Legal provisions of JAI(2003)4 - Initiative of Spain with a view to adopting a Council Directive on the obligation of carriers to communicate passenger data

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dossier JAI(2003)4 - Initiative of Spain with a view to adopting a Council Directive on the obligation of carriers to communicate passenger data.
document JAI(2003)4
date April 29, 2004

Contents

Article 1 - Objective

This Directive aims at improving border controls and combating illegal immigration by the transmission of advance passenger data by carriers to the competent national authorities.

Article 2 - Definitions

For the purpose of this Directive:

(a)‘carrier’ means any natural or legal person whose occupation it is to provide passenger transport by air;

(b)‘external borders’ means the external borders of the Member States with third countries;

(c)‘border control’ means a check carried out at a border in response exclusively to an intention to cross that border, regardless of any other consideration;

(d)‘border crossing point’ means any crossing point authorised by the competent authorities for crossing external borders;

(e)‘personal data’, ‘processing of personal data’ and ‘personal data filing system’ have the meaning as stipulated under Article 2 of Directive 95/46/EC.

Article 3 - Data transmission

1. Member States shall take the necessary steps to establish an obligation for carriers to transmit at the request of the authorities responsible for carrying out checks on persons at external borders, by the end of check-in, information concerning the passengers they will carry to an authorised border crossing point through which these persons will enter the territory of a Member State.

2. The information referred to above shall comprise:

—the number and type of travel document used,

—nationality,

—full names,

—the date of birth,

—the border crossing point of entry into the territory of the Member States,

—code of transport,

—departure and arrival time of the transportation,

—total number of passengers carried on that transport,

—the initial point of embarkation.

3. In any case the transmission of the above mentioned data does not discharge the obligations and responsibilities laid down in the provisions of Article 26 of the Schengen Convention for carriers, as supplemented by Directive 2001/51/EC.

Article 4 - Sanctions

1. Member States shall take the necessary measures to impose sanctions on carriers which, as a result of fault, have not transmitted data or have transmitted incomplete or false data. Member States shall take the necessary measures to ensure that sanctions are dissuasive, effective and proportionate and that either:

(a)the maximum amount of such sanctions is not less than EUR 5 000, or than the equivalent national currency at the rate of exchange published in the Official Journal of the European Union on the day on which this Directive enters into force for each journey for which passenger data were not communicated or were communicated incorrectly; or

(b)the minimum amount of such sanctions is not less than EUR 3 000, or than the equivalent national currency at the rate of exchange published in the Official Journal of the European Union on the day on which this Directive enters into force for each journey for which passenger data were not communicated or were communicated incorrectly.

2. This Directive shall not prevent Member States from adopting or retaining, for carriers which infringe very seriously the obligations arising from the provisions of this Directive, other sanctions, such as immobilisation, seizure and confiscation of the means of transport, or temporary suspension or withdrawal of the operating licence.

Article 5 - Proceedings

Member States shall ensure that their laws, regulations and administrative provisions stipulate that carriers against which proceedings are brought with a view to imposing penalties have effective rights of defence and appeal.

Article 6 - Data processing

1. The personal data referred to in Article 3(1) shall be communicated to the authorities responsible for carrying out checks on persons at external borders through which the passenger will enter the territory of a Member State, for the purpose of facilitating the performance of such checks with the objective of combating illegal immigration more effectively.

Member States shall ensure that these data are collected by the carriers and transmitted electronically or, in case of failure, by any other appropriate means to the authorities responsible for carrying out border checks at the authorised border crossing point through which the passenger will enter the territory of a Member State. The authorities responsible for carrying out checks on persons at external borders shall save the data in a temporary file.

After passengers have entered, these authorities shall delete the data, within 24 hours after transmission, unless the data are needed later for the purposes of exercising the statutory functions of the authorities responsible for carrying out checks on persons at external borders in accordance with national law and subject to data protection provisions under Directive 95/46/EC.

Member States shall take the necessary measures to oblige carriers to delete, within 24 hours of the arrival of the means of transportation pursuant to Article 3(1), the personal data they have collected and transmitted to the border authorities for the purposes of this Directive.

In accordance with their national law and subject to data protection provisions under Directive 95/46/EC, Member States may also use the personal data referred to in Article 3(1) for law enforcement purposes.

2. Member States shall take the necessary measures to oblige the carriers to inform the passengers in accordance with the provisions laid down in Directive 95/46/EC. This shall also comprise the information referred to in Article 10(c) and Article 11(1)(c) of Directive 95/46/EC.

Article 7 - Transposal

1. Member States shall take the necessary measures to comply with this Directive not later than 5 September 2006. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission.

Article 8 - Entry into force

This Directive shall enter into force 30 days after its publication in the Official Journal of the European Union.

Article 9 - Addressees

This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.