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EU PNR scheme: Irish Presidency seeking to push through plan for the surveillance of travel

01 January 2004

The Irish Presidency of the Council of the European Union is trying to get through the adoption of the Spanish government proposal for the collection and vetting of passenger data in the EU by 30 April 2004. This is because the proposal is a member state initiative and under Article 67.1 of the Treaty establishing the European Community (TEC) member states will lose this power after this date.

As "significant differences remain on the scope and detail" the Irish Presidency has put forward a "compromise proposal". This leaves for the future decisions on the issues of applying the "measure to other carriers, the use of biometric data and the inclusion of data on transit arrangements". It is based on limiting the proposal, for now, to "air and sea carriers" (ie: not travel by land).

The "compromise" includes the UK demand that personal data has to be sent "in advance of departure" (that is, at the time of check-in/before boarding).

How the different drafts have changed

Statewatch's coverage in December, EU plan for wholesale security checking for every traveller, dealt with the draft proposal up to 12 November. Three further drafts are now available, those of 24 November, 17 December and the Irish "compromise" of 9 January 2004. The last two are the most interesting as the December version reveals the main differences between government positions and the January version shows what has been left in or taken out from the December version.

1. The scope of the proposed Directive has undergone a number of changes. The first draft, in March 2003, said data was to be passed over on all "people" entering the EU. In the July 2003 draft this had been replaced by data on "foreign nationals" thus excluding EU citizens. The 12 November draft replaced: the transmission of data on third country nationals" to "the transmission of advance passenger data" thus again covering all passengers (which is in the current text).

The Recitals in the December draft shows that the measure has two purposes under Article 62(2)(a) "checks" on "persons" at borders and 63(3)(b) on illegal immigration (these Articles are in Title IV TEC whose full title is: "Visas, Asylum, Immigration and other Policies related to Free Movement" - the second purposes is often forgotten). If the purpose is only to tackle illegal immigration, as Commissioner Vittorino claimed in the European Parliament on 16 December 2003, then Article 62(2)(a) should be deleted.

2. In December 2003 Sweden maintained a reservation "on the whole text".

3. The current January "compromise" leaves Article 1 unchanged. This refers to "improving border controls" (Article 62.2.a) and "combating illegal immigration" (Article 63.3.b) by the handing over of "advance passenger data" - note "passenger" not "foreign nationals"

4. Article 3 in the January "compromise" substitutes the term "in advance of departure" instead of "at the end of boarding checks". This accepts the position of the UK and Netherlands governments that checks can be carried out before people board a plane (or ship) and would allow a board/not board vetting procedure to be operated.

5. Article 4 is unchanged. Under this Member States may establish an obligation on carriers to notify the authorities if a person does not use their return ticket and leaves the EU.

6. Article 6 covers data protection. As predicted in Statewatch's December analysis this Article has been re-written. Article 6.1. refers to the data collected by the carrier on all passengers being passed to "authorities responsible for carrying out checks on persons at external borders" (Article 3.1), and Article 6.2 refers to passing of data on the non-return of passengers who do not use their return tickets to "authorities responsible for combating illegal immigration" (Article 3.4).

Article 6.1, on all passengers, says that personal data must be sent by the carri