Proposal for a COUNCIL DECISION on the conclusion of the Agreement between the United States of America and the European Union on the use and transfer of Passenger Name Records to the United States Department of Homeland Security
Date: 2011-11-23
Institutions: European Commission
Subjects: United States, data recording, electronic document management, exchange of information, international cooperation, police cooperation, traveller

EUROPEAN COMMISSION 

Brussels, 23.11.2011 
COM(2011) 807 final 

2011/0382 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the United States of America and the 
European Union on the use and transfer of Passenger Name Records to the United 
States Department of Homeland Security 

 
 
  
 
EXPLANATORY MEMORANDUM 

U.S.  legislation  empowers  the  Department  of  Homeland  Security  (DHS)  to  require  each  air 
carrier operating passenger flights to and from the U.S., to provide it with electronic access to 
Passenger Name Record (PNR) data prior to the passenger arriving or  leaving the U.S. The 
requirements of the U.S. authorities are based on title 49, United States Code, section 44909c 
(3) and its implementing regulations (title 19, Code of federal regulations, section 122.49b). 

This legislation aims at obtaining PNR data electronically in advance of a flight's arrival and 
therefore  significantly  enhances  DHS  ability  to  conduct  efficient  and  effective  advance  risk 
assessment of passengers and to facilitate bona fide travel, thereby enhancing the security of 
the U.S. The Agreement will also foster international police and judicial cooperation through 
the  transfer  of  analytical  information  flowing  from  PNR  data  by  the  U.S.  to  the  competent 
Member  States  authorities  as  well  as  Europol  and  Eurojust  within  their  respective 
competences. 

PNR  is  a  record  of  each  passenger's  travel  requirements  which  contains  all  information 
necessary to enable reservations to be processed and controlled by air carriers.  

Air  carriers  are  under  an  obligation  to  provide  the  DHS  with  access  to  certain  PNR  data 
contained in the air carrier's automated reservation and departure control systems. 

The data protection laws of the EU do not allow European and other carriers operating flights 
from  the  EU  to  transmit  the  PNR  data  of  their  passengers  to  third  countries  which  do  not 
ensure  an  adequate  level  of  protection  of  personal  data  without  adducing  appropriate 
safeguards. A solution is required that will provide the legal basis for the transfer of PNR data 
from the EU to the U.S. as a recognition of the necessity and importance of the use of PNR 
data in the fight against terrorism and other serious transnational crime, whilst avoiding legal 
uncertainty  for  air  carriers.  In  addition,  this  solution  should  be  applied  homogenously 
throughout the European Union in order to ensure a legal certainty for air carriers and respect 
of individuals' rights to the protection of personal data as well as their physical security. 

The European Union signed an agreement in 2007 with the United States on the transfer and 
processing of PNR data based on a set of commitments by DHS in relation to the application 
of its PNR programme1. 

Following  the  entry  into  force  of  the  Lisbon  Treaty  and  pending  the  conclusion  of  the 
agreement,  the  Council  sent  the  2007  U.S.  Agreement  to  the  European  Parliament  for  its 
consent  for  the  conclusion.  The  European  Parliament  adopted  a  resolution2  in  which  it 
decided  to  postpone  its  vote  on  the  requested  consent  and  requesting  a  renegotiation  of  the 
Agreement  on  the  basis  of  certain  criteria. Pending such renegotiation, the 2007 Agreement 
would remain provisionally applicable. 

On  21  September  2010,  the  Council  received  a  recommendation  from  the  Commission  to 
authorise the opening of negotiations for an Agreement between the European Union and the 
United States of America for the use and transfer of Passenger Name Record (PNR) data to 
prevent and combat terrorism and other serious transnational crime. 

1 
2 

OJ L204/16, 4.8.2007 
P7_TA-(2010)0144, 5.5.2010 

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On  11  November  2010, 
the 
Recommendation  from  the  Commission  to  the  Council  to  authorise  the  opening  of  the 
negotiations. 

the  European  Parliament  adopted  a  resolution  on 

On 2 December 2010, the Council adopted a Decision, together with a negotiation directive, 
authorising the Commission to open negotiations on behalf of the European Union. Following 
negotiations between the parties, the Agreement was initialled on 17 November 2011.  

This Agreement takes into consideration and is consistent with the general criteria laid down 
in  the  Communication  from  the  Commission  on  the  Global  Approach  to  the  transfer  of 
Passenger Name Record (PNR) data to third countries3 and the negotiating directives given by 
the Council.  

investigating  and  prosecuting 

PNR has proven to be a very important tool in the fight against terrorism and serious crime. 
The  Agreement  has  secured  several  important  safeguards  for  those  whose  data  will  be 
transferred and used. In particular, the purpose of processing of PNR data is strictly limited to 
terrorist  offences  and  serious 
preventing,  detecting, 
transnational crime. The retention period of the PNR data is limited and PNR will be used for 
a shorter period in the fight against serious transnational crime and a longer one for terrorism. 
In  addition,  the  data  will  be  depersonalised  after  aperiod  of  6  months.  Individuals  are 
provided  with  the  right  to  access,  correction,  redress  and  information.  The  'push'  method  of 
transfer  is  recognised  as  the  standard  mode  of  transfer,  with  which  all  carriers  will  need  to 
comply within 2 years of the Agreement. Sensitive data is to be used in very exceptional cases 
and  deleted  after  a  very  short  timeframe.  Compliance  with  these  rules  shall  be  subject  to 
independent review and oversight by various Department Privacy Officers, as well as by the 
DHS  Office  of  Inspector  General,  the  Government  Accountability  Office  and  the  U.S. 
Congress. 

