Plenary sitting
19.10.2011 B7‑0537/2011
MOTION FOR A RESOLUTION
pursuant to Rule 90(6) of the Rules of Procedure
on seeking an opinion from the Court of Justice on the compatibility with the Treaties of the Agreement between the European Union and Australia on the processing and transfer of EU-sourced Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service
Cornelia Ernst, Kyriacos Triantaphyllides
on behalf of the GUE/NGL Group
European Parliament resolution on seeking an opinion from the Court of Justice on the compatibility with the Treaties of the Agreement between the European Union and Australia on the processing and transfer of EU-sourced Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service
The European Parliament,
– having regard to Article 218 of the Treaty on the Functioning of the European Union (TFEU), and in particular paragraphs 6 and 11 thereof,
– having regard to the draft Council decision (09825/2011),
– having regard to the Agreement between the European Union and Australia on the processing and transfer of EU-sourced Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service,
– having regard to the Communication from the Commission on the global approach to transfers of Passenger Name Record (PNR) data to third countries ( COM(2010)0492 ),
– having regard to its resolutions of 14 February 2007 on SWIFT, the PNR agreement and the transatlantic dialogue on these issues[1], of 22 October 2008 on the evaluation of the Australia-EU PNR agreement[2], of 5 May 2010 on the launch of negotiations for Passenger Name Record (PNR) agreements with the United States, Australia and Canada[3], and of 11 November 2010 on the global approach to transfers of PNR data to third countries[4],
– having regard to the opinions of the European Data Protection Supervisor of 19 October 2010 on the Communication from the Commission on the global approach to transfers of Passenger Name Record (PNR) data to third countries[5] and of 15 July 2011 on the proposal for a Council Decision on the conclusion of an Agreement between the European Union and Australia on the processing and transfer of EU-sourced Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service[6],
– having regard to Opinion 7/2010 of the Article 29 Data Protection Working Party, adopted on 12 November 2010, on the Communication from the Commission on the global approach to transfers of Passenger Name Record (PNR) data to third countries,
– having regard to Article 16 TFEU and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union,
– having regard to the recommendation of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee of Foreign Affairs ( A7-0000/2011 ),
– having regard to Rule 90(6) of its Rules of Procedure,
A. whereas a European legal framework allowing airlines to transfer passengers' PNR data was established by European Council Decision 2008/651/CFSP/JHA of 30 June 2008 on the signing of an Agreement between the European Union and Australia on the processing and transfer of EU-sourced Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service (hereinafter 'the Agreement');
B. whereas the Agreement applied provisionally as from 30 June 2008, and only in 17 EU Member States, as the requisite unanimity could not be secured in the Council on the conclusion of the Agreement;
C. whereas, following the entry into force of the Lisbon Treaty on 1 December 2009, the conclusion of new PNR agreements requires the consent of the European Parliament before they can be finally adopted by the Council;
D. whereas the Council requested the European Parliament's consent to a new PNR agreement with Australia on 15 February 2010;
E. whereas on 5 May 2010 the European Parliament adopted a resolution to postpone the vote on this request for consent, which delayed the conclusion of the Agreement and led to the Commission and Australia opening new negotiations in January 2011;
F. whereas the Commission initialled a new agreement and on 19 May 2011 sent a recommendation to the Council to conclude the Agreement, which the Council then signed on 29 September 2011; whereas on the same day the European Parliament received the Council's request for consent;
G. whereas the clear purpose of the Agreement, as stated in its Article 1, is to lay down conditions in accordance with which PNR data may be transferred and used and how data will be protected;
1. Takes the view that there is legal uncertainty as to whether the draft Agreement complies with EU data protection legislation and thus as to whether it is compatible with the Treaties in this respect; questions, further, the choice of legal basis, i.e. Articles 82(1)(d) and 87(2)(a) TFEU (police and judicial cooperation), and not Article 16 TFEU (data protection);
2. Decides to seek an opinion from the Court of Justice on the compatibility of the Agreement with the Treaties;
3. Instructs its President to forward this resolution to the Council and the Commission for information and to take the necessary measures to obtain such an opinion from the Court of Justice.