The European Commission adopted two initiatives to put a legally sound framework in place for the transfer of passenger data to the United States. One initiative would terminate the existing agreement while the other would authorize opening talks with the United States.
These initiatives are the first European answers to correct the legal basis for the agreement with the US that was struck down by the European Court of Justice on 30 May 2006.
The Court ruled that the Article 95 EC-Treaty was not an appropriate legal basis for the transfer of PNR data which are essentially aiming to ensure public security and activities by public authorities in areas of criminal law.
As the agreement with the United States remains in force under international law for a period of 90 days after it is denounced by either party, the Commission recommends to the Council to terminate the agreement with the US before the end of this month.
At the same time the Commission asks the Council for authorization to open negotiations for an agreement with the United States on the use of PNR data to prevent and combat terrorism and transnational crime, including organized crime.
With the adoption of these initiatives only two weeks after the Court ruling, the Commission underlines its willingness to fully respect the Court’s judgement and its commitment to continue the fight against terrorism while respecting fundamental rights and freedoms.
The Commission is working closely with the other institutions involved in order to ensure full compliance with the Court ruling.
The Commission recommends that the Commission and the Council act together to denounce the current PNR agreement with the United States.
Once notified through diplomatic channels the agreement will be terminated 90 days after its notification to the United States.
At the same time the Commission recommends to the Council to give authorization to open negotiations for a new agreement with the US on the basis of Art. 38 of Title VI, Treaty on European Union. Title VI (3rd Pillar) is the correct legal environment to conclude an International Agreement for matters dealing with public security and criminal law matters.
The Commission is in favor of an approach whereby the current agreement is replaced by a new one having a correct legal basis in compliance with the ruling of the Court. The content of the current agreement has not been criticized by the Court and should therefore continue to offer the same level of safeguards regarding the legal certainty for air carriers, the respect of human rights and the purposes for which PNR data may be used. To protect public security and the economic interests of European air carriers this new agreement should replace the current agreement when it will be terminated, i.e. 30 September 2006.
The Commission wanted to launch these initiatives without delay and will continue to work with all the parties concerned over the period permitted by the Court to put in place the measures required by the ruling.
In that respect the Commission counts on the competent authorities of the United States to ensure commonly a high level of security, whilst continuing to ensure the smooth functioning of the commercial activities of air carriers without lowering the data protection standards which are currently in place.