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PARLIAMENT COMMISSION of EUROPEAN AFFAIRS 1 DRAFT RESOLUTION No. 557/X/4th European initiative proposal for framework decision COM (2007) 654 final SEC (2007) 1422 and 1453, concerning the use of Registration data to identify Passengers (Passenger Name Record-PNR) for law enforcement purposes (I) compliance with law No. 43/2006 of 25 August , was sent by the Government to Parliament, for an opinion, the proposal for a Council framework decision (2007) 654 final SEC (2007) 1422 and 1453-presented by the European Commission on the use of the data of registration of identification of Passengers (Passenger Name Record-PNR) for law enforcement purposes, as part of the object of that initiative in the sphere of reserved legislative powers of the Assembly of the Republic.
The European Affairs Commission, in such situations has the competence to give an opinion on the conformity of the proposal with the principle of subsidiarity.
We proceeded to the consultation of the Commission for Constitutional Affairs, rights, freedoms and guarantees, and the Committee on Foreign Affairs and Portuguese Communities, who have adopted their opinions.
PARLIAMENT COMMISSION of EUROPEAN AFFAIRS 2 the proposal for A framework decision has as legal grounds the Treaty on European Union, and in particular articles 29, paragraph 1, point (b)), 30 and 34, paragraph 2, point (b)).
(Ii) the proposal-COM (2007) 654 final SEC (2007) 1422 and 1453-proposal for a Council framework decision on the use of Registration data to identify Passengers (Passenger Name Record-PNR) for law enforcement purposes for the purpose of combating terrorism and organised crime seeks to combat terrorism and raise the level of security in Europe considering that it is essential for this purpose a close cooperation between the Member States and their services, as well as with Europol and, where appropriate, with national authorities of third countries.
The Commission proposal states that since September 11, officials around the world, law enforcement, recognise the added value of the collection and analysis of so-called PNR data in the fight against terrorism and organized crime. Such PNR data relate to movements, normally by air, and include passport data, name, address, telephone numbers, travel agent, credit card number, history of changes in flight plans, seating preferences, and other information.
Also in the proposal drawn up by the Commission include the information that air carriers already collect PNR data for commercial purposes, considering that the collection and analysis of PNR data will allow law enforcement authorities to identify people at high risk and take appropriate measures.
PARLIAMENT COMMISSION of EUROPEAN AFFAIRS 3 However, the proposal clarifies that so far only a small number of Member States adopted legislation to create mechanisms to oblige air carriers to provide the relevant PNR data.
Recently agreements have been concluded, intended for transfer of data between the EU, Canada and the United States, in the context of the fight against terrorism and transnational organized crime, which fall within the scope of air travel, in which air carriers are required to notify the competent authorities PNR data from the United States and Canada.
(III) at present, Directive 2004/82/EC requires that air carriers should communicate advance passenger information (API) to the competent authorities of the Member States, for the purpose of strengthening the control and fight against illegal immigration.
Such a directive stipulates that Member States shall take appropriate measures in order to oblige air carriers to transmit at the request of the authorities responsible for passenger checks at external borders, information concerning the passengers from their flights, which include only the data API, almost exclusively, and biographical including number and type of travel document used , the nationality, the full name, date of birth, the border crossing point at the entrance, the transport code, departure time and arrival time of the transportation, total number of passengers included in this transport and the initial point of embarkation.
The PNR data, in turn, contain more elements and are available more quickly than the API. Elements are considered in the proposal as extremely important to conduct risk assessments of persons carried, PARLIAMENT COMMITTEE on EUROPEAN AFFAIRS 4 for information and to establish associations between known and not known.
(Iv) the proposal for a framework decision aims to harmonise the provisions of Member States concerning the obligation for air carriers operating flights to or departure from the territory of at least one Member State, transmit the PNR data to the competent authorities, within a context of the prevention of and fight against terrorist offences and organised crime.
The framework decision states that Member States shall lay down penalties (including fines) against air carriers or intermediaries that do not transmit data or transmit incomplete or incorrect or you commit, otherwise a breach of the national provisions adopted in accordance with the framework decision.
On the other hand, the framework decision allows us to continue to apply bilateral or multilateral agreements and arrangements in force or are likely to enter into similar legal instruments after its entry into force, provided that they are compatible with its objectives. And does not preclude the Member States to provide PNR data to third countries in the fight against terrorism and international organised crime in accordance with the national law of the Member State concerned and any applicable international agreements (article 19, paragraphs 1 and 2).
(V) the proposal for a framework decision referred to several meetings and consultations were carried out with the data protection authorities of the Member States.
