Motion for a resolution - B7-0038/2009Motion for a resolution

MOTION FOR A RESOLUTION on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorist financing


to wind up the debate on the statement by the Council
pursuant to Rule 110(2) of the Rules of Procedure

Simon Busuttil, Ernst Strasser, Manfred Weber on behalf of the PPE Group
Claude Moraes, Udo Bullmann, Carmen Romero López, Birgit Sippel on behalf of the S&D Group
Sophia in ‘t Veld, Jeanine Hennis-Plasschaert, Sarah Ludford, Louis Michel, Alexander Alvaro, Nathalie Griesbeck, Sharon Bowles on behalf of the ALDE Group
Timothy Kirkhope on behalf of the ECR Group

Procedure : 2009/2670(RSP)
Document stages in plenary
Document selected :  


European Parliament resolution on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorist financing

The European Parliament,

–   having regard to Article 6(2) of the Treaty on European Union and Article 286 of the EC Treaty,

–   having regard to Articles 95 and 300 of the EC Treaty,

–   having regard to the European Convention on Human Rights, in particular Articles 5, 6, 7 and 8 thereof,

–   having regard to the Charter of Fundamental Rights, in particular Articles 7, 8, 47, 48 and 49 thereof,

–   having regard to Council of Europe Convention No 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data,

–   having regard to Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data[1],

–   having regard to Regulation (EC) No 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data[2],

–   having regard to Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing[3] and Regulation (EC) 1781/2006 on information on the payer accompanying transfers of funds[4],

–   having regard to the Agreement on mutual legal assistance between the European Union and the United States of America of 2003, and especially its Article 4 (Identification of bank information)[5],

–   having regard to the US Terrorist Finance Tracking Program (TFTP) based on US Presidential Executive Order 13224[6], which authorises in the event of a national emergency notably the US Treasury Department to obtain, by means of ‘administrative subpoenas’, sets of financial messaging data transiting over financial message networks such as the ones managed by the Society for Worldwide Interbank Financial Telecommunications (SWIFT),

–   having regard to the conditions established by the US Department of the Treasury to access the SWIFT data (as defined by the US representations[7]) and taking account of the information obtained by the Commission via the ‘eminent person’ on the US authorities’ compliance with the representations cited above,

–   having regard to its previous resolutions inviting SWIFT to comply strictly with the EU legal framework, notably when European financial transactions take place on EU territory[8],

–   having regard to the negotiating directives for the Presidency of the Council and the envisaged international agreement between the EU and the US on the transfer of SWIFT data, which have been classified ‘EU Restricted’,

–   having regard to the opinion of the European Data Protection Supervisor of 3 July 2009, which has been classified ‘EU Restricted’,

–   having regard to Rule 110(2) of its Rules of Procedure,

A. whereas SWIFT announced in October 2007 a new messaging structure to be operational by the end of 2009,

B.  whereas this change in messaging structure would have the consequence that the majority of the financial data that SWIFT had thus far been subpoenaed to transfer to the United States Department of the Treasury’s TFTP would no longer be made available to the TFTP,

C. whereas the Council adopted unanimously on 27 July 2009 the negotiating directives for the Presidency, assisted by the Commission, to negotiate an international agreement with the US, on the basis of Articles 24 and 38 of the Treaty on European Union, to continue the transfer of SWIFT data to the US TFTP,

D. whereas the negotiating directives as well as the legal opinion on the choice of legal basis from the Council Legal Service have not been made public, as they are classified ‘EU Restricted’,

E.  whereas the international agreement will provide for provisional and immediate application from the time of signature until entry into force of the agreement,

F.  whereas the EU itself does not have a TFTP in place,

G. whereas access to data managed by SWIFT makes it potentially possible to detect not only transfers linked to illegal activities but also information on the economic activities of the individuals and countries concerned, and thus it could be misused for large-scale forms of economic and industrial espionage,

H. whereas SWIFT concluded a memorandum of understanding with the United States Treasury Department, which narrowed the scope of data transferred and the scope of data searches to specific counter-terrorism cases, and subjected it to independent oversight and audit, including real time monitoring,

I.   whereas any EU-US agreement must be conditional upon maintaining the protection which exists in the memorandum of understanding and the US Treasury representations, such as those that apply in the case of US Treasury subpoenaed data from the US operating centre of SWIFT,

