for which purposes not to use the data, and from a privacy point of view it is very important because it responds to the criteria of necessity and proportionality. Both security and privacy benefit from a purpose limitation. It is the Commission's view that a purpose limitation should be a purpose limitation, meaning that you should look at very specific purposes for which you use the data, and that is why we have proposed in our proposal to look at terrorism and organised crime. Why? Because we have different Community or European Union instruments where you may find definitions of these offences and crimes, so we try to link into already existing policy. When we contemplated the scope of Article 1 we also had to bear in mind differences of view between Member States. We are for the time being still in the Third Pillar, as we call it, and therefore we had to bear in mind that we needed unanimity at some point in time, so we tried to balance in our project the different strands of the Member States.
Chairman: In reply to the question you used the word "should" rather than "must". I think that takes us straight into questions that Lady Garden may like to ask, particularly so far as the UK is concerned.
Q118 Baroness Garden of Frognal: The UK Government has also suggested that PNR might be used for immigration and revenue and customs purposes. Would the Commission have any objection to that, and since these are First Pillar matters how could the legal difficulties be resolved?
Ms Verkleij: As I explained earlier, for the time being under the current treaties we are obliged to stay within the limits which those treaties impose upon us, which means you cannot regulate in a Third Pillar instrument matters that are under the First Pillar. That would amount to contravening Article 47 of the treaty, so that would be illegal. We had to limit the proposal to police and judicial co-operation and in this instance it is police co-operation. That is why we could not even contemplate looking at purposes that might serve for First Pillar purposes. However, if we look to the future and to Lisbon, Lisbon will do away with those two Pillars and we think that the proposal will not be finalised before Lisbon enters into force (the presumption being that Lisbon will enter into force by the end of this year), and that means that we will then have to review the situation. Taking that as our starting point, we have had some reflection internally but also during the discussions with Member States, and Despina can take you through those discussions. It is one thing to ask do we want to use the PNR for immigration, revenue and customs purposes as such. We would have great difficulty in using the data for those purposes without any limitation. We are not convinced that PNR data are really made for servicing those purposes but we also have to bear in mind the issue of proportionality, and again we have to bear in mind the different positions of Member States. Perhaps Despina would like to fill in on that part.
Ms Vassiliadou: The discussions in the Council for the time being show that a large majority of Member States are in favour of extending the purpose limitation of this proposal to cover serious crime as well. To the extent that immigration, revenue and customs offences are not immigration, revenue and customs policy in general, the offences could be covered by such a definition of serious crime, and to that extent the discussions are still ongoing in Council and we cannot predict how things will develop for the time being but we can see that other Member States share to some extent the views of the United Kingdom Government as expressed in the discussions, but they would like to see a wider purpose limitation to cover serious crime as well.
Ms Verkleij: That would mean that we could contemplate within Council, according to how the discussions develop, an extension of the scope to cover serious crimes to the extent that they are not already covered by "organised crime" and we can get guidance from European Union instruments, in particular the European arrest warrant. In Article 2.2 of the Framework Decision on the European Arrest Warrant there is a list of serious crimes which we very often use in the discussions with Member States, and you will find that one of the serious crimes listed in that article is what is called "facilitation of unauthorised entry and residence". That looks like an immigration issue but to us that would not mean that the scope of the instrument would be widened to immigration purposes as such. If it was part of serious crime, and if all the Member States agreed on that, that would be a way to accommodate different concerns and in particular the UK concern that we may be faced with serious crimes which are not necessarily organised crimes but where you would like to identify certain travellers and make sure that you can prosecute them if they have committed a serious crime. The discussions in Council are going in that direction but, as I said earlier, a purpose limitation should be a purpose limitation, so the scope should be defined as precisely as possible.
Q119 Baroness Garden of Frognal: Could I specifically ask you about the letter from our Home Office Minister to Vice-President Frattini about Project Semaphore? Do you think that the arguments in the Minister's letter justify the use of PNR for wider purposes? You have partly answered that already but perhaps you could answer that specifically.
Ms Verkleij: We are very happy in general with the way the UK and its ministers inform us about their projects because it allows to feed that into the wider European debate and we are very happy also that they have already accommodated a lot of visits, including by ourselves. We had the opportunity to visit Semaphore twice, once last year and also towards the end of the pilot project, and that has been very important for our thinking and also in further developing our thinking because this project is the only one in Europe which is up and running and can show you tangible results. It was great to see that and to get all the explanations from those who are in the lead on that project. Your Minister's letter is part of that exercise and it was very much welcomed by Vice-President Frattini. It was seen as support for our policy which was extremely welcome and which we felt was something we needed also in the discussions leading up to the informal JAI Council in January where ministers indeed decided that we should go ahead with this project. In the letter the Minister refers to successes which have been obtained by your services as a result of the data. These are, of course, general references. I think the letter mentions a number of successes, which are important but at the same time I think it also triggers again the question on which set of data these successes have been based. Are these PNR or API data? There is a distinction to be made there and that distinction in our view also links into the question, "Do you want to use the data for immigration purposes?". We have had that as the basis of our proposal, what kind of information we are looking at and how this information can be used for preventing and fighting certain types of crime, with the idea in our minds that law enforcement perhaps does not need a large amount of data but the appropriate set of data, the right set of data, and the great advantage of PNR and API data is that they are different from each other, and they also serve complementary purposes. Of course, it is not the purpose of a letter to set out in detail these sorts of things. What we appreciated very much was the fact that there was clear support for our proposal ahead of the ministers' meeting and the successes mentioned showed us that there was a case for using these data, that it is not just something we have invented but that there is an actual law enforcement need, and that that need can also be accommodated by providing the necessary privacy rules. In general we are very happy with the letter. We are not at this point in time fully convinced that this set of data can serve all the purposes which the Minister may have in mind. On the other hand it may be an issue of defining a bit more precisely which data serve which purposes, and API data are the data which you ideally would use for immigration purposes, so I do not exclude that we may be talking about the same thing after all at the end of the day.
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