Parliamentary president Pat Cox now has to decide whether to
make the referral or defer the matter until Parliament can consider
the issue for a fourth time, only this time it would be with the
newly elected MEPs.
Airlines operating passenger flights to, from or through the US
have been transferring passenger data contained in their
reservation and departure control systems to US Customs since March
last year, in order to comply with US anti-terror requirements.
The transfer has been controversial, not only because the US
does not meet general EU data protection requirements, but because
an agreement setting out the terms of the transfer has also been
found wanting.
The problem in Europe is that its Data Protection Directive of
1995 provides that personal data may only be transferred to third
countries if the specific country ensures an adequate level of
protection. The Commission decides which countries have adequate
laws but, to date, only a few countries – not including the US –
have met the criteria.
Lengthy negotiations between the Commission and the US came to a
head in December last year when the Commission announced that an
agreement had been reached that would provide EU air passengers
with sufficient data protection.
But the decision to make this "adequacy finding" was largely a
political one, and civil liberties groups and the European
Parliament have taken issue with the Commission announcement,
arguing that it, and the international agreement upon which the
finding was made, do not provide sufficient protection, in terms of
EU law, for European passengers travelling to the US.
The criticisms have been consistent, culminating in April in a
vote by MEPs to refer the agreement to the European Court of
Justice for an opinion.
Nevertheless, despite the objections, the Commission and the
Council gave formal approval to the adequacy finding in May, and
formally concluded the international agreement with the US a few
weeks later. This effectively rendered the Parliamentary court
referral null and void.
MEPs were outraged at what they saw as the bypassing of the
Parliament, and gave warning that they were likely to take further
court action against both the adequacy finding and the
agreement.
The first steps towards such action have now been taken.
According to civil liberties group European Digital Rights (EDRi),
on 16th June the Parliament's legal affairs committee voted by a
two-thirds majority in favour of asking the European Court of
Justice to annul the adequacy finding, and approved the referral of
the international agreement to the Court by 19 votes to 14.
On the same day, leaders of the main Parliamentary groups voted
in favour of the referrals.
Pat Cox, the current President of the Parliament, now has the
awkward task of deciding whether to make the referral now, or to
wait until newly elected MEPs can consider the matter. The new
Parliament will not meet until July.