1.  Recalls its determination to fight terrorism and its firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection; reaffirms that necessity and proportionality are key principles without which the fight against terrorism will never be effective;

2.  Stresses that the European Union is based on the rule of law and that all transfers of European personal data to third countries for security purposes should respect procedural guarantees and defence rights and comply with data protection legislation at national and European level[9];

3.  Reminds the Council and Commission that in the transatlantic framework of the EU-US agreement on legal assistance, which will enter into force on 1 January 2010, Article 4 provides for access to targeted financial data upon request, through national state authorities, and might constitute a sounder legal basis for the transfer of SWIFT data than the proposed interim agreement, and asks Council and Commission to explain the necessity for an interim agreement;

4.  Welcomes SWIFT’s decision in June 2007 to relocate all intra-EU financial transfer data to two European operating centres; draws the Council’s attention to the fact that this decision was taken in accordance with the Belgian Data Protection Authority, the request from the EU’s Article 29 Working Party and in line with the view of the European Parliament;

5.  Notes that the Council only adopted the negotiation directives almost two years after SWIFT announced the change in messaging structure;

6.  Is concerned that with respect to the legal basis chosen for this envisaged agreement the legal services of the institutions have divergent opinions, noting that the Council Legal Service is of the opinion that it is a Community competence;

7.  Believes, to the extent that an international agreement is necessary and mandatory, that it must as a very minimum ensure:

(a)       that data are only transferred and processed to fight terrorism, as defined in the Council Framework Decision 2002/475/JHA, Article 1, and related to individual or terrorist organisations recognised as such also by the EU;

(b)      that the processing of such data as regards their transfer (only by means of a ‘push’ system), storage and use must not be disproportionate with regard to the objective for which these data have been transferred and subsequently processed;

(c)       that the transfer requests should be based on specific, targeted cases, limited in time and subject to judicial authorisation and that any subsequent processing must be limited to data which disclose a link with persons or organisations under examination in the US; the data that do not disclose such links should be erased;

(d)      that EU citizens and enterprises should be granted the same level of defence rights and procedural guarantees and the right of access to justice as exist in the EU and that the legality and proportionality of the transfer requests should be open for judicial review in the US;

(e)       that transferred data should be subject to the same judicial redress mechanisms as would apply to data held within the EU, including compensation in case of unlawful processing of personal data;

(f)       that the agreement should prohibit any use of SWIFT data by US authorities for other purposes than those linked to terrorism financing; the transfer of such data to third parties other than the public authorities in charge of the fight against terrorism financing should also be prohibited;

(g)       that a reciprocity mechanism is strictly adhered to, obliging the competent US authorities to transfer relevant financial messaging data to the competent EU authorities, upon request;

(h)       that the agreement expressly is set up for an intermediate period through a sunset clause not exceeding 12 months, and without prejudice to the procedure to be followed under the Lisbon Treaty for a possible new agreement in this field;

(i)        that the interim agreement should clearly make provision for the US authorities to be immediately notified after the entry into force of the Lisbon Treaty and that a possible new agreement will be negotiated under the new EU legal framework that fully involves the European Parliament and national parliaments;

8.  Requests that the Council and Commission clarify the exact role of the ‘public authority’ to be designated with responsibility to receive requests from the US Treasury, taking into account in particular the nature of the powers vested in such an ‘authority’ and the way in which such powers could be enforced;

9.  Requests that the Council and Commission confirm that batches and large files such as Single European Payment Area (SEPA) related transactions are outside the scope of the data to be requested by or transferred to the US Treasury;

10. Stresses that SWIFT is a key infrastructure for the resilience of Europe’s payment systems and securities markets and should be not be unfairly disadvantaged with regard to competing financial message providers;

11. Underlines the importance of legal certainty and immunity for citizens and private organisations subject to data transfers under such arrangements as the proposed EU-US agreement;

12. Notes that it may be useful for the Commission to evaluate the necessity of setting up a European TFTP;

13. Requests that the Commission and the Presidency ensure that the European Parliament and all national parliaments will be given full access to the negotiation documents and directives;

14. Instructs its President to forward this resolution to the Council, the Commission, the European Central Bank, the governments and parliaments of the Member States and candidate countries, and the United States Government and the two Chambers of Congress.