COMMISSION STAFF WORKING PAPER  SUMMARY OF THE IMPACT ASSESSMENT Accompanying document to the   Proposal for a  EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE  on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime    {COM(2011) 32 final} {SEC(2011) 132 final}
Date: 2011-02-02
Institutions: European Commission
Subjects: European Union, air transport, disclosure of information, fight against crime, personal data, terrorism, third country, traveller

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EUROPEAN COMMISSION 

Brussels, 2.2.2011 
SEC(2011) 133 final 

COMMISSION STAFF WORKING PAPER 

SUMMARY OF THE IMPACT ASSESSMENT 

Accompanying document to the 

Proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

on the use of Passenger Name Record data for the prevention, detection, investigation 
and prosecution of terrorist offences and serious crime  

{COM(2011) 32 final} 
{SEC(2011) 132 final} 

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1. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

On 6 November 2007 the Commission adopted a proposal for a Council Framework Decision 
on  the  use  of  Passenger  Name  Record  (PNR)  data  for  law  enforcement  purposes1.  The 
proposal  was  accompanied  by  an  Impact  Assessment2.  The  proposal  was  extensively 
discussed  in  the  Council  working  groups  and  the  progress  made  in  the  discussions  was 
endorsed by the JHA Council in 2008. The discussions on the proposal in the working groups 
allowed consensus to be reached on most of the provisions of the proposal.  

Upon entry into force of the Treaty of Lisbon on 1 December 2009, the Commission proposal, 
not yet adopted by the Council by that date, became obsolete. ‘The Stockholm Programme — 
An open and secure Europe serving and protecting the citizens’3 calls on the Commission to 
present  a  proposal  for  the  use  of  PNR  data  to  prevent,  detect,  investigate  and  prosecute 
terrorism and serious crime. 

For the 2007 Impact Assessment, the Commission consulted all the stakeholders. Following 
the  adoption  of  the  Commission’s  2007  proposal,  all  stakeholders,  namely  the  European 
Parliament,  the  Article  29  Data  Protection  Working  Party,  the  European  Data  Protection 
Supervisor, the Fundamental Rights Agency and airline associations, published their positions 
on it. The purpose of this report is to examine the possibility of adopting a new proposal to 
replace the 2007 proposal under the provisions and procedures of the Lisbon Treaty It aims to 
answer criticisms raised by the stakeholders and include all new facts and experience gained 
since 2007. 

2. 

2.1. 

PROBLEM DEFINITION 

Threat of terrorism and serious crime 

Over  the  last  decade  the  European  Union  and  other  parts  of  the  world  have  experienced  a 
spread of cross-border crime. According to the EU Source book, there were 143.948 criminal 
offences  per  100.000  population  in  the  EU  Member  States  in  2007  (excluding  Italy  and 
Portugal for which data were not made available), ranging from 14.465 offences in Sweden to 
958  in  Cyprus.  Europol’s  EU  Organised  Crime  Threat  Assessment  2009  found  that  most 
organised crime threats have an international dimension and that most serious organised crime 
involves international travel.  

Terrorism  currently  constitutes  one  of  the  greatest  threats  to  security,  peace,  stability, 
democracy  and  fundamental  rights.  The  threat  of  terrorism  is  not  restricted  to  specific 
geographical  zones.  Europol’s  ‘EU  Terrorism  Situation  and  Trend  Report  2010’,  despite 
finding that terrorism decreased in the EU during 2009, stressed that the threat remains real 
and  serious.  Most  terrorist  campaigns,  especially  the  type  that  Europol  calls  ‘Islamist 
terrorism’, have a transnational character. 

2.2. 

PNR data and their uses 

PNR  data  have  been  used  for  several  years,  mainly  by  customs  and  law  enforcement 
authorities around the world. It is possible to use PNR data for police and judicial matters: 

•  re-actively: in investigations, prosecutions, unravelling of networks after a crime has been 
committed. In order to allow law enforcement authorities to go back in time far enough, a 

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COM(2007) 654. 
SEC(2007) 1453. 
Council document 17024/09, 2.12.2009. 

