19 Carriers' obligation to communicate
passenger information
(a)
(25412)
6620/04
—
(b)
(25499)
7595/04
—
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Draft Council Directive on the obligation of carriers to communicate passenger information
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) 23 March 2004
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| Deposited in Parliament | (b) 30 March 2004
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| Department | Home Office |
| Basis of consideration | (a) EM of 12 March 2004
(b) EM of 16 April 2004
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| Previous Committee Report | (a) HC 42-xiii (2003-04), para 6 (17 March 2004)
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| To be discussed in Council | 29 April 2004
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| Committee's assessment | Politically important
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| Committee's decision | (Both) Cleared
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Background
19.1 The aim of this draft Directive is to combat illegal immigration.
It requires Member States to establish an obligation on air carriers
to transmit, at the request of the authority in a Member State
responsible for carrying out border checks, information about
the passengers they will carry to the Member State. The carrier
is to transmit the information to the requesting authority by
the end of check-in. The obligation relates only to flights from
outside the European Union to a Member State; it does not apply
to flights between Member States. The Government has opted into
the proposal.
The documents
19.2 Document (b) supersedes the draft of the Directive contained
in document (a).
19.3 Article 3(1) contains a requirement for Member
States to establish an obligation on air 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.
19.4 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.
19.5 Previous drafts of the Directive 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 now been deleted but a new
recital says that the freedom of Member States to retain or introduce
such an obligation will not be affected.
19.6 Article 4(1) requires Member States to establish
financial sanctions on carriers for failing to transmit the required
data. Either the maximum amount of the sanction is to be not
less than €5,000 for each journey for which the passenger
data were not communicated or were communicated incorrectly; or
the minimum amount of the sanction is to be not less than €3,000.
19.7 Article 4(2) provides that the Directive is
not to prevent Member States from adopting or retaining other
sanctions — such as seizure, immobilisation or confiscation
of the carrier's means of transport — for very serious breaches
of the obligation to transmit passenger data.
19.8 Article 5 requires Member States to ensure that
carriers have effective rights of defence and appeal in proceedings
to impose penalties on them under Article 4.
19.9 Article 6 provides that passenger data shall
be communicated to Member States' border authorities for the sole
purpose of facilitating checks with the objective of combating
illegal immigration more effectively. The authorities must delete
the data within 24 hours of its transmission to them unless the
data are needed later for the purposes of exercising the authorities'
statutory functions in accordance with national law. The data
may also be used for law enforcement purposes.
The Government's view
19.10 The Parliamentary Under-Secretary of State
at the Home Office (Caroline Flint) tells us that Article 4(2)
does not require Member States to impose penalties, such as seizure,
immobilisation or confiscation of aircraft, for failing to provide
passenger data but will not constrain them from adopting or retaining
such sanctions. In the Government's view, because there is no
requirement for Member States to adopt or retain such sanctions,
it is not necessary for the Directive to make provision for compensation
to carriers for misuse of them.
19.11 The Minister also tells us that the Government
welcomes the latest amendments to Article 6. One permits passenger
data to be retained for more than 24 hours after transmission
if they are required for the exercise of the border authorities'
statutory functions. The other allows the data to be used for
the purposes of law enforcement.
19.12 The Government has consulted the Information
Commissioner about the data protection provisions of the draft
Directive and he has made no objections to them.
19.13 The Government has also drafted a Regulatory
Impact Assessment (RIA) of the proposal. It notes that only a
few UK-based carriers operate flights from outside the European
Union into other Member States. So the cost to UK carriers of
responding to requests from other Member States for advance passenger
information would probably be no more than 1% of the cost of providing
passenger data to the UK authorities. The RIA concludes that there
would be important benefits from the transmission of advance passenger
information and its use to help combat illegal immigration. Carriers
would need to install the necessary technology in airports abroad
to facilitate the collection and communication of passenger data;
and the UK border authorities would need to install equipment
to receive and assess the information. But satisfactory technical
equipment and systems to analyse and use the data are not yet
available. The RIA concludes, therefore, that requiring carriers
to provide detailed advance passenger information immediately
the Directive is adopted is not a viable option. The Government
is currently developing a programme (the e-Borders programme)
to modernise and integrate the management of passenger information,
including biometrics, to expedite the movement of legitimate passengers
while helping to safeguard the UK against serious and organised
crime, terrorism and illegal immigration. The Government intends
to require carriers to provide advance passenger information as
part of the implementation of the e-Borders programme. A full
RIA will be produced to assess the impact of e-Borders on UK businesses.
19.14 Finally, the Minister says that, as this proposal
is a Member State initiative, it must be formally adopted by 30
April 2004 or, in accordance with Article 67(1) of the EC Treaty,
it will expire. She adds that
"The Presidency is keen to adopt the Directive
and has made significant progress in developing a core text on
which broad agreement has been reached".
Conclusion
19.15 We considered the first draft of this Directive
in July 2003.[17]
Since then, it has been clarified and much improved. We are grateful
to the Minister for her helpful replies to our questions on successive
drafts of the proposal.
19.16 We note that the Government intends to require
carriers to provide advance passenger information as part of the
implementation of its e-Borders programme. We also note that a
full Regulatory Impact Assessment of that programme will be produced
and we should be grateful if the Minister would send us a copy
of the Assessment when it is available.
19.17 We have no further questions to put to the
Minister and we are satisfied that document (b) can now be cleared
from scrutiny. We also clear document (a), which has been superseded
by document (b).
17 (24513) 7161/03; see HC 63-xxix (2002-03), para
11 (10 July 2003). Back
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