# EUR-Lex - 52013PC0529 - EN

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# 52013PC0529

**Proposal for a COUNCIL DECISION on the signature of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data /* COM/2013/0529 final - 2013/0251 (NLE) */**

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EXPLANATORY MEMORANDUM

Canadian legislation empowers the Canada
Border Services Agency to ask each air carrier operating passenger flights to
and from Canada to provide it with electronic access to Passenger Name Record
(PNR) data prior to the passenger arriving or leaving Canada. The requests of the Canadian authorities are based on section 107.1 of the Customs
Act, the Passenger Information (Customs) Regulations, paragraph 148(1)(d) of
the Immigration and Refugee Protection Act and Regulation 269 of the
Immigration and Refugee Protection Regulations.

This legislation aims at obtaining PNR data
electronically in advance of a flight's arrival and therefore significantly
enhances the Canada Border Services Agency's ability to conduct efficient and
effective advance risk assessment of passengers and to facilitate bona fide
travel, thereby enhancing the security of Canada. The European Union, in
cooperating with Canada in the fight against terrorism and other serious
transnational crime, views the transfer of PNR data to Canada as fostering international police and judicial cooperation. This will be achieved
through the sharing of analytical information containing PNR data obtained by Canada with competent police and judicial authorities of Member States, as well as with
Europol and Eurojust within their respective mandates.

PNR is a record of each passenger's 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 Canada Border Services Agency 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 flights 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 Canada 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 providing legal certainty for air carriers. In
addition, this solution should be applied homogenously throughout the European
Union in order to ensure 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 concluded an agreement[1] in 2005 with Canada on the processing of PNR data based on a set of commitments by the Canada Border
Services Agency in relation to the application of its PNR programme. The
commitments were annexed to a Commission Decision on the adequate protection of
personal data contained in the Passenger Name Record of air passengers
transferred to the Canada Border Services Agency.[2] Following the expiry of the
Commission Decision in 2009, the Canada Border Services Agency unilaterally
undertook to assure the EU that the commitments would continue in full force
and effect until a new agreement applies.

Following the entry into force of the
Lisbon Treaty, the European Parliament adopted a resolution[3] on 5 May 2010 in which it
requested a renegotiation of the Agreement on the basis of certain criteria.

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 Canada for the transfer and use
of PNR data to prevent and combat terrorism and other serious transnational
crime.

On 11 November 2010, the European
Parliament adopted a resolution[4]
on the recommendation from the Commission to the Council to authorise the
opening of 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 6 May 2013.

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 PNR data to third
countries[5]
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 secures several
important safeguards for those persons 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. The retention period of the PNR data is limited
and the data will be depersonalised after a period of 30 days. Individuals are
provided with the right to access, correction, redress and information. The
data will be transferred using exclusively the 'push' method, under which air
carriers transfer (‘push’) the required PNR data to the Canada Border Services
Agency, thus allowing air carriers to retain control of what data is provided.
The use of sensitive data is limited to very exceptional cases and subject to
strict conditions and effective safeguards, including the approval by the President
of the Canada Border Services Agency and the deletion of the data after a very
short timeframe. Oversight of Canada's compliance with these rules shall be
exercised by the Privacy Commissioner of Canada and the Recourse Directorate of
the Canada Border Services Agency.

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 authorising the signing of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data.

2013/0251 (NLE)

Proposal for a

COUNCIL DECISION

on the signature of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 82(1)(d) and 87(2)(a),
in conjunction with Article 218(5) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       On 2 December 2010, the
Council adopted a Decision, together with negotiation directives, authorising
the Commission to open negotiations on behalf of the European Union with Canada for the transfer and use of Passenger Name Record (PNR) data to prevent and combat
terrorism and other serious transnational crime.

(2)       The Agreement has been
negotiated. The negotiations were successfully concluded by the initialling of
the agreement.

(3)       The Agreement should be
signed subject to its conclusion at a later date.

(4)       This Agreement respects
the fundamental rights and observes the principles recognised in particular by
the Charter of Fundamental Rights of the European Union, notably the right to
private and family life, recognised in Article 7 of the Charter, the right to
the protection of personal data, recognised in Article 8 of the Charter and the
right to effective remedy and fair trial recognised by Article 47 of the
Charter. This Agreement should be applied in accordance with those rights and
principles.

(5)       [In accordance with
Article 3 of the Protocol 21 on the Position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice annexed to the Treaty on European
Union and the Treaty on the Functioning of the European Union, the United Kingdom and Ireland take part in the adoption of this Decision.]

