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COUNCIL OF

THE EUROPEAN UNION

Brussels, 9 October 2008 (10.10)

(OR. fr)



13803/1/08

REV 1

LIMITE



CRIMORG 157

AVIATION 211

DATAPROTECT 70





NOTE

from:	Presidency

to:	Council

Subject:	Proposal for a Council Framework Decision on the use of
Passenger Name Record (PNR) data for law enforcement purposes



This note summarises the initial results of ongoing discussions to
identify the essential features of a future European PNR system, in
accordance with the wish expressed by the JHA Council on 25 July 2008.

Eight guidelines have already emerged from that detailed discussion; the
Presidency would like to determine whether they are a sound basis for
the relevant preparatory bodies to continue their work. At this stage
the intention is not to achieve definitive and detailed conclusions, but
rather to seek the Council's overall view of the direction the work is
taking (I).

If the Council's response is positive, the Presidency intends:

–	to continue consideration of the pending issues;

–	and also, above all, to look more closely at the issue of the
safeguards to be provided in terms of personal data protection. 

An overall result will be submitted to the JHA Council for endorsement
at its next meeting on 27 and 28 November 2008. 

The Presidency would also like to draw the Council's attention to the
ongoing discussion regarding reference in the future instrument to
intra-Community flights (II).

I – PROGRESS MADE

The Multidisciplinary Group focused on the conditions for collection and
use of PNR data. As a basis for its deliberations, the Group heard a
large number of persons with expertise in areas where the use of PNR
data raises issues. The European Data Protection Supervisor, the
European Union's Counter-Terrorism Coordinator, the two main
professional organisations of air carriers, and representatives of a
large travel reservation centre and of a major provider of airport IT
services all contributed. Experts from the police and customs services
of various Member States, who use PNR data in various ways, were also
heard. A detailed record of those proceedings may be found in 13319/08
CRIMORG 144 AVIATION 187 DATAPROTECT 62 and 13860/08 CRIMORG 159
AVIATION 216 DATAPROTECT 71

Eight guidelines have emerged:

1 – Inclusion of air traffic between the EU and third States,
including data on transit passengers

(a)	The scope of the instrument would be restricted, at least initially,
to air transport. This restriction would not prevent those Member States
which wished to do so from using PNR data available in the context of
other modes of transport. The question of whether this leeway should be
referred to in the preamble to the instrument, as already supported by a
very large majority of delegations, will need to be decided later.

(b)	All PNR data for flights between the territory of at least one EU
Member State and that of a third State would be covered. Of that data,
the data relating to transit passengers, i.e. those making a journey by
air which included at least one segment outside the Community and one or
several segments inside the EU, would be transmitted by the operator to
each of the Member States concerned.

2 –	List of data to be aligned on the international standards applied
by IATA, without creating a requirement for air carriers to collect data

The instrument would explicitly make the requirement to transmit data
conditional on the actual prior collection of that data by air carriers
in the course of their commercial activities. The structure of the list
of data should be aligned on that adopted by the International Civil
Aviation Organisation (ICAO). Subject to some ongoing adjustments, the
list proposed by the Commission is an excellent basis on which to work.

3 – 	Phasing in of the system with the aim of achieving 100 % data
coverage at the end of a transitional period to be determined

To avoid gaps in the collective operation of the future European PNR
system, it was felt that systematic transmission of PNR data for all
flights within the scope of the instrument was preferable to selective
data collection. After all, the effectiveness of a European PNR system
would seem to be based on the availability of all data in respect of all
Member States. This majority view needs to be reconciled with the
different approach of the United Kingdom, which favours leaving States
to chose the data to be collected. Account must also be taken of the
technical constraints involved in putting such a complex tool in place.
The following arrangement has therefore been worked out:

–	The instrument would set an objective of collecting 100 % of PNR
data at the end of a period to be determined;

–	a timetable would be laid down for the phasing in of the system;

–	a review clause would be inserted, whereby the systematic collection
option could be reviewed on the basis of experience over a number of
years. 

4 – 	Objective of exclusive use of the PUSH method at the end of a
transitional period

	The transitional period during which an airline could continue to use
other transmission methods, especially the pull method, remains to be
specified.

