Tuesday, 19 January 2010

Puzzling EP action over EU-USA bank data deal?

What is happening between the European Parliament and the Council? I have to admit that I was puzzled, even shocked when I saw that the EP is threatening the EU Council with political blackmail.

EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).

The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.

Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.

The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:

COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, 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 Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.

This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.

The annexed contents of the TFTP / SWIFT Agreement were here.

Parliament v Council

The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).

The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).

Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.

The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.

On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.

The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.

If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.

At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.

The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:

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.

Ralf Grahn

P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.

By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.