WRITTEN QUESTION P-0602/03

by Joaquim Miranda (GUE/NGL) to the Commission

(25 February 2003)

Subject: Information on passengers travelling to the United States

It has been reported in the media that an agreement is being drawn up jointly by the Commission and the US Administration, supposedly as part of the fight against terrorism, under which the European side will make information available on passengers travelling to the United States.

Given the sensitivity of such a situation, which would call into question the protection of personal data, can the Commission inform me, as a matter of urgency, of the reasons for and terms of such an agreement, its compliance (or non-compliance) with Community legislation on the matter and the guarantees and checks to which the agreement will be subject?

Answer given by Mr Bolkestein on behalf of the Commission

(21 March 2003)

In the aftermath of the terrorist attacks of 11 September 2001, the United States passed a law, the Aviation and Transportation Security Act of 2001, requiring that air carriers operating flights to, from or through the United States provide the United States' Customs with electronic access to the data contained in their automated reservation and departure control systems, known as Passenger Name Records (PNR).

This requirement conflicts with Community and Member States' legislation on data protection and also with certain provisions of the Community Regulation on Computer Reservation Systems(1).

The Commission has taken the issue up with the United States side on several occasions since the publication of the implementing rules, which, after one postponement, entered into force on 5 February 2003. However, as a result of the démarches by the Commission, the United States' Customs agreed to waive the imposition of penalties on non-complying airlines until 5 March 2003. These penalties include severe fines and even the withdrawal of landing rights.

In order to reconcile United States' requirements with the requirements of data protection law in the Union, a meeting took place on 17 and 18 February 2003 between senior officials of the Commission and the United States' Customs Service. As a result of those discussions, the two sides issued a Joint Statement(2) which sets out the steps that need to be taken to reach a mutually satisfactory solution that can provide legal certainty to all concerned. In particular, both sides agreed to work together towards a bilateral arrangement under which the Commission, in response to information and undertakings provided by the United States side about the way transferred data would be handled and protected in the United States, maytake a decision under Article 25.6 of the Data Protection Directive(3), on the adequacy of the level of protection ensured by the United States. Following the adoption of such decisions, Member States must take the necessary measures to comply.

The Joint Statement also includes in annex the undertakings of United States Customs with regard to the manner in which it will handle the personal data that it accesses. These undertakings apply with immediate effect.

It should be noted that the Commission has not entered into any agreement with the United States. Community law confers powers on the Commission to make findings of adequate protection in third countries. The Commission has committed itself to working with the United States' authorities towards such a finding, but the decision will of course depend on a close examination of the information and undertakings to be made by the United States' side.

(1) Council Regulation (EC) No 323/1999 of 8 February 1999 amending Regulation (EEC) No2299/89 on a code of conduct for computer reservation systems (CRSs), OJ L 40, 13.2.1999.

(2) available on the Commission's website on: http://www.europa.eu.int/comm/external_relations/us/intro/pnr.htm.

(3) Directive 95/46/EC of the 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.