Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Partnership Council established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the interim period referred to in Article 552(11) of that Agreement during which the United Kingdom may derogate from the obligation to delete Passenger Name Record data of passengers after their departure from the United Kingdom
Date: 2021-11-26
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EAEC, United Kingdom, agreement (EU), air transport, data collection, data protection, data transmission, personal data, protection of privacy, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 26.11.2021  COM(2021) 745 final 2021/0389 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Partnership Council established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the interim period referred to in Article 552(11) of that Agreement during which the United Kingdom may derogate from the obligation to delete Passenger Name Record data of passengers after their departure from the United Kingdom  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  behalf  of  the 
European Union in the  Partnership Council in  connection with Article 552(13) of the Trade 
and Cooperation Agreement between the European Union and the European Atomic Energy 
Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland 
(hereafter:  “United  Kingdom”),  of  the  other  part  (hereafter:  “the  Trade  and  Cooperation 
Agreement”. 

The  Trade  and  Cooperation  Agreement  makes  it  possible  for  Passenger  Name  Record 
(“PNR”) data relating to passengers on flights between the Union and United Kingdom to be 
transferred  to,  processed  and  used  by  the  United  Kingdom.  The  Trade  and  Cooperation 
Agreement requires the  United Kingdom to delete PNR data received pursuant to the Trade 
and  Cooperation  Agreement  after  passengers’  departure  from  the  country,  unless  a  risk 
assessment indicates the need to retain such PNR data.  

However, the Trade and Cooperation Agreement provides for a derogation to that requirement 
on  a  temporary  basis,  for  an  interim  period  of  one  year,  i.e.  until  31  December  2021, 
recognising the special circumstances that the United Kingdom has to make certain technical 
adjustments in order to transform the PNR processing systems which it operated whilst Union 
law  applied  to  it  and  which,  when  carried  out,  would  enable  PNR  data  to  be  deleted  in 
accordance with the Trade and Cooperation Agreement.  

The  derogation  is  coupled  with  a  process  whereby  the  United  Kingdom  provides  to  the 
Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation  established  by  the 
Trade  and  Cooperation  Agreement  a  report  from  an  independent  administrative  body, 
including  an  annex  by  the  United  Kingdom  supervisory  authority  for  data  protection,  as  to 
whether  the  additional  data  protection  safeguards  that  apply  during  the  interim  period  have 
been  applied  effectively  and  an  assessment  of  whether  these  special  circumstances  persist, 
together with  a description of the efforts made to transform  the PNR processing systems  of 
the  United  Kingdom  into  systems  which  would  enable  PNR  data  to  be  deleted  after  the 
passengers’  departure.  The  Specialised  Committee  on  Law  Enforcement  and  Judicial 
Cooperation  considered  this  report  and  assessment  provided  by  the  United  Kingdom  in  its 
meeting on 19 October 2021. Pursuant to Article 552(13), second sentence, of the Trade and 
Cooperation  Agreement,  where  the  above-mentioned  special  circumstances  persist,  the 
Partnership Council shall extend the interim period for one year, i.e. until 31 December 2022.   

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Trade  and  Cooperation  Agreement  between  the  Union  and  the  United 
Kingdom  

The Trade and Cooperation Agreement establishes the basis for a broad relationship between 
the Union and the United Kingdom,  within an area of prosperity  and  good neighbourliness, 
characterised by close and peaceful relations based on cooperation, respectful of the Parties’ 
autonomy  and  sovereignty.  The  Trade  and  Cooperation  Agreement  entered  into  force  on  1 
May 2021 and was provisionally applied since 1 January 2021.   

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2.2. 

The Partnership Council    

The  Trade  and  Cooperation  Agreement  sets  up  a  number  of  joint  bodies,  including  the 
Partnership Council, which is a “body set up by an agreement” in the sense of Article 218(9) 
of the Treaty on the Functioning of the European Union (TFEU).  

2.3. 

The envisaged act of the Partnership Council 

Article  552(4)  of  the  Trade  and  Cooperation  Agreement  provides  that  the  United  Kingdom 
shall delete the PNR data of passengers after their departure from  the country, unless a risk 
assessment indicates the need to retain such PNR data. This duty follows from the 2017 EU 
case law on the international transfer of PNR data from the Union to third countries.1 

Article 552(11) of the Trade and Cooperation Agreement provides that the United Kingdom 
may  derogate  from  paragraph  4  of  that  article  on  a  temporary  basis  for  an  interim  period, 
pending  the  implementation  by  the  United  Kingdom  of  technical  adjustments  to  their  PNR 
processing  systems  as  soon  as  possible.  During  the  interim  period,  the  United  Kingdom 
competent  authority  is  obliged  to  prevent  the  use  of  the  PNR  data  that  is  to  be  deleted  by 
applying a number specific additional safeguards to that PNR data. 

