At the beginning of the March plenary session of the European Parliament, the ECR Group (of David Cameron) made the request to place on the plenary agenda the report on the use of passenger name record data (EU-PNR). The demand was rejected by 163 votes in favour to 207 against. The opposing camp included the centre-left MEPs of the Socialist group S&D, the Liberals of the ALDE group, the radical left MEPs and the Greens. The Eurosceptic and Nationalist groups also backed the rejection.
In the light of the recent terrorist attacks on French soil and the ongoing terrorist threats, it is interesting to note that in both the S&D and ALDE groups the members from the French delegation voted in favour of the request to speed up the adoption of the PNR (or did not vote at all). However, that was not enough for the proposal to pass.
Axel Voss MEP from the EPP Group and Spokesman on the file denounced the blocking from the Leftist MEPs. He explained that “Left-wing groups reached a blocking majority in the Conference of Presidents a number of times and rejected the request by the EPP and the ECR Groups for the inclusion of the EU PNR file on the plenary agenda.” The MEP concluded by saying, “We owe this EU PNR Directive to the victims of the French terrorist attacks! The Left should take this into consideration. There was absolutely no justification for postponing the EU PNR vote any longer!”
The same criticism came from the Conservative group ECR. The EU Parliament’s rapporteur on the dossier Timothy Kirkhope (ECR, UK) warned, “Left wing leaders in the European Parliament are once again playing games with a crucial counter-terrorism agreement on Passenger Name Records (PNR)”.
The S&D and ALDE groups, however, criticised EP right wing groups for “using terror attacks to try and score political points.” The Socialist Group reiterated its support for PNR to be voted alongside the data protection package. Birgit Sippel, S&D Group Spokesperson for Justice and Home Affairs, said: “We are seeing right wing groups in the Parliament trying to play politics again with important issues.” Moreover, she added, “PNR can help in the fight against terrorism however it is deeply irresponsible to present it as a silver bullet. What has been clear in the last few months is that better cooperation between national law enforcement agencies is needed urgently.”
Guy Verhofstadt, ALDE Group Leader, expressed a similar point of view: “EPP and ECR are playing dirty games. PNR is for them only a smokescreen, to show to the public that they are doing something in the fight against terrorism, while refusing to give the European Union real and effective instruments in the fight against terrorism (ie a European Intelligence capacity, a PNR regulation, mandatory information sharing).”
What is PNR?
A Passenger Name Record (PNR data) is information provided by passengers during the reservation and booking of tickets and when checking in on flights, collected by air carriers for their own commercial purposes. It contains several different types of information, such as travel dates, travel itinerary, ticket information, contact details, travel agent through which the flight was booked, means of payment used, seat number and baggage information. The data is stored in the airlines’ reservation and departure control databases.
PNR data are used also for law enforcement purposes in the fight against terrorism and serious crime, such as trafficking in human beings and drugs.
Proposal for an EU PNR Directive
Following the entry into force of the Treaty of Lisbon, the Commission re-submitted its proposal to collect, store and analyse PNR data for law enforcement purpose in 2011. In April 2013, the proposal was rejected by the LIBE Committee by a narrow majority (30 votes to 25).
After the latest terrorist attacks (January and November 2015, Paris)
The PNR proposal has resurfaced in the context of the widely perceived urgency to address the terrorist threat. The post-Charlie Hebdo situation at the beginning of 2015 is also seen as a possible trigger for enhanced EU involvement in the fight against terrorism.
Indeed, in the last months, the idea of having some form of EU-wide PNR scheme seems to be gaining ground.
In the Resolution of February 2015 on anti-terrorism measures, the EP committed itself to working towards the finalisation of the Directive by the end of 2015. A revised draft report by Timothy Kirkhope (ECR, UK) was published late February 2015.
After the terrorist attack that took place in Paris in November 2015, French President Hollande urged to adopt the PNR system before the end of 2015: “It is also imperative that the request which France made some time ago be implemented in Europe. I’m talking about controlling the arms trade, controls on the border and the approval before the end of 2015 of what we call the PNR, to ensure the traceability of jihadists.”
Then, in December 2015, the Civil Liberties, Justice and Home Affairs Committee (LIBE) backed the deal reached by Parliament and Council negotiators on the EU-PNR Directive. The Parliament must now vote on the draft directive and then it has to be formally approved by the EU Council of Ministers. Member states will have to transpose the EU PNR Directive into their national laws at the latest two years after its entry into force.
Controversies – Fundamental rights
The controversy around this issue lies on the fact that the use of PNR data involves the processing of personal data which raises important questions with respect to the fundamental rights to the protection of private life and to the protection of personal data.
PNR schemes enable proactive checks on large sets of data concerning all passengers (not individual persons). Therefore, fundamental rights issues are at the centre of the PNR debate.
