on the joint evaluation of 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

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

On the joint evaluation of 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

Introduction

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 service entered into force on 1 June 2012. The Agreement, under Article 24(4), states that both parties shall evaluate the Agreement, in particular its operational effectiveness, no later than four years after its entry into force.

The joint evaluation consists of a more thorough examination of the Agreement, by exploring the wider functioning and operationally added value and assessing its results, impacts, effectiveness, necessity and proportionality. It also offers an opportunity to take stock of any impact caused by the evolution of the relevant legal framework and case law of both parties. Hence, the joint evaluation takes a wider approach than the joint reviews, whereby both parties assess whether the Agreement is being implemented correctly.

Preparation process for the joint evaluation and Report

·The Commission sent a questionnaire to the Department of Home Affairs (herein after “the Department”) of Australia on 28 June 2019 in advance of the joint evaluation. The Department provided written draft replies to the questionnaire prior to the joint evaluation and a final consolidated version thereafter.

·The EU team conducted the joint evaluation visit on 15 August 2019.

·At the request of the Department, all members of the EU team signed a copy of a non-disclosure agreement as a condition for their participation in this review exercise.

·The replies to the questionnaire were discussed in detail with the Department. The EU team also had the opportunity and the time to raise further questions with Department officials and address all the various aspects of the Agreement.

·The findings of the EU team were laid down in the accompanying Staff Working Document which was shared with the Department, providing Australia with the opportunity to comment on inaccuracies and identify information which cannot be disclosed to public audiences.

The accompanying Staff Working Document provides more detailed information and a comprehensive analysis of the methodology of the joint evaluation and all matters covered by this report.

Findings of the Joint Evaluation

The main findings of the joint evaluation can be summarised as follows:

The evaluation teams have discussed different ways in which PNR data are used for purposes of preventing, detecting, investigating, and prosecuting terrorist offenses and related crimes and certain other crimes that are transnational in nature. The joint evaluation confirmed that PNR data contains elements that are not available through other means, and in particular, the information contained within PNR data cannot be found in any other type of data collection.

The necessity of the collection of PNR data was also demonstrated by its ability to assist the relevant authorities in identifying high risk travellers who are not otherwise known to law enforcement agencies. Moreover, the usefulness of retained - so called historical - PNR data has been illustrated by numerous examples in which historical PNR data had been crucial in solving high-profile counterterrorism cases not only in Australia but also in the EU.

In addition, the joint evaluation also takes note of the growing interest in the use of PNR worldwide for anti-terrorism and law enforcement purposes and newly created international obligations. In this context, particular reference is made to the adoption of the EU PNR Directive and, globally, to the new Standards and Recommended Practices (or SARPs) on the collection, use, processing and protection of PNR data by the International Civil Aviation Organisation (ICAO), as mandated by United Nations Security Council Resolution 2396 (2017).