The Article 218(6)(a) of the Treaty on the Functioning of the European Union states that the 
Council shall authorise the conclusion of international agreements. 

The  Commission  therefore  proposes  to  the  Council  to  adopt  a  decision  approving  the 
conclusion of the Agreement between the European Union and the United States of America 
on  the  use  and  transfer of  Passenger  Name  Record  data  to  the  United  States  Department  of 
Homeland Security. 

3 

COM(2010)492. 

EN 

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2011/0382 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the United States of America and the 
European Union on the use and transfer of Passenger Name Records to the United 
States Department of Homeland Security 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 82(1)(d) and 87(2)(a), in conjunction with Article 218(6)(a) thereof,  

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament4, 

After consulting the European Data Protection Supervisor. 

Whereas: 

(1) 

(2) 

On  2  December  2010,  the  Council  adopted  a  Decision,  together  with  negotiation 
directives, authorising the Commission to open negotiations on behalf of the European 
Union between the European Union and the United States of America for the transfer 
and use of Passenger Name Records (PNR) to prevent and combat terrorism and other 
serious transnational crime.  

In  accordance  with  Council  Decision  2011/XXX  of  []5  the  Agreement  between  the 
European Union and the United States of America on the use and transfer of Passenger 
Name Records (PNR) to prevent and combat terrorism and other serious transnational 
crime was signed on … 2011, subject to its conclusion at a later date. 

(3) 

The Agreement should be concluded. 

(4) 

This  Agreement  respects  the  fundamental  rights  and  observes  the  principles 
recognised in particular by the Charter of Fundamental Rights of the European Union, 
notably the right to private and family life, recognised in Article 7 of the Charter, the 
right to the protection of personal data, recognised in Article 8 of the Charter and the 
right  to  effective  remedy  and  fair  trial  recognised  by  Article  47  of  the  Charter.  This 
Agreement should be applied in accordance with those rights and principles. 

(5) 

[In  accordance  with  Article  3  of  the  Protocol  21  on  the  Position  of  the  United 
Kingdom and Ireland in respect of the area of Freedom, Security and Justice annexed 

4 
5 

OJ C , , p. . 
OJ L , , p. . 

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to the Treaty on European Union and the Treaty on the Functioning of the European 
Union, the United Kingdom and Ireland take part in the adoption of this Decision.] 

(6) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  22  on  the  Position  of  Denmark 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  on  the  Functioning  of  the 
European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by the Agreement or subject to its application, 

HAS ADOPTED THIS DECISION:  

Article 1 

The Agreement between the United States of America and the European Union on the use and 
transfer of Passenger Name Records to the United States Department of Homeland Security is 
hereby approved on behalf of the European Union.  

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

Article 2 

The  Declaration  by  the  EU  on  the  Agreement  on  the  use  and  transfer  of  Passenger  Name 
Records to the United States Department of Homeland Security (“the Agreement”) in respect 
of its obligations under Articles 17 and 23 of the Agreement is hereby approved.  

The text of the Declaration is attached to the present decision. 

Article 3 

The President of the Council shall designate the person empowered to proceed, on behalf of 
the European Union, to the exchange of the instruments of approval provided for in Article 27 
of the Agreement, in order to express the consent of the European Union to be bound by the 
Agreement. 

Article 4 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Done at Brussels, 

For the Council 
The President 

EN 

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ANNEX I 

AGREEMENT  BETWEEN  THE  UNITED  STATES  OF  AMERICA  AND  THE 
EUROPEAN  UNION  ON  THE  USE  AND  TRANSFER  OF  PASSENGER  NAME 
RECORDS  TO  THE  UNITED  STATES  DEPARTMENT  OF  HOMELAND 
SECURITY 

THE UNITED STATES OF AMERICA 

and 

THE EUROPEAN UNION, 

Hereinafter referred to as “the Parties,” 

DESIRING to prevent and combat terrorism and serious transnational crime effectively as a 
means of protecting their respective democratic societies and common values; 

SEEKING  to  enhance  and  encourage  cooperation  between  the  Parties  in  the  spirit  of 
transatlantic partnership; 

RECOGNIZING the right and responsibility of states to ensure the security of their citizens 
and protect their borders and mindful of the responsibility of all nations to protect the life and 
safety of the public including those using international transportation systems;  

CONVINCED  that  information  sharing  is  an  essential  component  in  the  fight  against 
terrorism  and  serious  transnational  crime  and  that  in  this  context,  the  processing  and  use  of 
Passenger  Name  Records  (PNR)  is  a  necessary  tool  that  gives  information  that  cannot  be 
obtained by other means; 

DETERMINED  to  prevent  and  combat  terrorist  offenses  and  transnational  crime,  while 
respecting  fundamental  rights  and  freedoms  and  recognizing  the  importance  of  privacy  and 
the protection of personal data and information; 

HAVING  REGARD  for  international  instruments,  U.S.  statutes  and  regulations  requiring 
each air carrier operating passenger flights in foreign air transportation to or from the United 
States to make PNR available to the Department of Homeland Security (DHS) to the extent 
they  are  collected  and  contained  in  the  air  carrier’s  automated  reservation/departure  control 
systems, and comparable requirements that are or may be implemented in the EU; 

NOTING  that  DHS  processes  and  uses  PNR  for  the  purpose  of  preventing,  detecting, 
investigating  and  prosecuting  terrorist  offenses  and  transnational  crime  in  compliance  with 
safeguards on privacy and the protection of personal data and information, as set out in this 
Agreement; 

STRESSING  the  importance  of  sharing  PNR  and  relevant  and  appropriate  analytical 
information  obtained  from  PNR  by  the  United  States  with  competent  police  and  judicial 
authorities  of  Member  States,  and  Europol  or  Eurojust  as  a  means  to  foster  international 
police and judicial cooperation; 

