Verbatim report of proceedings

Wednesday, 16 September 2009 - Strasbourg

5. SWIFT (debate)

  President. − The next item is the Council statement on SWIFT.

  Beatrice Ask, President-in-Office of the Council. – (SV) Mr President, in the overall fight against terrorism, the key question is how are such activities financed. Preventing the financing of terrorism and tracking clues that such transactions may leave behind can both prevent terrorist crimes and be important in the investigation of such crimes. In order to do this, we need international cooperation. Here, we should take up the challenge laid down in the UN’s 1999 Convention for the Suppression of the Financing of Terrorism and the conventions of the European Council in this area.

Members who participated in the in camera meeting of the Committee on Civil Liberties, Justice and Home Affairs on 3 September 2009 heard how the Terrorist Finance Tracking Programme, the TFTP, has helped to improve security for EU citizens as well as others. In recent years, information from the TFTP has contributed to revealing and investigating terrorist crimes and has also succeeded in preventing terrorist attacks on European soil.

The Presidency was given a unanimous negotiation mandate by the Council on 27 July 2009 that is based on a proposal from the Commission. It would have been better if the negotiations with the US could have taken place on the basis of the Treaty of Lisbon. The European Parliament could then have participated fully, but as you are aware, that is not yet possible. Since SWIFT is moving its database from the US to Europe at the end of the year, it is essential that the EU concludes a short-term agreement with the US as soon as possible so that there is no risk of the exchange of information being interrupted. That is in everyone’s interest.

I would like to stress that this is an interim agreement for the period until a permanent agreement can be concluded. It must have a term of no more than twelve months and the Commission has advised that it intends to submit a proposal for a permanent agreement as soon as a new Treaty is in place. If the TFTP is to be of use to the EU and the Member States, the US must continue to provide the respective authorised authorities within the EU with information from the TFTP in the same way as previously. This is indeed what will happen.

Moreover, the interim agreement will provide an express opportunity for the EU’s crime prevention authorities to request information themselves from TFTP databases in the investigation of terrorist crimes. The Presidency is convinced of the benefit of information from the TFTP. At the same time, we are clear that the interim agreement must contain the necessary mechanisms to guarantee the protection of individuals’ privacy, the rule of law and data protection. The draft agreement therefore contains a provision stating that there must be a separate EU authority to receive, process and approve any request from the US to obtain information from SWIFT.

It is equally important that the interim agreement contains detailed provisions on data protection for the information that the US receives from SWIFT via the European authority. Here, the agreement will go further than was previously the case in the unilateral commitments to the EU made by the US in the TFTP representations of 2007, as published in the Official Journal of the European Union.

Allow me to mention certain other provisions that we will demand are included in the agreement. Data must be stored securely, all access to data shall be logged, all searches in the TFTP database shall be restricted and shall only cover persons or information where there are good grounds for suspicion or there is a clear link to a terrorist crime. The storage period for the information reviewed shall be limited and information shall be deleted from the database after five years at most, or earlier if possible.

We can clearly state that the TFTP will be permitted to be used only in investigations of terrorist crimes, including the financing of terrorism. Neither the US nor the EU may use the system to investigate other kinds of crime or for other purposes. Naturally, it is also important that the transfer of information from the EU to the US under the TFTP is proportionate. In addition to the rules concerning the European authority that I mentioned previously, the agreement therefore also contains a provision stating that the system must be appraised by an independent appraisal body. Where the EU is concerned, this body will consist of representatives of the Presidency, the Commission, and two people from the Member States’ national data protection authorities. The task of the appraisal body will be to check compliance with the agreement, to check the correct application of the provisions on data protection and to check that the transfer of data is proportionate.

We have a common responsibility to ensure that the crime prevention authorities can counter terrorism effectively. We also have a common responsibility to ensure that this takes place with legal certainty while respecting fundamental rights. The Presidency is convinced that the exchange of information with the US within the framework of the TFTP increases protection from terrorism, and that we can achieve both an interim agreement and eventually a long-term agreement which not only meets our stringent requirements of data protection but which also respects fundamental rights.

  Jacques Barrot, Vice-President of the Commission. − (FR) Mr President, honourable Members, I would firstly like sincerely to thank Mrs Ask for giving us a summary of all the developments concerning SWIFT and of the negotiations under way with the United States on the continuation of the Terrorist Finance Tracking Programme, the TFTP.

