on the joint evaluation of the Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

On the joint evaluation of the Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security

Introduction

The Agreement between the United States of America (U.S.) and the European Union (EU) on the use and transfer of passenger name record (PNR) data to the Department of Homeland Security (DHS) entered into force on 1 July 2012. The Agreement under Article 23(1) states that the Parties shall jointly evaluate this Agreement 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 U.S on 2 August 2019 in advance of the joint evaluation. The Department of Homeland Security 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 5 and 6 September 2019 followed by a U.S. visit to the Belgian and Dutch Passenger Information Units (PIUs), and Europol on 22 and 23 October 2019.

·The EU team also had the opportunity and the time to raise further questions with DHS personnel responsible for the PNR programme 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 DHS, providing the U.S. 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 the U.S 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).

The joint evaluation also analysed and assessed the safeguards contained in the EU-U.S PNR Agreement. These include the application of the validation and review process for the access rights for officials and targeting rules, the processing of sensitive data by the U.S authorities, as well as the mechanisms to ensure transparency, access, correction and redress. In addition, the assessment also covered the oversight activities carried out by the U.S, and the onward sharing of PNR data both to U.S entities outside of DHS and to third countries.