link to page 1 link to page 1 link to page 1
COUNCIL OF
Brussels, 27 September 2010
THE EUROPEAN UNION
PUBLIC
13986/10
DOCUMENT PARTIALLY
LIMITE
ACCESSIBLE TO THE PUBLIC
JAI 766
EXERCISE:
DATAPROTECT 68
AVIATION 137
"HARM TEST" ANALYSIS
RELEX 792
NOTE
from:
Presidency
to:
Coreper/Council
prev. docs:
13931/10 JAI 761 USA 108 DATAPROTECT 64 AVIATION 128 RELEX 785
13932/10 JAI 762 AUS 14 DATAPROTECT 65 AVIATION 129 RELEX 786
13933/10 JAI 763 CDN 12 DATAPROTECT 66 AVIATION 130 RELEX 787
13954/10 JAI 764 DATAPROTECT 67 AVIATION 134 RELEX 789
Subject:
EU external strategy on Passenger Name Record (PNR) data
- Handling of draft negotiation mandates for PNR Agreements with Canada, the
United States of America and Australia
The European Union (and the European Community) has signed
Harm test:
three agreements providing for the processing and transfer of
Passenger Name Record (PNR) data by air carriers to the authorities
of third countries: Canada
1, the United States of America
2 and
Australia
3. The latter two Agreements are being applied on a
Conclusion:
provisional basis, but have not yet been concluded.
1
OJ L 91, 29.3.2006, p. 53, OJ L 91, 29.3.2006, p. 49 and OJ L 82, 21.3.2006, p. 15.
2
OJ L 204, 4.8.2007, p. 16. The Agreement between the European Union and the United States of America on the
processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of
Homeland Security (DHS) was signed on 23 and 26 July 2007, subject to its conclusion at a later date. It is
applied provisionally as from 26 July 2007.
3
OJ L 213, 8.8.2008 p. 49. The Agreement between the European Union and Australia on the processing and
transfer of European Union-sourced passenger name record (PNR) data by air carriers to the Australian Customs
Service was signed on 30 June 2008, subject to its conclusion at a later date. It is applied provisionally as from
30 June 2008.
13986/10
GS/np
1
DG H 2B
LIMITE EN
Conseil UE
link to page 2 link to page 2
On 18 December 2009, the Commission submitted to the Council a
Harm test:
proposal for a Decision on the conclusion of the latter two
Agreements. On 25 January 2010, the Council, in accordance with
Article 218(6) TFEU, decided to forward the draft decisions on
conclusion as well as the text of both Agreements to the European
Conclusion:
Parliament for its consent.
On 5 May 2010, the European Parliament adopted a resolution on the
Harm test:
launch of negotiations for passenger name record (PNR) Agreements
with the United States, Australia and Canada.
1 In this resolution, the
Parliament decides to postpone the vote on the request for consent on
the agreements with the US and Australia until the Commission “has
explored the options for arrangements for the use of PNR that are in
line with EU law and meet the concerns expressed by Parliament in
Conclusion:
earlier resolutions on PNR”;
The Parliament also called for “a coherent approach on the use of
Harm test:
PNR data for law enforcement and security purposes, establishing a
single set of principles to serve as a basis for agreements with third
countries” and invited the Commission to present a proposal for such
a single model and a draft mandate for negotiations with third
countries. The Commission Communication “On the global approach
to transfers of Passenger Name Record (PNR) data to third
Conclusion:
countries”
2 meets this call.
1
P7_TA(2010)0144.
2
13954/10 JAI 764 DATAPROTECT 67 AVIATION 134 RELEX 789.
13986/10
GS/np
2
DG H 2B
LIMITE EN
link to page 3
On 23 September 2010, the Council received three recommendations
Harm test:
from the Commission to authorise the opening of negotiations for
Agreements between the European Union and Australia, Canada and
the United States of America for the transfer and use of Passenger
Name Record (PNR) data to prevent and combat terrorism and other
serious transnational crime
1.
Conclusion:
The Presidency intends to have the adoption of these three
Harm test:
negotiation mandates handled by Coreper, with the assistance of the
JHA Counsellors.
Conclusion:
1
13931/10 JAI 761 USA 108 DATAPROTECT 64 AVIATION 128 RELEX 785; 13932/10
JAI 762 AUS 14 DATAPROTECT 65 AVIATION 129 RELEX 786; 13933/10 JAI 763
CDN 12 DATAPROTECT 66 AVIATION 130 RELEX 787.
13986/10
GS/np
3
DG H 2B
LIMITE EN
Before starting an in-depth discussion on the content of the draft
Harm test:
negotiation mandates, the Presidency would like to submit the
following questions regarding the handling of these files to the
Council:
1)
The Commission Communication states that all PNR
Agreements with third countries should respect certain general
criteria. It also underlines that “[i]n the interest of ensuring an
as uniform as possible treatment of passengers and reducing the
costs on the industry, it is important that the content and
standards of future agreements with third countries are as
similar as possible”. The content of the proposed negotiating
directives is identical for the three recommendations. In the
same vein, the Presidency submits that the Council should act
in a consistent manner regarding the content of the three draft
negotiation mandates: any amendment to the negotiating
directives should be made to all three negotiation mandates so
that the content of the negotiating directives to be adopted with
regard to each of the three countries will be identical. This does
not detract from the fact that during the negotiations, the
Commission may have to differentiate the wording of the three
Agreements as a result of the different legal and institutional
setup of the countries concerned. The Presidency proposes that
the Council adopt the three negotiation mandates at the same
Conclusion:
time.
13986/10
GS/np
4
DG H 2B
LIMITE EN
2)
The Presidency proposes that the Council give clear indications
Harm test:
to the Commission as to the order in which the negotiations
with the three countries are to be handled. In this regard the
Presidency sees two major approaches:
a) Starting and conducting the negotiations with all three
countries at the same time.
b)
DELETED
The Presidency invites delegations to express their views on the
Conclusion:
above mentioned approaches.
Harm test:
Final conclusion:
_________________
13986/10
GS/np
5
DG H 2B
LIMITE EN