Use of passenger data (PNR) (debate) 
President
The next item is the statement by the Council and the Commission on the use of passenger data (PNR).
Paula Lehtomäki
Mr President, ladies and gentlemen, talks on releasing passenger data to the United States of America were brought to a conclusion last week. The outcome of the talks helped to avoid a state of non-agreement between the EU and the United States, which is very important.
The Presidency has received a letter dated yesterday from Sophia in 't Veld, the European Parliament's rapporteur for the PNR report, and we shall return to the questions raised in it in more detail in writing as soon as possible.
In the negotiations, we agreed on a new temporary PNR agreement. Its purpose is to replace the earlier agreement made in 2004, which the Court of Justice of the European Communities overturned in its judgment last May. The negotiations were tough, as the annulment of the earlier agreement threatened to push the EU and the United States into a state of total non-agreement. Despite the difficulties, the negotiations mandate given by the Council in June 2006 was adhered to. The new arrangement will guarantee both the level of protection of personal data under the former agreement and the continuation of transatlantic air traffic. The arrangement therefore makes it possible for passenger data to be released to the US authorities in the future, at the same time guaranteeing an adequate level of data protection when the information is being processed, in accordance with the commitments given previously by the US Customs and Border Protection.
The Committee of Permanent Representatives followed the progress of the talks closely and discussed the outcome and its content on 6 October. Coreper said that it was in favour of signing the text of the negotiations. The outcome of the talks was reported to the Ministers of Justice in the Justice and Home Affairs Council, which began immediately after Coreper.
The temporary agreement which resulted from the negotiations will apply after it has been signed. Coreper will sign it for the EU tomorrow, and the intention is that the Council should grant the authority to sign as soon as possible.
The temporary agreement will remain in force until the end of July 2007. During this time, the parties intend to agree on a more permanent arrangement for releasing PNR data. The aim is to start these talks as soon as possible.
It took some hard negotiation to reach agreement. The United States wanted to change the previous arrangement so that it would accord better with an altered operational environment. The biggest challenge in the negotiations was how to respond to the changes that had occurred since 2004 in US legislation and the organisation of the administration while at the same time maintaining the principles relating to standards of data protection for Europeans.
In addition to the text of the agreement itself, the talks also covered a letter by US negotiators addressed to the Commission and the Presidency which discusses the interpretation of the commitments made regarding the use of PNR data. The EU will take the letter into consideration, but it will not become a part of the agreement.
The outcome of the talks is a success for many reasons. Firstly, the temporary arrangement aims at ensuring the security of air passengers. This is vitally important.
Secondly, I wish to stress that the commitments on the use of PNR data given previously by the US administration will continue to apply. The aim is to guarantee the same level of data protection for citizens' PNR data as with the previous system. The agreement contains a provision which states that the US Department of Homeland Security should be seen to guarantee adequate protection for PNR data sent from the EU. This relies specifically on the notion that the DHS will continue to comply with its commitments made in 2004. Owing to the organisational changes in the US administration, under the new agreement the number of authorities with electronic access to PNR is greater than before. These authorities have, however, been specified in the agreement.
Thirdly, I am glad that the release of PNR data under the new agreement is aimed at the same 34 fields of data as in the earlier arrangement.
Fourthly, the new agreement will guarantee the legal security of the public and that transatlantic flights will continue. At the same time it will ensure that airlines are able to operate viably.
We have other good news for airlines. During the negotiations, the United States undertook to test systems where airlines can themselves store PNR data on the databases of the US authorities, starting this year. This has always been an important objective for us.
Talks on a more permanent PNR system to replace this temporary agreement in July 2007 are to commence in the near future. We have also agreed that questions relating to the storage and destruction of data should only be resolved during these talks on the PNR system. We shall therefore return to this matter very soon.
Mr President, I regret that I cannot stay here for this debate as I have to leave at 6.20 p.m. as agreed earlier with Parliament, and, unfortunately, my flight will not wait a minute longer.
