28EU-Canada Agreement on Passenger Name Record Data
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Committee’s assessment |
Politically important |
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Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union |
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Document details |
Recommendation for a Council Decision authorising the opening of negotiations on an Agreement between the European Union and Canada for the transfer of Passenger Name Record (PNR) data to prevent and combat terrorism and other serious transnational crime |
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Legal base |
Articles 16(2), 87(2)(a) and 218(3) and (4) TFEU, QMV |
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Department |
Home Office |
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Document Number |
(39151), 13490/17 + ADD 1, COM(17) 605 |
Summary and Committee’s conclusions
28.1Canadian law requires air carriers operating passenger flights bound for Canada to provide the Canada Border Services Agency with electronic access to passenger name record (PNR) data—booking information on passengers held in air carriers’ reservation and departure control systems—before a flight arrives in Canada. The advance processing of PNR data is one of the tools used to identify individuals who may present a terrorist or other serious criminal threat. EU data protection law prohibits the transfer of personal data to third countries unless they ensure an adequate level of protection—in practice, protection “essentially equivalent” to that guaranteed within the European Union.453 A legal framework setting out the terms on which PNR data may be shared with the Canadian authorities is needed to provide legal certainty for air carriers that PNR transfers are lawful.
28.2Since March 2006, the transfer of PNR data to Canada has been governed by an Agreement between the EU and Canada (see the “Background” section of this chapter for further details). The Council authorised the Commission to negotiate a new PNR Agreement with Canada in 2010. A draft Agreement was signed in June 2014 but can only take effect once it has been approved by the Council and the European Parliament. In January 2015, the European Parliament asked the Court of Justice to determine whether the draft Agreement was compatible with the EU Treaties, including the provisions of the EU Charter of Fundamental Rights concerning respect for private life and the protection of personal data. In Opinion 1/15 issued in July, the Court ruled that the Agreement could not be concluded in its current form as some of its provisions were incompatible with fundamental rights. The Court identified the type of changes which would be needed to make a revised Agreement compatible with EU law.454
28.3The proposed Council Decision would authorise the Commission to re-open negotiations with Canada on those parts of the draft PNR Agreement found by the Court to be incompatible with EU law. As it cites legal bases in the Title V (justice and home affairs) provisions of the EU Treaties, the proposed Council Decision is subject to the UK’s Title V opt-in and will only be binding on the UK if the Government decides to opt in. Even if the Government decides not to opt in, it will be able to do so once negotiations have concluded and the Commission proposes further Council Decisions to sign and conclude a new EU-Canada PNR Agreement.
28.4The Immigration Minister (Brandon Lewis) makes clear that, until exit negotiations are concluded, “the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation”.455 He identifies two aspects of the Court’s Opinion which may affect the Government’s opt-in decision: the Court’s view that the Canadian authorities should (in most cases) only retain PNR data for as long as the individual concerned remains in Canada and that the onward transfer or disclosure of PNR data should only be permitted to a third (non-EU) country which has concluded a PNR Agreement with the EU or has obtained a Commission adequacy decision.
28.5The Minister is unable at this stage to confirm the date on which the three-month deadline for opting into the proposed Council Decision will expire (the date starts to run from the publication of the last language version) but undertakes to inform us once it is known.
28.6We ask the Minister to provide further information on the factors influencing the Government’s opt-in decision and the wider Brexit implications.
The Government’s opt-in decision
28.7The UK has so far participated fully in the negotiation of EU PNR Agreements with third countries (including, most recently, Mexico in June 2015). The proposed Council Decision would instruct the Commission to negotiate a new Agreement with Canada which contains all the safeguards specified in the Court’s Opinion. This leaves little or no scope to negotiate out any elements of the Court’s Opinion that the Government dislikes. We ask the Minister to clarify the Government’s concerns about the safeguards envisaged on the retention of PNR data and their onward transfer to third (non-EU) countries and explain whether he believes they can be resolved whilst still complying with the Court’s Opinion. We also ask him to confirm that changes will need to be made to the EU’s PNR Agreements with Australia and the United States of America and to indicate how soon he expects the renegotiation process to be started.
28.8Should the Government decide not to opt into the proposed Council Decision and any subsequent Decisions on the signature and conclusion of a new PNR Agreement with Canada (or other third countries), we ask the Minister to explain whether there would be a lawful basis for air carriers operating from the UK to continue to transfer PNR data.
Brexit implications
28.9The Minister does not tell us how the UK’s exit from the EU will affect its ability to share PNR data with third countries. We ask him to explain:
- whether the Government intends that existing EU PNR Agreements in which the UK participates should continue to apply during any transitional or implementation period following the UK’s withdrawal and what mechanism he envisages to ensure their continued application;
- what effect no deal or transitional/implementation period would have on transfers of PNR data to third countries currently covered by PNR Agreements with the EU;
- in the longer term, how much scope the UK would have to depart from the data protection requirements set out in EU PNR Agreements when negotiating its own agreements with third countries;
- whether he accepts that the data protection safeguards contained in these Agreements will materially affect the UK’s prospects in seeking to negotiate its own PNR Agreement with the EU or securing a Commission adequacy decision; and
- whether he also accepts that, whichever route the Government wishes to take, the Agreement or adequacy decision will need to comply with EU fundamental rights and the requirements set out in the Court’s recent Opinion.
28.10The proposed Council Decision remains under scrutiny. We ask the Minister to provide the information we have requested and to tell us when the three-month opt-in deadline will expire at the earliest opportunity so that we can consider whether to recommend an opt-in debate. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.
