COMMUNICATION FROM THE COMMISSION On the global approach to transfers of Passenger Name Record (PNR) data to third countries
Date: 2010-09-21
Institutions: European Commission
Subjects: air transport, carrier, data protection, disclosure of information, personal data, third country

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EUROPEAN COMMISSION 

Brussels, 21.9.2010 
COM(2010) 492 final 

COMMUNICATION FROM THE COMMISSION 

On the global approach to transfers of Passenger Name Record (PNR) data to third 
countries 

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COMMUNICATION FROM THE COMMISSION 

On the global approach to transfers of Passenger Name Record (PNR) data to third 
countries 

1. 

INTRODUCTION 

The terrorist attacks in the United States in 2001, in Madrid in 2004 and in London in 2005 
led to a new approach to internal security policies. Recent events like the attempted terrorist 
attack  on  an  airplane  on  Christmas  Day  in  2009  and  in  Times  Square,  New  York  in  2010 
indicate that the terrorist threat is still with us. At the same time, organised crime, especially 
drugs and human trafficking, is increasing1. 

As  a  response  to  these  continuing  threats,  the  EU  and  other  third  countries  adopted  new 
measures, which included the collection and exchange of personal data. An overview of these 
measures has been provided by the Commission in its Overview of information management 
in the area of freedom, security and justice2. The use of Passenger Name Record (PNR) data 
for law enforcement purposes is one such measure. 

On  16  January  2003  the  Commission  issued  a  Communication  to  the  Council  and  the 
Parliament  on  the  Transfer  of  Air  Passenger  Name  Record  (PNR)  Data:  A  Global  EU 
Approach3  aimed  at  setting  out  the  elements  of  a  global  EU  approach  on  PNR.  The 
Communication  called  for  a  legally  secure  framework  for  PNR  transfers  to  the  US 
Department  of  Homeland  Security  and  the  adoption  of  an  internal  policy  on  PNR.  It  also 
called for the development of the push system of transfers of data by the air carriers4 and an 
international  initiative  on  PNR  data  transfers  by  International  Civil  Aviation  Organisation 
(ICAO). 

The  conclusions  of  that  Communication  have  been  implemented  to  a  large  extent,  while 
others are in the process of being implemented. Namely, the EU signed an agreement with the 
U.S. Department of Homeland Security for the transfer of PNR data in the interest of the fight 
against  terrorism  and  serious  transnational  crime  and  which  ensures  transfer  of  PNR  data 
whilst providing for  the  protection of personal data5. In addition the Commission adopted a 
proposal for a Framework Decision for the use of PNR data for law enforcement purposes6. 
The Commission is currently examining, on the basis of an impact assessment, the possibility 
of  replacing  it  with  a  proposal  for  a  Directive  on  the  use  of  PNR  data  for  law  enforcement 
purposes.  The  push  system  of  transfers  of  data  has  been  adequately  developed  by  most 
carriers while ICAO developed a series of guidelines for PNR transfers to governments. 
In addition to the agreement with the US, the EU signed similar agreements with Canada7 and 
Australia8. New Zealand, South Korea and Japan are also using PNR data but until the date of 
this  report,  have  not  entered  into  agreements  with  the  EU.  Within  the  EU,  the  United 

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Eurostat 36/2009. 
COM(2010) 385. 
COM(2003) 826. 
The 'push' system entails that the carrier transmits the data to the third country, rather than the carrier 
allowing access to its databases by a third country. 
OJ L 204, 4.8.2007, p. 16. 
COM(2007) 654. 
OJ L 91, 29.3.2006, p. 53, OJ L 91, 29.3.2006, p. 49 and OJ L 82, 21.3.2006, p. 15. 
OJ L 213, 8.8.2008 p. 49. 

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Kingdom  has  a  PNR  system  in  place,  while  other  Member  States  have  either  enacted  the 
relevant legislation or are testing using PNR data. 

These developments indicate that the use of PNR data is growing and is increasingly seen as a 
mainstream and necessary aspect of law enforcement work. At the same time, the use of PNR 
data involves the processing of personal data which raises important issues with respect to the 
fundamental rights to the protection of private life and to the protection of personal data. 

