It had already been assumed that the European Commission and the Council of Ministers would go ahead with the EU-US airline data (PNR) transfer agreement (.pdf) despite the European Parliament’s decisison to wait for a Court of Justice ruling. But now Edward Hasbrouck has it in writing: according to a US Department of Homeland Security transcript of a joint press conference with US Secretary of Homeland Security Tom Ridge, European Commissioner of Justice and Home Affairs, Antonio Vitorino apparently answered to the question whether he knew how to proceed if the court decision would (as expected) deem the EU-US agreement in violation of EU data protection regulations (and possibly in breach of Article 8 of the European Convention on Human Rights) –
“Well, first of all, I would like to clarify that the conclusion of this process has not yet been done. And this week, the Commission will take a decision on Wednesday. And next Monday, the Council of Ministers will take the final decision. I don’t want to anticipate those decisions, but likely those decisions will be in favor in the sense to go ahead with the adequacy finding statement and with the international agreement. That will most likely change the nature of the case, the court case, that has been raised by the Parliament. But I see no obstacles for the proceedings, according to what has been agreed, until the court takes a position in some time.”
The PNR agreement appears to become a tricky legal issue in the run up to the European elections – no one seems to know exactly what the appropriate legal procedures are in this case. The Parliament challenges the Commission’s decision to only give it an advisory vote on this matter – although, according to a diplomat quoted by EUpolitix, there are precedences for such a decision. But even so – flatly disregarding a Parliamentary vote in a matter of such importance does not just look bad – it significantly strains the EU institutions’ relations. According to EUpolitix, Dutch MEP Johanna Boogerd-Quaak – who wrote the Parliament’s rejection – said
“Should [governments]? decide to conclude the agreement without waiting for the opinion of the European Court of Justice? I believe it would be essential that parliament take legal action in order to protect parliamentary prerogatives?.
I don’t know how the Commission’s and the Council’s adequacy finding with respect ot the draft agreement could alter the Parliament’s de jure case – but law is often powerless in light of established facts. A signed and possibly already enforced agreement with the US may simply prove impossible to change.
Establishing facts. That’s the executive’s prerogative. Yet I have doubts regarding its adequacy. Do I have to mention that the PNR agreement was not the only privacy limiting issue on Commissioner Vitorino’s agenda in Washington?