REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the joint evaluation of Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service
Date: 2021-01-12
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Australia, agreement (EU), air transport, cross-frontier data flow, data collection, data protection, exchange of information, personal data, terrorism, traveller

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  EN 

   EUROPEAN COMMISSION  Brussels, 12.1.2021  COM(2021) 17 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the joint evaluation of Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service     {SWD(2021) 3 final}  
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 

THE COUNCIL 

On the joint evaluation of the Agreement between the European Union and Australia on 

the processing and transfer of Passenger Name Record (PNR) data by air carriers to the 

Australian Customs and Border Protection Service 

Introduction  

The Agreement between the European Union and Australia on the processing and transfer of 

passenger name record (PNR) data by air carriers to the Australian customs service entered 
into force on 1 June 20121. The Agreement, under Article 24(4), states that both parties shall 

evaluate  the  Agreement,  in  particular  its  operational  effectiveness,  no  later  than  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 Department of Home Affairs (herein after 

“the  Department”)  of  Australia  on  28  June  2019  in  advance  of  the  joint  evaluation. 

The Department  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 15 August 2019. 

  At the request of the Department, all members of the EU team signed a copy of a non-

disclosure agreement as a condition for their participation in this review exercise. 

1       Agreement between the European Union and Australia on the processing and transfer of Passenger Name 
Record (PNR) data by air carriers to the Australian Customs and Border Protection Service, OJ L 186, 
14.7.2012, p. 4. 

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  The replies to the questionnaire were discussed in detail with the Department. The EU 

team also had the opportunity and the time to raise further questions with Department 

officials 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  the  Department,  providing  Australia  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 Australia 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.   

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 data, 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.  

At  the  same  time,  the  EU  team  noted  that  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  Australia  Agreement  was 

concluded  before  the  Court  delivered  its  Opinion.  These  concern  the  notifications  to 

passengers, the retention of PNR data, onward transfers and the need for a prior independent 

review of the use of PNR data. 

The Commission recognises the efforts made by Australia to comply with the requirements of 
the  Agreement  as  proven  by  the  joint  review  and  takes  note  of  the  importance  Australia 

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  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 

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. 
5        Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  joint  review  of  the 
implementation  of  the  Agreement  between  the  European  Union  and  Australia  on  the  processing  and 
transfer  of  Passenger  Name  Record  (PNR)  data  by  air  carriers  to  the  Australian  Customs  and  Border 
Protection Service, COM(2020)701final. 

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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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