As a result, the EU is faced with new challenges as regards international PNR transfers. The 
number  of  countries  in  the  world  developing  PNR  systems  will  most  likely  increase  in  the 
coming  years.  Furthermore,  the  EU  gained  important  insight  into  the  structure  and  value  of 
PNR  systems  through  its  experience  with  carrying  out  joint  reviews  of  the  agreements  with 
US and Canada. 

The Commission therefore deems it necessary to re-consider its global approach to transfers 
of  PNR  data  to  third  countries.  The  revision  of  this  approach  should  ensure  strong  data 
protection guarantees and full respect of fundamental rights, and be in line with the principles 
of policy development which have been defined in the Overview of information management 
in the area of freedom, security and justice9. The views on general PNR issues of the major 
stakeholders, like the Member States, the European Parliament, the European Data Protection 
Supervisor and the Article 29 Data Protection Working Party, are especially important in the 
development of the revised approach on PNR. 

The  key  objective  of  this  communication  is  to  establish,  for  the  first  time,  a  set  of  general 
criteria  which  should  form  the  basis  of  future  negotiations  on  PNR  agreements  with  third 
countries. This will assist the EU in dealing with the current trends, while also serving as a 
method  to  communicate  to  third  countries,  to  Member  States  and  to  citizens  how  the 
European  Commission  wishes  to  define  its  external  PNR  policy.  Recommendations  by  the 
Commission  for  negotiations  of  PNR  agreements  with  third  countries  should  in  the  future 
respect, at a minimum, the general criteria established in the Communication, while additional 
criteria could be set in each recommendation. 

2. 

INTERNATIONAL TRENDS ON PNR 

2.1. 

PNR data and its use 

PNR  data  is  unverified  information  provided  by  passengers  and  collected  by  carriers  for 
enabling reservations and carrying out the check-in process. It is a record of each passenger's 
travel  requirements  held  in  carriers'  reservation  and  departure  control  systems.  It  contains 
several different types of information, for example dates of travel and travel itinerary, ticket 
information,  contact  details  like  address  and  phone  numbers,  travel  agent,  payment 
information, seat number and baggage information. 

PNR  data  are  different  from  Advance  Passenger  Information  (API).  API  data  are  the 
biographical information taken from the machine-readable part of a passport and contain the 
name,  place  of  residence,  place  of  birth  and  nationality  of  a  person.  Under  the  API 
Directive10, API data are made available to border control authorities only for flights entering 
the  territory  of  the  EU  for  the  purpose  of  improving  border  controls  and  combating  illegal 
immigration.  Even  though  their  use  for  other  law  enforcement  purposes  is  permitted  by  the 
Directive,  this  is  thought  to  be  an  exception  rather  than  a  rule.  They  are  held  by  Member 
States for 24 hours. 

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COM(2010) 385. 
Directive 2004/82/EC of 29.8.2004 on the obligation of carriers to communicate passenger data. 

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API  data  are  mainly  used  to  carry  out  identity  checks  as  part  of  border  controls  and  border 
management, although in some cases the data is also used by law enforcement authorities in 
order to identify suspects and persons sought. API data are thus primarily used as an identity 
management tool. The use of such data is becoming increasingly common around the world 
with more than 30 countries using it systematically, while more than 40 are in the process of 
setting up API systems. 

In addition to the transmission of API data, some countries require carriers to transmit to them 
PNR  data.  Such  data  are  then  used  in  the  fight  against  terrorism  and  serious  crime,  such  as 
trafficking in  human beings and  drugs. PNR have been used  for almost 60  years  mainly by 
Customs  authorities  but  also  law  enforcement  authorities  around  the  world.  However,  until 
recently  now,  it  was  not  technologically  possible  to  access  such  data  electronically  and  in 
advance,  so  their  use  was  limited  to  manual  processing  of  only  some  flights.  The 
technological advances today make the advance electronic transmission of the data possible. 

