COUNCIL DECISION

of 18 July 2005

on the conclusion of an Agreement between the European Community and the Government of Canada on the processing of API/PNR data

(2006/230/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof, in conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1) On 7 March 2005 the Council authorised the Commission to negotiate on behalf of the Community an Agreement with Canada on the processing and transfer of Advance Passenger Information (API) and Passenger Name Record (PNR) data by air carriers to the Canada Border Services Agency (CBSA).

(2) The Agreement should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement between the European Community and the Government of Canada on the processing of API/PNR data is hereby approved on behalf of the Community.

The text of the Agreement is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement on behalf of the European Community in order to bind the Community (2).

Article 3

This Decision shall be published in the

Official Journal of the European Union

Done at Brussels, 18 July 2005.

For the Council

The President

J. STRAW

(1) Not yet published in the Official Journal.

(2) The date of entry into force of the Agreement will be published in the

Official Journal of the European Union

by the General Secretariat of the Council.

AGREEMENT

between the European Community and the Government of Canada on the processing of Advance Passenger Information and Passenger Name Record data

THE EUROPEAN COMMUNITY AND THE GOVERNMENT OF CANADA, hereinafter referred to as the ‘Parties’:

RECOGNISING the importance of respecting fundamental rights and freedoms, notably the right to 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 the Government of Canada requirement of air carriers carrying persons to Canada to provide Advance Passenger Information and Passenger Name Record (hereinafter API/PNR) data to the competent Canadian authorities, to the extent it is collected and contained in carriers’ automated reservation systems and departure control systems (DCS);

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 Commitments made by the relevant competent authority with regard to the way in which it will process API/PNR data received from air carriers (hereinafter the Commitments);

HAVING REGARD to the relevant Commission Decision, pursuant to Article 25(6) of Directive 95/46/EC, (hereinafter the Decision), whereby the relevant Canadian competent authority is considered as providing an adequate level of protection for API/PNR data transferred from the European Community (hereinafter the Community) concerning passenger flights to Canada, in accordance with the relevant Commitments, which are annexed to the respective Decision;

HAVING REGARD to the Revised Guidelines on API adopted by the World Customs Organisation (WCO), the International Air Transport Association (IATA) and the International Civil Aviation Organisation (ICAO);

COMMITTED to work together to assist the ICAO in the development of a multilateral standard for the transmission of PNR data obtained from commercial airlines;

HAVING REGARD to the possibility of effecting modifications to Annex I to this Agreement in the future by simplified procedures, particularly with regard to ensuring reciprocity between the Parties,

HAVE AGREED AS FOLLOWS:

Article 1

Purpose

1. The purpose of this Agreement is to ensure that API/PNR data of persons on eligible journeys is provided in full respect of fundamental rights and freedoms, in particular the right to privacy.

2. An eligible journey is a passage by an air carrier from the territory of one Party to the territory of the requesting Party.

Article 2

Competent authorities

A competent authority of a requesting Party is an authority responsible in Canada or in the European Union for processing API/PNR data of persons on eligible journeys as specified in Annex I to this Agreement, which forms an integral part thereof.

Article 3

Processing of API/PNR data

1. The Parties agree that API/PNR data of persons on eligible journeys will be processed as outlined in the Commitments made by the competent authority obtaining the API/PNR data.

2. The Commitments set forth the rules and procedures for the transmission and protection of API/PNR data of persons on eligible journeys provided to a competent authority.

3. The competent authority shall process API/PNR data received and treat persons on eligible journeys to which the API/PNR data relates in accordance with applicable laws and constitutional requirements, without discrimination, in particular on the basis of nationality and/or country of residence.

Article 4

Access, correction and notation

1. A competent authority shall afford to a person who is not present in the territory in which that authority exercises jurisdiction, to whom the API/PNR data processed pursuant to this Agreement relates, access to the data as well as the opportunity to seek correction if it is erroneous or add a notation to indicate a correction request was made.

2. The opportunity provided by the competent authority for access, correction and notation with respect to such data shall be afforded in circumstances similar to those where it would be available to persons present in the territory in which that authority exercises jurisdiction.

Article 5

Obligation to process API/PNR data

1. In relation to the application of this Agreement within the Community, as it relates to the processing of personal data, air carriers operating eligible journeys from the Community to Canada shall process API/PNR data contained in their automated reservation systems and DCS as required by the competent Canadian authorities pursuant to Canadian law. The list of PNR data elements that air carriers operating eligible journeys shall transfer to the Canadian competent authority is contained in Annex II to this Agreement, which forms an integral part thereof.

2. The obligation set forth in paragraph 1 shall only apply for as long as the Decision is applicable, ceasing to have effect on the date that the Decision is repealed, suspended or expires without being renewed.