I myself had the opportunity, during the meeting of the Committee on Civil Liberties, Justice and Home Affairs on 22 July, to explain the workings of the TFTP and why we need an interim solution to prevent its interruption. The joint meeting of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Economic and Monetary Affairs on 3 September took place with the Swedish Presidency, the Director-General of the Directorate-General for Justice, Freedom and Security, Mr Faull, and Mr Bruguière in attendance. I believe that this meeting allowed a number of still open issues to be clarified.

I would like briefly to underline some aspects. The added value of the evaluation, by the US Treasury, of data within the context of the TFTP has been confirmed by Mr Bruguière’s report, which the members of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Economic and Monetary Affairs were able to examine at the joint meeting at the beginning of September. As the Presidency has also reminded us, this analysis of the data has enabled the US authorities to prevent attacks and to facilitate investigations concerning terrorist attacks, both in the United States and in Europe.

Moreover, Judge Bruguière’s report confirmed that the US authorities had honoured the commitments they made in 2007 regarding data protection, namely – as Mrs Ask explained very well just now – to limit data preservation and to limit access to the data, so that they are used only where terrorist financing is suspected. In short, Mr Bruguière said that the commitments have been honoured.

It is clear, however, that the judicial framework negotiated in 2007 will no longer be operational since the data will no longer be located in the United States, after the change in the architecture of SWIFT, scheduled for the end of the year. An interim international agreement between the European Union and the United States is needed so that the US authorities can continue to analyse data concerning inter-European transactions taking place in the Netherlands.

The inclusion in this agreement of all the guarantees necessary to safeguard the fundamental rights of our citizens, notably that of the protection of personal data, is absolutely imperative. Of course, we support the Presidency wholeheartedly in its efforts to that end.

Moving on, I would like, above all, to say to the House, Mr President, that, as the Minister has just mentioned, we are talking about an interim agreement, the duration of which cannot exceed a maximum of 12 months. This means that it can be renegotiated immediately once the Treaty of Lisbon has entered into force, with the full involvement of the European Parliament. I can genuinely assure you, here, that the Commission will, of course, continue to keep Parliament constantly informed of the progress of this matter.

I would add that we are pleased to be able to prepare this agreement, which will be a permanent agreement, a long-term agreement, by demanding, of course, full reciprocity from our US partners. The fight against terrorism concerns us, too, and there is no reason why there should not be full and complete reciprocity. That is why I believe the involvement of Parliament in this negotiation of a future long-term agreement will be beneficial.

That is what I believe in all honesty. I would once more like to thank the Swedish Presidency and Mrs Ask for giving us a thorough overview of the situation, which has today given rise to this, once again, interim agreement.

  Ernst Strasser, on behalf of the PPE Group. – (DE) Mr President, Mrs Ask, Commissioner, ladies and gentlemen, the US is an important partner in the fight against terrorism. However, on the question of sensitive data in particular, we want European regulations on data security, on civil rights and on the individual rights of our citizens as far as data is concerned, in cooperation with the Americans. That is why we in the European People’s Party (Christian Democrats) are calling for a number of basic criteria for concluding this sort of contract.

Firstly, there must be a balance between civil security and civil rights. Secondly, we need legal certainty for the companies concerned and for our citizens. Thirdly, we welcome the co-legislator role of the European Parliament and therefore also welcome the intention of concluding a transitional agreement. We wish you, Mrs Ask, and the Commission, success here in the coming weeks.

Fourthly, we believe that internal European data sets should be handled in accordance with European law, both in the transitional agreement and in the final agreement. Fifthly, we want a similar instrument to the TFTP, to be introduced in addition at EU level, and, sixthly, we are of the opinion that this is the precondition to reciprocity.

These are our thoughts and we trust that they will meet with a broad consensus in plenary. Once the transitional agreement has been concluded, we will need to negotiate and conclude the final agreement quickly.

  Claude Moraes, on behalf of the S&D Group. – Mr President, SWIFT has clearly become a testing ground for getting the balance right between our cooperation with the United States, fighting terrorism and protecting our fundamental rights.

When, in our resolutions of 2006 and 2007, Parliament asked for the mirroring site of SWIFT to be moved from US to EU soil, it was obviously because we thought that the protection offered by the US framework to EU citizens was not in line with EU standards and would have to be improved. So it is a positive development, and our group welcomes the fact that SWIFT’s two new servers will now be moved to Europe and that a new legal framework will be set up in order for the US TFTP to continue using and processing data in cooperation with our law enforcement authorities.