The uses of PNR data are very different from those of API data, largely due to the fact that a 
PNR contains very different types of data. PNR are mainly used as a criminal intelligence tool 
rather than as an identity verification tool. The uses of PNR are mainly the following: (i) risk 
assessment  of  passengers  and  identification  of  "unknown"  persons,  i.e.  persons  that  might 
potentially be of interest to law enforcement authorities and who were so far unsuspected, (ii) 
earlier  availability  than  API  data,  and  provision  of  an  advantage  to  law  enforcement 
authorities  in  allowing  more  time  for  its  processing,  analysis  and  any  follow-up  action,  (iii) 
identification  to  which  persons  specific  addresses,  credit  cards  etc  that  are  connected  to 
criminal offences belong, and (iv) matching of PNR against other PNR for the identification 
of associates of suspects, for example by finding who travels together. 

PNR data are unique in their nature and their use. Such use can be: 

re-active (historical data): use in investigations, prosecutions, unravelling of networks after 
a crime has been committed. In order to allow law enforcement authorities to sufficiently go 
back in time, a commensurate period of retention of the data by law enforcement authorities is 
necessary in such cases. 

real time (present data): use in order to prevent a crime, survey or arrest persons before a 
crime has been committed or because a crime has been or is being committed. In such cases 
PNR  are  necessary  for  running  against  predetermined  fact-based  risk  indicators  in  order  to 
identify  the  previously  "unknown"  suspects  and  for  running  against  various  databases  of 
persons and objects sought. 

pro-active  (patterns):  use  for  trend  analysis  and  creation  of  fact-based  travel  and  general 
behaviour patterns, which can then be used in real time use. In order to establish travel and 
behaviour patterns, trend analysts need to be allowed to use the data over a sufficiently long 
period of time. A commensurate period of retention of the data by law enforcement authorities 
is necessary in such cases. 

2.2. 

Current trends 

Some  third  countries,  i.e.  the  United  States,  Canada,  Australia,  New  Zealand  and  South 
Korea, are already using PNR data for law enforcement purposes. Other third countries have 
either  enacted  relevant  legislation  and/or  are  currently  testing  using  PNR  data,  i.e.  Japan, 
Saudi  Arabia,  South  Africa  and  Singapore.  Several  other  third  countries  started  considering 
the idea of using PNR, but have not yet enacted relevant legislation. Within the EU, the UK 
already  has  a  PNR  system.  France,  Denmark,  Belgium,  Sweden  and  the  Netherlands  have 
either enacted relevant legislation and/or are currently testing using PNR data. Several other 
Member States are considering setting up PNR systems. 

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The  European  Commission,  recognising  the  necessity  of  PNR  data  for  the  prevention  and 
fight against terrorism and serious crime, and in line with the 2003 Communication, tabled a 
proposal for a Framework Decision on the use of passenger name record (PNR) data for law 
enforcement  purposes.  As  a  result  of  the  entry  into  force  of  the  Treaty  of  Lisbon,  the 
Commission is considering replacing this proposal with a proposal for a Directive for the use 
of  PNR  data  for  law  enforcement  purposes.  The  proposal  will  aim  to  oblige  air  carriers  to 
transmit PNR data to the Member States to be used in the fight against terrorist offences and 
serious crime. 

It is increasingly accepted on an international level that PNR are a necessary tool in the fight 
against  terrorism  and  serious  crime.  This  trend  is  the  result  of  three  parameters.  First, 
international terrorism and crime are a serious threat to society and steps need to be taken to 
deal  with  these  problems.  The  access  to  and  analysis  of  PNR  data  is  one  such  step  that  is 
considered  necessary  from  a  law  enforcement  perspective.  Second,  recent  technological 
developments  have  rendered  such  access  and  analysis  possible,  which  was  inconceivable 
some years ago. The various technological developments of recent years are also widely used 
by criminals in the planning, preparation and execution of crimes. And lastly, with the rapid 
increase of international travel and the volume of passengers, the electronic processing of data 
in  advance  of  the  arrival  of  passengers  largely  facilitates  and  expedites  security  and  border 
control  checks  since  the  risk  assessment  process  is  done  before  arrival.  It  provides  the 
opportunity to law enforcement to focus only on those passengers for whom they have a fact-
based  reason  to  believe  that  they  might  pose  an  actual  risk  to  security,  rather  than  making 
assessments based on instinct, pre-conceived stereotypes or profiles. 

