What changed

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

P9_TA(2024)0377

on the proposal for a regulation of the European Parliament and of the Council on the collection and transfer of advanceAdvance passenger information for theinformation: prevention, detection, investigation and prosecution of terrorist offences and serious crime, and amending Regulation (EU) 2019/818crime

(COM(2022)0731 – C90427/2022 – 2022/0425(COD))

Committee on Civil Liberties, Justice and Home Affairs

PE750.253

European Parliament legislative resolution of 25 April 2024 on the proposal for a regulation of the European Parliament and of the Council on the collection and transfer of advance passenger information for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, and amending Regulation (EU) 2019/818 (COM(2022)0731 – C9-0427/2022 – 2022/0425(COD))

(Ordinary legislative procedure: first reading)

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee of 27 April 2023,

– having regard to the provisional agreement approved by the committee responsible under Rule 74(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 13 March 2024 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

– having regard to Rules 59 of its Rules of Procedure,

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Recital 1: (1) The transnational dimension of serious and organised crime and the continuous threat of terrorist attacks on European soil call for action at Union level to adopt appropriate measures to ensure security within an area of freedom, security and justice without internal borders. Information on air passengers, such as Passenger Name Records (PNR) and in particular Advance Passenger Information (API), is essential in order to identify high-risk passengers, including those who are not otherwise known to law enforcement authorities, and to establish links between members of criminal groups, and countering terrorist activities.

P9_TC1-COD(2022)0425

Recital 2: (2) While Council Directive 2004/82/EC27 establishes a legal framework for the collection and transfer of API data by air carriers with the aims of improving border controls and combating illegal immigration, it also states that Member States may use API data for law enforcement purposes. However, only creating such a possibility leads to several gaps and shortcomings. In particular, it means that, API data is not systematically collected and transferred by air carriers for law enforcement purposes. It also means that, where Member States acted upon the possibility, air carriers are faced with diverging requirements under national law as regards when and how to collect and transfer API data for this purpose. Those divergences lead not only to unnecessary costs and complications for the air carriers, but can also negatively affect the Union’s internal security and complicate effective cooperation between the competent law enforcement authorities of the Member States. Moreover, in view of the different nature of the purposes of facilitating border controls and law enforcement, it is appropriate to establish a distinct legal framework for the collection and transfer of API data for each of those purposes

Position of the European Parliament adopted at first reading on 25 April 2024 with a view to the adoption of Regulation (EU) 2025/… of the European Parliament and of the Council on the collection and transfer of advance passenger information for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, and amending Regulation (EU) 2019/818

Recital 4: (4) It is therefore necessary to establish clear, harmonised and effective rules at Union level on the collection and transfer of API data for the purpose of preventing, detecting, investigating and prosecuting terrorist offences and serious crime.

(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) 2025/13.)

Recital 5: (5) Considering the close relationship between both acts, this Regulation should be understood as complementing the rules provided for in Directive (EU) 2016/681. Therefore, API data is to be collected and transferred in accordance with the specific requirements of this Regulation, including as regards the situations and the manner in which that is to be done. However, the rules of that Directive apply in respect of matters not specifically covered by this Regulation, especially regarding the rules on the subsequent processing of the API data received by the PIUs, exchange of information between Member States, conditions of access by the European Union Agency for Law Enforcement Cooperation (Europol), transfers to third countries, retention and depersonalisation, as well as the protection of personal data. Insofar as those rules apply, the rules of that Directive on penalties and the national supervisory authorities apply as well. This Regulation should leave those rules unaffected.

Recital 6: (6) The collection and transfer of API data affects the privacy of individuals and entails the processing of their personal data. In order to fully respect their fundamental rights, in particular the right of respect for private life and the right to the protection of personal data, in accordance with the Charter of Fundamental Rights of the European Union (‘Charter’), adequate limits and safeguards should be provided for. In particular, any processing of API data and, in particular, API data constituting personal data, should remain strictly limited to what is necessary for and proportionate to achieving the objectives pursued by this Regulation. In addition, it should be ensured that the processing of any API data collected and transferred under this Regulation do not lead to any form of discrimination precluded by the Charter.

Recital 7: (7) In view of the complementary nature of this Regulation in relation to Directive (EU) 2016/681, the obligations of commercial air carriers under this Regulation should apply in respect of all flights for which Member States are to require air carriers to transmit PNR data under Directive (EU) 2016/681, namely flights, including both scheduled and non-scheduled flights, both between Member States and third countries (extra-EU flights), and between several Member States (intra-EU flights) insofar as those flights have been selected in accordance with Directive (EU) 2016/681, irrespective of the place of establishment of the air carriers conducting those flights. In accordance with the relevant ICAO classifications, general aviation such as flight schools, military or medical flights, should be exempted from this Regulation.

Recital 9: (9) In view of the close relationship between the acts of Union law concerned and in the interest of consistency and coherence, the definitions set out in this Regulation should be aligned with, interpreted and applied in the light of, the definitions set out in Directive (EU) 2016/681 and Regulation (EU) [API border management]29 .

Recital 10: (10) In particular, the items of information that jointly constitute the API data to be collected and subsequently transferred under this Regulation should be the same as those listed clearly and exhaustively in Regulation (EU) API [border management], covering both information relating to each passenger and information on the flight of that passenger. Under this Regulation, such flight information should cover information on the border crossing point of entry into the territory of the Member State concerned only where applicable, that is, not when the API data relate to intra-EU flights

Recital 11: (11) In order to ensure an approach that is as consistent as possible on the collection and transfer of API data by air carriers, the rules set out in this Regulation should be aligned with those set out in the Regulation (EU) [API border management] where appropriate. That alignment concerns, in particular, the rules on data quality, the precise manner in which they are to transfer the collected API data to the router, the encryption of API data in transit, and the deletion of the API data. Furthermore, and as set out in this Regulation and in the Regulation (EU) [API border management], air carriers should be required to collect the API data using automated means, specifically by reading information from the machine-readable data of the travel document. Where the use of such automated means is however not possible, air carriers should collect the API data manually, either as part of the online check-in process, or as part of the check-in at the airport, in such a manner as to ensure compliance with their obligations under this Regulation.

Recital 11 a (new): (11a) The collection of API data by automated means should be strictly limited to the alphanumerical data contained in the travel document and should not lead to the collection of any biometric data from it. As the collection of API data is part of the check-in process, either online or at the airport, it should not include an obligation for air carriers to check a travel document of the passenger at the moment of boarding. Compliance with this regulation should not include any obligation for passenger to carry a travel document at the moment of boarding.

Recital 11 b (new): (11b) The requirements set out by this Regulation and by the corresponding delegated and implementing acts should lead to a uniform implementation by the airlines, thereby minimising the cost of the interconnection of their respective systems. To facilitate a harmonised implementation of those requirements by the airlines, in particular as regards the data structure, format and transmission protocol, the Commission, based on its cooperation with the PIUs, other Member States authorities, air carriers, and relevant Union agencies, should ensure that the practical handbook to be prepared by Commission provides all the necessary guidance and clarifications.

Recital 11 c (new): (11c) In order to enhance data quality, the router should verify whether the API data transferred to it by the air carriers complies with the supported data formats. Where the router has verified that the data is not compliant with the supported data formats, the router should, immediately and in an automated manner, notify the air carrier concerned thereof.

Recital 11 d (new): (11d) In order to reduce the impact on air carriers, and with a view to create synergies with other reporting obligations on air carriers in Regulation (EU) 2017/2226, Regulation (EU) 2018/1240 and Regulation (EC) 767/2008 and avoid duplication, air carriers should transfer the API data at the moment of the check-in of each passenger by way of interactive API in accordance with international standards, using the existing carrier gateway. Air carriers should receive an acknowledgement of receipt to the transfer of interactive API, in line with international standards. The use of an interactive API should not lead to an automatic denial of boarding.

Recital 11 e (new): (11e) The passengers should be enabled to provide certain API data themselves during an online check-in process. Such means could, for example, include a secure app on a passengers’ smartphone, computer or webcam with the capability to read the machine-readable data of the travel document. Where the passengers did not check-in online, air carriers should provide them with the possibility to provide the required machine-readable API data concerned during check-in at the airport with the assistance of a self-service kiosk or of airline staff at the check-in counter. The Commission should ensure that the obligations under this Regulation do not lead to disproportionate obstacles for passengers unable to use online means for automated check-in, such as additional airport check-in fees.

