COMMISSION STAFF WORKING PAPER  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) 133 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) 132 final 

COMMISSION STAFF WORKING PAPER 

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) 133 final} 

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1. 

1.1. 

1.2. 

1.3. 

2. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES... 4 

Organisation and timing............................................................................................... 4 

Consultation and expertise ........................................................................................... 5 

Impact Assessment Board ............................................................................................ 7 

PROBLEM DEFINITION ........................................................................................... 8 

2.1. 

Description of the problem........................................................................................... 8 

2.1.1.  Threat of terrorism and serious crime .......................................................................... 8 

2.1.2.  PNR and its uses........................................................................................................... 9 

2.1.3.  Divergence between national PNR systems............................................................... 14 

2.1.4.  Types of carriers collecting PNR data ....................................................................... 16 

2.2. 

2.3. 

3. 

3.1. 

3.2. 

4. 

EU right to act and subsidiarity principle .................................................................. 16 

How would the problem evolve, all things being equal? ........................................... 17 

POLICY OBJECTIVES............................................................................................. 18 

Objectives................................................................................................................... 18 

Respect of fundamental rights.................................................................................... 19 

POLICY OPTIONS AND TRANSVERSAL ISSUES.............................................. 20 

4.1. 

Policy options............................................................................................................. 20 

A. 

Refraining from addressing the issue at EU level – Maintaining the status quo ....... 20 

4.2. 

Transversal issues....................................................................................................... 22 

4.2.1.  Geographical scope .................................................................................................... 22 

4.2.2.  Data to be transmitted from the Passenger Information Units/Centralised Unit to the 

competent authorities ................................................................................................. 26 

4.2.3.  Bodies receiving data from the Passenger Information Units.................................... 26 

5. 

5.1. 

5.2. 

ANALYSIS OF IMPACTS........................................................................................ 26 

Impacts of the option of refraining from addressing the issue at the EU level – 
Maintaining the status quo (Policy Option A) ........................................................... 27 

Impacts of the options addressing the structure for collecting and processing PNR data 
(Policy Option B) ....................................................................................................... 28 

5.2.1.  Decentralised collection and processing of data by Member States (Option B1)...... 28 

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5.2.2.  Centralised collection and processing of data at EU level (Option B2) .................... 30 

5.3. 

Impacts of the options addressing the purpose limitation of the proposed measures 
(Policy Option C) ....................................................................................................... 32 

5.3.1.  Access for the prevention, detection, investigation and prosecution of terrorist offences 

and serious crime only (Option C1) ........................................................................... 32 

5.3.2.  Access for the prevention, detection, investigation and prosecution of terrorist offences 

and serious crime and other policy objectives (Option C2)....................................... 32 

5.4. 

Impacts of the options addressing the modes of transport to be covered by the proposed 
measures (Policy Option D) ....................................................................................... 33 

5.4.1.  Air carriers only (Option D1)..................................................................................... 33 

5.4.2.  Air, sea and rail carriers (Option D2)......................................................................... 34 

6. 

COMPARING THE OPTIONS ................................................................................. 35 

Summary table of the impacts of the policy options ................................................................ 37 

7. 

7.1. 

7.2. 

8. 

PREFERRED POLICY OPTION .............................................................................. 38 

Analysis of the preferred policy option...................................................................... 38 

Costs of the preferred option...................................................................................... 38 

MONITORING AND EVALUATION ..................................................................... 40 

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Impact Assessment 

on a common approach to the use of Passenger Name  
Record data  

1. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

1.1. 

Organisation and timing 

Passenger Name Record (PNR) data are unverified information provided by the passengers and 
collected by carriers for their own commercial purposes.  

A European policy in this area was announced in the Commission Communication "Transfer of 
Air  Passenger  Name  Record  (PNR)  Data:  A  global  EU  approach"  in  December  20031.  The 
European  Council  in  its  Declaration  on  combating  terrorism  of  March  2004  called  on  the 
European  Commission  to  bring  forward  a  proposal  "for  a  common  EU  approach  to  the  use  of 
passengers'  data  for  border  and  aviation  security  and  other  law  enforcement  purposes". 
Moreover, the Hague programme for 2005-2010 called for a common EU approach to the use of 
passengers' data for law enforcement purposes.  

In  this  context,  on  6  November  2007  the  Commission  adopted  a  proposal  for  a  Council 
Framework Decision on the use of PNR data for law enforcement purposes2 ('the 2007 proposal'). 
The  proposal  was  accompanied  by  an  Impact  Assessment3  ('the  2007  Impact  Assessment')  on 
which the Commission's Impact Assessment Board delivered a positive opinion on 5 September 
20074. The proposal was extensively discussed in the Council working groups and the progress 
made  in  the  discussions  was  endorsed  by  the  JHA  Councils  in  January,  July  and  November  of 
2008. The discussions on the proposal in the working groups allowed consensus to be reached on 
most of the provisions of the proposal5.  

Upon the entry into force of the Treaty of Lisbon on 1 December 2009, the Commission proposal 
not yet adopted by the Council6 became obsolete. This was due to the change of the legal basis of 
the proposal and a change of the decision-making procedure from the consultation procedure to 
the co-decision procedure. 'The Stockholm Programme – An open and secure Europe serving and 
protecting the citizens'7 calls on the Commission to present a proposal for the use of PNR data to 
prevent, detect, investigate and prosecute terrorism and serious crime.  

1 
2 
3 
4 
5 
6 
7 

COM (2003) 826 final 
COM(2007) 654 
SEC (2007) 1453 
SEC(2007) 1457 
Council Document 5618/2/09 REV 2 of 29.6.2009 
The European Parliament adopted a resolution on the proposal on 20.11.2008 - P6_TA (2008)0561 
Council document of 2/12/2009 17024/09 

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1.2. 

Consultation and expertise 

For  the  purposes  of  the  Impact  Assessment  accompanying  the  2007  proposal,  the  Commission 
departments consulted all the relevant stakeholders on the basis of a questionnaire which was sent 
out in December 2006. Subsequently, the Commission invited the Member States to a meeting in 
Brussels on the 2nd of February 2007, during which the representatives of the Member States had 
the opportunity to exchange their views. 

The  questionnaire  was  sent  to  all  the  Member  States,  the  data  protection  authorities  of  the 
Member States, the European Data Protection Supervisor (EDPS), the Association of European 
Airlines (AEA), the Air Transport Association of America (ATA), the International Air Carrier 
Association (IACA), the European Regions Airline Association (ERA) and the International Air 
Transport  Association  (IATA).  The  replies  were  summarised  in  the  2007  Impact  Assessment 
which accompanied the 2007 proposal. 

Extensive  discussions  have  also  been  held  since  2003  with  carriers,  data  protection  authorities 
and  border  and  law  enforcement  authorities  during  the  negotiations  for  the  agreements  on  the 
transfer of PNR data to the United States, Canada and Australia. The Article 29 Working Party 
issued a number of opinions on the use of PNR data in relation to international agreements8. The 
implementation of the 2004 PNR agreement with the United States9 was subject of a joint review 
by the Commission, assisted by national authorities, and United States. authorities in September 
2005.  The  implementation  of  the  2007  PNR  agreement  with  the  United  States10  was  also 
reviewed  by  the  Commission,  assisted  by  national  authorities,  and  United  States.  authorities  in 
February 2010. The PNR agreement with Canada11 was also jointly reviewed in November 2008. 

Following  the  adoption  of  the  Commission's  2007  proposal,  all  the  relevant  stakeholders 
published their positions on it. 

The  position  of  the  Member  States  is  reflected  in  the  latest  version  of  the  proposal  which  was 
discussed in the  Council working groups  in  June 200912. The Member States in general agreed 
with  the  policy  lines  suggested  by  the  Commission.  In  their  contribution  they  suggested  the 
exclusive use of the "push" method, the shortening of the data retention period, the clarification 
of  the  uses  of  PNR  data  and  the  adoption  of  a  specific  data  protection  framework  for  the 
proposal.  A  few  Member  States  favoured  extending  the  purpose  so  as  to  also  cover  irregular 
migration  and  border  controls,  while  other  Member  States  favoured  an  extension  of  the 

8 

9 
10 
11 
12 

Opinion  1/2005  on  the  level  of  protection  ensured  in  Canada  for  the  transmission  of  Passenger  Name 
Record  and  Advance  Passenger  Information  from  airlines,  January  2005,  Opinion  6/2004  on  the 
implementation  of  the  Commission  decision  of  14-V-2004  on  the  adequate  protection  of  personal  data 
contained  in  the  Passenger  Name  Records  of  air  passengers  transferred  to  the  United  States’  Bureau  of 
Customs and Border Protection, and of the Agreement between the European Community and the United 
States  of  America  on  the  processing  and  transfer  of  PNR  data  by  air  carriers  to  the  United  States 
Department of Homeland Security, Bureau of Customs and Border Protection, June 2004, and others. 
OJ L 183/83, 20.5.2004 and OJ L 235/11, 6.7.2004 
OJ L 204/16, 4.8.2007 
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 
Council Document 5618/2/09 REV 2 of 29.6.2009 

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geographical scope of the proposal in order to include intra-EU flights arguing that the necessity 
of processing PNR data did not change depending on whether a flight is internal or external. 

The  main  criticism  expressed  in  the  Resolution  of  the  European  Parliament  was  that  the 
'necessity' of the proposed actions had not been sufficiently demonstrated. It questioned whether 
the proposal met the standard for justifying an interference with the right to data protection. The 
Resolution expressed the Parliament's concern that the added value of the proposal in the light of 
other  border  initiatives  had  not  been  assessed.  In  terms  of  data  protection  the  European 
Parliament called for a clear purpose limitation and a better justification of the retention period 
and stressed that sensitive data should be used only under certain conditions and that data should 
be  transmitted  using  exclusively  the  "push"  method.  It  further  called  for  restrictions  of  onward 
transfers  to  third  countries,  while  stressing  that  only  specific  authorities  should  have  access  to 
PNR  data.  Finally  the  European  Parliament  expressed  concerns  that  the  proposed  method  of 
automatically assessing PNR data on the basis of fact-based assessment criteria was a very wide 
use of the data and recalled that such assessment should never result in "profiling" on the basis of 
sensitive data. 

The  Article  29  Data  Protection  Working  Party  adopted  an  opinion  on  the  proposal  on 
5.12.200713.  It  considered  that  the  proposal  was  disproportionate  and  that  it  might  violate  the 
right  to  data  protection.  It  called  into  question  the  data  protection  regime  as  the  Framework 
Decision  2008/977/JHA  does  not  cover  domestic  processing  of  data.  It  considered  that  the 
justification for the necessity of the proposal was inadequate, that the data retention period was 
disproportionate and that only the "push" method of transmission of data should be used. 

The European Data Protection Supervisor (EDPS) also issued an opinion on the proposal14. This 
opinion  questioned  whether  the  "necessity"  and  "proportionality"  of  the  proposal  had  been 
demonstrated since the proposal concerned a very wide collection of data of innocent people. The 
EDPS criticised the proposal as leading towards a "surveillance society" and called into question 
the  data  protection  regime  as  domestic  processing  of  data  is  not  covered  by  the  Framework 
Decision  2008/997/JHA.  The  EDPS  specifically  suggested  to  better  defining  the  authorities 
which would have access to PNR data and the conditions for transferring data to third countries  

The Fundamental Rights Agency issued an opinion on the proposal after being requested to do so 
by  the  French  Presidency  of  the  Council15.  It  was  also  of  the  opinion  that  the  "necessity"  and 
"proportionality" of the proposal had not been demonstrated and it considered that there should 
be more guarantees in the proposal so as to avoid profiling on the basis of sensitive data. 

Some  airline  associations,  namely  the  International  Air  Transport  Association  (IATA)  and  the 
European  Airlines  Associations  (EAA)  issued  opinions  on  the  proposal.  These  associations 
mainly  criticised  the  decentralised  structure  of  the  proposal  and  stressed  that  a  centralised 
collection  of  the  data  would  have  financial  advantages  to  the  carriers.  They  also  criticised  the 

13 
14 
15 

Opinion number 145 of 5.12.2007 
OJ C 110, 1.5.2008 
http://fra.europa.eu/fraWebsite/attachments/FRA_opinion_PNR_en.pdf 

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choice  of  the  "push"  method  and  called  for  the  choice  of  transmission  method  to  be  left  to  the 
carriers. 

Even  though  the  2007  Impact  Assessment  received  a  positive  opinion  from  the  Impact 
Assessment  Board  and  the  Commission  considered  that a legislative proposal  was  necessary, it 
was deemed preferable to nevertheless carry out a new Impact Assessment. The present Impact 
Assessment  therefore  aims  to  answer  criticism  raised  by  the  above  mentioned  stakeholders.  It 
also aims to include all the new facts and experience gained since 2007 and to analyse the issues 
in an updated way The Impact Assessment and any subsequent legislative proposal should reflect 
the latest positions resulting from the discussions in the Council working parties, the resolution of 
the  European  Parliament,  the  opinions  of  other  relevant  bodies,  and  new  information  gathered 
since 2007. 

The purpose of this report is to examine the possibility of adopting a new proposal to replace the 
2007 proposal on the basis of the TFEU. It aims to assess whether there is a need for a proposal at 
European  Union  level  to  set  up  a  coherent  legal  framework  on  the  obligation  of  carriers  to 
transmit PNR data to the relevant competent authorities for the purpose of prevention, detection, 
investigation and prosecution of terrorist offences and serious crime, whilst ensuring a high level 
of protection of personal data throughout the Union.  

An  inter-service  group  was  setup  to  steer  the  Impact  Assessment  work.  The  steering  group 
consisted of officials from DG HOME, DG JUST, DG RELEX, DG MOVE, SJ and SG. It met 
on 4.8.2010 and 18.8.2010 to discuss the issues arising from the Impact Assessment and further 
comments were provided in writing.  

