Answer given by Ms Malmström on behalf of the Commission

24.5.2011

The Commission is aware of the report in the Dutch newspaper NRC Handelsblad. The Commission has never been informed concerning bilateral transfers of financial messaging data. The Commission is also unaware of bilateral agreements between other Member States and the United States (US) concerning the transfer of financial messaging data.

It should be noted, however, that the report in the NRC Handelsblad makes reference to the provisions of an Agreement on mutual legal assistance between the US and the Netherlands. In this respect, it should be noted that according to Article 20(2) of the EU‑US TFTP Agreement, the latter does not derogate from the EU‑US Mutual Legal Assistance Agreement and related bilateral mutual legal assistance instruments between the United States and Member States.

Moreover, the Dutch Ministry of Justice has clarified in its reaction to this report that the bilateral treaty does include a provision on requesting banking data, but that this provision is limited to individual criminal cases and is not limited to terrorism. The Ministry also clarifies that a concrete suspicion of being involved in a criminal activity is required. Furthermore, the Ministry states that on the basis of the mutual legal assistance treaty, only specific information can be asked for, never the transfer of bulk data as in the case of SWIFT, and that requests for such information are handled by the prosecuting authorities in conformity with criminal procedural law provisions. Finally, the Ministry states that only a few dozen of such requests are dealt with each year.

In addition, SWIFT has commented on the report by stating unequivocally that it does not provide data to US authorities on the basis of the mutual legal assistance treaty, only on the basis of the EU‑US TFTP Agreement.

OJ C 309 E, 21/10/2011