7 Carriers' obligation to communicate
passenger information
| (a)
(24513)
7161/03
—
(b)
(24985)
11406/1/03
—
|
Draft Council Directive on the obligation of carriers to communicate passenger data.
Draft Council Directive on the obligation of carriers to communicate passenger data.
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| Legal base | Articles 62(2)(a) and 63(3)(b) EC; consultation; unanimity
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| Document originated | (b) 27 October 2003
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| Deposited in Parliament | (b) 29 October 2003
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| Department | Home Office |
| Basis of consideration | (b) EM of 5 November 2003
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| Previous Committee Report | (a) HC 63-xxix (2002-03), paragraph 11 (10 July 2003), HC 63-xxxi (2002-03), paragraph 7 (10 September 2003) and HC 63-xxxiv (2002-03), paragraph 9 (22 October 2003)
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| To be discussed in Council | Date not set
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| Committee's assessment | Politically important
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| Committee's decision | (a) Cleared
(b) Not cleared; further information requested
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Background
7.1 Document (b) is an amended text of document (a). The aim of
both is to combat illegal immigration. To that end, the draft
Directive proposes that carriers should have a duty to transmit
to the authorities responsible for carrying out border checks
in the Member State of destination information about passengers
who are third country nationals. Carriers would also have a duty
to transmit information about third country nationals who have
not returned by the date stipulated on their tickets.
7.2 When we considered document (a) in July, we
regarded it as inadequate and imprecise and kept it under scrutiny.
We asked the Minister if it was appropriate for an instrument
to be adopted under the EC Treaty to fix the amounts of the fine
to be imposed on carriers if they did not comply with their proposed
obligations. The provisions in Article 2(1)(a) and (b) of document
(a) for sanctions on non-compliant carriers appeared to us to
be matters for a framework decision under the EU Treaty , rather
than for a Directive. We also asked the Minister if the Information
Commissioner had been consulted about the data protection aspects
of the proposals.
7.3 In September, when we considered the Minister's
reply to our questions, our concerns about Article 2(1) were not
allayed and we repeated our view that such a provision should
be adopted under the EU Treaty. The Information Commissioner had
not yet been consulted; we urged the Minister to consult him.
We remained concerned about the drafting of document (a) and did
not clear it.
7.4 We considered a further letter from the Minister
in October. She told us that the Government had made clear to
the Presidency the specific concerns — many of which reflected
those raised by us and others — that it would like to be
addressed in detailed discussion of the text. The Minister also
told us that provision similar to Article 2(1)(a) and (b) had
been made in Council Directive 2001/51/EC, which related to carriers'
liability. The opinion of the Information Commissioner on the
draft had not yet been obtained. We concluded that the Directive
to which the Minister had referred us was not decisive and we
reiterated our view that any penalties on carriers were not appropriate
in an instrument made under Title IV of the EC Treaty. We were
surprised that the Information Commissioner's opinion had still
not been obtained and we urged the Minister to obtain it without
further delay. We kept document (a) under scrutiny pending the
production of the Regulatory Impact Assessment, the availability
of the Information Commissioner's opinion and a revised text of
the proposal.
Document (b)
7.5 Article 2(a) of the revised text of the draft
Directive defines a "carrier" as any natural or legal
person whose occupation is to provide passenger transport by air.
7.6 Article 3(1)(a) requires Member States to provide
for carriers to transmit, at the request of border authorities,
information about third country nationals "at the end of
boarding checks" . Under Article 3(1)(b) the carrier would
be required to transmit, within 48 hours of a request from the
authorities, information about third country nationals who have
not returned by the date stipulated on their tickets. Under Article
3(2) carriers would be required to provide the following passenger
information:
- number of the passport or travel
document
- nationality
- first name and family name
- date of birth
- border crossing point of entry to the Member
State
- flight number
- departure and arrival time of the flight; and
- total number of passengers carried on the flight.