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ACKNOWLEDGING both Parties’ longstanding traditions of respect for individual privacy, 
as reflected in their laws and founding documents; 

MINDFUL of the EU’s commitments pursuant to Article 6 of the Treaty on European Union 
on  respect  for  fundamental  rights,  the  right  to  privacy  with  regard  to  the  processing  of 
personal  data  as  stipulated  in  Article  16  of  the  Treaty  on  the  Functioning  of  the  European 
Union,  the  principles  of  proportionality  and  necessity  concerning  the  right  to  private  and 
family life, the respect for privacy, and the protection of personal data under Article 8 of the 
European  Convention  on  the  Protection  of  Human  Rights  and  Fundamental  Freedoms, 
Council  of  Europe  Convention  No.  108  for  the  Protection  of  Individuals  with  regard  to 
Automatic Processing of Personal Data and its additional Protocol 181, and Articles 7 and 8 
of the Charter of Fundamental Rights of the European Union;  

MINDFUL  that  DHS  currently  employs  robust  processes  to  protect  personal  privacy  and 
ensure  data  integrity,  including  physical  security,  access  controls,  data  separation  and 
encryption, audit capabilities and effective accountability measures; 

RECOGNIZING  the  importance  of  ensuring  data  quality,  accuracy,  integrity,  and  security, 
and instituting appropriate accountability to ensure these principles are observed; 

NOTING  in  particular  the  principle  of  transparency  and  the  various  means  by  which  the 
United States ensures that passengers whose PNR is collected by DHS are made aware of the 
need for and use of their PNR; 

FURTHER RECOGNIZING that the collection and analysis of PNR is necessary for DHS to 
carry out its border security mission, while ensuring that collection and use of PNR remains 
relevant and necessary for the purposes for which it is collected; 

RECOGNIZING that, in consideration of this Agreement and its implementation, DHS shall 
be deemed to ensure an adequate level of data protection for the processing and use of PNR 
transferred to DHS; 

MINDFUL that the United States and the European Union are committed to ensuring a high 
level  of  protection  of  personal  information  while  fighting  crime  and  terrorism,  and  are 
determined to reach, without delay, an agreement to protect personal information exchanged 
in the context of fighting crime and terrorism in a comprehensive manner that will advance 
our mutual goals; 

ACKNOWLEDGING the successful Joint Reviews in 2005 and 2010 of the 2004 and 2007 
Agreements between the Parties on the transfer of PNR; 

NOTING the interest of the parties, as well as EU Member States, in exchanging information 
regarding  the  method  of  transmission  of  PNR  as  well  as  the  onward  transfer  of  PNR  as  set 
forth in the relevant articles of this Agreement, and further noting the EU’s interest in having 
this  addressed  in  the  context  of  the  consultation  and  review  mechanism  set  forth  in  this 
Agreement; 

AFFIRMING that this Agreement does not constitute a precedent for any future arrangements 
between  the  Parties,  or  between  either  of  the  Parties  and  any  other  party,  regarding  the 
processing, use, or transfer of PNR or any other form of data, or regarding data protection;  

EN 

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RECOGNIZING  the  related  principles  of  proportionality  as  well  as  relevance  and  necessity 
that  guide  this  Agreement  and  its  implementation  by  the  European  Union  and  the  United 
States; and 

HAVING  REGARD  to  the  possibility  of  the  Parties  to  further  discuss  the  transfer  of  PNR 
data in the maritime mode;  

HEREBY AGREE: 

CHAPTER I 

GENERAL PROVISIONS 

Article 1 

Purpose 

1.  The purpose of this Agreement is to ensure security and to protect the life  

and safety of the public. 

2.  For this purpose, this Agreement sets forth the responsibilities of the Parties with respect 
to the conditions under which PNR may be transferred, processed and used, and protected. 

Article 2 

Scope 

1.  PNR, as set forth in the Guidelines of the International Civil Aviation Organization, shall 
mean the record created by air carriers or their authorized agents for each journey booked 
by or on behalf of any passenger and contained in carriers’ reservation systems, departure 
control  systems,  or  equivalent  systems  providing  similar  functionality  (collectively 
referred  to  in  this  Agreement  as  reservation  systems).  Specifically,  as  used  in  this 
Agreement, PNR consists of the data types set forth in the annex to this Agreement. 

2.  This Agreement shall apply to carriers operating passenger flights between the European 

Union and the United States. 

3.  This Agreement shall also apply to carriers incorporated or storing data in the European 

Union and operating passenger flights to or from the United States. 

Article 3 

Provision of PNR 

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The  Parties  agree  that  carriers  shall  provide  PNR  contained  in  their  reservation  systems  to 
DHS  as  required  by  and  in  accordance  with  DHS  standards  and  consistent  with  this 
Agreement. Should PNR transferred by carriers include data beyond those listed in the annex 
to this Agreement, DHS shall delete such data upon receipt. 

Article 4 

Use of PNR 

1. 

The United States collects, uses and processes PNR for the purposes of preventing, 
detecting, investigating, and prosecuting: 

(a)  Terrorist offenses and related crimes, including 

i. 

Conduct that –  

1. 

involves a violent act or an act dangerous to human life, property, 
or infrastructure; and  

2. 

appears to be intended to –  

a. 

b. 

c. 

intimidate or coerce a civilian population; 

influence  the  policy  of  a  government  by  intimidation  or 
coercion; or 

affect  the  conduct  of  a  government  by  mass  destruction, 
assassination, kidnapping, or hostage-taking. 

ii.  Activities  constituting  an  offense  within  the  scope  of  and  as  defined  in 

applicable international conventions and protocols relating to terrorism; 

iii.  Providing or collecting funds, by any means, directly or indirectly, with 
the intention that they should be used or in the knowledge that they are to 
be used, in full or in part, in order to carry out any of the acts described in 
subparagraphs (i) or (ii); 

iv.  Attempting to commit any of the acts described in subparagraphs (i), (ii), 

or (iii); 

v. 

