Attempts to craft new passenger data deal fail

The European Commission and the US have failed to agree a new deal on airline passenger data before a European Court of Justice-imposed deadline of 30th September. Discussions will continue on a potential deal on 6th October.

In the aftermath of the attacks of 11th September 2001 the US requested that airlines flying passengers from Europe into that country provide information on all passengers. Following negotiations the Commission agreed to license the handover of 34 pieces of data per passenger to US authorities.

The European Parliament objected to the practice, claiming that it threatened the privacy rights of travellers. The European Court of Justice did not make a ruling on the substance of the agreement. Having found the deal technically flawed it simply ordered that a new, properly framed agreement be made before 30th September.

That deadline has now not been met, despite the fact that the Commission said that it would be re-submitting the same proposal for agreement, but changing the procedure so that it was legally enforceable.

That plan may not have worked, since agreement with the US on the substance of the deal could not be reached by Saturday's deadline. The two sides will negotiate again a potential deal on 6th October at the meeting of the Council of Justice and Home Affairs Ministers in Luxembourg.

The US Homeland Security Secretary Michael Chertoff said in a statement that his department had produced a draft agreement and that it awaited final ratification. "As we await the final ratification of the draft agreement, we expect that planes will continue to fly uninterrupted and our national security will not be impeded," said Chertoff. "Importantly, the proposal ensures the appropriate security information will be exchanged and counter-terrorism information collected by the department will be shared, as necessary with other federal counter-terrorism agencies."

The original agreement dates from 2004 and the Commission has said that it wants the US to respect that original agreement while a new one is negotiated.

"In the meantime, the Commission urges the US to continue to apply the safeguards for PNR data that were laid down in the now-lapsed 2004 agreement until such time as a new agreement is reached so as to minimise the risk of legal uncertainty and disruption to EU-US flights," said a Commission statement.

"It is in the interests of all concerned, travellers, airlines, law enforcement agencies and data protection authorities, that a new agreement is concluded as soon possible," said the statement. "[Commission] Vice-President Frattini is in regular contact with Secretary Chertoff and agrees on the need to reach a rapid and satisfactory agreement."

Even if a new agreement is reached by the two parties along the same lines as the previous deal it could face further legal challenge. The European Parliament objected to the actual substance of the agreement and not just its procedural basis, so further action may be taken by the Parliament over a new deal.