1.3. 

Impact Assessment Board 

On 10 September 2010, the Commission's Impact Assessment Board delivered an opinion on a 
preliminary  version  of  this  Impact  Assessment  report.  In  the  opinion,  the  Board  stated  that  the 
Impact  Assessment  report  provides  a  sound  basis  for  action.  It  recommended  that  the  report 
should provide additional information on the following issues: 

–  Further  illustrate,  through  examples,  that  PNR  data  are  an  effective  tool  for  combating 

terrorism and serious crime; 

–  Further clarify the rationale for the geographical scope of the initiative;  

–  Further  discuss  the  different  ranges  of  data  retention  periods,  the  optimal  duration  of  the 
transition period from 'pull' to 'push', presentation of the position of the Member States and the 
possibility  of  voluntary  cooperation  between  Member  States  as  a  means  of  achieving  the 
objectives of the initiative; and 

–  Further clarify the costs for carriers, public authorities and passengers. 

The present version of the Impact Assessment report has been redrafted to take account of those 
recommendations.  Additional  information  and  modifications  have  thus  been  introduced  to  this 
end in many of its sections. 

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2. 

PROBLEM DEFINITION 

2.1. 

Description of the problem 

2.1.1.  Threat of terrorism and serious crime 

Over the last decade the European Union and other parts of the world have experienced a further 
spread  of  cross-border  crime.  Trafficking  in  human  beings  and  drugs  constitute  a  very  serious 
threat  to  European  society  and  influence  the  societal  and  economic  structure  of  every  day  life. 
These crimes are showing a steady increase in the EU16. Drug trafficking has risen by between 
3%  and  24%  per  year  in  the  EU  over  the  last  8  years,  while  violent  crime  has  risen  annually 
between  2%  and8%  in  the  same  period.  Facilitation  of  irregular  immigration,  smuggling  of 
currency  and  illegal  goods  are  also  serious  problems  with  cross-border  elements.  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.  

Serious crime and terrorist offences cause severe harm to victims, inflict economic damage on a 
large  scale  and  undermine  the  sense  of  security  without  which  persons  cannot  exercise  their 
freedom and individual rights effectively.  

A study published in 200917 for the International Labour Organisation estimated that the cost of 
coercion  from  underpayment  of  wages  resulting  from  trafficking  in  human  beings  in  2007  in 
industrialised  economies  was  $2.508.368.218,  while 
the  world  were 
$19.598.020.343. 

total 

the 

for 

The 2010 Annual report on the state of the drugs problem in Europe of the European Monitoring 
Centre for Drugs and Drug Addiction acknowledges the global nature of the drugs problem and 
the growing and severe drug-related problems. By undermining social development and feeding 
corruption and organised crime they represent a real threat for the European Union. In Europe we 
have  annual  seizures  of  about  1  000  tonnes  of  the  cannabis  and  about  1  000  cocaine-related 
deaths annually. The number of problem opioid users in Europe is cautiously estimated at 1.35 
million.  As  regards  the  economic  and  social  impacts  of  drugs,  in  2008,  22  EU  Member  States 
reported a total labelled expenditure on the drugs problem of EUR 4.2 billion. 

Another  study  of  the  UK  Home  Office  “The  economic  and  social  costs  of  crime  against 
individuals and households 2003/04” measured the costs incurred in anticipation of crime, such 
as  defensive  expenditure,  the  costs  as  a  consequence  of  crime,  like  the  physical  and  emotional 
impact on the victim and the value of any property stolen and the costs incurred in response to 
crime,  including  the  costs  to  the  criminal  justice  system.  These  costs  were  measured  at 
£36.166.000.000 in 2003.  

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Eurostat 36/2009 
Measuring the costs of coercion to workers in forced labour-Alexandra Vinogradova, Michaelle De Cock, 
Patrick Belser 

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In  the  meantime,  four  out  of  five  Europeans  wish  to  see  stronger  action  at  EU  level  against 
organised crime and terrorism18.  

Europol's  EU  Organised  Crime  Threat  Assessment  2009  (OCTA  2009)  found  that  most  of 
organised  crime  threats  have  an  international  dimension,  with  criminal  groups  trying  to  traffic 
and smuggle people, drugs and other illicit goods into the EU. The OCTA 2009 established that, 
in  the  majority  of  cases,  the  most  serious  organised  crime  threats  involve  international  travel. 
Trafficking  in  human  beings  and  facilitation  of  irregular  immigration  involves  third  country 
nationals  being  trafficked  into  the  EU.  In  addition,  most  drugs  trafficking  also  involve 
international  travel,  with  large  quantities  of  drugs  being  smuggled  into  the  EU  every  day. 
Intelligence  has  further  indicated  that,  due  to  the  increasing  access  that  law  enforcement 
authorities have to e-communications, terrorists and criminals tend to prefer to travel and meet to 
discuss  their  business  rather  than  communicate  long-distance.  It  is  therefore  becoming 
increasingly important to obtain as much information as possible about the travel of such persons. 
Because  of  the  transnational  and  organised  nature  of  these  serious  crimes,  it  is  important  to 
ensure close cooperation of law enforcement authorities within the EU. 

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. 
Terrorists and terrorist organisations can be found both inside and outside the borders of the EU 
and  have  shown  their  capability  to  carry  out  attacks  and  acts  of  violence  against  any  country. 
Europol's  "EU  Terrorism  Situation  and  Trend  Report  2010",  despite  finding  that  terrorism  has 
decreased in the EU during 2009, stressed that the threat remains real and serious. Most terrorist 
campaigns  have  a  transnational  character  with  either  the  involvement  of  either  transnational 
contacts or travel to attend training camps outside the EU.  

The  terrorist  attacks  in  the  United  States  in  2001,  the  aborted  terrorist  attack  in  August  2006 
aimed at blowing up a number of aircraft on their way from the United Kingdom to the United 
States,  and  the  attempted  terrorist  attack  on  board  a  flight  from  Amsterdam  to  Detroit  in 
December 2009 showed the ability of terrorists to mount attacks, targeting international flights, in 
any country.  

2.1.2.  PNR data and their uses 

There  are  some  types  of  data  traditionally  collected  specifically  for  law  enforcement  purposes, 
such as fingerprints and DNA. In executing  its mandate to enhance  police  cooperation, the EU 
acts in order to streamline the sharing between Member States of such data and other information 
that might be necessary for criminal investigations or criminal intelligence operations19. There are 
other  types  of  data  that  are  initially  collected  by  Member  States  for  non-law  enforcement 
purposes, for example, data on immigration, asylum, vehicle registration and citizenship, but to 
which  law  enforcement  authorities  are  given  access  for  the  performance  of  their  tasks.  A  third 
category is privately-held or privately-collected (as opposed to the aforementioned publicly-held) 
data.  Access  by  law  enforcement  to  such  data  is  regulated  differently  in  Member  States 

18 
19 

Standard Eurobarometer 71. 
Council Framework Decision 2006/960/JHA 

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depending on the type of data and their function. Passenger information such as PNR data are one 
type of such privately-collected and privately-held data. 

PNR  data  is  unverified  information  provided  by  passengers,  and  collected  by  and  held  in  the 
carriers’  reservation  and  departure  control  systems.  It  contains  several  different  types  of 
information, such as travel dates, travel itinerary, ticket information, contact details, travel agent 
at which the flight was booked, means of payment used, seat number and baggage information. 
The PNR data of a certain passenger usually do not contain all potential PNR elements20, but only 
those actually provided by the passenger at the time of reservation and information given upon 
check-in and boarding. PNR data are traditionally collected by air carriers. It should be noted that 
most non-air carriers usually do not collect such data. 

PNR  data  are  different  from  and  should  not  be  confused  with  Advance  Passenger  Information 
(API)  data.  API  data  are  biographical  information  taken  from  the  machine-readable  part  of  a 
passport and contain the name, place of birth, nationality of a person, passport number and expiry 
date. API data are mainly used for carrying out border checks in advance of a person's arrival or 
departure. Although in some cases the data are also used by law enforcement authorities in order 
to identify suspects and persons sought, they are mainly used as a border management tool. API 
data are used systematically in more than 30 countries around the world21.  

In the EU, the use of API data is regulated by the API Directive22. The Directive provides that 
API data should be made available to border control authorities, at the request of each Member 
State, for flights entering the territory of the EU for the purpose of improving border controls and 
combating  irregular  immigration.  Even  though  their  use  for  law  enforcement  purposes  is 
permitted by the Directive, this is possible only in limited circumstances.  

PNR data are mainly used as a criminal intelligence tool, in particular for assessment, rather than 
as an identity verification tool. The uses of PNR are unique and are mainly the following: 

(i)  PNR  data  make  it  possible  to  carry  out  a  pre-arrival  and  pre-departure  assessment  of  all 
passengers on the basis of fact-based assessment criteria23 in advance of the arrival or departure 
of  passengers;  this  allows  authorities  to  focus  on  those  passengers  who  fit  into  the  fact-based 
assessment criteria but who were previously unsuspected, rather than subjecting all passengers to 
an extensive assessment by border guards, 

(ii) PNR data can be made available well in advance of a flight's arrival or departure, and hence 
provide authorities with more time for processing, analysing and potentially taking action, 

20 

21 

22 
23 

The list of all possible PNR elements has been adopted by ICAO in its Guidelines for the use of PNR data 
of 2005 
Some  examples  include  Australia,  Brazil,  Canada  China,  Cuba,  India,  Japan,  Mexico,  Unites  States  and 
several other countries- information sourced from IATA 
Directive 2004/82/EC of 29.8.2004 
"fact-based risk indicators" are rules established by law enforcement authorities through the analysis of past 
PNR data  and other  relevant intelligence.  They  are usually  the  result  of  trend  analysis  and  aim  to  set  out 
rules  for  carrying  out  the  automated  risk  assessment  of  passengers.  They  could  relate  to  ways  of  travel 
behaviour, travel routes etc. 

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(iii)  it  is  possible  to  match  PNR  data  against  databases  with  specific  addresses,  telephone 
numbers,  credit  cards  connected  to  criminal  offences  and  establish  to  whom  such  data  belong, 
and  

(iv)  by  matching  PNR  data  of  persons  known  to  law  enforcement  authorities  against  the  PNR 
data  of  persons  unknown  to  such  authorities,  it  is  possible  to  identify  associates  of  suspects 
assisting in the preparation and execution of a crime.  

For several years this is how PNR data have been used, mainly by customs and law enforcement 
authorities  around  the  world.  However,  ,  it  was  until  recently  not  technically  possible  for  the 
authorities  of  a  country  to  access  such  data  electronically  and  in  advance  of  the  flight,  so  they 
were only processed manually and only in relation to a limited number of flights. Technological 
advances have since made the advance electronic transfer, analysis (and subsequent retention) of 
such data possible.  

To address the threat of serious crime and terrorism, law enforcement authorities may use PNR 
data in several ways: 

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

•  in real time: use of the data 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  that  were  previously 
"unknown" to law enforcement authorities and for running the data against various databases 
of persons and objects sought. 

•  pro-actively: use of the data 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 the prevention, detection, investigation and prosecution of 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.  

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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,24 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.  

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  lead  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.  

24 

Directive 2004/82/EC of 29 August 2004. 

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12 

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The value of using PNR data in this context is confirmed by information from third countries and 
Member  States  that  already  use  PNR  data  for  the  prevention,  detection,  investigation  and 
prosecution of terrorist offences and serious crime. The experience of those countries shows that 
the use of PNR data has led to critical progress in the fight against crime, in particular, drugs and 
human trafficking and the fight against terrorism, and a better understanding of terrorist and other 
criminal  groups  through  the  gathering  of  intelligence  on  their  travel  patterns.  The  "European 
Union Strategy for Combating Radicalisation and Recruitment to Terrorism" notes, for example, 
the  importance  of  identifying  persons  who  travel  to  conflict  zones  in  order  to  prevent  terrorist 
training, build intelligence about terrorists and criminals and identify behaviour patterns of such 
persons.  Even  though  PNR  data  are  passenger  data  linked  to  travel,  they  are  mainly  used  as  a 
criminal intelligence tool rather than as border control tool. They are used in advance of a border 
crossing  and  not  at  the  border  crossing  itself.  Their  main  aim  is  to  fight  terrorism  and  serious 
crime  rather  than  fight  irregular  immigration  and  facilitate  border  controls.  The  Commission 
adopted on 20.7.2010 a Communication on the Overview of information management in the area 
of  freedom,  security  and  justice25  the  purpose  of  which  was  to  provide  a  full  overview  of  EU-
level measures in place, under implementation or consideration regulating the collection, storage 
or  cross-border  exchange  of  personal  information  for  the  purpose  of  law  enforcement  or 
migration  management.  This  Communication  noted  that  the  Schengen  Information  System 
(SIS)26  the  second-generation  Schengen  Information  System  (SIS  II)27,  the  Visa  Information 
System  (VIS)28,  and  the  anticipated  Entry/Exit  System  and  Registered  Travellers  Programme29 
are EU measures that deal directly with actions taking place physically at the borders. 

The proposal will neither change nor interfere with current EU rules on the way border controls 
are carried out or with the EU rules regulating entry and exit from the territory of the Union. The 
proposal will rather co-exist with and leave those rules intact. 

