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: 2022-11-17
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: United Kingdom, air transport, cooperation agreement (EU), data protection, data transmission, information storage, joint body (EU), personal data, trade agreement (EU), traveller

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 17.11.2022  COM(2022) 646 final 2022/0382 (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, initially 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 (i.e. PNR Directive1) applied to it and which, when carried out, would enable PNR data to 
be deleted in accordance with the Trade and Cooperation Agreement. This interim period can 
be  extended  by  consecutive  decisions  of  the  Partnership  Council  for  two  additional  years, 
provided certain conditions are met. During the interim period and pursuant to Article 552(11) 
of  the  Trade  and  Cooperation  Agreement,  the  United  Kingdom  shall  apply  additional 
safeguards to the processing of PNR data, in particular by preventing the use of the PNR data 
that is to be deleted in accordance with Article 552(4) of the Agreement.  

The derogation is coupled with a process whereby the United Kingdom is required to provide 
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 opinion by the United Kingdom supervisory authority for data protection2, as to 
whether  the  additional  data  protection  safeguards  that  apply  during  the  interim  period 
pursuant  to  Article  552(11)  of  the  Trade  and  Cooperation  Agreement  have  been  applied 
effectively  and  an  assessment  of  whether  the  aforementioned  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  from  the  United  Kingdom.  Moreover,  a  second  extention  by  the 
Partnership  Council  requires  that  the  United  Kingdom  has  made  substantial  progress  in 
transforming  its  PNR  processing  systems  to  that  effect,  even  though  it  has  not  yet  been 
possible to finalise that transformation. 

After the provisional application of the Trade and Cooperation Agreement on 1 January 2021 
and its entry into force on 1 May 2021, the first year of the interim period came to an end on 
31  December  20213.  On  the  basis  of  the  first  report  and  the  assessment  submitted  by  the 

1 

2 
3 

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. 132–149.  
The United Kingdom Information Commissioner Office (ICO). 
Pursuant to Article 783(3) of the Trade and Cooperation Agreement, as from the date of its provisional 
application, references in that agreement to “the date of entry into force of this Agreement” or to “the 

EN 

1 

  EN 

                                                 
 
United  Kingdom  on  1  October  2021  and  the  complementary  information  submitted  in 
November 2021, the Partnership Council on 21 December 2021 extended the interim period 
by one year until 31 December 20224. 

In view of obtaining a second and last extention of the interim period, the United Kingdom 
submitted a second report and assessment on 29 September 2022.  

The  Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation  considered  this 
report and assessment provided by the United Kingdom  in  its meeting on 13 October 2022. 
During  the  meeting,  the  Union  asked  a  number  of  questions  for  clarification  to  which  the 
United Kingdom answered and which it agreed to subsequently make available in writing.  

Pursuant to Article 552(13), third sentence, of the Trade and Cooperation Agreement, where 
the  above-mentioned  special  circumstances  persist  and  –  in  addition  –  where  substantial 
progress  has  been  made  by  the  United  Kingdom,  the  Partnership  Council  shall  extend  the 
interim period for a second and final year, i.e. until 31 December 2023.   

The Commission notes that, at the end of this final extension, the temporary derogation due to 
the aforementioned special circumstances ceases to apply and the United Kingdom will need 
to have finalised all technical adjustments necessary to enable its PNR processing systems to 
delete PNR data in accordance with Article 552(4) of the Trade and Cooperation Agreement. 
There is no possibility for any further extension under the Trade and Cooperation Agreement. 

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 had been provisionally applied since 1 January 2021.   

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 
deletes the PNR data of passengers received pursuant to that agreement, as a rule, after their 
departure  from  the  country,  unless  a  risk  assessment  indicates  the  need  to  retain  such  PNR 

4 

entry into force of this Agreement” shall be understood as references to the date from which the Trade 
and  Cooperation  Agreement  is  provisionally  applied,  i.e.  1  January  2021.  Consequently,  the  same 
approach is applied in this proposal. 
Decision  No 2/2021  of  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,  of  21 December  2021  as 
regards the extension 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, OJ L 467, 29.12.2021, p. 6  

EN 

2 

  EN 

                                                                                                                                                         
 
data. This requirement follows from the 2017 opinion of the Court of Justice on the envisaged 
EU-Canada Agreement on the transfer and processing of Passenger Name Record data5. 