Article 552(10) of the Trade and Cooperation Agreement provides that paragraph 11 of that 
article applies due to the special circumstances that prevent the United Kingdom from making 
the  technical  adjustments  necessary  to  transform  the  PNR  processing  systems  which  the 
United  Kingdom  operated  whilst  Union  law  applied  to  it  into  systems  which  would  enable 
PNR data to be deleted in accordance with paragraph 4 of that article. 

Article 552(12) of the Trade and Cooperation Agreement provides that the United Kingdom 
shall  provide  to  the  Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation, 
nine  months  after  the  entry  into  force  of  that  agreement,  a  report  from  the  independent 
administrative  body  referred  to  in  paragraph  7  of  that  article,  including  an  opinion  by  the 
United  Kingdom  supervisory  authority  referred  to  in  Article  525(3)  of  the  Trade  and 
Cooperation  Agreement,  as  to  whether  the  additional  data  protection  safeguards  have  been 
effectively  applied  and  an  assessment  of  the  United  Kingdom  of  whether  the  special 
circumstances referred to in Article 552(10) of the Trade and Cooperation Agreement persist, 
together with  a description of the efforts made to transform  the PNR processing systems  of 
the United Kingdom into systems which would enable PNR data to be deleted in accordance 
with paragraph 4 of that article. 

Article  552(13),  second  sentence  of  the  Trade  and  Cooperation  Agreement  provides  that 
where  the  special  circumstances  referred  to  in  paragraph  10  of  that  article  persist,  the 
Partnership Council shall extend the interim period referred to in paragraph 11 of that article 
for one year. 

The decision of the Partnership Council to extend the interim period may take any form. The 
decisions  of  the  co-chairs  of  the  Partnership  Council  shall  be  taken  by  mutual  consent  (see 
Article  1(2)  of  Annex  1  of  the  Trade  and  Cooperation  Agreement).  The  decision  should  be 
taken before the end of the interim period, i.e. before 1 January 2022.  

1 

Opinion 1/15 of the Court of Justice, 26 July 2017. 

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3. 

POSITION TO BE TAKEN ON THE UNION’S BEHALF 

3.1. 

Background 

On  1  October  2021,  the  United  Kingdom  submitted  to  the  Specialised  Committee  on  Law 
Enforcement  and  Judicial  Cooperation  an  assessment  pursuant  to  Article  552(12)(b)  of  the 
Trade and Cooperation Agreement. 

The assessment by the United Kingdom concludes that the special circumstances in respect of 
the  United  Kingdom’s  PNR  data  processing  systems  persist.  The  United  Kingdom  is  in  the 
specific situation that it has to adapt a PNR data processing system configured for compliance 
with Union law applying to Member States into a system configured to meet the requirements 
of  the  Trade  and  Cooperation  Agreement  and  that  there  was  not  sufficient  time  before  the 
entry into force of the Trade and Cooperation Agreement to make the necessary adaptations to 
a  complex  PNR  data  procession  system.  The  requirements  of  the  Trade  and  Cooperation 
Agreement reflect  the 2017  case law  by the Court of Justice  on the international  transfer of 
PNR data from the Union to third countries (Opinion 1/15).  

The United Kingdom’s current PNR processing system was developed in 2004 and adapted in 
2016  to  be  in  conformity  with  Directive  (EU)  2016/681  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.2 As such, the operation of the United Kingdom’s PNR 
processing system was designed, like those of other Member States, to retain all PNR data for 
a period of five  years in order to  respond to  duly  reasoned requests in  specific cases at  any 
time during those five years. It was not designed to delete PNR data of passengers after their 
departure from the United Kingdom, as the Trade and Cooperation Agreement requires. 

Moreover,  the  United  Kingdom’s  current  risk  assessment  process  has  been  designed,  like 
those  of  other  Member  States,  to  identify  individuals  whose  data  corresponds  to  objective 
targeting  rules  or  other  pre-determined  criteria  for  the  purpose  of  conducting  security  and 
border  control  checks.    It  was  not  designed  to  determine  whether  there  is  a  need  to  retain 
specific PNR data after a passenger’s departure from the United Kingdom. 

