On April 20th the European Parliament will take the final vote on the EU-US Agreement on the transfer of Passenger Name Records. The pressure to adopt the Agreement is huge. The supporters of the Agreement claim it is absolutely essential, and that a bad agreement is better than no agreement. However, the urgency is not as straightforward as we might think.
The EU-US Agreement was signed in July 2007. It was then for Member States to ratify the Agreement. However, by the entry into force of the Lisbon Treaty on 1 December 2009, several Member States had not ratified the Agreement, and many others ratified only at the last moment. So for two and a half years the Member States were in no hurry at all to ratify an Agreement they now claim is essential.
Furthermore, the strong pro-Agreement lobby hides from sight the fact that enthusiasm for the Agreement is not equally shared between all Member States. Germany and Austria did not endorse the 2011 Agreement in the Council, France did not vote and Denmark has no vote on police and justice cooperation.
Denmark has a special position in the EU Treaties, as it does not participate in the chapter on police and justice cooperation. The EU-US PNR Agreement will not apply to Denmark, unless it requests an “opt in” by way of national referendum. It seems unlikely that the Danish government will call for a referendum on this Agreement. Why does Denmark push hard for an agreement that it is not a participant to?
The urgency to adopt the EU-US Agreement is in stark contrast to the complete absence of any urgency in the case of PNR transfer to other countries. The EU-Canada PNR Agreement has lapsed in 2009. Data have been transferred unhindered without an adequate legal base ever since, but the Commission and the Member States seem to be in no hurry to negotiate a new Agreement. Other countries like Japan, Qatar and South Korea have requested the Commission to negotiate an agreement, as they will collect PNR data as well. However, the Commission has refused for years to negotiate, claiming it “does not have the capacity”. Air carriers are in legal limbo and urgently looking for legal certainty, but the Commission and Member States are in no rush to ensure a proper legal base for the transfer of PNR data. One wonders if they will be equally lax if countries like China or Russia will start the collection of PNR data.
So Member States and the Commission are not exactly consistent and coherent in their calls for agreements with third countries. The push for an EU-US agreement seems to be driven mainly by the concern for transatlantic relations. True, Europe and the United States have a special relationship. But diplomatic relations cannot take precedence over the rights of our own EU citizens. The primary duty of the EU institutions is to uphold European laws and protect the rights of European citizens.