Motion for a resolution - B7-0052/2009Motion 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

Marie-Christine Vergiat on behalf of the GUE/NGL Group

Document stages in plenary
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Texts tabled :
Texts adopted :


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) TEU and Article 286 TEC,

–   having regard to Articles 95 and 300 TEC,

–   having regard to the European Convention on Human Rights, in particular Articles 5, 6, 7, 8 and 13 thereof,

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

–   having regard to the Universal Declaration of Human Rights, in particular Articles 8, 10, 11 and 12 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) founded on US Presidential Executive Order 13224[6], which authorises in case of 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 Treasury Department 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 compliance by the US authorities to 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 Rules 110(2) and 90(5) 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 so far been subpoenaed to transfer to the United States Department of the Treasury’s TFTP programme 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 on the basis of Articles 24 and 38 TEU with the US to continue the transfer of SWIFT data to the US TFTP,

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

E.  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’,

F.  whereas access to data managed by SWIFT or any other financial institution concerning information on the economic activities of individuals and the countries concerned, may give rise to misuse regarding the right to privacy of citizens and large scale forms of economic and industrial espionage,

G. 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,

1.  Is strongly concerned about the violation of data protection of European citizens by unlawful action;

2.  Recalls 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 which should always be considered when drafting and implementing EU legislation or international agreements;

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

4.  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 more sound 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;

5.  Welcomes SWIFT’s decision of 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;

6.  Demands that the Council explain why it only adopted the negotiation directives almost two years after SWIFT announced the change in messaging structure, thus forcing the Commission to negotiate under - completely avoidable - urgent and unfavourable conditions and effectively preventing any meaningful debate or democratic scrutiny by national parliaments;

7.  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; underlines that on this matter an opinion of the Court of Justice and an opinion of the Fundamental Rights Agency are requested for further examination of the essential safeguards and legal conditions to be fulfilled by such an agreement;

8.  Condemns the fact that the Council and the Commission did not inform Parliament from the beginning of the negotiation procedure and calls on both to re-assess the necessity of such an agreement, since there already exist satisfactory means for combating criminal action and the European Union does not need to formally give the USA or any other third country the right to have access to its citizens’ data;

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

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

11. 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.