Franco Frattini
Mr President, may I start by expressing my full agreement with the Presidency's positive assessment of the value of this agreement, which has a limited time-span - up to July 2007 - but has the prime advantage of guaranteeing juridical continuity in a very sensitive subject. It also allows airlines to ensure fitting treatment of the personal data of EU nationals travelling to the United States without disrupting air traffic to and from that country.
This agreement forms part of a wider commitment. I can of course say that, during the very complex negotiations that have been in progress, both the European institutions - the Presidency and the Commission - and the United States have confirmed their willingness to start straight away on a shared project. This would cover a wider field and would thus include the reaffirmation of a common will, that of the EU and the United States, to work towards a definite agreement - the one that will enter into force after August 2007, replacing the present temporary one - and to cover the widest possible field of joint cooperation against terrorism, together with protection of the rights of the individual.
This is a much wider political perspective. As I have emphasised on many other occasions, I consider it politically necessary that Parliament should be involved with it, even though the procedures will necessarily form part of the so-called 'third pillar', following the decision of the European Court of Justice.
It is clear that the contents of this agreement must be considered in more depth. I already know that many honourable Members have studied it attentively. I should like to make some brief comments. Firstly, this agreement does not permit the exchange of a larger amount of data. It permits the transmission of data to other agencies which are concerned with customs and border protection and complies entirely with comparable data protection regulations.
We are not looking at a change in the agreement because, as you know very well, we have clarified the meaning of the undertakings. There was in fact a change after 2004 in the structure of the agencies, brought about by domestic United States legislation. Previously, that is to say at the beginning of 2004, there was only the United States Customs and Border Protection. Now, however, for example, we have a new interlocutor, namely the Department of Homeland Security, which we must take into account, at any rate in interpreting undertakings. The agencies that I mentioned earlier also form part of this process, which is why it is impossible not to refer to them.
What is the distinguishing feature of this interpretation? On the one hand we have to take note of the existence of various agencies; on the other we have established that United States Customs and Border Protection retains the same function as before, this agency - and only this agency - being the direct recipient of transferred data. The other agencies can obtain the data that they require from this first agency on a case-by-case basis. Thus this is not a matter of direct access to data on the part of other agencies; it is a transmission to other agencies in response to a request.
What would be the request that justified such a transmission? As I have already said, the request would be made on a case-by-case basis. We have specified that the concept 'case-by-case' means the indication either of a concrete threat or of a specific flight or flight-path for which information has been received that justifies the request for data. Such a request for data would be justified solely by reasons relating to anti-terrorism investigation, as has happened previously; in this respect nothing has changed. We have therefore specified that American agencies with an investigative remit other than anti-terrorism will not have access, not even on the basis of an indirect request.
The other element which is important in my opinion is, on the one hand, the impossibility of direct access and, on the other, the change in the modalities of accessing data. Many honourable Members have in the past frequently emphasised the malfunctioning or the inadequate guarantees of the so-called 'pull' system: that is to say, the system that permits the user to extract data direct from databases. We have in consequence requested that the system should be changed and replaced by a system of the 'push' type, as has been requested on numerous occasions by parliamentary authorities; this has been agreed.
The 'push' system means, as the work clearly indicates, that the data is not extracted but supplied on request. It has been agreed that the new mechanism, as we have written in the covering letter to be sent by the United States, will come into operation no later than December 2006, that is within a month and a half at the latest. The mechanism will be tested at the beginning to check its functioning, but in any case it will be operational - I repeat - by the end of this year.
A specific obligation has also been confirmed, namely - bearing in mind section 2 of Article 6 of the Treaty on European Union - to respect the fundamental rights of the individual in the handling of personal data. We have inserted a reference to that same Article 6, replacing the reference to a directive on data protection, because the European Court of Justice has established that that directive is not directly applicable in security matters. An important reference to European legislation would therefore have been missing. We have accordingly replaced it with a more general cross-reference - in my view, one that is still more binding - to Article 6 of the EU Treaty, where there is a reference to the fundamental rights of individuals.
To conclude, the US authorities have a commitment to continue to guarantee, also on behalf of the Department of Homeland Security, an acceptable level of protection for the handling of data and therefore, obviously, the possibility of revising the application of this agreement, as has already been laid down in the earlier agreement.
