EN Official Journal of the European Union CE 78/35

(2004/C 78 E/0035)

WRITTEN QUESTION P-1483/03

by Johanna Boogerd-Quaak (ELDR) to the Commission

(23 April 2003)

Subject: Protection of information concerning air passengers — Joint Declaration of 4 March 2003

Since the beginning of March, airlines have been required by an American law, on pain of heavy fines, to provide all kinds of information about their passengers. The Commission recently issued a Joint Declaration with the USA on this subject.

Does the Commission agree that, in the light of the case law of the Court of Justice of the EC, this is a field where joint competence exists?

If so, when did the Commission inform the Member States of the relevant developments?

How are the Member States kept informed of the latest developments in this field?

Were the Member States in any way involved in the decision-making leading to the Joint Declaration of 4 March 2003?

Does the American law conflict with the national legislation of any of the Member States?

If so, which Member States and what are the consequences?

Are there any Member States which have concluded individual agreements with the USA on this subject?

Answer given by Mr Bolkestein on behalf of the Commission

(22 May 2003)

The transfer of personal data by airlines to the American authorities is a complex issue, certain aspects of which fall within the Community's field of competence. The processing of personal data by airlines in the context of their economic activities, for example, is clearly regulated by Community law. The information requested by the US authorities includes this type of data.

Since 2002, the Commission has kept the Member States informed about the situation at meetings of the Council's Working Parties, particularly those dealing with transport and trans-Atlantic relations. The Commission has also provided detailed information for the Committee set up by Article 31 of Directive 95/46/EC (1), which is composed of representatives of the Member States. This information was provided on 12 December 2002 and 21 February 2003. The Commission also reported to Coreper on the latest developments with the dossier, principally in February 2003 when discussions were held on the Joint Declaration mentioned by the Honourable Member.

The Member States were not directly involved in the process leading up to the Joint Declaration. The Commission would, however, stress that this declaration only aims to define a method for discussions with the US authorities which might lead to a solution that is consistent with Community law. In this context, the Commission has paid particular attention to the situation confronting European airlines, which are faced with the conflicting demands made by two different legal systems and the threat of tough economic sanctions which could even extend to the withdrawal of their landing rights in the USA.

The solution envisaged by the Commission is based on Article 25.6 of Directive 95/46/EC. This provision allows the Commission to recognise that a third country ensures adequate protection of the data transferred to it. The Member States take part in the decision-making process through their involvement in the Committee set up by Article 31 of Directive 95/46/EC, as this Committee has to deliver an opinion on the draft of the measures to be taken, in accordance with the comitology rules.

The Commission has not conducted a detailed examination into the compatibility of the US law with the national legislation of the Member States, given that the proposed measures posed problems vis-à-vis the requirements of Directive 95/46/EC, and all Member States legislation has to comply with that Directive.

Finally, the Commission has no knowledge of any agreements concluded on this subject between individual Member States and the USA.

(1) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, 23.11.1995.