2.3. 

Effects of the current trends on the European Union 

The  data  protection  laws  of  the  EU  do  not  allow  carriers  operating  flights  from  the  EU  to 
transmit the PNR data of their passengers to third countries which do not ensure an adequate 
level  of  protection  of  personal  data  without  adducing  appropriate  safeguards.  As  a  result, 
when  the  United  States,  Canada  and  Australia  requested  carriers  to  transmit  PNR  data  for 
flights  to  their  countries,  the  carriers  were  faced  with  a  very  difficult  situation.  The  EU 
therefore stepped in and negotiated and signed separate international agreements with each of 
these  three  countries11,  thus  making  the  transfer  of  PNR  data  outside  of  the  EU  to  law 
enforcement  authorities  of  these  third  countries  possible.  This  was  done  in  order  to  help 
carriers  out  of  this  situation,  to  ensure  an  adequate  level  of  protection  of  the  data  of 
passengers and as recognition of the necessity and importance of the use of PNR data in the 
fight against terrorism and serious crime. 

As more countries implement PNR systems, it is expected that the same issue will continue to 
arise.  In  addition,  if  the  Commission  decides  to  proceed  with  a  proposal  for  an  EU  PNR 
Directive, the frequency of such requests may intensify if third countries ask for reciprocity 
from the EU. 

Until  today,  the  conclusion  of  international  agreements  with  third  countries  on  PNR  was 
"demand"  driven  and  dealt  with  on  a  case-by-case  basis.  Even  though  all  the  agreements 
address common issues and regulate the same matters, their provisions are not identical. This 
sometimes resulted in diverging rules for carriers and for data protection. As the "demand" is 

11 

2004 EC-US PNR agreement (OJ L 183, 20.5.2004, p. 84) and Commission Decision of 14 May 2004 
(OJ  L  235,  6.7.2004,  p.  11);  2006  EU-US  PNR  agreement  (OJ  L  298,  27.10.2006,  p.  29)  and 
accompanying letters (OJ C 259, 27.10.2006, p. 1), 2007 EU-US PNR agreement (OJ L 204, 4.8.2007, 
p. 18), EU-Canada PNR Agreement (OJ L 82, 21.3.2006, p. 15 and OJ L 91, 29.3.2006, p. 49) and EU-
Australia PNR Agreement (OJ L 213, 8.8.2008, p. 47). 

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likely to increase in the near future, a strategy could assist the EU in facing these demands in 
a more structured manner, leading to less divergence between the various agreements. 

3. 

3.1. 

A REVISED GLOBAL APPROACH ON PNR FOR THE EU  

Reasons underlying a revised global approach on PNR 

At  a  time  when  the  conclusions  of  the  2003  Communication  are  being  implemented  and 
where the EU is faced with new trends and challenges, it is important that the EU takes due 
account of those trends and challenges by further developing its global approach in relation to 
the transfer of PNR data to third countries for the following reasons: 

Fight against terrorism and serious transnational crime: the EU has an obligation to itself 
and  to  third  countries  to  cooperate  with  them  in  the  fight  against  these  threats.  One  way  of 
such cooperation is the exchange of data with third countries. Making PNR data available for 
law enforcement purposes is a necessary means to fighting terrorism and serious transnational 
crime. Both the Strategy for the External Dimension of Justice and Home Affairs12, as well as 
the  EU  Counter-Terrorism  Strategy13  and  the  Stockholm  Programme14  mention  such  a  need 
for close cooperation with third countries. 

Ensure the protection of personal data and privacy: the EU is committed to ensure a high 
level and effective protection of personal data, including that any transmission of PNR data to 
third countries is done in a secure manner in line with existing EU legal requirements and that 
passengers are able to enforce their rights in relation to the processing of their data. 