(6)       In accordance with
Articles 1 and 2 of the Protocol 22 on the Position of Denmark annexed to the
Treaty on European Union and the Treaty on the Functioning of the European
Union, Denmark is not taking part in the adoption of this Decision and is not
bound by the Agreement or subject to its application,

HAS ADOPTED THIS DECISION:

Article 1

The signing of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data
is hereby approved, subject to its conclusion at a later date.

The text of the Agreement to be signed is
attached to this Decision.

Article 2

The Council Secretariat General shall
establish the instrument of full powers to sign the Agreement, subject to its
conclusion, for the person(s) indicated by the negotiator of the Agreement.

Article 3

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

For
the Council

The
President

ANNEX

AGREEMENT BETWEEN CANADA AND THE EUROPEAN UNION ON THE TRANSFER AND PROCESSING OF PASSENGER NAME RECORD DATA

CANADA

-and-

THE EUROPEAN UNION

(the “Parties”)

SEEKING to prevent, combat, repress, and
eliminate terrorism and terrorist-related offences, as well as other serious transnational
crime, as a means of protecting their respective democratic societies and
common values to promote security and the rule of law;

RECOGNISING the importance of preventing,
combating, repressing, and eliminating terrorism and terrorist-related offences,
as well as other serious transnational crime, while preserving fundamental rights
and freedoms, in particular rights to privacy and data protection;

SEEKING to enhance and encourage
cooperation between the parties in the spirit of Canada-EU partnership;

RECOGNISING that information sharing is an
essential component of the fight against terrorism and related crimes and other
serious transnational crime, and that in this context, the use of Passenger
Name Record data is a critically important instrument to pursue these goals;

RECOGNISING that, in order to safeguard
public security and for law enforcement purposes, rules should be laid down to
govern the transfer of PNR data by air carriers to Canada;

RECOGNISING that the Parties share common
values with respect to data protection and privacy reflected in their
respective law;

MINDFUL of the EU’s commitments pursuant to
Article 6 of the Treaty on European Union on respect for fundamental rights,
the right to privacy with regard to the processing of personal data as
stipulated in Article 16 of the Treaty on the Functioning of the European
Union, the principles of proportionality and necessity concerning the right to
private and family life, the respect for privacy, and the protection of
personal data under Article 8 of the European Convention on the Protection of
Human Rights and Fundamental Freedoms, Council of Europe Convention No. 108 for
the Protection of Individuals with regard to Automatic Processing of Personal
Data and its additional Protocol 181, and Articles 7 and 8 of the Charter of
Fundamental Rights of the European Union;

HAVING REGARD to the relevant provisions of
the Canadian Charter of Rights and Freedoms and Canadian privacy legislation;

NOTING the European Union's commitment to
ensuring that air carriers are not prevented from complying with Canadian law
regarding the transfer of European Union-sourced PNR data to Canada pursuant to this Agreement;

ACKNOWLEDGING the successful 2008 joint
review of the 2006 Agreement between the Parties on the transfer of PNR;

RECOGNISING that this Agreement is not
intended to apply to Advance Passenger Information which is collected and
transmitted by air carriers to Canada for the purpose of border control;

RECOGNISING also that this Agreement shall
not prevent Canada from continuing to process information from air carriers in
exceptional circumstances where necessary to mitigate any serious and immediate
threat to air transportation or national security respecting the strict
limitations laid down in Canadian law and in any case without exceeding the
limitations provided for in this Agreement;

NOTING the interest of the parties, as well
as EU Member States, in exchanging information regarding the method of
transmission of PNR as well as the disclosure of PNR outside Canada as set
forth in the relevant articles of this Agreement, and further noting the EU’s
interest in having this addressed in the context of the consultation and review
mechanism set forth in this Agreement;

NOTING that the Parties may examine the
necessity and feasibility of a similar Agreement for the processing of PNR data
in the marine mode;

NOTING the commitment of Canada that the
Canadian Competent Authority processes PNR data for the purpose of preventing,
detecting, investigating and prosecuting terrorist offences and serious
transnational crime in strict compliance with safeguards on privacy and the
protection of personal data, as set out in this Agreement;

STRESSING the importance of sharing PNR and
relevant and appropriate analytical information containing PNR obtained under
this Agreement by Canada with competent police and judicial authorities of
Member States of the European Union, and Europol and Eurojust as a means to
foster international police and judicial cooperation;

AFFIRMING that this Agreement does not
constitute a precedent for any future arrangements between Canada and the
European Union, or between either of the Parties and any other Party, regarding
the processing and transfer of PNR data or regarding data protection;

HAVING REGARD to the parties’ mutual
commitment to the application and further development of international
standards for the processing of PNR data;

HAVE AGREED AS FOLLOWS:

General Provisions

Article 1

Purpose of Agreement

In this Agreement, the Parties set out the
conditions for the transfer and use of Passenger Name Record (PNR) data to
ensure the security and safety of the public and prescribe the means by which
the data shall be protected.