Recital 11 f (new): (11f) The automatic data collection systems and other processes established under this Regulation should not have a negative impact on the employees in the aviation industry, who should benefit from upskilling and reskilling opportunities that would increase the efficiency and reliability of data collection and transfer as well as the working conditions in the sector.

Recital 12: (12) In order to ensure the joint processing of API data and PNR data to effectively fight terrorism and serious crime in the Union and at the same time minimise the interference with passengers’ fundamental rights protected under the Charter, the PIUs should be the sole competent authorities in the Member States that are entrusted to receive, and subsequently further process and protect, API data collected and transferred under this Regulation. In the interest of efficiency and to minimise any security risks, the router, as designed, developed, hosted and technically maintained by the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice​ (eu-LISA) in accordance with Regulation (EU) [API border management], should transmit the API data, collected and transferred to it by the air carriers under this Regulation, to the relevant PIUs. Given the necessary level of protection of API data constituting personal data, including to ensure the confidentiality of the information concerned, the API data should be transmitted by the router to the relevant PIUs in an automated manner.

Recital 12 a (new): (12a) With a view to guaranteeing the fulfilment of the rights provided for under the Charter and to ensuring accessible and inclusive travel options, especially for vulnerable groups and persons with disabilities, air carriers, supported by the Member States, should ensure that an offline alternative for the check-in and for the provision of the necessary data by the passengers is possible at all times.

Recital 13: (13) For extra-EU flights, the PIU of the Member State on whose territory the flight will land and or from where the flight will depart should receive the API data from the router for all those flights, that PNR data is collected for in accordance with Directive (EU) 2016/681. The router should identify the flight and the corresponding PIUs using the information contained in the PNR record locator, a data element common to both the API and PNR data sets allowing for the joint processing of API data and PNR data by the PIUs.

Recital 14: (14) As regards intra-EU flights, in line with the case law of the Court of Justice of the European Union (CJEU), in order to avoid unduly interfering with passengers’ relevant fundamental rights as protected under the Charter and to ensure compliance with the requirements of Union law on the free movement of persons and the abolition of internal border controls, a selective approach should be provided for. This is with the exception of situations of a genuine and present or foreseeable terrorist threat, where Member States should be able to apply Directive (EU) 2016/681 to all intra-EU flights arriving at or departing from its territory, in a decision that is limited in time to what is strictly necessary and that is open to effective review. In view of the importance of ensuring that API data can be processed together with PNR data, that approach should be aligned with that of Directive (EU) 2016/681. For those reasons, API data on those flights should only be transmitted from the router to the relevant PIUs, where the Member States have selected the flights concerned in application of Article 2 of Directive (EU) 2016/681. As recalled by the CJEU, the selection entails Member States targeting the obligations in question only at, inter alia, certain routes, travel patterns or airports, subject to the regular review of that selection. Furthermore, the selection criteria should be relevant for the prevention, detection, investigation and prosecution of terrorist offences and se…

Recital 14 a (new): (14a) In order to comply with the requirements of the Court of Justice of the European Union (CJEU), this Regulation should lay down a common methodology for carrying out a threat assessment based on which the Member States should operate a selection of intra-EU flights. That common methodology should also help avoid divergent practices among Member States and allow for effective supervision by the national data protection authorities.

Recital 15: (15) In order to enable the application of that selective approach under this Regulation in respect of intra-EU flights, the Member States should be required to draw up and submit to eu-LISA the lists of the flights they selected, so that eu-LISA can ensure that only API data for those flights is transmitted from the router to the relevant PIUs and that the API data on other intra-EU flights is immediately and permanently deleted.

Recital 15 a (new): (15a) In order to increase cohesion among the selective approaches taken by the different Member States, the Commission should facilitate a regular exchange of views on the choice of selection criteria, including the sharing of best practices, as well as, on a voluntary basis, of selected flights.

Recital 16: (16) In order not to endanger the effectiveness of the system that relies on the collection and transfer of API data set up by this Regulation, and of PNR data under the system set up by Directive (EU) 2016/681, for the purpose of preventing, detecting, investigating and prosecuting terrorist offences and serious crime, in particular by creating the risk of circumvention, information on which intra-EU flights the Member States selected should be treated in a confidential manner. For that reason, such information should not be shared with the air carriers and they should therefore be required to collect API data on all flights covered by this Regulation, including all intra-EU flights, and then transfer it to the router, where the necessary selection should be enacted. Moreover, by collecting API data on all intra-EU flights, passengers are not made aware on which selected intra-EU flights API data, and hence also PNR data, is transmitted to the PIUs in accordance with the assessment of Member States. That approach also ensures that any changes relating to that selection can be implemented swiftly and effectively, without imposing any undue economic and operational burdens on the air carriers. Nonetheless, API data should not be collected and transferred on those flights where neither the Member State of departure nor the Member State of arrival of intra-EU flights have notified the Commission of their decision to apply Directive (EU) 2016/681 to intra-EU flights, pursuant to …

Recital 16 a (new): (16a) This Regulation does not permit the collection and transfer of API data on intra-EU flights for the purposes of combating illegal immigration, in accordance with Union law and the case law of the Court of Justice of the European Union.

Recital 17: (17) In the interest of ensuring compliance with the passengers’ fundamental right to the protection of their personal data and in line with Regulation (EU) [API border management], this Regulation should identify the controllers. In the interest of effective monitoring, ensuring adequate protection of personal data and minimising security risks, rules should also be provided for on logging, security of processing and self-monitoring. Where they relate to the processing of personal data, those provisions should be understood as complementing the generally applicable acts of Union law on the protection of personal data, in particular Regulation (EU) 2016/679 of the European Parliament and of the Council30 , Directive (EU) 2016/680 of the European Parliament and the Council31 and Regulation (EU) 2018/1725 of the European Parliament and the Council32 . Those acts, which also apply to the processing of personal data under this Regulation in accordance with the provisions thereof, should not be affected by this Regulation.

Recital 17 a (new): (17a) Taking into account the right of passengers to be informed of the processing of their personal data, Member States should ensure that passengers are provided with accurate information about the collection of API data, the transfer of that data to the PIU and their rights as data subjects that is easily accessible and easy to understand, at the moment of the flight booking and at the moment of check-in. .

Recital 17 b (new): (17b) In order to ensure compliance with the fundamental right to the protection of personal data, this Regulation should also set out rules on audits. The audits that Member States are responsible for should be carried out by the supervisory authorities referred to in Article 41 of Directive (EU) 2016/680 or by an auditing body entrusted with this task by the supervisory authority.

Recital 17 c (new): (17c) In order to avoid that air carriers have to establish and maintain multiple connections with PIUs for the transfer of API data and PNR data, and to avoid the related inefficiencies and security risks, provision should be made for a single router, created and operated at the Union level, that should serve as a connection, filter and distribution point for those transfers. In the interest of efficiency and cost effectiveness, the router should, to the extent technically possible and in full respect of the rules of this Regulation and Regulation (EU) [API border management], rely on technical components from other relevant systems created under Union law, in particular the web service referred to in Regulation (EU) 2017/2226, the carrier gateway referred to in Regulation (EU) 2018/1240 and the carrier gateway referred to in Regulation (EC) 767/2008. In order to reduce the impact on air carriers and ensure a harmonised approach towards air carriers, eu-LISA should design the router, to the extent technically and operationally possible, in a way that is coherent and consistent with the obligations put on air carriers by Regulation (EU) 2017/2226, Regulation (EU) 2018/1240 and Regulation (EC) 767/2008.

Recital 17 d (new): (17d) Furthermore, in order to provide for the same level of clarity and certainty, the provisions related to the router, security and support tasks by the eu-LISA should be mirrored in this Regulation and Regulation (EU) [API border management].

Recital 17 e (new): (17e) The router should serve only to facilitate the transmission of API data from the air carriers to the PIUs in accordance with this Regulation, and should not be a repository of API data. Therefore, and in order to minimise any risk of unauthorised access or other misuse and in accordance with the principle of data minimisation, no storage should take place unless strictly necessary for technical purposes related to the transmission and the API data should be deleted from the router, immediately, permanently and in an automated manner, from the moment that the transmission has been completed.

