Twentieth Report of Session 2019–21 Contents

11Review of EU rules on the use of Passenger Name Record (PNR) data152

These EU documents are politically important because:

  • they illustrate differences in the European Commission’s approach to internal PNR policy, governed by the EU’s PNR Directive (which applies in the UK until the post-exit transition period ends on 31 December 2020), and its external PNR policy, governed by a series of agreements with third countries; and
  • they are relevant to the future relationship negotiations between the EU and the UK which include arrangements for the continued transfer and processing of PNR data for law enforcement purposes.

Action

  • Write to the Security Minister (Rt Hon. James Brokenshire MP) noting that we have not received the progress report requested by our predecessor Committee on the partial renegotiation of the EU’s proposed PNR Agreement with Canada and seeking further information on the prospects for an EU/UK PNR Agreement to take effect at the end of the post-exit transition period.
  • Draw to the attention of the Committee on the Future Relationship with the European Union, the Home Affairs Committee and the Justice Committee.

Overview

11.1This European Commission report — document (a) — sets out the findings of a review of the EU Passenger Name Record (“PNR”) Directive which Member States were required to implement in their national laws by 25 May 2018. The Directive, adopted in 2016, establishes common rules on the collection, processing and retention of PNR data so that they can be used by law enforcement authorities to combat serious crime and terrorism while also ensuring that there are robust safeguards to protect personal data and the right to privacy. The UK chose to participate in the PNR Directive and will remain bound by its provisions until the post-exit transition period ends on 31 December 2020. The EU and the UK are keen to establish reciprocal arrangements for exchanging PNR data after transition,153 when the Directive will cease to apply to the UK, and both have included provisions on PNR in their draft legal texts on future law enforcement cooperation.154

11.2As well as examining how Member States have implemented and are applying the PNR Directive, the Commission also considers whether the scope of the Directive (currently limited to passenger data collected by air carriers) should be extended to other forms of international transport (maritime, road and rail) or to non-carrier economic operators (such as travel agencies and tour operators) and, in light of the COVID-19 pandemic, whether the purposes for which PNR data may be used should be expanded to assist in tackling the spread of infectious diseases and to protect public health.

11.3The Commission concludes that the application of the Directive in the two years since Member States were required to implement it in their national laws has been generally “positive” and sees no need for it to be revised at this stage. Although the Directive only requires Member States to apply its provisions to flights to and from third (non-EU) countries, all bar one have chosen to apply it to intra-EU flights (between two EU countries). The Commission therefore sees no need to make its application to intra-EU flights mandatory. It says that other possible changes, such as the inclusion of other modes of transport or economic operators, data quality improvements, or the use of PNR data for wider public health purposes, would require a thorough assessment of their legal, financial and technical impact and their implications for fundamental rights.

11.4Any future changes will also need to take account of the outcome of two references to the EU Court of Justice (CJEU) for preliminary rulings relating to the PNR Directive, one from the Belgian Constitutional Court, the other from the Cologne District Court. The Commission recalls that a CJEU Opinion issued in July 2017 led to the renegotiation of a proposed PNR Agreement between the EU and Canada because some if its provisions were found to be incompatible with the EU Charter of Fundamental Rights.155 The time limits governing the retention of PNR data were one of the areas of concern highlighted by the Court. It determined that the systematic retention of the PNR data of all air passengers for up to five years, as envisaged in the draft Agreement, was not strictly necessary to protect public security. According to the Commission, negotiations on a revised draft Agreement have been completed and it is awaiting legal review and political endorsement by the Canadian authorities.

11.5The PNR Directive also authorises the retention of the PNR data of all air passengers for up to five years. The Commission is careful to draw a clear distinction between the EU’s internal PNR policy, governed by the Directive, and its external PNR policy, governed by a series of agreements with third countries.156 It considers that “the factual and legal circumstances of the PNR Directive are different” from those considered by the Court in its Opinion on the proposed EU/Canada Agreement, adding that:

[…] the PNR Directive clearly seeks the objective of ensuring security in the Union and its area without internal borders, where the Member States share responsibility for public security. In addition, unlike the draft agreement with Canada, the Directive does not concern data transfers to a third country, but the collection of passenger data on flights to and from the EU by the Member States. In this respect, the nature of the PNR Directive as secondary law means that it is applied under the control of the national courts of the Member States and, in the final instance, of the Court of Justice. Furthermore, national laws implementing the [EU Data Protection] Law Enforcement Directive also apply to the processing of data provided for in the PNR Directive, including any subsequent processing by competent authorities.

The Government’s position

11.6In his Explanatory Memorandum of 21 August 2020, the Minister for Security (Rt Hon. James Brokenshire MP) confirms that the UK remains bound by the EU PNR Directive until the end of the transition period and that it has been given effect in the UK by the Passenger Name Record Data and Miscellaneous Amendments Regulations 2018.157 He says that the Government “takes note” of the Commission’s findings resulting from its review of the PNR Directive but, as no amendments are proposed, considers that the report has no legal, policy or financial implications for the UK.

