Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data
Date: 2004-04-29
Institutions: Council of the European Union
Subjects: border control, carriage of passengers, disclosure of information, illegal migration, penalty, personal data, transport company

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Official Journal of the European Union

6.8.2004

COUNCIL DIRECTIVE 2004/82/EC

of 29 April 2004

on the obligation of carriers to communicate passenger data

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 62(2)(a) and Article 63(3)(b)
thereof,

Having regard to the initiative of the Kingdom of Spain (1),

Whereas:

(8) Without prejudice

to the provisions of Directive
95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on
the free movement of such data (3), the freedom of the
Member States to retain or introduce additional obliga-
tions for aircarriers or some categories of other carriers,
including information or data in relation to return
tickets, whether referred to in this Directive or not,
should not be affected.

(1)

(2)

(3)

(4)

(5)

(6)

(7)

In order to combat illegal immigration effectively and to
improve border control, it is essential that all Member
States introduce provisions laying down obligations on
air carriers transporting passengers into the territory of
the Member States. In addition, in order to ensure the
greater effectiveness of this objective, the financial penal-
ties currently provided for by the Member States for
cases where carriers fail to meet their obligations should
be harmonised to the extent possible,
taking into
account the differences in legal systems and practices
between the Member States.

The European Council of 25 and 26 March 2004
adopted a Declaration on combating terrorism stressing
the need to expedite examination of measures in this
area and take work forward on the proposed Council
Directive on the obligation of carriers to communicate
passenger data with a view to an early conclusion on
this measure.

It is important to avoid a vacuum in the Community's
action in combating illegal immigration.

As from 1 May 2004 the Council can no longer act on
an initiative of a Member State.

The Council has exhausted all possibilities to obtain in
time the opinion of the European Parliament.

these exceptional circumstances the Directive
the

adopted without

the opinion of

Under
should be
European Parliament.

The obligations to be imposed on carriers by virtue of
this Directive are complementary to those established
pursuant to the provisions of Article 26 of the 1990
Schengen Convention implementing
Schengen
Agreement of 14 June 1985, as
supplemented by
Council Directive 2001/51/EC (2), the two types of obli-
gation serving the same objective of curbing migratory
flows and combating illegal immigration.

the

(9)

In order to combat illegal immigration more effectively
and in order to ensure the greater effectiveness of this
objective,
it is essential that, without prejudice to the
provisions of Directive 95/46/EC, account be taken at
the earliest opportunity of any technological innovation,
especially with reference to the integration and use of
biometric features in the information to be provided by
the carriers.

(10) Member States should ensure that in any proceedings
brought against carriers which may result in the applica-
tion of penalties, the rights of defence and the right of
appeal against such decisions can be exercised effec-
tively.

(11)

These measures take up the control options set out in
the Decision of the Executive Committee of Schengen
(SCH/Com-ex (94) 17-rev. 4),
enabling
border checks to be increased and providing for suffi-
cient time to enable detailed and comprehensive checks
to be carried out on all passengers through the transmis-
sion of passenger data to the authorities responsible for
carrying out such controls.

aimed at

(12) Directive 95/46/EC applies with regard to the processing
of personal data by the authorities of the Member States.
This means,
that whereas it would be legitimate to
process the passenger data transmitted for the perfor-
the purposes of
mance of border checks also for
allowing their use as evidence in proceedings aiming at
the enforcement of the laws and regulations on entry
and immigration,
including their provisions on the
protection of public policy (ordre public) and national
security, any further processing in a way incompatible
with those purposes would run counter to the principle
set out in Article 6(1)(b) of Directive 95/46/EC. Member
States should provide for a system of sanctions to be
applied in the event of use contrary to the purpose of
the present Directive.

(1) OJ C 82, 5.4.2003, p. 23.
(2) OJ L 187, 10.7.2001, p. 45.

(3) OJ L 281, 23.11.1995, p. 31.

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(13)

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on Euro-
pean Union and the Treaty establishing the European
Community, Denmark is not taking part in the adoption
of this Directive, and is not bound by it or subject to its
application. Given that this Directive builds upon the
Schengen acquis under the provisions of Title IV of Part
Three of
the Treaty establishing the European Com-
munity, Denmark shall, in accordance with Article 5 of
the said Protocol, decide within a period of six months
after the Council has adopted this Directive whether it
will implement it in its national law.

(14) As regards Iceland and Norway, this Directive constitutes
a development of the provisions of the Schengen acquis
within the meaning of the Agreement concluded by the
Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the
latter's association with the implementation, application
and development of the Schengen acquis (1), which fall
within the area referred to in Article 1, point E, of
Council Decision 1999/437/EC of 17 May 1999 on
certain arrangements for the application of that Agree-
ment (2).

(15)

(16)

The United Kingdom is taking part in this Directive in
accordance with Article 5 of the Protocol integrating the
Schengen acquis into the framework of the European
Union annexed to the Treaty on European Union and to
the Treaty establishing the European Community, and
Article 8(2) of Council Decision 2000/365/EC of 29
May 2000 concerning the
the United
Kingdom of Great Britain and Northern Ireland to take
part in some of the provisions of the Schengen acquis (3).

request of

Ireland is taking part in this Directive in accordance with
Article 5 of the Protocol integrating the Schengen acquis
into the framework of the European Union annexed to
the Treaty on European Union and the Treaty estab-
lishing the European Community, and Article 6(2) of
Council Decision 2002/192/EC of 28 February 2002
concerning Ireland's request to take part in some of the
provisions of the Schengen acquis (4).