Recital 17 f (new): (17f) With a view to ensuring the proper functioning of the transmission of API data from router, the Commission should be empowered to lay down detailed technical and procedural rules on that transmission. Those rules should be such as to ensure that the transmission is secure, effective and swift and impacts passengers’ travel rights and air carriers no more than necessary.

Recital 18: (18) The router to be created and operated under this Regulation and Regulation (EU) [API border management] should reduce and simplify the technical connections needed to transfer API data and PNR data, limiting them to a single connection per air carrier and per PIU. Therefore, this Regulation provides for the obligation for the PIUs and air carriers to each establish such a connection to, and achieve the required integration with, the router, so as to ensure that the system for transferring API data established by this Regulation can function properly. The design and development of the router by eu-LISA should enable the effective and efficient connection and integration of air carriers’ systems and infrastructure by providing for all relevant standards and technical requirements. To ensure the proper functioning of the system set up by this Regulation, detailed rules should be provided. When designing and developing the router, eu-LISA should ensure that API data transferred by air carriers and transmitted to PIUs is encrypted in transit.

Recital 19: (19) In view of the Union interests at stake, the costs incurred by the European Data Protection Supervisor and eu-LISA for the performance of its tasks under this Regulation in respect of the router should be borne by the Union budget. The same should go for appropriate costs incurred by the Member States in relation to their connections to, and integration with, the router and costs related to the maintenance of those connections as required under this Regulation, should be borne by the Union budget, in accordance with the applicable legislation and subject to certain exceptions. The costs covered by those exceptions should be borne by each Member State concerned itself. The Union budget should also cover the support, such as training, by eu-LISA to air carriers and PIUs to enable effective transfer and transmission of API data through the router. The costs incurred by the independent national supervisory authorities in relation to the tasks entrusted to them under this Regulation shall also be borne by the respective Member States.

Recital 20: deleted

Recital 20 a (new): (20a) In order to allow both the air carriers and the PIUs to make the most efficient use of their connections to the router, to prevent any duplication of passenger data transfers and processing, and to ensure compliance with the CJEU case-law and enhance the related monitoring and supervision, this Regulation should provide for the mandatory use of the router by the air carriers for transferring PNR data, and for the PIUs for receiving such data. The router should constitute the only necessary and available means for the Member States to require air carriers to comply with the obligations related to transfer of PNR data as foreseen by the PNR Directive.

Recital 21: (21) It cannot be excluded that, due to exceptional circumstances and despite all reasonable measures having been taken in accordance with this Regulation and Regulation (EU) [API border management], the router or the systems or infrastructure connecting the PIUs and the air carriers thereto fail to function properly, thus leading to a technical impossibility to use the router to transmit API data. Given the unavailability of the router and that it will generally not be reasonably possible for air carriers to transfer the API data affected by the failure in a lawful, secure, effective and swift manner through alternative means, the obligation for air carriers to transfer that API data to the router should cease to apply for as long as the technical impossibility persist. In order to minimise the duration and negative consequences thereof, the parties concerned should in such a case immediately inform each other and immediately take all necessary measures to address the technical impossibility. This arrangement should be without prejudice to the obligations under this Regulation of all parties concerned to ensure that the router and their respective systems and infrastructure function properly, as well as the fact that air carriers are subject to penalties when they fail to meet those obligations, including when they seek to rely on this arrangement where such reliance is not justified. In order to deter such abuse and to facilitate supervision and, where necessary, the imposi…

Recital 23: (23) Effective, proportionate and dissuasive penalties, including financial ones, should be provided for by Member States against those air carriers failing to meet their obligations regarding the collection and transfer of API and PNR data under this Regulation.

Recital 23 a (new): (23a) When providing for the penalties applicable to air carriers under this Regulation, Member States should take into account the technical and operational feasibility of ensuring complete data accuracy. Additionally, when penalties are imposed, their application and value should be established taking into consideration the actions undertaken by the air carrier to mitigate the issue as well as its level of cooperation with national authorities.

Recital 23 b (new): (23b) In order to store the reports and statistics of the router on the Central Repository for Reporting and Statistics, it is necessary to amend Regulation (EU) 2019/817 of the European Parliament and of the Council.1a The Central Repository for Reporting and Statistics should provide only statistics based on API data for the implementation and effective supervision of this Regulation. The data that the router automatically transmits to the Central Repository for Reporting and Statistics to that end should not allow for the identification of the passengers concerned. The router should not transmit any data to the Central Repository for Reporting and Statistics for those intra-EU flights that have not been selected by a Member State based on an assessment in compliance with the criteria and methodology for the selection of intra-EU flights set out in this Regulation. / 1a Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA (OJ L 135, 22.5.2019, p. 27).

Recital 24: (24) In order to adopt measures relating to the technical requirements and operational rules for the automated means for the collection of machine-readable API data, to the common protocols and formats to be used for the transfer of API data by air carriers, to the technical and procedural rules for the transmission of API data from the router and to the PIUs and to the PIU’s and air carriers’ connections to and integration with the router, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of Articles 4, 5, 10 and 11, respectively. It is of particular importance that the Commission carry out appropriate consultations with relevant stakeholders, including air carriers, during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 201633. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. Taking into account the state of the art, those technical requirements and rules might change over time.

Recital 24 a (new): (24a) It is important to collect reliable and useful statistics based on the implementation of this Regulation in order to support its objectives and inform the evaluations under this Regulation. Such statistics should not contain any personally identifiable data. All relevant stakeholders, including relevant Member State authorities, Europol and, where appropriate, air carriers, should have access to those statistics.

Recital 24 b (new): (24b) In order to ensure uniform conditions for the implementation of this Regulation, namely as regards the start of operations of the router, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council1a. / 1a Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

Recital 25: (25) All interested parties, and in particular the air carriers and the PIUs, should be afforded sufficient time to make the necessary preparations to be able to meet their respective obligations under this Regulation, taking into account that some of those preparations, such as those regarding the obligations on the connection to and integration with the router, can only be finalised when the design and development phases of the router have been completed and the router starts operations. Therefore, this Regulation should apply only from an appropriate date after the date at which the router starts operations, as specified by the Commission in accordance with this Regulation and Regulation (EU) [API border management].

Recital 25 a (new): (25a) This Regulation should be subject to regular evaluations to ensure the monitoring of its effective application. In particular, the collection of API data should not be to the detriment of the travel experience of legitimate passengers. Therefore, the Commission should include in its regular evaluation reports on the application of this Regulation an assessment of the impact of this Regulation on the travel experience of legitimate passengers.

Recital 25 b (new): (25b) Given that this Regulation requires additional adjustment and administrative costs by the air carriers, the overall regulatory burden for the aviation sector should be kept under close review. Against this backdrop, the report evaluating the functioning of this Regulation should assess the extent to which the objectives of the Regulation have been met and to which it has impacted the competitiveness of the sector. Therefore, the Commission’s report should also conduct a holistic assessment and refer to the interaction of this Regulation with other relevant EU legislative acts, in particular Regulation (EU) 2017/2226, Regulation (EU) 2018/1240 and Regulation (EC) 767/2008. The report should assess the overall impact of related reporting obligations on air carriers, identifying provisions that could be updated and simplified, where appropriate, to mitigate the burden on air carriers, as well as actions and measures that have been or could be taken to reduce the total cost pressure on the aviation sector.

Article 1 – paragraph 1 – point a: (a) the collection by air carriers of advance passenger information data (‘API data’) on extra EU flights and intra EU flights;

Article 1 – paragraph 1 – point c: (c) the transmission from the router to the Passenger Information Units (‘PIUs’) of the API data and PNR data on extra-EU flights and selected intra-EU flights.

Article 1 – paragraph 1 a (new): This Regulation is without prejudice to Regulation (EU) 2016/679, Regulation (EU) 2018/1725 and Directive (EU) 2016/680.

