Despite opposition from the European Parliament, the European Commission has formally decided to declare the transfer of passenger data between the EU and US to be satisfactory.
After dialogue and negotiations, the transfer is now in force. The Commission, via its representative for the internal market, Fritz Bolkestein, decided to grant approval to the data transfer despite the Parliament's disapproval.
Bolkestein said that a negotiated solution is never perfect, especially when it was created while working under a law adopted by the US Congress. He added that the EC wasn't looking for a confrontation with the European Parliament, who, he said, had helped it to obtain improvements from the US, due to the strong political pressure the Parliament had exerted since March 2003.
The EC has judged that the conditions under which the data, contained in the reservations systems of the airlines, will be transferred and stored are "adequate". The Parliament, despite numerous concessions accepted by Washington (34 rather than 39 types of data, length of time the data can be stored reduced to three and a half years) is sticking to its guns for a reason: the data transfer agreement breaks EU law, they say.
One sensitive issue that has arisen is the ability of the US Secretary for Homeland Security to communicate the data to "third countries" - making the agreement even more legally uncomfortable, according to MEPs.
The Parliament has stated its anti-agreement position to the EC and the European Council repeatedly – on 21 April, the MEPs decided to reject the deal outright and call on the European Court of Justice to decide the legality of the Brussels-Washington agreement. A vote on the subject was won by 276 to 260.
The European Council then played on the supposedly "pro-Nato" stance of the new countries to have joined the EU on 1 May, by trying to convince the 162 new MEPs who took up seats in the European Parliament. It didn't work.
On 4 May, MEPs refused to carry the EU's diktat – with the anti-agreement grouping winning by a wider majority – 343 to 301.
Bolkestein explained that now there are two formalities to be finished off: editing a final decision on the acceptance and signing a bilateral accord pushing the US to respect their obligations. It's the European Council who will have to be the last body to validate the last point.
It will include a clause which validates what has been happening since March 2003 – namely that the antiterrorist services of the Department of Homeland Security will be able to get their hands directly on the passenger files.