Need  to  provide  legal  certainty  and  streamline  the  obligations  on  air  carriers:  it  is 
important that the EU provides a coherent legal framework for the transmission of PNR data 
by air carriers to third countries. This is necessary in order to protect carriers from sanctions 
and  to  ensure  that  the  conditions  and  modalities  governing  the  transmissions  of  data  world-
wide  are  as  uniform  and  harmonised  as  possible  in  order  to  reduce  the  cost  burden  on  the 
industry and to ensure a level-playing field in the sector. 

Establish  general  conditions  aimed  at  ensuring  coherence  and  further  developing  an 
international approach: the agreements that the EU has signed with third countries on PNR 
are  similar  as  to  the  purpose  but  their  contents  vary  as  regards  the  modalities  of  the 
transmissions and the nature of the commitments of the third country. Such divergence in the 
commitments  is  acceptable  to  some  degree  in  view  of  different  requirements  and  different 
legal  orders  in  each  country,  but  all  should  respect  certain  general  criteria  (see  sections  3.2 
and 3.3 below). In the interest of ensuring an as uniform as possible treatment of passengers 
and reducing the costs on the industry, it is important that the content and standards of future 
agreements with third countries are as similar as possible. This could then form the basis for 
the next step, which could consist of a more harmonised multilateral approach to exchanges of 
PNR data. 

Contribution in increasing passenger convenience: in order to deal with the security threats 
that  are  present  in  our  societies,  the  checks  of  passengers  upon  crossing  a  border  are 
becoming more detailed and lengthier. This, coupled with the ongoing increase of the volume 
of international travel, lead to the creation of longer waiting times at the borders. The advance 
electronic  transmission  of  PNR  before  the  crossing  of  a  border  makes  it  possible  to  check 

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COM(2005) 491. 
Council document 14469/4/05 of 30.11.2005. 
Council Document no.17024/09 of 2.12.2009. 

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passengers in advance, which enables them to cross borders quicker and more easily, while it 
permits law enforcement authorities to focus only on the identified persons of interest. 

3.2. 

General considerations  

The revised global approach on PNR aims to provide the basis for the EU to decide how to 
best deal with requests from third countries for the transmission of PNR data in the future. In 
addition to the principles of policy development which have been defined in the Overview of 
information  management  in  the  area  of  freedom,  security  and  justice  the  following  specific 
considerations arerelevant: 

Shared  security  interest:  Terrorism  and  serious  crime  are  international  in  nature.  Certain 
countries  of  the  world  are  more  exposed  to  the  increasing  threats  of  terrorism  and  serious 
crime than others. The EU is committed to cooperate with them and assist in combating these 
security threats. 

Protection of personal data: Since the transmission, use and processing of PNR data affects 
the  fundamental  right  of  individuals  to  protection  of  their  personal  data,  it  is  of  central 
importance  that  the  EU  only  cooperates  with  those  third  countries  that  can  provide  an 
adequate level of data protection for the EU originating PNR data. 
External relations: the overall external relationship of the EU with the third country should 
also be considered. The functioning of and cooperation with the police and the judiciary, rule 
of law and the overall respect of fundamental rights are important factors to be considered.  

3.3. 

Standards, content and criteria 

The global PNR approach should outline the general standards that international agreements 
between  the  EU  and  third  countries  should  meet  so  as  to  achieve  as  much  coherence  as 
possible with respect to the data protection guarantees to be applied by those countries and to 
the modalities of the transmissions of the data by the air carriers. 

It  is  also  essential  that  the  EU  is  provided  with  mechanisms  for  monitoring  the  correct 
implementation,  for  example  through  regular  joint  review  of  the  implementation  of  the 
agreements, and effective dispute resolution mechanisms. 

3.3.1.  Protection of personal data 

The  collection  and  transfer  of  PNR  data  to  third  countries  affects  a  very  large  number  of 
individuals  and  their  personal  data.  Thus,  particular  attention  must  be  paid  to  the  effective 
protection of personal data. 