PNR data are also useful for other policy purposes. For example, they are useful for immigration 
purposes to find persons who have exceeded their permitted stay on a visa by providing a record 
of when a person enters the EU. In aviation security, PNR data could be used to prevent persons 
who  might  pose  a  threat  to  the  security  of  the  aircraft  from  boarding,  through  the 
implementation/establishment of 'no-fly lists'. In relation to health safety, if a passenger is found 
to  be  suffering  from  a  highly  contagious  disease,  PNR  data  could  be  used  to  quickly  inform 
passengers on the same flight, in particular those who sat in the immediate surroundings of that 
passenger 

25 
26 

27 
28 

29 

COM (2010)385, 20.7.2010 
Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States 
of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual 
abolition of checks at their common borders, OJ L 239, 22.9.2000, p. 19. 
Regulation (EC) No 1987/2006, Decision 2007/533/JHA, Regulation (EC) No 1986/2006. 
Council Decision 2004/512/EC, Regulation (EC) No 767/2008, Council Decision 2008/633/JHA. See also 
Declaration on combating terrorism, European Council, 25.3.2004. 
[…]. 

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2.1.3.  Divergence between national PNR systems 

Even though only a limited number of Member States have set up a PNR system to date, most 
Member  States  use  PNR  data  for  the  prevention,  detection,  investigation  and  prosecution  of 
terrorist offences and serious crime in a non-systematic way or under general powers granted to 
the police or other authorities. Within the EU, the United Kingdom already has a PNR system, 
while  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,  but  they  are  waiting  for  a  proposal  from  the  Commission 
which will enable them to obtain the full benefits of using PNR.  

An analysis of the national legislation of the United Kingdom, France and Denmark30 indicates 
that their provisions diverge and can be summarised as follows: 

•  The United Kingdom provides for the use of PNR data in the fight against terrorism, all crimes 
and irregular immigration. PNR data will be required from all flights, including intra-EU and 
domestic flights. The retention period would be 5 years in an active database and 5 years in 
archives. PNR data will be required from air, sea and rail carriers to the extent that such data 
exists.  

•  French legislation provides for the use of PNR data in the fight against terrorism and irregular 
immigration  but  not  for  other  crimes.  PNR  data  will  be  required  from  all  flights,  including 
intra-EU and even domestic flights. The retention period is 24 hours for immigration purposes 
and 5 years for terrorism purposes in an active database. PNR data will be required from air, 
sea and rail carriers to the extent that it exists. 

•  Danish  Legislation  provides  for  the  use  of  PNR  data  only  in  the  fight  against  terrorism  and 
crimes against the State. The proposed retention period is 1 year and covers only air travel. It 
does not propose a system of transmission of PNR data but a system of retention of the data by 
the  air  carriers  while  giving  direct  access  to  such  data  to  some  law  enforcement  agencies. 
Informal  talks  with  Denmark  indicated  that  they  are  considering  amending  their  legislation 
because the system of retention of the data by the air carriers is thought to be ineffective. 

These provisions indicate that there are divergences with regards to the purpose of the system, the 
period of retention, the structure of the system, the geographical scope and the modes of transport 
which are covered. It is also likely  that  once  the  complete  regulatory  framework  for  the  use  of 
PNR data in these Member States is adopted, they will diverge, for instance, on data protection 
rules,  the  use  of  sensitive  data,  rights  of  access  and  judicial  redress,  the  role  of  supervisory 
authorities and the range of authorities having access to the data. It is also expected that there will 
be divergences on the measures taken to safeguard the security of the transmission of the data, i.e. 
different transmission protocols and message formats. 

30 

For the United Kingdom, the Immigration, Asylum and Nationality Act 2006 
For Denmark, the Air Navigation Act 
For France, Article 7 Division IV et V - art. 8 de la loi n° 78-17 du 6 janvier 1978 

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As more Member States are preparing their own PNR legislation, this might lead to the creation 
of up to 27 considerably diverging systems. This could result in uneven levels of data protection 
across the Union, security gaps, increased costs and legal uncertainty for carriers. This could lead 
to distortions in the internal market. 

2.1.4.  Agreements with third countries 

The first country that recognised and made use of PNR data in a systematic electronic way was 
the  United  States,  which,  after  the  terrorist  attacks  of  9/11,  proceeded  immediately  with  the 
introduction  of  PNR  data  legislation.  Since  then,  more  countries  have  followed  and  passed 
similar  legislation,  namely  Australia,  Canada  and  New  Zealand  and  more  recently  Japan  and 
South  Korea.  Various  other  countries  are  also  currently  working  towards  such  legislation.  The 
EU  has  signed  agreements  for  the  transfer  of  PNR  data  with  the  United  States31,  Canada32  and 
Australia33.  These  Agreements  regulate  the  transfer  of  PNR  data  by  carriers  operating  flights 
between  the  EU  and  these  countries  for  the  purpose  of  the  fight  against  terrorism  and 
transnational  serious  crime.  They  also  list  a  series  of  safeguards  that  the  third  country  must 
respect  when  handling  personal  data  of  passengers  whose  PNR  data  are  transmitted  under  the 
Agreements. The Agreements do not deal with transfers of PNR data for flights by carriers to the 
EU or the authorities of Member States' as the EU does not yet have a PNR system in place. The 
Agreements only provide, in terms of reciprocity, that the authorities of the third countries share 
some  analytical  information  with  the  Member  States'  authorities.  If  the  EU  had  a  PNR  system, 
the reciprocity element of such Agreements would be implemented more thoroughly. 

The Commitments on which the PNR Agreement with Canada was based have expired in 2009 
and  therefore  the  Agreement  needs  to  be  renegotiated.  The  Agreements  with  the  United  States 
and Australia are only provisional and have not yet been officially concluded by the EU. Upon 
the  entry  into  force  of  the  Treaty  of  Lisbon,  the  European  Parliament  proposed  that  both  these 
Agreements  should  be  renegotiated  as  they  do  not  provide  for  adequate  protection  of  personal 
data.  Therefore,  the  Commission  requested  that  the  Council  provides  it  with  negotiating 
directives to enter into new agreements with the United States34 and Australia35. The Commission 
also  recommended  that  the  Council  provide  it  with  negotiating  directives  to  enter  into  a  new 
agreement  with  Canada36  as  well.  The  Council  adopted  the  relevant  Decisions  on  2  December 
2010.  Other  countries,  notably  Japan  and  South  Korea  have  also  requested  to  negotiate  such 
agreements.  

Through  the  experience  gained  by  the  countries  that  already  use  PNR  data,  the  Member  States 
have come to appreciate the full value of PNR data in the fight against terrorism and other serious 
crime.  

31 
32 
33 
34 
35 
36 

OJ L 204/16, 4.8.2007 
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 
SEC(2010)1082, 21.9.2010 
SEC(2010)1083, 21.9.2010 
SEC(2010)1084, 21.9.2010 

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2.1.5.  Types of carriers collecting PNR data 

Currently only air carriers collect PNR data. Sea and rail carriers do not collect such data, with 
some exceptions. For example, some rail and sea carriers collect PNR-like data for instance the 
Eurostar.  and  Thalys  collect  some  data  when  the  reservation  is  made  online  and  cruise  ships 
collect some PNR-like data as well. On the other hand, ferries and trains other than the Thalys 
and the Eurostar do not have computerised reservation systems which are similar to those of air 
carriers.  

The  collection  of  PNR  data  by  carriers  should  also  be  considered  against  the  background  of 
increasing passenger flows. According to the data provided by the Member States, there were 767 
million external border crossings in 2007 and 714 million in 2008. It should be noted that the data 
are not fully comparable because the Schengen enlargement in 2007 (land borders) and 2008 (air 
borders)37 shifted the physical location of the Schengen external border and affected the number 
of external border-crossing points. Furthermore, Member States do not record such movements in 
a consistent manner, so rates are based mainly on estimations. However, based on discussion with 
Member States it can be assumed that border-crossings at the largest and busiest points have been 
increasing and will continue doing so in the future38. 

In  addition,  the  total  number  of  travellers  differs  a  lot  between  Member  States  with  some 
Member States recording over three million travellers crossing the borders in a one week period 
and others recording below 50.000 travellers.  

As regards the number of flight movements and passengers affected by the possible introduction 
of PNR measures, air carriers carried approximately 500.000.000 passengers on 3.300.000 flights 
going  in  and  out  of  the  EU-27  in  200639.  With  an  annual  rate  of  increase  of  these  flights  of 
7.7%40, the number of flights going in and out of the EU-27 in 2010 was 4.500.000.  

2.2. 

EU right to act and subsidiarity principle 

The right of the EU to act in this field is enshrined in Articles 82 and 87 of Title V of Chapter V 
of the Treaty on the Functioning of the European Union (TFEU).  

As the threat from terrorism and cross-border serious crime remains significant, it is important to 
provide law enforcement authorities with new effective tools with which to perform their tasks. 
As  most  of  the  categories  of  serious  crimes,  like  drugs  and  human  trafficking,  often  involve 
international  travel,  it  is  essential  that  authorities  collect,  process  and  exchange  PNR  data  to 
increase the internal security of the EU. Moreover investigations for the purpose of preventing, 
detecting,  investigating  and  prosecuting  terrorist  offences  and  serious  crimes  carried  out  by  the 

37 

38 

39 
40 

EN 

also 

the  World  Trade  Organisation 

The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia joined the 
Schengen area in 2007 (air borders were lifted in 2008). 
See 
vision, 
http://www.wto.org/english/tratop_e(ser_e/omt.ppt and the travel forecast of Office of Travel and Tourism 
Industries (OTTI), http://tinet.ita.doc.gov/view/f-2000-99-001/index.html. 
Figures according to Eurocontrol on the basis of CFMU IFR Flights 
Eurocontrol Annual Report 2009 

forecast:  Tourism 

(WTO) 

2020 

16 

   EN 

 
                                                 
competent authorities of the Member States are largely dependent on international cross-border 
cooperation.  

Because  of  the  free  movement  of  persons  in  the  Schengen  area,  it  is  necessary  for  all  Member 
States to collect, process and exchange PNR data, in order to avoid security gaps due to criminals 
diverting  their  planned  journeys  through  Member  States  not  collecting  PNR  data.  By  acting 
collectively and coherently this measure will have a substantial impact on the security of the EU.  

If Member States are left to legislate independently on issues such as data retention periods, use 
of sensitive data, purpose limitation, push/pull methods and onwards transfers to third countries, 
safeguards  might  diverge.  Action  at  EU  level  will  help  to  ensure  harmonised  provision  on 
safeguarding data protection throughout the Union.  

A further reason why EU action would be more appropriate is that differences between national 
requirements  adopted  in  Member  States  that  have  already  established  similar  mechanisms  or 
which  will  do  so  in  the  future,  may  impact  negatively  on  the  air  carriers  as  they  may  have  to 
comply with several potentially diverging requirements. Different standards regarding the method 
of  transfer  of  data,  the  messaging  format,  the  data  security  mechanisms,  the  frequency  of 
transmissions  etc,  would  be  very  costly  for  carriers  operating  in  different  Member  States  to 
implement. 

On the basis of the above, it can be concluded that the EU is both entitled to act and better placed 
to do so than the Member States acting independently. Such an action should not go beyond what 
is necessary to achieve its objectives.  

2.3. 

How would the problem evolve, all things being equal? 

Without  action  at  EU  level,  it  is  likely  that  several  Member  States  will  implement  their  own 
domestic  PNR  systems.  This  would  mean  that  the  full  benefits  offered  to  develop  the  fight 
against terrorism and serious crime to increase internal security of the Union, by cooperating on 
PNR data collection, would not be attained. This would also mean that the Union might end up 
with  various  diverging  PNR  systems  leading  to  negative  effects  on  the  internal  security  of  the 
Union, by the potential creation of serious security gaps.  

The  development  of  different  and  diverging  PNR  systems  in  the  Union  could  also  have  an 
adverse  effect  on  the  level  of  protection  of  personal  data  afforded  to  passengers,  since  the 
standard  of  data  protection  in  the  Member  States  may  vary,  despite  respecting  the  general 
European standards. As more and more Member States adopt national legislation for the use of 
PNR  data  and  as  more  and  more  third  countries  request  such  transmission  from  carriers,  it  is 
important  to  ensure  uniform  and  high  level  protection  of  personal  data  when  processing  PNR 
data. Sufficient safeguards should be provided to ensure that passengers have access to enforce 
their rights. The Article 29 Data Protection Working Party, despite opposing the use of PNR data, 
strongly prefers a European instrument with robust data protection guarantees to various national 
systems with diverging data protection standards. 

In addition, diverging PNR systems in the Union would create difficulties for carriers having to 
comply with a number of different systems, and the national authorities would have to develop 

EN 

17 

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systems  to  be  able  to  receive  and  transmit  data  in  potentially  many  different  ways.  For  this 
reason, the carrier associations which were consulted for the purposes of this report were strongly 
in favour of harmonising the use of PNR data at EU level. 

Another  aspect  to  be  taken  into  account  is  that  the  number  of  travellers  continues  to  increase. 
This,  together  with  additional  border  and  security  controls,  has  started  creating  problems  of 
managing the flows of passengers efficiently. This problem is expected to worsen as the number 
of passengers increase. The collection and use of PNR data will contribute towards managing this 
problem  more  efficiently.  The  possibility  of  performing  border  and  security  controls  of  a 
passenger's PNR data before he or she actually arrives in the country of destination will make it 
possible  to  clear  non-identified  travellers  and  subject  them  only  to  minimum  controls  at  the 
border. 

3. 

POLICY OBJECTIVES 

3.1. 

Objectives 

One  of  the  fundamental  goals  of  the  Union  is  the  development  of  a  genuine  European  area  of 
justice,  freedom  and  security.  Such  an  area  aims  to  ensure  that  the  fundamental  rights  of 
individuals  living  in  the  EU,  such  as  the  right  to  life,  physical  integrity  and  the  protection  of 
personal data and privacy, are guaranteed.  

The general objective is therefore to increase the internal security of the EU, while respecting the 
right  to  protection  of  personal  data  and  other  fundamental  rights.  This  is  in  line  with  the 
Stockholm Programme, which calls on the Commission to present a proposal for the use of PNR 
data to prevent, detect, investigate and prosecute terrorism and other serious crime.  