Article 2

Definitions

In this Agreement:

(a) 
"air carrier" means a commercial
transportation company using aircraft as its means of transport for passengers
travelling between Canada and the EU;

(b) 
"Passenger Name Record data" (“PNR
data”) means the records created by an air carrier for each journey booked by
or on behalf of any passenger, necessary for the processing and control of
reservations. Specifically, as used in this Agreement, PNR data consists of the
elements set forth in the Annex to this Agreement;

(c) 
"processing" means any operation or
set of operations performed on PNR data, whether or not by automatic means,
such as collection, recording, organization, storage, adaptation or alteration,
calling-up, retrieval, consultation, use, transfer, dissemination, disclosure
or otherwise making available, alignment or combination, blocking, masking,
erasure, or destruction;

(d) 
“Canadian Competent Authority” shall mean the
Canadian authority responsible for receiving and processing PNR data under this
Agreement;

(e) 
“sensitive data” is information that reveals
racial or ethnic origin, political opinions, religious or philosophical
beliefs, trade-union membership, or information about a person's health or sex
life.

Article 3

Use of PNR

1.           Canada shall ensure that
the Canadian Competent Authority processes PNR data received pursuant to this
Agreement strictly for the purpose of preventing, detecting, investigating or
prosecuting terrorist offences or serious transnational crime.

2.           For the purpose of this
Agreement, “terrorist offence” includes:

(a) 
an act or omission that is committed for a
political, religious or ideological purpose, objective or cause with the
intention of intimidating the public with regard to its security, including its
economic security, or with the intention of compelling a person, government or
domestic or international organization to do or refrain from doing any act, and
that intentionally

(i)         causes death or serious bodily
harm;

(ii)         endangers an individual's life;

(iii)        causes a serious risk to the
health or safety of the public;

(iv)        causes substantial property damage
likely to result in the harm referred to in (i) to (iii); or

(v)        causes serious interference with or
serious disruption of an essential service, facility or system other than as a
result of lawful or unlawful advocacy, protest, dissent or stoppage of work,
such as a strike, that is not intended to result in the harm referred to in (i)
to (iii); or

(b) 
activities constituting an offence within the
scope and as defined in applicable international conventions and protocols
relating to terrorism; or

(c) 
knowingly participating in or contributing to or
instructing a person, a group, or an organisation to carry out any activity for
the purpose of enhancing a terrorist entity's ability to facilitate or carry
out an act or omission described in (a) or (b); or

(d) 
committing an indictable offence where the act
or omission constituting the offence is committed for the benefit of, at the
direction of, or in association with a terrorist entity; or

(e) 
collecting property or inviting a person, a
group, or an organisation to provide, providing or making available property or
financial or other related services for the purpose of carrying out an act or
omission described in (a) or (b) or using or possessing property for the
purpose of carrying out an act or omission described in (a) or (b); or

(f) 
attempting or threatening to commit an act or
omission described in (a) or (b), conspiring, facilitating, instructing or
counselling in relation to an act or omission described in (a) or (b), or being
an accessory after the fact, or harbouring or concealing for the purpose of
enabling a terrorist entity to facilitate or carry out an act or omission
described in (a) or (b).

(g) 
For the purpose of this Article, “terrorist
entity” means:

(i)         a person, a group, or an
organization that has as one of its purposes or activities facilitating or
carrying out an act or omission described in (a) or (b); or

(ii)         a person, a group, or an
organization that knowingly acts on behalf of, at the direction of or in
association with such a person, group or organization in (i).

3.           Serious transnational
crime shall mean any offence punishable in Canada by a maximum deprivation of
liberty of at least four years or a more serious penalty and as they are
defined by the Canadian law, if the crime is transnational in nature.