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commensurate period of retention of the data by law enforcement authorities is necessary 
in such cases; 

•  in  real  time:  prior  to  the  arrival  or  departure  of  passengers  in  order  to  prevent  a  crime, 
watch or arrest persons before a crime has been committed or because a crime has been or 
is  being  committed.  In  such  cases  PNR  data  are  especially  useful  for  running  such  data 
against predetermined assessment criteria in order to identify persons who were previously 
‘unknown’  to  law  enforcement  authorities  and  for  running  the  data  against  databases  of 
persons and objects sought; 

•  pro-actively: for analysis and creation of assessment criteria, which can then be used for a 
pre-arrival  and  pre-departure  assessment  of  passengers.  In  order  to  carry  out  such  an 
analysis  of  relevance  for  terrorist  offences  and  serious  crime,  a  commensurate  period  of 
retention of the data by law enforcement authorities is necessary in such cases. 

It is necessary to impose those legal obligations on air carriers for the following reasons: 

First, PNR data enable law enforcement authorities to identify persons, who were previously 
"unknown",  i.e.  persons  previously  unsuspected  of  involvement  in  serious  crime  and 
terrorism, but whom an analysis of the data suggests may be involved in such crime and who 
should  therefore  be  subject  to  further  examination  by  the  competent  authorities.  Identifying 
such  persons  helps  law  enforcement  authorities  prevent  and  detect  serious  crimes  including 
acts of terrorism. To achieve this, law enforcement authorities need to use PNR data both in 
real-time  to  run  PNR  against  predetermined  assessment  criteria  which  indicate  which 
previously  ‘unknown’  persons  require  further  examination  and  pro-actively  for  analysis  and 
creation of assessment criteria.  

For example, an analysis of PNR data may give indications on the most usual travel routes for 
trafficking people or drugs which can be made part of assessment criteria. By checking PNR 
data  in  real-time  against  such  criteria,  crimes  may  be  prevented  or  detected.  A  concrete 
example  given  by  a  Member  State  on  trafficking  in  human  beings  is  a  case  where  PNR 
analysis uncovered a group of human traffickers always travelling on the same route. Using 
fake  documents  to  check  in  for  an  intra-EU  flight,  they  would  use  authentic  papers  to 
simultaneously  check  in  for  another  flight  bound  for  a  third  country.  Once  in  the  airport 
lounge, they would board the intra-EU flight. Without PNR it would have been impossible to 
unravel this human trafficking network. 

The  combined  pro-active  and  real-time  use  of  PNR  data  thus  enable  law  enforcement 
authorities  to  address  the  threat  of  serious  crime  and  terrorism  from  a  different  perspective 
than through the processing of other categories of personal data: as explained further below, 
the processing of personal data available to law enforcement authorities through existing and 
planned  EU-level  measures  such  as  the  Directive  on  Advance  Passenger  Information,4  the 
Schengen Information System (SIS) and the second-generation Schengen Information System 
(SIS II) do not enable law enforcement authorities to identify 'unknown' suspects in the way 
that the analysis of PNR data does.  

Second, PNR data help law enforcement authorities prevent, detect, investigate and prosecute 
serious crimes, including acts of terrorism, after a crime has been committed. To achieve this, 
law  enforcement  authorities  need  to  use  PNR  data  in  real-time  to  run  the  PNR  data  against 
various databases of 'known' persons and objects sought. They also need to use PNR data in a 
re-active manner to construct evidence and, where relevant, to find associates of criminals and 
unravel criminal networks.  

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Directive 2004/82/EC of 29 August 2004. 

