The vote, which took place one day late to allow time for extra debate, was only narrowly in favour of the referral, MEPs voting by 276 - 260 for the referral (with 13 abstentions).
The background
The controversy surrounding the transfer of air passenger data began shortly after the terrorist atrocities of September 2001, when the US passed its Aviation and Transportation Security Act.
This new law introduced the unilateral requirement that airlines operating passenger flights to, from or through the US provide the US Customs Border Protection Bureau, upon request, with electronic access to passenger data contained in their reservation and departure control systems.
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. Transfers of data to other countries need additional guarantees.
Airlines found themselves in a catch-22 position: to fly from Europe to the US, they would need to comply with either European law or US law, but they could not find a way to comply with both. So European and US authorities negotiated.
The European Commission agreed, temporarily, to waive aspects of its privacy regime and, on terms agreed with the US, data relating to transatlantic passengers has been transferring to US Customs since 5th March 2003.
Following delicate negotiations between the Commission and the US Department of Homeland Security, the Commission announced in December that it had reached agreement with the US. This placed limits on, for example, the nature of the data to be transferred and on the period for which data would be stored.
These arrangements have yet to be put into formal terms but have been strongly criticised by civil liberties groups and, in March, the European Parliament's Civil Rights Committee.
European Parliament
On 31st March MEPs gave the Commission a deadline of 19th April by which to withdraw the passenger data deal, and warned that they would appeal to the European Court of Justice if the Commission did not make changes. At a plenary session of the Parliament on Monday Internal Market Commissioner Frits Bolkestein announced that the deal would stand.
"The Commission does not consider that the international agreement amends the data protection directive", he told MEPs, adding, "The international agreement is necessary".
He then requested that a vote on whether to refer the issue to the Court of Justice be delayed by one day, so that a new concern raised by the Parliament could be discussed with the US authorities. This issue, relating to the transfer of passenger information from the US to third country enforcement authorities, had only been highlighted at the last minute.
Pat Cox, the President of the Parliament, agreed to postpone, and the vote was re-scheduled from 20th to 21st April.
In the end, and despite heavy pressure on MEPs from their respective governments, the Parliament narrowly voted to refer the issue to the Court of Justice.
A ruling against the Commission may force it to redraft the agreement – or it may not. The US is, after all, able to renegotiate the deal with individual Member States directly. In any event, while the Court process rumbles on, so too does the informally agreed transfer of air passenger data to the US.