Data protection (debate) 
President
The next item is the Council and Commission statements on data protection.
Paula Lehtomäki
Mr President, ladies and gentlemen, matters relating to data protection have had a high profile during the Finnish presidential term. On the one hand, the Presidency has encountered challenges relating to the subject and previously known to us, such as taking forward the Framework Decision on data protection under the third pillar. On the other hand, we have faced situations where the Presidency has had to respond quickly and as the circumstances have demanded. Examples of this are the negotiation of the new agreement on passenger name record (PNR) data with the United States of America, and the matter of bank transfer data by SWIFT.
The Finnish Presidency is aware that the European Parliament has said in several contexts that it considers the Framework Decision on data protection under the third pillar and its speedy adoption to be very important. The proposal for the Framework Decision has been one of the priorities of our Presidency in the area of justice and home affairs. It was our ambitious goal to reach agreement on the Framework Decision during Finland's term.
We have taken much time and trouble this autumn to take this proposal for a Framework Decision forward. During our term the first reading was brought to a conclusion, and it went through a second and third reading. In addition, on several occasions the Article 36 Committee and the Permanent Representatives Committee were asked to look at individual questions relating to the matter.
Despite these efforts, the timetable proved too tight. Obviously, consensus will not be reached now during the Finnish Presidency, and the debate on the Framework Decision will be taken up in the German term.
The proposal for a Framework Decision is a broad and multilateral package, whose impact on police cooperation, as well as cooperation on crime and the protection of data of those registered, will call for careful deliberation. The difficulty with it is that certain crucial questions remain unanswered, though much progress has been made. For example, questions relating to the scope of the Framework Decision have not yet been resolved. The main question that remains unanswered is whether the principles of data protection in the Framework Decision would also apply to the processing of data within the Member States, or whether its scope should be limited to cross-border information, which is what some Member States are in favour of.
It was also the task of the Presidency this autumn to negotiate a new agreement on the surrender of PNR data to the US authorities. The agreement that emerged from the talks corresponds very much to the content of the 2004 agreement. The airlines can still operate, and they can still hand over PNR data to the United States. The United States, for its part, is committed to guaranteeing an adequate level of data privacy in the future.
The agreement signed in mid-October is temporary and valid until the end of July 2007. The intention is to have by then a new, more permanent arrangement for handing over PNR data. We will aim to start talks on this, which are not expected to be easy, as soon as possible. A new negotiating mandate is being drawn up at the moment.
The significance of the new PNR agreement to be negotiated in 2007 is underlined in the light of the information that has recently been made public with regard to the Automatic Targeting System (ATS) employed by the US authorities. This system collates information from various different sources, including PNR data on air passengers arriving in the United States. Its purpose is to make it easier to prepare risk assessments on passengers.
The existence of the ATS has been known to the Council and the Commission since the joint review of the first PNR agreement's application was conducted in September 2005. The US Department of Homeland Security did not make the system known to the public, however, until 2 November this year, when the news was published in a US official organ.
The compatibility of the current and future PNR agreement and the ATS is being examined at present, especially with regard to how long information is to be kept, as well as the handing over of data and its relevance. The Presidency and the Commission have sent the US authorities an official enquiry on the matter. The European Parliament will be advised of the outcome in due course.
Franco Frattini
Mr President, as you know very well, on 19 October the European Union and the United States concluded an agreement for the processing and transfer of passenger name record data by air carriers to the United States Department of Homeland Security.
The Government of the United States confirmed a set of undertakings which guarantee the protection and security of PNR data. Against this background, concern has been expressed recently following information published last month by the Department of Homeland Security on the so-called Automated Targeting System. This is a security-screening system making a risk assessment of international travellers, relying among other things on PNR data. The information published by the Homeland Security Department reveals a significant difference between the way in which PNR data are handled within the Automated Targeting System and a stricter regime for European PNR data according to undertakings given by the Department of Homeland Security.