This general objective translates into the following specific policy objectives: 

(1) 

(2) 

(3) 

To  prevent  and  reduce  terrorist  activities  and  other  serious  crime  through  a  global 
approach  to  the  use  of  PNR  data  avoiding  security  gaps.  At  operational  level,  the 
objective  would  be  to  collect  and  process  PNR  data  in  an  electronic  format  in  order  to 
benefit fully from the advantages offered by modern technologies for such use. 

To ensure that individuals' right to the protection of personal data is duly respected when 
PNR data are collected and processed. At operational level, the objectives is to facilitate 
the exchange of PNR data among responsible authorities and to ensure that access to PNR 
data is limited to what is necessary for the pre-defined purpose(s). 

To  provide  legal  certainty  to  and  reduce  costs  for  carriers.  There  are  two  operational 
objectives, to reduce differences in legal and technical requirements imposed on carriers 
and to avoid distortion of the internal market due to diverging legal requirements. 

EN 

18 

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3.2. 

Respect of fundamental rights 

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 Union41. 

The purpose of any proposed measure would be to prevent and combat terrorism and other serious 
crime so as to increase the public security in the EU and safeguard fundamental rights.  

The use of PNR data would involve the collection, processing, exchange and use of personal data 
of individuals for public policy purposes. As such, this processing interferes with the fundamental 
rights  to  the  protection  of  private  life  and  to  the  protection  of  personal  data  as  recognised  by 
Articles 7 and 8 of the Charter on Fundamental Rights of the European Union and Article 8 of the 
European Convention of Human Rights, as well as Article 16 of the Treaty on the Functioning of 
the European Union. The right to private life and to the protection of personal data is however 
subject to limitations and conditions defined in Article 8 of the European Convention of Human 
Rights  and  Article  52  of  the  Charter  on  Fundamental  Rights  of  the  European  Union.  These 
limitations permit interferences that are in so far as necessary "in the interest of national security, 
public safety or the economic well-being of the country, for the prevention of disorder or crime, for 
the protection of health or morals, or for the protection of the rights and freedoms of others". "in 
accordance with the law" and "necessary in a democratic society". As the proposed actions would 
be for the purpose of combating terrorism and other serious crime, contained in a legislative acts 
they  would  clearly  comply  with  such  requirements  provided  they  are  "necessary  in  a  democratic 
society" and comply with the principle of proportionality.  

Any  proposed  action  would  fall  within  the  scope  of  Title  V  of  Chapter  V  TFEU  on  police  and 
judicial cooperation. The Data Protection Directive 95/46/EC42 would not apply as actions within 
a  framework  established  by  public  authorities  to  safeguard  public  security  are  excluded.  The 
provisions  of  the  Council  Framework  Decision  2008/977/JHA  on  the  protection  of  personal  data 
processed in the framework of police and judicial cooperation in criminal matters43 would apply to 
data exchanged between Member States but not to the domestic processing of personal data for law 
enforcement  purposes,  leaving  a  protection  gap  at  national  level.  Since  any  proposed  measure 
would involve domestic processing of PNR data by Member States, it is necessary to devise data 
protection rules for such processing. The most suitable solution in the circumstances would be that 
the data protection safeguards of any proposed measure are in line with the Framework Decision 
2008/977/JHA.  On  this  basis,  any  proposed  action  should  ensure  that  the  purpose  of  the  use  of 
PNR  data  is  clearly  defined,  that  processing  of  personal  data  is  secure,  that  the  right  of 
individuals  to  information,  access,  rectification,  erasure  and  blocking  are  respected,  and  that 
Member States impose liability, appropriate sanctions and remedies. Equally, the supervision of 

41 
42 

43 

COM (2010)573 of 19 October 2010 
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, OJ L 281, 
23/11/1995 p 31, Article 3 
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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the  application  of  these  rules  by  the  data  protection  supervisory  authorities  in  Member  States, 
exercising  their  functions  with  complete  independence,  is  an  essential  component  for  efficient 
protection of personal data under any such proposal.  

This  solution  would  guarantee  a  uniform  standard  of  protection  of  personal  data  under  any 
proposal,  and  provide  legal  certainty  for  individuals,  commercial  operators  and  law  enforcement 
authorities.  

4. 

POLICY OPTIONS AND TRANSVERSAL ISSUES 

4.1. 

Policy options 

In order to achieve the objectives mentioned above, the Commission considers that there are four 
main policy options described below: 

A. 

Refraining from addressing the issue at EU level – Maintaining the status quo  

This  policy  option  involves  no  action  being  taken  by  the  EU.  This  means  that  the  issue  of 
processing  and  exchanging  PNR  data  will  remain  unresolved  at  EU  level  while  different  and 
largely  diverging  solutions  to  the  processing  and  exchanging  of  PNR  data  would  be  developed 
and implemented by Member States acting independently.  

Three  Member  States  have  already  started  implementing  national  PNR  data  systems  and  it  is 
expected that more will follow.  

B. 

Options addressing the structure of a system for collecting and processing PNR data 

B.1:  Decentralised collection and processing of data by Member States 

This  policy  option  would  involve  an  EU  legislative  instrument  to  ensure  that  Member  States 
collect,  process,  use  and  share  certain  categories  of  PNR  data  for  specific  purposes.  Each 
Member  State  would  be  required  to  collect  and  process  the  PNR  data  of  travel  to  and  from  its 
territory,  while  sharing  relevant  PNR  data  or  analysis  of  PNR  data  with  other  Member  States. 
Therefore  each  Member  State  would  be  individually  as  well  as  collectively  responsible  for 
increasing the internal security of the EU. Under this option, the Member States would bear the 
costs of establishing their national PNR systems. Consequently, it would be Member States that 
decide  on  how  best  to  use  PNR  data,  within  the  limits  of  the  EU  legislative  instrument.  These 
activities  would  be  subject  to  a  number  of  safeguards  aimed  to  comply  with  data  protection 
requirements  and  the  security  of  data  transfers.  Such  safeguards  should  include  appropriate 
purpose  limitation,  clearly  defined  periods  of  retention,  and  rules  ensuring  the  security  of  data 
processing as well as redress mechanisms.  

B.2:  Centralised collection and processing of data at EU level 

This policy option would involve an EU legislative instrument to require that an EU central unit 
collects,  processes,  uses  and  shares  with  Member  States  certain  categories  of  PNR  data  for 
defined purposes. It would involve the centralised collection and processing of the data by an EU 

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body, rather than requiring each Member State to collect and process the PNR data of travel to 
and from their territory. Carriers would be obliged to transmit the PNR data of their passengers to 
a  Centralised  Unit  at  EU  level  which  would  filter  out  the  non-required  data  when  necessary, 
process and share PNR data or analysis of PNR data with the relevant authorities of the Member 
States. The Centralised Unit would be responsible for retaining the data. Consequently, the EU 
would  be  responsible  for  processing  and  retaining  the  data,  within  the  limits  of  the  legislative 
instrument. These activities would be subject to a number of safeguards aimed at providing the 
highest level of protection of personal data and a secure transmission of the data. Such safeguards 
should  aim  at  ensuring  the  appropriate  purpose  limitation,  defining  the  retention  period,  and 
setting rules for the security of the data and redress mechanisms. The work of such a unit would 
be substantial, it would require an important number of staff and it would need to work on a 24/7 
basis.  Under  this  option,  the  EU,  together  with  each  Member  State  would  be  collectively 
responsible for increasing the internal security of the EU. The costs for establishing and running 
the system would be borne by the EU budget.  

C. 

Options addressing the purpose limitation of the proposed measures 

C.1:  Access  for  the  prevention,  detection,  investigation  and  prosecution  of  terrorist 
offences and serious crime only 

Under  this  option,  PNR  data  would  be  used  for  the  prevention,  detection,  investigation  and 
prosecution of terrorist offences and other serious crimes. The term "terrorist offence" could be 
defined according to the Framework Decision on combating terrorism 2002/475/JHA44. The term 
"serious crime" could be defined according to the Council Framework Decision 2002/584/JHA of 
13  June  2002  on  the  European  Arrest  Warrant  and  the  surrender  procedure  between  Member 
States. This option would be consistent with the approach of the Commission as regards transfers 
of  PNR  data  to  third  countries,  as  set  out  in  the  Communication  on  the  global  approach  to 
transfers  of  PNR  data  to  third  countries  and  with  its  general  approach  in  police  and  judicial 
cooperation instruments. 

C.2:  Access  for  the  prevention,  detection,  investigation  and  prosecution  of  terrorist 
offences and serious crime and other policy objectives 

Under this option, PNR data would be used not just for the prevention, detection, investigation 
and prosecution of terrorist offences and other serious crime, but also for other purposes, such as 
immigration control, aviation security and health safety, described in section 2.1.2. 

D. 

Options addressing the modes of transport to be covered by the proposed measures 

D.1:  Air travel only 

Under  this  option,  PNR  data  would  be  collected  only  for  air  travel.  Currently  only  air  carriers 
regularly  collect  such  information.  The  data  are  provided  by  the  passenger  voluntarily  and  are 
collected  and  processed  by  the  air  carriers  for  commercial  purposes  via  their  reservation  and 

44 

OJ L164, 22/6/2002, p.3 

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departure  control  systems.  The  nature  of  air  travel  requires  that  at  least  the  name  and  flight 
number for each passenger are known at the time of booking.  

D.2:  Air, sea and rail travel 

Under this option, PNR data would be collected for air, sea and rail travel. Because most sea and 
rail  carriers  do  not  currently  regularly  collect  PNR  data,  this  option  involves  extending  the 
collection of PNR data to those types of carriers. 

E. 

Voluntary/enhanced cooperation 

This  option  would  result  in  the  issue  being  dealt  with  by  encouraging  cooperation  between  the 
Member States. Such cooperation could take the form of exchanges of best practices. However, it 
is  considered  that  the  option  of  encouraging  cooperation  between  Member  States,  would  not 
achieve the desired objectives. Firstly, it would be extremely difficult, if not impossible, to ensure 
a  common  EU  approach,  and  it  would  be  impossible  to  ensure  that  such  best  practices  are 
actually  being  exchanged.  Moreover,  the  problems  of  terrorism  and  organised  crime  affect  all 
Member States and are not only limited to some Member States. If Member States refuse or fail 
to coordinate their activities, they would create a substantial security gap within the Union. The 
security  of  the  EU  is  the  joint  responsibility  of  Member  States  and  they  should  all  act  in  a 
harmonised manner to achieve the desired results. The goal of increasing security can therefore 
not  be  sufficiently  achieved  merely  by  encouraging  cooperation  between  Member  States.  In 
addition, the airlines and the data protection authorities of the Member States generally opposing 
the idea of using PNR data for law enforcement purposes were adamant that if any action were to 
be taken it should involve harmonisation. Otherwise it is likely that we will end up with diverging 
requirements  which  will  ultimately  be  very  costly  for  the  airlines  and  the  Member  States.  It  is 
further noted that the guidelines of the International Civil Aviation Organisation (ICAO) on PNR 
data  are  not  binding  and  have  proved  not  to  provide  a  sufficient  basis  for  the  required 
cooperation. 

On the basis of the above, the option of encouraging cooperation between the Member States in 
this field is rejected at this initial stage and will not be further examined. 

4.2. 

Transversal issues 

There are a number of transversal issues which arose from the consultations with Member States 
and  other  stakeholders  that  are  relevant  to  the  use  of  PNR  data  but  which  are  not  presented  as 
policy options in the present report, either because there is already a general consensus on these 
issues or because an alternative approach to the one presented is not considered realistic at this 
stage. This section provides an overview of a preliminary analysis of these issues. 

4.2.1.  Geographical scope 

It would be most reasonable and proportionate that any proposed measure would apply to travel 
from  a  third  country  to  or  from  a  Member  State.  This  would  ensure  that  PNR  data  of  all 
passengers  entering  or  departing  from  the  EU  would  be  collected,  processed  and  retained. 

EN 

22 

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Member  States  and  the  EU  would  undertake  to  act  individually  and  as  well  as  collectively  to 
increase security in the EU. 

Given that the objectives pursued by the collection of PNR data are the same inside and outside 
of  the  EU,  there  would  be  an  important  added  value  in  including  internal  flights,  i.e.  flights 
between Member States in any proposed measure. Making the instrument applicable to all travel, 
including  internal  travel,  though  favoured  by  some  Member  States,  is  however  considered 
premature  at  this  stage.  Considering  the  large  number  of  travellers  on  internal  flights,  which  is 
three times more than the number of passengers on international flights45, the costs for setting up 
and operating the system would be much higher. The hardware and software required to set up 
the  system  would  have  to  have  a  much  larger  capacity,  and  therefore  would  be  much  more 
expensive. A system including internal flights would be too ambitious to adopt as a first step, but 
it  is  one  that  should  be  considered  for  the  future,  as  part  of  a  step-by-step  approach.  The 
possibility and necessity of including internal flights in any measure could be the subject of an in-
depth  evaluation  a  couple  of  years  after  the  measure  has  been  in  operation.  The  experience  of 
those Member States that collect PNR data on internal flights by that point should be taken into 
account for the purposes of the evaluation. 

4.2.2. 

Sensitive data 

As  regards  the  processing  of  sensitive  data,  any  proposed  measure  should  be  consistent  with  the 
2007 Impact Assessment and the 2007 proposal ensuring that "sensitive" data46, to the extent that 
they are contained in the PNR data, are filtered out and deleted immediately. 