Article 3 – paragraph 1 – point c: (c) ‘intra-EU flight’ means any flight as defined in Article 3, point (3), of Directive (EU) 2016/681, with the exception of those flights for which neither the Member State from where the flight is scheduled to depart, nor the Member State where the flight is scheduled to land, have notified their decision to apply Directive 2016/681 to intra-EU flights, pursuant to Article 2 of that Directive;

Article 3 – paragraph 1 – point d: (d) ‘scheduled flight’ means a commercial flight as defined in Article 3, point (e), of Regulation (EU) [API border management];

Article 3 – paragraph 1 – point e: (e) ‘non-scheduled flight’ means a commercial flight as defined in Article 3, point (f), of Regulation (EU) [API border management];

Article 3 – paragraph 1 – point g: (g) ‘crew’ means any person as defined in Article 3, point (i), of Regulation (EU) [API border management];

Article 3 – paragraph 1 – point h: deleted

Article 3 – paragraph 1 – point i: (i) ‘advance passenger information data’ or ‘API data’ means the data as defined in Article 3, point (k), of Regulation (EU) [API border management];

Article 3 – paragraph 1 – point m: (m) ‘serious crime’ means the offences as defined in Article 3, point (9), of Directive (EU) 2016/681;

Article 3 – paragraph 1 – point n: (n) ‘the router’ means the router as referred to in Article 4b;

Article 4 – paragraph 1: 1. Air carriers shall collect API data of passengers, consisting of the passenger data and the flight information specified in paragraphs 1a and 1b of this Article, respectively, on the flights referred to in Article 2, for the purpose of transferring that API data to the router in accordance with paragraph 6. Where the flight is code-shared between one or more air carriers, the obligation to transfer the API data shall be on the air carrier that operates the flight.

Article 4 – paragraph 1 a (new): 1a. The API data shall consist only of the following passenger data relating to each passenger on the flight: / (a) the surname (family name), first name or names (given names); / (b) the date of birth, sex and nationality; / (c) the type and number of the travel document and the three-letter code of the issuing country of the travel document; / (d) the date of expiry of the validity of the travel document; / (e) the number identifying a passenger name record used by an air carrier to locate a passenger within its information system (PNR record locator); / (f) the number of the seat in the aircraft assigned to a passenger, where the air carrier collects such information; / (g) the number and the weight of checked bags, where the air carrier collects such information.

Article 4 – paragraph 1 b (new): 1b. The API data shall also consist only of the following flight information relating to the flight of each passenger: / (a) the flight identification number or, where the flight is code-shared between one or more air carriers, the flight identification numbers, or, if no such number exists, other clear and suitable means to identify the flight; / (b) where applicable, the border crossing point of entry into the territory of the Member State; / (c) the code of the airport of entry into the territory of the Member State; / (d) the initial point of embarkation; / (e) the local date and estimated time of departure; / (f) the local date and estimated time of arrival.

Article 4 – paragraph 2 – subparagraph 1 a (new): The collection of API data in accordance with the first subparagraph shall not include an obligation for air carriers to check the travel document at the moment of boarding the aircraft or an obligation for passengers to carry a travel document when travelling, without prejudice to acts of national law that are compatible with Union law.

Article 4 – paragraph 3 – subparagraph 1: Air carriers shall collect the API data referred to in paragraph 1a (new) points (a) to (d), using automated means to collect the machine-readable data of the travel document of the passenger concerned. Air carriers shall collect that data during the check-in process, either as part of the online check-in or as part of the check-in at the airport. They shall do so in accordance with the detailed technical requirements and operational rules referred to in paragraph 5, once such rules have been adopted and are applicable and, in particular, by using the most reliable automated means available to collect the machine-readable data of the respective travel document.

Article 4 – paragraph 3 – subparagraph 1 a (new): The collection of API data with automated means shall not lead to the collection of any biometric data contained in the travel document.

Article 4 – paragraph 3 – subparagraph 1 b (new): Where air carriers provide an online check-in process, they shall enable passengers to provide the API data referred to in paragraph 1a, points (a) to (d), during the online check-in process, using automated means.

Article 4 – paragraph 3 – subparagraph 2: Where the use of automated means is not possible, air carriers shall collect that data manually, either as part of the online check-in or as part of the check-in at the airport, in such a manner as to ensure compliance with paragraph 2.

Article 4 – paragraph 4: 4. Any automated means used by air carriers to collect API data under this Regulation shall be reliable, secure and up-to-date. Air carriers shall ensure that API data is encrypted during the transmission of the data from the passenger to the air carriers.

Article 4 – paragraph 5: 5. The Commission is empowered to adopt delegated acts in accordance with Article 19 to supplement this Regulation by laying down detailed technical requirements and operational rules for the collection of the API data referred to in paragraph 1a, points (a) to (d), using automated means in accordance with paragraphs 3 and 4 of this Article, including on requirements for data security.

Article 4 – paragraph 6: 6. Air carriers shall transfer the encrypted API data to the router, by electronic means. They shall do so in accordance with the detailed rules referred to in paragraph 9, once such rules have been adopted and are applicable.

Article 4 – paragraph 7: 7. Air carriers shall transfer the API data both at the moment of check-in and immediately after flight closure, that is, once the passengers have boarded the aircraft in preparation for departure and it is no longer possible for passengers to board or to leave the aircraft. At the moment of check-in, air carriers shall transfer the API data in accordance with this Regulation and relevant international standards. Air carriers shall receive an acknowledgement of receipt of the transfer of the API data.

Article 4 – paragraph 7 a (new): 7a. The Commission is empowered to adopt delegated acts in accordance with Article 19 to supplement this Regulation by laying down the necessary detailed rules on the common protocols and supported data formats to be used for the encrypted transfers of API data to the router referred to in paragraph 6, including the transfer of API data at the moment of check-in and requirements for data security. Such detailed rules shall ensure that airlines transmit API data using the same structure and content.

Article 4 – paragraph 7 b (new): 7b. The PIUs shall process API data, transferred to them in accordance with this Regulation, solely for the purposes referred to in Article 1. / The PIUs or other competent authorities shall under no circumstances process API data for the purposes of profiling.

Article 4 – paragraph 8 – subparagraph 1 – introductory part: Air carriers shall store, for 24 hours from the moment of departure of the flight, the API data relating to that passenger that they collected pursuant to Article 4. They shall immediately and permanently delete that API data after the expiry of that time period. This is without prejudice to the possibility for air carriers to retain and use the data where necessary for the normal course of their business in compliance with the applicable law and in particular Regulation (EU) 2016/679. / Air carriers shall immediately either correct, complete or update, or permanently delete, the API data concerned in both of the following situations:

Article 4 – paragraph 8 – subparagraph 1 – point a: (a) where they become aware that the API data collected is inaccurate, incomplete or no longer up-to-date;

Article 4 – paragraph 8 a (new): 8a. Air carriers shall immediately and permanently delete API data where they become aware that the API data collected was processed unlawfully or that the data transferred does not constitute API data.

Article 4 – paragraph 8 b (new): 8b. Where the air carriers become aware of the circumstances referred to in point (a) of paragraph 8a or paragraph 8b after having completed the transfer of the data in accordance with paragraph 6, they shall immediately inform the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA). Upon receiving such information, eu-LISA shall immediately inform the PIUs that received the API data transmitted through the router.

Article 4 – paragraph 9: deleted

Article 4 – paragraph 9 a (new): 9a. In accordance with Directive 2016/681, air carriers shall also transfer PNR data to the router, insofar as those data are collected in the normal course of their business, for the transmission of those data from the router to the respective PIUs in accordance with Article 5(4). Air carriers shall not be allowed to transfer PNR data in accordance with Article 8(1) of Directive 2016/681 by any other means.

Article 4 a (new): Article 4a / Fundamental Rights / 1. The collection and processing of personal data in accordance with this Regulation and Regulation (EU) [API Border Management] by air carriers and competent authorities shall not result in discrimination against persons on the grounds of sex and gender, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. / 2. This Regulation shall fully respect human dignity and the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, including the right to respect for one’s private life, to asylum, to the protection of personal data, to freedom of movement and to effective legal remedies. / 3. Particular attention shall be paid to children, the elderly, persons with a disability and vulnerable persons. The best interests of the child shall be a primary consideration when implementing this Regulation.