The final aspect concerns confirmation of the data custody period, a subject that has not been broached. It is true that there has been a request to keep data for longer than the period foreseen by the current or previous agreement. The request came to nothing, firstly because the agreement will come to an end in July 2007 and, secondly, because we have taken the view that a subject as sensitive as the period of data retention could if necessary be a topic for later negotiations. I can assure you that the Commission intends to set in train such negotiations in January 2007, so that they will be sufficiently far advanced by the end of July 2007 for a definitive agreement to be reached.
Ewa Klamt
on behalf of the PPE-DE Group. - (DE) Mr President, Mr Vice-President of the Commission, ladies and gentlemen, only recently, some elements in this House celebrated the ruling of the European Court of Justice to the effect that the agreement between the EU and the United States on US access to airline passenger data was invalid on formal grounds. The interim agreement that has now been concluded leaves the nature and scope of the information largely unchanged, however. Admittedly, the United States no longer has automatic access to the data, instead having to request them from the airlines. This represents a successful negotiation outcome, one for which I should like to express my particular thanks to Commissioner Frattini.
Nevertheless, the agreement that the European Court of Justice declared invalid clearly stipulated that the customs and border protection authorities were permitted to pass on these data only in exceptional cases. Now, airline passenger data may be passed on, as required, to all the American authorities responsible for combating terrorism. Passengers probably do not feel that this compromises their security - the opposite is more likely to be the case - but my group, the Group of the European People's Party (Christian Democrats) and European Democrats, has a strong sense that, by referring the case to the Court of Justice, certain Members of this House have done us all a disservice, for one thing that must be recognised today is that the new agreement affords no greater data protection than the old one.
For this reason, I would plead that we continue to work to safeguard the high standards of data protection in Europe, including in the case of the transfer of airline passenger data. While Parliament and the Commission should exert their influence on future negotiations to this end, we must also recognise that a sovereign state such as the United States will continue to exercise the right to lay down rules on who can enter its territory and on what conditions.
Martine Roure
on behalf of the PSE Group. - (FR) Mr President, Commissioner, first of all I wish to say, on behalf of my group, that we urgently needed to reach a new agreement with the United States. It was not, indeed, possible to leave the airlines in the state of legal muddle in which they had been since 30 September and under the threat of severe sanctions if they did not transfer the required data. We had to reach an agreement common to all the Member States of the European Union in order to guarantee an equivalent level of protection for each one.
We are nonetheless concerned about facilitating the transfer of this data. The subsequent transfer of data to other agencies responsible for the fight against terrorism poses a problem if we do not also have the appropriate guarantees. We are asking for European citizens to have the right to effective recourse to a judge in the event of abuse in the use of this data. We expect the American authorities to put in place the guarantees of protection that we are asking for and which are included in the declarations of commitment.
We believe that it is necessary to involve national parliaments too. Article 24 of the Treaty provides that the European Union is the contracting party. That does not, however, prevent Member States from using a parliamentary ratification procedure. Therefore, at the time of signing these judicial cooperation agreements with the United States, the Member States, with the exception of two of them, made a declaration stating that they would not be bound by these agreements until they had been ratified by their parliaments. Can you confirm that the same applies to the agreement concerning the PNR data and, if so, when these ratifications are to be carried out? It is a very precise question to which we would like to have an answer.
Finally, the negotiations for the new 2007 agreement must focus on defining a binding, global framework which guarantees the protection of security and of the fundamental rights of citizens. We must not be shy of repeating that the European Parliament and the national parliaments must be involved. It is, moreover, necessary to engage in an overall reflection on the protection of data relating to European citizens within the framework of transatlantic relations. Indeed, a recent hearing on the company SWIFT revealed to us the potential conflicts between European law and American law and we must sort out these conflicts: it is our responsibility.
Sophia in 't Veld
on behalf of the ALDE Group. - Mr President, I have the feeling that I have ended up in the wrong theatre play and I have the wrong script in front of me. The President-in-Office and the Commissioner were talking about the agreement and you completely ignored the side letter from the Department of Homeland Security, which gives an interpretation of the agreement that goes in a completely different direction from what you have just said. So I am afraid that I am unable to share the joy just expressed by the Presidency and the Commission.