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. The duration of the interim period is for a maximum 
of three years after the entry into force of the Trade and Cooperation Agreement. 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  sets  out  that  the  United  Kingdom 
has to provide the Specialised Committee on Law Enforcement and Judicial Cooperation, nine 
months  after  the  entry  into  force  of  that  agreement,  with  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  set  out  in 
Article 552(11) of the Trade and Cooperation Agreement 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. A 
second report and assessment need to be submitted again one year later, if the interim period 
is to be extended for a further and final year.  

During the interim period, the United Kingdom is obliged to apply the additional safeguards 
set  out  in  points  (a)  to  (d)  of  Article  552(11)  of  the  Trade  and  Cooperation  Agreement,  in 
particular to prevent the use of the PNR data that is to be deleted. The effective application of 
these safeguards is to be demonstrated through the report from the independent administrative 
body  and  the  opinion  by  the  United  Kingdom  supervisory  authority  for  data  protection  in 
accordance with with Article 552(12)(a) of the Trade and Cooperation Agreement. 

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. 

A  first  extension  to  the  interim  period  was  granted  by  the  Partnership  Council  on  21 
December 20216. 

The  above  procedure  and  conditions  also  apply  in  view  of  granting  a  second  and  final 
extension of the interim period by one more year. Additionally, pursuant to the third sentence 
of  Article  552(13)  of  the  Trade  and  Cooperation  Agreement,  the  United  Kingdom  has  to 
demonstrate  that  substantial  progress  has  been  made  in  transforming  their  PNR  processing 
systems,  although it has  not  yet  been possible to  transform  them into systems  which enable 

5 
6 

Opinion 1/15 of the Court of Justice, 26 July 2017, published in EU:C:2017:592  
See above footnote 1. 

EN 

3 

  EN 

                                                 
PNR  data  to  be  deleted  in  accordance  with  Article  552(4)  of  the  Trade  and  Cooperation 
Agreement.  

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 second year of the interim period, i.e. before 31 December 2022.  

Before the lapse of the second and final extension of the interim period, i.e. by 31 December 
2023, the United Kingdom will need to have finalised all technical adjustments necessary to 
enable its PNR processing systems to delete PNR data in accordance with Article 552(4) of 
the  Trade  and  Cooperation  Agreement.  The  Commission  expects  the  United  Kingdom  to 
inform the Specialised Committee on Law Enforcement and Judicial Cooperation thereof.  

The  Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation  monitors  and 
reviews the implementation and ensures the proper functioning of Part Three of the Trade and 
Cooperation  Agreement.  It  remains,  therefore,  the  approriate  forum  to  discuss  the  annual 
assessment of the UK independent administrative body on the approach applied by the United 
Kingdom  competent  authority  as  regards  the  need  to  retain  PNR  data  pursuant  to  Article 
552(4) of the Trade and Cooperation Agreement, as set out in  paragraph 7 of that article. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

Background 

On 29 September 2022, 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 and that substantial progress has 
been made in transforming the United Kingdoms PNR processing system into systems which 
would  enable  PNR  data  to  be  deleted  in  accordance  with  Article  552(4)  of  the  Trade  and 
Cooperation Agreement, although it has not yet been possible to tranform them fully to that 
effect.  

The United Kingdom 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 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)7.  

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 crime8. As such, the operation of the United Kingdom’s PNR 
processing system was designed, like those of the 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. 

7 
8 

See above, footnote 5. 
OJ 2016 L 119, p. 132. 

EN 

4 

  EN 

                                                 
 
Moreover,  the  United  Kingdom’s  current  risk  assessment  process  has  been  designed,  like 
those  of  the  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  29  September  2022  pursuant  to  Article  552(12)(b)  of  the 
Trade  and  Cooperation  Agreement,  the  United  Kingdom  indicated  that  it  had  recently 
designed and built  a capability to  delete PNR data in  accordance with  Article 552(4) of the 
Trade and Cooperation Agreement; this capability is now in beta testing phase. 

In  addition,  the  United  Kingdom  informed  that  it  was  developing  an  automated  risk 
assessment process based on objective evidence to determine the data that need to be retained 
after  a  passenger’s  departure  from  the  United  Kingdom.  In  the  meantime,  the  United 
Kingdom is implementing a manual risk assessment process, in order to apply the additional 
safeguards  referred  to  in  Article  552(11)  of  the  Trade  and  Cooperation  Agreement.  The 
United Kingdom estimates that the automated risk assessment process will be in place by the 
end of 2023. 