Chapter 2 a (new): CHAPTER 2a (new) / PROVISIONS RELATING TO THE ROUTER / Article 4b / The Router / 1. eu-LISA shall design, develop, host and technically manage, in accordance with Articles 11a and 11b, a router for the purpose of facilitating the transfer of encrypted API and PNR data by the air carriers to the PIUs in accordance with this Regulation. / 2. The router shall be composed of: / (a) a central infrastructure, including a set of technical components enabling the transmission of API and PNR data; / (b) a secure communication channel between the central infrastructure and the PIUs, and a secure communication channel between the central infrastructure and the air carriers, for the transfer of API and PNR data and for any communications relating thereto. / 3. The router shall allow for the reception and transmission of encrypted API data. / 4. The router shall automatically extract and make available the statistics, in accordance with Article 31, to the central repository for reporting and statistics. / 5. Without prejudice to Article 4c of this Regulation, the router shall, where appropriate and to the extent technically possible, share and re-use the technical components, including hardware and software components, of the web service referred to in Article 13 of Regulation (EU) 2017/2226 of the European Parliament and of the Council1a, the carrier gateway referred to in Article 6(2), point (k), of Regulation (EU) 2018/1240, and the carrier gateway referred to in Article 2a, point (h),…

Article 5 – paragraph 1 – subparagraph 1: Upon the verifications referred to in Article 10a, the router shall, immediately and in an automated manner, transmit the API data, transferred to it by air carriers pursuant to Article 4, to the PIUs of the Member State on whose territory the flight will land or depart, or to both in the case of intra-EU-flights. Where a flight has one or more stop-overs at the territory of other Member States than the one from which it departed, the router shall transmit the API data to the PIUs of all the Member States concerned.

Article 5 – paragraph 1 – subparagraph 3: However, for intra-EU flights, the router shall only transmit API data of the flights included in the list referred to in paragraph 2 to the applicable PIUs.

Article 5 – paragraph 1 – subparagraph 4: The router shall transmit the API data in accordance with the detailed rules referred to in paragraph 3, once such rules have been adopted and are applicable.

Article 5 – paragraph 3: 3. The Commission is empowered to adopt delegated acts in accordance with Article 19 to supplement this Regulation by laying down the necessary detailed technical and procedural rules for the transmissions of API data from the router referred to in paragraph 1, including on requirements for data security.

Article 5 – paragraph 3 a (new): 3a. This provision shall apply mutatis mutandis to the transmission of PNR data from the router to the PIUs of the Member States in accordance with Article 8(1) of Directive 2016/681, which shall be the only means for PIUs to receive PNR data from air carriers.

Article 5 a (new): Article 5a / Methodology and criteria for the selection of intra-EU flights / Member States that decide to apply Directive (EU) 2016/681 and consequently this Regulation to intra-EU flights shall for the selection of those flights: / (a) carry out an objective, duly reasoned and non-discriminatory threat assessment in accordance with Article 2 of Directive (EU) 2016/681, the case-law of the Court of Justice of the European Union and the fundamental rights laid down, inter alia, in Articles 7 and 8 of the Charter of Fundamental Rights; / (b) take into account only criteria which are relevant for the prevention, detection, investigation and prosecution of terrorist offences and serious crime having an objective link, including an indirect link, with the carriage of passengers by air and not be purely based on nationality, sex, age, race, colour, ethnic origin, language, religion or belief or membership of a national minority of any passengers or groups of passengers; / (c) in situations of a genuine and present or foreseeable terrorist threat, Member States may apply Directive (EU) 2016/681 to all intra-EU flights arriving at or departing from its territory, in a decision that is limited in time to what is strictly necessary and that is open to effective review. In the absence of such a situation, Member States shall target only specific routes, travel patterns or airports for which there are indications of suspicious activities regarding terrorist offenses and serious crime an…

Article 5 b (new): Article 5b / Deletion of API data from the router / API data, transferred to the router pursuant to this Regulation, shall be stored on the router only insofar as necessary to complete the transmission to the PIUs and shall be deleted from the router, immediately, permanently and in an automated manner, in the following situations: / (a) where the transmission of the API data to the relevant PIUs has been completed; / (b) in cases of technical impossibility of the router to subsequently transmit the API data to the PIU, after 12 hours; / (c) where the API data relates to other intra-EU flights than those included the lists referred to in Article 5(2) of this Regulation. The router shall automatically inform eu-LISA and the PIUs of the immediate deletion of these intra-EU flights for the purposes of the statistics referred to in Article 16a(1).

Article 6 – paragraph -1 (new): -1. eu-LISA shall keep logs of all processing operations relating to the transfer of API data through the router under this Regulation. Those logs shall cover the following: / (a) the air carrier that transferred the API data to the router; / (b) the competent authorities and PIUs to which the API data was transmitted through the router; / (c) the date and time of the transfers referred to in points (a) and (b), and place of transfer; / (d) any access by staff of eu-LISA necessary for the maintenance of the router, as referred to in Article 11b(3); / (e) any other information relating to those processing operations necessary to monitor the security and integrity of the API data and the lawfulness of those processing operations. / Those logs shall not include any personal data, other than the information necessary to identify the relevant member of the staff of eu-LISA, referred to in point (d) of the first subparagraph.

Article 6 – paragraph 1: 1. Air carriers shall create logs of all processing operations under this Regulation undertaken using the automated means referred to in Article 4(3). Those logs shall cover the date, time, and place of transfer of the API data. Those logs shall not contain any personal data, other than the information necessary to identify the relevant member of the staff of the air carrier.

Article 6 – paragraph 3: 3. eu-LISA and air carriers shall take appropriate measures to protect the logs that they created pursuant to paragraph 1 against unauthorised access and other security risks.

Article 6 – paragraph 3 a (new): 3a. The national supervisory authorities referred to in Article 15 and PIUs shall have access to the relevant logs referred to in paragraph 1 where necessary for the purposes referred to in paragraph 2.

Article 6 – paragraph 4 – subparagraph 1: eu-LISA and the air carriers shall keep the logs that they created pursuant to paragraph 1, for a time period of one year from the moment of the creation of those logs. They shall immediately and permanently delete those logs upon the expiry of that time period .

Article 6 – paragraph 4 – subparagraph 2: However, if those logs are needed for procedures for monitoring or ensuring the security and integrity of the API data or the lawfulness of the processing operations, as referred to in paragraph 2, and those procedures have already begun at the moment of the expiry of the time period referred to in the first subparagraph, air carriers may keep those logs for as long as necessary for those procedures, provided that eu-LISA or the air carriers inform the Commission of the need to keep those logs and provide reasons for doing so. In that case, they shall immediately delete those logs when they are no longer necessary for those procedures.

Article 6 a (new): Article 6a / Actions in the case of technical impossibility to use the router / 1. Where it is technically impossible to use the router to transmit API data because of a failure of the router, eu-LISA shall immediately notify the air carriers and PIUs of that technical impossibility in an automated manner. In that case, eu-LISA shall immediately take measures to address the technical impossibility to use the router and shall immediately notify those parties when it has been successfully addressed. / During the time period between those notifications, Article 4(6) shall not apply, insofar as the technical impossibility prevents the transfer of API data to the router. Insofar as that is the case, Article 4 paragraphs 1 and 8 shall not apply either to the API data in question during that time period. / 2. Where it is technically impossible to use the router to transmit API data because of a failure of the systems or infrastructure referred to in Article 10 of a Member State, the PIU of that Member State shall immediately notify the air carriers, the other PIUs, eu-LISA and the Commission of that technical impossibility in an automated manner. In that case, that Member State shall immediately take measures to address the technical impossibility to use the router and shall immediately notify those parties when it has been successfully addressed. / During the time period between those notifications, Article 4(6) shall not apply, insofar as the technical impossibility prevents the t…

Article 7 – paragraph 1: The PIUs shall be controllers, within the meaning of Article 3, point (8), of Directive (EU) 2016/680 in relation to the processing of API data constituting personal data under this Regulation through the router, including transmission of the data from the router to the PIUs and storage for technical reasons of that data on the router as well as in relation to their processing of API data constituting personal data referred to in Article 4(7b) of this Regulation.

Article 7 a (new): Article 7a / Personal data processor / eu-LISA shall be the processor on behalf of the PIUs within the meaning of Article 3, point (9), of Directive 2016/680 for the processing of API data constituting personal data through the router in accordance with this Regulation.

Article 7 b (new): Article 7b / Information to passengers / In accordance with the right of information in Article 13 of Regulation (EU) 2016/679, air carriers shall provide passengers, on flights covered by this Regulation, with information on the purpose of the collection of their personal data, the type of personal data collected, the recipients of the personal data and the means to exercise the data subject rights. / This information shall be communicated to passengers in writing and in an easily accessible format at the moment of booking and at the moment of check-in, irrespective of the means used to collect the personal data at the moment of check-in, in accordance with Article 4.

Article 8 – paragraph 1: 1. PIUs and air carriers shall ensure the security of the API data, in particular API data constituting personal data, that they process pursuant to this Regulation.