PARLIAMENT COMMISSION of EUROPEAN AFFAIRS 5 authorities responsible for data protection in the Member States, gathering in his capacity as the Commission's advisory body, under the umbrella of the article 29 Working Party-Working Party on the protection of individuals with regard to the processing of personal data, with advisory and independent character, laid down in article 29 of Directive 95/46 , of 24 October 1995 of the European Parliament and of the Council-also issued several opinions on the use of PNR data.
In the explanatory memorandum stated that the article 29 Working Party was not convinced of the need for the proposal, having thus expressed their opposition.
It should be noted that the European data protection supervisor presented an opinion, published on 01 May 2008 in the official journal of the European Union, important reading, where are placed several very relevant concerns regarding data protection and the need of the proposed measures.
Among many important issues, the EDPS, the conclusions of this opinion, in paragraph 112, "stresses the huge impact that this proposal will have in terms of data protection (...). As it stands, the proposal is not in line with fundamental rights, notably article 8 of the Charter of fundamental rights of the European Union should not be approved ".
Also mentions, in paragraph 116 of that opinion, that "the fight against terrorism is certainly a legitimate reason to apply exceptions to the fundamental rights of privacy and data protection. However, to be valid, the necessity of interference must be based on clear and undeniable elements, and must be demonstrated the proportionality of the measure. It is even more necessary in the case of large interference in people's private lives, as the current proposal "(paragraph 117). And that "the proposal does not contain such elements of justification and are not satisfied the tests of necessity and proportionality" (paragraph 118) that "(...) are the ASSEMBLY of the REPUBLIC COMMISSION for EUROPEAN AFFAIRS of 6 essential nature. Constitute a sine qua non for the entry into force of the proposal "(paragraph 119).
On 20 November 2008, was approved in the European Parliament, with 512 votes in favour, 5 votes against and 19 abstentions, a resolution on the subject of an initiative of the Committee on Civil Liberties, justice and Home Affairs where the EP expresses "firm reservations" regarding the need and added value of the proposed creation of a PNR system and as a guarantee of data protection. Is stress that no Portuguese Member voted against or abstained in 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 pressing social need", whereas "there is no evidence that the PNR data are useful". Thus, the Parliament points out that the Council intends to pursue the examination of the Commission's text, should justify the urgent social need conditions which may require this new European Union intervention.
The same institution also considers worrying that, in essence, the proposal "allow police authorities access to all data without having any warrant," warning that "the mere availability of commercial databases do not automatically justify their use".
The European Parliament is also very critical of the so-called harmonisation of the system. Notes that the proposal does not harmonize national regimes, when only a few countries have the PNR system, but that the proposal "impose on Member States the obligation of creating a system".
The same European Parliament's position contradicts some of the claims of the explanatory memorandum, referring to the MEPs who "the United States never proved conclusively that the massive and systematic use of PNR data is required in the Assembly of the Republic COMMISSION for EUROPEAN AFFAIRS 7 fight against terrorism and serious crime," referring also to "yet there is no evidence that the PNR data are useful for research and massive automated analyses on the basis of risk patterns (...) to detect potential terrorists ".
Thus, one cannot fail to take account of the opinion of the European Parliament, which as already said expresses their "firm reservations" to the proposal for a framework decision, being essential for fighting against terrorism and organized crime, but respecting the rights and guarantees of persons.
In fact it is very relevant and should be taken into consideration, even for its expressive voting, the opinion of the European Parliament expressed on 20 November 2008, of the need for Community action has not yet been sufficiently demonstrated. Following what is referred to by the EP, is questionable the assertion of the EU Commission, that the stated objective of the proposal is harmonisation of national regimes, when only a few Member States have or wish to create a system for the use of PNR data for law enforcement purposes and other purposes. It is understood that the Commission proposal does not harmonise national systems (since these do not exist) and confines itself to impose on Member States the obligation to create a system.
SEEN in the light of the above, the European Affairs Committee of the Assembly of the Republic considers: the need for Community action is not enough, and it is important to take into account that the proposal aims at harmonization of systems, when only a few Member States have or wish to create a system for the use of PNR data, limiting itself to impose on Member States the obligation of the creation of this system.
PARLIAMENT COMMISSION of EUROPEAN AFFAIRS 8 So, pursuant to Act No. 43/2006 of 25 August and having regard to the conclusions outlined above, the Assembly of the Republic shall act to recommend to the Government to inform the Presidents of the European Parliament, the Council and the Commission of the content of this draft resolution on the proposal for a framework decision COM (2007) 654 final SEC (2007) 1422 and 1453 on the use of Registration data to identify Passengers (Passenger Name Record-PNR).
Assembly of the Republic, of 21 July 2009 Mr Commission President Joao Semedo Vitalino Canas
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