European Scrutiny Committee Contents

6 Use of Passenger Name Records for law enforcement purposes



COM(11) 32

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Draft Directive on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime

Commission staff working paper: Impact Assessment

Commission staff working paper: Summary of Impact Assessment

Legal baseArticles 82(1)(d) and 87(2)(a) TFEU; co-decision; QMV
Document originated2 February 2011
Deposited in Parliament4 February 2011
DepartmentHome Office
Basis of considerationMinister's letter of 23 March 2011
Previous Committee ReportHC 428-xix (2010-11), chapter 1 (9 March 2011)
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background and previous scrutiny

6.1 At our meeting on 9 March,[27] we considered the Commission's proposal for a draft Directive which would establish harmonised rules on the collection, transmission and use of Passenger Name Record (PNR) data to help combat terrorism and other serious crime. PNR data is the term used to describe passenger information collected by air carriers which is held in their reservation and departure control systems. It includes personal information, such as name, contact details and means of payment used, as well as travel dates and itinerary, when and where the flight was booked, the seat number and baggage information.

6.2 The draft Directive would require air carriers flying into and out of (but not between) EU Member States to transfer the PNR data they have collected to a Passenger Information Unit in the Member State of arrival or departure. The data would be processed and assessed with a view to identifying individuals who may be involved in terrorism or serious transnational crime. The Commission believes that the lack of common EU rules creates a risk of fragmentation if, as seems likely, an increasing number of EU Member States adopt their own national measures which may diverge on such matters as the scope and purpose of the PNR system, the length of time for retaining PNR data, the modes of transport covered and the standards of data protection and security. These differences, the Commission suggests, are likely to result in "security gaps, increased costs and legal uncertainty for air carriers and passengers alike."[28]

6.3 The Government is a keen advocate of EU-wide rules on PNR but would like the draft Directive to go further. The Minister of State for Immigration (Damian Green) told us in his Explanatory Memorandum of 16 February that extending the scope of the draft Directive to include the collection and processing of PNR data for flights within the EU (intra-EU flights) was "vital to improving security and fighting crime within the EU and beyond."[29] He noted that the draft Directive was subject to the UK's opt-in and that the Government had until 2 May to decide whether or not to opt in. He set out the factors which the Government would take into account in reaching its decision. These included an assessment of the likelihood of securing amendments to the draft Directive during negotiations which would:

  • extend the scope of the Directive to include intra-EU flights;
  • allow the processing of PNR data for all terrorist or serious criminal offences, not just those with a transnational dimension;
  • extend the period during which PNR data could be retained; and
  • allow the use of sensitive data (that is, data revealing an individual's race or ethnic origin, religious of philosophical belief, political opinion, trade union membership, health or sexual life) in exceptional circumstances.

6.4 We noted that the draft Directive would interfere with individuals' right to privacy and to protection of their personal data and that the issue, therefore, was whether such interference was justified in light of the objective of the proposal to enhance internal security within the European Union. We asked for the Minister's views on a number of issues, including:

  • whether he considered that the blanket obligation which the draft Directive would impose on air carriers to collect and transmit PNR data on all international flights to and from EU Member States was necessary and proportionate;
  • whether the UK's own PNR system — eBorders — imposed a similar obligation;
  • whether the Government, by advocating the use of PNR data regardless of any transnational dimension, risked diminishing the justification for action at EU level while also increasing the degree of encroachment on individuals' privacy;
  • whether he had consulted the Information Commissioner on the content of the draft Directive, as well as the Government's proposed changes, and to inform us of his views; and
  • what implications a decision to opt into the draft Directive would have for the UK's eBorders system and, in particular, whether the UK would be able to collect and use PNR data for intra-EU flights flying into or out of the UK, and whether the data could continue to be used for immigration purposes.[30]

6.5 We decided to hold the draft Directive under scrutiny but also recommended a debate in European Committee B on the Government's opt-in decision.

