2010/1 1:JuU6 Opinion of the Committee on Justice 2010/11:JuU6 Strategy for transfers of PNR data to third countries Summary In this opinion, the Committee discusses the European Commission’s communication of 21 September 2010 on a global approach to transfers of Passenger Name Record (PNR) data to third countries, COM(2010) 492. The key objective of the communication is to establish a set of principles which should form the basis of future negotiations on PNR agreements with third countries. The communication contains details of the reasons why law enforcement authorities should have controlled access to PNR data and the criteria to be applied to safeguard the right to privacy and protect the data against improper use, and the criteria to be applied to reviews, etc. The communication does not specify exact retention periods or any detailed review mechanisms. The stated principles, standards and criteria should be reflected in the negotiating guidelines to be drawn up before any negotiations, and ultimately in the agreements. The Committee welcomes the strategy and finds it a positive sign that a set of general criteria is now being defined which should form the basis of future negotiations on PNR agreements with third countries. The Committee stresses the importance of ensuring that the agreements state exactly what information is to be transferred and for what purpose it may be used. The Committee also considers that the retention periods for the data should be kept to a minimum, and stresses the importance of the restrictions imposed on transfers of information to other authorities and third countries. Finally, the Committee stresses the importance of monitoring how any agreements are implemented. The Committee is pleased to note that the communication offers the flexibility to allow every agreement to be adapted to address each country’s particular security problems and national legal system. At the same time, the Committee wishes to underline the need to consider both data protection issues and fundamental rights when entering into any agreement. A note setting out points of disagreement (Green Party and Left Party) is appended to the Committee’s opinion. 1 2010/1 1:JuU6 Contents Summary ........................................................................................................................... 1 The Committee’s proposal regarding the Riksdag’s decision ........................................... 3 Overview of the matter...................................................................................................... 4 The matter and its preparation ...................................................................................... 4 Background ................................................................................................................... 4 Key contents of the document ....................................................................................... 5 The Committee’s examination........................................................................................... 8 Note setting out points of disagreement .......................................................................... 10 Strategy for transfers of PNR data to third countries – reasoning (Green Party, Left Party) ...................................................................................................................... 10 Annex 1 List of proposals discussed.............................................................................................. 11 Annex 2 Comments from other committees................................................................................... 12 2 2010/1 1:JuU6 The Committee’s proposal regarding the Riksdag’s decision Strategy for transfers of PNR data to third countries The Committee proposes that the Riksdag take note of the Committee’s opinion. Note setting out points of disagreement (Green Party, Left Party) — reasoning Stockholm, 20 January 2011 For the Committee on Justice Morgan Johansson The following Committee members participated in the decision: Morgan Johansson (Social Democratic Party), Johan Linander (Centre Party), Krister Hammarbergh (Moderate Party), Ewa Thalén Finné (Moderate Party), Kerstin Haglö (Social Democratic Party), Ulrika Karlsson i Uppsala (Moderate Party), Christer Adelsbo (Social Democratic Party), Helena Bouveng (Moderate Party), Elin Lundgren (Social Democratic Party), Anna Wallén (Social Democratic Party), Arhe Hamednaca (Social Democratic Party), Patrick Reslow (Moderate Party), Maria Ferm (Green Party), Caroline Szyber (Christian Democrats), Kent Ekeroth (Sweden Democrats), Roger Haddad (Liberal People's Party) and Marianne Berg (Left Party). 3 2010/1 1:JuU6 Overview of the matter The matter and its preparation On 3 November 2010, in accordance with Chapter 10, Section 5, of the Riksdag Act [Riksdagsordningen], the Chamber referred the Commission’s communication of 21 September 2010 on a global approach to transfers of Passenger Name Record (PNR) data to third countries, COM(2010) 492, to the Committee on Justice for comment. The Government Offices of Sweden [Regeringskansliet] drew up a memorandum on the communication (2010/11:FPM18). The Committee on Justice held a meeting with the Government concerning the Commission communication on 19 October 2010 (minutes of the Committee on Justice 2010/11: 3). The Committee on Justice gave the Committee on the Constitution the opportunity to comment on the Commission’s communication. The Committee on the Constitution submitted its comments on 9 December 2010. Background PNR stands for Passenger Name Records, which are unconfirmed details provided by air passengers and collected by carriers to enable them to handle bookings and check-in procedures. The information in booking systems may include details of the date of travel, the route, name, telephone number, travel agency, payment, seat number and luggage. Terrorist attacks in the past decade have led to fresh initiatives to improve security. International organised crime has also increased, particularly the trade in drugs and in human beings. That is why law enforcement authorities in many countries have started to gather and analyse PNR data in order to fight terrorism and serious international crime. Under EU law, it is not permissible for carriers flying out of the EU to transmit information on their passengers to a third country if there is inadequate protection for these personal details. One way of guaranteeing adequate safeguards is through binding international agreements. The Commission presented an overall EU strategy for transfers of PNR data in January 2003. On this basis, the EU signed agreements on the use of PNR data with Canada (2005), the USA (2007) and Australia (2008). In 2007, the Commission also presented a proposal for a framework decision on the use of PNR data within the EU for law enforcement purposes. The framework decision was discussed in the Council until the Lisbon Treaty entered into force in December 2009. The Commission then withdrew the proposed framework decision in order to return with a fresh proposal on a different legal basis reflecting the new Treaty. The Commission announced that it would be presenting this proposal in the near future. In September 2010, the Commission presented the revised overall EU strategy which is now the subject of these comments from the Committee on Justice. The strategy includes general principles which should form the basis of future negotiations with third countries on transfers of PNR data. Along with the strategy, the Commission proposed that fresh agreements should be negotiated with Canada, the USA and Australia instead of allowing the three provisional agreements to remain in force until further notice. At its meeting on 2–3 December 2010, the Council of the European Union authorised the Commission to initiate such negotiations. 2010/1 1:JuU6 DESCRIPTION OF THE MATTER Key contents of the document In its communication, the Commission states that developments indicate that the use of PNR data is growing and is increasingly seen as a mainstream and necessary aspect of law enforcement work. In the next few years, more and more countries are likely to develop PNR systems. The use of PNR data raises important issues with respect to the fundamental rights to the protection of private life and to the protection of personal data. This means that the EU needs to address the issue of international transfers of PNR data. In light of this, the Commission has seen a need to review it overall strategy for transfers of PNR data to third countries. The key objective of the Commission communication is to establish a set of general criteria which should form the basis of future negotiations on PNR agreements with third countries. Such negotiations should take account of all the general criteria defined in the communication, with the option to add further criteria from any recommendation from the Commission concerning the initiation of negotiations on PNR agreements with third countries. The Commission believes that the communication remains sufficiently flexible and adaptable to each third country's particular security concerns and national legal system. The communication can be split into five sections, as the Government has done in its explanatory memorandum: the use of PNR data; reasons why this is a necessary tool; the thinking behind the strategy; the fundamental principles; and finally, a forward-looking summary. Use of PNR data The Commission stresses that PNR information has