In Europe, the fundamental rights to respect for private life and to protection of personal data 
are enshrined in Article 8 of the European Convention on Human Rights (ECHR) and Articles 
7 and 8 of the Charter of Fundamental Rights of the EU15. These fundamental rights apply to 
every  person  regardless  of  nationality  or  place  of  residence.  Further  standards  for  data 
protection have been set in the Council of Europe Convention 108 of 1981 on the Protection 

15 

It  is  important  to  note  that  similar  data  protection  principles  have  been  laid  down  in  international 
instruments regarding the protection of privacy and personal data, such as: Art. 17 of the International 
Covenant on Civil and Political Rights of 16. December 1966, the UN Guidelines for the Regulation of 
Computerized Personal Data Files (UN General Assembly Resolution 45/95 of 14 December 1990), the 
Organisation  for  Economic  Co-operation  and  Development  (OECD)  Recommendation  of  the  Council 
concerning guidelines governing the protection of privacy and trans-border flows of personal data, and 
the  Council  of  Europe  Convention  for  the  Protection  of  Individuals  with  regard  to  Automatic 
Processing of Personal Data (ETS No. 108) and the Additional Protocol to that Convention (ETS No. 
181), which are also open to adhesion for non-European States. 

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of Individuals with regard to automatic processing of personal data and its additional Protocol 
181 of 2001. 

Any limitation on the exercise of the rights and freedoms recognised by the Charter must be 
provided  for  by  law  and  respect  the  essence  of  these  rights  and  freedoms.  Subject  to  the 
principle  of  proportionality,  limitations  may  be  made  only  if  they  are  necessary  and  meet 
objectives  of  general  interest  recognised  by  the  Union  or  the  need  to  protect  the  rights  and 
freedoms of others. 

Since data protection regimes in third countries can differ from the data protection prevailing 
in the EU, it is important that for any transfer of PNR data from EU Member States to third 
countries,  the  third  country  ensures  an  adequate  level  of  data  protection  based  on  a  sound 
legal basis. Such an adequate level of data protection can be either enshrined in the legislation 
of  the  third  country  or  be  provided  in  the  form  of  legally  binding  commitments  in  the 
international agreement governing the processing of personal data. 

The adequacy afforded by a third country is to be assessed in the light of all the circumstances 
surrounding  a  data  transfer  operation.  In  this  context,  the  EU  will  also  consider  the 
compliance  by  the  third  country  with  international  standards,  respectively  its  ratification  of 
international  instruments  on  data  protection  and  fundamental  rights  in  general.  Adequacy 
decisions  already  adopted  by  the  European  Commission  in  this  regard  should  be  used  as 
guidance on what can be regarded as being adequate. 

The  basic  principles  for  the  protection  of  personal  data  that  the  requesting  third  country 
should apply are the following:  

•  Purpose  limitation  –  use  of  data:  The  scope  of  the  use  of  the  data  by  a  third  country 
should  be  spelt  out  clearly  and  precisely  in  the  agreement  and  should  be  no  wider  than 
what  is  necessary  in  view  of  the  aims  to  be  achieved.  Experience  with  current  PNR 
agreements  shows  that  PNR  data  should  be  used  only  for  law  enforcement  and  security 
purposes to fight terrorism and serious transnational crime. Key notions like terrorism and 
serious  transnational  crime  should  be  defined  based  on  the  approach  of  definitions  laid 
down in relevant EU instruments. 

•  Purpose  limitation  –  scope  of  data:  The  exchange  of  data  should  be  limited  to  the 
minimum  and  should  be  proportionate.  Any  agreement  should  list  exhaustively  the 
categories of PNR data to be transferred. 

•  Special Categories of Personal Data (sensitive data): PNR data revealing racial or ethnic 
origins,  political  opinions  or  religious  or  philosophical  beliefs,  trade  union  membership, 
health or sexual life shall not be used unless under exceptional circumstances where there 
is  an  imminent  threat  to  loss  of  life  and  provided  that  the  third  country  provides 
appropriate  safeguards,  for  example  that  such  data  may  be  used  only  on  a  case-by-case 
basis, under the authorisation of a high-ranking official and strictly limited to the purposes 
of the original transfer. 