As the President-in-Office has just said, we have today sent a letter to the United States Government to request formal confirmation that the way EU PNR data are handled in the ATS is the one described in the undertakings. The current EU-US agreement on PNR data will expire in July 2007. At the beginning of 2007 the Commission will recommend the Council to mandate the Presidency, assisted by the Commission, to negotiate a new PNR agreement with the United States. I am sure that any new agreement will provide for a high level of data protection for all PNR data transferred under the agreement, while protecting the security of citizens.
I will keep the European Parliament informed on the preparation of the draft mandate, which I expect to get before the end of March 2007, otherwise taking the position that travellers must be informed when their PNR data may be transferred to competent authorities of third countries. The Department of Homeland Security undertaking expressly acknowledged this.
We need an international agreement with the support of the public on both sides of the Atlantic and of the democratic representatives of the peoples. I have often said that there is an important balance to be struck between measures to ensure security, on the one hand, and the protection of non-negotiable fundamental rights, on the other.
The Commission, assisting the Presidency in the negotiation of future PNR agreements with third countries, will ensure that security issues are properly addressed through the transfer and appropriate use of PNR data, while protecting personal data as guaranteed by Article 8 of the Charter.
Finally, a high level contact group was set up at the EU-US ministerial troika meeting on 6 November 2006 to discuss information sharing and protection of personal data for law enforcement purposes. There is a clear need on both sides of the Atlantic to work more closely together on these issues.
I would also be in favour of close and continuous contacts between this new contact group and both the European Parliament and the Congress of the United States. We need a broader perspective and a long-term vision to tackle, together with the United States, the terrorist threat, while protecting the fundamental rights of individuals without putting them at risk.
More generally, on a subject just mentioned by the President-in-Office, I also remain firmly committed to encouraging and continuing to encourage the Council to approve as soon as possible the proposal I made 15 months ago on data protection under the third pillar. I count on the support of the incoming German Presidency on that.
We face a common problem and threat. Terrorism will continue to exist in the coming months and years. Only a very solid strategy and balanced cooperation with our main international, transatlantic partner will make it possible to reduce if not eliminate this modern form of totalitarianism against democracy.
Charlotte Cederschiöld
on behalf of the PPE-DE Group. - (SV) Mr President, we in the Group of the European People's Party (Christian Democrats) and European Democrats support Mrs in 't Veld's recommendation relating to the use of passenger data. We also prefer the Canadian agreement to the US one. We hope, moreover, for improved transatlantic cooperation and have faith in Commissioner Frattini's commitment in this regard. We are not, however, participating in this debate in order to comment on newspaper articles, but instead in order to force the pace on the Commission's decision on data protection rules, including when such rules have knock-on effects for the justice ministers in the third pillar, rather than just when we place restrictions on company rights under the first pillar, as at present.
Fundamental rights must provide consumer protection, irrespective of the structure of the treaty. The European Union's Charter of Fundamental Rights covers data protection, as does the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, which also provides for a right to protection of one's private life. It is also a principle supported by all three of the EU institutions and all the Member States. All of the Member States have legislation on data protection and a data protection authority. We need all of this at EU level too. Parliament and the Council have been in agreement on this since as far back as September, but nothing has yet happened.
The EU has made progress in its fight against crime and terrorism. What is needed next is data protection at the level of the case law of the Council of Europe or, best of all, at the level of the Member State with the best data protection. Parliament always plays its part in the development of the field of rights. The Visa Information System, the Schengen Information System and Europol are no exceptions.
Any institution standing in the way of data protection is in danger, in practical terms, of being an obstacle to effectiveness in the fight against crime. It is not 'either ... or', but 'both ... and' that applies in this case.
If the Council backs proportionality and the necessity criteria, why not say so? Is the Council concerned that the European Court of Justice may defend fundamental rights? Which legislation would then be in trouble? When will we get the proposal on data protection in the field of crime-fighting? The Council has a responsibility to answer the people.