Participating  as  an  accomplice  in  the  commission  of  any  of  the  acts 
described in subparagraphs (i), (ii), or (iii); 

vi.  Organizing  or  directing  others  to  commit  any  of  the  acts  described  in 

subparagraphs (i), (ii), or (iii); 

vii.  Contributing  in  any  other  way  to  the  commission  of  any  of  the  acts 

described in subparagraphs (i), (ii), or (iii); 

viii.  Threatening  to  commit  an  act  described  in  subparagraph  (i)  under 

circumstances which indicate that the threat is credible; 

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(b)  Other crimes that are punishable by a sentence of imprisonment of three years 

or more and that are transnational in nature.  

A crime is considered as transnational in nature in particular if: 

i. 

ii. 

iii. 

iv. 

v. 

It is committed in more than one country; 

It  is  committed  in  one  country  but  a  substantial  part  of  its  preparation, 
planning, direction or control takes place in another country; 

It is committed in one country but involves an organized criminal group 
that engages in criminal activities in more than one country; 

It  is  committed  in  one  country  but  has  substantial  effects  in  another 
country; or 

It is committed in one country and the offender is in or intends to travel 
to another country. 

PNR may be used and processed on a case-by-case basis where necessary in view of 
a serious threat and for the protection of vital interests of any individual or if ordered 
by a court.  

PNR may be used and processed by DHS to identify persons who would be subject 
to  closer  questioning  or  examination  upon  arrival  to  or  departure  from  the  United 
States or who may require further examination.  

Paragraphs  1,  2,  and  3  of  this  Article  shall  be  without  prejudice  to  domestic  law 
enforcement,  judicial  powers,  or  proceedings,  where  other  violations  of  law  or 
indications thereof are detected in the course of the use and processing of PNR.  

CHAPTER II 

SAFEGUARDS APPLICABLE TO THE USE OF PNR 

Article 5 

Data Security 

that  appropriate 

DHS  shall  ensure 
technical  measures  and  organizational 
arrangements  are  implemented  to  protect  personal  data  and  personal  information 
contained  in  PNR  against  accidental,  unlawful  or  unauthorized  destruction,  loss, 
disclosure, alteration, access, processing or use.  

DHS  shall  make  appropriate  use  of  technology  to  ensure  data  protection,  security, 
confidentiality and integrity. In particular, DHS shall ensure that: 

(a) 

encryption,  authorization  and  documentation  procedures  recognized  by 
competent authorities are applied. In particular, access to PNR shall be secured 
and limited to specifically authorized officials; 

2. 

3. 

4. 

1. 

2. 

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(b)  PNR  shall  be  held  in  a  secure  physical  environment  and  protected  with 

physical intrusion controls; and 

(c)  mechanism  exists  to  ensure  that  PNR  queries  are  conducted  consistent  with 

Article 4. 

In the event of a privacy incident (including unauthorized access or disclosure), DHS 
shall  take  reasonable  measures  to  notify  affected  individuals  as  appropriate,  to 
mitigate  the  risk  of  harm  of  unauthorized  disclosures  of  personal  data  and 
information, and to institute remedial measures as may be technically practicable. 

Within  the  scope  of  this  Agreement,  DHS  shall  inform  without  undue  delay  the 
relevant European authorities about cases of significant privacy incidents involving 
PNR of EU citizens or residents resulting from accidental or unlawful destruction or 
accidental loss, alteration, unauthorized disclosure or access, or any unlawful forms 
of processing or use. 

The  United  States  confirms  that  effective  administrative,  civil,  and  criminal 
enforcement measures are available under U.S. law for privacy incidents. DHS may 
take disciplinary action against persons responsible for any such privacy incident, as 
appropriate,  to  include  denial  of  system  access,  formal  reprimands,  suspension, 
demotion, or removal from duty. 

All access to PNR, as well as its processing and use, shall be logged or documented 
by  DHS.  Logs  or  documentation  shall  be  used  only  for  oversight,  auditing,  and 
system maintenance purposes or as otherwise required by law.  

Article 6 

Sensitive Data 

To  the  extent  that  PNR  of  a  passenger  as  collected  includes  sensitive  data  (i.e., 
personal  data  and  information  revealing  racial  or  ethnic  origin,  political  opinions, 
religious  or  philosophical  beliefs,  trade  union  membership,  or  data  concerning  the 
health  or  sex  life  of  the  individual),  DHS  shall  employ  automated  systems  to  filter 
and mask out sensitive data from PNR. In addition, DHS shall not further process or 
use such data, except in accordance with paragraphs 3 and 4 of this Article. 

DHS  shall  provide  to  the  European  Commission  within  90  days  of  the  entry  into 
force of this Agreement a list of codes and terms identifying sensitive data that shall 
be filtered out. 

Access  to,  as  well  as  processing  and  use  of,  sensitive  data  shall  be  permitted  in 
exceptional  circumstances  where  the  life  of  an  individual  could  be  imperiled  or 
seriously  impaired.  Such  data  may  be  exclusively  accessed  using  restrictive 
processes on a case-by-case basis with the approval of a DHS senior manager.  

Sensitive  data  shall  be  permanently  deleted  not  later  than  30  days  from  the  last 
receipt  of  PNR  containing  such  data  by  DHS.  However,  sensitive  data  may  be 
retained for the time specified in U.S. law for the purpose of a specific investigation, 
prosecution or enforcement action.  