4.2.3.  Data retention period 

On the length of the data retention period, a commensurate period of retention of the data by the 
relevant authorities is necessary when using PNR data re-actively or pro-actively. The option of 
deleting the data upon the arrival of the passengers at the country of destination does not seem 
appropriate as it would limit the potential of PNR data to one of the three possible uses listed in 
2.1.2,  namely  real-time  use.  Such  a  limitation  would  not  make  full  use  of  the  added  value  of 
using PNR data. 

The  retention  period  should  not  be  longer  than  necessary  for  the  performance  of  the  tasks  for 
which PNR data are used and should take into account the different ways in which PNR data are 
used and the possibilities of limiting access rights over the period of retention. The 2007 Impact 
Assessment  and  2007  proposal  set  the  active  retention  period  to  5  years  and  retention  in  an 
inactive  database  for  another  8  years.  This  choice  was  heavily  criticised  by  the  data  protection 
stakeholders and the European Parliament as too long and disproportionate. For the purposes of 
this  report,  it  is  proposed  that  any  new  measure  should  provide  for  a  reduced  period  of  data 
retention.  Such  a  data  retention  period  should  also  provide  for  the  gradual  reduction  of  access 

45 
46 

Eurocontrol Annual Report 2009 
As  defined  in  Article  6  of  the  Convention  108  for  the  Protection  of  Individuals  with  Regard  to  Automatic 
Processing  of  Personal  Data  of  the  Council  of  Europe,  i.e.  personal  data  revealing  racial  origin,  political 
opinions or religious or other beliefs, or concerning health or sexual life 

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rights,  for  example  through  anonymising  the  data.  The  solution  should  meet  the  concerns 
expressed by Member States and must draw on experience gained from international agreements 
that the EU signed in the field. It must represent the absolute minimum of what is required for the 
prevention, detection, investigation and prosecution of terrorist offences  and serious crime, and 
what can be considered acceptable from a data protection point of view. The chosen period must 
meet data protection requirements. 

On the basis of the above, and taking into account the data retention periods in the countries that 
currently use PNR data, the period of retention should be one year with an additional period of 
five years in an anonymised database.  

4.2.4.  Push/pull 

As regards the method of transmission of the data by the carriers, the "push" and "pull" methods 
were considered. 

With the "push" method carriers transmit (push) the required PNR data into the database of the 
requesting authority. On the other hand with the "pull" method, the requesting authority can reach 
in  to  the  carrier's  reservation  system  and  extract  (pull)  a  copy  of  the  required  data  into  their 
database.  

The  advantages  of  the  "push"  method  over  the  "pull"  method  are  undisputable,  as  public 
authorities  can  keep  control  over  what  happens  with  the  databases  located  on  their  territory. 
Another advantage would be that the public authorities keep control over the security of the data 
transfers. The risks of the "pull" method are that the authority which receives the data potentially 
may  access  all  data  in  the  databases  of  the  carriers  and  would  then  have  to  filter  them  out 
themselves. The carriers are therefore left with no control over the data they have collected and 
for which they are responsible.  

It  is  important  to  stress  that  the  transmission  of  PNR  data  by  carriers  to  public  authorities 
generates a substantial cost for carriers47, with the "push" method being substantially more costly 
than  "pull"  method.  Carriers  would  have  to  implement  "push"  method  from  a  hardware  and 
software point of view. They would then have to pay the transmission costs (telecommunication 
lines) for each "push" of the data. As such, the actual cost for carriers will depend on the carrier's 
size  and  the  number  of  flights  that  it  executes  under  any  proposed  measures.  Therefore,  small 
carriers,  with  few  flights  would  have  fewer  costs.  The  system's  hardware  and  software  would 
need to be of a smaller capacity and the transmission costs would not be substantial. On the other 
hand,  large  carriers  with  many  flights  will  need  systems  with  bigger  capacity  and  many  more 
telecommunication lines. 

The  risks  however  to  the  protection  of  the  data  of  passengers  with  the  "pull"  method  clearly 
outweigh the advantages that it offers in relation to costs.  

47 

Detailed explanations and figures on costs are provided in Annex A and Chapter 7 of this Report. 

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Even though the 2007 Impact Assessment and 2007 proposal had proposed the use of the "push" 
method  for  EU  carriers  and  a  combination  of  "push"  and  "pull"  methods  for  third  country 
carriers, the data protection stakeholders and the European Parliament criticised this decision and 
insisted on the exclusive use of the "push" method. In response to these criticisms and in further 
consultations with the Member States, it is advisable that any proposed measure should provide 
for the exclusive use of the "push" method by all carriers. Even though the "push" systems are 
currently  being  developed,  it  requires  a  certain  timeframe  to  become  fully  operational.  More 
specifically, carriers will have to implement the "push" method, adopt the necessary data formats 
and encryption methods and develop links to all relevant Member States in order to transmit the 
data.  Member  States  would  also  have  to  implement  the  "push"  method  on  the  receiving  side, 
adopt  the  necessary  technical  requirements  and  links  with  the  carriers.  All  these  processes  are 
complex and difficult to implement and air carriers and Member States should do their utmost to 
comply with this method.  

4.2.5.  Automated Individual Decisions 

One of the biggest criticisms of the use of PNR data for trend analysis and for running it against 
the  fact-based  assessment  criteria  is  that  it  might  result  in  what  is  critically  referred  to  as 
'profiling'. Profiling can be described as an automatic data processing technique that consists of 
applying  a  “profile”  to  an  individual,  in  order  to  take  decisions  affecting  him  or  her.  EU  data 
protection legislation in principle grants every individual the right not to be subject to a decision 
which  produces  legal  effects  concerning  him  or  significantly  affects  him  and  which  is  based 
exclusively or to a decisive extent on automated processing of data intended to evaluate certain 
personal aspects relating to him.48 A person, however, may be subjected to a decision of this kind 
if it is authorised by law which also lays down measures to safeguard the data subject's legitimate 
interests. Any proposal for the use of PNR data should therefore comply with this data protection 
principle  and  lay  down  effective  measures  to  safeguard  the  data  subject's  legitimate  interests. 
Such  measure  could  include  that  any  automated  individual  decisions  has  to  be  verified  and 
confirmed by a human being and allow for arrangements allowing the data subject to present his 
or her point of view.  

4.2.6. 

Scope of the data 

As regards the issue of the scope of the data, the competent authorities should be able to use only 
those  elements  of  PNR  data  considered  proportionate  and  necessary  for  the  fulfilment  of  the 
purpose  of  the  specific  measure.  Any  list  of  PNR  categories  to  be  used  should  include  the 
minimum of what is necessary and the maximum of what is proportionate to fulfil its purpose in 
this  specific  case.  It  is  also  important  to  note  that  any  measure  should  not  oblige  carriers  to 
introduce  mandatory  fields  in  their  collection  of  PNR  data  from  their  passengers.  The  carriers 
should  continue  to  collect  and  make  available  to  the  competent  authorities  only  those  data 
voluntarily  provided  by  the  passenger  for  the  reservation  of  the  flight  or  which  have  been 
collected following check-in and boarding. 

48 

Article 15 of Directive 95/46/EC; Article 7 of Framework Decision 2008/977/JHA. 

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4.2.7.  Data  to  be  transmitted  from  the  Passenger  Information  Units/Centralised  Unit  to  the 

competent authorities 

Data can be transmitted to the competent authorities either in bulk or on a case-by-case basis. 

It  seems  preferable  that  the  carriers  do  not  filter  the  data  which  they  will  transmit  to  the 
competent  law  enforcement  authorities.  This  filtering  could  best  be  done  by  the  Passenger 
Information Units designated by the Member States or by the EU Centralised Unit (depending on 
which  option  is  finally  adopted).  The  Passenger  Information  Unit  or  Centralised  Unit  would 
thereby filter out the non-required data and run the PNR data through the alert systems and the 
assessment criteria in order to identify suspicious passengers. The Unit would then transfer only 
the  PNR  data  of  identified  passengers  to  the  relevant  authorities.  In  addition,  the  relevant 
authorities could make specific requests to the Unit for the provision of data in relation to specific 
investigations or to assist in analysing the data. These authorities will not have access to the PNR 
data of other passengers. In this way, the possibility of abuse of the data would be reduced. The 
advantage to the increase of security in the case of bulk transmissions of data is minor and does 
not outweigh the disadvantage on the protection of data.  

4.2.8.  Bodies receiving data from the Passenger Information Units 

The  Passenger  Information  Units/Centralised  Unit  should  process  and  then  transfer  to  the 
competent national authorities of the country of destination/departure, only the PNR data of the 
identified passengers. They should also transfer the PNR data of the identified passengers to the 
Passenger Information Units of the other Member States, which should then, in their turn, transfer 
them to their national law enforcement or other competent authorities.  

5. 

ANALYSIS OF IMPACTS  

This section identifies the social and economic impacts of the options, whether direct or indirect, 
in  the  short  term  and  in  the  long  term.  It  should  be  noted  at  this  stage  that  no  significant 
environmental impacts could be identified. The most significant impacts will be analysed below 
against the following criteria: security in the Union, protection of personal data, costs for public 
authorities,  costs  for  carriers/competition,  the  internal  market  and  aim  to  encouraging  a  global 
approach. Impacts are rated as absent, small, medium or significant: 

Table of symbols (using (-) for negative and (+) for positive impacts) 

Small impact 

Medium impact 

Significant impact 

No impact 

- / + 

-- / ++ 

- - - / +++ 

0 

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5.1. 

Impacts  of  the  option  of  refraining  from  addressing  the  issue  at  EU  level  – 
Maintaining the status quo (Policy Option A) 

This  policy  option  entails  no  action  to  be  taken  by  the  Union.  The  status  quo  will  therefore 
remain.  The  status  quo,  as  explained,  is  that  currently  three  Member  States  have  relevant 
legislation for the use of PNR data. The consultations however, suggested that in the very near 
future,  more  and  more  Member  States  will  start  adopting  similar  internal  measures  as  well. 
Therefore,  in  our  assessments,  the  status  quo  also  takes  into  account  expected  developments  in 
the very near future. 

Increasing  security  in  the  EU  (0):  A  "no  action"  policy  will  impede  the  ability  of  the  EU  to 
fight terrorism and serious crime and hence have a negative effect on the security in the Union. 
This would mean that the full advantages offered by PNR data to the security of the EU, would 
not be attained. This would also mean that the Union might end up with various diverging PNR 
systems, leading to negative effects on the internal security and the creation of security gaps. The 
Union will have fewer means of identifying terrorists and criminals. Furthermore, it will deprive 
the  Member  States  of  a  very  important  source  of  obtaining  intelligence  on  terrorists,  criminals 
and their associates. Nevertheless, if some Member States develop their own systems, the impact 
on  increasing  the  security  in  the  Union  will  be  positive  but  to  a  lesser  extent  than  if  action  is 
taken collectively. Terrorists and criminals might choose to enter the Union through a Member 
State which does not have such a system or a system with lower standards. In addition, in view of 
the  free  movement  of  persons  within  the  Schengen  area,  a  system  introduced  in  one  Member 
State  might  prove  to  be  insufficient,  as  it  cannot  go  beyond  its  territory.  Therefore  the  aim  of 
substantially  increasing  the  security  of  the  Union  cannot  be  sufficiently  achieved  merely  by 
relying on national measures. 

Increasing the protection of personal data (0): Each Member State which develops a national 
system would have to safeguard the right to data protection of passengers. The standards of data 
protection  might  vary  depending  on  which  Member  State  a  passenger  travels  to  or  from.  For 
example, data might be retained for different periods in different Member States, some Member 
States might use sensitive data while others do not, Member States might have different standards 
for  notifying  passengers  of  the  processing  of  their  data  or  provide  different  levels  of  access  to 
data.  More  importantly,  Member  States  might  use  the  data  for  different  purposes,  for  example 
some might use the data for the prevention, detection, investigation and prosecution of terrorist 
offences and serious crime and immigration purposes, while others might exclude immigration. 
Some  may  use  the  data  for  all  types  of  crimes  while  others  limiting  the  use  to  serious  crimes. 
Member States might have wide exceptions as regards the access to data or in relation to redress. 
Such  divergence  of  standards  would  be  undesirable  as  passengers  would  have  different  rights 
depending  which  Member  State  they  travel  to  and  from.  The  data  protection  authorities  would 
deplore  such  a  development  and  the  Article  29  Working  Party  on  Data  Protection  and  the 
European Data Protection Supervisor are adamant that in case Member States start implementing 
national measures, harmonised EU action would become necessary.  

Costs  on  public  authorities  (0):  Public  authorities  in  Member  States  deciding  to  introduce 
national PNR legislation would need to set up systems to receive data from carriers. This is likely 
to  lead  to  the  development  of  a  number  of  different  national  systems  of  collection  and 

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transmission of data, thus having a serious negative impact on efficiency and ultimately on costs. 
Each  national  authority  would  have  to  develop  technology  based  systems  of  transmission  to 
potentially 26 other different systems of the other Member States.  

Costs for carriers/competition in the internal market (0): National legislation obliging carriers 
to communicate PNR data to the relevant national authorities would mean that carriers collecting 
and processing this data would need to comply with the legal and technical requirements of each 
different  system,  regarding  for  example  methods  of  transmission,  data  security  standards  for 
transmission of data, varying data formats amongst other. Considerable costs, as well as technical 
challenges, can be expected for carriers if they would have to respond to multiple requirements 
which differ substantially from one another. Since each Member State would be left to regulate 
the issue of access to PNR data domestically, it is not unlikely that such solutions will not comply 
with the 'single window' approach, i.e. that there should only be one authority in each Member 
State  requesting  data  from  the  carriers.  This  would  lead  to  a  sharp  increase  in  the  costs  for 
carriers  as  they  would  need  to  establish  and  keep  secure  communication  channels  with  each 
different authority. In addition, in case some but not all Member States choose to develop their 
own  PNR  data  collection  and  transfer  systems,  carriers  operating  predominantly  from  Member 
States which do not have PNR data legislation might be in an advantageous position compared to 
carriers in countries that do.  

