The United States is not giving up on demands for a “continuous and systematic transfer” of data on fingerprints and other biometric characteristics. From 2027 onwards, the transfer should be a condition for visa-free entry from the EU. From the outset, the US government wanted to implement such a “partnership for enhanced border security” through an agreement for all member states. However, the EU Commission indicated in November that a relevant transatlantic working group had stopped its work. The United States apparently wanted to pursue its demands bilaterally through agreements with individual EU countries. According to a new document from Brussels, a new comprehensive EU-US treaty is probably necessary because existing agreements do not cover coveted data access.
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Under the Enhanced Border Security Partnership (EBSP) required by Washington, officers will be able to “match the fingerprints of travelers seeking entry or immigration status with their corresponding criminal, terrorism and identity records.” They will receive a lot of personal data if there is a hit. Such an agreement should become a new condition for future participation in the Visa Waiver Program (VWP). This program currently allows visa-free entry to the USA through a simplified ESTA application.
As the then Belgian Council presidency wrote in a confidential letter to the Committee of Permanent Representatives of Member States (Coreper) in early June, a number of EU countries are calling on the Commission “to take the initiative and conclude a corresponding agreement between the European Union and the United States”. Washington has “clearly confirmed several times and at various levels” that the conclusion of such an EBSP agreement is considered necessary, emphasizes the Council leadership In the “Way Forward” documentWhich was published by the British civil rights organization Statewatch.
Accordingly, in early 2023, the Commission informed delegations of its intention to “develop a proof of concept together with the United States to support Member States”. This “proof of concept” lists possible framework conditions for data exchange and should serve as the basis for further discussions between the parties involved “to determine the possibilities and limitations with regard to the intended exchange of information”. The Brussels Governmental Institute presented a first version of the project at a workshop in October 2023. A revised version was presented to the Department of Homeland Security (DHS) in December and discussed with them in January 2024.
The fundamental question of legality remains unresolved
But much still remains unclear. “Despite efforts to gain insight into the situation over the past two years, no further concrete steps could be taken,” the president said. Even the council’s legal service has already intervened. A Freedom of information request to Statewatch for release of documents The Commission rejected the feasibility study on the grounds that relevant publications could endanger public safety and international relations.
Belgium has suggested that “the Commission could, for example, develop an annotated checklist of concerns”. Such an approach would be helpful for member states, especially when it comes to issues of data protection or reciprocity of information exchange, which must be negotiated at a bilateral level. In this way, EU countries could also “coordinate their messages”, thereby strengthening their position vis-à-vis the United States. However, there is still the “fundamental question” of whether the data exchange intended by the United States is even possible under EU law: “We must carefully examine the suitability of the proposed data transfer, especially in comparison with the possibilities for information exchange between EU Member States.” The Belgians have now handed the dossier to the new Hungarian Council presidency, which has not yet scheduled a debate on it.
(US)