I sent a letter - to which the President-in-Office just referred - with a number of questions. I would very much like to get an answer to those questions, preferably during this sitting, or otherwise in writing. For example, you said that there is no change in the number and the nature of the data and there is no change in the level of protection, but how do you then explain the part in the side letter from the Americans that says that, in addition to the purpose of fighting terrorism and related crimes, we will also collect the data to fight infectious disease and other risks? I call that a considerable widening of the scope. The sharing of data has been widened to include agencies which have not all been specified. The Americans now say that they may not apply the agreed data-retention periods even to the data collected under the old agreement.
You said that we have agreed to move to a 'push system': I am sorry, but that is not what I read. I read that the Americans will move to the 'push system' as soon as it is technically feasible. Well, congratulations! That was also part of the old agreement. It has been technically feasible for more than a year and the Americans have simply refused to do it. So how can you present it this way in a press conference?
I would also like to get an answer on the impact on other categories - the precedent that this agreement sets - for example, the bank account details as in the case of SWIFT, and the telecoms records, to which the Americans also have access. Could somebody please reply to that?
I think we should look to the future, because unfortunately we need this agreement. The only other option would have been no agreement, in which case the Member States would not have stood together in solidarity and would have moved ahead and concluded bilateral agreements with the Americans. I think that for the future we need a strong and clear mandate. Such a strong mandate requires the approval of the European Parliament for reasons of democratic legitimacy. That is the only basis on which a new agreement can be concluded. Therefore, I hope that the bridging clause will be adopted as soon as possible. I know that you are our ally at least on that one.
(Applause)
Johannes Voggenhuber
(DE) Mr President, Mrs in 't Veld is not in the wrong play; this is about the defence of the rights of our citizens and the role of Parliament. It is just that the staging is a little tired and the cast is less than brilliant.
Until the judgment of the European Court of Justice, what we were dealing with was the transfer of highly personal data on our citizens to a foreign country. The judgment has revealed that this transfer of data was illegal - and not just on formal grounds, Mrs Klamt. We passed on our citizens' data without any legal basis - or, put another way, illegally. We are talking about a serious encroachment on fundamental rights without any legal basis. There is nothing formal about that. This should really make us think.
What is it, then, that we are dealing with today? We are dealing with an agreement that represents a juridical continuation of this illegal transfer in the third pillar - that is to say, intergovernmental cooperation without the involvement of Parliament, without a public debate, outside the jurisdiction of the Court; without even the involvement of national parliaments, without ratification. When Mrs Klamt says that the USA has the right to determine who it admits into its territory and on what conditions, I would reply that, up to now, we have agreed that considerations of human dignity, international law and human rights impose certain limits on this.
I really consider it an incredible absurdity when the Commission argues that we are passing on the data, but that the protection of our citizens' fundamental rights will remain, as the USA has promised to guarantee the same level of data protection as we enjoy in Europe. Do we, then, together with the Americans, now constitute a single superstate? Do fundamental-rights considerations not forbid us to transfer our citizens' data to foreign countries regardless of the level of data protection in force there? Do fundamental-rights considerations not forbid airlines to transfer data even to our authorities where to do so would infringe these rights?
Personally, I have to say that the defence of the fundamental rights of European citizens indeed makes for a good play, but the cast and staging are dreadful.
Sylvia-Yvonne Kaufmann
on behalf of the GUE/NGL Group. - (DE) Mr President, Mr Vice-President of the Commission, Mrs in 't Veld is right: the PNR agreement concluded last week is by no means cause for celebration. Although the fact that we once more have an agreement, as opposed to no agreement, avoids legal uncertainty, nothing has been achieved, in essence, in terms of content. On the contrary, the new agreement even falls short of the previous one.