Encouraging a global approach (0): It is anticipated that more third countries will request the 
provision of PNR data from the Union. Even though the Communication on the global approach 
to the transfer of PNR data to third countries encourages the Union to insist on certain standards 
and to ensure consistency in such bilateral agreements with third countries, these standards will 
have less impact if the EU is unwilling or unable to impose such standards on its own Member 
States.  Under  this  option  the  EU  would  not  take  full  advantage  of  the  possibility  of  requesting 
reciprocal treatment from third countries with which the EU has an agreement. Currently the third 
countries with which the EU has signed PNR Agreements only undertake to share some analysis 
of PNR data with authorities of Member States. The Agreements do not go as far as requesting 
the third country to transmit all relevant flight data to the Member States to do their own analysis 
and processing. 

5.2. 

Impacts of the options addressing the structure for collecting and processing PNR 
data (Policy Option B) 

5.2.1.  Decentralised collection and processing of data by Member States (Option B1) 

Increasing security in the EU (+++): This option would potentially entail a faster transmission 
of the collected PNR data from a Passenger Information Unit designated in each Member State to 
the relevant competent law enforcement authorities, than under the EU Centralised Unit option. 
Fast transmission is important since it allows more time to process the data and identify high-risk 
passengers in advance of their arrival, especially in cases where tickets for travel were bought at 
the last minute. It further provides time for law enforcement authorities to organise their reaction 
when  they  are  expecting  the  arrival  of  a  wanted  or  suspected  individual  by  setting  up  teams  to 
make the arrest or organise surveillance. More importantly, as PNR data are usually processed on 
the  basis  of  very  sensitive  information,  like  the  assessment  criteria  and  other  law  enforcement 
databases held by each Member States, our consultations showed that the Member States would 

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be  more  willing  to  use  such  sensitive  information  under  the  auspices  of  their  own  national 
systems than with an EU Centralised Unit, thus rendering the processing of PNR data much more 
effective  and  contributing  to  increasing  security  in  the  EU  quite  substantially.  There  is  a  risk, 
however,  that  the  Passenger  Information  Units  of  the  Member  States  would  apply  diverging 
criteria  in  assessing  passengers,  leading  to  the  risk  that  the  same  passenger  is  identified  in  one 
Member State but not in another. This could be remedied with the establishment of guidelines at 
the EU level on how passengers should be assessed. Such guidelines could be in the form of best 
practices on how the assessment of passengers should be carried out, resulting from an advisory 
comitology procedure. It would of course be essential that the actual assessment of passengers is 
carried  out  by  each  Member  State  separately  as  each  would  have  different  information  on  the 
basis of which to make its assessments. 

Protection of personal data (--): Under this option the transmitted data would remain within one 
Member  State  and  only  the  PNR  data  of  identified  passengers  would  be  transmitted  to  other 
Member  States.  The  data  of  passengers  would  be  processed  only  by  the  Member  State  from 
which  the  passenger  arrives  or  departs  rather  than  by  other  Member  States  irrelevant  to  the 
person's travel. It would also involve the processing of the passenger's data only on the basis of 
data available in the specific Member State rather than against any information that might exist 
about  the  passenger  elsewhere  in  the  EU.  Furthermore,  it  would  be  clear  which  Member  State 
will  be  responsible  for  implementing  the  passenger's  data  protection  rights  and  the  passenger 
would know where to seek redress in the event of any violation of such rights.  

Costs  on  public  authorities  (--):  The  option  of  creating  Passenger  Information  Units  in  each 
Member State would entail costs which would be borne by each Member State directly. The costs 
would need to cover the creation of the Unit, its staff, the development of the mechanism for the 
processing  of  the  data  and  their  transmission  to  the  competent  authorities.  The  costs  for 
establishing the system would be substantial because each Member State would have to set up or 
designate a Passenger Information Unit which would receive the data and would have to develop 
the necessary mechanisms for the filtering and processing of the data and their transmission to the 
relevant law enforcement authorities and the Passenger  Information  Units of the other Member 
States. The operation of such a Unit is estimated to require between 30-50 members of staff for 
Member  States  with  few  international  flights  and  70-100  for  Member  States  with  many 
international  flights.  Because  the  setting-up  and  operation  of  such  a  Unit  involves  substantial 
costs,  it  should  be  possible  for  two  or  more  Member  States  to  establish  or  designate  the  same 
Passenger  Information  Unit  to  receive,  filter,  process  and  forward  the  data.  This  would  be 
especially helpful to Member States with few international flights or which do not face a severe 
threat to their security or serious problems with serious crime. 

Costs on carriers/competition in the internal market (--): Carriers would have to bear the cost 
of "pushing" the data to the Passenger Information Unit, which is estimated at around 0,04 Euro 
per passenger (as opposed to the cost of "pulling" data which is estimated at around 0,03 Euro per 
passenger).  The  carriers  would  also  have  to  bear  the  one-off  cost  of  setting-up  the  system 
(hardware and software), as well as recurring costs such as, personnel and maintenance costs. It 
should  be  noted  that  the  software  for  carrying  out  transmissions  of  data  by  "push"  and  "pull" 
methods, have already been developed and therefore the cost of purchasing such software would 
be considerably less that some years ago. Furthermore, as PNR data are more often used in third 

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countries than before, new software developers have entered the market, which until some years 
ago  was  dominated  by  fewer  companies.  This  has  led  to  substantial  reduction  in  costs.  The 
carriers would also need to establish communication channels with each Passenger Information 
Unit  in  order  to  transmit  the  relevant  data  to  each  Member  State.  This  option  would  provide 
carriers  with  a  'single  window'  in  each  Member  State  rather  than  having  several  different 
authorities in each Member State requesting data from the carriers. 

Encouraging  a  global  approach  (+++):  It  is  anticipated  that  an  increasing  number  of  third 
countries will request PNR data from the EU. This option would provide the EU with the ability 
to  insist  on  certain  standards  and  to  ensure  consistency  in  bilateral  agreements  with  third 
countries. It would also make it possible to request reciprocal treatment from third countries with 
which  the  EU  has  already  concluded  an  agreement,  something  that  is  not  currently  possible. 
Together  with  the  Communication  on  the  global  approach  to  transfers  of  PNR  data  to  third 
countries,  this  would  allow  the  EU  to  encourage  a  global  approach  on  the  use  of  PNR  data. 
Because the use of PNR data requires specific action from non-EU carriers, it is possible that the 
third  countries  where  such  carriers  are  based  will  react  by  introducing  similar  measures  or  by 
refusing  to  provide  such  data  unless  bilateral  agreements  are  concluded  with  the  EU.  This  is 
however  considered  unlikely  because  the  experience  with  countries  that  use  PNR  data  shows 
quite clearly that, despite their national measures which affect carriers worldwide, no retaliation 
has  been  recorded  from  another  country.  Additionally,  the  setting  up  and  operation  of  a  PNR 
system  requires  a  high  investment  by  the  country  that  introduces  it,  which  can  be  a  dissuasive 
factor  for  most  third  countries.  Therefore  the  use  of  PNR  data  is  currently  only  undertaken  by 
those countries that consider such an investment necessary to enhance their internal security. As a 
result,  our  consultations  and  experience  shows  that  the  possibility  of  retaliatory  action  by  third 
countries  does  not  present  such  a  great  risk  as  to  outweigh  the  advantages  offered  by  the 
proposed measure to increase the internal security of the EU. 

5.2.2.  Centralised collection and processing of data at EU level (Option B2) 

Increasing  security  in  the  EU  (++):  This  option  would  ensure  the  application  of  common 
criteria for identification of passengers and would make it possible to identify travel patterns and 
behavioural  characteristics  more  accurately  because  they  would  be  based  on  PNR  data  for  the 
whole  of  the  EU.  As  such,  the  centralised  collection  of  data  would  contribute  substantially  to 
increasing  security  in  the  EU.  However,  for  the  purpose  of  performing  the  assessment  of  the 
passengers,  the  responsible  central  authority  would  have  to  gather  information  from  all  the 
Member  States.  Such  information  would  have  to  be  up-to-date  at  all  times,  and  the  processing 
system would have to be fed with information on a 24/7 basis because of the number of flights 
entering and leaving the Union. In addition, the responsible authority would have to have direct 
access to a variety of different national databases in order to be able to carry out the assessments 
of  passengers.  Such  direct  access  is  considered  highly  sensitive  by  the  Member  States  and  the 
consultations  with  the  Member  States  indicated  that  they  would  be  very  reluctant  to  exchange 
such information and give direct access. Member States' reluctance to this option could result in 
practical problems in the implementation of the system and a high probability of failure, thereby 
reducing/obstructing/impeding  substantially  the  positive  impact  that  the  measure  is  expected  to 
have on security.  

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Protection  of  personal  data  (--):  The  advantage  of  having  an  EU  Centralised  Unit  to  collect, 
process  and  retain  the  data  is  that  it  might  be  in  a  better  position  to  ensure  that  the  data  is 
transmitted and used within the uniform safeguards and redress mechanisms for the data subjects. 
This might ultimately involve less interference with the right to data protection of passengers. It 
would also ensure that exactly the same rules apply to all passengers. Furthermore, the data for 
each passenger will be assessed on the basis of information from all Member States, irrespective 
of  where  the  passenger  arrives  or  departs  from.  Such  extensive  processing  would,  however,  be 
very cumbersome and outweigh the other advantages of having an EU Centralised Unit. 

Costs on public authorities (-): Under this option, the costs would be borne by the EU budget 
and as a result, the Member States would not have to bear any costs as they would not have to 
develop  their  own  Passenger  Information  Unit.  The  costs  of  setting  up  an  EU  Centralised  Unit 
would  be  very  high  because  such  a  Unit  would  receive  the  data  and  would  therefore  need  to 
develop  the  necessary  mechanisms  for  processing  and  transmitting  the  data  to  the  relevant 
authorities. The mechanism developed would have to be of an especially high capacity in order to 
deal with the vast amounts of data from carriers and would be quite complicated. There is a high 
possibility that such a system could be subject to frequent crashes because of the vast amount of 
data  and  there  is  therefore  a  risk  that  it  would  be  unworkable.  A  centralised  system  can  be 
distinguished  from  systems  such  as  the  Schengen  Information  System  (SIS)  and  the  Visa 
Information System (VIS) because the volume of data which will be entered into such a system 
will be substantially bigger than that in SIS and VIS. SIS and VIS contain the data of specified 
individuals which are put into the systems by each Member State. On the contrary, the PNR data 
which  will  have  to  be  handled  by  such  a  Centralised  Unit  would  relate  to  approximately 
500.000.000 passengers who fly in and out of the EU each year. Such figures are also expected to 
rise every year. In addition, an EU Centralised Unit would need to operate on a 24/7 basis and be 
staffed with officials requiring special training in order to be able to work with fact-based rules. 
The EU does not currently have the expertise or the capacity to establish such a Centralised Unit. 

Costs on carriers/competition in the internal market (-): Carriers would have to bear the cost 
of  "pushing"  the  data  to  the  Centralised  Unit,  which  is  estimated  at  around  0,04  Euro  per 
passenger, (as opposed to the cost of "pulling" data which is estimated at around 0,03 Euro per 
passenger).  The  carriers  would  also  have  to  bear  the  one-off  cost  of  setting-up  the  system  for 
"pushing"  or  "pulling"  (hardware  and  software),  as  well  as  recurring  costs  of  personnel  and 
maintenance.. This option would provide carriers with a 'single window' for the whole of the EU, 
i.e.  they  would  need  to  establish  secure  communication  channels  for  transmitting  the  data  only 
with one authority for the whole of the EU rather than different authorities in each Member State. 
This would be very beneficial to the carriers from a financial point of view. 

Encouraging a global approach (+++): The impacts are the same as those described above for 
option B1. 

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5.3. 

Impacts of the options addressing the purpose limitation of the proposed measures 
(Policy Option C) 

5.3.1.  Access for the prevention, detection, investigation and prosecution of terrorist offences 

and serious crime only (Option C1) 

Increasing  security  in  the  EU  (++):  The  use  of  PNR  data  exclusively  for  the  prevention, 
detection, investigation and prosecution of terrorist offences and serious crime would have a very 
positive  impact  on  increasing  security  in  the  EU.  Terrorism  and  other  serious  crime  are  the 
biggest  threats  to  security.  By  making  PNR  data  available  for  the  prevention,  detection, 
investigation and prosecution of such crimes, law enforcement authorities will be provided with a 
necessary tool for the efficient performance of their tasks.  

Protection of personal data (--): Limiting the measure to the prevention, detection, investigation 
and prosecution of terrorist offences and serious crime would involve the processing of PNR data 
only  for  the  narrower  possible  purposes.  The  use  of  that  data  would  be  authorised  only  for 
purposes for which no other tool would be able to fulfil the same objectives.  

Costs  on  public  authorities  (--):  Restricting  the  use  of  the  data  to  the  prevention,  detection, 
investigation and prosecution of terrorist offences and serious crime would involve a limited and 
specifically targeted group of authorities using the data. This would have cost advantages, as it 
would not be necessary to build secure connections for the exchange of the data between more 
authorities  or  to  connect  the  national  PNR  database  with  additional  databases  on  visas  and 
aviation security amongst others. Extending the purpose beyond the abovementioned would lead 
to greater costs.  

Costs  on  carriers/competition  in  the  internal  market  (--):Both  the  option  of  using  the  data 
exclusively for the prevention, detection, investigation and prosecution of terrorist offences and 
serious  crime  and  the  option  of  using  it  for  further  purposes  would  have  the  same  impacts  as 
regards the costs on the carriers and the competition in the internal market.  

