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.