Proposal for a Council Decision on the conclusion of an Agreement between the European Community and the Government of Canada on the processing of Advance Passenger Information (API)/Passenger Name Record (PNR) data
Date: 2005-05-19
Institutions: European Commission
Subjects: Canada, air safety, air transport, data protection, disclosure of information, fight against crime, protection of privacy, ratification of an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.05.2005 
COM(2005) 200 final 

2005/0095 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of an Agreement between 
the European Community and the Government of Canada on the processing of Advance 
Passenger Information (API)/Passenger Name Record (PNR) data 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The  attached  proposal  calls  on  the  Council  to  authorise  the  conclusion  of  an 
agreement  with  Canada  for  the  processing  and  transfer  of  Advanced  Passenger 
Information  (API)  and  Passenger  Name  Record  (PNR)  data  for  journeys  by  air 
carriers between the EU and Canada. It aims to ensure respect for fundamental rights 
and  freedoms,  notably  the  right  to  privacy,  while  supporting  the  fight  against 
terrorism  and  serious  transnational  crime.  The  Council  of  the  European  Union 
adopted a set of negotiating guidelines and authorised the Commission to negotiate 
such an Agreement with Canada on 7 March 2005. 

•  General context 

After September 11 2001, Canada adopted legislation authorising the Canada Border 
Services  Agency  (CBSA)  to  obtain  and  collect  API  and  PNR  data  relating  to  all 
persons  on  board  flights  bound  for  Canada.  CBSA  phased  in  the  requirement  to 
provide  PNR  data  relating  to  persons  on  board  flights  bound  for  Canada  between 
March  2003  and  September  2004,  and  from  February  2005  introduced  a  system  of 
monetary  penalties  for  non-compliance.  The  EU  has  a  temporary  derogation  from 
this requirement until 1 July 2005, in order to allow negotiations on an international 
agreement with Canada to take place. The Canadian measures potentially conflicted 
with Community and Member States' legislation on privacy and data protection, and 
in  particular  with  Directive  95/46/EC  (OJ  L  281,  23.11.95,  p.31).  From  July  2005, 
airlines  will  potentially  face  sanctions  for  non-compliance  on  both  sides,  without 
being able to solve the legal problems at stake. A solution is thus urgently required 
which  will  avoid  legal  uncertainty  for  airlines  while  ensuring  the  protection  of 
citizens' personal privacy as well as their physical security. 

•  Existing provisions in the area of the proposal 

There are no existing provisions in the area of the proposal 

•  Consistency with other policies and objectives of the Union 

The Commission has worked with Canada to put in place a sound legal framework 
for the transfer of API/PNR data to CBSA, along the lines of the model outlined in 
the Commission's Communication to the European Parliament and the Council of 16 
December  2003  (COM  (2003)  826  final,  "Transfer  of  Air  Passenger  Name  Record 
(PNR) Data: A Global EU Approach") and already followed with the United States. 

This legal framework consists of three elements. It is based: (i) on the Commitments 
made by CBSA with respect to the additional protection to be afforded to API/PNR 
data;  (ii)  a  Commission  Decision  finding  protection  adequate  under  Article  25 
paragraph  6  of  the  Data  Protection  Directive  (95/46/EC),  and;  (iii)  a  bilateral 
agreement between the European Community and Canada. 

EN 

2 

   EN 

 
2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

The proposal follows the policy established in COM (2003) 826 final. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

The proposed international agreement does not create additional obligations. Rather, 
it  provides  the  basis  in  Community  law  (see  "Summary  of  the  proposed  action" 
below)  for  air  carriers  operating  journeys  from  the  EU  to  Canada  to  comply  with 
existing  Canadian  requirements  to  process  and  transfer  API/PNR  data  to  Canada's 
competent authority, CBSA. It allows further competent authorities on either side to 
be designated at a later stage with the mutual agreement of the Parties. 

Since the proposed agreement creates no additional obligations, and urgent action is 
required  on  the  basis  of  established  policy  guidelines,  the  proposed  agreement  has 
not been the subject of an impact assessment. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The proposed agreement provides a legitimate basis for the transfer of data to Canada 
in accordance with the requirements of Article 7 of Directive 95/46/EC, that is, the 
creation  of  a  legal  obligation  within  the  Community  to  obey  requirements  under 
Canadian law. The application of this legal obligation is subject to the Commission 
Decision on adequacy being in force, in such a way as to ensure that any persistent 
non-compliance  by  Canada  with  its  Commitments  would  lead  to  suspension  of  the 
Decision and automatically to suspension of the agreement. 