3. 

4. 

5. 

6. 

1. 

2. 

3. 

4. 

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Article 7 

Automated Individual Decisions 

The United States shall not make decisions that produce significant adverse actions affecting 
the legal interests of individuals based solely on automated processing and use of PNR. 

Article 8  

Retention of Data 

1. 

2. 

3. 

4. 

5. 

DHS  retains  PNR  in  an  active  database  for  up  to  five  years.  After  the  initial  six 
months of this period, PNR shall be depersonalized and masked in accordance with 
paragraph  2  of  this  Article.  Access  to  this  active  database  shall,  unless  otherwise 
permitted  by  this  Agreement,  be  restricted  to  a  limited  number  of  specifically 
authorized officials.  

To  achieve  depersonalization,  personally  identifiable  information  contained  in  the 
following PNR data types shall be masked out: 

(a)  name(s); 

(b)  other names on PNR; 

(c) 

all available contact information (including originator information); 

(d)  General  Remarks,  including  other  supplementary  information  (OSI),  special 

service information (SSI), and special service request (SSR); and 

(e) 

any collected APIS information. 

After this active period, PNR shall be transferred to a dormant database for a period 
of  up  to  ten  years.  This  dormant  database  shall  be  subject  to  additional  controls, 
including a more restricted number of authorized personnel, as well as a higher level 
of supervisory approval required before access. In this dormant database, PNR shall 
not be repersonalized except in connection with law enforcement operations and then 
only in connection with an identifiable case, threat or risk. As regards the purposes as 
set  out  in  Article  4,  paragraph  (1)(b),  PNR  in  this  dormant  database  may  only  be 
repersonalized for a period of up to five years. 

Following the dormant period, data retained must be rendered fully anonymized by 
deleting  all  data  types  which  could  serve  to  identify  the  passenger  to  whom  PNR 
relate without the possibility of repersonalization.  

Data that are related to a specific case or investigation may be retained in an active 
PNR  database  until  the  case  or  investigation is archived.  This  paragraph  is  without 
prejudice  to  data  retention  requirements  for  individual  investigation  or  prosecution 
files. 

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6. 

The  Parties  agree  that,  within  the  framework  of  the  evaluation  as  provided  for  in 
Article 23, paragraph 1, the necessity of a 10-year dormant period of retention will 
be considered. 

Article 9 

Non-discrimination 

The United States shall ensure that the safeguards applicable to  processing  and  use  of PNR 
under  this  Agreement  apply  to  all  passengers  on  an  equal  basis  without  unlawful 
discrimination. 

Article 10 

Transparency 

1. 

DHS  shall  provide  information  to  the  traveling  public  regarding  its  use  and 
processing of PNR through: 

(a)  publications in the Federal Register; 

(b)  publications on its website; 

(c)  notices that may be incorporated by the carriers into contracts of carriage; 

(d) 

statutorily required reporting to Congress; and 

(e)  other appropriate measures as may be developed. 

DHS shall publish and provide to the EU for possible publication its procedures and 
modalities regarding access, correction or rectification, and redress procedures.  

The  Parties  shall  work  with  the  aviation  industry  to  encourage  greater  visibility  to 
passengers  at  the  time  of  booking  on  the  purpose  of  the  collection,  processing  and 
use of PNR by DHS, and on how to request access, correction and redress. 

Article 11 

Access for Individuals 

In accordance with the provisions of the Freedom of Information Act, any individual, 
regardless of nationality, country of origin, or place of residence is entitled to request 
his  or  her  PNR  from  DHS.  DHS  shall  timely  provide  such  PNR  subject  to  the 
provisions of paragraphs 2 and 3 of this Article.  

Disclosure  of  information  contained  in  PNR  may  be  subject  to  reasonable  legal 
limitations,  applicable  under  U.S.  law,  including  any  such  limitations  as  may  be 
necessary  to  safeguard  privacy-protected,  national  security,  and  law  enforcement 
sensitive information. 

2. 

3. 

1. 

2. 

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3. 

4. 

1. 

2. 

3. 

1. 

2. 

3. 

Any refusal or restriction of access shall be set forth in writing and provided to the 
requesting individual on a timely basis. Such notification shall include the legal basis 
on  which  information  was  withheld  and  shall  inform  the  individual  of  the  options 
available under U.S. law for seeking redress.  

DHS shall not disclose PNR to the public, except to the individual whose PNR has 
been processed and used or his or her representative, or as required by U.S. law. 

Article 12 

Correction or Rectification for Individuals 

Any individual regardless of nationality, country of origin, or place of residence may 
seek  the correction or rectification, including the possibility of erasure or blocking, 
of his or her PNR by DHS pursuant to the processes described in this Agreement. 

DHS  shall  inform,  without  undue  delay,  the  requesting  individual  in  writing  of  its 
decision whether to correct or rectify the PNR at issue.  

Any  refusal  or  restriction  of  correction  or  rectification  shall  be  set  forth  in  writing 
and  provided  to  the  requesting  individual  on  a  timely  basis.  Such  notification  shall 
include the legal basis of such refusal or restriction and shall inform the individual of 
the options available under U.S. law for seeking redress.  

Article 13 

Redress for Individuals 

Any  individual  regardless  of  nationality,  country  of  origin,  or  place  of  residence 
whose  personal  data  and  personal  information  has  been  processed  and  used  in  a 
manner  inconsistent  with  this  Agreement  may  seek  effective  administrative  and 
judicial redress in accordance with U.S. law.  

Any  individual  is  entitled  to  seek  to  administratively  challenge  DHS  decisions 
related to the use and processing of PNR. 