For the purpose of this Agreement, a crime is
considered as transnational in nature if:

(a) 
it is committed in more than one country;

(b) 
it is committed in one country but a substantial
part of its preparation, planning, direction or control takes place in another
country;

(c) 
it is committed in one country but involves an
organised criminal group that engages in criminal activities in more than one
country;

(d) 
it is committed in one country but has
substantial effects in another country; or

(e) 
it is committed in one country and the offender
is in or intends to travel to another country.

4.           In exceptional cases, the
Canadian Competent Authority may process PNR data where necessary to protect
the vital interests of any individual, such as:

(a) 
a risk of death or serious injury; or

(b) 
a significant public health risk, in particular
as required by internationally recognised standards.

5.           Canada may also process
PNR data, on a case-by-case basis in order to:

(a) 
ensure the oversight or accountability of the
public administration; or

(b) 
comply with the subpoena or warrant issued, or
an order made, by a court.

Article 4

Ensuring PNR data is provided

1.           The EU shall ensure that
air carriers are not prevented from transferring PNR data to the Canadian
Competent Authority pursuant to this Agreement.

2.           Canada shall not require
an air carrier to provide elements of PNR data which are not already collected
or held by the air carrier for reservation purposes.

3.           Canada shall delete upon
receipt any data transferred to it by an air carrier, pursuant to this
Agreement, if that data element is not listed in the Annex.

4.           The Parties shall ensure
that air carriers may transfer PNR data to the Canadian Competent Authority
through authorized agents, who act on behalf of and under the responsibility of
the air carrier, for the purpose of and under the conditions laid down in this
Agreement.

Article 5

Adequacy

Subject to compliance with this agreement,
the Canadian Competent Authority is deemed to provide an adequate level of
protection, within the meaning of relevant EU data protection law, for the
processing and use of PNR data. An air carrier that provides PNR data to Canada under this Agreement is deemed to comply with EU legal requirements for data transfer from
the EU to Canada.

Article 6

Police and judicial cooperation

1.           Canada shall share, as
soon as practicable, relevant and appropriate analytical information containing
PNR data obtained under this Agreement with Europol, Eurojust, within the scope
of their respective mandates, or the police or a judicial authority of a Member State. Canada shall ensure that this information is shared in accordance with
agreements, and with due regard for arrangements, on law enforcement or
information sharing between Canada and Europol, Eurojust, or that Member State.

2.           Canada shall share, at the
request of Europol, Eurojust, within the scope of their respective mandates, or
the police or a judicial authority of a Member State, PNR data or analytical
information containing PNR data obtained under this Agreement, in specific
cases to prevent, detect, investigate, or prosecute within the European Union a
terrorist offence or serious transnational crime. Canada shall make this information
available in accordance with agreements, and with due regard for arrangements,
on law enforcement, judicial cooperation or information sharing, between Canada and Europol, Eurojust or that Member State.

Safeguards Applicable to the Processing of
PNR Data

Article 7

Non-Discrimination

Canada shall ensure
that the safeguards applicable to the processing of PNR data apply to all
passengers on an equal basis without unlawful discrimination.

Article 8

Use of sensitive data

1.           If the PNR data collected
regarding a passenger includes sensitive data, Canada shall ensure that the
Canadian Competent Authority masks sensitive data using automated systems. Canada shall ensure that the Canadian Competent Authority shall not further process such
data except in accordance with paragraphs 3, 4 and 5.

2.           Canada shall provide the
European Commission with a list of codes and terms identifying sensitive data
that Canada is required to mask. Canada shall provide this list within 90 days
of the entry into force of the Agreement.

3.           Canada may process sensitive
data on a case-by-case basis in exceptional circumstances where such processing
is indispensable because an individual’s life is in peril or there is a risk of
serious injury.

4.           Canada shall ensure that
sensitive data is processed in accordance with paragraph 3 exclusively under
strict procedural measures, including the following:

(a) 
Processing of sensitive data is approved by the
Head of the Canadian Competent Authority;

(b) 
Sensitive data is processed only by a specifically
and individually authorized official; and

(c) 
Once unmasked, sensitive data is not processed
using automated systems.

5.           Canada shall delete
sensitive data no later than 15 days from the date that Canada receives it unless Canada retains it in accordance with Article 16(5).

6.           If, in accordance with
paragraphs 3, 4 and 5, the Canadian Competent Authority processes sensitive
data of an individual who is a citizen of a Member State, Canada shall ensure
that the Canadian Competent Authority notifies the authorities of that Member State of the processing at the earliest appropriate opportunity. Canada shall issue this notification in accordance with agreements or with due regard for
arrangements on law enforcement or information sharing between Canada and that Member State.