Article 6

Joint Committee

1. A Joint Committee is hereby established, consisting of representatives of each Party, who will be notified to the other Party through diplomatic channels. The Joint Committee shall meet at a place, on a date and with an agenda fixed by mutual consent. The first meeting shall take place within six months of entry into force of this Agreement.

2. The Joint Committee shall,

inter alia

(a) act as a channel of communication with regard to the implementation of this Agreement and any matters related thereto;

(b) resolve, to the extent possible, any dispute which may arise with respect to the implementation of this Agreement and any matters related thereto;

(d) adopt its rules of procedure.

3. The Parties represented in the Joint Committee may agree modifications to Annex I to this Agreement, which will apply as from the date of such agreement.

Article 7

Settlement of disputes

The Parties shall consult promptly at the request of either concerning any dispute, which has not been resolved by the Joint Committee.

Article 8

Joint reviews

In accordance with Annex III to this Agreement, which forms an integral part thereof, the Parties shall conduct on an annual basis, or as otherwise agreed, a Joint Review of the implementation of this Agreement and any matters related thereto, including developments such as the definition by the ICAO of relevant PNR guidelines.

Article 9

Entry into force, amendments to and termination of the Agreement

1. This Agreement shall enter into force following an exchange of notifications between the Parties advising that the procedures required for entry into force thereof have been completed. This Agreement shall come into force on the date of the second notification.

2. Without prejudice to Article 6(3), this Agreement may be amended by an Agreement between the Parties. Such amendment shall enter into force 90 days after the Parties have exchanged notifications of completion of the relevant internal procedures.

3. This Agreement may be terminated by either Party at any time following written notification not less than 90 days in advance of the proposed termination date.

Article 10

This Agreement is not intended to derogate from or amend legislation of the Parties.

IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed this Agreement.

DONE, in duplicate, in Luxembourg, this third day of October two thousand and five, 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 version being equally authentic. In case of divergence the English and French versions shall prevail.

Por la Comunidad Europea

Za Evropské společenství

For Det Europæiske Fællesskab

Für die Europäische Gemeinschaft

Euroopa Ühenduse nimel

Για την Ευρωπαϊκή Κοινότητα

For the European Community

Pour la Communauté européenne

Per la Comunità europea

Eiropas Kopienas vārdā

Europos bendrijos vardu

az Európai Közösség részéről

Għall-Komunità Ewropea

Voor de Europese Gemeenschap

W imieniu Wspólnoty Europejskiej

Pela Comunidade Europeia

Za Európske spoločenstvo

za Evropsko skupnost

Euroopan yhteisön puolesta

På Europeiska gemenskapens vägnar

[Bild bitte in Originalquelle ansehen]

Por el Gobierno de Canadá

Za vládu Kanady

For Canadas regering

Für die Regierung Kanadas

Kanada valitsuse nimel

Για την Κυβέρνηση του Καναδά

For the Government of Canada

Pour le gouvernement du Canada

Per il governo del Canada

Kanādas Valdības vārdā

Kanados Vyriausybės vardu

Kanada kormánya részéről

Għall-Gvern tal-Kanada

Voor de Regering van Canada

W imieniu rządu Kanady

Pelo Governo do Canadá

Za vládu Kanady

Za Vlado Kanade

Kanadan hallituksen puolesta

På Canadas regerings vägnar

[Bild bitte in Originalquelle ansehen]

ANNEX I

Competent authorities

For the purpose of Article 3, the competent authority for Canada is the Canada Border Services Agency (CBSA).

ANNEX II

PNR data elements to be collected

PNR record locator

Date of reservation

Date(s) of intended travel

Name

Other names on PNR

All forms of payment information

Billing address

Contact telephone numbers

All travel itinerary for specific PNR

10.

Frequent flyer information (limited to miles flown and address(es))

11.

Travel agency

12.

Travel agent

13.

Split/divided PNR information

14.

Ticketing field information

15.

Ticket number

16.

Seat number

17.

Date of ticket issuance

18.

No show history

19.

Bag tag numbers

20.

Go show information

21.

Seat information

22.

One-way tickets

23.

Any collected APIS information

24.

Standby

25.

Order at check in

ANNEX III

Joint review

The Parties will communicate to each other in advance of the joint review the composition of their respective teams, which may include appropriate authorities concerned with privacy/data protection, customs, immigration, enforcement, intelligence and interdiction, and other forms of law enforcement, border security and/or aviation security, including experts from Member States of the European Union.

Subject to applicable laws, any participants in the review will be required to respect the confidentiality of the discussions and have appropriate security clearances. Confidentiality will not however be an obstacle to each Party making an appropriate report on the results of the joint review to their respective competent bodies, including the Parliament of Canada and the European Parliament.

The Parties will jointly determine the detailed modalities of the joint review.