With the approval on 17 May 2004 of the transfer of airline passenger's personal data to the U.S., the Commission and the Council of the European Union have bluntly bypassed the European Parliament and Court of Justice.

Daniel Cohn-Bendit, head of the Green/EFA Group in the European Parliament, said the decision was "ignoring the declared will of the Parliament in an unprecedented way". Commission and Council agreed on Monday to hand over up to 34 personal data items from the Passenger Name Record (PNR) for every passenger flying to the United States from an EU country. The Council, composed of the EU's 25 Foreign Affairs ministers, adopted the agreement without debate, only a few hours after the Commission had officially passed a so-called adequacy finding, claiming that the data would find sufficient protection once it has been transferred to the U.S. The agreement will be signed next week in Washington.

A last effort of the EU Council to reach agreement with the European Parliament about the transfer of airliner passenger's personal data (Passenger Name Record; PNR) to the U.S. failed on Tuesday 4 May. With a 343 to 301 majority, Parliament decided not to vote on the Council's proposal to treat the matter as an 'urgency procedure'. Having lost already two votes in the Parliament on the transfer, the Council had hoped it could make use of the singular historic situation where 162 non-elected observers to the Parliament from the new member states had gained member status for one single session, extending the plenary session to 788 members.

By bringing forward the urgency request, the Council tried to turn over the former votes. They hoped they could convince the presumedly inexperienced MEPs from the new member states that the transfer was necessary to ensure transatlantic travel, and that it was protected by sufficient safeguards.

Today, 21 April 2004, the European Parliament has voted to take the European Commission to court over the agreement with the United States Department of Homeland Security on the transfer of air passenger's personal data (PNR) to U.S. authorities. The Strasbourg Court is now to examine whether the Commission, when making the deal, exceeded its powers and acted in disrespect of EU Data Protection legislation.

After a major controversy, the project for a recommendation to ask the opinion of the European Court of Justice was adopted with a small majority of only 276 votes against 260. The Parliament's biggest Group - the centre-right wing PPE/DE, counting 232 of the House's 626 members -, opposed the recommendation, as well as the 29-strong delegation of the UK Labour Party and presumably a handful of German Social Democrats.

The European Parliament has rejected the existing 'agreement' between the USA and the EU on the transfer of airline passenger data. During a plenary session on 31 March Parliament adopted a resolution prepared by MEP Johanna Boogerd-Quaak.

The resolution calls upon EU Member States to require airlines and travel agencies to obtain passengers' consent for the transfer of data and asks the EU commission to withdraw the draft decision which is the current 'legal' basis for the transfer of data. Parliament criticizes the Commission's decision because it goes 'against the principles of proportionality and of data quality' and 'does not grant all passengers the protection which is afforded to US citizens'. In the resolution the Parliament reserves the right to appeal to the Court of Justice when the European Commission finalizes its agreement with the USA.

The European parliament's committee on Citizens' Freedoms and Rights, Justice and Home Affairs is preparing to vote on a proposal by MEP Johanna Boogerd-Quaak to reject the draft decision of the EU Commission under which airline passenger data are transferred to the US Bureau of Customs and Border Protection.

The proposal calls upon EU Member States to require airlines and travel agencies to obtain passengers' consent for the transfer of data and asks the EU commission to withdraw the draft decision which is the current 'legal' basis for the transfer of data.

The proposal calls the draft decision "contradictory, since it fails to take into account the CAPPS II system (which involves the systematic assessment of all passengers by means including recourse to private information services) but at the same time it authorises the use of

The UK civil liberties group Privacy International, in co-operation with European Digital Rights, the Foundation for Information Policy Research and Statewatch, has published an analysis of the EU-US negotiations on the transfer on passenger information (PNR). The report titled 'Transferring Privacy' describes how the European Commission leaves European privacy rights at the mercy of the U.S. Department of Homeland Security.

According to the report the European Commission has 'not assured adequate protection requirements, clear purpose limitation, non-excessive data collection, limited data retention time, and insurance against further transfers beyond the Department of Homeland Security'. The report also points to the insufficiently independent privacy officers on the US side that will process complaints from EU passengers and a retention period of

MEP Marco Cappato has revealed a letter EU Commissioner Bolkestein sent to Tom Ridge, the U.S. Secretary of Homeland Security. The letter was sent on 18 December, only two days after Bolkestein had given his presentation in which he tried to mislead the European Parliament on the true nature of the agreement on the transfer of Air Passengers personal data to U.S. agencies.

Most interesting is the subtone of the letter, in which Bolkestein behaves like an ally of Ridge against the forces wanting to prevent the transfer: "On my return from Strasbourg (...), where the initial reaction from members of the European Parliament was relatively balanced, I would like to thank you once again for your personal commitment (....) to the conclusion of our discussions. I share entirely your view that we have set a good standard here for EU/U.S. cooperation and I hope we can keep it up."

Commissioner Frits Bolkestein concealed important details on the draft agreement reached with the USA on the transfer of Passenger Name Record Data (PNR) to the U.S. Bureau of Customs and Border Protection when reporting to two Committees of the European Parliament four weeks ago. This is what Bolkestein's spokesman Jonathan Todd has admitted in an interview with German public television station WDR.

On 16 December 2003, speaking to a joint session of the EU Parliament's Legal Affairs and Interior Affairs Committees, Bolkestein claimed that the use of EU citizen’s personal data in the CAPPS-II system was explicitly exempted from the agreement the negotiation group he heading had just reached with U.S. authorities. He made the point that this exclusion was part of 'important concessions' of the U.S. side, prerequisite to the Commission's agreement to the transfer of PNR data to the U.S.: "The arrangement will not cover the US Computer Assisted Passenger Pre-Screening System (CAPPS II)." And: "In concluding my last round of discussions with Mr Ridge, I informed him that in the light of the narrower uses for PNR, the exclusion for now of CAPPS II and all the other improvements they had made, I was prepared to propose that the Commission make a finding of adequate protection with regard to transfers of PNR to the US Bureau of Customs and Border Protection."