APPENDIX 5: 2004 AGREEMENT
Agreement between the European Community and the
United States of America on the processing and transfer of PNR
data by air carriers to the United States Department of Homeland
Security, Bureau of Customs and Border Protection [79]
THE EUROPEAN COMMUNITY AND THE UNITED STATES OF AMERICA,
RECOGNISING the importance of respecting fundamental
rights and freedoms, notably privacy, and the importance of respecting
these values, while preventing and combating terrorism and related
crimes and other serious crimes that are transnational in nature,
including organised crime,
HAVING REGARD to US statutes and regulations requiring
each air carrier operating passenger flights in foreign air transportation
to or from the United States to provide the Department of Homeland
Security (hereinafter "DHS"), Bureau of Customs and
Border Protection (hereinafter "CBP") with electronic
access to Passenger Name Record (hereinafter "PNR")
data to the extent it is collected and contained in the air carrier's
automated reservation/departure control systems,
HAVING REGARD to Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the protection
of individuals with regard to the processing of personal data
and on the free movement of such data, and in particular Article
7(c) thereof,
HAVING REGARD to the Undertakings of CBP issued on
11 May 2004, which will be published in the Federal Register (hereinafter
"the Undertakings"),
HAVING REGARD to Commission Decision C (2004) 1799
adopted on 17 May 2004, pursuant to Article 25(6) of Directive
95/46/EC, whereby CBP is considered as providing an adequate level
of protection for PNR data transferred from the European Community
(hereinafter "Community") concerning flights to or from
the US in accordance with the Undertakings, which are annexed
thereto (hereinafter "the Decision"),
NOTING that air carriers with reservation/departure
control systems located within the territory of the Member States
of the European Community should arrange for transmission of PNR
data to CBP as soon as this is technically feasible but that,
until then, the US authorities should be allowed to access the
data directly, in accordance with the provisions of this Agreement,
AFFIRMING that this Agreement does not constitute
a precedent for any future discussions and negotiations between
the United States and the European Community, or between either
of the Parties and any State regarding the transfer of any other
form of data,
HAVING REGARD to the commitment of both sides to
work together to reach an appropriate and mutually satisfactory
solution, without delay, on the processing of Advance Passenger
Information (API) data from the Community to the US,
HAVE AGREED AS FOLLOWS:
(1) CBP may electronically access the PNR data from
air carriers' reservation/departure control systems ("reservation
systems") located within the territory of the Member States
of the European Community strictly in accordance with the Decision
and for so long as the Decision is applicable and only until there
is a satisfactory system in place allowing for transmission of
such data by the air carriers (2) Air carriers operating passenger
flights in foreign air transportation to or from the United States
shall process PNR data contained in their automated reservation
systems as required by CBP pursuant to US law and strictly in
accordance with the Decision and for so long as the Decision is
applicable.
(2) Air carriers operating passenger flights in foreign
air transportation to or from the United States shall process
PNR data contained in their automated reservation systems as required
by CBP pursuant to US law and strictly in accordance with the
Decision and for so long as the Decision is applicable.
(3) CBP takes note of the Decision and states that
it is implementing the Undertakings annexed thereto.
(4) CBP shall process PNR data received and treat
data subjects concerned by such processing in accordance with
applicable US laws and constitutional requirements, without unlawful
discrimination, in particular on the basis of nationality and
country of residence.
(5) CBP and the European Commission shall jointly
and regularly review the implementation of this Agreement.
(6) In the event that an airline passenger identification
system is implemented in the European Union which requires air
carriers to provide authorities with access to PNR data for persons
whose current travel itinerary includes a flight to or from the
European Union, DHS shall, in so far as practicable and strictly
on the basis of reciprocity, actively promote the cooperation
of airlines within its jurisdiction.
(7) This Agreement shall enter into force upon signature.
Either Party may terminate this Agreement at any time by notification
through diplomatic channels. The termination shall take effect
ninety (90) days from the date of notification of termination
to the other Party. This Agreement may be amended at any time
by mutual written agreement.
(8) This Agreement is not intended to derogate from
or amend legislation of the Parties; nor does this Agreement create
or confer any right or benefit on any other person or entity,
private or public.
This Agreement is drawn up in duplicate in the Czech,
Danish, Dutch, English, Estonian, Finnish, French, German, Greek,
Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese,
Slovak, Slovenian, Spanish and Swedish languages, each text being
equally authentic. In case of divergence, the English version
shall prevail.
Signed at …. , on … [80]
for the European Community
for the United States of America
Tom RIDGE
Secretary of the United States Department of Homeland
Security
79 OJ L183, 20.5.2004, p 84. Back
80
The Agreement was signed at Washington D.C. on 28 May 2004. Back
| 