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For  example,  the  credit  card  information  which  is  part  of  the  PNR  data  may  enable  law 
enforcement authorities to identify and prove links between a person and a known criminal or 
criminal  organisation.  An  example  given  by  a  Member  State  relates  to  a  large  scale  human 
and  drug  trafficking  involving  a  Member  State  and  third  countries.  Cartels  were  importing 
drugs  to  several  destinations  in  Europe.  They  were  using  drugs  swallowers  who  were 
themselves trafficked persons. They were identified on the basis of having bought the ticket 
with stolen credit cards on the basis of PNR. This led to arrests in the Member State. On this 
basis, an assessment criterion was created which itself led to several arrests in other Member 
States and third countries.  

Finally, the use of PNR data prior to arrival allows law enforcement authorities to conduct an 
assessment  and  perform  a  closer  screening  only  of  persons  who  are  most  likely,  based  on 
objective  assessment  criteria  and  previous  experience,  to  pose  a  threat  to  security.  This 
facilitates the travel of all other passengers and reduces the risk of passengers being subjected 
to  screening  on  the  basis  of  unlawful  criteria  such  as  nationality  or  skin  colour  which  may 
wrongly be associated with security risks by law enforcement authorities, including customs 
and border guards.  

Arrangements for the transmission of PNR data in the context of the fight against terrorism 
and  transnational  organised  crime  have  been  concluded  between  the  EU  and  the  United 
States,  Canada  and  Australia.  It  can  be  anticipated  that  more  third  countries  are  likely  to 
request the provision of PNR data from air carriers operating flights from the EU. 

The United Kingdom, France and Denmark have already enacted primary legislation for the 
capture  and  use  of  PNR  data.  Such  national  measures  diverge  in  several  respects  and  it  is 
likely that once the complete regulatory framework in these Member States is adopted, there 
will be further divergence. As more Member States are preparing their own PNR legislation, 
up to 27 considerably diverging systems could be created, resulting in uneven levels of data 
protection, security gaps, increased costs and legal uncertainty for carriers.  

2.3. 

EU right to act and subsidiarity 

The right of the EU to act in this field is enshrined in Articles 82 and 87 in Title V of Chapter 
V  of  the  Treaty  on  the  Functioning  of  the  European  Union.  As  most  of  the  categories  of 
serious  crimes,  such  as  drugs  and  human  trafficking,  include  international  travel  at  some 
stage, it is essential that authorities collect, process and exchange PNR data for increasing the 
internal security of the EU. Because of the free circulation of persons in the Schengen area, it 
is  necessary  for  all  Member  States  to  use  PNR  data,  in  order  to  avoid  security  gaps.  In 
addition,  action  at  EU  level  will  ensure  harmonised  provisions  on  safeguarding  data 
protection, reduced costs and legal certainty for the carriers. 

3. 

OBJECTIVES 

3.1. 

Policy objectives 

The general objective is to increase the internal security of the EU, while respecting the right 
to protection of personal data and other fundamental rights, with the following specific policy 
objectives: 

(1) 

(2) 

To  prevent  and  reduce  terrorist  activities  and  other  serious  crime  through  a  global 
approach to the use of PNR data and avoiding security gaps. 

To  ensure  that  individuals’  right  to  the  protection  of  their  personal  data  is  duly 
respected when PNR data are collected and processed by facilitating the exchange of 

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PNR  data  among  responsible  authorities  and  ensuring  that  access  to  PNR  data  is 
limited to what is necessary. 

(3) 

To provide legal certainty to and reduce costs for carriers by reducing differences in 
legal and technical requirements imposed on carriers. 

3.2. 

Fundamental rights considerations 

The impacts on fundamental rights in the Impact Assessment have been assessed in line with 
the  Fundamental  Rights  "Check  List"  as  provided  for  in  the  Commission's  Strategy  for  the 
effective implementation of the Charter of Fundamental Rights by the European Union5. 

The use of PNR data would interfere with the fundamental rights to the protection of private 
life  and  to  the  protection  of  personal  data.  This  may  be  made  subject  to  limitations  and 
conditions,  provided  such  interference  is  carried  out  ‘in  accordance  with  the  law’  and  is 
‘necessary in a democratic society’. As the proposed actions aim to combat terrorism and other 
serious crime, they would serve an objective of general interest able to justify such limitations, 
subject to the principle of proportionality. 