•  Data  Security:  PNR  data  must  be  protected  against  misuse  and  unlawful  access  by  all 
appropriate  technical,  security  procedures  and  measures  to  guard  against  risks  to  the 
security, confidentially or integrity of the data. 

•  Oversight  and  accountability:  A  system  of  supervision  by  an  independent  public 
authority  responsible  for  data  protection  with  effective  powers  of  intervention  and 
enforcement  shall  exist  to  exercise  oversight  over  those  public  authorities  that  use  PNR 
data.  The  latter  shall  be  accountable  for  complying  with  the  established  rules  on  the 

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protection  of  personal  data,  and  should  have  powers  to  hear  complaints  from  individuals 
concerning the processing of PNR data. 

•  Transparency and Notice: Every individual shall be informed at least as to the purpose of 
processing of personal data, who will be processing that data, under what rules or laws, the 
types of third parties to whom data is disclosed and  how and from whom  redress can be 
sought. 

•  Access, rectification and deletion: Every individual shall be provided with access to his 
or her PNR data as well as, where appropriate, the right to seek rectification and deletion of 
his or her PNR data. 

•  Redress:  Every  individual  shall  have  the  right  to  effective  administrative  and  judicial 
redress  where  his  or  her  privacy  has  been  infringed  or  data  protection  rules  have  been 
violated, on a non discriminatory basis regardless of nationality or place of residence. Any 
such infringement or violation shall be subject to appropriate and effective sanctions and/or 
remedies. 

•  Automated  Individual  Decisions:  Decisions  producing  adverse  actions  or  effects  on  an 
individual may not be based solely on the automated processing of personal data without 
human involvement.  

•  Retention  of  data:  the  period  of  retention  of  the  PNR  data  should  not  be  longer  than 
necessary for the performance of the defined tasks. The period of retention should take into 
account the different ways in which PNR data are used (see section 1.2.1 above) and the 
possibilities of limiting access rights over the period of retention, for example by gradual 
anonymisation of the data. 

•  Restrictions  on  onward  transfers  to  other  government  authorities:  PNR  data  should 
only be disclosed to other government authorities with powers in the fight against terrorism 
and serious transnational crime, and which afford the same protections as those afforded by 
the recipient agency under the agreement in accordance with an undertaking to the latter. 
PNR data should never be disclosed in bulk but only on a case-by-case basis. 

•  Restrictions on onward transfers to third countries: this considers primarily restrictions 
on use and further dissemination in order to avoid circumvention of the agreement when 
PNR  data  is  made  available  to  another  third  country.  Such  onward  transfers  shall  be 
subject to appropriate safeguards. In particular, the receiving third country should transfer 
this  information  to  a  competent  authority  of  another  third  country  only  if  the  latter 
undertakes to treat the data with the same level of protection as set out in the agreement 
and the transfer is strictly limited to the purposes of the original transfer of the data. PNR 
data should never be disclosed in bulk but only on a case-by-case basis. 

3.3.2.  Modalities of transmissions 

In order to provide legal certainty and minimise the financial burden on the air carriers, it is 
important to streamline the rules governing the transmission of the data by the carriers to third 
countries.  By  having  uniform  obligations,  the  financial  burden  on  the  carriers  would  be 
greatly  reduced  as  they  would  have  to  undertake  less  investment  to  comply  with  their 
obligations.  For  this  purpose,  it  would  be  desirable  if  at  least  the  following  modalities  of 
transmissions were standardised: 

•  The  method  of  transmission:  To  safeguard  the  data  that  is  contained  in  the  carriers' 
databases  and  to  maintain  their  control  thereof,  data  should  be  transmitted  using 
exclusively the 'push' system. 

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•  The frequency of transmission. There should be a reasonable limit to the number of times 
that the third country requires the data to be transmitted to it, which ensures an adequate 
benefit to security while minimising the costs of the carriers. 

•  No  obligation  on  the  carriers  to  collect  additional  data.  The  carriers  should  not  be 
required  to  collect  any  more  data  than  they  already  do  or  to  mandatorily  collect  certain 
types  of  data,  but  only  be  required  to  transmit  what  they  already  collect  as  part  of  their 
business. 

