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DRAFT RESOLUTION NO. 557 /X/4.

European Initiative

Proposal for Framework Decision COM (2007) 654 final SEC (2007) 1422 and 1453,

on the use of the data of the Passenger Identification Register

(Passenger Name Record-PNR) for the purposes of law enforcement

I

In compliance with Law No. 43/2006 of August 25, it was remitted by the Government to the

Assembly of the Republic, for the issuance of Opinion, the Proposal for a Framework Decision of the

Council COM (2007) 654 final SEC (2007) 1422 and 1453 -presented by the Commission

European-relating to the use of the data of the Passenger Identification Register

(Passenger Name Record-PNR) for the purposes of law enforcement, by integrating the

object of the said initiative in the sphere of legislative competence reserved from the

Assembly of the Republic.

The Committee on European Affairs, in such situations has the competence to give

opinion about the conformity of the Proposal with the principle of subsidiarity.

It also proceeded to the consultation of the Committee on Constitutional Affairs, Rights,

Freedoms and Guarantees and the Committee on Foreign Affairs and Communities

Portuguese, who approved the respective opinions.

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The proposal for a Framework Decision has as a legal statement to the Treaty of the Union

European, in particular Articles 29 (1) (b), 30 and 34 (2) (b)

same.

II

The Proposal in question -COM (2007) 654 final SEC (2007) 1422 and 1453-Proposal of

Framework Decision, on the use of the data of the Identification Register of

Passengers (Passenger Name Record-PNR) for purposes of applying the law for purposes

of combating terrorism and organised crime-it aims to combat terrorism and

raise the level of security in the European space, considering it to be essential for this

purpose a close cooperation between the Member States and their services, well

as with Europol and, where appropriate, with the national authorities of countries

third parties.

The Commission's Proposal states that since the September 11, authorities at all

world, responsible for law enforcement, recognize the added value of the collection

and analysis of the so-called PNR data in the fight against terrorism and crime

organized. Such PNR data relate to the displacements, usually by air,

and include data concerning passport, name, address, telephone numbers, agency

of travel, credit card number, track record of changes in flight plans,

preferences of places and other information.

Also in the Proposal drawn up by the Commission appears the information that the

carriers already collect the PNR data for commercial purposes, considering that the

collection and analysis of PNR data will allow the authorities responsible for the

law enforcement identify people of high risk and take appropriate measures.

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However, the proposal clarifies that up to now only a reduced number of states-

Members adopted legislation aimed at creating mechanisms to compel them

air carriers to provide the relevant PNR data.

Recently agreements have been concluded aimed at the transfer of data between the EU,

o Canada and the United States, in the context of the fight against terrorism and crime

transnational organized, which fall within the scope of air travel, in which the

air carriers are required to communicate the PNR data to authorities

competent from the US and Canada.

III

At present, Council Directive 2004 /82/CE mandates that carriers

air should communicate prior passenger information (API) to authorities

competent of the Member States, for the purpose of strengthening control and fighting against the

clandestine immigration.

Such a directive mandates that Member States should take appropriate measures

so as to force the air carriers to transmit, at the request of the authorities

responsible for the controls of passengers at external borders, the information

concerning the passengers of their flights, which include only the API data, almost

exclusively biographical, and which include the number and type of travel document

used, the nationality, the full name, the date of birth, the point of passage

from the border to the entrance, the transport code, the time of departure and the arrival of the

transportation, the total number of passengers included in this transport and the starting point of

boarding.

The PNR data, for its part, contain more elements and are available more

quickly than the API data. Are elements considered in the Proposal as

extremely important to carry out risk assessments of the persons carried,

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to obtain information and to establish associations between known persons and not

known.

IV

The Proposal for a Framework Decision is aimed at the harmonisation of the provisions of the

Member States relating to the obligation of air carriers operating flights

with a destination or departure from the territory of at least one Member State, transmit the

data PNR to the competent authorities, within a context of prevention and struggle

against terrorist offences and organised crime.

The Framework Decision states that Member States should provide for sanctions (including

financial penalties) against air carriers or intermediaries that do not

transmit the data or transmit them in an incomplete or incorrect way or that

otherwise commit an offence to the national provisions adopted in

compliance with the Framework Decision.

On the other hand, the Framework Decision allows to continue to implement agreements and

bilateral or multilateral arrangements in force or may come to celebrate instruments

similar legal, after their entry into force, as long as they are compatible with the

your goals. And it is not opposed to the Member States being able to provide PNR data

to third countries in the context of the fight against terrorism and organised crime

international in accordance with the national law of the Member State concerned and the

any applicable international agreements (Article 19, n. paragraphs 1 and 2).

V

The Proposal for a Framework Decision states that a number of meetings have been made and

consultations with the authorities responsible for the data protection of states-

Member.