7.7 Article 4(1) requires Member States to impose
"sanctions" on carriers who have not provided the required
information (the Recital refers to "penalties" rather
than "sanctions"). Either the maximum amount of the
sanction must be not less than €5000
or the minimum must be not less than €3000
for each journey for which the required information has not been
provided. Under Article 4(2), Member States are given discretion
to immobilise, seize or confiscate the means of transport, or
temporarily suspend or withdraw the operating licence.
7.8 Among other things, Article 6 provides that
the information about third country nationals must be provided
only to facilitate border checks and must be deleted immediately
the passenger has entered the Member State of destination.
The Government's view
7.9 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that, from the outset,
the Government has supported this initiative in principle but
had a number of concerns about document (a). The revised text
(document (b)) goes some way to address those concerns but others
remain.
7.10 In particular, the Government considers that
the passenger information should be transmitted at the time of
check-in, and not as document (b) proposes at the time of boarding.
This is because, if the information is transmitted at check-in
time, authority to board can if appropriate be denied.
7.11 Article 6 of document (b) provides that advance
passenger information must be communicated for the sole purpose
of facilitating border checks and must be deleted immediately
the passenger passes through immigration control. The Government
will propose amendments which would enable the data transmitted
by the carrier to be used for other border control purposes (such
as customs); it will also propose that there should not be a time
limit for deletion of the data.
7.12 The Government doubts the value of Article 3(1)(b),
which provides that carriers should inform the authorities when
a passenger does not return on the date stipulated on the ticket.
Passengers often have valid reasons for altering their travel
plans. Moreover, the Government recognises that compliance with
the requirement would be onerous for carriers. The Minister says
that the Government has already succeeded in getting the Article
amended so that the information need be provided only if requested
by the authorities responsible for carrying out border checks.
The Government will suggest a further amendment: to remove the
requirement for the carrier to provide the information within
48 hours of being asked for it and replace it by a requirement
to supply the data within the time set by the requesting border
authority.
7.13 UK legislation currently allows sanctions to
be imposed on carriers who fail to comply, without reasonable
excuse, with a request for passenger information. The Government
supports the approach taken to sanctions in Article 4(1) (which
was Article 2(1) in document (a)) and sees no need for the provision
to be made under the EU Treaty rather than the EC Treaty. But
the additional sanctions in Article 4(2) — such as seizure
and confiscation — are, in the Government's view, disproportionate
to the offence and it will seek to have these amended.
7.14 The Government and some other Member States
wish the draft Directive to apply to all modes of transport (air,
sea and rail) and not to be confined to carriers by air.
7.15 Finally, the Minister tells us that the Information
Commissioner is currently being consulted about the data protection
aspects of the document. The proposal would have a direct impact
on UK businesses, but, as UK legislation already exists covering
the principle of the draft Directive, the Government is assessing
the need for a Regulatory Impact Assessment. The proposal would
have significant financial implications for the UK but no assessment
of the costs has yet been made.
Conclusion
7.16 We are grateful to the Minister for her Explanatory
Memorandum. We agree that the drafting of document (b) is better
than that of the previous draft of the Directive. We note that
the Government will be seeking further amendments and, in particular,
we agree that the advance passenger information should be provided
at check-in time rather than at the time of boarding.
7.17 There remains a difference of opinion between
the Committee and the Government about the appropriateness of
including a specific level of financial penalty on carriers for
non-compliance in this Directive, rather than by a framework
decision under Title VI of the EU Treaty. We agree, however, that
the additional sanctions proposed in Article 4(2) are disproportionate.
7.18 Document (a) has been superseded by the
revised text and so we clear it. We shall, however, keep document
(b) under scrutiny until the opinion of the Information Commissioner
is available, the outcome of the Government's further negotiations
on the text is known, and the cost of the proposal to the
UK has been assessed. We note that the Minister expects the financial
implications for the UK to be significant and it seems to us,
therefore, that a Regulatory Impact Assessment is likely to be
necessary.
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