The United Kingdom also submitted to the Specialised Committee on Law Enforcement and 
Judicial  Cooperation  on  29  September  2022  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, outlining the effective application of 
the  additional  data  protection  safeguards  provided  for  in  Article  552(11)  of  the  Trade  and 
Cooperation Agreement. This report includes an opinion 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 assessment and report on 13 October 2022. On that occasion, answering to 
a number of questions from the Union, the United Kingdom provided additional information 
on  the  application  of  the  data  protection  safeguards  provided  for  in  Article  552(11)  of  the 
Trade and Cooperation Agreement, which it agreed to subsequently make available in writing. 

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  further  and  final  year  to  31  December  2023  taking  into 
account the information that the United Kingdom provided in the meeting of the Specialised 
Committee on Law Enforcement and Judicial Cooperation on 13 October 2022, provided that 
itis  subsequently  made  available  in  writing.  The  Partnership  Council  should  take  such  a 
decision by 31 December 2022.   

The  Commission  further  notes  that  the  Specialised  Committee  on  Law  Enforcement  and 
Judicial Cooperation is responsible for monitoring and reviewing the proper implementation 
of  Part  Three  of  the  Trade  and  Cooperation  Agreement,  including  the  annual  assessment  of 
the United Kingdom independent administrative body pursuant to Article 552(7) of the Trade 
and  Cooperation  Agreement  on  the  approach  applied  by  the  United  Kingdom  competent 
authority  as  regards  the  need  to  retain  PNR  data  pursuant  Article  552(4)  of  the  Trade  and 
Cooperation Agreement. 

EN 

5 

  EN 

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’9. 

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  and  the  United  Kingdom 
demonstrates  that  it  has  made  substantial  progress  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,  although  it  has  not  yet  been  possible  to  transform 
them fully to that effect, the Partnership Council shall extend the interim period referred to in 
paragraph  11  of  that  article  for  one  more  year  (second  and  final  extension).  Therefore,  the 
adoption  of  a  Union  position  in  respect  of  such  decision  falls  within  the  scope  of  Article 
218(9) TFEU.   

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. 

9 

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, 

EN 

6 

  EN 

                                                 
 
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. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As the decision of the Partnership Council agreeing to a second and final extension, until 31 
December 2023, 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  has  legal  effects,  it  is  appropriate  to  publish  the  decision  of  the 
Partnership  Council  in  the  Official  Journal  of  the  European  Union  after  its  adoption.

EN 

7 

  EN 

2022/0382 (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 Decision No 2/2021 of 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, of 21 December 2021 as regards the extension 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 Kingdom10, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

Pursuant  to  Article  542  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’)11,  
Title  III  of  Part  Three  (LAW  ENFORCEMENT  AND  JUDICIAL  COOPERATION 
IN CRIMINAL MATTERS) of that agreement 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. 

(2) 

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. 

10 
11 

OJ L 467, 29.12.2021, p. 6. 
OJ L 149, 30.4.2021, p. 10. 

EN 

8 

  EN 

                                                 
 
(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

12 

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  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.  In  accordance  with  Article  552(12)(a)  of  the 
Trade and Cooperation Agreement, the independent administrative body referred to in 
Article 552(7) of the Trade and Cooperation Agreement shall report on, and the United 
Kingdom supervisory authority for data protection referred to in Article 525(3) of the 
Trade and Cooperation Agreement shall provide an opinion on, whether the additional 
safeguards have been effectively applied. 

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. A decision to 
that  effect  was  taken  by  the  Partnership  Council  on  21  December  2021,  thereby 
extending the interim period until 31 December 202212. 

Under the same conditions and, in addition, if the United Kingdom demonstrates that 
it has made substantial progress to transform its PNR processing systems into systems 
which  would  enable  PNR  data  to  be  deleted  in  accordance  with  paragraph  Article 
552(4) of the Trade and Cooperation Agreement, although it has not yet been possible 
to transform them fully to that effect, the Partnership Council shall extend the interim 
period for one further and final year, that is until 31 December 2023. 

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 applies within the 
Union in accordance with the Treaties. 

On 29 September 2022, 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. 