5 – European harmonisation of arrangements for the transmission of
data by carriers

(a)	PNR data would be transmitted twice for each of the flights
concerned. 

The instrument would also, by way of exception, allow a Member State to
require additional transmissions in order to cope with a particularly
urgent or dangerous situation.

(b)	The date of first transmission would be 48 hours before flight
departure. Member States would still be free to set airlines a time
bracket rather than a fixed time, provided that it did not alter their
legal obligations on this point. 

(c)	The second transmission would take place when the flight was closed,
when all the passengers were on board. The question of whether the
second transmission should cover all data relating to the passengers on
the flight concerned, or only changes to the first transmission, remains
to be clarified.

(d)	Airlines' transmission protocols would be aligned on existing
international standards, as established in the International Civil
Aviation Organisation and applied by IATA. 

6 – 	Purposes of data collection under the instrument:
Counter-terrorism and combating serious crimes as defined for the
purposes of the European Arrest Warrant

The purpose of the European instrument would be the prevention,
detection, investigation, prosecution and punishment of terrorism and a
group of other serious offences, defined by reference to the list in the
Framework Decision on the European Arrest Warrant. Any appropriate
marginal changes to that initial list could still be envisaged. 

The instrument would of course cover the reporting and prosecution of
other offences brought to light during controls.

7 – 	Designation by each Member State of a public authority
responsible for the collection, analysis and storage of PNR data,
distinct from the law enforcement authorities responsible for controls
and investigations

A clear and precise division of responsibilities between the "Passenger
Information Unit" and the competent authorities which would be using the
PNR data in the course of their work, without hampering close
cooperation between them, was felt to be a basic guarantee of the
transparency of the European PNR system, which was indispensable in the
light of requirements regarding respect for privacy and personal data
protection. 

The data collected would be for analysis to assist with investigations
conducted by the competent law enforcement authorities: the Group is
currently considering the details of the PIU's tasks in this respect,
and its links with the law enforcement authorities.

The composition and siting of PIUs would be left to national law, to
take account of the variety of air traffic and the crime structure and
resources of each Member State. 

8 – Definition of a procedure for analysis of the terrorist and
criminal threat

The MDG agreed that the processing of PNR data should be based on the
one hand on a strategic analysis based on risk indicators which had been
pre-established by the competent authorities, and on the other hand on a
comparison with the main national, international and European files on
wanted persons or objects being sought or subject to an alert by the law
enforcement authorities (missing persons, minors not authorised to leave
national territory, etc.). 

There was also consensus on the fact that the selection of air
connections and of the processing to be carried out with regard to the
types of risk identified should be left to the discretion of the Member
States. Similarly, the strategic risk analysis would rest primarily on
the choice of national risk indicators, which would be adapted to the
characteristics of crime in each country. In parallel, the conditions
for cooperation within the Council to develop common methods and
indicators should be determined.

II – MAIN PENDING ISSUE: INTRA-COMMUNITY FLIGHTS

The Presidency would also like to draw the Council's attention to the
state of ongoing discussions regarding PNR data relating to
intra-Community flights.

A large majority of Member States do not want the European instrument to
impose the collection and use of such data. A minority of Member States
would be interested in such data, but most of them could accept that, at
least initially, the European PNR instrument would not provide for its
compulsory inclusion, on condition that the leeway to make this choice
at national level would be explicitly recognised. Inclusion in the
instrument of transit flights, and the assurance that the European text
would not call into question the exercise of investigative powers
granted to the competent authorities by national legislation, have still
not entirely resolved this issue.

The Presidency therefore invites delegations to examine the following
compromise:

(a)	Accept that the cost/benefit ratio of including PNR data relating to
intra-Community flights is an issue, and that therefore this needs to be
evaluated before deciding to include it in the European instrument;

(b)	Refer in the preamble to the instrument to the fact that such data
is collected in certain States, at national discretion, and that
experience gained in those States could be useful in any subsequent
evaluation of the European PNR system;

(c)	Insert in the instrument a clause providing for the review of this
specific point (amongst others) once the European PNR system has been
in operation for a few years; the timing of this review remains to be
determined.

				

	The issue of the inclusion of intra-Community flights remains pending;
see section (II) below.

	Without prejudice to ongoing discussion on the specific question of
sensitive data.

 

 

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