PNR: 70 million for swift implementation of travel surveillance and profiling infrastructure
21.12.16 Follow us: | | Tweet
The European Commission is offering 70 million along with technical support to try to ensure the swift construction and interconnection of the infrastructure required to implement the EU Passenger Name Record (PNR) Directive, which mandates the surveillance and profiling of all air passengers in Europe by law enforcement authorities.
The Directive requires passenger data from all flights entering, leaving or travelling within the EU to be handed over from airlines to 'Passenger Information Units', run by national law enforcement authorities, so that it can be cross-checked against watchlists, databases and profiles for the purposes of "preventing, detecting, investigating and prosecuting terrorist offences or serious crime." 
In order to implement the Directive, which was finally approved by the European Parliament in April this year after a long and tortuous process, there are a number of measures that Member States and the EU must take:
- national legislation transposing the Directive is required;
- the national authority hosting the 'Passenger Information Unit' (PIU, responsible for processing PNR data) must be established;
- the equipment and personnel necessary for the PIU need to be put in place;
- the national authorities competent to request and receive raw PNR data or information processed by the PIU need to be designated; and
- airlines need to be informed of the relevant technical requirements and ensure they are connected to the PIUs.
According to a Commission "implementation plan" published on 28 November:
"As things stand today, the situation is as follows:
a. four Member States have both functional or almost functional PNR systems in place and a dedicated legal basis providing for the collection or processing of PNR data; amendments are however still needed to fully adjust the legislative framework to the requirements of the Directive; the experience of these four Member States provides best practice examples that should be used by other Member States;
b. twelve Member States are in various stages of completion of the technical infrastructure and of the adoption of a dedicated PNR legislation;
c. eleven Member States are still at a relatively early stage of the implementation process, with the concrete acquisition and development of the technical infrastructure yet to start. However, some of these Member States have already devised detailed implementation plans with concrete deadlines." 
The Commission states that it will "support and follow Member States' progress" in a number of ways.
Regular meetings with the Member States and Europol
The Commission is hosting a three-monthly meeting "to discuss legal questions linked to the interpretation and implementation of the Directive" - in particular as regards Article 6 on data processing and Article 9 on information exchange - "and to share queries, lessons learnt and best practices."
The Commission-hosted meetings are also supposed to serve as "a venue to increase the peer-to-peer support between Member States," as for example is currently happening through a "dedicated informal working group" led by the Netherlands. 
This "Informal Working Group on PNR (IWG-PNR)" includes all Member States, the Commission, Europol, Frontex and the EU Counter-Terrorism Coordinator while "third countries, such as the United States of America and Australia have an observer status."
The group is coordinating with the Commission's efforts at the same time as reporting to the Council's working parties on internal security (COSI), information exchange (DAPIX) and the Schengen Information System (SIS/SIRENE).
The Dutch delegation to the Council also recently drafted a "non-paper on the value of PNR for Customs law enforcement and risk management in light of the new PNR Directive," which "describes the value of PNR data in relation to the management of day to day passengers controls by customs in light of the new PNR Directive."
The paper was presented a recent meeting of the Council's Customs Cooperation Working Party, where:
"Member States were urged to send examples of national practices in the area of PNR use by customs in order for the document to reach its purpose - become a manual for the use of national authorities/customs in area of setting up of PIUs and use of PNR data." 
The Commission is also providing 1.5 million for a Hungarian-led project on the exchange of PNR data between Member States. 
Financial assistance to Member States
As the Commission has previously indicated,  it is proposing the allocation of 70 million of the Internal Security Fund from 2017-20 "to assist the Member States in setting up their PIUs."
This comes on top of over 50 million already provided by the Commission (prior to the passing of the EU PNR Directive, see further below) and 3.8 million offered through the recent Internal Security Fund work programme for "interconnecting PIUs to facilitate the exchange of PNR data." 
Beyond this, the implementation plan states that "the Commission stands ready to provide further financial support if necessary."
The funds would be directed "for example to the purchase of technical equipment the training of concerned staff or to study visits to other Member States which are at a more advanced stage of implementation."
The Commission will also be adopting an Implementing Decision "establishing a list of common and supported data formats to be used by air carriers when transferring PNR data to the PIUs," and the implementation plan sets out a series of "indicate milestones that Member States should meet in order to have their PIUs up and running by May 2018."
Comment (Chris Jones, Statewatch): An anti-democratic farce
The Commission's recent staff working document highlights the questionable approach, in terms of democratic procedure, that some Member States have taken towards establishing their national PNR systems: they "first started to build the technical infrastructure needed and only later engaged in the legislative process."
All Member States, as well as EU officials, will be familiar with such an approach - they did exactly the same with the second-generation Schengen Information System (SIS II), as well as the Eurosur border surveillance system.
And when it comes to PNR, the EU has been happy to help the Member States along.
In 2012 the Commission began providing significant funding to Member States for the establishment of national PNR systems, despite the fact that no legislation was in place to establish an EU-wide system.
When Statewatch drew attention to the Commission's efforts, former home affairs commissioner Cecilia Malmström offered the European Parliament's civil liberties committee an explanation:
"the call for proposals is not directly linked to the on-going negotiations between the European Parliament and the Council on the Commission proposal for an EU PNR system."
This line never really held water - it was clear that while the funding was directed towards national systems based on national legislation (as Malmstrom also pointed out to MEPs), those systems were always intended to form part of an EU-wide network.
As the Commission document cited above puts it:
"The current state of implementation of the Directive varies greatly across Member States. A number of them already either have a functional PNR system in place or are in advanced stages of its finalisation. This situation can be ascribed to the fact that, prior to the adoption of the Directive, the EU had provided 14 Member States, through the 2007-2013 Prevention of and Fight against Crime (ISEC) Programme, co-funding for national projects aimed at setting up PNR systems based on national legislation."
The approach to the whole affair can perhaps best be summed up by paraphrasing the film Field of Dreams: "if you build it, the law will come."
 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
 European Commission, Implementation Plan for Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, SWD(2016) 426 final, 28 November 2016,
 Dutch delegation, State of affairs regarding the implementation of the PNR Directive and setting up of the passenger information units: Informal Working Group on PNR, 13323/1/16 REV 1, 23 November 2016,
 Customs Cooperation Working Party, Outcome of proceedings, 15361/16, 14 December 2016
 Putting the PNR pieces in place: more EU funding for mass surveillance, Statewatch News Online, 30 March 2016,
 European Commission, First progress report towards an effective and genuine Security Union, COM(2016) 670 final, 12 2016
 European Commission, ANNEX to the Commission Implementing Decision concerning the adoption of the work programme for 2016 and the financing for Union actions and emergency assistance within the framework of the Internal Security Fund - the instrument for financial support for police cooperation, eu-council-pnr-sop-13323-REV-1-16.pdfpreventing and combating crime, and crisis management, C(2016) 4638 final, 26 July 2016
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