Martine Roure
on behalf of the PSE Group. - (FR) Mr President, Mr Frattini, Mrs Lehtomäki, the automated targeting system - referred to as the ATS - by the US authorities constitutes a huge database on European citizens who enter the United States. It highlights once again the different approach that Europe is seeking to adopt on this issue and the growing need for greater protection of Europeans' privacy and personal data.
We believe that the fight against terrorism cannot be effective if we treat everyone like a potential criminal. This system also carries real risks of discrimination. Furthermore, we would like to know how this system operates with the processing of PNR data. Is it going to influence the negotiations on the agreement due in 2007? The data from the ATS automated targeting system are supposed to be retained for 40 years. Do the Americans want the same for the PNR data? Is the PNR agreement finally going to enable Europeans to uphold their rights to protection of their private lives before a US court of law, which is not currently the case? It is therefore crucial for us to embark on a process of parliamentary dialogue with our colleagues from the US Congress in order jointly to define a common approach to the safeguarding of our citizens' right to the security and protection of their personal data.
I should like to remind you that, exactly one year ago today, we were debating data retention in this very Chamber and, as part of that debate, I already mentioned the urgent need for the framework decision on data protection to be adopted under the third pillar. We voted in favour of an amendment to the legislative resolution that provided for data access to be regulated by that framework decision. I must acknowledge the genuine efforts made by the Finnish Presidency. A great deal has been done to step up the debates within the Council.
However, we are extremely worried about the turn being taken by the debates between the Member States. We fear the Council stripping this framework decision of its content. We cannot accept an agreement on the basis of the lowest common denominator. The framework decision must guarantee a higher level of data protection by adopting the founding principles of the Community directive in this field and by obviously taking account of the specific nature of police work. Nevertheless, we cannot under any circumstances accept a level of data protection that is lower than the one guaranteed by Directive 95/46/EC and by Convention No 108 of the Council of Europe, which is legally binding on the Member States. The speed necessary for this undertaking must not endanger the quality of the framework decision.
We are anxious to have a frank debate, which will enable us to reach an agreement without doing away with the problematic articles. We stress, in particular, the need to use this instrument in order to deal with the transfer of data to third countries and to private parties. We do, of course, regret not having been informed of the debates held at the Council. We deplore the fact that the opinion unanimously adopted by this Parliament should not obviously have been taken into account as part of the negotiations at the Council.
However, the European Parliament has demonstrated its maturity and its sense of responsibility. Furthermore, we cannot implement the visa information system without having guarantees that a framework decision on data protection will be adopted.
I should like to make it clear that this is not blackmail. We simply wish to reaffirm the determination of a democratically-elected Parliament.
Sophia in 't Veld
on behalf of the ALDE Group. - Mr President, Mrs Lehtomäki gave me an amazing piece of information when she said that she has been aware of the automated targeted system since 2005. I am sure that our colleagues in the United States Congress will be very interested, because they learned about it about a month ago and they were outraged that this system has been in place in secret for four years, against the explicit wishes of the United States Congress. I would like you to explain that, Mrs Lehtomäki.
Secondly, if you have known since 2005, how come the European citizens did not know about it? Frankly, this is not only a clear violation of the PNR Agreement, but a clear violation of the rights of EU citizens. If I look at the scope of this ATS, we are all talking about the fight against terrorism as a justification for collecting these data. Well, look at the text of the proposal of the ATS. This is for employers who want to screen job applicants; it is for companies who want to do an audit; it is for authorities that give out licences who want to screen applicants. It goes way beyond the fight against terrorism and I find it unacceptable.
You rightly inquired of the United States authorities how this ATS relates to the PNR Agreement. But I think you also owe it to the European public to see that this inquiry is published. The European Parliament should get a copy of the letter, and you should make a statement to the press and the European public explaining what is going on with their data.