Under the provisions of the Administrative Procedure Act and other applicable law, 
any individual is entitled to petition for judicial review in U.S. federal court of any 
final agency action by DHS. Further, any individual is entitled to petition for judicial 
review in accordance with applicable law and relevant provisions of:  

(a) 

the Freedom of Information Act;  

(b) 

the Computer Fraud and Abuse Act;  

(c) 

the Electronic Communications Privacy Act; and  

(d)  other applicable provisions of U.S. law. 

4. 

In  particular,  DHS  provides  all  individuals  an  administrative  means  (currently  the 
DHS  Traveler  Redress  Inquiry  Program  (DHS  TRIP))  to  resolve  travel-related 

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14 

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inquiries  including  those  related  to  the  use  of  PNR.  DHS  TRIP  provides  a  redress 
process  for  individuals  who  believe  they  have  been  delayed  or  prohibited  from 
boarding  a  commercial  aircraft  because  they  were  wrongly  identified  as  a  threat. 
Pursuant  to  the  Administrative  Procedure  Act  and  Title  49,  United  States  Code, 
Section  46110,  any  such  aggrieved  individual  is  entitled  to  petition  for  judicial 
review  in  U.S.  federal  court  from  any  final  agency  action  by  DHS  relating  to  such 
concerns.  

Article 14 

Oversight 

1. 

Compliance  with  the  privacy  safeguards  in  this  Agreement  shall  be  subject  to 
independent review and oversight by Department Privacy Officers, such as the DHS 
Chief Privacy Officer, who: 

(a)  have a proven record of autonomy;  

(b) 

exercise effective powers of oversight, investigation, intervention, and review; 
and  

(c)  have  the  power  to  refer  violations  of  law  related  to  this  Agreement  for 

prosecution or disciplinary action, when appropriate.  

They shall, in particular, ensure that complaints relating to non-compliance with this 
Agreement  are  received,  investigated,  responded  to,  and  appropriately  redressed. 
These  complaints  may  be  brought  by  any  individual,  regardless  of  nationality, 
country of origin, or place of residence.  

2. 

In  addition,  application  of  this  Agreement  by  the  United  States  shall  be  subject  to 
independent review and oversight by one or more of the following entities:  

(a) 

the DHS Office of Inspector General;  

(b) 

the Government Accountability Office as established by Congress; and  

(c) 

the U.S. Congress.  

Such  oversight  may  be  manifested  in  the  findings  and  recommendations  of  public 
reports, public hearings, and analyses.  

CHAPTER III 

MODALITIES OF TRANSFERS 

Article 15  

Method of PNR Transmission 

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1. 

2. 

3. 

4. 

5. 

For  the  purposes  of  this  Agreement,  carriers  shall  be  required  to  transfer  PNR  to 
DHS  using  the  “push”  method,  in  furtherance  of  the  need  for  accuracy,  timeliness 
and completeness of PNR. 

Carriers  shall  be  required  to  transfer  PNR  to  DHS  by  secure  electronic  means  in 
compliance with the technical requirements of DHS. 

Carriers shall be required to transfer PNR to DHS in accordance with paragraphs 1 
and 2 of this Article, initially at 96 hours before the scheduled flight departure and 
additionally  either  in  real  time  or  for  a  fixed  number  of  routine  and  scheduled 
transfers as specified by DHS. 

In  any  case,  the  Parties  agree  that  all  carriers  shall  be  required  to  acquire  the 
technical ability to use the “push” method not later than 24 months following entry 
into force of this Agreement. 

DHS  may,  where  necessary,  on  a  case-by-case  basis,  require  a  carrier  to  provide 
PNR  between  or  after  the  regular  transfers  described  in  paragraph  3.  Wherever 
carriers  are  unable,  for  technical  reasons,  to  respond  timely  to  requests  under  this 
Article in accordance with DHS standards, or, in exceptional circumstances in order 
to  respond  to  a  specific,  urgent,  and  serious  threat,  DHS  may  require  carriers  to 
otherwise provide access. 

Article 16 

Domestic Sharing 

1. 

DHS  may  share  PNR  only  pursuant  to  a  careful  assessment  of  the  following 
safeguards: 

(a)  Exclusively as consistent with Article 4; 

(b)  Only  with  domestic government authorities when  acting  in  furtherance  of the 

uses outlined in Article 4; 

(c)  Receiving authorities shall afford to PNR equivalent or comparable safeguards 

as set out in this Agreement; and 

(d)  PNR  shall  be  shared  only  in  support  of  those  cases  under  examination  or 
investigation  and  pursuant  to  written  understandings  and  U.S.  law  on  the 
exchange of information between domestic government authorities.  

2. 

When transferring analytical information obtained from PNR under this Agreement, 
the safeguards set forth in paragraph 1 of this Article shall be respected. 

Article 17 

Onward Transfer 

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1. 

2. 

3. 

4. 

5. 

1. 

2. 

The  United  States  may  transfer  PNR  to  competent  government  authorities  of  third 
countries  only  under  terms  consistent  with  this  Agreement  and  only  upon 
ascertaining that the recipient’s intended use is consistent with these terms.  

Apart from emergency circumstances, any such transfer of data shall occur pursuant 
to  express  understandings  that  incorporate  data  privacy  protections  comparable  to 
those applied to PNR by DHS as set out in this Agreement. 

PNR  shall  be  shared  only  in  support  of  those  cases  under  examination  or 
investigation.  

Where DHS is aware that PNR of a citizen or a resident of an EU Member State is 
transferred,  the  competent  authorities  of  the  concerned  Member  State  shall  be 
informed of the matter at the earliest appropriate opportunity. 

When transferring analytical information obtained from PNR under this Agreement, 
the safeguards set forth in paragraphs 1-4 of this Article shall be respected. 