Any  proposed  action  would  fall  within  the  scope  of  Title  V  of  Chapter  V  TFEU  on  police 
cooperation.  The  Framework  Decision  2008/977/JHA  on  the  protection  of  personal  data 
processed in the framework of police and judicial cooperation in criminal matters6 would only 
apply to those aspects of any proposed action where some personal data would be transmitted 
between Member States and therefore leave a gap for personal data processed at national level 
only.  There  are  currently  no  EU  rules  regulating  such  processing  of  personal  data  at  national 
level. The most suitable solution would be that the data protection safeguards of any proposed 
measure  are  in  line  with  the  Framework  Decision  2008/977/JHA.  This  would  guarantee  a 
uniform standard of protection of personal data.  

A  commensurate  period  during  which  the  data  are  retained  by  the  relevant  authorities  is 
necessary.  On  the  method  of  transmission  of  the  data  by  the  carriers,  the  advantages  of  the 
‘push’ system over the ‘pull’ system are indisputable, and therefore the ‘push’ system should 
apply for all transmissions. 

As regards criticisms of ‘profiling’, EU data protection laws grant every individual the right 
not  to  be  subject  to  a  decision  which  produces  legal  effects  concerning  him/her  or 
significantly  affects  him/her  and  which  is  based  solely  on  automated  processing  of  data 
intended to evaluate personal aspects relating to him/her. Any automated individual decision 
should be fully verified and confirmed by a human being and comprise arrangements allowing 
the data subject to put his or her point of view. 

4. 

POLICY OPTIONS 

The Impact Assessment examines four main options. 

Option A. Refraining from addressing the issue at EU level and maintaining the status quo. 

Option B. Options addressing the structure of the PNR system: 

B.1:  Decentralised collection and processing of data by Member States; B.2:  Centralised 
collection and processing of data at EU level. 

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COM(2010) 573, 19.10.2010 
Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data 
processed  in  the  framework  of  police  and  judicial  cooperation  in  criminal  matters  (OJ  L  350, 
30.12.2008, p. 60). 

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Option C. Options on the limitation of the purpose: 

C.1:  Access for terrorist offences and serious crime only; C.2:  Access 
offences and serious crime and other policy objectives. 

for 

terrorist 

Option D. Options on the modes of transport: 

D.1:  Air carriers only; D.2: 

Air, sea and rail carriers. 

Option E. Voluntary/enhanced cooperation. This option of encouraging cooperation between 
the Member States in the field was rejected at the initial stage. 

5. 

COMPARISON OF POLICY OPTIONS AND THEIR IMPACTS 

The  options  were  assessed  in  relation  to  their impacts  in  terms  of  increasing  security  in  the 
EU,  increasing  the  protection  of  personal  data,  costs  for  public  authorities,  costs  for 
carriers/competition in the internal market, relations with third countries, and encouraging a 
global approach. 

Option A on maintaining the status quo presents limited advantages with respect to increasing 
the  security  of  the  EU,  but  otherwise  has  negative  impacts,  in  the  sense  of  creating 
administrative difficulties and costs stemming from numerous diverging national systems.  

On  Option  B,  the  decentralised  collection  of  data  (Option  B1)  presents  advantages  over  the 
centralised collection of such data (Option B2) in relation to increasing the security of the EU. 
The option of centralised collection of data would have a high risk of failure because it cannot 
guarantee adequate cooperation between the Member States and at a practical level the system 
would be cumbersome and costly to operate. Option B1 would be more costly compared with 
Option  B2.  However,  the  advantages  for  security  outweigh  the  disadvantages  in  terms  of 
costs. 

On  purpose  limitation,  Option  C2  presents  some  advantages  for  security  compared  with 
Option C1, but involves substantially more interference with data protection and more costs 
than  Option  C1.  Option  C2  on  extending  the  use  of  PNR  data  to  other  purposes  seems 
disproportionate at this stage. 

