APPENDIX 6: 2006 INTERIM AGREEMENT
Agreement between the European Union and the United
States of America on the processing and transfer of passenger
name record (PNR) data by air carriers to the United States Department
of Homeland Security [81]
THE EUROPEAN UNION and THE UNITED STATES OF AMERICA,
DESIRING to prevent and combat terrorism and transnational
crime effectively as a means of protecting their respective democratic
societies and common values,
RECOGNISING that, in order to safeguard public security
and for law enforcement purposes, rules should be laid down on
the transfer of Passenger Name Record (PNR) data by air carriers
to the Department of Homeland Security (hereinafter DHS). For
the purposes of this Agreement, DHS means the Bureau of Customs
and Border Protection, US Immigration and Customs Enforcement
and the Office of the Secretary and the entities that directly
support it, but does not include other components of DHS such
as the Citizenship and Immigration Services, Transportation Security
Administration, United States Secret Service, the United States
Coast Guard, and the Federal Emergency Management Agency,
RECOGNISING the importance of preventing and combating
terrorism and related crimes, and other serious crimes that are
transnational in nature, including organised crime, while respecting
fundamental rights and freedoms, notably privacy,
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 DHS with electronic access
to PNR data to the extent that they are collected and contained
in the air carrier's automated reservation/departure control systems
(hereinafter "reservation systems"),
HAVING REGARD to Article 6(2) of the Treaty on European
Union on respect for fundamental rights, and in particular to
the related right to the protection of personal data,
HAVING REGARD to relevant provisions of the Aviation
Transportation Security Act of 2001, the Homeland Security Act
of 2002, the Intelligence Reform and Terrorism Prevention Act
of 2004 and Executive Order 13388 regarding cooperation between
agencies of the United States Government in combating terrorism,
HAVING REGARD to the Undertakings as published in
the US Federal Register[82]
and implemented by DHS,
NOTING that the European Union should ensure that
air carriers with reservation systems located within the European
Union arrange for transmission of PNR data to DHS 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 or negotiations between
the United States and the European Union, or between either of
the Parties and any State regarding the processing and transfer
of PNR or 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 European Union to the United States,
NOTING that in reliance on this Agreement, the EU
confirms that it will not hinder the transfer of PNR data between
Canada and the United States and that the same principle will
be applied in any similar agreement on the processing and transfer
of PNR data,
HAVE AGREED AS FOLLOWS:
(1) In reliance upon DHS's continued implementation
of the aforementioned Undertakings as interpreted in the light
of subsequent events, the European Union shall ensure that air
carriers operating passenger flights in foreign air transportation
to or from the United States of America process PNR data contained
in their reservation systems as required by DHS.
(2) Accordingly, DHS will electronically access the
PNR data from air carriers' reservation systems located within
the territory of the Member States of the European Union until
there is a satisfactory system in place allowing for transmission
of such data by the air carriers.
(3) DHS 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.
(4) The implementation of this Agreement shall be
jointly and regularly reviewed.
(5) In the event that an airline passenger information
system is implemented in the European Union or in one or more
of its Member States that requires air carriers to provide authorities
with access to PNR data for persons whose 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.
(6) For the purpose of applying this Agreement, DHS
is deemed to ensure an adequate level of protection for PNR data
transferred from the European Union concerning passenger flights
in foreign air transportation to or from the United States.
(7) This Agreement shall enter into force on the
first day of the month after the date on which the Parties have
exchanged notifications indicating that they have completed their
internal procedures for this purpose. This Agreement shall apply
provisionally as of the date of signature. Either Party may terminate
or suspend this Agreement at any time by notification through
diplomatic channels. Termination shall take effect thirty (30)
days from the date of notification thereof to the other Party
This Agreement shall expire upon the date of application of any
superseding agreement and in any event no later than 31 July 2007,
unless extended by mutual written agreement.
This Agreement is not intended to derogate from or
amend legislation of the United States of America or the European
Union or its Member States. This Agreement does not create or
confer any right or benefit on any other person or entity, private
or public.
This Agreement shall be drawn up in duplicate in
the English language. It shall also be drawn up in the Czech,
Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian,
Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak,
Slovenian, Spanish and Swedish languages, and the Parties shall
approve these language versions. Once approved, the versions in
these languages shall be equally authentic.
Done at Luxembourg on 16 October 2006
and at Washington D.C. on 19 October 2006.
For the European Union
E. TUOMIOJA
Minister for Foreign Affairs
President of the Council of the European Union
For the United States of America
Secretary Michael CHERTOFF
Department of Homeland Security
81 OJ L298, 27.10.2006, p 30. Back
82
Vol. 69, No 131, p. 41543. Back
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