The proposed agreement also enshrines the general principles of non-discrimination 
and reciprocity, and provides for annual joint review of its implementation. 

•  Legal basis 

Articles 95 and 300(2) of the Treaty establishing the European Community 

•  Subsidiarity Principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The 
subsidiarity principle therefore does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

EN 

3 

   EN 

 
The  proposed  international  agreement  represents  the  simplest,  quickest  and  most 
efficient  means  of  providing,  as  part  of  the  overall  legal  package,  a  legally  sound 
solution. 

The  proposed  agreement  does  not  create  additional  financial  burdens  for  the 
Community  or  national  governments.  The  administrative  requirement  to  hold  an 
annual  Joint  Review  of  the  implementation  of  the  agreement  is  proportional  to  its 
aim  of  providing  for  the  processing  and  transfer  of  API/PNR  data  consistent  with 
data  privacy  and  security  requirements,  and  will  be  fulfilled  using  existing  staff 
resources. 

•  Choice of instruments 

Proposed instruments: other. 

Other means would not be adequate for the following reason(s). 

The  instrument  proposed  is  an  international  agreement,  forming  part  of  a  legal 
package as described above. This instrument has been chosen because it represents 
the simplest and most efficient means of providing a legally sound solution. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

EN 

4 

   EN 

 
2005/0095 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of an Agreement between 
the European Community and the Government of Canada on the processing of Advance 
Passenger Information (API)/Passenger Name Record (PNR) data 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
95 thereof, in conjunction with the first sentence of the first subparagraph of Article 300 (2) 
thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Parliament2, 

Whereas: 

(1) 

On 7 March 2005 the Council authorised the Commission to negotiate on behalf of the 
Community  an  Agreement  with  Canada  on  the  processing  and  transfer  of  Advanced 
Passenger Information (API) and Passenger Name Record (PNR) data by air carriers 
to the Canada Border Services Agency (CBSA). 

(2) 

The Agreement should be approved. 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  Agreement  between  the  European  Community  and  the  Government  of  Canada  on  the 
processing of API/PNR data is hereby approved on behalf of the Community. 

The text of the Agreement is attached to this Decision. 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
sign the Agreement on behalf of the European Community. 

Article 2 

1 
2 

OJ C , , p. . 
OJ C , , p. . 

EN 

5 

   EN 

 
                                                 
Article 3 

This Decision shall be published in the Official Journal of the European Union. 

Done at Brussels,  

For the Council 
The President   

EN 

6 

   EN 

 
 
 
ANNEX  

AGREEMENT BETWEEN 
THE EUROPEAN COMMUNITY AND THE GOVERNMENT OF CANADA ON THE 
PROCESSING OF API/PNR DATA 

THE  EUROPEAN  COMMUNITY  AND  THE  GOVERNMENT  OF  CANADA,  hereinafter 
referred to as the “Parties”: 

RECOGNIZING the importance of respecting fundamental rights and freedoms, notably the 
right  to  privacy,  and  the  importance  of  respecting  these  values  while  preventing  and 
combating  terrorism  and  related  crimes  and  other  serious  crimes  that  are  transnational  in 
nature, including organized crime; 

HAVING  REGARD  to  the  Government  of  Canada  requirement  of  air  carriers  carrying 
persons to Canada to provide Advanced Passenger Information and Passenger Name Record 
(hereinafter  “API/PNR”)  data  to  the  competent  Canadian  authorities,  to  the  extent  it  is 
collected  and  contained  in  carriers’  automated  reservation  systems  and  departure  control 
systems (DCS); 

HAVING REGARD to 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, and in particular Article 7(c) thereof; 

HAVING  REGARD  to  the  Commitments  made  by  the  relevant  competent  authority  with 
regard  to  the  way  in  which  it  will  process  API/PNR  data  received  from  air  carriers 
(hereinafter “the Commitments”); 

HAVING  REGARD  to  the  relevant  Commission  Decision,  pursuant  to  Article  25(6)  of 
Directive  95/46/EC,  (hereinafter  “the  Decision”),  whereby  the  relevant  Canadian  competent 
authority  is  considered  as  providing  an  adequate  level  of  protection  for  API/PNR  data 
transferred  from  the  European  Community  (hereinafter  “the  Community”)  concerning 
passenger  flights  to  Canada,  in  accordance  with  the  relevant  Commitments,  which  are 
annexed to the respective Decision; 

