6 Carriers' obligation to communicate
passenger information
| (a)
(25258)
5183/04
—
(b)
(25375)
6015/04
—
(c)
(25412)
6620/04
—
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Draft Council Directive on the obligation of carriers to communicate passenger data
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) 9 February 2004
(c) 20 February 2004
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| Deposited in Parliament | (b) 19 February 2004
(c) 1 March 2004
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| Department | Home Office |
| Basis of consideration | Minister's letter of 1 March 2004 and EM of 12 March 2004
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| Previous Committee Report | (a) HC 42-x (2003-04), para 3 (11 February 2004)
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| To be discussed in Council | 30 March 2004
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| Committee's assessment | Politically important
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| Committee's decision | (a) and (b) Cleared
(c) Not cleared; further information requested
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Background
6.1 Document (c) is an amended text of documents (a) and (b).
Their aim is to combat illegal immigration. Document (c) requires
Member States to establish an obligation on air carriers, at the
request of the authorities responsible for carrying out checks
on people at the external borders of the Member State of destination,
to transmit to those authorities by the end of check-in information
about the passengers they will carry to the Member State. We
have considered three previous drafts of the Directive.[10]
6.2 When we considered document (a) in February,
we noted that it applied to air and sea carriers but not to carriers
by rail. There was concern that this might be anti-competitive.
We asked the Minister to tell us the advice she received about
this concern. We agreed with the Minister that it would be desirable
to delete the provision in Article 3(4) (power to require carriers
to provide information on third country nationals who have not
returned by the date specified on their tickets). We expressed
our concern about the power in Article 4(2) for Member States
to seize, immobilise or confiscate the means of transport of a
carrier which had not provided the required information. We also
questioned the absence of a provision for compensation to carriers
where a Member State wrongly or unreasonably exercised the powers
of Article 4(2). We asked the Minister to comment on the necessity
and proportionality of Article 4(2) and on the need for a compensation
provision for carriers. We explained why we considered a Regulatory
Impact Assessment (RIA) necessary. We decided to keep document
(a) under scrutiny pending the Minister's reply to our questions.
The revised proposal
6.3 Document (c) supersedes the drafts of the Directive
contained in documents (a) and (b).
6.4 Two new recitals have been added. The first
(recital 3(a)) says that:
"The freedom of the Member States to retain
or introduce additional obligations for all carriers, or some
categories of other carriers including information or data in
relation to return tickets, whether referred to in this Directive
or not, should not be affected".
The second (recital 3(b)) says that:
"In order to combat illegal immigration more
effectively and in order to ensure the greater effectiveness of
this objective, it is essential that account be taken at the earliest
opportunity of any technological innovation, especially with reference
to the integration and use of biometric features in the information
to be provided by the carriers".
6.5 In document (c), the definition of "carrier"
in Article 2 has been amended so that it applies only to carriers
by air.
6.6 Article 3(1) requires Member States to establish
an obligation on carriers to transmit, at the request of the authorities
responsible for carrying out checks on people at the external
borders, information about the passengers they will carry to the
Member State of destination. There is one significant change
from previous drafts. The information is to be transmitted "by
the end of check-in".
6.7 Article 3(2) provides that the data to be transmitted
are:
- number and type of travel document;
- nationality;
- full name;
- date of birth;
- border crossing point of entry;
- mode of transport;
- departure and arrival time;
- total number of passengers carried; and
- initial point of embarkation.
6.8 Previous drafts included a discretionary power
in Article 3(4) for Member States to create an obligation on carriers
to transmit information about third country nationals who have
not returned by the date stipulated on their tickets. That provision
has been deleted from document (c), although new recital 3(a)
says that the freedom of Member States to retain or introduce
such an obligation "should not be affected".
6.9 The text of Article 4(1) (financial sanctions
on carriers for failing to transmit the required data) has been
amended. The previous provisions setting maximum and minimum
amounts for financial sanctions for each journey for which passenger
data were not transmitted have been retained. But the provision
for each infringement to attract a lump sum penalty of not less
than €500,000 has been deleted.
6.10 Article 4(2) has also been amended. Document
(a) provided that "Member States may adopt or retain"
other sanctions — such as seizure, immobilisation or confiscation
of the carrier's mode of transport — for very serious breaches
of the obligation to transmit passenger data. Document (c) amends
this to read that "This Directive shall not prevent Member
States from adopting or retaining" such sanctions.
6.11 Article 5 (carriers' right to defend and appeal
in proceedings to impose penalties on them under Article 4) has
not been amended. It does not include provision for compensation
to carriers where Member States have wrongly or unreasonably exercised
the powers in Article 4.