In its assessment, submitted on 1 October  2021 pursuant to Article 552(12)(b) of the Trade 
and  Cooperation  Agreement,  the  United  Kingdom  described  that  it  was  carrying  out  an 
analysis  of  the  legal,  technical  and  operational  requirements,  both  functional  and  non-
functional, with a view to ensuring that the United Kingdom’s PNR data processing systems 
will be compliant with Article 552(4) of the  Trade and Cooperation Agreement. The United 
Kingdom concluded that this was a highly complex operation.   

The  United  Kingdom’s  assessment  indicates  that  the  current  systems  used  by  the  United 
Kingdom  to  process  PNR  data  are  scheduled  to  be  decommissioned  by  2024.  The  United 
Kingdom explains that the necessary technical adjustments to  its systems as required by the 
Trade and Cooperation  Agreement are being made by adjusting  and adding to  the technical 
requirements of the new systems in development, rather than by further adapting the current 
core system which is being decommissioned. 

The United Kingdom’s assessment describes the progress of the United Kingdom’s technical 
adjustments project to define functional and non-functional requirements, and to design, build 
and implement technical capability to operate in compliance with Article 552(4) of the Trade 
and  Cooperation  Agreement  and  to  delete  the  PNR  data  of  passengers  after  their  departure 
from the country, unless a risk assessment indicates the need to retain such PNR data. 

2 

OJ 2016 L 119, p. 132. 

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In addition to that assessment, the United Kingdom submitted to the Specialised Committee 
on Law Enforcement and Judicial Cooperation on 1 October 2021 a report pursuant to Article 
552(12)(a)  of  the  Trade  and  Cooperation  Agreement  from  the  independent  administrative 
body referred to in Article 552(7) of the Trade and Cooperation Agreement, as to whether the 
additional  data  protection  safeguards  provided  for  in  Article  552(11)  of  the  Trade  and 
Cooperation Agreement  have been applied effectively. This  report includes an annex by the 
United  Kingdom  supervisory  authority  referred  to  in  Article  525(3)  of  the  Trade  and 
Cooperation Agreement.  

The  Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation  considered  the 
United Kingdom’s reports on 19 October 2021. At that occasion, the United Kingdom stated 
that  it  intends  to  complement  the  annex  to  the  report  pursuant  to  Article  552(12)(a)  of  the 
Trade and Cooperation Agreement and it was agreed this would be done in November 2021 
before  the  Partnership  Council  takes  a  decision  on  the  extension  of  the  interim  period 
pursuant to Article 552(13) of the Trade and Cooperation Agreement. 

3.2. 

Proposed position 

In view of the above, the Commission considers that the Partnership Council should decide to 
extend the interim period for one year to 31 December 2022. The Partnership Council should 
take such a decision by 31 December 2021.   

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the TFEU provides for decisions establishing ‘the positions to be adopted on 
the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt 
acts  having  legal  effects,  with  the  exception  of  acts  supplementing  or  amending  the 
institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’3. 

4.1.2.  Application to the present case 

The Partnership Council is a body set up by an agreement, namely the Trade and Cooperation 
Agreement.  

Article  552(13)  of  the  Trade  and  Cooperation  Agreement  provides  that  where  the  special 
circumstances referred to in paragraph 10 of that article persist, the Partnership Council shall 
extend the interim period referred to in paragraph 11  of that article for one  year. Therefore, 
the adoption of a Union position in respect of such decision falls within the scope of Article 
218(9) TFEU.   

3 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v.  Council,  C-399/12, 

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The legal  effects  of the extension fall completely  on the Union, as a party to  the  Trade and 
Cooperation Agreement. This entails that, in accordance with Article 3(2) TFEU, the Union 
has exclusive competence in this matter. 

The  decision  on  an  extension  of  the  period  referred  to  in  Article  552(13)  of  the  Trade  and 
Cooperation  Agreement  does  not  entail  that  the  framework  of  the  Trade  and  Cooperation 
Agreement be supplemented or amended.  