HAVING  REGARD  to  the  Revised  Guidelines  on  API  adopted  by  the  World  Customs 
Organisation  (WCO), 
the 
International Civil Aviation Organisation (ICAO); 

the  International  Air  Transport  Association  (IATA)  and 

COMMITTED  to  work  together  to  assist  the  International  Civil  Aviation  Organization 
(ICAO)  in  the  development  of  a  multilateral  standard  for  the  transmission  of  PNR  data 
obtained from commercial airlines; 

HAVING  REGARD  to  the  possibility  of  effecting  modifications  to  Annex  I  to  the  present 
Agreement  in  the  future  by  simplified  procedures,  particularly  with  regard  to  ensuring 
reciprocity between the Parties; 

EN 

7 

   EN 

 
HAVE AGREED as follows: 

Article 1 

Purpose 

1. 

2. 

1. 

2. 

3. 

1. 

2. 

The purpose of this Agreement is to ensure that API/PNR data of persons on eligible 
journeys  are  provided  in  full  respect  of  fundamental  rights  and  freedoms,  in 
particular the right to privacy. 

An eligible journey is a passage by an air carrier from the territory of one Party to the 
territory of the requesting Party. 

Article 2 

Processing of API/PNR data 

The  Parties  agree  that  API/PNR  data  of  persons  on  eligible  journeys  will  be 
processed  as  outlined  in  Commitments  made  by  the  competent  authority  obtaining 
the API/PNR data. 

Commitments set forth the rules and procedures for the transmission and protection 
of API/PNR data of persons on eligible journeys provided to a competent authority. 

The competent authority shall process API/PNR  data received and treat persons  on 
eligible  journeys  to  which  the  API/PNR  data  relates  in  accordance  with  applicable 
laws  and  constitutional  requirements,  without  discrimination,  in  particular  on  the 
basis of nationality and/or country of residence. 

Article 3 

Access, correction and notation 

A competent authority shall afford to a person who is not present in the territory in 
which  that  authority  exercises  jurisdiction,  to  whom  the  API/PNR  data  processed 
pursuant  to  this  Agreement  relates,  access  to  the  data  as  well  as  the  opportunity  to 
seek correction if it is erroneous or add a notation to indicate a correction request was 
made. 

The  opportunity  provided  by  the  competent  authority  for  access,  correction  and 
notation with respect to such data shall be afforded in circumstances similar to those 
where it would be available to persons present in the territory in which that authority 
exercises jurisdiction. 

EN 

8 

   EN 

 
Article 4 

Competent authorities 

A  competent  authority  of  a  requesting  Party  is  an  authority  responsible  in  Canada  or  in  the 
European Union for processing API/PNR data of persons on eligible journeys as specified in 
Annex I to this Agreement, which forms an integral part thereof. 

1. 

2. 

3. 

1. 

Article 5 

Obligation to process API/PNR data 

In relation to the application of the Agreement within the Community, as it relates to 
the  processing  of  personal  data,  air  carriers  operating  eligible  journeys  from  the 
Community  to  Canada  shall  process  API/PNR  data  contained  in  their  automated 
reservation  systems  and  DCS  as  required  by  the  competent  Canadian  authorities 
pursuant to Canadian law. 

The  list  of  PNR  data  elements  that  air  carriers  operating  eligible  journeys  shall 
transfer to the Canadian competent authority pursuant to paragraph 1 is contained in 
Annex II to this Agreement, which forms an integral part thereof. 

The  obligation  set  forth  in  paragraphs  1  and  2  shall  only  apply  for  as  long  as  the 
Decision  is  applicable,  ceasing  to  have  effect  on  the  date  that  the  Decision  is 
repealed, suspended or expires without being renewed. 

Article 6 

Joint Committee 

A Joint Committee is hereby established, consisting of representatives of each Party, 
who  will  be  notified  to  the  other  Party  through  diplomatic  channels.  The  Joint 
Committee  shall  meet  at  a  place  and  on  a  date  with  an  agenda  fixed  by  mutual 
consent.  The  first  meeting  shall  take  place  within  six  months  of  entry  into  force  of 
this Agreement 

2. 

