EU: Spain proposes data on all airline passengers to be sent to law enforcement agencies and for extra checks on all foreign nationals entering the EU



Updated 28.3.03

The Spanish government has put forward a proposal for an EC Council Directive requiring "carriers" (airlines and shipping lines) to collect and send data on all passengers "at the time of boarding" to the law enforcement agencies of the destination country. Airlines and shipping companies will also have to carry checks on all foreign nationals who fail to leave the EU on the return flight ticket date or who have not continued their journey to a non-EU state. For each passenger for whom data is not provided (or where the data communicated is incorrect) carriers face fines of between 3,000-5,000 euro and the possibility of the seizure of their means of transport and/or the suspension of their operating licence.

On 12 March the European Parliament adopted a highly critical resolution by an enormous majority on the proposal that passenger data should be handed over the the USA (for the debate and text of the Resolution see below).

Tony Bunyan, Statewatch editor, comments:

"This is a draconian proposal which would mean that all travellers, whether within the EU or coming from outside, whether by ship or plane, would be run through security checks which might lead to them being refused entry to their destination or even refused permission to board at all.

The idea that airlines should act as surveillance agencies to track the movements of foreign nationals and inform the "authorities" if they do not leave on time would give them a law enforcement role.

This would introduce the wholesale surveillance of everyone's movements in the EU. If adopted, one of the four founding principles of the EU, that of free movement (checks on internal travel) will be buried for ever"

The proposed Directive


The proposed Directive, which if adopted would have to be transposed into national law in every EU member state, would (under Article 1) make it obligatory for all carriers (air and shipping companies based in the EU) to supply the "authorities responsible for carrying out border checks" (immigration, police and internal security agencies) details on:

1. all passengers "at the time of boarding" (that is, literally all passengers whether travelling inside the EU or outside)

2. the same "authorities" must also be informed by the carriers if a "foreign national" does not leave on the date specified on their return ticket, that is:

"returned to their country of origin or have not continued their journey to a third country"

This would mean that airlines and shipping companies would be responsible for informing the "authorities" of each and every failure of passengers who do not leave the EU on the stated date of their return ticket - and this information has to be suuplied within 48 hours of the failure to travel or they would face sanctions.

The data supplied will be the passport number, nationality, first and family name and date of birth.

Article 2 says that fines of between 3,000-5,000 euro will be imposed: "for each journey for which passenger data were not communicated or were communicated incorrectly". In addition carriers could face "other sanctions" such as "seizure and confiscation of the means of transport" or suspension of their operating licence.

Article 4 on "data processing" says that the personal data shall be communicated for the purpose of "carrying out checks on persons at external borders" and after the checks have been completed the data will be deleted.

Comments:

1. There is no mentioned whatsoever of the data protection rights of the individual. No mention of how the data provided for one purpose will be used, added to, or passed on by the "authorities" (the law enforcement agencies).

2. The original proposal by Spain was for the communication of passenger travel data within the EU. This proposal talks of the need to combat "illegal immigration" (Recital 1) but refers to "detailed and comprehensive checks to be carried out on all passengers" (Recital 5). Article 4 (data processing) refers to "external borders" but Article 1.a. only refers to "border checks" (ie: internal EU borders as well as external borders).

3. It is not limited to issues of entry across the external borders (Art 62.2.a. TEC) and illegal immigration (Art 63.3.b. TEC), because it covers all flights and all persons.

4. It appears to cover flights to third countries, whereas 63.3.b should be read as to cover only illegal immigration to or within the EU, or at most illegal transit through the EU or a reciprocal treaty governing illegal immigration movements as between the EC and a third party.

5. Since it affects free movement of EC nationals, it needs a legal base in the free movement parts of the Treaty plus it has to be justified as a derogation from free movement rights.

6. It is an amendment to the data protection directive without using the proper legal basis

7. It deals with data protection issues but makes no reference to rights for data subjects; it therefore violates the ECHR, the EU Charter of Rights and the general principles of EC law which clearly require such measures to be guaranteed.

Full-text of: "Initiative of the Kingdom of Spain with a view to adopting a Council Directive on the obligation of carriers to communicate passenger data":
7161/03 (pdf), dated 25.3.03.

Background documentation


1. Massive majority in European Parliament against deal with US on access to passenger data: EP vote

2. Full-text of report for the Committee on Citizens' Freedoms and Rights, 6.3.03: Text

3. How US Customs bounced the European Commission into a quick decision

4. Full-text: Mr Rodota's letter (pdf)

5. Full-text: European Commission/US Customs talks on PNR transmission, Brussels, 17/18 February: Joint Statement (html)

6. Statewatch report 27.2.03:
EU Working Party report on passenger data access by USA

7. Full text of : Article 29 Data Protection Working Party: Opinion 6/2002 on transmission of Passenger Manifest Information and other data from Airlines to the United States, adopted 24 October 2002, doc no: 11647/02/EN, WP 66 (pdf).

8. Statewatch report 26.2.03: US Customs to have direct access to EU airlines reservations databases

9. Statewatch report 13.2.03: European Commission caves in to US demands for airline passenger lists



Statewatch News online | Join Statewatch news e-mail list | Statewatch websites