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EU-PNR scheme being re-written by the Council

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14 October 2008

At the Justice and Home Affairs Council the French Interior Minister, Michele Alliot-Marie said on 24 July 2008 that:

"We reached an agreement on the principle of the European PNR".

But a Note from the Austrian delegation (EU doc no: 11724/08, dated 10 July) said:

"The approach of the Presidency to abandon the work on the proposal of the Commission and to start a thematic discussion is welcomed."

The Multidisciplinary Group on Organised Crime (MDG, see Footnote) in the Council is now re-writing the Commission proposal, Full-text of Commission's PNR proposal (pdf), from scratch. The latest account of their deliberations are in: EU doc no: 13803/1/08 (pdf) and EU doc no: 13860/08 (pdf). Full background documentation and commentary is on Statewatch's: Observatory: EU surveillance of passengers (PNR)

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The earlier series of discussions centred on a number of issues on which agreement in the Council could not be reached including: whether the EU-PNR scheme should cover not just flights in and out of the EU but also flights between EU countries plus all flights within each country; not just all flights but all sea and land travel as well; whether the data and information gathered to be used not just for entry-exit but also for any law enforcement purpose. In a Note to the Council the Presidency sets out the options (13803/1/08) on the table.

Eight "guidelines" are envisaged.

1. The EU-PNR scheme would cover air traffic between the EU and third states (including transit passengers), that is the surveillance of all passengers (EU citizens and visitors).

Its scope would, "at least initially", only cover air travel (not land and sea travel). However, "a large number of delegations" support the proposal that:

"This restriction would not prevent those Member States which wished to do so from using PNR data available in the context of other modes of transport."

In other words the EU-PNR scheme can cover all travel by air, sea and land if national governments, like the UK, decide to extend the scheme.

The scheme will cover transit passenger who land in an EU state.

2. The list of data to be collected should be the same as that set out by IATA and then goes on to say:

"the list proposed by the Commission is an excellent basis on which to work."

The list proposed by the Commission is, in fact, the same 19 data sets in the EU-USA PNR agreement (which was reduced from 33 down to 19 by collapsing the categories).

3. Phasing in the system to 100% during transitional period. The objective should be to cover data "on all flights" in the view of the majority of governments - the UK "which favours leaving States to chose the data to be collected."

4. Move to exclusive use of "Push" method as distinct from "Pull" method. "Pull" means state agencies have access to airline booking databases, whereas "Push" means airline send the data through. As this scheme is intended to be 100% this distinction will become obsolete.

5. Harmonisation of transmission arrangements. There would be two transmissions: one, 48 hours before take-off of people booked in, another when flight is close and all boarded.

6. Purpose: the purpose of collecting the data would be for:

"the prevention, detection, investigation, prosecution and punishment of terrorism and a group of other serious offences, defined by reference to the list in the Framework Decision on the European Arrest Warrant."

However, there is then a qualifying statement:

"The instrument would of course cover the reporting and prosecution of other offences brought to light during controls."

This is an unexplained reference to a major debate in the abandoned negotiations earlier this year. The "Passenger Information Units" (PIUs) would collect the data from airlines and assess the passengers as to the that they present but "competent national authorities" (ie: police, immigration and internal security agencies) would be allowed to use the data for purposes other than that for which it was collected - assessing security risks for flights. Note "other offences" above is a lot wider than "serious offences".

7. "A clear and precise division" is needed between the PIUs who collect the PNR data and analyse it is respect of "risk" (with or without the help of the competent national authorities) and the "competent authorities":

"which would be using the PNR data in the course of their work"

That is, a quite separate use of the PNR data by law enforcement and security agencies for their ongoing work concerning any crime or surveillance operation.

8. The procedure for analysis of the "terrorist or criminal threat". First, there would be analysis "based on risk indicators" (eg: country flying to and from) which would be "pre-established by the competent [national] authorities" and second, checks against:

"national, international and European files"

Herein lies a major question which was raised during the previous negotiations, namely, the checking of PNR data against national "watch-lists" - each of the 27 EU states have their own "watch-lists". Some are specific and narrow, some are global and very wide. This is why there is a coded reference to:

"to develop common methods and indicators"

And, it might be asked, which "international" databases are to be used? Will this differ from country to country or will a common list be prepared?

Intra-Community flights

"A large majority" of Member States do not want the scope, at this stage, to cover flights between EU member states. However, it is proposed that "leeway to make this choice at national level" it would be "explicitly recognised".

In other words, EU-PNR would be collected by all Member States on all flights in and out of the EU and if Member States choose (like the UK) to also place under surveillance flight between EU states (intra-community) then they can.

Footnote: MDG: The Multidisciplinary Group on Organised Crime is comprised of law enforcement officers and officials. It primary concern, as others have noted, is not the civil liberties and privacy of the individual.

See also:

- European Data Protection Supervisor: EDPS expresses serious concerns about EU PNR proposal (Press release and Opinion, pdf)
- PNR (passenger name record) scheme proposed to place under surveillance all travel in and out of the EU
- UK House of Lords' European Union Committee: The Passenger Name Record (PNR) Framework Decision (89 pages, pdf)
- UK Border & Immigration Agency: e-Borders: Friends of Presidency Group meeting presentation, Brussels, 27 March 2008 (pdf)
- Full background documentation and commentary is on Statewatch's: Observatory: EU surveillance of passengers (PNR)