The Minister's letter of 23 March 2011

6.6 The Minister (Damian Green) tells us that the draft Directive would require blanket coverage of all international flights to and from the EU, but adds:

"[...] our experience from eBorders and also from manually utilising PNR data over a number of years has shown that certain routes pose a higher risk than others. We advocate that the Directive, rather than providing for blanket coverage on extra-EU routes, should provide for operational flexibility so that Member States only collect PNR on their highest risk routes, be they intra- or extra-EU routes. This enhances the proportionality of collecting PNR. The Government is actively lobbying other Member States on this point."

6.7 The Minister says that the Government intends to consult the Information Commissioner and will provide us with details of his views.

6.8 The Minister explains why he believes that limiting the processing of PNR data, in certain circumstances, to serious crime which is transnational in nature may be unworkable:

"The draft Directive proposes that PNR can be used for watchlisting and post-incident investigation of serious crime (be it within a country or cross-border in nature) (art 4(b) and 4(c)). It also permits the use of this data to allow real time risk assessment and trend analysis of serious transnational crime (but not for purely domestic offences, such as rape or a 'crime passionel' murder) (art 4(a) and 4(d)). The Commission's rationale for drawing such a distinction is that real time assessment and trend analysis is only really of use for cross-border crimes, such as smuggling or people trafficking, where Governments are looking to screen passengers crossing the border to identify criminal behaviour. Conversely, the Commission takes the view that this is not useful in the investigation of a particular, wholly-domestic offence. I think that this fine distinction is likely to be unworkable in practice, and will lead to confusion. For example, a domestic murder perpetrated by an organised crime group with international links may have a strong cross-border dimension and there may be circumstances where the investigation may require real time risk assessment or trend analysis."

6.9 As regards the implications that a decision to opt into the draft Directive would have for the UK's ability to collect and use PNR data for intra-EU flights and for immigration purposes, the Minister refers to Recital 28 of the draft Directive, and adds:

"While this recital clearly envisages that collecting data on flights internal to the EU is possible under EU law, we are seeking to amend the Directive so that it provides a legal basis for compelling carriers to provide intra-EU PNR according to the planned risk-based rollout of eBorders. This would ensure that the collection of this PNR data is both effective and enforceable.

"If the UK opted into the Directive as drafted, then it can process PNR data for immigration purposes where these were caught by the definitions of terrorism, transnational or serious crime in Articles 2(g), (h) and (i) of the Directive.

"This would mean that immigration offences such as people trafficking would be caught as these carry sentences in excess of three years, but that immigration offences such as illegal entry and overstaying would not. We interpret Articles 5(4) and (5) as meaning that where an offence which is not caught by a definition in the Directive is uncovered whilst data is processed for an offence which is caught, enforcement action may still be taken. In addition, the UK could also rely on the reference in recital 28 to 'purposes other than those specified in the Directive' to collect PNR for immigration purposes but, as with the position on intra-EU PNR, this recital does not provide a clear legal base for compelling the collection of PNR data for these purposes which would be enforceable."

6.10 The Minister concludes by telling us that he will keep the Committee informed of progress made during negotiations.


6.11 We thank the Minister for his response. As indicated in our earlier Report on the subject, we think that balancing the public interest in preventing and detecting terrorism and other serious crime, on the one hand, while avoiding any unjustified and disproportionate encroachment on the privacy of individuals, on the other, will be the key issue in further negotiations. We therefore look forward to receiving details of the Information Commissioner's views as soon as possible. We also ask the Minister to inform us as soon as the Government has decided whether it intends to opt in, and to keep us updated on the progress of negotiations. In the meantime, the draft Directive remains under scrutiny.

27   Seeheadnote. Back

28   See p. 4 of the Commission's explanatory memorandum accompanying the draft Directive.  Back

29   See para 24 of the Minister's Explanatory Memorandum.  Back

30   We referred specifically to recital 28 of the draft Directive which provides: "this Directive does not affect the possibility for Member States to provide, under their domestic law, for a system of collection and handling of PNR data for purposes other than those specified in this Directive, or from transportation providers other than those specified in the Directive, regarding internal flights subject to compliance with relevant data protection provisions, provided that such domestic law respects the Union acquis." Back

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Prepared 7 April 2011