Fear of easy transit for terrorists appears to have galvanized political leaders to finish legislation to track airline passengers within the European Union and abroad.
The next round of three-way negotiations between European Parliament, Council and Commission starts Wednesday, with the final scheduled meeting on the 15th and a goal for a year-end pact.
Some camps are far apart on a few key issues, including geographic scope and the length of data storage, but the Paris attacks apparently have made some politicians ready to deal.
“[The socialist and liberal groups] are probably under more pressure and are more willing to discuss,” said Axel Voss, the shadow rapporteur for the center-right European People’s Party (EPP). “But deep in their hearts, they don’t like it.”
The proposed passenger name record system (PNR) would force airlines to report to authorities information including travel dates, itineraries, contact details, ticket, baggage and payment information about passengers entering or leaving the European Union.
Reaching a compromise, however, is complicated because of a European Court of Justice ruling last year that struck down the EU data retention directive, and a pending case before the court about the PNR agreement between the EU and Canada that will address privacy safeguards.
The data retention ruling says the indiscriminate collection of data of persons without any suspicion is not allowed — Sophie in ‘t Veld
“The data retention ruling says the indiscriminate collection of data of persons without any suspicion is not allowed,” said Sophie in ‘t Veld, shadow rapporteur on PNR for the Alliance of Liberals and Democrats for Europe (ALDE).
Meanwhile, Parliament is getting slammed by the Council for delays in adopting a new regime.
“This tool is absolutely indispensable to combat terrorism,” Bernard Cazeneuve, French interior minister, told the Justice and Home Affairs (JHA) Council on November 20. “Not a single French citizen or EU citizen will understand why the European Parliament will continue blocking this essential tool.”
France has threatened to go ahead with its own passenger name records system if Europe can’t forge an agreement soon, according to a document obtained by POLITICO.
Some MEPs from the left have taken offense.
“It’s making negotiations in Parliament harder,” said Birgit Sippel, the Socialists and Democrats’ (S&D) shadow rapporteur for the report. “The silent message is Parliament might be responsible for future attacks, and this is really unfair and makes it hard to come up with a serious decision on this issue.”
Even if the parties agreed on the PNR today, she said, it would be years before it could be implemented across the EU-28 countries.
“The message is we need PNR tomorrow because then next week life for citizens will be much safer, which is clearly untrue,” Sippel said.
But the proposal has dragged on for over five years and remains locked in negotiations between Parliament’s civil liberties committee (LIBE) and Council. Points of contention remain: whether the program should include internal EU flights, how long authorities can keep data that has not been “masked” to make the passenger anonymous, whether information sharing should be compulsory, and what should be the role of data protection officers.
Council wants unmasked data to be retained at least one year; Parliament has so far insisted on 30 days. Parliament wants to exclude flights within the EU flights, while Council adamantly wants them included.
Parliament advocates compulsory data sharing within the EU’s 28 countries. Council wasn’t keen, but now appears willing to compromise. Parliament believes data protection officers should be in place to monitor countries’ processing of passenger information; Council has refused so far, but suddenly appears more amenable.
Within Parliament, the political ground is splitting.
The Greens European Free Alliance (Greens/EFA) and European United Left/Nordic Green Left (GUE/NGL) are unlikely to alter their position on passenger name records whatever happens, but the Paris aftermath could help bring the center-left S&D and ALDE closer to compromise, according to Voss, the EPP shadow rapporteur.
The man trying to bridge the divide is Brit Timothy Kirkhope, the Parliament’s rapporteur and member of the European Conservatives and Reformists (ECR).
A compromise, circulated on November 25, is getting closer to the positions of LIBE’s dissenting MEPs from S&D, ALDE, GUE/NGL and the Greens/EFA, though it may not muster enough support from the LIBE committee.
The center-right EPP and ECR are the only groups that have consistently backed Kirkhope.
“I’ve got the best compromises I can think of here,” Kirkhope said in an interview. “There’s been movement from the Commission and Council and I’m just waiting for reaction on the new proposals, which bring together all the various things we’ve been doing. On balance we’re getting very, very close. My own feeling is this is now just about ready to roll.”
Kirkhope is sounding out Council on a six-month holding period for unmasked data. That would bring the EU proposal in line with the current EU-U.S. agreement over passenger name records. This has been welcomed by some MEPs, who objected to the one-year demanded by Council.
But even Kirkhope concedes Council is unlikely to go for it. “Ideally I would have liked six months, but I don’t think they will come down that much. Of course they have gone down already.”
An internal Council document and Council sources indicate Council will not support a period of six months. The Council originally wanted unmasked data to be retained for 18 to 24 months.
Kirkhope also wants a review of the whole operation within four years.
“I want some guarantees about that,” he said. “That’s what I’ve been waiting for that from Council and that’s what I’m hoping they’re going to give me. If they give me that, it’s almost impossible for us to fight them further. We’ll have got a lot of what we wanted. On that basis it’s close to being done.”
I don’t want 28 PNR systems, all slightly different, which leaves everybody in a mess — Timothy Kirkhope
The Council will likely allow the review, according to an EU diplomat, who requested anonymity because he was not authorized to speak to the press.
Kirkhope believes if put to a full Parliament vote, PNR would pass. The soonest that could happen would be early next year.
“I am of the view that we are now at the point that the Parliament would approve it,” he said. “The important thing is to get an agreement as soon as possible, before any individual countries set up their own PNR systems with their own safeguards which frankly won’t be as good. I don’t want 28 PNR systems, all slightly different, which leaves everybody in a mess.”
PNR’s journey has been a turbulent one, with a couple of unscheduled detours over the past decade.
The data-sharing agreement for passengers on flights between the EU and U.S. is on its third iteration. The European Court of Justice struck down the first version in 2006 because it had no legal basis, and the second version, operational between 2007 and 2011, had weaker privacy safeguards than those in today’s agreement.
Meanwhile, the European Parliament referred a new EU-Canada PNR agreement to the European Court of Justice last year to see whether it falls foul of European fundamental rights standards. Parliament said it would not sign the agreement until the court has deemed it legal.
As for the program covering all flights in and out of the EU, Parliament blocked the first attempt in 2013, again because it had insufficient safeguards.
The current attempt to introduce an EU program may also be affected by the European Court of Justice’s decision last year to strike down the bloc’s data retention directive. That law covered customer information held by telecommunications firms, but many insist the ruling should apply to passenger name records.
“We think the EU PNR file in this moment is a breach of EU law. It is in breach of ECJ judgments of the last months and years,” said Cornelia Ernst, a German shadow rapporteur for GUE/NGL.
Giovanni Buttarelli, the European Data Protection Supervisor, also warned in September that the current PNR proposals may fail the proportionality test that brought down the data retention directive.
“According to the available information, no elements reasonably substantiate the need for the default collection of massive amounts of the personal information of millions of travellers,” Buttarelli said.
But LIBE rapporteur Kirkhope rejects this.
“We would have no trouble going through any court and showing that what we are doing is proportional and showing the necessity of this,” he said.
He has support from MEP Monika Hohlmeier (German, EPP), who said, “Countries without PNR are obviously an easier target for terrorists.”
The pressure on the EU to agree to the PNR is coming from all sides. At a press conference with French President François Hollande on November 24, U.S. President Barack Obama weighed in.
“I’m calling on the European Union to finally implement the agreement that’s been long in the works that would require airlines to share passenger information,” he said, “so we can do more to stop foreign terrorist fighters from entering our countries undetected.”
This article was updated to include a link to the document indicating France would go ahead with its own PNR if an EU deal was not concluded soon.