MOTION FOR A RESOLUTION on the suspension of the SWIFT agreement as a result of NSA surveillance
16.10.2013 - (2013/2831(RSP))
pursuant to Rule 110(2) of the Rules of Procedure
Kyriacos Triantaphyllides, Cornelia Ernst, Willy Meyer, Marie-Christine Vergiat, Patrick Le Hyaric, Nikolaos Chountis, Jacky Hénin, Jean-Luc Mélenchon, Younous Omarjee on behalf of the GUE/NGL Group
B7‑0481/2013
European Parliament resolution on the suspension of the SWIFT agreement as a result of NSA surveillance
The European Parliament,
– having regard to Article 16 of the Treaty on the Functioning of the European Union (TFEU),
– having regard to Article 87 TFEU,
– having regard to Article 218 TFEU,
– having regard to Article 225 TFEU,
– having regard to Article 314 TFEU,
– having regard to the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program,
– having regard to its resolution of 4 July 2013 on the US National Security Agency surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ privacy[1],
– having regard to Council Decision 2010/412/EU of 13 July 2010 on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Programme[2] and to the accompanying declarations by the Commission and the Council,
– having regard to its resolution of 17 September 2009 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[3],
– having regard to its resolution of 11 February 2010 on the proposal for a Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Programme[4],
– having regard to its resolution of 5 May 2010 on the Recommendation from the Commission to the Council to authorise the opening of negotiations for an agreement between the European Union and the United States of America to make available to the United States Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing[5],
– having regard to its resolution of 8 July 2010 on the draft Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program[6] and to the recommendation of the Committee on Civil Liberties, Justice and Home Affairs (A7-0224/2010),
– having regard to the reports of 30 March 2011 (SEC(2011)438) and of 14 December 2012 (SWD(2012)454) on the joint review of the implementation of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program,
– having regard to the report of 1 March 2011 on the inspection of Europol’s implementation of the TFTP Agreement, conducted in November 2010 by the Europol Joint Supervisory Body,
– having regard to the Europol Joint Supervisory Body’s public statement of 14 March 2012 on the implementation of the TFTP Agreement,
– having regard to the assessment of 18 March 2013 by the Europol Joint Supervisory Body of the outcome of the its third inspection of Europol’s implementation of its tasks under the TFTP Agreement,
– having regard to the letter of 18 April 2011 from Paul Breitbarth, of the Dutch Data Protection Authority, to the head of delegation of the EU Joint Review Team TFTP,
– having regard to the letter of 7 June 2011 from Jacob Kohnstamm, on behalf of the Article 29 Data Protection Working Party, to Ms Melissa A. Hartman, Deputy Assistant Secretary, US Department of the Treasury,
– having regard to the letter of 21 December 2012 from Jacob Kohnstamm, on behalf of the Article 29 Data Protection Working Party, to Juan Fernando López Aguilar, Chair of the Committee on Civil Liberties, Justice and Home Affairs,
– having regard to the letter of 12 September 2013 from Commissioner Malmström to David Cohen, Under Secretary of the US Department of the Treasury for Terrorism and Financial Intelligence, and to Under Secretary Cohen’s answer of 18 September 2013,
– having regard to the Commission communication of 13 July 2011 entitled ‘A European terrorist finance tracking system: available options’ (COM(2011)429),
– having regard to Written Questions E-11200/2010, E-2166/2011, E-2762/2011, E-2783/2011, E-3148/2011, E-3778/2011, E-3779/2011, E-4483/2011, E-6633/2011, E-8044/2011, E-8752/2011, E-617/2012, E-2349/2012, E-3325/2012, E-7570/2012 and E‑000351/2013,
– having regard to Rule 110(2) of its Rules of Procedure,
A. whereas the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program (hereinafter ‘the Agreement’) entered into force on 1 August 2010;
B. whereas, after rejecting the temporary TFTP Agreement, a majority of the European Parliament only gave its consent to the current TFTP Agreement due to strengthened protections safeguarding the personal data and privacy rights of EU citizens;
C. whereas the US Treasury classified a large quantity of relevant information regarding this Agreement as ‘EU Secret’;
D. whereas, according to the Article 29 Data Protection Working Party, the current procedure for exercising the right of access may not be adequate and it may not be possible to exercise the right to rectification, erasure and blocking;