On the modes of transport, Option D2 presents advantages for security compared with Option 
D1  as  it  would  cover  more  modes  of  transport  and  more  passengers,  but  involves  more 
interference  with  data  protection  and  more  costs  than  Option  D1,  under  which  the  measure 
would be applied exclusively to air carriers. Option D2 on extending the scope of the measure 
to cover sea and rail travel seems premature, at least at this stage.  

6. 

PREFERRED OPTION 

The  creation  of  a  new  legislative  proposal  applicable  to  travel  by  air  with  decentralised 
collection  of  data  for  the  purpose  of  preventing,  detecting,  investigating  and  prosecuting 
terrorist  offences  and  other  serious  crime  seems  to  be  the  best  policy  option  at  this  stage 
(combination of Options B1, C1 and D1). It would provide better means of increasing security 
in the EU, while ensuring that interference with data protection is kept to a minimum and that 
costs are kept at an acceptable level.  

An analysis of the costs of the preferred policy option was carried out for the purposes of the 
2007 Impact Assessment. According to the 2007 calculations, the overall cost of the preferred 
option for public authorities and carriers would be as follows: 

In relation to public authorities, the estimated costs for all Member States together are: 

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Set-up cost (non-recurring cost) 

BUT assuming an amortisation period of five years 

Annual personnel costs (recurring) 

Annual maintenance costs (recurring) 

In relation to all EU carriers together, such costs are: 

Set-up cost for PUSH (non-recurring) 

BUT assuming an amortisation period of five years 

 614 833 187 

 122 966 637 

 11 686 749 

 61 483 319 

 11 647 116 

 2 329 423 

Transmission costs for PUSH twice per passenger (recurring)  €

 2 250 080 

Personnel and maintenance costs (recurring) 

 5 435 321 

In  2008  the  Commission  published  a  tender  for  a  study  on  ways  of  setting  up  an  EU  PNR 
network. The report ‘Study on ways of setting up an EU network on exchange of Passenger 
Name Record (PNR) data for law enforcement purposes’7 was issued in 2009 and includes a 
new assessment of the costs. 

In relation to public authorities, the estimated costs for all Member States together are: 

Set-up cost (non-recurring cost) 

BUT assuming an amortisation period of five years 

Annual personnel costs (recurring) 

Annual maintenance costs (recurring) 

In relation to carriers together, such costs are: 

Set-up cost for PUSH (non-recurring) 

 100 000 * 120 EU-based carriers = 

 100 000 * 80 non-EU-based carriers = 

BUT assuming an amortisation period of five years 

Transmission costs for PUSH twice per passenger (recurring) 

 221 000 000 

 44 200 000 

 11 686 749 

 61 483 319 

 12 000 000 

 8 000 000 

 4 000 000 

 33 500 per airline per year*120 carriers*3connections*2 PUSH  €

 24 120 000 

Personnel/maintenance costs (recurring) 

 6 240 000 

The  2009  figures  indicate  a  decrease  in  costs  for  public  authorities  to  set  up  an  EU  PNR 
system but an increase in costs for carriers in comparison with the cost calculation performed 
in 2007. The actual costs will be somewhere in between these two assessments and, at least as 
regards the costs to carriers, most likely closer to the 2007 assessments, which are based on 
the market prices taken directly from carriers. 

Even with the very high calculations of 2009, if the carriers decide to pass on their costs to 
 0.10 per ticket, a negligible amount 
passengers, this would result in a surcharge of less than €
in relation to the overall price of tickets. 

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Authors: Accenture and SITA. 

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7. 

MONITORING AND EVALUATION 

Each Member State could prepare an annual report on the implementation of the systems. The 
Commission should assess the operation of the Directive within four years from its entry into 
force to monitor whether the use of PNR data has met its objectives, whether Member States 
have complied with their obligations and whether the system has been successful.  

The Commission should also consider the possibility of extending the measure to internal EU 
flights. This would provide the opportunity to have a transitional period and gain experience 
from the functioning of the first PNR Directive. 

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