I would like to know, furthermore, if it is correct that PNR data have been fed into the ATS since 2002, i.e., two years before the PNR Agreement. I would also like to know whether, at the two informal meetings held on 6 November and 13 December, i.e. today, this has been discussed; whether you got an answer from the United States authority; I would like to know if data protection was on the agenda and if so, on what basis. I would also like to get an answer from both the Commission and the Council as to whether, in the future, the European Parliament and the United States Congress will be part of the high-level contact group.
I would also like to know if the Council and Commission are aware of similar databases or programmes in other countries. Suppose, for example, that not our American friends but the Russians were to start such a programme, what would we do? I also think that these cases demonstrate clearly the need not only for a European arrangement for data protection, but a global standard that would protect not just the passenger data but also our bank data, our telecommunications data and heaven knows what other data.
Finally, on PNR specifically, could the Commission and the Council confirm that the push system will be tested, as agreed, before the end of this month? Could they also tell me - because I have been travelling to the United States recently and as a passenger have not been informed at all about the PNR programme or about my rights - whether you can confirm that information will be provided to passengers?
A final question, can the Council confirm that the European Parliament will be formally consulted on the mandate for the future PNR agreement?
Kathalijne Maria Buitenweg
on behalf of the Verts/ALE Group. - (NL) Mr President, I concur with Mrs in 't Veld's views. It is indeed a bit much that you have admitted to having in fact known about this system for over a year. I should like to know whether this was actually discussed in the Council and whether the Commission had been briefed about this. I should also like to know how this has affected the PNR debate. I understand that a number of PNR data are being used for the new system. With regard to the PNR system, a deadline for data storage has been agreed with great difficulty. These data are now being used in a new system where they will subsequently be stored for 40 years. I wonder whether this agreed deadline applies to them.
There are already strange developments taking place, also involving these PNR data. We have all agreed on this maximum storage and on the strictly defined purposes for which they may be used. There is also a Side Letter, a letter by the Americans in which they state, 'oh, what the hell, if we can use it for other things after all, we will do so for other risks too; if we want to use more than those 34 information fields, then we will'. The Council's only response was: OK, but surely we want human rights to be respected and you have not said anything about the status of this letter either. Do you really think that this letter is there for no reason, or is this now the letter indicating the way in which the Americans will be using these data after all? I should like to hear your thoughts about the status of this letter.
Also, if you, this time round as well, request only what the Commission calls a formal confirmation to say that things have been formally confirmed; the Bush Administration will then no doubt respond by saying that they abide by all the rules. Will you now also examine whether it is technically really feasible for these PNR data to be actually stored for this limited period of time? Will you check whether this is possible? As I see it, though, the system makes no provision for this whatever.
I should, in fact, like to study the PNR mandate, for this will need to be written in the next few months and I hope that it will be discussed here in this House. Finally, I have heard that bilateral talks are also being held between the United States and a number of Member States about a new PNR agreement. If this is the case, then we are, of course, sabotaging our own efforts completely, for the United States will then be striking a deal with the country that is the most accommodating, upon which the rest of us will have no choice but to go along. Has this been discussed in the Council and can you confirm that no bilateral agreement will be concluded between the United States and an EU Member State, whichever state this may be?
Paula Lehtomäki
Mr President, ladies and gentlemen, this debate has first and foremost dealt with work on the EU Framework Decision, and, as I said in my opening speech, this work will continue during the German Presidency. We have worked hard to establish the Framework Decision, but unfortunately we will not now have it ready this autumn.
Regarding exchanges of information between the Union and the United States of America and the debate now being conducted on this issue, I must first say that the Member States, as independent countries, will obviously make agreements with other countries on matters within their own sovereign competence, as they are free to do, and the Council does not have the power to interfere in all bilateral relations between Member States, and will not adopt a position on them.
