Explanatory Memorandum to COM(2011)280 - Signature of the Agreement with Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service Proposal for a COUNCIL DECISION on the signature of the Agreement with Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)280 - Signature of the Agreement with Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers ... |
|---|---|
| source | COM(2011)280  |
| date | 19-05-2011 |
This legislation aims at obtaining PNR data electronically in advance of a flight's arrival and therefore significantly enhances the Australian Customs Sercice's ability to conduct efficient and effective advance risk assessment of passenger and to facilitate bona fide travel, thereby enhancing the security of Australia. The European Union in cooperating with Australia in the fight against terrorism and other serious transnational crime views the transfer of data to Australia as fostering international police and judicial cooperation which will be achieved though the transfer of analytical information flowing from PNR data by Australia to the competent Member States authorities as well as Europol and Eurojust within their respective competences.
PNR is a record of each passenger' travel requirements which contains all information necessary to enable reservations to be processed and controlled by air carriers.
Air carriers are under an obligation to provide the Australian Customs Service with access to certain PNR data to the extent it is collected and contained in the air carrier's automated reservation and departure control systems.
The data protection laws of the EU do not allow European and other carriers operating flight from the EU to transmit the PNR data of their passengers to third countries which do not ensure an adequate level of protection of personal data without adducing appropriate safeguards. A solution is required that will provide the legal basis for the transfer of PNR data from the EU to Australia as a recognition of the necessity and importance of the use of PNR data in the fight against terrorism and other serious transnational crime, whilst avoiding legal uncertainty for air carriers. In addition, this solution should be applied homogenously throughout the European Union in order to ensure a legal certainty for air carriers and respect of individuals' rights to the protection of personal data as well as their physical security.
The European Union signed an agreement in 2008 with Australia on the transfer and processing of PNR data based on a set of commitments by the Australian Customs Service in relation to the application of its PNR programme.[1]
Following the entry into force of the Lisbon Treaty and pending the conclusion of the agreement, the Council sent the 2008 Australia Agreement to the European Parliament for its consent for the conclusion. The European Parliament adopted a resolution i in which it decided to postpone its vote on the requested consent and requesting a renegotiation of the Agreement on the basis of certain criteria. Pending such renegotiation, the 2008 Agreement would remain provisionally applicable.
On 21 September 2010, the Council received a recommendation from the Commission to authorise the opening of negotiations for an Agreement between the European Union and Australia for the transfer and use of Passenger Name Record (PNR) data to prevent and combat terrorism and other serious transnational crime.
On 11 November 2010, the European Parliament adopted a resolution on the Recommendation from the Commission to the Council to authorise the opening of the negotiations.
On 2 December 2010, the Council adopted a Decision, together with a negotiation directive, authorising the Commission to open negotiations on behalf of the European Union. Following negotiations between the parties, the Agreement was initialled on 6May 2011.
This Agreement takes into consideration and is consistent with the general criteria laid down in the Communication from the Commission on the Global Approach to the transfer of Passenger Name Record (PNR) data to third countries i and the negotiating directives given by the Council.
PNR has proven to be a very important tool in the fight against terrorism and serious crime. The Agreement has secured several important safeguards for those whose data will be transferred and processed. In particular, the purpose of processing of PNR data is strictly limited to preventing, detecting, investigating and prosecuting terrorist offences and serious transnational crime. Individuals are provided with the right to access, correction, redress and information. . The data will be transferred using exclusively the push method and the use of sensitive data is prohibited. The retention period of the PNR data is limited and the data will be depersonalised after a certain period. Compliance with these rules shall be subjecd to independent oversight by the Australian Information Commissioner.
The Article 218(5) of the Treaty on the Functioning of the European Union states that the Council shall authorise the signing of international agreements.
The Commission therefore proposes to the Council to adopt a decision to sign the Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service.