My group can also see that the recommendation adopted by the Council tries to address some of Parliament’s and the European Data Protection Supervisor’s concerns. But there are some key questions left open. If US legal standards continue to apply on EU soil for the processing of EU data, how can we guarantee respect for EU standards regarding procedural rights and the protection of personal data? To which judge can an EU citizen or an EU enterprise go in the case of criminal prosecution?

Of course, one of the most important issues is the timing of the agreement and the interim nature of the agreement, as the Council and Commission have set out. The choice of a third-pillar legal base, coupled with its interim character, leaves Parliament – and, therefore, EU citizens – completely out of the legislative process. The Socialist and Democrat Group is clear that this interim agreement should apply only for 12 months and that a new agreement should be negotiated with Parliament as co-legislator so that we in this House can ensure that delicate balance of protecting the fundamental rights of European citizens in the important and critical fight against terrorism.

  Sophia in 't Veld, on behalf of the ALDE Group. – (NL) Mr President, after all these warm words, I am going to put a cat among the pigeons! I am not going to say anything about the content, as I think it is self-evident that what has been negotiated is in line with European standards of legal protection and the protection of personal data, but I do now want to get a couple of answers about the process, as this is the umpteenth example of the Council taking decisions affecting citizens behind closed doors. The governments of Europe and the United States want to know everything about our private lives, but we, as citizens, do not get to know what the Council does. For me, that is a little bit back-to-front. The fight against terror has practically become a kind of runaway train, with the Council showing utter contempt for European citizens and parliamentary democracy. Every time, whether the current case relates to Swift, PNR, data retention or whatever else, we are told that ‘this is indispensable to the fight against terror’. I dare say, Minister, but when will we actually get some facts for once, when will we do some evaluation? There are also a number of questions that I would really like to see answered in relation to Swift, as they were not answered on 3 September. Why not? It was known back in 2007 that the architecture of Swift needed to be reformed. Why did the Council only come up with this plan at the very last minute in the summer, while Parliament was still to get started? Why have you not consulted the national parliaments on the mandate? Why? Is this not a case of policy laundering, Minister, where it is actually the case that European governments are trying to get access to our data via the US government? Just come out and say it!

Finally, let me deal with transparency. The documents, and specifically the legal advice from the Council’s own Legal Service, must be made public, and not just in a small room only accessible to MEPs – since we have already found them next to the photocopier, we already know what they say – but for the citizens of Europe. That is real transparency.

  Jan Philipp Albrecht, on behalf of the Verts/ALE Group. – (DE) Mr President, the Presidency and the Commission talk constantly of strengthening civil rights and of a Europe of the citizens. In fact, however, fundamental rights are being eroded and proper public debate on them frustrated. Every effort is being made to exclude parliaments and hold back information. This sort of untransparent approach is unacceptable for a democratic Europe.

It is not enough to just tap at the door; a responsible parliament must stop this undesirable development. The Presidency must interrupt negotiations until it can guarantee the rights of citizens and parliaments. The horse-trading which you are planning for banking data, with no binding protection mechanism, will sell the data protection rights of Europe’s citizens down the river and create a preventive general suspicion towards all citizens.

We Greens will have nothing to do with this. Not even temporarily and certainly not if we have servers here in Europe and no longer just in the US, because the data will continue to be sent to the US nonetheless and legal protection will not be guaranteed.

  Marie-Christine Vergiat, on behalf of the GUE/NGL Group. – (FR) Mr President, ladies and gentlemen, it is a great honour for me to speak for the first time in this House on behalf of the millions of Europeans who want a different Europe.

The SWIFT affair is symptomatic of the security blunders imposed in the name of terrorism, where utter contempt is shown for the most fundamental rights of our fellow citizens. In this affair, the United States plundered bank data, without legal basis and without even the slightest information from the authorities in Europe. The scandal has made the European authorities sit up and take notice. An agreement has been signed with the US Government. An expert has made an assessment of this agreement. Which expert, though? A French anti-terror judge, Judge Bruguière, whose errors in the area of fundamental rights are well known in France. We are therefore sceptical about the quality of his report.

Apart from the matter of principle, the proposal for a resolution put before us includes numerous warnings that we agree with, but they are insufficient. We propose amendments to reinforce the demands that the European Parliament has a duty to make. We must go further and call for the suspension of the agreement if the principles set out are infringed. We would like to know why it has taken the European authorities so long to inform Parliament and why there has been such a rush to conclude this new agreement.