(17)

This Directive constitutes an act building upon the
Schengen acquis or otherwise related to it within the
meaning of Article 3(1) of the 2003 Act of Accession,

passenger data by carriers to the competent national authori-
ties.

Article 2

Definitions

For the purpose of this Directive:

(a) ‘carrier’ means any natural or legal person whose occupa-

tion it is to provide passenger transport by air;

(b) ‘external borders’ means

the external borders of

the

Member States with third countries;

(c) ‘border control’ means a check carried out at a border in
response exclusively to an intention to cross that border,
regardless of any other consideration;

(d) ‘border crossing point’ means any crossing point authorised

by the competent authorities for crossing external borders;

(e) ‘personal data’,

‘processing of personal data’ and ‘personal
data filing system’ have the meaning as stipulated under
Article 2 of Directive 95/46/EC.

Article 3

Data transmission

1. Member States shall take the necessary steps to establish
an obligation for carriers to transmit at the request of the
authorities responsible for carrying out checks on persons at
external borders, by the
information
concerning the passengers they will carry to an authorised
border crossing point through which these persons will enter
the territory of a Member State.

check-in,

end of

2.

The information referred to above shall comprise:

— the number and type of travel document used,

— nationality,

— full names,

— the date of birth,

HAS ADOPTED THIS DIRECTIVE:

— the border crossing point of entry into the territory of the

Article 1

Objective

This Directive
and
combating illegal immigration by the transmission of advance

improving border

controls

aims

at

(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) OJ L 131, 1.6.2000, p. 43.
(4) OJ L 64, 7.3.2002, p. 20.

Member States,

— code of transport,

— departure and arrival time of the transportation,

— total number of passengers carried on that transport,

— the initial point of embarkation.

In any case the transmission of the above mentioned data
3.
does not discharge the obligations and responsibilities laid
down in the provisions of Article 26 of the Schengen Conven-
tion for carriers, as supplemented by Directive 2001/51/EC.

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Article 4

Sanctions

1. Member States shall
take the necessary measures to
impose sanctions on carriers which, as a result of fault, have
not transmitted data or have transmitted incomplete or false
data. Member States shall
take the necessary measures to
ensure that sanctions are dissuasive, effective and proportionate
and that either:

(a) the maximum amount of such sanctions is not less than
EUR 5 000, or than the equivalent national currency at the
rate of exchange published in the Official Journal of the Euro-
pean Union on the day on which this Directive enters into
force for each journey for which passenger data were not
communicated or were communicated incorrectly; or

(b) the minimum amount of such sanctions is not less than
EUR 3 000, or than the equivalent national currency at the
rate of exchange published in the Official Journal of the Euro-
pean Union on the day on which this Directive enters into
force for each journey for which passenger data were not
communicated or were communicated incorrectly.

2.
This Directive shall not prevent Member States from
adopting or retaining, for carriers which infringe very seriously
the obligations arising from the provisions of this Directive,
other sanctions, such as immobilisation, seizure and confisca-
tion of the means of transport, or temporary suspension or
withdrawal of the operating licence.

Article 5

Proceedings

Member States shall ensure that these data are collected by the
carriers and transmitted electronically or, in case of failure, by
any other appropriate means to the authorities responsible for
carrying out border checks at the authorised border crossing
point through which the passenger will enter the territory of a
Member State. The authorities responsible for carrying out
checks on persons at external borders shall save the data in a
temporary file.

After passengers have entered, these authorities shall delete the
data, within 24 hours after transmission, unless the data are
needed later for the purposes of exercising the statutory func-
tions of the authorities responsible for carrying out checks on
persons at external borders in accordance with national
law
and subject to data protection provisions under Directive 95/
46/EC.

Member States shall take the necessary measures to oblige
carriers to delete, within 24 hours of the arrival of the means
of transportation pursuant to Article 3(1), the personal data
they have collected and transmitted to the border authorities
for the purposes of this Directive.

In accordance with their national
to data
protection provisions under Directive 95/46/EC, Member States
may also use the personal data referred to in Article 3(1) for
law enforcement purposes.

law and subject

2. Member States shall take the necessary measures to oblige
the carriers to inform the passengers in accordance with the
provisions laid down in Directive 95/46/EC. This shall also
comprise the information referred to in Article 10(c) and
Article 11(1)(c) of Directive 95/46/EC.

Member States shall ensure that their laws, regulations and
administrative provisions stipulate that carriers against which
proceedings are brought with a view to imposing penalties
have effective rights of defence and appeal.

Article 7

Transposal

Article 6

Data processing

1.
The personal data referred to in Article 3(1) shall be
communicated to the authorities responsible for carrying out
checks on persons at external borders through which the
passenger will enter the territory of a Member State, for the
purpose of facilitating the performance of such checks with the
objective of combating illegal immigration more effectively.

1. Member States shall
take the necessary measures to
comply with this Directive not later than 5 September 2006.
They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate the main provisions of
national
law which they adopt in the field covered by this
Directive to the Commission.

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This Directive shall enter into force 30 days after its publication in the Official Journal of the European Union.

Article 8

Entry into force

Article 9

Addressees

This Directive is addressed to the Member States in accordance with the Treaty establishing the European
Community.

Done at Luxembourg, 29 April 2004.

For the Council

The President

M. McDOWELL