Full details of the documents
Recommendation for a Council Decision authorising the opening of negotiations on an Agreement between the European Union and Canada for the transfer of Passenger Name Record (PNR) data to prevent and combat terrorism and other serious transnational crime: (39151), 13490/17 + ADD 1, COM(17) 605.
Background
28.11Since March 2006, the transfer of PNR data to Canada has been governed by an Agreement between the EU and Canada which is based on a set of “Commitments” given by the Canada Border Services Agency concerning the application of its PNR programme.456 These Commitments were annexed to a Commission Decision confirming that the Canada Border Services Agency ensured an adequate level of protection for PNR data.457 The Commission adequacy decision expired in 2009. Transfers of PNR data since then have been based on an undertaking given by the Canada Border Services Agency to continue to apply the Commitments pending the negotiation and conclusion of a new EU-Canada PNR Agreement.
28.12In September 2010, the Commission published a Communication on the transfer of PNR data to third countries, accompanied by three recommendations which asked the Council to authorise the negotiation of new PNR Agreements with Australia, Canada and the United States of America. The Communication listed the criteria—including a set of basic principles for the protection of personal data—which should guide the EU in negotiating PNR Agreements with third countries.458 The Commission suggested that adherence to these criteria would lead to greater coherence, whilst also ensuring respect for privacy and the protection of personal data.
28.13The then Coalition Government made clear that “PNR agreements between the EU and third countries play a vital role in removing legal uncertainty for air carriers flying to those countries, and help to ensure that PNR information can be shared quickly and securely with all necessary data protection safeguards in place”. The Government opted into the negotiating mandates for the proposed PNR Agreements with Australia, Canada and the US in the belief that they would “pave the way for EU-third country agreements that strike the right balance between civil liberties, data protection and security of the EU”.459
The proposed Council Decision
28.14The Decision would authorise the Commission to open negotiations with Canada to agree a new framework for the transfer of PNR data which is based on “mutually acceptable terms” and meets the requirements set out in the Court’s recent Opinion.460 The negotiating Directives annexed to the proposed Decision (ADD 1) make clear that the negotiation only concerns those elements of the Agreement signed in 2014 which the Court found to be incompatible with EU law. The remaining elements of the Agreement would not be re-opened. The negotiations would be subject to Council oversight (through the appointment of a special committee which the Commission would be required to consult).
28.15As well as enhancing the security of Canada and providing legal certainty for air carriers, the Commission considers that a new PNR Agreement would “foster international law enforcement cooperation” and enable the EU to obtain analytical information obtained from the processing of PNR data by the Canada Border Services Agency.461
The Government’s Explanatory Memorandum of 1 November 2017
28.16The Minister wrote to the Committee in September providing his analysis of the Court’s Opinion.462 In summary, whilst the Court found that the transfer of PNR data to Canada and its subsequent processing and use to combat terrorism and other serious transnational crime was appropriate to ensure public security, it considered that some provisions of the Agreement signed in 2014 were insufficiently clear and precise and constituted an unnecessary interference with fundamental rights. The Minister explains that any interference with rights enshrined in the EU Charter of Fundamental Rights must comply with the requirements of necessity and proportionality, adding:
“The purpose of the Agreement to be negotiated is to set out the conditions for the transfer to Canada and use of PNR data to ensure the security and safety of the public and prescribe the means by which the data shall be protected.”463
28.17The Minister reiterates the Government’s commitment to taking all opt-in decisions “on a case-by-case basis, putting the national interest at the heart of the decision-making process” and says that in reaching a decision, the Government will have particular regard to the following aspects of the Court’s Opinion:
- the Canadian authorities should only retain PNR data for as long as an individual passenger remains in Canada; and
- the Canadian authorities should only disclose PNR data to a third (non-EU) country if that country has an equivalent PNR Agreement with the EU or a Commission adequacy decision covering the authority to which PNR data are to be disclosed.
Previous Committee Reports
None on this document. The following Reports on the signature and conclusion of the EU-Canada PNR Agreement are relevant: Thirteenth Report HC 83–xiii (2013–4), chapter 22 (4 September 2013), Twentieth Report HC 83–xix (2013–14), chapter 5 (30 October 2013) and Twenty-fourth Report HC 83–xxii (2013–14) chapter 17 (27 November 2013).
453 See p.2 of the Commission’s Explanatory Memorandum accompanying the proposed Council Decision.
454 See the press release issued on 26 July 2017 summarising the Court’s Opinion and the full Opinion.
455 See para 9 of the Minister’s Explanatory Memorandum.
456 See Council Decision 2006/230/EC and the annexed Agreement, OJ No. L 82, 21.03.2006.
457 See Commission Decision 2006/253/EC, OJ No. L 91, 29.03.2006.
458 See the European Scrutiny Committee’s Twelfth Report of Session 2010–11 agreed on 15 December 2010: HC 428–xi (2010–11), chapter 21 (15 December 2010).
459 See the Written Ministerial Statement of the then Minister for Immigration (Damian Green) issued on 20 December 2010.
460 See p.3 of the Commission’s explanatory memorandum accompanying the proposed Council Decision.
461 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Council Decision.
462 See the letter dated 25 September 2017 from the Immigration Minister (Brandon Lewis) to the Chair of the European Scrutiny Committee.
463 See para 6 of the Minister’s Explanatory Memorandum.
20 November 2017