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union’s behalf. If the envisaged act pursues two aims or has two components and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

With regard to an envisaged act that simultaneously pursues a number of objectives, or that 
has  several  components,  which  are  inseparably  linked  without  one  being  incidental  to  the 
other,  the  substantive  legal  basis  of  a  decision  under  Article  218(9)  TFEU  will  have  to 
include, exceptionally, the various corresponding legal bases. 

4.2.2.  Application to the present case 

The  extension  of  the  period  referred  to  in  Article  552(13)  of  the  Trade  and  Cooperation 
Agreement pursues  objectives  and has components  in  the area of data protection and  police 
cooperation.  

Therefore,  the  substantive  legal  basis  of  the  proposed  decision  is  Article  16(2)  and  Article 
87(2)(a) TFEU.  

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Articles  16(2)  and  87(2)(a)  TFEU,  in 
conjunction with Article 218(9) TFEU. 

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2021/0389 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Partnership Council 
established by the Trade and Cooperation Agreement between the European Union and 
the European Atomic Energy Community, of the one part, and the United Kingdom of 
Great Britain and Northern Ireland, of the other part, regarding the extension of the 
interim period referred to in Article 552(11) of that Agreement during which the United 
Kingdom may derogate from the obligation to delete Passenger Name Record data of 
passengers after their departure from the United Kingdom 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 16(2) and Article 87(2)(a), in conjunction with Article 218(9) thereof, 

Having regard to Council Decision (EU) 2021/689 of 29 April 2021 on the conclusion, on behalf 
of  the  Union,  of  the  Trade  and  Cooperation  Agreement  between  the  European  Union  and  the 
European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain 
and Northern Ireland, of the other part, and of the Agreement between the European Union and 
the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  concerning  security  procedures  for 
exchanging and protecting classified information, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Trade  and  Cooperation  Agreement  between  the  European  Union  and  the 
European  Atomic  Energy  Community,  of  the  one  part,  and  the  United  Kingdom  of 
Great  Britain  and  Northern  Ireland  (hereafter:  ‘United  Kingdom’),  of  the  other  part 
(hereafter:  ‘the  Trade  and  Cooperation  Agreement’)4  lays  down  rules  under  which 
passenger  name  record  (hereafter:  ‘PNR’)  data  may  be  transferred  to,  processed  and 
used  by  the  United  Kingdom  competent  authority  for  flights  between  the  Union  and 
the United Kingdom, and establishes specific safeguards in that regard. 

Article  542  of  the  Trade  and  Cooperation  Agreement  sets  out  that  Title  III  of  Part 
Three  (LAW  ENFORCEMENT  AND  JUDICIAL  COOPERATION  IN  CRIMINAL 
MATTERS)  of  the  Trade  and  Cooperation  Agreement  lays  down  rules  under  which 
PNR  data  may  be  transferred  to,  processed  and  used  by  the  United  Kingdom 
competent  authority  for  flights  between  the  Union  and  the  United  Kingdom,  and 
establishes specific safeguards in that regard 

Article  552(4)  of  the  Trade  and  Cooperation  Agreement  provides  that  the  United 
Kingdom  shall  delete  the  PNR  data  of  passengers  after  their  departure  from  the 
country unless a risk assessment indicates the need to retain such PNR data. 

Article  552(11)  of  the  Trade  and  Cooperation  Agreement  provides  that  the  United 
Kingdom  may  derogate  from  paragraph 4 of that  article on  a temporary  basis for an 

4 

OJ L 149, 30.4.2021, p. 10–. 

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(5) 

(6) 

(7) 

(8) 

interim  period,  pending  the  implementation  by  the  United  Kingdom  of  technical 
adjustments  as  soon  as  possible.  During  this  interim  period,  the  United  Kingdom 
competent  authority  shall  prevent  the  use  of  the  PNR  data  that  is  to  be  deleted  in 
accordance with Article 552(4) of the Trade and Cooperation Agreement by applying 
the additional safeguards to that PNR data listed in Article 552(11), points (a)-(d) of 
the Trade and Cooperation Agreement. 

Article 552(10) of the Trade and Cooperation Agreement provides that Article 552(11) 
of the Trade and Cooperation Agreement applies due to the special circumstances that 
prevent  the  United  Kingdom  from  making  the  technical  adjustments  necessary  to 
transform  the  PNR  processing  systems  which  the  United  Kingdom  operated  whilst 
Union  law  applied  to  it into  systems  which  would  enable  PNR  data  to  be  deleted  in 
accordance with Article 552(4) of the Trade and Cooperation Agreement. 