Article 9

Data security and integrity

1.           Canada shall implement
regulatory, procedural or technical measures to protect PNR data against
accidental, unlawful or unauthorized access, processing or loss.

2.           Canada shall ensure
compliance verification and the protection, security, confidentiality, and
integrity of the data. Canada shall:

(a) 
apply encryption, authorization, and
documentation procedures to the PNR data;

(b) 
limit access to PNR data to authorized
officials;

(c) 
hold PNR data in a secure physical environment
that is protected with access controls; and

(d) 
establish a mechanism that ensures that PNR
queries are conducted in a manner consistent with Article 3.

3.           If an individual’s PNR
data is accessed or disclosed without authorization, Canada shall take measures
to notify that individual, to mitigate the risk of harm, and to take remedial
action.

4.           Canada shall ensure that
the Canadian Competent Authority promptly informs the European Commission of
any significant incidents of accidental, unlawful or unauthorized access,
processing or loss of PNR data.

5.           Any breach of data
security, in particular leading to accidental or unlawful destruction or
accidental loss, alteration, unauthorised disclosure or access, or any unlawful
forms of processing shall be subject to effective and dissuasive corrective
measures which might include sanctions.

Article 10

Oversight

1.           The data protection
safeguards for the processing of PNR data under this Agreement will be subject
to oversight by an independent public authority, or by an authority created by
administrative means that exercises its functions in an impartial manner and
that has a proven record of autonomy. This authority shall have effective
powers to investigate compliance with the rules related to the collection, use,
disclosure, retention, or disposal of PNR data. It may conduct compliance
reviews and investigations, may report findings and make recommendations to the
Canadian Competent Authority. The overseeing authority has the power to refer
violations of law related to this Agreement for prosecution or disciplinary
action, when appropriate.

2.           The relevant authority
shall ensure that complaints relating to non-compliance with this Agreement are
received, investigated, responded to, and appropriately redressed.

Article 11

Transparency

1.           Canada shall ensure that
the Canadian Competent Authority makes the following available on its website:

(a) 
a list of the legislation authorizing the
collection of PNR data;

(b) 
the reason for the collection of PNR data;

(c) 
the manner of protecting the PNR data;

(d) 
the manner and extent to which the data may be
disclosed;

(e) 
information regarding access, correction,
notation and redress; and

(f) 
contact information for inquiries.

2.           The Parties shall work
with interested parties, such as the air travel industry, to promote
transparency, preferably at the time of booking, by providing the following
information to passengers:

(a) 
the reasons for PNR data collection;

(b) 
the use of PNR data;

(c) 
the procedure for requesting access to PNR data;
and

(d) 
the procedure for requesting the correction of
PNR data.

Article 12

Access for individuals

1.           Canada shall ensure that any
individual may access their PNR data.

2.           Canada shall ensure that
the Canadian Competent Authority, within a reasonable time shall:

(a) 
provide the individual with a copy of their PNR
data if the individual makes a written request for their PNR data;

(b) 
reply in writing to any request;

(c) 
provide the individual with access to recorded
information confirming that the individual’s PNR data has been disclosed, if
the individual requests that confirmation;

(d) 
set out the legal or factual reasons for any
refusal to allow access to the individual’s PNR data;

(e) 
inform the individual if the PNR data does not
exist;

(f) 
inform the individual that they may make a
complaint and of the complaint procedure.

3.           Canada may make any
disclosure of information subject to reasonable legal requirements and
limitations, including any limitations necessary to prevent, detect,
investigate, or prosecute criminal offences, or to protect public or national
security, with due regard for the legitimate interest of the individual
concerned.

Article 13

Correction or Notation for individuals

1.           Canada shall ensure that any
individual may request the correction of their PNR data.

2.           Canada shall ensure that the
Canadian Competent Authority considers all written requests for correction and
shall, within a reasonable time:

(a) 
correct the PNR data and notify the individual
that the correction has been made; or

(b) 
refuse all or part of the correction and:

(i)         attach a notation to the PNR data
reflecting any correction requested that was refused;

(ii)         notify the individual that:

i. the request for correction is refused, and
set out the legal or factual reasons for the refusal;

ii. the notation under sub-paragraph (i) is
attached to the PNR data; and

(c) 
inform the individual that they may make a
complaint and of the complaint procedure.

