Considerations on COM(2019)416 - EU position in ICAO Council, in respect of the revision of Chapter 9 to Convention on International Civil Aviation with regard to standards & recommended practices on PNR-data

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dossier COM(2019)416 - EU position in ICAO Council, in respect of the revision of Chapter 9 to Convention on International Civil Aviation with ...
document COM(2019)416 EN
date November 28, 2019
 
table>(1)The Convention on International Civil Aviation (the ‘Chicago Convention’), which regulates international air transport, entered into force on 4 April 1947. It established the International Civil Aviation Organization (ICAO).
(2)The Member States of the Union are contracting parties to the Chicago Convention and ICAO Member States, whereas the Union has observer status in certain ICAO bodies, including in the Assembly and other technical bodies.

(3)Pursuant to point (l) of Article 54 of the Chicago Convention, the ICAO Council is to adopt international standards and recommended practices (‘SARP’s).

(4)The United Nations (UN) Security Council decided in its resolution 2396 (2017) of 21 December 2017 (‘UNSCR 2396 (2017)’) that the UN Member States are to develop the capability to collect, process and analyse, in furtherance of ICAO SARPs, passenger name record (PNR) data and to ensure PNR data is used by and shared with all their competent national authorities, with full respect for human rights and fundamental freedoms for the purpose of preventing, detecting and investigating terrorist offences and related travel.

(5)UNSCR 2396 (2017) also urged the ICAO to work with the UN Member States to establish a standard for the collection, use, processing and protection of PNR data.

(6)SARPs on PNR are set out in Parts A and D of Chapter 9 of Annex 9 (Facilitation) to the Chicago Convention. Those SARPs are complemented by additional guidance, in particular ICAO Document 9944 setting out guidelines on PNR data.

(7)In March 2019, the ICAO Air Transport Committee (ATC) established a task force, consisting of experts from those ICAO Member States participating in the ICAO Facilitation Panel, to consider proposals for new SARPs on the collection, use, processing and protection of PNR data in line with UNSCR 2396 (2017) (the ‘Task Force’). A number of Member States of the Union are represented in the Task Force. The Commission participates in the Task Force as an observer.

(8)The 40th session of the ICAO Assembly took place from 24 September to 4 October 2019. The results of the ICAO Assembly will define the ICAO’s political direction for the coming years, including with respect to the adoption of new SARPs on PNR.

(9)On 16 September 2019, the Council endorsed an information paper on standards and principles on the collection, use, processing and protection of PNR data for submission to the 40th session of the ICAO Assembly (the ‘information paper’). The information paper was submitted to the ICAO Assembly by Finland on behalf of the Union and its Member States and the other Member States of the European Civil Aviation Conference.

(10)The information paper sets out the position of the Union on the core principles for compliance which would help to ensure respect for the constitutional and regulatory requirements concerning fundamental rights to privacy and data protection when processing PNR data for the purposes of countering terrorism and serious crime. The ICAO was invited to include such principles in any future standards on PNR as well as in the ICAO’s revised Guidelines on PNR data (Doc 9944).

(11)The Union has adopted common rules on PNR data in the form of Directive (EU) 2016/681 of the European Parliament and of the Council (1), the scope of which overlaps significantly with the area to be covered by the envisaged new SARPs. Directive (EU) 2016/681 includes, in particular, a comprehensive set of rules to safeguard the fundamental rights to privacy and the protection of personal data, in the context of a transfer of PNR data by air carriers to Member States for the purpose of prevention, detection, investigation and prosecution of terrorist offences and serious crime.

(12)Two international agreements on the processing and transfer of PNR data are currently in force between the Union and third countries, namely Australia (2) and the United States (3). On 26 July 2017, the Court of Justice of the European Union gave an Opinion on the envisaged agreement between the Union and Canada, signed on 25 June 2014 (4) (‘Opinion 1/15’).

(13)It is appropriate to establish the position to be taken on behalf of the Union within the ICAO Council as any future SARPs in the area of PNR data, in particular amendments to Chapter 9 of Annex 9 (Facilitation) to the Chicago Convention, will decisively influence the content of Union law, namely Directive (EU) 2016/681 and the existing international agreements on PNR data. In accordance with the duty of sincere cooperation, Member States of the Union are to defend this position throughout the work in the ICAO to elaborate the SARPs.

(14)The position of the Union, as set out in the Annex, is established in accordance with the applicable Union legal framework on data protection and PNR data, namely Regulation (EU) 2016/679 of the European Parliament and of the Council (5), Directive (EU) 2016/680 of the European Parliament and of the Council (6) and Directive (EU) 2016/681, as well as the Treaty and the Charter of Fundamental Rights of the European Union as interpreted in the relevant case law of the Court of Justice of the European Union, in particular Opinion 1/15.

(15)The position of the Union should be expressed by its Member States that are members of the ICAO Council, acting jointly.

(16)The United Kingdom and Ireland are bound by Directive (EU) 2016/681 and are therefore taking part in the adoption of this Decision.

(17)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,