3.3.3.  Overarching concepts 

•  Duration and review: The terms of the cooperation with third countries should be valid 
for  a  fixed  duration  and  should  provide  the  possibility  that  either  party  denounces  the 
agreement.  It  should  be  possible  to  review  the  terms  of  the  cooperation  where  it  is 
considered appropriate. 

for  example 

implementation, 

•  Monitoring:  It  is  essential  that  the  EU  is  provided  with  mechanisms  for  monitoring  the 
correct 
the 
implementation  of  all  aspects  of  the  agreements,  including  the  purpose  limitation,  the 
rights of  passengers  and onward transfers  of  PNR data, and  comprising a proportionality 
assessment  of  the  retained  data  on  the  basis  of  their  value  to  achieving  the  purposes  for 
which the data were transferred. The findings of such joint reviews should be presented to 
the Council and the European Parliament. 

through  periodical 

reviews  on 

joint 

•  Dispute resolution: Effective dispute resolution mechanisms with respect to interpretation, 

application and implementation of agreements should be provided. 

•  Reciprocity:  reciprocity  should  be  ensured,  especially  through  the  transfer  of  analytical 
information flowing from PNR data by competent authorities of the receiving third country 
to police and judicial authorities of the Member States, as well as to Europol and Eurojust. 

4. 

LONGER TERM PERSPECTIVE 

As  more  and  more  countries  in  the  world  use  PNR  data,  the  issues  arising  from  such  use 
affect  the  international  community.  Even  though  the  bilateral  approach  which  has  been 
adopted by the EU was the most appropriate one under the circumstances and seems to be the 
most  appropriate  one  for  the  near  future,  it  risks  ceasing  to  be  appropriate  if  many  more 
countries  become  involved  with  PNR.  The  EU  should  therefore  examine  the  possibility  of 
setting  standards  for  the  transmission  and  use  of  PNR  data  on  an  international  level.  The 
Guidelines on PNR access that have been developed by ICAO in 2004 offer a solid basis for 
the harmonisation of the modalities of transmissions of PNR data. However, these guidelines 
are not binding and they deal insufficiently with data protection issues. They are therefore not 
sufficient  in  themselves,  but  should  rather  be  used  for  guidance,  especially  on  matters 
affecting the carriers. 

On  this  basis,  the  EU  should  therefore  consider  initiating  discussions  with  international 
partners  that  use  PNR  data  and  those  that  are  considering  such  use,  in  order  to  explore 
whether  there  is  common  ground  between  them  for  dealing  with  PNR  transfers  on  a 
multilateral  level.  In  case  that  these  discussions  are  successful,  the  EU  should  enter  into 
formal  negotiations  with  the  interested  international  partners  to  achieve  a  multilateral 
solution. 

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5. 

CONCLUSION 

This Communication provided an overview of the current trends in the use of PNR data in the 
EU and the world. As a response to those trends, as well as the threats that the EU and the 
world  continue  to  face,  the  Commission  considered  it  necessary  for  the  EU  to  review  its 
global  approach  on  PNR.  In  doing  so,  the  Commission  has  taken  account  of  the  views  on 
general PNR issues of the major stakeholders and the principles of policy development set out 
in the Overview of information management in the area of freedom, security and justice. 

This  Communication  lays  down,  for  the  first  time,  a  series  of  general  considerations  which 
should guide the EU in negotiating PNR agreements with third countries. Adherence to those 
principles  should  lead  to  greater  coherence  between  the  various  PNR  agreements,  whilst 
ensuring  respect  for  the  fundamental  rights  to  respect  for  private  life  and  to  protection  of 
personal  data.  At  the  same  time,  the  Communication  remains  sufficiently  flexible  and 
adaptable to each third country's particular security concerns and national legal order. 

Finally,  looking  at  the  longer  term  perspective  in  the  development  of  PNR  policies 
worldwide,  this  Communication  concludes  that  the  EU  should  explore  the  possibility  of 
replacing, in the medium term, bilateral agreements by a multilateral agreement between all 
countries that use PNR data. 

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