Article 14

Administrative and judicial redress

1.           Canada shall ensure that
an independent public authority, or an authority created by administrative
means that exercises its functions in an impartial manner and that has a proven
record of autonomy, will receive, investigate and respond to complaints lodged
by an individual concerning their request for access, correction or notation of
their PNR data. Canada shall ensure that the relevant authority will notify the
complainant of the means of seeking the judicial redress set out in paragraph
2.

2.           Canada shall ensure that
any individual who is of the view that their rights have been infringed by a
decision or action in relation to their PNR data may seek effective judicial
redress in accordance with Canadian law by way of judicial review, or such
other remedy which may include compensation.

Article 15

Decisions based on automated processing

Canada shall not
take any decisions significantly adversely affecting a passenger solely on the
basis of automated processing of PNR data.

Article 16

Retention of PNR data

1.           Canada shall not retain PNR
data for more than five years from the date that it receives the PNR data.

2.           Canada shall restrict
access to a limited number of officials specifically authorized by Canada.

3.           (a) Canada shall depersonalize through masking the names of all passengers 30 days after Canada receives the PNR data.

(b) Two years after Canada receives the PNR
data, Canada shall further depersonalize
through masking the following:

(i)         other names on PNR, including
number of travellers on PNR;

(ii)         all available contact information
(including originator information);

(iii)        general remarks including other
supplementary information (OSI), special service information (SSI) and special
service request (SSR) information, to the extent that it contains any
information capable of identifying a natural person; and

(iv)        any advance passenger information
(API) data collected for reservation purposes to the extent that it contains
any information capable of identifying a natural person.

4.           Canada may unmask PNR data
only if on the basis of available information, it is necessary to carry out
investigations under the scope of Article 3, as follows:

(a) 
from 30 days to two years after initial receipt
only by a limited number of specifically authorized officials; and

(b) 
from two years to five years after initial
receipt, only with prior permission by the Head of the Canadian Competent
Authority, or a senior official specifically mandated by the Head.

5.           Notwithstanding paragraph
1:

(a) 
Canada may retain PNR
data, required for any specific action, review, investigation, enforcement
action, judicial proceeding, prosecution, or enforcement of penalties, until
concluded;

(b) 
Canada shall retain the PNR data referred to in
(a) for an additional two-year period only to ensure the accountability of or
oversee public administration so that it may be disclosed to the passenger
should the passenger request it.

6.           Canada shall destroy the
PNR data at the end of the PNR data retention period.

Article 17

Logging and Documentation of PNR Data Processing

Canada shall log
all processing of PNR data. Canada shall only use logs or documentation:

(a) 
to self-monitor and to verify the lawfulness of
data processing;

(b) 
to ensure proper data integrity;

(c) 
to ensure the security of data processing; and

(d) 
to ensure oversight and accountability of the
public administration.

Article 18

Disclosure within Canada

1.           Canada shall ensure that
the Canadian Competent Authority shall disclose PNR data to other government
authorities in Canada if:

(a) 
the PNR data is disclosed to government
authorities whose functions are directly related to the scope of Article 3;

(b) 
the PNR data is disclosed only on a case-by-case
basis;

(c) 
under the particular circumstances the
disclosure is necessary for the purposes stated in Article 3;

(d) 
only the minimum amount of PNR data necessary is
disclosed;

(e) 
the receiving government authority affords
protection equivalent to the safeguards described in this Agreement; and

(f) 
the receiving government authority does not
disclose the PNR data to another entity unless the disclosure is authorized by
the Canadian Competent Authority respecting the conditions laid down in this
paragraph.

2.           When transferring
analytical information containing PNR data obtained under this Agreement, the
safeguards applying to PNR data in this Article shall be respected.

Article 19

Disclosure outside Canada

1.           Canada shall ensure that
the Canadian Competent Authority may disclose PNR data to government
authorities in countries other than the Member States of the European Union
only if the following conditions are met:

(a) 
the PNR data is disclosed to government authorities
whose functions are directly related to the scope of Article 3;

(b) 
the PNR data is disclosed only on a case-by-case
basis;

(c) 
the PNR data is disclosed only if necessary for
the purposes stated in Article 3;

(d) 
only the minimum PNR data necessary is disclosed;

(e) 
the Canadian Competent Authority is satisfied that:

(i)         the foreign authority receiving the PNR data applies
standards to protect the PNR
data that are equivalent
to those set out in this Agreement,
in accordance with agreements and with due regard for arrangements that
incorporate those standards; or

(ii)         the foreign authority applies the
standards to protect the PNR
data that it has agreed with the EU.