Article 8 – paragraph 2: 2. PIUs and air carriers shall cooperate, in accordance with their respective responsibilities and in compliance with Union law, with each other and with eu-LISA to ensure such security.

Article 8 – paragraph 2 a (new): 2a. eu-LISA shall ensure the security and encryption of the API data, in particular API data constituting personal data, that it processes pursuant to this Regulation. The PIUs and the air carriers shall ensure the security of the API data, in particular API data constituting personal data, that they process pursuant to this Regulation. eu-LISA, the PIUs and the air carriers shall cooperate, in accordance with their respective responsibilities and in compliance with Union law, with each other to ensure such security.

Article 8 – paragraph 2 b (new): 2b. In particular, eu-LISA shall take the necessary measures to ensure the security of the router and the API data, in particular API data constituting personal data, transmitted through the router, including by establishing, implementing and regularly updating a security plan, a business continuity plan and a disaster recovery plan, in order to: / (a) physically protect the router, including by making contingency plans for the protection of critical components thereof; / (b) prevent any unauthorised processing of the API data, including any unauthorised access thereto and copying, modification or deletion thereof, both during the transfer of the API data to and from the router and during any storage of the API data on the router where necessary to complete the transmission, in particular by means of appropriate encryption techniques; / (c) ensure that it is possible to verify and establish to which PIUs the API data is transmitted through the router; / (d) properly report to its Management Board any faults in the functioning of the router; / (e) monitor the effectiveness of the security measures required under this Article and under Regulation (EU) 2018/1725, and assess and update those security measures where necessary in the light of technological or operational developments. / The measures referred to in the first subparagraph of this paragraph shall not affect Article 33 of Regulation (EU) 2018/1725 and Article 32 of Regulation (EU) 2016/679.

Article 9 a (new): Article 9a / Personal data protection audits / 1. The independent supervisory authorities referred to in Article 41 of Directive 2016/680 shall ensure that an audit of processing operations of API data constituting personal data performed by the PIUs for the purposes of this Regulation is carried out, in accordance with relevant international auditing standards, at least once every four years. / 2. The European Data Protection Supervisor shall carry out an audit of processing operations of API data constituting personal data performed by eu-LISA for the purposes of this Regulation, in accordance with relevant international auditing standards at least once every year. A report of that audit shall be sent to the European Parliament, to the Council, to the Commission, to the Member States and to eu-LISA. eu-LISA shall be given an opportunity to make comments before the reports are adopted. / 3. In relation to the processing operations referred to in paragraph 2, upon request, eu-LISA shall supply information requested by the European Data Protection Supervisor, shall grant the European Data Protection Supervisor access to all the documents it requests and to the logs referred to in Article 6, and shall allow the European Data Protection Supervisor access to all eu-LISA’s premises at any time.

Article 10 – paragraph 1 – subparagraph 2: Member States shall ensure that the connection to the router and integration with it enables their PIUs to receive and further process the API data, as well as to exchange any communications relating thereto, in a lawful, secure, effective and swift manner

Article 10 – paragraph 2: 2. The Commission is empowered to adopt delegated acts in accordance with Article 19 to supplement this Regulation by laying down the necessary detailed rules on the connections to and integration with the router referred to in paragraph 1, including on requirements for data security.

Article 11 – paragraph 2: 2. The Commission is empowered to adopt delegated acts in accordance with Article 19 to supplement this Regulation by laying down the necessary detailed rules on the connections to and integration with the router referred to in paragraph 1, including on data security requirements.

Article 11 a (new): Article 11a / eu-LISA’s tasks relating to the design and development of the router / 1. eu-LISA shall be responsible for the design of the physical architecture of the router, including defining the technical specifications. / 2. eu-LISA shall be responsible for the development of the router, including for any technical adaptations necessary for the operation of the router. The development of the router shall consist of the elaboration and implementation of the technical specifications, testing and overall project management and the coordination of the development phase. / 3. eu-LISA shall ensure that the router is designed and developed in such a manner that the router provides the functionalities specified in this Regulation, and that the router starts operations as soon as possible after the adoption by the Commission of the delegated acts provided for in 4(5) and (9), Article 5(3), Article 10(2), Article 11(2) and after the carrying out of a data protection impact assessment in accordance with Article 35 of Regulation (EU) 2016/679. / 4. Where eu-LISA considers that the development phase has been completed, it shall, without undue delay, conduct a comprehensive test of the router, in cooperation with the PIUs and other relevant Member States’ authorities and air carriers and inform the Commission of the outcome of that test.

Article 11 b (new): Article 11b / eu-LISA’s tasks relating to the hosting and technical management of the router / 1. eu-LISA shall host the router in its technical sites. / 2. eu-LISA shall be responsible for the technical management of the router, including its maintenance and technical developments, in such a manner as to ensure that the API data are securely, effectively and swiftly transmitted through the router, in compliance with this Regulation. / The technical management of the router shall consist of carrying out all the tasks and enacting all technical solutions necessary for the proper functioning of the router in accordance with this Regulation, in an uninterrupted manner, 24 hours a day, 7 days a week. It shall include the maintenance work and technical developments necessary to ensure that the router functions at a satisfactory level of technical quality, in particular as regards availability, accuracy and reliability of the transmission of API data, in accordance with the technical specifications and, as much as possible, in line with the operational needs of the PIUs and air carriers. / 3. eu-LISA shall not have access to any of the API data that is transmitted through the router. However, that prohibition shall not preclude eu-LISA from having such access insofar as strictly necessary for the maintenance of the router. / 4. Without prejudice to paragraph 3 of this Article and to Article 17 of Council Regulation (EEC, Euratom, ECSC) No 259/681a, eu-LISA shall apply appropriate r…

Article 11 c (new): Article11c / eu-LISA’s support tasks relating to the router / 1. eu-LISA shall, upon their request, provide training to PIUs and other relevant Member States’ authorities and air carriers on the technical use of the router and on the connection and integration to the router. / 2. eu-LISA shall provide support to the PIUs regarding the reception of API data through the router pursuant to this Regulation, in particular as regards the application of Articles 5 and 10 of this Regulation.

Article 12 – title: Costs for eu-Lisa and of Member States

Article 12 – paragraph -1 (new): -1. Costs incurred by eu-LISA in relation to the design, development, hosting and technical management of the router under this Regulation shall be borne by the general budget of the Union. In view of the Union interests at stake, in relation to its responsibilities for the design, development, hosting and technical management and maintenance of the router, eu-LISA shall be provided with the necessary resources under the Union budget in accordance with the applicable legislation.

Article 12 – paragraph 1 – subparagraph 1: Costs incurred by eu-LISA and the Member States in relation to their connections to and integration with the router referred to in Article 10 shall be borne by the general budget of the Union.

Article 12 – paragraph 1 a (new): 1a. Costs incurred by the European Data Protection Supervisor in relation to the tasks entrusted to it under this Regulation shall be borne by the general budget of the Union.

Article 12 – paragraph 1 b (new): 1b. Costs incurred by independent national supervisory authorities in relation to the tasks entrusted to them under this Regulation shall be borne by the Member States.

Article 12 – paragraph 2: 2. The Member States shall also bear the costs arising from the administration, use and maintenance of their connections to and integration with the router.

Article 13: deleted

Article 14 a (new): Article 14a / Start of operations of the router / The Commission shall determine, without undue delay, the date from which the router starts operations by means of an implementing act once eu-LISA has informed the Commission of the successful completion of the comprehensive test of the router referred to in Article 11a (4). That implementing act shall be adopted in accordance with the examination procedure referred to in Article 18a (2). / The Commission shall set the date referred to in the first subparagraph to be no later than 30 days from the date of the adoption of that implementing act.