Article  552(13)  of  the  Trade  and  Cooperation  Agreement  provides  that  where  the 
special  circumstances  referred  to  in  Article  552(10)  of  the  Trade  and  Cooperation 
Agreement persist, the Partnership Council shall extend the interim period referred to 
in Article 552(11) of the Trade and Cooperation Agreement for one year. 

On 1 October 2021, the United Kingdom submitted to the Specialised Committee on 
Law Enforcement and Judicial Cooperation established by the Trade and Cooperation 
Agreement  an  assessment  pursuant  to  Article  552(12)(b)  Trade  and  Cooperation 
Agreement. 

The  United  Kingdom  concludes  that  the  special  circumstances  referred  to  in  Article 
552(10)  of  the  Trade  and  Cooperation  Agreement  persist,  referring  to  the  specific 
situation  faced  by  the  United  Kingdom  in  having  to  adapt  PNR  data  processing 
systems configured for compliance with Union law as a Member State into a system 
configured  to  meet  the  requirements  of  the  Trade  and  Cooperation  Agreement  on 
international  transfers  of  PNR  data  from  the  Union  to  third  countries.  The  United 
Kingdom  describes  its  efforts  to  transform  its  PNR  processing  systems  into  systems 
which would enable PNR data to be deleted in accordance with Article 552(4) of the 
Trade  and  Cooperation  Agreement.  The  United  Kingdom  noted  that  it  was  carrying 
out  an  analysis  of  the  legal,  technical  and  operational  requirements,  both  functional 
and  non-functional,  with  a  view  to  ensuring  that  the  United  Kingdom’s  PNR  data 
processing  systems  will  be  compliant  with  Article  552(4)  of  the  Trade  and 
Cooperation  Agreement.  Pursuant  to  Article  552(13)  of  the  Trade  and  Cooperation 
Agreement, the Specialised Committee on Law Enforcement and Judicial Cooperation 
considered the United Kingdom’s assessment on 19 October 2021. 

(9) 

On 1 October 2021, the United Kingdom also submitted to the Specialised Committee 
on Law Enforcement and Judicial Cooperation a report pursuant to Article 552(12)(a) 
of  the  Trade  and  Cooperation  Agreement  from  the  independent  administrative  body 
referred  to  in  Article  552(7)  of  the  Trade  and  Cooperation  Agreement,  including  an 
annex  by  the  United  Kingdom  supervisory  authority  referred  to  in  Article  525(3)  of 
that  agreement,  as  to  whether  the  safeguards  provided  for  in  Article  552(11)  of  that 
agreement have been applied effectively.  

(10)  Pursuant to Article 552(13) of the Trade and Cooperation Agreement, the Specialised 
Committee  on  Law  Enforcement  and  Judicial  Cooperation  considered  the  United 
Kingdom’s report on 19 October 2021. At that  occasion, the United Kingdom  stated 
that it intended to complement the annex to that report and that this would be done in 
November  2021  before  the  Partnership  Council  takes  a  decision  on  the  extension  of 

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the  interim  period  pursuant  to  Article  552(13)  of  the  Trade  and  Cooperation 
Agreement. 

(11) 

It is therefore considered that the special circumstances referred to in Article 552(10) 
of the Trade and Cooperation Agreement persist, and that, pursuant to Article 552(13) 
of the Trade  and Cooperation Agreement,  the Partnership  Council should extend the 
interim period referred to in Article 552(11) of the Trade and Cooperation Agreement 
by one year, until 31 December 2022. 

(12)  The Trade and Cooperation Agreement is binding on all the Member States by virtue 
of  Decision  (EU)  2021/689,  which  is  based  on  Article  217  TFEU  as  its  substantive 
legal basis.  

(13)  Denmark and Ireland are bound by Part III of the Trade and Cooperation Agreement 
by virtue of Decision (EU) 2021/689 and are therefore taking part in the adoption and 
application of this Decision which implements the Trade and Cooperation Agreement, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union’s behalf in the Partnership Council pursuant to Article 
552(13) of the Trade and Cooperation Agreement shall be to agree to an extension, until 31 
December 2022, of the interim period during which the United Kingdom may derogate from 
the obligation to delete Passenger Name Record data of passengers after their departure from 
the United Kingdom. 

This Decision is addressed to the Commission. 

Article 2  

Done at Brussels, 

For the Council 
The President 

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