2.           If, in accordance with
paragraph 1, the Canadian Competent Authority discloses PNR data of an individual
who is a citizen of a Member State, Canada shall ensure that the Canadian
Competent Authority notifies the authorities of that Member State of the disclosure at the earliest appropriate opportunity. Canada shall issue this
notification in accordance with agreements or with due regard for arrangements
on law enforcement or information sharing between Canada and that Member State.

3.           When transferring
analytical information containing PNR data obtained under this Agreement, the
safeguards applying to PNR data in this Article shall be respected.

Article 20

Method of transfer

The Parties shall ensure that air carriers
transfer PNR data to the Canadian Competent Authority exclusively on the basis
of the push method and in accordance with the following procedures to be
observed by air carriers:

(a) 
transfer PNR data by electronic means in
compliance with technical requirements of the Canadian Competent Authority or,
in case of technical failure, by any other appropriate means ensuring an
appropriate level of data security;

(b) 
transfer PNR data using a mutually accepted
messaging format;

(c) 
transfer PNR data in a secure manner using
common protocols required by the Canadian Competent Authority.

Article 21

Frequency of transfer

1.           Canada shall ensure that
the Canadian Competent Authority requires an air carrier to transfer the PNR
data:

(a) 
on a scheduled basis with the earliest point
being up to 72 hours before scheduled departure; and,

(b) 
to a maximum of five times, for a particular
flight.

2.           Canada shall ensure that
the Canadian Competent Authority informs air carriers of the specified times
for the transfers.

3.           In specific cases where
there is an indication that additional access is necessary to respond to
specific threat related to the scope as described in Article 3, the Canadian
Competent Authority may require an air carrier to provide PNR data prior to,
between or after the scheduled transfers. In exercising this discretion, Canada shall act judiciously and proportionately and use the method of transfer described
in Article 20.

Implementing and Final Provisions

Article 22

PNR data received prior to the entry into force of this Agreement

Canada shall apply
the terms of this Agreement to all PNR data which it holds at the time this
Agreement enters into force.

Article 23

Reciprocity

1.           If the European Union
adopts a PNR data processing regime for the European Union, the Parties shall
consult to determine whether this Agreement should be amended to ensure full
reciprocity.

2.           Canada and EU authorities
shall cooperate to pursue the coherence of their respective PNR data processing
regimes in a manner that further enhances the security of citizens of Canada, the EU and elsewhere.

Article 24

Non-derogation

This Agreement shall not be construed to
derogate from any obligation between Canada and Member States of the EU or
third countries to make or respond to an assistance request under a mutual
assistance instrument.

Article 25

Dispute resolution and suspension

1.           The Parties shall resolve
any dispute arising from the interpretation, application or implementation of
this Agreement through diplomatic channels with a view to reaching a mutually
acceptable resolution, including providing an opportunity for either Party to
comply within a reasonable time.

2.           If the Parties are unable
to resolve the dispute, either Party may suspend the application of this
Agreement by notification in writing to the other Party, through diplomatic
channels. The suspension comes into effect 120 days from the date of such
notification, unless the parties jointly decide to do otherwise.

3.           The Party that suspends
the application of this Agreement shall cease the suspension as soon as the
dispute is resolved to the satisfaction of both Parties. The suspending Party
shall notify the other Party in writing of the date that the application of the
Agreement will resume.

4.           Canada shall continue to
apply the terms of this Agreement to all PNR data obtained before the
suspension of this Agreement.

Article 26

Consultation, review and amendments

1.           The Parties shall advise
each other of any measure that is to be enacted and that may affect this
Agreement.

2.           The Parties shall jointly
review the implementation of this Agreement one year after its entry into
force, and then at regular intervals thereafter and additionally if requested
by either Party and jointly decided.

3.           The Parties shall jointly
evaluate this agreement four years after its entry into force.

4.           The Parties shall decide
in advance of its modalities and shall communicate to each other the composition
of their respective teams. For the purpose of any review, the European Union
shall be represented by the European Commission. The teams shall include
relevant experts on data protection and law enforcement. Subject to applicable
laws, any participants to a review shall be required to respect confidentiality
of the discussions and have appropriate security clearances. For the purpose of
any review, Canada shall ensure access to relevant documentation, systems and
personnel.

5.           Following the joint review,
the European Commission shall present a report to the European Parliament and
to the Council of the European Union. Canada shall be given an opportunity to
provide written comments which shall be attached to the report.