Article 14 b (new): Article 14b / Voluntary use of the router in application of Directive 2004/82/EC / 1. Air carriers shall be entitled to use the router to transmit the information referred to in Article 3(1) of Directive 2004/82/EC to one or more of the responsible PIUs referred to therein, in accordance with that Directive, provided that the responsible PIU concerned has agreed with such use, from an appropriate date set by that PIU. That PIU shall only agree after having established that, in particular as regards both its own connection to the router and that of the air carrier concerned, the information can be transmitted in a lawful, secure, effective and swift manner. / 2. Where an air carrier starts using the router in accordance with paragraph 1, it shall continue using the router to transmit such information to the responsible PIU concerned until the date of application of this Regulation referred to in Article 21, second subparagraph. However, that use shall be discontinued, from an appropriate date set by that PIU, where that PIU considers that there are objective reasons that require such discontinuation and has informed the air carrier accordingly. / 3. The responsible PIU concerned shall: / (a) consult eu-LISA before agreeing with the voluntary use of the router in accordance with paragraph 1; / (b) except in situations of duly justified urgency, afford the air carrier concerned an opportunity to comment on its intention to discontinue such use in accordance with paragraph 2 and,…

Article 14 c (new): Article 14c / Use of the router for PNR data / The provisions of Chapters 3 and 4 shall apply mutatis mutandis to the mandatory transfer and transmission of PNR data through the router.

Article 16 – paragraphs 1 and 2: 1. Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure they are implemented. The penalties provided for shall be effective, proportionate and dissuasive penalties.

Article 16 – paragraph 1 a (new): 1a. Member States shall ensure that when deciding whether to impose a penalty and when determining the type and level of penalty, the national supervisory authorities take into account relevant circumstances, which may include: / (a) the nature, gravity and duration of the infringement; / (b) the degree of the air carrier's fault; / (c) previous infringements by the air carrier; / (d) the overall level of cooperation of the air carrier with the competent authorities; / (e) the size of the air carrier, such as the annual number of passengers carried; / (f) whether previous penalties have already been applied by other national API supervisory authorities to the same carrier for the same infringement.

Article 16 – paragraph 1 b (new): 1b. Member States shall ensure that a systematic or persistent failure to comply with obligations set out in this Regulation is subject to financial penalties of up to 2% of an Air Carrier's global turnover of the preceding business year.

Article 16 a (new): Article16a / Statistics / 1. To support the implementation and supervision of this Regulation and based on the statistical information referred to in paragraph 5 of this Article, eu-LISA shall publish every quarter statistics on the functioning of the router, and on compliance by air carriers with the obligations set out in this Regulation. Those statistics shall not allow for the identification of individuals. / The statistics shall show in particular: / (a) the number of passengers on which API and PNR data is transmitted, / (b) the number of flights for which API and PNR data is transmitted, / (c) the number of flights on which API and PNR data is not transmitted, / (d) the number of API and PNR messages transmitted on time to PIUs, / (e) the number of passengers who boarded the aircraft with inaccurate, incomplete or no longer up-to-date API data, with a non-recognised travel document. / 2. For the purposes set out in paragraph 1, the router shall automatically transmit the data listed in paragraph 5 to the central repository for reporting and statistics established in Article 39 of Regulation (EU) 2019/818. / 3. In order to support the implementation and supervision of this Regulation, at the end of each year, eu-LISA shall compile statistical data in an annual report for that year. It shall publish that annual report and transmit it to the European Parliament, the Council, the Commission, the European Data Protection Supervisor, the European Border and Coast Guard Agenc…

Article 17 – paragraph 1: The Commission shall, in close cooperation with the PIUs, other relevant Member States’ authorities, the air carriers and relevant Union agencies, in particular the European Data Protection Supervisor and the Fundamental Rights Agency, prepare and make publicly available a practical handbook, containing guidelines, recommendations and best practices for the implementation of this Regulation, including on fundamental rights compliance as well as on penalties in accordance with Article 16.

Article 17 a (new): Article 17a / API Expert Group / 1. An API Expert Group shall be established with effect from ... [one month from the date of entry into force of this Regulation] in accordance with the horizontal rules on the creation and operation of Commission expert groups. It shall facilitate cooperation and the exchange of information on obligations stemming from and issues relating to this Regulation among Member States, EU institutions and stakeholders. / 2. The API Expert Group shall be composed of representatives of the European Commission, Member States’ relevant authorities, the European Parliament and eu-LISA. Where relevant for the performance of its tasks, the API Expert Group may invite relevant stakeholders, in particular representatives of air carriers, the EDPS and the independent national supervisory authorities, to participate in its work. The Commission’s representative shall chair the API Expert Group.

Regulation (EU) 2019/818

Article 18 – paragraph 1, Article 39 – paragraph 2: “2. eu-LISA shall establish, implement and host in its technical sites the CRRS containing the data and statistics referred to in Article 74 of Regulation (EU) 2018/1862 and Article 32 of Regulation (EU) 2019/816 logically separated by EU information system. eu-LISA shall also collect the data and statistics from the router referred to in Article 13(1) of Regulation (EU) …/… * [this Regulation ]. Access to the CRRS shall be granted by means of controlled, secured access and specific user profiles, solely for the purpose of reporting and statistics, to the authorities referred to in Article 74 of Regulation (EU) 2018/1862, Article 32 of Regulation (EU) 2019/816 and Article 13(1) of Regulation (EU) …/… * [this Regulation ]. Especially the use of the CRRS for risk analysis, profiling or predictive risk assessment shall be prohibited.”

Article 18 a (new): Article 18a / Committee Procedure / 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. / 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and Article 5(4), the third subparagraph, of Regulation (EU) No 182/2011 shall apply.

Article 19 – paragraph 2: 2. The power to adopt delegated acts referred to in Article 4(5), Article 4(7b), Article 5(3), Article 5(4) (Left 238), Article 10(2) and Article 11(2) shall be conferred on the Commission for a period of five years from [date of adoption of the Regulation]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

Article 19 – paragraph 3: 3. The delegation of power referred to in Article 4(5), Article 4(7b), Article 5(3) and (4) (Left 239), Article 10(2) and Article 11(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

Article 20 – paragraph -1 (new): -1. eu-LISA shall ensure that procedures are in place to monitor the development of the router in light of objectives relating to planning and costs, and to monitor the functioning of the router in light of objectives relating to the technical output, cost-effectiveness, security and quality of service.

Article 20 – paragraph -1 a (new): -1a. By ... [one year from the date of entry into force of this Regulation] and every year thereafter during the development phase of the router, eu-LISA shall produce a report, and submit it to the European Parliament and to the Council on the state of play of the development of the router. That report shall contain detailed information about the costs incurred and about any risks which may impact the overall costs to be borne by the general budget of the Union in accordance with Article 12. From the date at which the router starts operations and every year thereafter, the Commission shall assess whether the budget under the MFF budget line 4.11.10.02 (“eu-LISA”) covers the needs necessary for good design, development, hosting and technical management of the router and, if appropriate, immediately propose amendment to the budget appropriations.

Article 20 – paragraph -1 b (new): -1b. Once the router starts operations, eu-LISA shall produce a report and submit it to the European Parliament and to the Council explaining in detail how the objectives, in particular relating to planning and costs, were achieved as well as justifying any divergences.

Article 20 – paragraph 1 – introductory part: 1. By [four years after the date of entry into force of this Regulation], and every four years thereafter, the Commission shall produce a report containing an overall evaluation of this Regulation, demonstrating the necessity and added value of the collection of API data, including an assessment of:

Article 20 – paragraph 1 – point c a (new): (ca) the impact of this Regulation on the travel experience of legitimate passengers;

Article 20 – paragraph 1 – point c b (new): (cb) the impact of this Regulation on the competitiveness of the aviation sector and the burden incurred by businesses. The Commission’s report shall also address this Regulation’s interaction with other relevant EU legislative acts, notably Regulation (EU) 2017/2226, Regulation (EU) 2018/1240 and Regulation (EC) 767/2008, with a view to assessing the overall impact of related reporting obligations on air carriers, identify provisions that may be updated and simplified, where appropriate, to mitigate the burden on air carriers, and consider actions and measures that could be taken to reduce the total cost pressure on air carriers.

Article 20 – paragraph 1 a (new): 1a. The evaluation referred to in paragraph 1 shall also include an assessment of: / (a) the necessity, proportionality and effectiveness of including the mandatory collection and transfer of API data relating to intra-EU flights within the scope of this Regulation; / (b) the feasibility of including non-commercial business aviation within the Scope of this Regulation.

Article 20 – paragraph 1 b (new): 1b. The Commission shall submit the evaluation report to the European Parliament, the Council, the European Data Protection Supervisor and the European Agency for Fundamental Rights. If appropriate, in light of the evaluation conducted, the Commission shall make a legislative proposal to the European Parliament and to the Council with a view to amending this Regulation.