This has been yet another instance of the EU kowtowing to Washington. How else can one interpret the fact that PNR data are to be transmitted directly to the US Department of Homeland Security? The real scandal is the fact that, in future, this all-powerful US authority will be able to routinely transmit data on European airline passengers to all the US authorities active in the field of combating terrorism - which includes the CIA, and we all know what that is capable of. I should just like to remind my fellow Members that this House set up a special committee because the CIA, in the process of 'combating terrorism', was taking it upon itself to kidnap and torture Europeans, among them the German citizen Khaled El Masri. In the light of this, are we to believe that this notorious secret service will not do as it pleases with airline passenger data on our citizens?
The new agreement, too - despite Parliament's demands to the contrary - fails to afford EU citizens even the same means of legal protection as it does American airline passengers. EU citizens will not have equivalent means of legal redress to defend themselves against the processing of incorrect data or against the abuse of their data. Why was it not possible to make the regulations that apply to US citizens applicable to EU citizens, too - as is the case, for example, with the agreement between the EC and Canada? The PNR agreement does not afford sufficient protection of EC citizens' right of self-determination over their personal data, and my group considers this unacceptable.
The only ray of hope may be the envisaged change of system from 'pull' to 'push', but even this is relative, as it is not the intention to introduce this change immediately, despite existing commitments on the part of the USA, but to first have a trial run. The push system is used in the case of Canada, however, and is perfectly feasible in technical terms. What, then, was stopping the EU from insisting that the USA immediately honour the commitment it made to us a long time ago?
Brian Crowley
on behalf of the UEN Group. - Mr President, despite the short time available to me, there are three points that I want to raise.
First of all, what further guarantees have the American authorities given with regard to how the data will be used? I know we have the 'push system' and the 'pull system' and so on, but what kind of criteria are laid down for the use of the data?
Secondly, when we hear about actions on a case-by-case basis determining whether a threat exists or if a particular flight may be under threat, how much time do we have to be able to respond to that request for information, and what difficulty will there be in accessing that data? And I mean that from a European perspective as well as a US perspective.
Thirdly, and I suppose most importantly, if we find that some data has been misused, what comeback do we have? What mechanism is in place to ensure that an individual or groups of individuals whose data has been misused can get some kind of comeback from the American authorities?
These are questions which I think all European citizens want to have answered. I agree with the deal, I think it is a good deal in general and better than the previous deal, but there are still requirements for further clarity on it.
Ioannis Varvitsiotis
(EL) Mr President, I have listened very carefully to everything said by both the Minister and Commissioner Frattini. They have both accepted that the agreement reached has positive elements for Europe.
My view is that the views which prevailed were the American views. I have three specific comments on this interim agreement. Firstly, it says in the agreement, as Mr Frattini also said, that the number of data items transferred remains unchanged but that this agreement leaves open the possibility of new information being included on frequent flyers. I believe that this reference is open to numerous interpretations. Perhaps the Commissioner could explain what applies to the House?
Secondly, it was agreed to change from the pull system to the push system, meaning that the airlines will upgrade their own systems. Can the Commissioner tell us who will bear the cost of this changeover to the new system? I fear that the cost will be passed on to passengers and tickets.
Thirdly, I am worried about the retention of the term 'adequate' used to qualify the level of protection of data. Who in fact judges if the level is adequate? Do the assurances being given by the American side suffice? Can the Commissioner tell us what guarantees we have on actual data protection?
Finally, I believe that all this must be addressed in the new round of negotiations due to start in January. The new agreement must be more balanced than this one.
Stavros Lambrinidis
Mr President, the temporary PNR agreement with the United States continues to treat as non-binding the US unilateral undertakings for the proper use and protection of personal data in the form of a protocol. Why? And how is it possible that the European Council in this case concluded an agreement that seems more flexible on US obligations than even the agreement that a mere private company, SWIFT, was apparently able to negotiate with US authorities for the unacceptable transfer of banking data? SWIFT, for example, has claimed that it can in real time block any US search if it violates the causes for which it has been agreed.
The PNR and SWIFT cases reveal a dangerous political and legal black hole in the protection of our fundamental rights. A third country invoking exclusively reasons of its own national security can apparently impose upon Europe, including directly upon private companies, the level of access to, use, and even protection of, data. This is clearly unacceptable, and, while the whole EU pillar structure has de facto collapsed in these two cases, the Council insists upon denying Parliament the role of an equal partner in fighting terrorism and in protecting fundamental rights. What is now urgently needed is a comprehensive and democratic European approach in cooperation with all our partners on a global level to deal with these issues in the future.