Article 18  

Police, Law Enforcement and Judicial Cooperation 

Consistent with existing law enforcement or other information-sharing agreements or 
arrangements between the United States and any Member State of the EU or Europol 
and  Eurojust,  DHS  shall  provide  to  competent  police,  other  specialized  law 
enforcement  or  judicial  authorities  of  the  Member  States  and  Europol  and  Eurojust 
within  the  remit  of  their  respective  mandates,  as  soon  as  practicable,  relevant,  and 
appropriate,  analytical  information  obtained  from  PNR  in  those  cases  under 
examination  or  investigation  to  prevent,  detect,  investigate,  or  prosecute  within  the 
European  Union  transnational  crime  as  described  in  Article  4,  paragraph  1(b)  or 
conduct or activities related to terrorist offenses. 

A police or judicial authority of a Member State of the EU, or Europol or Eurojust, 
may  request,  within  its  mandate,  access  to  PNR  or  relevant  analytical  information 
obtained  from  PNR  that  are  necessary  in  a  specific  case  to  prevent,  detect, 
investigate,  or  prosecute  within  the  European  Union  a  terrorist  offense  or 
transnational crime as described in Article 4, paragraph 1(b). DHS shall, subject to 
the agreements and arrangements noted in paragraph 1 of this Article, provide such 
information. 

3. 

Pursuant to paragraphs 1 and 2 of this Article, DHS shall share PNR only following a 
careful assessment of the following safeguards: 

(a) 

 Exclusively as consistent with Article 4; 

(b)  Only when acting in furtherance of the uses outlined in Article 4; and 

(c)  Receiving authorities shall afford to PNR equivalent or comparable safeguards 

as set out in this Agreement. 

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4. 

When transferring analytical information obtained from PNR under this Agreement, 
the safeguards set forth in paragraphs 1-3 of this Article shall be respected. 

CHAPTER IV 

IMPLEMENTING AND FINAL PROVISIONS 

Article 19 

Adequacy 

In consideration of this Agreement and its implementation, DHS shall be deemed to provide, 
within  the  meaning  of  relevant  EU  data  protection  law,  an  adequate  level  of  protection  for 
PNR  processing  and  use.  In  this  respect,  carriers  which  have  provided  PNR  to  DHS  in 
compliance  with  this  Agreement  shall  be  deemed  to  have  complied  with  applicable  legal 
requirements in the EU related to the transfer of such data from the EU to the United States. 

Article 20 

Reciprocity 

1. 

2. 

1. 

2. 

The Parties shall actively promote the cooperation of carriers within their respective 
jurisdictions  with  any  PNR  system  operating  or  as  may  be  adopted  in  the  other’s 
jurisdiction, consistent with this Agreement.  

Given that the establishment of an EU PNR system could have a material effect on 
the  Parties’  obligations  under  this  Agreement,  if  and  when  an  EU  PNR  system  is 
adopted, the Parties shall consult to determine whether the present Agreement would 
need to be adjusted accordingly to ensure full reciprocity. Such consultations shall in 
particular  examine  whether  any  future  EU  PNR  system  would  apply  less  stringent 
data  protection  standards  than  those  provided  for  in  the  present  Agreement,  and 
whether, therefore, it should be amended.  

Article 21 

Implementation and Non-Derogation 

This  Agreement  shall  not  create  or  confer,  under  U.S.  law,  any  right  or  benefit  on 
any person or entity, private or public. Each Party shall ensure that the provisions of 
this Agreement are properly implemented. 

Nothing  in  this  Agreement  shall  derogate  from  existing  obligations  of  the  United 
States  and  Member  States,  including  under  the  Agreement  on  Mutual  Legal 
Assistance between the European Union and the United States of 25 June 2003 and 
the  related  bilateral  mutual  legal  assistance  instruments  between  the  United  States 
and Member States. 

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Article 22 

Notification of Changes in Domestic Law 

The Parties shall advise each other regarding the enactment of any legislation that materially 
affects the implementation of this Agreement. 

Article 23 

Review and Evaluation 

1. 

2. 

3. 

1. 

2. 

3. 

The Parties shall jointly review the implementation of this Agreement one year after 
its entry into force and regularly thereafter as jointly agreed. Further, the Parties shall 
jointly evaluate this Agreement four years after its entry into force. 

The Parties shall jointly determine in advance the modalities and terms of the joint 
review  and  shall  communicate  to  each  other  the  composition  of  their  respective 
teams. For the purpose of the joint review, the European Union shall be represented 
by  the  European  Commission,  and  the  United  States  shall  be  represented  by  DHS. 
The teams may include appropriate experts on data protection and law enforcement. 
Subject to applicable laws, participants in the joint review shall be required to have 
appropriate security clearances and to respect the confidentiality of the discussions. 
For the purpose of the joint review, DHS shall ensure appropriate access to relevant 
documentation, systems, and personnel. 

Following  the  joint  review,  the  European  Commission  shall  present  a  report  to  the 
European Parliament and the Council of the European Union. The United States shall be 
given an opportunity to provide written comments which shall be attached to the report.  

Article 24 

Resolution of Disputes and Suspension of Agreement 

Any  dispute  arising  from  the  implementation  of  this  Agreement,  and  any  matters 
related  thereto,  shall  give  rise  to  consultations  between  the  Parties,  with  a  view  to 
reaching  a  mutually  agreeable  resolution,  including  providing  an  opportunity  for 
either Party to cure within a reasonable time. 

In the event that consultations do not result in a resolution of the dispute, either Party 
may  suspend  the  application  of  this  Agreement  by  written  notification  through 
diplomatic channels, with any such suspension to take effect 90 days from the date of 
such notification, unless the Parties otherwise agree to a different effective date.  