Article 20 – paragraph 2: 2. The Member States and air carriers shall, upon request, provide the eu-LISA and the Commission with the information necessary to draft the report referred to in paragraph 1. In particular, Member States shall provide quantitative and qualitative information on the necessity and added value of the collection of API data from an operational perspective. However, Member States may refrain from providing such information if, and to the extent, necessary not to disclose confidential working methods or jeopardise ongoing investigations of their PIUs or other law enforcement authorities. The Commission shall ensure that any confidential information provided is appropriately protected.

Article 21 – paragraph 2: It shall apply from two years from the date at which the router starts operations, specified by the Commission in accordance with Article 14a.

Article 21 – paragraph 3: However: / (a) Article 4(5), Article 5(3) and (4), Article 10(2), Article 11(2), Article 18a and Article 19 shall apply from [Date of entry into force of this Regulation]. / (b) Article 4b, Article 6(-1), (2) and (3), Article 7, Article 7a, Article 8, Article 11b, Article 11c, Article 14 and Article 14 shall apply from the date at which the router starts operations, specified by the Commission in accordance with Article 14a.

EXPLANATORY STATEMENT

1. Context of the proposal

The Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (‘API Directive’) aims at improving border controls and combating illegal immigration. It requires Member States to establish an obligation for air carriers to transmit, at the request of the authorities responsible for carrying out checks on persons at external borders, information concerning the passengers they will carry. The API Directive establishes no obligation for Member States to request the transmission of data. The API Directive contains an open list of data categories that Member States may request. The API Directive is in principle intended as an instrument to enhance border security, but it allows the Member States to use the personal data collected for law enforcement purposes as well.

The Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (‘PNR Directive’) aims to facilitate the prevention, detection, investigation and prosecution of terrorist offences and serious crime and thus enhance the internal security of the Union. The PNR Directive establishes an obligation for Member States to introduce provisions laying down obligations on air carriers operating extra-EU flights to transfer PNR data they collect. The PNR Directive allows Member States to apply the Directive to intra-EU flights. The PNR Directive includes API data in the list of PNR data.

On 21 June 2022, the Court of Justice of the European Union (CJEU) in case C-817/19 confirmed the validity of the PNR Directive. The CJEU also provided clarifications on certain provisions, in particular a number of conditions regarding the selection criteria for flights that Member States must comply with if they apply the PNR Directive to intra-EU flights.

The context of the API and PNR Directives is that in 2019, the EU recorded about 1 billion air passengers, half of which crossed the EU’s external borders. The Schengen Borders Code requires effective and systematic checks of people crossing the EU’s external borders. Advance passenger information is one of the tools for border authorities to anticipate their workload and perform adequate border controls.

The collection and transfer of API is in itself nothing new, nor is it limited to the EU. It is a commitment of all EU Member States since they are all parties to the Chicago Convention of the International Civil Aviation Organisation (ICAO). Furthermore, it is a requirement from many countries of destination, such as the United States, Japan, France, United Kingdom, China, India, Australia, Canada, Mexico and Thailand. API collection is an established practice under the abovementioned API Directive.

2. Content of the proposal

The API and PNR Directives leaves a lot of room for variable implementation. As a result, the API collection practice varies widely among EU Member States. Airlines have to deal with each Member State individually and are confronted with varying requests for data categories, modes of data transfer and safeguards including data security and privacy.

In order to remedy this situation, the Commission has proposed twin Regulations:

 A Regulation on the collection and transfer of advance passenger information (API) for enhancing and facilitating external border controls, amending Regulation (EU) 2019/817 and Regulation (EU) 2018/1726 and repealing Council Directive 2004/82/EC (‘API borders’);

 A Regulation on the collection and transfer of advance passenger information for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, and amending Regulation (EU) 2019/818 (‘API law enforcement’).

In the Commission’s design, the API borders proposal contains the main elements, including with regards to the technical solution (the router). The API law enforcement proposal has its own legal base and contains the elements relevant to the collection, transfer and processing of API data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime by Member States’ competent authorities.

Taken together, the proposals include the following main changes compared to the API Directive currently in force:

 A closed and exhaustive list of API data elements. Under the current API Directive, the list of data elements is open.

 Automated collection of API data, which should give more reliable data. Under the current API Directive, the collection can be done manually.

 Mandatory API data collection for the purposes of enhancing and facilitating the efficiency of border checks at external borders and of combating illegal immigration on all flights entering the Union. Under the current API Directive, Member States may request this data but are not obliged to do so.

 Mandatory API data collection for law enforcement purposes for all flights to and from the EU, as well as on flights within the EU. Under the current API Directive, Member States may use the personal data for law enforcement purposes, but the mandatory nature of the collection is new.

 Streamlined transmission of API data by air carriers to a new router, which will be developed and managed by the EU Agency for the Operational Management of Large-scale IT Systems (eu-LISA).

 An automatic filter in the router executing the automatic transmission from the router of API data of extra-EU flights and selected intra-EU flights to Member State Passenger Information Units (‘PIUs’) and the automatic deletion of all other API data.

In its Opinion 6/2023 on the Proposals for Regulations on the collection and transfer of advance passenger information (API), the European Data Protection Supervisor (EDPS) assessed the proposal to collect API data from all flights and to have this data automatically filtered by the proposed router on the basis of pre-selected flights positively from a data protection perspective.

3. Rapporteur’s assessment of the proposal

The rapporteur responsible for API law enforcement welcomes the Commission proposal to replace the obsolete API Directive with two new Regulations. The rapporteur agrees with the Commission that it is necessary to remedy the current situation of variable interpretation and application of the API Directive as well as of API elements of the PNR Directive. The rapporteur is of the opinion that API data and PNR data complement each other and that together they can provide more reliable information. This will mean more limited and targeted interventions by law enforcement authorities and less intrusion of travellers’ privacy. By way of example, the rapporteur would like to point out that criminals often book flights (generating PNR data) but without cancellation do not board these flights. The unavailability of API data based on passengers that boarded the flight in such situations leads to unnecessary interventions by law enforcement authorities using limited capacities and sometimes disturbing innocent travellers. Another example is the issue of date of birth, which is often not available to air carriers at the time of booking, but which only becomes available at the time of check in. Date of birth is an extremely important data element, which is crucial in avoiding false hits based on name only.

The rapporteur also supports the collection of API data by air carriers using automated means. Not only does this avoid unnecessary problems due to innocent typos and spelling mistakes. It also stops criminals from playing with such typos, which they currently do enthusiastically to avoid detection. Nevertheless, the rapporteur wants to ensure fair treatment for all passengers in all situations. The rapporteur insists that manual collection of API data remain possible for documents not containing a ‘Machine-Readable Zone’ (MRZ) and for situation of technical impossibility to automatically collect the data. Furthermore, the rapporteur is of the opinion that the Commission should make sure that the obligation to use automated means for the collection of API data does not lead to disproportionate obstacles, such as additional airport check-in fees, for passengers unable to use other means for automated check-in.

The rapporteur strongly supports the inclusion of intra-EU flights in the scope of API law enforcement. With the CJEU, the rapporteur believes that this is proportionate, taking into account the security situation and travel patterns of criminals and terrorists. However, the rapporteur also believes that the selection of intra-EU flights must be strictly limited as indeed demanded by the CJEU. Therefore, the rapporteur introduces some parameters for Member States based on the Court ruling. Furthermore, the rapporteur instructs the Commission to facilitate further steps to increase cohesion among the Member States regarding their selection of intra-EU flights.

The rapporteur believes that the router solution, once operational, could be useful for the transfer of PNR data as well as a secure and reliable and, for the airlines cost-effective, solution. Such a step would be in line with the requirement that Member States take one decision regarding the selection of intra-EU flights for the application of both the PNR Directive and the proposed API Regulations.

The rapporteur insists on stringent data security requirements, which should be embedded in the API borders Regulation.

The rapporteur believes that Member States can use the Internal Security Fund to claim compensation for costs made related to the proposed new technical solution (the router).

The rapporteur believes that delegation of powers to the Commission is appropriate in a number of cases described in the Regulation. The rapporteur insists that this is done via delegated acts, because it gives airline industry representatives more of a voice in technical decisions such regarding the choice of data formats and it places Parliament on an equal footing with the Council.

The rapporteur insists on including in the regular Commission evaluation the impact of this Regulation, also in combination with other legislation applying to passenger air travel, on passengers and on air carriers.