In  its  assessment,  the  United  Kingdom  concluded  that  the  special  circumstances 
referred to in Article 552(10) of the Trade and Cooperation Agreement persist and that 
substantial  progress  to  upate  its  PNR  processing  systems  into  systems  which  would 

Decision  No 2/2021  of  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,  of  21 December  2021  as 
regards the extension 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, OJ L 467, 29.12.2021, p. 6. 

EN 

9 

  EN 

                                                 
 
enable  PNR  data  to  be  deleted  in  accordance  with  Article  552(4)  of  the  Trade  and 
Cooperation  Agreement  has  been  made,  although  it  has  not  yet  been  possible  to 
tranform  them  fully  to  that  effect.  The  United  Kingdom  noted  that  it  designed  and 
built  a capability to  delete PNR  data in  compliance with  Article 552(4) of the Trade 
and  Cooperation  Agreement  and  that  this  capability  was  now  in  beta  testing  phase. 
The  United  Kingdom  also  informed  that  it  was  developing  an  automated  risk 
assessment  process  based  on  objective  evidence  to  determine  the  PNR  data  to  be 
retained after the passengers’ departure from the United Kingdom. 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 13 October 2022. 

(10)  On  29  September  2022,  the  United  Kingdom  also  submitted  to  the  Specialised 
Committee on Law Enforcement and Judicial Cooperation a report pursuant to Article 
552(12)(a)  of 
independent 
the  Trade  and  Cooperation  Agreement  from 
administrative  body  referred  to  in  Article  552(7)  of  the  Trade  and  Cooperation 
Agreement,  including  an  opinion  by  the  United  Kingdom  supervisory  authority 
referred  to  in  Article  525(3)  of  that  agreement,  outlining  the  effective  application  of 
the safeguards provided for in Article 552(11) of that agreement.  

the 

(11)  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  13  October  2022.  On  that  occasion,  the  United  Kingdom  
ansewered a number of questions from the Union and provided additional information 
on the application of the data protection safeguards, which it agreed to  subsequently 
make available in writing. 

(12)  Subject  to  the  written  information  provided  by  the  United  Kingdom  reflecting  the 
additional information on the application of the data protection safeguards the United 
Kingdom  presented  during  the  Specialised  Committee  meeting,  it  is  therefore 
considered  that  the  special  circumstances  referred  to  in  Article  552(10)  of  the  Trade 
and  Cooperation  Agreement  persist,  and  that  the  United  Kingdom  has  demonstrated 
that  it  has  made  substantial  progress  to  transform  its  PNR  processing  systems  into 
systems  which  would  enable  PNR  data  to  be  deleted  in  accordance  with  paragraph 
Article  552(4)  of  that  agreement,  although  it  has  not  yet  been  possible  to  transform 
them  fully  to  that  effect.  Therefore,  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  final 
year, until 31 December 2023. 

(13)  The  Specialised  Committee  of  Law  Enforcement  and  Judicial  Cooperation  is  the 
competent body to monitor and review the implementation of Part Three of the Trade 
and Cooperation Agreement including the annual assessment of the United Kingdom 
independent  administrative  body  pursuant  to  Article  552(7)  of  the  Trade  and 
Cooperation  Agreement  on  the  approach  applied  by  the  United  Kingdom  competent 
authority as regards the need to retain PNR data pursuant to paragraph 4. It is expected 
that  by  31  December  2023  the  United  Kingdom  will  have  finalised  all  technical 
adjustments  necessary  to  enable  its  PNR  processing  systems  to  delete  PNR  data  in 
accordance  with  Article  552(4)  of  the  Trade  and  Cooperation  Agreement  and  will 
inform  the  Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation 
thereof. 

EN 

10 

  EN 

(14)  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.  

(15)  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  established  by 
Article 7(1) of the Trade and Cooperation Agreement shall be to agree to a second and final 
extension, until 31 December 2023, 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  pursuant  to  Article  552(13)  of  the  Trade  and 
Cooperation Agreement, provided that the the additional information on the application of the 
data protection safeguards set out in Article 552(11) of the Trade and Cooperation Agreement 
which  the  United  Kingdom  presented  during  the  meeting  of  the  Specialised  Committee  on 
Law  Enforcement  and  Judicial  Cooperation  of  13  October  2022  is  subsequently  made 
available in writing. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

EN 

11 

  EN