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EU-US: EU-US AGREEMENT ON THE EXCHANGE OF PERSONAL INFORMATION

01 August 2010

EU-US AGREEMENT ON THE EXCHANGE OF PERSONAL INFORMATION: There are currently six EU-US agreements covering justice and home affairs issues: 1. Europol (exchange of data); 2. Extradition; 3. Mutual assistance; 4. PNR (passenger name record); 5. SWIFT (all financial transactions, commercial and personal); 6. Container Security Initiative (CSI). Getting agreement on many of them has proved controversial and time-consuming (the European Parliament has a say) so now the EU and the USA want to conclude a long-term general agreement covering all future exchanges of personal data concerning any criminal offence however minor.

The EU's negotiating mandate, drawn up by the European Commission and now to be agreed to by the Council of the European Union:

a) Explanatory Memorandum and proposed Recommendation (COM 252-10): Proposal for a Council Recommendation to authorise the opening of negotiations for an agreement between the European Union and the United States of America on protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters (pdf)
b) Mandate: Negotiating Directives (pdf)

Background: see: Reports by the High Level Contact Group (HLCG) on information sharing and privacy and personal data protection (EU doc no: 15851/09, pdf)

"The European Union would apply these principles for 'law enforcement purposes', meaning use for the prevention, detection, investigation or prosecution of any criminal offense," while "the United States would apply these principles for 'law enforcement purposes', meaning for the prevention, detection, suppression, investigation, or prosecution of any criminal offense or violation of law related to border enforcement, public security, and national security, as well as for non-criminal judicial or administrative proceedings related directly to such offenses or violations." (emphasis added)

See also Council Presidency to Justice and Home Affairs Counsellors: EU-US High Level Contact Group on data protection and data sharing (HLCG) (EU doc no: 14574/09, pdf): This records that: 1) the US Privacy Act only applies to US citizens and further that extensive exceptions are allowed for law enforcement agencies; 2) in the EU "every individual has a fundamental right to effective judicial remedy" but "In the US no comparable general rule exists"; and 3) "It is clear that the EU cannot accept a principle that does not provide for an unconditional right to judicial redress. That, on the other hand, is unacceptable to the US" so the EU Council Presidency has proposed "that any possible gap in the US redress framework which is unacceptable to the EU, cannot be fixed in the redress principle, but must, if necessary, be addressed in a possible future agreement."