6.           A Party proposing an
amendment to this Agreement shall do so in writing.

Article 27

Termination

1.           A Party may terminate this
Agreement at any time by giving notice to the other Party through diplomatic
channels of its intention. This Agreement terminates 120 days after the receipt
of the notification by the other Party.

2.           Canada shall continue to
apply the terms of this Agreement to all PNR data obtained before the
termination of this Agreement.

Article 28

Duration

1.           Subject to paragraph 2,
this Agreement shall remain in force for a period of seven years from the date
of entry into force.

2.           At the end of every
seven-year period, the Agreement automatically renews for an additional seven
years, unless a Party advises the other Party that it does not intend to renew
the Agreement. The Party must notify the other Party, in writing through
diplomatic channels, at least six months before the expiry of the seven-year
period.

3.           Canada shall continue to
apply the terms of this Agreement to all PNR data obtained before the
termination of this Agreement.

Article 29

Territorial application

1.           Subject to paragraphs 2 to
4, this Agreement shall apply to the territory in which the Treaty on European
Union and the Treaty on the Functioning of the European Union are applicable
and to the territory of Canada.

2.           This agreement will only
apply to the territory of Denmark, the United Kingdom, or Ireland if the European Union, through the European Commission, notifies Canada to that effect.

3.           If the European Union,
through the European Commission, notifies Canada before the entry into force of
this Agreement that it will apply to the territory of Denmark, the United Kingdom or Ireland, this agreement shall apply to the territory of such state on the same day
that the Agreement applies to the other European Union Member States.

4.           If the European Union,
through the European Commission, notifies Canada after the entry into force of
this agreement, that it applies to the territory of Denmark, the United Kingdom, or Ireland, this agreement shall apply to the territory of such state five days
following the date of the notification.

Article 30

Final Provisions

1.           Each Party shall notify
the other Party in writing when it has completed the procedures necessary for
the entry into force of this Agreement. This Agreement shall enter into force
on the date of the second of these notifications.

2.           Canada will notify the
European Commission before the entry into force of the Agreement through
diplomatic channels of the identity of the following authorities:

(a) 
the Canadian Competent Authority referred to in
Article 2(1)(d); and,

(b) 
the independent public authority and the
authority created by administrative means as referred to in Article 10 and
Article 14(1).

Canada shall notify
without delay any changes thereto.

3.           The European Union shall
publish information referred to in paragraph 2 in the Official Journal of the
European Union.

4.           This Agreement replaces
any prior arrangements on the processing of API and PNR data including the Agreement
between the Government of Canada and the European Community on the Processing
of Advance Passenger Information and Passenger Name Record Data, 22 March 2006.

Done in duplicate at xyz, on xyz, in the
English and French languages. This Agreement shall also be drawn up in the
Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, German, Greek, Hungarian,
Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak,
Slovenian, Spanish and Swedish languages. Once approved by the Parties by
exchange of notes, each version shall be considered equally authentic. In case
of divergence between the language versions, the English and French versions
shall prevail.

FOR CANADA

..................................................

FOR THE EUROPEAN UNION

..................................................

ANNEX

Passenger Name
Record data elements

1. PNR locator code;

2. date of reservation/ issue of ticket;

3. date(s) of intended travel;

4. name(s);

5. available frequent flyer and benefit
information (i.e., free tickets, upgrades, etc.);

6. other names on PNR, including number of
travellers on PNR;

7. all available contact information
(including originator information);

8. all available payment/billing
information (not including other transaction details linked to a credit card or
account and not connected to the travel transaction);

9. travel itinerary for specific PNR;

10. travel agency/travel agent;

11. code share information;

12. split/divided information;

13. travel status of passenger (including
confirmations and check-in status);

14. ticketing information, including ticket
number, one way tickets and Automated Ticket Fare Quote;

15. all baggage information;

16. seat information, including seat
number;

17. general remarks including Other
Supplementary Information (OSI), Special Service Information (SSI) and Special
Service Request (SSR) information;

18. any Advance Passenger Information (API)
data collected for reservation purposes;

19. all historical changes to the PNR data
listed in numbers (1) to (18).

[1]               OJ L82/15, 21.3.2006.

[2]               OJ L91/49, 29.3.2006.

[3]               OJ C81E/70, 15.3.2011.

[4]               OJ C74E/8, 13.3.2012.

[5]               COM(2010) 492 final, 21.9.2010.