Notwithstanding  any  suspension  of  this  Agreement,  all  PNR  obtained  by  DHS 
pursuant to this Agreement prior to its suspension shall continue to be processed and 
used in accordance with the safeguards of this Agreement.  

EN 

Article 25 

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Termination  

Either  Party  may  terminate  this  Agreement  at  any  time  by  written  notification 
through diplomatic channels.  

Termination shall take effect 120 days from the date of such notification, unless the 
Parties otherwise agree to a different effective date.  

Prior to any termination of this Agreement, the Parties shall consult each other in a 
manner which allows sufficient time for reaching a mutually agreeable resolution. 

Notwithstanding  any  termination  of  this  Agreement,  all  PNR  obtained  by  DHS 
pursuant to this Agreement prior to its termination shall continue to be processed and 
used in accordance with the safeguards of this Agreement.  

Article 26 

Duration  

Subject  to  Article  25,  this  Agreement  shall  remain  in  force  for  a  period  of  seven 
years from the date of its entry into force. 

Upon the expiry of the period set forth in paragraph 1 of this Article, as well as any 
subsequent period of renewal under this paragraph, the Agreement shall be renewed 
for a subsequent period of seven years unless one of the Parties notifies the other in 
writing  through  diplomatic  channels,  at  least  twelve  months  in  advance,  of  its 
intention not to renew the Agreement. 

Notwithstanding the expiration of this Agreement, all PNR obtained by DHS under 
the terms  of this  Agreement shall  continue to be processed and used in accordance 
with  the  safeguards  of  this  Agreement.  Similarly,  all  PNR  obtained  by  DHS  under 
the terms of the Agreement Between the United States of America and the European 
Union on the Processing and Transfer of Passenger Name Record (PNR) Data by Air 
Carriers  to  the  United  States  Department  of  Homeland  Security  (DHS),  signed  at 
Brussels and Washington  July 23  and  26, 2007,  shall continue to be processed and 
used in accordance with the safeguards of that Agreement. 

Article 27 

Final provisions 

This Agreement shall enter into force on the first day of the month after the date on 
which the Parties have exchanged notifications indicating that they have completed 
their internal procedures for this purpose. 

This Agreement, as of the date of its entry into force, shall supersede the July 23 and 
26, 2007 Agreement. 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

1. 

2. 

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3. 

4. 

5. 

This Agreement will only apply to the territory of Denmark, the United Kingdom or 
Ireland,  if  the  European  Commission  notifies  the  United  States  in  writing  that 
Denmark, the United Kingdom or Ireland has chosen to be bound by this Agreement. 

If the European Commission notifies the United States before the entry into force of 
this Agreement that it will apply to the territory of Denmark, the United Kingdom or 
Ireland, this Agreement shall apply to the territory of such State on the same day as 
for the other EU Member States bound by this Agreement. 

If the European Commission notifies the United States after entry into force of this 
Agreement  that  it  applies  to  the  territory  of  Denmark,  the  United  Kingdom  or 
Ireland,  this  Agreement  shall  apply  to  the  territory  of  such  State  on  the  first  day 
following receipt of the notification by the United States. 

Done at…this…day of…2011, in two originals.  

Pursuant  to  EU  law,  this  Agreement  shall  also  be  drawn  up  by  the  EU  in  the  Bulgarian, 
Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, 
Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish 
languages.  

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ANNEX 

PNR Data Types 

PNR record locator code 

Date of reservation/issue of ticket 

Date(s) of intended travel 

Name(s) 

Available frequent flier and benefit information (i.e., free tickets, upgrades, etc.) 

Other names on PNR, including number of travelers on PNR 

All available contact information (including originator information) 

All  available  payment/billing  information  (not  including  other  transaction  details 
linked to a credit card or account and not connected to the travel transaction) 

Travel itinerary for specific PNR 

Travel agency/travel agent 

Code share information 

Split/divided information 

Travel status of passenger (including confirmations and check-in status) 

Ticketing  information,  including  ticket  number,  one  way  tickets  and  Automated 
Ticket Fare Quote 

All baggage information 

Seat information, including seat number 

General remarks including OSI, SSI and SSR information 

Any collected Advance Passenger Information System (APIS) information 

All historical changes to the PNR listed in numbers 1 to 18 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

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ANNEX II 

Declaration by the EU on the Agreement on the use and transfer of Passenger Name 
Records to the United States Department of Homeland Security (“the Agreement”), in 
respect of its obligations under Articles 17 and 23 of the Agreement. 

1.  In the  context  of the  joint review and evaluation mechanism set out  in Article 23 of the 
Agreement,  and  without  prejudice  to  other  matters  that  may  be  raised  through  this 
mechanism,  the  European  Union  will  seek  information  from  the  US  on  the  exchange  of 
information  where  appropriate,  regarding  the  transfers  of  European  Union  citizens'  and 
residents' PNR data to the authorities of third countries as laid down in Article 17 of the 
Agreement; 

2.  In  the  context  of  the  consultation  and  review  mechanism  set  out  in  Article 23  of  the 
Agreement,  the  EU  will  request  from  the  US  all  appropriate  information  on  the 
implementation  of  the  conditions  governing  those  transfers  in  accordance  with  the 
provisions of Article 17; 

3.  The EU, in the context of the consultation and review mechanism set out in Article 23 of 
the  Agreement,  will  pay  particular  attention  to  the  respect  of  all  the  safeguards  for  the 
implementation of the provisions of Article 17(2), so as to be satisfied that third countries 
receiving such data have agreed to afford to the data the privacy protections comparable to 
those provided to PNR by DHS under the Agreement. 

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