We are counting on the Swedish Presidency. We will continually monitor respect for human rights. Yes, our fellow citizens have a right to security, but this must be done without us being forced to live in a big brother society where everyone knows everything about us.

  Beatrice Ask, President-in-Office of the Council. – (SV) Mr President, thank you for these important points of view. I will try to answer some of the questions in the short time available.

The first question that arises is, of course, how we can guarantee that the US will abide by the agreement. I would like to say that first we have the Bruguière report, which provides a good description of compliance with the terms of what has been agreed to date. Secondly, the draft agreement mentions an appraisal body, which I described to you, and also the Presidency, the Commission and representatives of national data protection authorities, the involvement of which is intended to check that the matter is dealt with correctly. Obviously, it is crucial that the information is reliable. It is also important that everyone realises that when information is transferred in this data programme, it is not the case that people can go in at any time and look at whatever they like. There has to be a suspected terrorist crime or the financing of such in order to gain access to this information. Naturally, this restricts how the information can be used.

As regards the criticism as to why this is being brought up now, during the summer, I would point out that the Presidency has asked more or less the same questions as the Members of the European Parliament are asking. We were tasked with preparing the matter thoroughly and analysing – among other things – this report, which answers some questions, but also with other matters. The reality is that it was not us that decided that SWIFT was to be moved to Europe; this is happening on the basis of other decisions. However, the US is keen to be able to use this tool in its fight against terrorism and we also think the equivalent information would be useful to us. In order for this to happen, we need an agreement. Since the Treaty of Lisbon has not entered into force, we felt it was necessary to provide a temporary solution. That is what we are negotiating and that is what we have been mandated by the Council to do. That is what I have attempted to describe.

Neither is it the case that the Presidency wishes to unnecessarily restrict insight or debate in any respect. Firstly, this is a public debate after all, and secondly, we are, of course, happy to talk about how the discussions are going. However, during negotiations, it is not possible to provide continual access to documents since the very nature of negotiations is that things get changed and then changed again. However, I have tried to describe our starting point and the clear mandate that we have from the Council. In this, we are very determined to combine a high level of effectiveness and practical use with the stringent requirements of legal certainty and respect for civil liberties and human rights. I am entirely convinced that we will achieve this. If – contrary to expectation – we do not, then there will be no agreement.

IN THE CHAIR: MR WIELAND
Vice-President

  Jacques Barrot, Vice-President of the Commission. − (FR) Mr President, I would simply like to confirm the remarks made by the Minister, who, incidentally, has drawn a very clear conclusion: if we did not really have the data protection assurances we need, for the lasting agreement that the Presidency will have to negotiate and for which the Commission will lend its support, there would not be an agreement.

That being the case, I believe that we should be able to reconcile matters and so conduct a campaign against terrorism, with respect shown, of course, for the great values and the great principles which mean that we in Europe attach much importance to the protection of privacy, on the one hand, and to the prevention of all commercial espionage, on the other.

I would simply say that, as far as I am concerned, since taking up my duties, I have obviously noted the fact that the Council asked Judge Bruguière to go and carry out this fact-finding mission in the United States. The Bruguière Report, which dates from December 2008, was handed to me in January 2009. This report was presented to the European Parliament and the JHA Council in February 2009. It was at that point that the Commission felt that it had in its hands the essential elements to ensure the continuity of the TFTP in anticipation of a time when, with the Treaty of Lisbon signed and the Parliament a co-legislator, we can really negotiate a long-term agreement with all the guarantees that the Minister mentioned and all the demands for reciprocity that Mr Strasser, in particular, touched on as well.

I believe that in this matter, the Council has just made its will very clear. The Commission shares this opinion, this firm and clear commitment by the Council to make sure that the European Parliament does indeed become a co-legislator, when the time is right for a lasting agreement.

  Sophia in 't Veld (ALDE). – Mr President, I have a small point of order. I note that once again we are not getting replies from the Council to the questions that we put. I asked why the Council waited for two years, until the very last moment, to decide on this deal, and I would also like to know – and we can get the answer in writing – why the national parliaments have been completely excluded from the whole procedure. Finally, I read your answer, which was fairly vague and seemed to be saying that you will not publish the legal opinion of the Legal Service of the Council.

  President. − The debate is closed.

(Vote: 17 September 2009)