REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the joint evaluation 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: 2021-01-12
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: United States, agreement (EU), air transport, cross-frontier data flow, data collection, data protection, exchange of information, personal data, terrorism, traveller

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   EUROPEAN COMMISSION  Brussels, 12.1.2021  COM(2021) 18 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the joint evaluation 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         {SWD(2021) 4 final}  
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 

THE COUNCIL 

On the joint evaluation 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  

Introduction  

The Agreement between the United States of America (U.S.) and the European Union (EU) 

on the use and transfer of passenger name record (PNR) data to the Department of Homeland 
Security (DHS) entered into force on 1 July 20121. The Agreement under Article 23(1) states 

that the Parties shall jointly evaluate this Agreement four years after its entry into force.  

The joint evaluation consists of a more thorough examination of the Agreement, by exploring 

the  wider  functioning  and  operationally  added  value  and  assessing  its  results,  impacts, 

effectiveness, necessity and proportionality. It also offers an opportunity to take stock of any 

impact caused by the evolution of the relevant legal framework and case law of both parties. 

Hence,  the  joint  evaluation  takes  a  wider  approach  than  the  joint  reviews,  whereby  both 

parties assess whether the Agreement is being implemented correctly.  

Preparation process for the joint evaluation and Report 

  The Commission sent a questionnaire to the U.S on 2 August 2019 in advance of the 

joint evaluation. The Department of Homeland Security provided written draft replies 

to  the  questionnaire  prior  to  the  joint  evaluation  and  a  final  consolidated  version 

thereafter.  

  The  EU  team  conducted  the  joint  evaluation  visit  on  5  and  6  September  2019 

followed by a U.S. visit to the Belgian and Dutch Passenger Information Units (PIUs), 

and Europol on 22 and 23 October 2019.  

1     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, OJ L 215, 11.8.2012, p. 5. 

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  The  EU  team  also  had  the  opportunity  and  the  time  to  raise  further  questions  with 

DHS  personnel  responsible  for  the  PNR  programme  and  address  all  the  various 

aspects of the Agreement.  

  The  findings  of  the  EU  team  were  laid  down  in  the  accompanying  Staff  Working 

Document  which  was  shared  with  DHS,  providing  the  U.S.  with  the  opportunity  to 

comment  on  inaccuracies  and  identify  information  which  cannot  be  disclosed  to 

public audiences.  

The  accompanying  Staff  Working  Document  provides  more  detailed  information  and  a 

comprehensive analysis of the methodology of the joint evaluation and all matters covered by 

this report.  

Findings of the Joint Evaluation 

The main findings of the joint evaluation can be summarised as follows:  

The evaluation teams have discussed different ways in which PNR data are used for purposes 

of preventing, detecting, investigating,  and prosecuting terrorist offenses  and related crimes 

and certain other crimes that are transnational in nature. The joint evaluation confirmed that 

PNR data contains elements that are not available through other means, and in particular, the 

information contained within PNR data cannot be found in any other type of data collection.  

The necessity of the collection of PNR data was also demonstrated by its ability to assist the 

relevant  authorities  in  identifying  high  risk  travellers  who  are  not  otherwise  known  to  law 

enforcement agencies. Moreover, the usefulness of retained - so called historical - PNR data 

has been illustrated by numerous examples in which historical PNR data had been crucial in 

solving high-profile counterterrorism cases not only in the U.S but also in the EU.  

In  addition,  the  joint  evaluation  also  takes  note  of  the  growing  interest  in  the  use  of  PNR 

worldwide for anti-terrorism and law enforcement purposes and newly created international 

obligations.  In  this  context,  particular  reference  is  made  to  the  adoption  of  the  EU  PNR 
Directive2  and,  globally,  to  the  new  Standards  and  Recommended  Practices  (or  SARPs)  on 

the collection, use, processing and protection of PNR data by the International Civil Aviation 

2        Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of 

passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist 
offences and serious crime, OJ L 119, 4.5.2016, p. 132. 