Jean-Marie Cavada
(FR) Mr President, in view of the large number of speakers and people present in this debate, I shall try not to tire you out even more. I agree with much of what has just been said, on a subject that is really very serious. I wish publicly to thank Mr Frattini for his efforts to inform our committee. I am speaking, in fact, as Chairman of the Committee on Civil Liberties, Justice and Home Affairs since Mrs in 't Veld has already spoken on behalf of my group.
I shall make two observations, the first concerning the political climate. I believe that, in the context of the forthcoming negotiations, there needs to be more effort made towards the notion of reciprocity. I want to speak about reciprocity of the information that we agree to supply to the American services: what can we hope to obtain in return? I have good reason to wonder because, whilst it is true that we Europeans need to be able to land in the United States, particularly for business purposes, one must not underestimate the same need on the part of American companies because a lot of business is done in Europe. We are therefore in a relatively balanced position.
My second observation concerns the future. This interim agreement lapses in July 2007, and it will therefore be necessary to prepare the follow up, no doubt from the end of the coming winter. Given the numerous questions posed by the grey areas in this agreement, particularly - and this worries me a bit - the explanatory letter to which Mrs in 't Veld alluded just now, does it seem unreasonable to you, Mr Vice-President, to hope to build some sort of compromise by the next United States/Europe summit, that is to say by April 2007? Can one hope to build a kind of transatlantic Schengen on the basis of which the United States, on the one hand, and the European Union, on the other, could establish a framework making it possible to sort out both the problem of the demands of security and that of the protection of citizens? We have a right to a new political structure as, in a few months time, we shall be entering into the negotiation of a new agreement.
Giusto Catania
(IT) Mr President, ladies and gentlemen, I believe that the most honest opinion we can express is that we have agreed to blackmail, since unfortunately Europe has in this matter been subjected to blackmail by the United States; that is to say, the US is dealing with single Member States and airlines, which is why we have in practice been coerced into concluding the agreement in question. This - I repeat - is the most politically correct position, which Parliament must express.
However, it is as if we are having to defend an agreement that effectively damages European citizens: it is in fact true that nothing has changed, but the agreement that has been annulled by the Court of Justice was a very bad agreement. We would have to put into the hands of the American authorities 34 personal data items, of which, as the Americans themselves testify, only seven or eight would normally be used. If that is how things are, I do not understand why we have to hand over all this information and, furthermore, to put it in the hands of the American intelligence services - a new feature of the agreement - unless anyone maintains that we can trust the CIA.
I do not believe that I am speaking just for myself; I consider rather that this Parliament has every reason not to trust the CIA. What has happened in Europe is clear for all to see: Parliament has even set up a special commission on CIA activities in Europe, and there have been discussions on what happened with SWIFT, when it was discovered that our bank accounts were being inspected by the Americans. I therefore remain puzzled and still believe that we cannot trust the activities of United States intelligence agencies.
I believe that the agreement in question was not negotiated in the name of European citizens; it certainly was not negotiated in the name of this Parliament, which was completely ignored in the discussion, as Mrs in 't Veld recalled a short time ago. In my opinion we must instead involve the European Parliament, just as we need to involve national parliaments, so that this agreement is reached in such a way as to give priority to defending the rights of EU citizens and, above all, ensuring that our personal data is not put into the hands of persons who will certainly not make fitting use of it.
Michael Cashman
Mr President, I should like to congratulate the Commissioner. It is not a perfect agreement. When compromises have to be made, agreements are never perfect, but, as Mrs in 't Veld said, it was either an agreement or no agreement. If there was no agreement, we would have had data anarchy and certainly no EU-wide protection for our citizens. I want to associate myself fully with the comments of Mr Cavada, who I believe has taken a really constructive approach.
