Proposal for a Council Decision on the conclusion of the Agreement between the European Union and Australia on the processing and transfer of EU-sourced passenger name record (PNR) data by air carriers to the Australian Customs Service
Date: 2009-12-17
Institutions: European Commission
Subjects: Australia, European Union, agreement (EU), air transport, carrier, data protection, disclosure of information, personal data, signature of an agreement

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EUROPEAN COMMISSION 

Brussels, 17.12.2009 
COM(2009)701 final 

2009/0186 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Union and Australia  
on the processing and transfer of EU-sourced passenger name record (PNR) data  
by air carriers to the Australian Customs Service

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EXPLANATORY MEMORANDUM 

•  The Justice and Home Affairs Council of 30 June 2008 authorised the Presidency 
of the Council of the European Union to sign an agreement between the European 
Union  and  Australia  on  the  processing  and  transfer  of  European  Union-sourced 
passenger  name  record  (PNR)  data  by  air  carriers  to  the  Australian  Customs 
Service. The Agreement was signed by the Parties on 30 June 2008 and is applied 
provisionally as from that date.  

•  Australian  border  protection  legislation  empowers  Australian  Customs  to  risk 
assess international airlines' PNR data prior to passenger arrival in Australia. This 
legislation  aims  at  enhancing  the  security  of  the  Australian  border  and  territory 
and serves in particular to implement the Government's 2001 election programme 
to increase national security.  

•  The  main  purpose  of  the  Agreement  is  to  ensure  the  exchange  of  European 
passenger  information,  known  as  Passenger  Name  Record  or  PNR  data  with 
Australian  Customs  pursuant  to  which  this  service  assesses  the  risk  a  passenger 
may pose to Australian security.  

•  Within this context, the agreement provides a legal basis for the exchange of law 
enforcement  relevant  information  between  the  EU  and  Australia  for  the  fight 
against  terrorism  and  related  transnational  crime,  including  organised  crime,  in 
this case PNR data, thereby providing legal certainty for airlines, passengers and 
data  protection  authorities,  whilst  ensuring  the  protection  of  citizens'  privacy  as 
well as their physical security. In addition an EU agreement enables to apply this 
approach  homogeneously  throughout  the  European  Union  in  order  to  ensure 
respect  for  individuals'  right  to  privacy  and  to  avoid  distortion  of  competition 
between airlines.  

**** 

•  The  Agreement  aims  to  prevent  and  combat  terrorism  while  respecting 
fundamental  rights,  and  notably  the  protection  of  personal  data.  The  Agreement 
between  the  European  Union  and  Australia  on  the  processing  and  transfer  of 
European  Union-sourced  passenger  name  record  data  by  air  carriers  to  the 
Australian  Customs  Service  aims  to  ensure  full  respect  for  fundamental  rights 
enshrined in Article 6 of the Treaty on European Union and for the principles of 
proportionality and necessity regarding the right to respect for private and family 
life and the protection of personal data as set out in Articles 7 and 8 of the Charter 
of Fundamental Rights of the European Union. 

•  Article 218(6)(a) of the Treaty on the Functioning of the European  Union states 
that  in  the  case  of  agreements  covering  fields  to  which  the  ordinary  legislative 
procedure  applies,  the  Council  shall  adopt  a  decision  concluding  the  agreement, 
after obtaining the consent of the European Parliament.  

**** 

•  The  Commission  therefore  recommends  to  the  Council,  after  obtaining  the 
consent  of  the  European  Parliament,  to  adopt  a  decision  concluding  the 

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Agreement  between  the  European  Union  and  Australia  on  the  processing  and 
transfer  of  European  Union-sourced  passenger  name  record  (PNR)  data  by  air 
carriers to the Australian Customs Service.  

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2009/0186 (NLE) 

Proposal for a 

COUNCIL DECISION 

of [xx.xx.2010] 

on the conclusion of the Agreement between the European Union and Australia on the 
processing and transfer of European Union-sourced passenger name record (PNR) data 
by air carriers to the Australian Customs Service 

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 (6)(a) thereof,  

Having regard to the proposal from the Commission, 

Having regard to the consent of the European Parliament1,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

On 28 February 2008 the Council decided to authorise the Presidency, assisted by the 
Commission,  to  open  negotiations  for  a  long-term  agreement  between  the  European 
Union  and  Australia  on  the  processing  and  transfer  of  European-Union  sourced 
passenger name record (PNR) data by air carriers to the Australia Customs Service.  

In  accordance  with  Council  Decision  2008/651/CFSP/JHA  of  30  June  20082,  the 
Agreement between the European Union and Australia on the processing and transfer 
of  European  Union-sourced  passenger  name  record  (PNR)  data  by  air  carriers  to  the 
Australian Customs Service was signed on …, subject to its conclusion at a later date. 

In  accordance  with  its  Article  15(2)  the  provisions  of  the  Agreement  shall  apply 
provisionally as of the date of signature. 

The  Agreement  has  not  yet  been  concluded. With  the  entry  into  force  of  the  Lisbon 
Treaty  on  1  December  2009,  the  procedures  to  be  followed  to  that  end  by  the 
European Union are governed by Article 218 of the Treaty on the Functioning of the 
European Union. 

(5) 

The Agreement should be concluded. 

1 
2 

OJ C […], […], p. […]. 
OJ L 213, 8.8.2007, p. 47. 

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(6) 

(7) 

[In accordance with Article 3 of the Protocol 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. ] 

In  accordance  with  Articles  1  and  2  of  the  Protocol  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 Agreement between the European Union and Australia on the processing and transfer of 
European Union-sourced passenger name record (PNR) data by air carriers to the Australian 
Customs Service3 is hereby concluded 

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

Article 2 

The President of the Council shall designate the person empowered to proceed, on behalf of 
the European Union, to the exchange of the instruments of approval provided for in Article 15 
of the Agreement, in order to express the consent of the European Union to be bound by the 
Agreement. 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

The date of entry into force of the Agreement shall be published in the Official Journal of the 
European Union. 

Done at Brussels, […] 

For the Council 
The President 
[…] 

3 

OJ L 213, 8.8.2007, p. 49. 

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ANNEX 

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