Encouraging  a  global  approach  (+++):  Limiting  the  measure  to  law  enforcement  purposes 
would  be  in  line  with  the  general  international  approach  of  the  EU  towards  third  countries  on 
PNR which only refer to such purposes and would allow the EU to set up its own standards to be 
promoted at international level.  

5.3.2.  Access for the prevention, detection, investigation and prosecution of terrorist offences 

and serious crime and other policy objectives (Option C2) 

Increasing  security  in  the  EU  (+++):  Extending  the  scope  of  the  use  of  PNR  data  for  other 
purposes could be considered useful, especially regarding the use of such data in the fight against 
irregular  immigration,  aviation  security  and  health  safety.  However,  other  less  intrusive 
instruments would be preferable for addressing those concerns, such as the use of API data. There 
is currently no clear and direct need to use PNR data for these purposes. 

Protection  of  personal  data  (---):  Although  extending  the  use  of  PNR  data  to  other  purposes 
would be very useful, it cannot be justified as necessary. Other, less intrusive measures would be 

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more appropriate for these purposes. Moreover, under this option,  more authorities would have 
the right to use the data which would require additional safeguards in order to comply with data 
protection principles. 

Costs on public authorities  (---): If extension of the use of PNR data is extended  to  purposes 
other  than  the  prevention,  detection,  investigation  and  prosecution  of  terrorist  offences  and 
serious crime this will lead to a substantial increase in costs for public authorities.  

Costs on carriers/competition in the internal market (--): The impacts are the same as those 
described above for option C1. 

Encouraging a global approach (-): Extending the use of PNR data to purposes other than the 
prevention, detection, investigation and prosecution of terrorist offences and serious crime, would 
be inconsistent with current practice as it would go further in its domestic PNR system than the 
approach taken for third countries. .  

5.4. 

Impacts  of  the  options  addressing  the  modes  of  transport  to  be  covered  by  the 
proposed measures (Policy Option D) 

5.4.1.  Air carriers only (Option D1) 

Increasing security in the EU (++): Even if the use of PNR data is limited to travel by air, it 
would contribute towards a substantial increase of the internal security in the EU. Air travel is the 
most common mode of transport for travelling to and from the EU territory from the majority of 
third countries. Due to its speed, it represents the most attractive mode of transport. As a result, 
even  if  any  future  measure  is  limited  to  air  travel  a  high  percentage  of  travellers  would  be 
covered  by  it.  Further,  because  of  the  dramatic  effects  of  a  plane  crash,  and  because  of  the 
destruction  caused  by  such  a  crash,  terrorists  appear  to  have  a  preference  for  using  aircraft  to 
perform an act of terror. In addition, criminals who traffic people and goods also tend to use air 
travel  because  it  is  faster  than  other  modes  of  transport.  However,  under  this  option  not  all 
controlled border crossings to the EU would be covered, and there would therefore continue to be 
a high possibility of terrorists and criminals entering its territory via other border crossings/land 
or  sea  borders.  Furthermore,  there  remains  a  risk  that  those  wishing  to  enter  EU  territory  use 
alternative means of transport, for example ship, ferry, train, bus, thus making the instrument less 
effective. However, overall, this option could sufficiently achieve the goal of increasing security 
in the EU as a measure covering all flights to and from any third country would ensure that the 
Member States authorities are given sufficient tools for identifying when a potential suspect will 
attempt to enter the territory of the EU and will allow the analysis the data over a given period of 
time of relevance for the assessment criteria.  

Protection of personal data (--): Limiting the  use of PNR data to travel by air would involve 
collecting and processing of data of air passengers only, thereby limiting the interference with the 
passengers' right to the protection of their personal data. In addition, it is important to note that 

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air carriers already collect and store these data for quite long periods for commercial purposes49; 
this option would therefore not lead to the collection of any new data.  

Costs on public authorities (--): This option would involve fewer costs than the extension of the 
use of PNR data to air, sea and rail carriers because it would involve collection, processing and 
retention of less data and fewer connections with carriers to obtain this data 

Costs  on  carriers/competition  in  the  internal  market  (--):  Because  air  carriers  are  the  only 
transport  providers  that  already  have  mechanisms  to  collect  PNR  data  of  passengers  developed 
and  used  for  commercial  purposes,  the  restriction  of  the  use  of  PNR  data  to  air  carriers  only 
would  not  lead  to  heavy  costs  for  air  carriers.  However,  it  should  be  noted  that  the  distinction 
between  air  and  other  forms  of  travel,  leads  to  a  possibility  that  air  carriers  are  put  at  a 
competitive disadvantage as they would have to incur costs to comply with the system that other 
carriers will not have to do. This could lead to a distortion of competition in the EU. However, 
this would depend on which air routes are considered to be in competition with non-air routes, 
and which markets are considered to be separate. 

Encouraging  a  global  approach  (+++):  Restricting  the  use  of  PNR  data  to  air  carriers  only 
would be in line with the general international approach and the agreements that the EU signed 
with third countries on PNR data which only refer to air travel.  

5.4.2.  Air, sea and rail carriers (Option D2) 

Increasing  security  in  the  EU  (+++):  Any  measure  covering  air,  sea  and  rail  travel  would 
ensure  that  all  (other  than  road)  border  crossings  are  covered  and  would  therefore  limit  the 
possibility of having security gaps, thereby increasing security in the EU. 

Protection  of  personal  data  (---):  Extending  the  use  of  PNR  data  to  sea  and  rail  travel  would 
lead to the collection and processing of more data because these carriers do not currently collect 
such data. In any case it would lead to the collection of more data than under Policy Option D1. 

Costs on public authorities (---): Extending the use of PNR data to all modes of transport would 
be more costly for public authorities than restricting it to air travel because it would involve more 
collection, processing and retention of data and more connections with carriers to obtain the data. 

Costs on carriers/competition in the internal market (---): This option would entail substantial 
costs and administrative changes for non-air carriers because they would have to set up such data 
collection  and  transfer  mechanisms  from  scratch  and  change  their  operational  systems 
substantially.  

Encouraging a global approach (-): If the EU extends the use of PNR data to sea and rail travel, 
it  would  be  going  further  for  its  domestic  PNR  system  than  it  does  for  third  countries.  This 
approach would therefore not be consistent with existing practice.  

49 

The retention periods by carriers vary substantially and sometimes reach 40 years 

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6. 

COMPARING THE OPTIONS 

Policy Option A on maintaining the status quo presents very limited advantages on increasing the 
security  of  the  EU,  but  otherwise  would  have  very  negative  impacts.  Bearing  in  mind  the 
direction  in  which  this  policy  field  is  currently  developing,  it  is  anticipated  that  it  would  have 
negative  impacts  in  the  sense  of  creating  administrative  difficulties  for  the  public  authorities 
stemming  from  numerous  diverging national systems. The  costs of  compliance with potentially 
27  diverging  systems  would  be  huge,  for  both  the  public  authorities  and  the  carriers.  Security 
benefits  would  be  limited,  since  there  would  be  no  harmonisation  of  the  various  aspects  of  the 
national systems for the exchange and use of PNR data. In addition, the development of different 
legal frameworks and mechanisms in the different Member States presents more possibilities for 
intrusive  interferences  to  the  data  protection  principles  because  it  would  lead  to  diverging 
standards  of  data  protection  in  each  Member  State.  Moreover,  such  an  option  would  not  be 
consistent with the Union policy as regards agreements on PNR with third countries. 

The options under Policy Options B aim to address the structure of the system needed to regulate 
the use of PNR data. Whether through a centralised or a decentralised system, taking action at the 
EU level is preferable to refraining from taking any action because it presents the clear advantage 
of  significantly  increasing  security  in  the  EU.  Regarding  the  structure  of  any  system  to  collect 
and process PNR data, the decentralised collection of data (Option B1) presents advantages over 
the centralised collection of such data (Option B2). The option of centralised collection of data 
would  have  a  high  possibility  of  failure  because  it  could  not  guarantee  adequate  co-operation 
between the Member States and at a practical level the system would be cumbersome and costly 
to operate due to the enormous amount of data that it would have to process and retain. Policy 
Option B1 would be more costly, for both the public authorities and the carriers compared with 
Policy Option B2. The advantages, however, for security outweigh the disadvantages in terms of 
costs, since increasing security is the primary aim of the proposed measure. Both options would 
have the same impacts on the protection of personal data and on encouraging a global approach. 

Concerning the purpose limitation of any future measures, Policy Option C2 whereby the scope 
of  the  proposed  measure  would  be  extended  to  purposes  other  than  the  prevention,  detection, 
investigation  and  prosecution  of  terrorist  offences  and  serious  crime  presents  some  advantages 
for  security  compared  with  Policy  Option  C1.  However,  it  also  involves  substantially  more 
interference with data protection and more costs for the public authorities than Policy Option C1 
which would allow the use of PNR data exclusively for the prevention, detection, investigation 
and  prosecution  of  terrorist  offences  and  serious  crime.  Moreover,  Policy  Option  C2  presents 
fewer  opportunities  in  terms  of  encouraging  a  global  approach  than  Policy  Option  C1  since  it 
would  go  further  than  the  policy  of  the  EU  on  PNR  agreements  with  third  countries.  On  this 
basis,  Policy  Option  C2  on  extending  the  use  of  PNR  data  to  other  purposes  seems  to  be 
disproportionate at this stage. 

Regarding the options in relation to the modes of transport that should be covered by any future 
measure, Policy Option D2 whereby the proposed measure would be extended to air, sea and rail 
carriers presents some advantages for security compared with Policy Option D1 as it would cover 
more  modes  of  transport  and  more  passengers.  However,  it  involves  substantially  more 
interference with  data protection  and  more  costs for the public  authorities  and the  carriers than 

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Policy  Option  D1  under  which  the  measure  would  be  applied  exclusively  to  air  carriers. 
Moreover,  Policy  Option  D2  presents  fewer  advantages  in  terms  of  encouraging  a  global 
approach  since  it  would  go  further  than  the  policy  of  the  EU  on  PNR  agreements  with  third 
countries. In addition, the idea behind using PNR data is simply to obtain access to the data that 
is already collected by carriers. Since most train and ships/ferry carriers do not normally collect 
such  data,  it  would  be  disproportionate  at  this  stage  to  require  them  to  transmit  data  to  public 
authorities. On the basis of the above, Policy Option D2 on extending the scope of the measure to 
cover sea and rail travel seems to be premature, at least at this stage. Such an extension to sea and 
rail travel could be considered in the future, once we will have learned from the experiences with 
PNR collection from air travel. 

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Summary table of the impacts of the policy options 

Impacts of 
policy options 

Status 
quo 

Options addressing 
structure for collecting 
and processing PNR 

Options addressing 
purpose limitation of PNR 

Options addressing 
modes of transport 
covered by PNR 

Policy 
Option A 

Policy 
Option B1 

Policy 
Option B2 

Policy 
Option C1

Policy Option 
C2 

Policy 
Option D1 

Policy 
Option D2

Status 
quo 

Decentra-
lised PNR 
system at 
MS level 

Centralised 
PNR 
system at 
EU level 

Terrorist 
offences 
and 
serious 
crime 

Terrorist 
offences and 
serious crime 
and other 
policy 
objectives 

Air 
carriers 

Air, sea 
and rail 
carriers 

0 

0 

0 

0 

0 

Increase 
security in the 
EU 

Protection of 
personal data 

Costs on public 
authorities 

Costs on 
carriers / 
competition in 
the internal 
market 

Encouraging a 
global 
approach 

Preferred 
policy option 

+++ 

++ 

++ 

+++ 

++ 

+++ 

-- 

-- 

-- 

-- 

- 

- 

-- 

-- 

-- 

--- 

--- 

-- 

-- 

-- 

-- 

--- 

--- 

--- 

+++ 

+++ 

+++ 

- 

+++ 

- 

√ 

√ 

√ 

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7. 

PREFERRED POLICY OPTION 

7.1. 

Analysis of the preferred policy option 

On the basis of the above, the creation of a new legislative proposal applicable to travel by air 
with a 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 
(combination of Policy Options B1, C1 and D1). This option would be preferable since it would 
provide  better  means  of  increasing  security  in  the  EU,  while  at  the  same  time  ensuring  that 
interference with the protection of personal data is kept to a minimum and that costs are kept at 
an acceptable level. It should be noted that this option it is not believed to present the ultimate 
solution  to  the  problem  but,  at  the  current  stage,  it  is  the  most  desirable  solution.  It  is  a  good 
starting  point  and  will  help  towards  gathering  experience  in  this  field.  In  any  event  an  EU 
instrument on the use of PNR data should be evaluated after a reasonable period of time to assess 
its implementation. It should be noted that the preferred option will not have an impact on the EU 
budget. 

The structure of the system should be decentralised. This option would have more benefits for the 
security in the EU since any centralised system, because of the nature of PNR data processing, 
would risk failing. Even though the centralised option involves fewer costs than the decentralised 
option, the advantage to security, which is the main purpose of the measure, would outweigh the 
costs element.  

The  purpose  of  any  future  measure  should  be  limited  only  to  the  prevention,  detection, 
investigation  and  prosecution  of terrorist  offences  and  serious  crime  rather  than  be  extended  to 
other  purposes  such  as  health  safety,  aviation  security,  immigration  for  instance.  The  negative 
impact  this  would  have  on  the  protection  of  personal  data,  costs  and  encouraging  a  global 
approach  to  PNR  data  outweigh  the  advantages  to  increased  security  this  purpose  extension 
would bring.  

As  a  first  step,  it  seems  more  proportionate  that  the  proposal  is  limited  to  air  carriers.  Even 
though  an  extension  to  other  modes  of  transport  would  have  benefits  for  security,  it  would 
involve  more  costs  for  the  public  authorities  and  the  carriers  and  more  interference  with  data 
protection.  