We need to look at what is happening with PNR and we need to look at what is happening with SWIFT - incidentally, the memorandum of understanding that SWIFT managed to negotiate is a good basis upon which to build any future negotiations. But we can see it also as an opportunity to create this so-called Schengen transatlantic area, because we will come up against these problems time and time again.
However, I should like to say to this House that nothing is being imposed on us. The choice is ours. If we wish to travel to the United States, we will have to abide by conditions set by the United States. If we want to set up a business in the United States, exactly the same principle applies.
We have to negotiate for our common good and this interim agreement is a step in that direction. Congratulations, Commissioner! The easiest thing in the world is to knock something; the hardest is to support it. Well done.
Alexander Alvaro
(DE) Mr President, I must admit that I see some aspects quite differently from the previous speaker, but Mr Cashman and I have a relationship of friendly disagreement, and it actually works quite well.
Nonetheless, I think it most regrettable that the Council is no longer present, as it is clear from the speech on its behalf that neither was it present at the negotiations nor does it know the substance of this agreement. It is not possible to speak of any gain in data protection if we have adopted the same amount in this regard as before, namely nothing - as twice nothing is still nothing. We still do not know where the data retrieved will end up. We do not know which authority in the United States has access to them, and thus where they will be stored in the end, let alone where they will be transmitted. We do not know when they will be deleted. European citizens are not entitled to enquire where these data are. They are not entitled to require that the data be corrected. It is not true, therefore, that we have achieved more in essence.
I am not accusing the Commissioner personally, as I know the pressure the United States has exerted, but I should have liked us to have put up more resistance to this pressure and, for example, taken up my colleague Mr Cavada's suggestion in saying that, if the US expects data from us, it has to hand its own over too.
Who says there cannot be any threat to the EU from the USA? Who says that we do not also have the right to learn who is travelling into our territory? We must be able to pay the US back in the same coin in this case instead of just yielding to its pressure.
Sarah Ludford
Mr President, the Presidency said that the final outcome is a success, but I say it is a sell-out. We are told that data protection will be in compliance with relevant European standards, but I read in paragraph 3 that the Americans will process data in accordance with applicable US laws, and in paragraph 1 that data will be handed over as required by the Department of Homeland Security.
Then we have the accompanying US side letter which says that they will interpret the agreement as laid down by President Bush's executive decrees on data sharing and access by other agencies. This is a complete assertion of US jurisdiction, so I would like to ask Commissioner Fratini to tell us whether he accepts this accompanying US side letter as an intrinsic part of the agreement.
Paragraph 6 of the agreement says that the Department of Homeland Security is 'deemed' to ensure an adequate level of data protection. Now what on earth does 'deemed' mean? Paragraph 1 says that we are relying on US continued implementation of the undertakings as interpreted in the light of subsequent events. So we are at the mercy of events to tell us if the US will respect its undertakings! So the Presidency assertion that the earlier undertakings continue to apply is baseless.
The Commission and the Council say that the agreement delivers legal certainty for EU citizens. I agree with this only in one respect: the certainty that their legal rights have been sold down the river, or rather across the pond. This is not theoretical; we have heard all this year on the Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners, regarding people about whom soft information has been transferred to the United States that has become hard information, leading to people being rendered to places like Syria and tortured for months or years or incarcerated in Guantánamo Bay. This is not theoretical.
President
Mrs Lehtomäki has had to return to Finland - data-free - because it is the Indian Summit tomorrow, so there will be no reply from the Council in this debate.
Franco Frattini
Vice-President of the Commission. (IT) Mr President, I believe that in the next few months there will be a debate with Parliament - because I confirm my personal willingness and that of the Commission to maintain a political dialogue with Parliament, even when we start on the negotiation phase with the United States of America - which in my opinion must presuppose a desire for mutual understanding, based in turn on familiarity with the official records on the subject.
I have heard some Members speaking about personal data being sent to the CIA: it is simply not true. You must read the official records, honourable Members. It is clear from these that neither the CIA nor the other American secret services will have access to this data. This is a fact, established by the official documents - which we have checked. It is not true to assert that we are putting the data in question into the hands of the secret services without any checking. For this reason I am willing to engage in dialogue, but on the basis of shared data. By the same token, it is untrue to assert that data sent to the Department of Homeland Security is then sent to all the agencies. That is definitely not the case.