The necessity of PNR systems, in other words the question of whether such scheme is indeed indispensable to effectively address serious crime and terrorism, is also one of the questions debated. At present, there is no agreement as to whether PNR systems and mass surveillance tools in general are actually efficient.
The Commission is of the opinion that making PNR data available for law enforcement purposes is a necessary mean to fighting terrorism and serious transnational crime.
Past votes on PNR agreements
The EU has already signed bilateral PNR Agreements with the United States, Canada and Australia and the European Parliament voted on these matters a number of times.
The latest EU-US PNR agreement entered into force on July 2012. The EU Parliament gave its consent in April 2012, by 409 votes in favour 226 against and 33 abstentions. The majority included the EPP, S&D, ECR and EFD groups.
Vote of the EU Groups: The overwhelming majority of EPP and ECR MEPs voted in favour. In the EPP group, the majority of the Portuguese delegation abstained. While all the MEPs from Luxembourg opposed.
The S&D group was highly divided with the majority supporting the agreement. The Socialist MEPs in favour of the agreement came mainly from Italy, Spain and the UK. However, many MEPs, especially the French and the German delegations, opposed the text. The ALDE group was also divided with the majority opposing the agreement.
Within the ALDE group, however, most MEPs coming from Denmark, Finland, Ireland and Romania broke away from the group line and voted in favour of the agreement. Greens and the GUE-NGL groups totally opposed the deal.
The EFD group was divided (majority in favour). Italian Lega Nord (ENF group) voted in favour. On the contrary, UKIP MEPs opposed it.
The EU concluded a PNR Agreement with Canada in 2006. A new PNR agreement was signed by the EU Council of Ministers and Canada on 25 June 2014. In this case too, the consent of the EU Parliament is needed for the agreement to enter into force (until that happens, the 2006 agreement remains applicable).
In November 2014, the EU Parliament asked for the EU-Canada agreement on the transfer of PNR to be referred to the European Court of Justice (ECJ) for an opinion on whether it is in line with the EU treaties and Charter of Fundamental Rights.
The resolution, tabled by the ALDE group, was approved by 383 votes to 271, with 47 abstentions. The majority included the S&D, ALDE, GUE-NGL, Greens-EFA groups.
Vote of the EU Groups: Left-leaning groups (S&D, Greens/EFA, GUE/NGL) plus the Liberals and the Italian Eurosceptics supported the proposal. The EFDD group was split, UKIP abstained and M5S voted in favour. The conservative EPP and ECR groups decided to vote against the resolution. Finally, the members of the ENF group supported the resolution.
Parliament’s final vote on the EU-Canada PNR deal will now be adjourned until the Court has delivered its opinion.
The latest EU-Australia PNR agreement entered into force on June 1st 2012. The EU Parliament gave its consent in October 2011 by 463 votes in favour 96 against and 11 abstentions. The majority included the EPP, S&D, ALDE, ECR and EFD groups.
Vote of the EU Groups: The four main political groups EPP, S&D, ALDE and ECR all voted in favour of the agreement.
The Greens and the Radical Left opposed. EFD group supported the deal too, however UKIP MEPs opposed.
Which camp has a majority?
Overall, the camp in favour of establishing PNR agreements is the one that has the majority, even more so since the latest terrorist attacks on the EU soil.
Indeed, it seems that the Liberals and the Socialists have adjusted their positions. ALDE states that they are not against EU PNR system, as long as it goes hand in hand with the necessary data protection safeguards. The Socialists also expressed their readiness to discuss improving PNR. However, they demand an approach which fully respects individual rights and clarifies the retention period for PNR data.
In concrete terms, the positions of the ALDE and the S&D groups have shifted back and forth over the years and the vote at the EP March plenary is part of this process. According to our sources and analysis, there are two main reasons for this fluctuation. Firstly, the political ambitions of these groups, who want to have a seat at the negotiations table and, consequently, need to show that their presence is needed, i.e. without their votes things cannot go ahead.
Secondly (and more importantly), the changing moods in the public opinion in key EU countries, which the politicians need to take into account or want to speculate for building their political capital on. In periods when internal security issues have climbed towards the top of the citizens’ concerns, liberals and socialist politicians have found it more difficult to oppose to more security-oriented measures. This happens especially in the aftermath of terrorist attacks (or threats of) mentioned above.
On the contrary, when the level of awareness of these threats in the public perception goes down and the privacy concerns go up, the opposite occurs, i.e. the liberals and the socialists shift back towards a more privacy-oriented position, and even force the conservatives to moderate their pro-security positions too. This happened for example in the critical moments of WikiLeaks affair and the revelations of Edward Snowden which have pushed the public opinion into the pro-privacy direction.
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