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Legislative decree no. 144 dated 2 August 2007 Implementing Directive 2004/82/EC on the Obligation of Carriers to Communicate Passenger Data - 2 a...

SCHEDA
Garante per la protezione dei dati personali
Doc-Web:
1670149
Data:
02/08/07
Tipologia:
Normativa italiana

[doc. web n. 1670149]

Legislative decree no. 144 dated 2 August 2007 Implementing Directive 2004/82/EC on the Obligation of Carriers to Communicate Passenger Data
As published in the Official Journal no. 206 dated 5 September 2007

The President of the Republic,

Having regard to sections 76 and 87 of Italy’s Constitution;

(…)

ISSUES

The following legislative decree:

Section 1
Purposes

1. In order to improve border controls and counter illegal immigration, this decree shall set forth the conditions and mechanisms applying to the advance communication by carriers to the competent authorities in charge for police border checks of the data related to the individuals transported into the territory of the Italian State.

Section 2
Definitions

1. For the purposes of this decree,
a. "carrier" shall mean any natural or legal person whose occupation it is to provide passenger transport by air;
b. "external borders" shall mean the external borders of the Italian State with third countries;
c. "border control" shall mean a check carried out at a border in response exclusively to a request to cross that border, regardless of any other consideration;
d. "border crossing point" shall mean any border crossing point controlled by police authorities and/or customs authorities and the Guardia di Finanza [Financial Police] where the latter are responsible for carrying out police checks at the  border under the law;
e. "authorities responsible for carrying out police checks at the border" shall mean the authorities responsible for the activities related to police border controls.

Section 3
Data Transmission

1. The carrier shall be under the obligation to transmit, at the request of the competent authorities responsible for carrying out police checks at the border and/or the Customs Agency and the Financial Police, where the latter are in charge for carrying out police checks at the border under the law, by the end of check-in, information concerning the passengers they will carry to an authorised border crossing point through which these persons will enter the territory of the Italian State, in accordance with the arrangements set forth in paragraph 3 and in pursuance of the inter-ministerial decree mentioned in section 7.

2. The information referred to in the above paragraph shall comprise:

a. the number, type and expiry date of the travel document used;

b. nationality;

c. full names;

d. the date and place of birth;

e.  the border crossing point of entry into the territory of the Italian State;

f. flight number, departure and arrival date;

g. departure and arrival time of the flight;

h. total number of passengers carried on that flight;

i. the initial point of embarkation.

3. The information referred to in paragraph 2 shall be communicated either electronically or  if this is found to be provisionally impossible - by any other appropriate means to the competent authorities responsible for carrying out police checks at the border so as to ensure that it is immediately available for the purposes set forth in section 1 to the authorities responsible for police checks at the border crossing point of entry into the territory of the Italian State as well as to the Customs Agency and the Financial Police, where the latter are in charge for carrying out police checks at the border under the law.

4. Transmission of the information referred to herein shall not discharge the carrier from the obligations and responsibilities laid down in the consolidated statute regulating immigration and the status of foreigners as per legislative decree no. 286 dated 25 July 1998.

5. The obligation for the carrier to inform the persons transported in pursuance of section 13 of legislative decree no. 196 dated 30 June 2003 and the sanctions set forth in section 161 thereof shall be left unprejudiced.

Section 4
Data Processing

1. The competent authorities responsible for carrying out police checks at the border as well as the Customs Agency and the Financial Police, where the latter are responsible for police checks at the border, shall provisionally save the data communicated upon specific request as per section 3 above; after passengers have entered, the said authorities shall delete any data that is not necessary to counter illegal immigration within 24 hours from receiving the said data.

2. By way of derogation from paragraph 1, if any data is found to be indispensable following a specific indication with a view to preventing a danger for ordre public and/or national security or else for investigations in progress, the said data may be retained for no longer than six months in accordance with arrangements that shall be closely related to the said activities, subject to application of section 8 of Act no. 121 dated 1 April 1981 if the data is to be transmitted to the Data Processing Centre under the law; this shall be without prejudice to deletion of the data in question, within the term referred to above, where the data are saved provisionally in pursuance of this [the above] paragraph.

3. The carrier shall be obliged to delete the data transmitted to the competent authorities in pursuance of this decree within twenty-four hours from arrival of the relevant flight, in accordance with the arrangements laid down in the decree issued by the Minister for Home Affairs under section 7 hereof.

4. The obligation to process the data in compliance with the data protection provisions set forth in legislative decree no. 196 dated 30 June 2003, in accordance with such arrangements as can ensure that use of the data is proportionate to the purposes mentioned in paragraphs 1 and 2 hereof, and for no longer than is absolutely necessary, shall be left unprejudiced.

Section 5
Sanctions

1. Without prejudice to section 12(6) of the consolidated statute regulating immigration and the status of foreigners (legislative decree no. 286 dated 25 July 1998, including subsequent amendments), and unless this is established as an offence, a fine ranging from 5,000 to 50,000 Euro for each journey for which passenger data were not communicated shall be imposed on any carrier that fails to transmit the data requested by the authority in pursuance of section 3 hereof.

2. The same fine shall apply if the transmitted data are incomplete or false for each journey for which incomplete or false data were transmitted.

3. In especially serious cases and/or in case of repeated infringements, suspension of the operations for one to twelve months may be ordered; alternatively, the licence, authorisation and/or concession granted by the Italian administrative authorities in respect of the specific occupation and means of transportation may be withdrawn.

4. Where a carrier fails to delete the data they have collected and transmitted in pursuance of section 3 within 24 hours from flight arrival, a fine ranging from 5,000 to 50,000 Euro shall be imposed.

Section 6

Entity Responsible for Imposing Sanctions

1. The infringements mentioned in section 5 shall be found and the relevant sanctions imposed under Act no. 689 dated 24 November 1981. The report mentioned in section 17 of the said Act no. 689/1981 shall be submitted to ENAC [National Civil Aviation Body] or else, as for the infringement mentioned in paragraph 4 of section 5 hereof, to the Italian data protection authority under section 166 of legislative decree no. 196 dated 30 June 2003.

Section 7
Transitional Provisions

1. By a decree of the Minister for Home Affairs issued in agreement with the Minister for Transportation, the Minister for Economy and Finance, and the Minister for Reformation and Innovations in the Civil Service, based on the prior favourable opinion rendered by the Italian data protection authority, the technical and operational mechanisms applying to communication by carriers of the information mentioned in section 3 shall be laid down within three months as from entry into force of this decree.

Section 8
Standstill Clause

1. No new or additional public expenses shall derive from implementing this decree.

2. The administrative entities involved shall discharge the tasks set forth in sections 3 to 6 hereof  by relying on the human and financial resources and the equipment available under the legislation in force.