E. whereas in its 2012 implementation report the Europol Joint Supervisory Body highlighted the built-in flaws of the Agreement by stating explicitly: ‘Europol receives one request each month on average. Each request normally covers a period of one month in terms of time-span. The requests – when seen as a group – therefore essentially cover a continuous time period. To be clear, this means that one consequence of the Agreement, as it is currently being implemented, is that data relating to certain financial transactions are provided by the designated provider to the US for a time frame containing every single day of the year, year on year. If it is the case that – in reality – narrowing the requested time frame or not requesting certain countries/territories’ cross-border transfers data would be impractical given the nature of the programme, this could indicate that it is not possible to fulfil all intended safeguards of Article 4’;
F. whereas the Commission was invited to submit to Parliament and the Council, no later than 1 August 2011, a legal and technical framework for the extraction of data on EU territory and, no later than 1 August 2013, a progress report on the development of the equivalent EU system with regard to Article 11 of the Agreement;
G. whereas instead of submitting the legal and technical framework for the extraction of data on EU territory, on 13 July 2011 the Commission presented a description of the different steps it has taken to move towards establishing such a legal and technical framework, communicating preliminary results and some theoretical options for a European terrorist finance tracking system without going into detail;
H. whereas the progress report on the development of an equivalent EU system under Article 11 of the Agreement was never presented;
I. whereas press reports indicate that the US National Security Agency (NSA) has had direct access to the IT systems of a number of private companies and gained direct access to financial payment messages referring to financial transfers and related data by a provider of international financial payment messaging services currently covered by the Agreement;
J. whereas confidential talks between Commission services and the US administration cannot be considered to count as an investigation, nor does mere reliance on statements by the US;
1. Reiterates its rejection of bulk data exchange with the United States and with all third countries in general in the name of the fight against terrorism;
2. Rejects the false dichotomy of security versus freedom; takes the view that individual freedom and respect for fundamental rights are a cornerstone of security within any society;
3. Recalls that any security measure, including counterterrorism measures, should be conceived in support of guaranteeing individual freedom and must be fully compliant with the rule of law and subject to fundamental rights obligations, including those related to privacy and data protection;
4. Emphasises that the test of necessity and proportionality of any measure that limits fundamental rights and freedoms needs to take into account the entire body of existing security measures targeting terrorism and serious crime; takes the view, therefore, that every additional legal measure proposed in the framework of the fight against terrorism and serious crime needs to meet an ever higher and more stringent necessity and proportionality test; opposes, in this context, the trend of blanket justifications of any security measure by general reference to the fight against terrorism or serious crime;
5. Reiterates that any data-sharing agreement can only be based on a coherent legal data protection framework offering legally binding personal data protection standards, especially with regard to purpose limitation, data minimisation, information, access, correction, erasure and judicial redress;
6. Is extremely worried about the press reports on the activities of the NSA and the alleged tapping into the SWIFT servers;
7. Calls for a full on-site independent technical investigation of allegations that the US authorities have unauthorised access to, or that they have created possible back doors into, the SWIFT servers; emphasises that such an investigation should be carried out by independent IT and cybersecurity experts;
8. Interprets that the interception of SWIFT data by the NSA outside the Agreement may in itself present a breach of Article 4 of the Agreement, and should therefore automatically lead to a call for termination of the Agreement;
9. Is convinced that in general the Agreement has not been implemented in accordance with its provisions, in particular as laid down in Articles 4, 12, 13, 15 and 16 thereof, and has therefore failed to respect the data protection principles of purpose limitation, necessity and proportionality;
10. Requests the Commission to take the necessary steps in order to terminate the Agreement immediately;
11. Strongly urges the three institutions to deliberate carefully on any future data exchange alternatives, and especially to carry out an in-depth impact assessment on the human rights implications arising therefrom, on a basis of full respect for general data protection principles, especially the necessity and proportionality test;
12. Requests that all relevant information and documents exchanged between the Commission, national governments and the US administration be made immediately available for deliberation to the national parliaments and the European Parliament, including the underlying intelligence;
13. Instructs its President to forward this resolution to the Council, the Commission and Europol.