We send data only to those agencies that are entrusted with the task of either undertaking investigations or dealing with terrorism. These are the two conditions that place a limit on who receives the data. A request for personal data has to be made on a case-by-case basis, and the undertakings specify what is meant by 'case-by-case'. Looked at in this way, therefore, the agreement - signed but not yet ratified - is in no way different from the earlier one. The earlier one may not please you, but it has not been changed nor made worse.
Some observations have been made concerning the entering into force of the agreement: for example, Mr Roure has referred to Article 24. You know very well, Mr Roure, that national parliaments have the right - and in some cases the obligation - to ratify agreements. You know equally well, however, that this temporary agreement has been negotiated very urgently to avoid the anarchy to which Mr Cashman has referred. Anarchy means the absence of rules and of protection and the possibility that any bunch of people could sign an agreement. It is therefore clear that we shall apply Article 24 of the agreement, including the part that states that it will come into force immediately. If we were to await all the ratifications, this agreement would come into effect after July 2007, whereupon the immediate anarchy that we wanted to avoid would be caused. We are talking about rules laid down in the Treaties, not of an interpretation of our own.
We have repeated that '[A]n adequate level of data protection is guaranteed'. This is a formula that existed previously. I have been asked a serious question: how can we protect the citizen or indeed the European Community if this adequate level is not maintained? Honourable Members, you know that the undertakings and the agreement envisage the possibility of denouncing the agreement and maybe of suspending it, if it were to emerge that the 'adequate level of protection' had not been maintained. So there are suitable instruments; and if it were necessary to resort to legal procedures, it would certainly not be for me to establish in what cases a magistrate could invoke his jurisdiction.
I have received objections to the existence of a covering letter that establishes the application of a certain jurisdiction, for example only United States jurisdiction. You know full well, however, that this letter is a unilateral act, not part of the agreement. The Commission has not agreed any dispositions concerning jurisdiction that might be contained in a unilateral letter from the State Department. Therefore it is absolutely untrue that we are surrendering our rights concerning jurisdiction. It is up to the judges to establish who can or cannot act. This will certainly not be established by the agreement under discussion.
I believe that there is another particularly important matter: the 'push-pull' aspect. Mrs in 't Velt has asked some complicated questions, seventeen in all, to which we shall naturally reply in writing: they are very technical questions, but important. However, there are other points to which I must now respond. It is simply not true that, according to the agreement, the new 'push' system that Parliament wants will come into force when the Americans want it. On the contrary, we have it in writing that 'by December at the latest, the system will be operational'. The agreement therefore refers to a date that is very clear and close - one and a half months away - and, as you well know, there is a network of international airlines, headed by the Amadeus chain, that is already in a position to apply the 'push' system tomorrow. There thus exists the technical capacity and there is also a juridical basis, which was not contemplated in the previous agreement. This is certainly an improvement: the 'push' system can come into operation from tomorrow.
As far as the limited scope of the agreement is concerned, someone - I think it was again Mrs in 't Velt - stated that the transmission of data would no longer be justified only by the war on terrorism but also by other objectives. Points 3 and 34 of the undertakings, which have not been modified, established and still establish that, in the event of a matter of life and death, including cases other than specific investigation of terrorism, personal data may be requested. This is nothing new.
One more thing, Mr President, and I apologise for the length of my speech. I am in full agreement with what Mr Cavada and Mr Cashman said: we can also call it the 'Transatlantic Schengen Agreement' (I like that title). Certainly there will have to be wide-ranging political negotiations with the United States. We shall need to establish once and for all - and Parliament will also have to do this - whether the United States is, as I believe, Europe's foremost ally in the war on terrorism, or whether it is a problem. I consider it to be our foremost ally in the war on terrorism; this being so, it is clear that, just as we Europeans have constructed the Schengen area of security and affirmation of rights, we must start doing the same thing with the United States. Otherwise, we risk forgetting that the problem is terrorism, not the US.
President
I should like to thank the Commissioner and all colleagues who took part in that important debate.
The debate is closed.