The EU needs to act as soon as possible in this area in order to reduce the possibility of various 
diverging  systems  being  developed  by  each  Member  State.  Different  approaches  by  different 
Member  States  would  lead  to  inconsistencies,  uncertainty  and  different  rights  for  individuals, 
which  would  entail  citizen  dissatisfaction  as  well  as  high  costs  for  implementation  and 
compliance. 

7.2. 

Costs of the preferred option 

An  analysis  of  the  costs  of  the  preferred  policy  option  appears  in  detail  in  Annex  A  and 
corresponds to the analysis carried out for the purposes of the 2007 Impact Assessment. The costs 
are differentiated between costs for public authorities and costs for carriers. This analysis did not 

EN 

38 

   EN 

 
elicit any comment from either the Member States or the air carriers at the time of publication 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: 

Set-up cost (non-recurring cost) 

€ 614 833 187 

BUT assuming an amortisation period of five years 

€ 122 966 637 

Annual personnel costs (recurring) 

Annual maintenance costs (recurring) 

€ 11 686 749 

€ 61 483 319 

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

Set-up cost for PUSH (non-recurring costs) 

€ 11 647 116 

BUT assuming an amortisation period of five years 

€ 2 329 423 

Transmission costs for PUSH twice per passenger (recurring)  € 2 250 080 

Personnel and maintenance costs (recurring) 

€ 5 435 321 

Following the 2007 Impact Assessment, the Commission published a tender for a study on ways 
of setting up an EU network for exchanging PNR data. The report ‘Study on ways of setting up 
an  EU  network  on  exchange  of  Passenger  Name  Record  (PNR)  data  for  law  enforcement 
purposes’50 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) 

5 large Member States * € 25 million = € 125 million 

15 medium-sized Member States* € 5 million = € 75 million 

7 small Member States* € 3 million = € 21 million 

€ 221 000 000 

BUT assuming an amortisation period of five years 

€ 44 200 000 

Annual personnel costs (recurring)51 

Annual maintenance costs (recurring)52 

€ 11 686 749 

€ 61 483 319 

50 
51 
52 

Authors: Accenture and SITA. 
These costs were not re-assessed under the Accenture study. The 2007 figures are therefore maintained. 
Ditto. 

EN 

39 

   EN 

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

Set-up cost for PUSH (non-recurring costs)53 

€ 100 000 * 120 EU-based carriers = 

€ 100 000 * 80 non-EU-based carriers54 = 

€ 12 000 000 

€ 8 000 000 

BUT assuming an amortisation period of five years 

€ 4 000 000 

Transmission costs for PUSH twice per passenger (recurring) 

€ 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. 

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

8. 

MONITORING AND EVALUATION 

It  is  important  that  the  proposal  includes  provisions  for  its  monitoring  and  evaluating  the 
measures. Such arrangements could be: 

Each  Member  State  could  prepare  and  transmit  to  the  Commission  an  annual  report  on  the 
implementation of the systems containing information on the following indicators: 

–  volumes of data received,  

–  cases which have ended in successful identifications of suspects,  

–  number and type of case where retained data were used for investigations,  

–  cases where data were exchanged with other Member States and third countries,  

53 

54 

The costs for PULL have not been assessed under the study, as it had become obvious at that stage of the 
negotiations  between  stakeholders  that  this  would  not be  an  acceptable  option.  It  is,  however,  clear  from 
Annex A that the costs of PULL would be substantially less than the costs of PUSH. 
It is noted that the costs for non-EU-based carriers were not assessed for the purposes of the 2007 Impact 
Assessment. 

EN 

40 

   EN 

 
                                                 
–  number of cases of redress related to data protection and their outcome.  

The Commission should assess the operation of the Directive within four years from its entry into 
force and submit a report to the Parliament and the Council. This should evaluate whether the use 
of  PNR  data  has  met  its  objectives  and  whether  Member  States  have  complied  with  their 
obligations.  The  review  should  also  examine  whether  the  system  has  been  successful  and 
substantiate its conclusions with statistics. The review should also take into account the annual 
reports of the Member States and consider all matters arising there from.  

The  Commission  should  also  consider  the  possibility  of  extending  the  measure  to  internal  EU 
flights within two years from its entry into force. This would provide the opportunity to have a 
transitional period and to gain experience from the functioning of first PNR data Directive.  

EN 

41 

   EN 

 
ANNEX A – TABLE OF ECONOMIC IMPACTS OF PREFERRED OPTION 

Proposal On A Common Approach to the Use of Passenger Name  
Records (PNR) Data for the prevention, detection, investigation and prosecution of 
terrorist offences and serious crime 

If the act assessed is the transposition of an act adopted at another level, insert 
here the name and reference of that 'original' act 

Tariff 
(€ per 
hour) 

Time 
(hour) 

Price 
(per action or 
equip) 

Freq (per 
year) 

Nbr of 
entities 

Total nbr 
of actions

Total cost  Regulatory origin (%)

No. 

Ass. 
Art. 

Orig. 
Art. 

Type of 
obligation 

Description of required action(s) 

Target group 

i 

e 

i 

e 

Int 

EU 

Nat  Reg

Submission  of 
(recurring) 
reports 

Submitting the information (sending it 
to the designated recipient) 

non-recurrent costs for airlines 
(installation of IT systems and 
software) 

Submission  of 
(recurring) 
reports 

Adjusting existing data 

for  airlines 
recurrent  costs 
(personnel  and  operation  of 
the system) 

Submission  of 
(recurring) 
reports 

Submitting the information (sending it 
to the designated recipient) 

recurrent  costs 
(transmission of PNR data) 

for  airlines 

Other 

Other 

Inspecting  and  checking  (including 
assistance  to  inspection  by  public 
authorities) 

non-recurrent  costs  for  public 
administrations  (installation  of 
IT systems and software) 

Inspecting  and  checking  (including 
assistance  to  inspection  by  public 
authorities) 

recurrent  costs 
administrations 
and maintenance) 

for  public 
(personnel 

1 

2 

3 

4 

5 

6 

7 

8 

9 

EN 

1

1

1

1

1

1

1

1

2.329.423

100%

1

5.435.321

100%

1 54.880.000

2.250.080

1

1

1

122.966.637

100%

1

73.170.068

100%

100%

0

0

0

0

0

0

0

0

0

0

2.329.423,00 

5.435.320,94 

0,04 

122.966.637,04 

73.170.067,09 

0,00 

0,00 

0,00 

0,00 

0,00 

42 

 
 
 
 
 
 
 
     
  
  
  
  
 
 
     
  
  
  
  
 
 
 
  
    
  
  
  
  
 
 
 
 
     
  
  
  
  
 
 
 
     
  
  
  
  
 
 
 
     
  
  
  
  
  
  
  
 
 
 
 
 
     
  
  
  
  
  
  
  
 
 
 
 
 
 
     
  
  
  
  
  
  
  
 
 
 
 
 
 
     
  
  
  
  
  
  
  
 
 
 
 
 
 
     
  
  
  
  
  
  
  
 
 
 
 
 
 
Proposal On A Common Approach to the Use of Passenger Name  
Records (PNR) Data for the prevention, detection, investigation and prosecution of 
terrorist offences and serious crime 

If the act assessed is the transposition of an act adopted at another level, insert 
here the name and reference of that 'original' act 

Tariff 
(€ per 
hour) 

Time 
(hour) 

Price 
(per action or 
equip) 

Freq (per 
year) 

Nbr of 
entities 

Total nbr 
of actions

Total cost  Regulatory origin (%)

No. 

Ass. 
Art. 

Orig. 
Art. 

Type of 
obligation 

Description of required action(s) 

Target group 

i 

e 

i 

e 

Int 

EU 

Nat  Reg

Total administrative cost 

(€)

206.151.529

explanation: type of obligation "other": refers to the receipt of the PNR data by the passenger information units, screening of data and transmission 
to law enforcement authorities (TBC). 

Airlines 

Statistics from Eurocontrol show a total number of XXX European carriers operating international flights 
in 2006.  

XXX of these carriers operate less than 1000 flights per year.  

non-recurring cost 
source Lufthansa (costs incurred in joint project with 5 other European airlines. 

Cost for European airline of PULL system to USA: 

Cost for European airline of PUSH system to USA/Canada: 

Additional costs would have to be borne for increasing the capacity of existing systems to cope with EU 
PNR obligations. It is assumed that this would double the costs mentioned above. 

Total estimated cost for European airline for setting up PULL: 

Total estimated cost for European airline for setting up PUSH: 

Total number of outbound flights operated by EU carriers per year (2006, source Eurocontrol) 

Within which total number of LH-operated flights  

€ 200 000,00

€ 600 000,00

€ 400 000,00

€ 1 200 000,00

Extrapolation of set-up cost of PUSH to total number of flights operated by EU carriers  

Assuming an amortisation period of 5 years, the yearly cost would amount to:  

€ 11 647 116,00 

€ 2 329 423,00

Carriers  with  less  than  1000  international  outbound  flights  per  year  (representing  13%  of  the  total 

560 236 

57 721
(10,3%)

.

EN 

43 

 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
number of flights) are expected to use the intermediary method of transmission, which would diminish 
non-recurrent costs. 

This  administrative  costs  calculation  is  limited  to  costs  for  EU  carriers,  which  account  for  49%  of 
international flights.  

Estimating the costs of non-EU carriers was not judged feasible due to the diverse economic conditions 
applying there.  

source Lufthansa (costs incurred in joint project with 5 other European airlines. 

recurring cost extraction/transmission 

1) push/pull 

CA push 

US pull 

source: Lufthansa 

Estimated cost of one push per PNR (source: data from EU flights to CA) in EUR: 

Estimated cost of one pull per PNR (source: data from EU flights to US) in EUR: 

€ 0,04

0,03

total number of passengers flying in and out of Europe per year (source Eurocontrol) 

56 000 000

EU carriers operate 49% of international flights and will be obliged to use the PUSH method. 

It is assumed that out of the 51% of non-EU carriers, 50% would resort to PUSH and 50% PULL. For 
the purpose of this calculation, only the cost for EU carriers is calculated. 

Number of passengers on EU carriers on international flights: 

Yearly transmission cost for EU carriers using PUSH: 

Yearly cost for EU carriers using PUSH twice per passenger: 

2) preparation of PNR personnel and maintenance 
source: Lufthansa for current US/Canada PNR transmission 

Cost for European airline for personnel 

Cost for European airline for maintenance 

27 440 000

€ 1 125 040,00

€ 2 250 080,00

€ 200 000,00

€ 80 000,00

Additional costs would have to be borne for increasing the capacity of existing systems to cope with EU 

EN 

44 

 
 
 
 
 
PNR obligations. It is assumed that this would double the costs mentioned above 

Total estimated cost for European airline for personnel 

Total estimated cost for European airline for maintenance 

€ 400 000,00

€ 160 000,00

Share of Lufthansa in total number of outbound flights operated by EU carriers per year 

10,3%

Extrapolation of personnel and maintenance costs of EU carriers based on the above  

€ 5 435 321,00

Carriers  with  less  than  1000  international  outbound  flights  per  year  (representing  13%  of  the  total 
number  of  flights)  are  expected  to  use  the  intermediary  method  of  transmission,  which  would 
substantially diminish personnel and maintenance costs. 

This  administrative  costs  calculation  is  limited  to  costs  for  EU  carriers,  which  account  for  49%  of 
international flights.  

Estimating the costs of non-EU carriers was not judged feasible due to the diverse economic conditions 
applying there.  

Public administrations 

non-recurring costs 

source UK 

estimation of setting up costs for a big MS (soft and hardware) for API and PNR 

€ 250 000 000,00

It can be assumed that the proportion of costs for PNR are substantially lower than for API, 

as API covers all modes of transport in that MS. Therefore, it is assumed that 30% of set-up costs 

are for PNR. 

Estimated hard- and software costs for a big MS for PNR: 

€ 75 000 000,00

It  is  assumed  that  international  flights  of  EU  carriers from  the UK are  predominantly  operated  by  UK 
companies: 

Number of outbound flights operated by UK companies: 
source Eurocontrol) 

Share of these flights in the total number of outbound flights (EU carriers): 

Extrapolation of hard- and software costs for MS based on the above: 

Assuming an amortisation period of 5 years, the yearly cost would amount to: 

€ 68 340,00

€ 614 833 187,00

€ 122 966 637,00

12,2%

EN 

45 

 
 
 
 
Member States with few international flights are expected to use the option of having common  

Units  with  one  or  more  Member  States  in  which  case  the  non-recurring  costs  are  expected  to 
substantially less 

recurring costs 

personnel 

Source UK 

Estimated number of FTEs for running a central passenger information unit dealing with API and PNR 
in a big MS: 

It can be assumed that 70% of this personnel is working on API. 

Estimated number of FTEs working on PNR in a big MS:  

Share of UK in the total number of outbound flights (EU carriers): 

Total number of FTE required for operating PNR in all MS: 

estimated hourly wage in EUR (average employment costs + 50% overheads) 

(EU 
www.mercerhr.com/pressrelease/details.jhtml/dynamic/idcontent/1175865) 

Consulting, 

Mercer 

figures 

25 

by 

11 

April 

2005, 

working hours per year (8 hours * 20 days * 11 months) 

total yearly personnel costs for all MS 

maintenance 

In  analogy  to  the  maintenance  costs  for  airlines,  this  is  calculated  as  a  percentage  of  set-up  costs 
maintenance  costs  for  airlines  are  10%  of  set-up  costs.  The  same  ratio  is  assumed  for  public 
administrations. 

total yearly maintenance costs for all MS: 

sum total yearly maintenance and personnel costs for all MS: 

€ 11 686 749,00

€ 61 483 319,00

€ 7 3170 068,00

EN 

46 

100

30

12,2%

246

27

47 520