11.7In a separate letter of 1 September 2020, the Minister recalls that we continue to hold under scrutiny a proposal for a Council Decision (adopted in December 2017) authorising the Commission to renegotiate those elements of the proposed EU PNR Agreement with Canada that the CJEU determined were incompatible with the EU Charter of Fundamental Rights — document (b). He says that negotiations began in June 2018 and were completed at a technical (official) level in March 2019. The revised PNR Agreement “is currently pending Canada’s legal review and political endorsement of the text” and is unlikely to be finalised and take effect before the post-exit transition period ends on 31 December 2020. The Minister therefore asks us to clear the Council Decision from scrutiny, not least because further Council Decisions will be necessary to sign and conclude the Agreement.

Action

11.8Write to the Minister noting that we have not received the progress report requested by our predecessor Committee on the partial renegotiation of the EU’s proposed PNR Agreement with Canada and seeking further information on the prospects for an EU/UK PNR Agreement to take effect at the end of the post-exit transition period.

Letter to the Minister for Security (Rt Hon James Brokenshire MP), Home Office

The European Scrutiny Committee has considered the Commission report on Member States’ implementation and application of the EU PNR Directive, your accompanying Explanatory Memorandum of 21 August 2020, and your letter of 1 September 2020 concerning a Council Decision authorising the Commission to renegotiate parts of a proposed EU PNR Agreement with Canada which were found by the Court of Justice (CJEU) to be incompatible with the EU Charter of Fundamental Rights.158

In your letter, you ask us to clear from scrutiny the proposed Council Decision which was last considered by our predecessor Committee in February 2018. We are content to do so while recalling that the (then) Government considered it “essential” for the UK to opt into the proposal to influence the Council’s position on negotiations with Canada, given that the outcome could potentially set a precedent for a future PNR agreement between the EU and the UK.159 Our predecessors decided to hold the proposed Council Decision under scrutiny (even though it had been adopted) in the expectation that the Government would provide progress reports on the negotiations. We have had none.

Turning to the Commission report, we are struck by the Commission’s view that “the factual and legal circumstances of the PNR Directive are different” from those considered by the Court in its Opinion on the proposed EU/Canada PNR Agreement and that (implicitly) a longer data retention period may be permissible for the sharing of PNR data amongst EU Member States than with non-EU third countries. We would be interested to hear whether you share the Commission’s view, how it has affected the changes made to the revised EU PNR Agreement with Canada, and what implications these changes may have for the sharing of PNR data between the EU and the UK after transition.

We note that the Commission does not support further changes to the EU PNR Directive at this stage, underlining the need to focus instead on its effective implementation and application by all Member States. Do you consider that the Commission’s position makes it less likely that the EU will agree to the transfer and processing of PNR data collected by rail and sea transport operators, as envisaged in Part Three of the UK’s draft agreement on law enforcement and judicial cooperation in criminal matters?

The EU’s amended draft text on law enforcement and judicial cooperation in criminal matters sets a number of conditions for the UK to meet before the EU will agree to the transfer of PNR data. They include obtaining two “data adequacy decisions”, one under the EU’s General Data Protection Regulation and one under the EU’s Law Enforcement Data Protection Directive, as well as agreeing to remain bound by the European Convention on Human Rights (ECHR) and continuing to give effect to its provisions in national law. Do you consider that meeting these conditions would make it easier for the UK to secure a more ambitious PNR agreement with the EU, on terms similar to the EU PNR Directive, than has been the case for other third countries, such as Australia, Canada or the US?

We look forward to receiving your response within ten working days.


152 (a) European Commission report on the review of Directive (EU) 2016/681 on the use of PNR data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime; Council number 9954/20 + ADD 1; COM(20) 305; Legal base —; Dept: Home Office; Devolved Administrations: Consulted; ESC number 41425.
(b) Recommendation for a Council Decision authorising the opening of negotiations on an Agreement between the EU and Canada for the transfer of Passenger Name Record (PNR) data to prevent and combat terrorism and other serious transnational crime; Council number 13490/17 + ADD 1; COM(17) 605; Legal base: Articles 16(2), 87(2)(a) and 218(3) and (4) TFEU, QMV; Dept: Home Office; Devolved Administrations: Consulted; ESC number 39151.

154 See chapter three of the amended draft text presented by the Commission on 14 August 2020 and part three of the UK’s draft agreement on law enforcement and judicial cooperation in criminal matters.

155 See Opinion 1/15 of the CJEU issued on 26 July 2017.

156 The EU has concluded PNR Agreements with Australia and the United States—both may require further review and evaluation in light of the CJEU’s Opinion on the proposed EU PNR Agreement with Canada. The Council has authorised the Commission to open negotiations with Japan. Negotiations with Mexico are “at a standstill”.

158 See Opinion 1/15 issued on 26 July 2017.

159 See our Thirteenth Report HC 301–xiii (2017–19), chapter 2, 7 February 2018.




Published: 16 September 2020