Proposal for a Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR agreement)
Date: 2009-12-17
Institutions: European Commission
Subjects: European Union, United States, 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)702 final 

2009/0187 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Union and the United States 
of America 
on the processing and transfer of Passenger Name Record (PNR) data by air carriers to 
the United States Department of Homeland Security (DHS) (2007 PNR agreement)  

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EXPLANATORY MEMORANDUM 

•  The Justice and Home Affairs Council of 23 July 2007 authorised the Presidency 
of the Council of the European Union to sign an agreement between the European 
Union  and  the  United  States  of  America  on  the  processing  and  transfer  of 
Passenger  Name  Record  (PNR)  data  by  air  carriers  to  the  United  States 
Department  of  Homeland  Security  (DHS).  The  Agreement  was  signed  by  the 
European Union on 23 July 2007 and by the United States on 26 July 2007 and is 
applied provisionally as from 26 July 2007.  

•  The purpose  of the  Agreement is to ensure the exchange of European  passenger 
information,  known  as  Passenger  Name  Record  or  PNR  data  with  the  United 
States Department of Homeland Security pursuant to which its services assess the 
risk a passenger may pose to American security. 

•  The  aim  of  the  agreement  is  to  provide  a  legal  basis  for  the  exchange  of 
information relevant for law enforcement and judicial authorities between the EU 
and  the  United  States  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 the United States of America on the processing 
and transfer of Passenger Name Record (PNR) data by air carriers to the United 
States  Department  of  Homeland  Security  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 
Agreement between the European Union and the United States of America on the 
processing and transfer of Passenger Name Record (PNR) data by air carriers to 
the United States Department of Homeland Security. 

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2009/0187 (NLE) 

Proposal for a 

COUNCIL DECISION 

of [xx.xx.2010] 

on the conclusion of the Agreement between the European Union and the United States 
of America on the processing and transfer of Passenger Name Record (PNR) data by air 
carriers to the United States Department of Homeland Security (DHS) (2007 PNR 
agreement) 

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 22 February 2007 the Council decided to authorise the Presidency, assisted by the 
Commission,  to  open  negotiations  for  a  long-term  agreement  between  the  European 
Union and the United States of America on the processing and transfer of Passenger 
Name Record (PNR) data by air carriers to the United States Department of Homeland 
Security (DHS).  

In  accordance  with  Council  Decision  2007/551/CFSP/JHA  of  23  July  20072the 
Agreement  between  the  European  Union  and  the  United  States  of  America  on  the 
processing  and  transfer  of  Passenger  Name  Record  (PNR)  data  by  air  carriers  to  the 
United States Department of Homeland Security (DHS) was signed on …, subject to 
its conclusion at a later date. 

In  accordance  with  its  point  9)  the  provisions  of  the  Agreement  are  applied  on  a 
provisional basis, as from the date of its 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. 

1 
2 

OJ C […], […], p. […]. 
OJ L 204, 4.8.2007, p. 16. 

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(5) 

(6) 

(7) 

The Agreement should be concluded. 

[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  the  United  States  of  America  on  the 
processing and transfer of Passenger Name Record (PNR) data by air carriers to the United 
States Department of Homeland Security (DHS)3, together with the accompanying letter from 
the DHS and the letter from the European Union in reply 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 point 9 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 204, 4.8.2007, p. 18. 

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ANNEX 

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