As regards in particular the Union's PNR agreement and the closely connected US ATS scheme, as I mentioned in my opening speech, we are now examining how compatible ATS is with the PNR system. We have therefore asked the United States to give an account of this compatibility, and just yesterday, at a meeting of the Senior Level Group between the European Union and the United States of America, we, as the Presidency, voiced a special concern that the ATS might not comply with the provisions of the PNR agreement and the undertakings. We have thus focused attention on the issue in a number of ways, and we are awaiting an answer to this enquiry from the United States. As I said, when the answer comes and the talks are proceeding, the European Parliament will be informed of developments, as Commissioner Frattini also mentioned in his speech.
Kathalijne Maria Buitenweg
Mr President, I am especially curious. Madam President-in-Office, you say that you are now worried about the fact that there might be incompatibilities between the new system and the PNR, but you also said that you have known about the system since 2005. The new PNR agreement is from after that date, so why were you not worried about it when you knew about it but were still making an agreement with the US?
Paula Lehtomäki
Mr President, I assume that you wanted me to comment on this, even though we actually have Council question time in two-and-a-half hours' time this afternoon. I will say that this compatibility between the ATS and PNR is now being looked into, and we have to remember that, as it is only now being looked into, there is nothing to suggest that they may not be compatible. We should not automatically assume that they are incompatible; the matter is being looked into.
Sophia in 't Veld
Mr President, I note with regret that once again the Council has not replied to a single question. I would like to receive replies to my questions in writing and I would like to know now whether we can get the text of the Council's inquiry and whether the Council will inform European citizens about it.
Paula Lehtomäki
Mr President, as I said, the most important thing at this stage is obviously how the United States of America responds to the enquiry that we and the Commission have made. With regard to procedure otherwise, Parliament may ask the Council questions in an alternative way.
Franco Frattini
Vice-President of the Commission. - (IT) Mr President, ladies and gentlemen, as the representative of the Presidency has just said, many questions will be answered when we receive a detailed reply to the joint letter that we sent today.
I can tell you that we made a specific request. If the Presidency agrees and if Parliament makes a formal request, I have no problem with providing you with a copy of the letter that has been sent to the US Administration. Everyone will thus be able to see the terms of our demands. I can also add that we are not investigating the United States. The United States is a sovereign country and our main international ally in the fight against terrorism. We want to know whether an agreement is being kept or not. This is a very simple point, and I hope we will get a reply quickly.
The PNR system will be tested before the end of December, as planned. If the agreements are not being kept, we will see when the time period expires, and so I think we will also have a chance to evaluate this first test, which was confirmed in the agreement signed on 19 October.
It is clear, then, as Mrs in 't Veld has pointed out, that the information for passengers must be given to them, since it is necessary information that has been agreed upon, and the PNR test that is to be carried out is also intended precisely as a response to this commitment made by the US authorities.
I believe bilateral agreements between the United States and Member States should be avoided and that the Member States should be persuaded to wait for and to cooperate with the European negotiations. European negotiations clearly have a great deal more force than individual Member States would have.
The more encouragement and political support we receive as European negotiators, the greater our chances of success will be. It is clearly in the United States' interests to have a strong political negotiating partner, but not to have one that considers the US to be a danger. I do not consider the United States to be a danger, and I shall therefore commit myself to European negotiations, which are, I believe, much better than national negotiations. I am also in favour of the European Parliament and the US Congress being involved.
Mrs in 't Veld has brought up a subject that is, itself, also political. My view is that if the European Parliament and the US Congress together ask to be kept informed or, in any case, to collaborate in the work of the high-level group that we have set up, I for one will agree, but of course I am not the only member of this high-level group.
It would, however, be useful if the two parliaments - this House and Congress - could work together. This all needs to happen quickly because, if we want to negotiate a new agreement by early spring, we shall have to ensure that the two parliaments are informed of our intentions by the end of February or the beginning of March.
The final point concerns our negotiating mandate. I have stated on several other occasions that I have no objection to informing Parliament first about the draft negotiating mandate that the Council will give us for the new PNR. It does not depend on me alone, but I think informing Parliament is also a way to achieve a stronger political consensus when we come to negotiate with the US side.
President
The debate is closed.

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