The Joint Committee shall, inter alia: 

a) 

b) 

c) 

act  as  a  channel  of  communication  with  regard  to  the  implementation  of  this 
Agreement and any matters related thereto; 

resolve, to the extent possible, any dispute which may arise with respect to the 
implementation of this Agreement and any matters related thereto; 

organise the Joint Reviews referred to in Article 8 and determine the detailed 
modalities of the joint review; 

EN 

9 

   EN 

 
d) 

adopt its rules of procedure. 

3. 

The Parties represented in the Joint Committee may agree modifications to Annex I 
to the Agreement, which will apply as from the date of such agreement. 

Article 7 

Settlement of Disputes 

The Parties shall consult promptly at the request of either concerning any dispute, which has 
not been resolved by the Joint Committee. 

Article 8 

Joint Reviews 

The  Parties  shall  conduct  on  an  annual  basis,  or  as  otherwise  agreed,  a  Joint  Review  of  the 
implementation  of  this  Agreement  and  any  matters  related  thereto  as  set  out  in  Annex  III, 
which  forms  an  integral  part  thereof,  including  developments  such  as  the  definition  by  the 
International Civil Aviation Organisation of relevant PNR guidelines. 

Article 9 

Entry into force, amendments to and termination of the Agreement 

1. 

2. 

3. 

This  Agreement  shall  enter  into  force  upon  exchange  of  notifications  between  the 
Parties  advising  that  the  procedures  required  for  entry  into  force  of  the  Agreement 
have  been  completed.  This  Agreement  shall  come  into  force  on  the  date  of  the 
second notification. 

Without  prejudice  to  Article  6(3),  this  Agreement  may  be  amended  by  agreement 
between the Parties. Such amendment shall enter into force 90 days after the Parties 
have exchanged notifications of completion of the relevant internal procedures. 

This  Agreement  may  be  terminated  by  either  Party  at  any  time  following  written 
notification 90 days in advance of the proposed termination date. 

EN 

10 

   EN 

 
Article 10 

This Agreement is not intended to derogate from or amend legislation of the Parties. 

IN  WITNESS  WHEREOF  the  undersigned,  being  duly  authorized  thereto,  have  signed  the 
present Agreement. 

DONE, in duplicate, in _________, this _____ day of ________, in the Czech, Danish, Dutch, 
English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, 
Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish languages, each version 
being equally authentic. In case of divergence the English and French versions shall prevail. 

For the EUROPEAN COMMUNITY 

For the GOVERNMENT of CANADA 

EN 

11 

   EN 

 
Annex I: 

Competent Authorities 

For  the  purpose  of  Article  3,  the  competent  authority  for  Canada  is  the  Canada  Border 
Services Agency (CBSA). 

EN 

12 

   EN 

 
Annex II: 

PNR Data Elements to be collected 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

PNR record locator 

Date of reservation 

Date(s) of intended travel 

Name 

Other names on PNR 

All forms of payment information 

Billing address 

Contact telephone numbers 

All travel itinerary for specific PNR 

10 

Frequent flyer information (limited to miles flown and address (es)) 

11. 

Travel agency 

12. 

Travel agent 

13. 

Split/Divided PNR information 

14. 

Ticketing field information 

15. 

Ticket number 

16. 

Seat number 

17. 

Date of ticket issuance 

18. 

No show history 

19. 

Bag tag numbers 

20. 

Go show information 

21. 

Seat information 

22. 

One-way tickets 

23. 

Any collected APIS information 

24. 

Standby 

25. 

Order at check in 

EN 

13 

   EN 

 
Annex III: 

Joint Review 

The Parties will communicate to each other in advance of the joint review the composition of 
their respective teams, which may include appropriate authorities concerned with privacy/data 
protection, customs, immigration, enforcement, intelligence and interdiction, and other forms 
of law enforcement, border security and/or aviation security, including experts from Member 
States of the European Union. 

Subject  to  applicable  laws,  any  participants  in  the  review  will  be  required  to  respect  the 
confidentiality  of  the  discussions  and  have  appropriate  security  clearances.  Confidentiality 
will not however be an obstacle to each Party making an appropriate report on the results of 
the joint review to their respective competent bodies, including the Parliament of Canada and 
the European Parliament. 

The Parties will jointly determine the detailed modalities of the joint review 

EN 

14 

   EN