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The authorities responsible for the data protection of the Member States, gathering

in the quality of advisory body of the Commission under the aegis of the Working Group of the

article 29-Protection Group of persons with regard to the processing of data

personal, with consultative and independent character, provided for in Article 29 of the Directive

95/46, of October 24, 1995, of the European Parliament and of the Concelho-issued

also various opinions on the use of PNR data.

In the explanatory statement it is stated that the Working Group of Article 29 was not

convinced of the necessity of the proposal, having consequently manifested its

opposition.

It should be pointed out that the European Data Protection Supervisor presented a

opinion, published on May 1, 2008 in the Official Journal of the European Union, of

important reading, where diverse concerns are posed, very pertinent, how much

the protection of data and the need for the proposed measures.

Among many important issues, the EDPS, in the findings of this opinion, at the point

112, " stresses the huge impact that the present proposal will have in terms of

data protection (...). As it stands, the proposal is not in line with certain

fundamental rights, notably Article 8 of the Charter of Fundamental Rights

of the European Union, so it should not be approved ".

It also points out, in paragraph 116 of the said opinion, that " The fight against terrorism is

certainly a legitimate reason to apply exceptions to the fundamental rights of the

privacy and data protection. However, to be valid, the need for the

interference must grounded in clear and undeniable elements, and should be

demonstrated the proportionality of the measure. This is still more necessary in the case of the

broad interference in the private lives of the people, as provided for in the present proposal "

(point 117) . And that " the proposal does not contain such elements of justification and are not

satisfied the tests of necessity and proportionality " (section 118) that " (...) are

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of an essential nature. They constitute a sine qua non for the entry into force

of the proposal " (point 119).

On November 20, 2008, it was approved in the European Parliament, with 512 votes to

favour, 5 votes against and 19 abstentions, a Resolution on the purpose of an initiative of the

Committee on Civil Liberties, Justice and Home Affairs where the EP

manifest "firm reservations" as to the need and the added value of the proposal

of the creation of a PNR system and the guarantee of data protection. It is from

underscore that no Portuguese MP voted against or abstained from that vote.

The European Parliament states that " such a considerable interference in the right to

protection of personal data must be legitimate and justified by a necessity

premind social " , considering that " there is no evidence that PNR data is

useful " . Thus, the Parliament states that if the Council intends to continue the

assessment of the text of the Commission, should duly justify the conditions of

pressing social need likely to make this new intervention necessary

European Union.

The same institution considers it still worrying that, in essence, the proposal will come

" to allow police authorities access to all data without having any

warrant " warning that " the mere availability of commercial databases not

automatically justifies its use " .

The European Parliament is also very critical of the supposed harmonisation of the

system. It points out that the Proposal does not harmonize national regimes, when only

some countries dispose of the PNR system, but rather that the proposal comes " impose on the

Member States the obligation to create a system " .

The same position of the European Parliament contradicts some of the claims of the

statement of reasons, referring to MEPs who " the US has never proven of

conclusive form that the massive and systematic use of PNR data is required in the

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fight against terrorism and serious crime " , referring even though that too " no

there is evidence that PNR data is useful for massive research and analysis

automated, based on risk patterns (...) to detect potentials

terrorists " .

Thus, one cannot fail to take into account the opinion of the European Parliament, which as

already said manifests its "firm reservations" to the proposal for a Framework Decision, being

fundamental to fight against terrorism and organised crime, but

respecting the rights and guarantees of the people.

In fact it is very pertinent and should be taken into consideration, even by its expressive

voting, the opinion of the European Parliament, expressed on November 20, 2008, of

that the need for community action has not yet been sufficiently demonstrated.

Following what is referred to by the EP, the affirmation of the EU Commission is questionable

that the stated purpose of the proposal is to harmonize the national schemes,

when only a few Member States have or intend to set up a system of use of

data PNR for the purposes of law enforcement and other purposes. It is understood thus, that the

proposal of the Commission does not harmonize national systems (visa that these do not

there are) and it is limited to imposing on Member States the obligation to create a system.

VI

Taking into account what has been stated above, the European Affairs Committee of the

Assembly of the Republic considers:

That the need for community action is not sufficient demonstrated, being

important to take into consideration that the proposal aims at a harmonization of systems,

when only a few Member States have or intend to create a system of

use of PNR data, limiting itself to impose on the Member States the obligation of the

creation of this system.

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Thus, pursuant to Law No. 43/2006, of August 25 and taking into account the

conclusions described above, the Assembly of the Republic deliberates to the

Government to inform the Presidents of the European Parliament, of the Council and of the

European Commission of the content of this Draft Resolution on the

Proposal for Framework Decision COM (2007) 654 final SEC (2007) 1422 and 1453,

on the use of the data of the Passenger Identification Register

(Passenger Name Record-PNR).

Assembly of the Republic, July 21, 2009

The Deputy The President of the Commission

João Semedo Vitalino Canas