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Organisation  (ICAO),  as  mandated  by  United  Nations  Security  Council  Resolution  2396 
(2017)3.   

The joint evaluation also analysed and assessed the safeguards contained in the EU-U.S PNR 

Agreement. These include the application of the validation and review process for the access 

rights for officials and targeting rules, the processing of sensitive data by the U.S authorities, 

as well as the mechanisms to ensure transparency, access, correction and redress. In addition, 

the assessment also  covered the oversight  activities carried out  by the U.S, and the onward 

sharing of PNR data both to U.S entities outside of DHS and to third countries.  

Finally,  the  evaluation  teams  also  discussed  Court’s  Opinion  1/15  on  the  envisaged  EU 
Canada PNR Agreement.4  

Conclusions  

The joint evaluation has clearly demonstrated the added value and operational effectiveness 

of  the  Agreement  in  the  fight  against  terrorism  and  serious  transnational  crime.  Examples 

provided  during  the  evaluation  have  shown  that  PNR,  including  historical  PNR,  being  a 

unique  dataset,  have  been  critical  to  prevent  the  return  of  foreign  terrorist  fighters  and  to 

combat  in  particular  drug  crimes  and  child  exploitation.  In  addition,  the  Agreement’s 

objectives  are  consistent  with  the  international  obligations  to  collect,  process  and  analyse 

PNR  data  for  effective  border  controls  to  prevent  terrorist  travel  as  well  as  to  help  making 

connections between individuals associated to organised crime, and prosecute terrorism and 

organised crime. 

The Commission recognises the efforts made by U.S to comply with the requirements of the 

Agreement from 2012 in both technical and organisational aspects, and recommends DHS to 

continue  its  efforts  to  i)  limit  the  number  of  users  who  have  access  rights  to  PNR  data,  ii) 

comply  with  the  requirements  on  sensitive  data  and  to  put  in  place  mechanisms  aiming  at 

immediately deleting sensitive data if received, iii) review the necessity of keeping PNR in a 

dormant status, iv) improve the systems in place concerning onward case-by-case sharing to 

U.S entities outside of DHS and to other third countries, v) ensure feedback concerning the 

effectiveness  of  targeting  rules  at  a  regional  and  local  level  and  vi)  ensure  that  the 

3       Resolution 2396 (2017) - Adopted by the Security Council at its 8148th meeting, on 21 December 2017. 
4      Opinion 1/15 of the Court (Grand Chamber), ECLI:EU:C:2017:592. 

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requirement, in specific cases, to air carriers to provide access to DHS is regularly assessed 

and overly minimised. 

At the same time, the EU team noted that despite the numerous safeguards contained therein, 

several  aspects  of  the  Agreement  are  not  fully  in  line  with  Opinion  1/15  of  the  Court  of 

Justice on the envisaged PNR Agreement with Canada, as the U.S Agreement was concluded 

before  the  Court  delivered  its  Opinion.  These  concern  the  retention  of  PNR  data,  the 

processing of sensitive data, notification to passengers, prior independent review of the use of 

PNR  data,  rules  for  domestic  sharing  and  onward  transfers,  independency  of  oversight  and 

the  sole  use  of  databases  in  relation  to  the  fight  against  terrorism  and  serious  transnational 

crime for cross-checking of PNR data.  

The Commission takes note of the position expressed and the arguments put forward by the 

U.S.  The  Commission  equally  takes  note  of  the  importance  the  U.S.  places  regarding  the 

necessity to retain historical PNR data. 

Against  this  background,  parties  committed  to  continue  their  constructive  dialogue  on  the 

implementation of the Agreement and to work on the recommendations from the (2015) Joint 

Review and this Evaluation in the light of the Court’s Opinion on the envisaged EU Canada 

PNR Agreement. In this context, the Commission will assess the necessary follow-up action 

also  taking  into  account  the  feedback  received  by  the  European  Parliament  and  Council  on 

this Evaluation.  

Generally,  the  Commission  will  review  the  EU  external  strategy  towards  PNR  transfers  to 

third countries next year. 

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