Select Committee on European Scrutiny Thirty-Seventh Report


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.

Legal baseArticles 62(2)(a) and 63(3)(b) EC; consultation; unanimity
Document originated(b) 27 October 2003
Deposited in Parliament(b) 29 October 2003
DepartmentHome Office
Basis of consideration(b) EM of 5 November 2003
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)
To be discussed in CouncilDate not set
Committee's assessmentPolitically important
Committee's decision(a) Cleared

(b) Not cleared; further information requested

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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