The request of the United States to access police databases of the European Union Member States is unclear and confusing to the Belgian Presidency of the EU Council.
In a four pages note sent to the Working Party on Justice and Home Affairs on January 10, the Presidency notes that so far the US has not been clear on what exactly it wants, and the extent to which its plan for accessing EU databases is linked to the Visa Waiver Programme (VWP).
The lack of clarity on what exactly the US wants and the extent to which EBSP [Enhanced Border Security Partnership] is linked to the VWP, makes it difficult to determine whether or not the Commission should ask for a mandate to negotiate on behalf of the Union or if it is up to the Member States to have bilateral negotiations.
As a result, the Presidency asserts that the Member States need more clarity on the exact databases that the US wants access to, the way they want to access the data, and the purposes for which the same will be used.
As a result of this unclear situation, the Council claims that there is no consensus between the Member States on how to proceed with the proposal.
Moreover, since the US has threatened that refusing to grant its authorities access to the EU travel databases could result in the exclusion of the Member States from the VWP programme from 2027 and on, the Council is indecisive whether negotiating the EBSP is a Union or a Member States’ competence.
Amongst the countries who have been threatened to lose visa-free access to the US is Norway, the Police Directorate of which remains skeptical of such an arrangement, due to the current data protection rules that are in force in the country.
It also became clear that the Member States are at different stages regarding the EBSP: several Member States have started bilateral negotiations, some are already well advanced in their negotiations while others have yet to engage in bilateral talks.
The Council has invited these countries, who are well advanced in the negotiations, to share with the rest the measures they have taken in order not to go against EU legislation when granting such access to the US, in particular the General Data Protection Regulation and the Law Enforcement Directive.
Before 2027, the US wants to be able to fully check police databases of the EU Member States for data on people who travel to the US visa-free, with only an Electronic System Travel Authorisation (ESTA). In exchange, the US has offered the EU and Schengen Area countries access to the US Department of Homeland Security’s databases, which contain 1.1 billion records of about 270 million people.
Many in Europe are concerned that granting the US such access is a violation of privacy rights, claiming that the US lacks adequate data and fundamental rights protection.
The US is now expected to hold a meeting with the EU Member States at the beginning of February in order to inform the same in a more detailed way about its plans, as well as answer their questions.