6.12 Article 6 (data processing) has been amended
in three respects. First, authorities which carry out the checks
on incoming passengers are required to delete the data transmitted
to them "within 24 hours after transmission" rather
than immediately after the passengers have entered the country
of destination. Second, the provision in document (b) enabling
the authorities to retain the data for longer if they are needed
"to end illegal presence in the territory of the Member States"
has been deleted. Third, the provisions in document (a) about
the processing of data about third country nationals who have
not returned by the time stipulated on their tickets has been
deleted.
The Government's view
6.13 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that representations
had been made by the airlines that limiting the application of
the Directive to carriers by air would be discriminatory. The
Minister says the limitation would not prevent the UK Immigration
Service, using the powers of existing UK legislation, from requiring
information from sea and rail carriers.
6.14 The Minister tells us that the amendment to
Article 2(1) to require carriers to transmit the data "by
the end of check-in" is acceptable to the Government because
it would enable data to be transferred on "a real-time basis".
6.15 The Government welcomes the deletion of the
provision (in what was Article 3(4)) for carriers to be obliged
to transmit data on third country nationals who had not returned
by the date stipulated on their tickets. The Government had regarded
it as unworkable and undesirable. The Government is, however,
content with the proposal to add a new recital 3(a), which says
that the freedom of Member States to adopt or retain such obligations
is not affected by the Directive.
6.16 The Government is concerned about the revised
text of Article 6. It would require transmitted data to be deleted
within 24 hours of the arrival of the passengers. The Minister
tells us that the Government will seek to ensure that data can
be retained for as long as necessary and in accordance with EU
and UK data protection legislation. The Minister adds:
"A key requirement of the UK is the ability
to share the data with other agencies where it is necessary and
lawful to do so. The Directive specifies that data may be collected
for the purpose of conducting checks on passengers at the external
borders. Current legal advice indicates that this provision will
not permit the data to be shared with other agencies for purposes
not specified in Article 6. The UK is unable to agree to any
text which will prevent us sharing data with border agencies and
other appropriate government agencies, in accordance with national
legislation and relevant data protection obligations. We will,
therefore, seek to secure this change during negotiations".
6.17 The Minister tells us that an RIA on the proposal
is now being prepared.
The Minister's letter of 1 March 2004
6.18 The Minister's letter replies to the questions
we put to her after our consideration of document (a) on 11 February.
6.19 In response to our concern about Article 4(2)
(power to seize, immobilise or confiscate a carrier's means of
transport) the Minister tells us that the provision has been omitted
from the latest draft of the Directive (document (c)). She asks
whether, now the text omits the provision, we remain concerned
about the absence of provision for compensation to carriers for
wrongful use of the power.
6.20 The Minister adds that agreement has not yet
been reached on the text of Article 6 (data protection).
6.21 The Minister's letter also includes information
to which we have referred in the preceding section of this Report
and which we need not, therefore, repeat.
Conclusion
6.22 We note that the Government considers that
certain further amendments to the draft Directive are essential.
We are grateful for the Minister's assurance that she will keep
us informed of the progress of the negotiations.
6.23 We welcome the omission from document (c)
of the provision (Article 3(4)) to enable Member States to require
carriers to provide information on third country nationals who
have not returned by the date stipulated on their tickets. But
we note that new recital 3(b) appears to re-instate the discretion
to impose such obligations. This appears objectionable for the
reasons Article 3(4) was not acceptable to the Government. We
ask the Minister to tell us her understanding of the legal effect
of the recital.
6.24 The drafting of Article 4(2) has been amended.
The words "Member States may adopt or retain" sanctions
such as the seizure, immobilisation or confiscation of a carrier's
means of transport have been replaced by "This Directive
shall not prevent Member States from adopting or retaining"
such sanctions. It appears to us that the effect of the two forms
of words is the same. Accordingly, for the reasons we gave in
our previous Report on the subject, we continue to question whether
the provision is proportionate and, even if it were, why there
is no provision for compensation to carriers for improper use
of the power.
6.25 We clear documents (a) and (b) because they
have been superseded by document (c). We shall keep document
(c) under scrutiny until we know the outcome of the further negotiations
on the text, the Minister has had the opportunity to reply to
our further questions and we have seen the Regulatory Impact Assessment
now in preparation.
10 See (24513) 7161/03: HC 63-xxix (2002-03), para
11 (10 July 2003), HC 63-xxxi (2002-03), para 7 (10 September
2003) and HC 63-xxxvii (2002-03), para 7 (12 November 2003); and
(24985) 11406/1/03: HC 63-xxxvii (2002-03), para 7 (12 November
2003) and HC 42-iv (2003-04), para 5 (7 January 2004); and (25079)
15165/03: HC 42-iv (2003-04), para 5 (7 January 2004) and HC 42-x
(2003-04), para 3 (11 February 2004). Back
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