Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-03-12-Speech-3-168"
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"en.20030312.5.3-168"2
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". – Mr President, I should like to add the following to what Commissioner Patten has just said.
Unfortunately the American side was very slow to respond to these requests for information and they only started to take our concerns seriously in December 2002. In the absence of discussions with the United States, the airlines – as Commissioner Patten has already explained – would have been left in an impossible situation. They would have faced a whole range of penalties, starting with the practice of secondary inspections of arriving passengers. That indeed had already started. That meant very long delays at arrival points for hundreds, if not thousands, of legitimate travellers.
That is an option, but is it what we really want? It is certainly not what the airlines wanted, and there was every likelihood that these airlines would have complied with American requirements anyway.
I strongly agree with Members who expressed the view in the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs on Monday that the American way of proceeding by unilateral action and threats of penalties is unacceptable. But not having discussions with the American side would have left them with the data and no means for the European Union side to influence their handling of it. It would have left the airlines open to either US or Member States' enforcement action when they – the airlines – are the wrong target.
If we want to bring pressure to bear it should be on those who can deliver a solution – and that is not the airlines. Our aim has thus been to open up a process of dialogue through which we can influence US practices and obtain assurances from them that will ensure that data is adequately protected.
The Commission considers that the outcome of the February talks was positive for data protection for the following two reasons. Firstly, we secured US agreement on the further steps to be taken to reach a mutually satisfactory solution that would and can provide legal certainty to all concerned. The second reason is that the United States made a number of significant, unilateral undertakings of immediate application. For example they made undertakings on what data they would not use and how they would handle the data they do use. They confirmed in particular that their data gathering would be limited to flights to, from or through the US.
Clearly we need more time and information from the United States before we can say that we have a solution. We can only be satisfied when we have an arrangement which provides a maximum amount of legal security for all concerned. There are in the meantime transfers of data. Are such transfers legal? Only the courts can answer that question in a definitive way, but I would like to make two points in this respect.
Firstly, the airlines have to meet their obligations as data controllers and they must inform passengers fully, in line with Article 10 of the Directive, and obtain their consent for the processing of sensitive data in line with Article 8.
Secondly, legality has to be examined from the angle of the need for adequate protection for data that is transferred to a third country. Transfers may however benefit from one of the exceptions in Article 26(1) of the Directive. For example, certain transfers may be necessary in order to fulfil a contract with a data subject – in other words the contract to fly the passenger to the United States. – Since such an exception could be challenged, however, this solution lacks legal security. Moreover, although exceptions may be legal for specific transfers, they offer no guarantees that the data will subsequently be protected.
Article 25(6) of the Directive, on the other hand, provides for a finding by the Commission that a third country ensures adequate protection for transfers of personal data from the European Union. An Article 25(6) decision by the Commission is therefore much to be preferred to relying on the exceptions to the adequacy rule because it means that the data go on being protected. The prospect of such a decision and the legal security that it brings allow the Commission to engage the third country concerned in discussions about the protection provided, and hold it to ensuring a high standard.
Moreover, Article 25(6) decisions always contain safeguard clauses which can be triggered if protection does not in practice match up to the standards expected. They can also be unilaterally abrogated if necessary.
The new American law requiring airlines operating flights to, from or through the United States to grant electronic access to their passenger name records raises a number of policy issues: firstly, the fight against terrorism; secondly, the right to privacy; thirdly, the ability of our airlines to compete; fourthly, the security and convenience of legitimate air travellers; fifthly, the relationship between Europe and the United States in general.
Finally, an Article 25(6) decision is a Community procedure, producing a result that is binding on all Member States. It is very much to be preferred to leaving Member States to act in dispersed order. It is worth mentioning that one or two Member States have or are planning measures very similar to those in place in the United States.
On my own behalf and also on behalf of my colleague Mr Patten, I should like to invite the House to take a positive view of the Commission's actions of 17 and 18 February. The American side has committed itself to a process which recognises our legitimate interest in their data protection practices, under which they subject their arrangements to our scrutiny according to our standards. That I think is a major step forward. Of course the United States still must provide the elements needed for the Commission to make such an adequacy finding.
As a comitology decision, an adequacy finding under Article 25(6) is always brought to Parliament before being finalised, as was also explained by Mr Patten. I certainly look forward to discussing this further with Members of Parliament on a future occasion.
It is necessary to pull all these strands together and to strike an appropriate balance. It is also necessary to be practical and not theoretical. My first message is that we should work together for an outcome that achieves the best possible results, responding to the need to combat terrorism while respecting data protection in practice, without damaging the commercial interests of our airlines and without inconvenience for legitimate air travellers.
The Commission very much welcomes the opportunity to address Parliament on this matter. Underlying the technical issues are some fundamental questions about security and civil liberties which all democracies have to ask themselves. Discussions amongst elected parliamentarians on such issues is essential.
The motion for a resolution before Parliament criticises the Commission for not informing and consulting Parliament sooner. The Commission accepts this reprimand. It had no intention to conceal. It was more a question of when to bring this matter to the attention of Parliament and in what form.
We only have a short time. Rather than making a lengthy factual statement I will draw the attention of Parliament to two documents which the Commission has made available.
The first document is the joint statement which is the agreed account of the outcome of talks between senior officials of the Commission and US Customs on 17 and 18 February 2003. The second document is the statement by US Customs of 4 March which gives undertakings as regards the handling of sensitive data.
It is necessary to correct a misunderstanding. As my distinguished colleague Commissioner Patten has just said, many reports referred to an agreement or a decision. I stress that there is no agreement, there is no decision. It follows that, at this moment, there is no legal basis. There have been discussions and the US side has given certain assurances. This is the first step in the process. Both sides are committed to finding a more legally secure solution in due course. These discussions are necessary.
Why are they necessary? Because of information received about new US requirements, the Commission found it necessary last November to inform EU airlines and the related reservation systems that it was not clear whether they could provide the information required by US law without being in breach of their data protection obligations under EU law. In order to answer that question, it was necessary to obtain information from the US side, in particular as regards the use of the data and the conditions under which they would be processed."@en1
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