Tuesday 1 December 2009

EU-USA SWIFT & TFTP agreement materials

The home affairs part of the Justice and EU Home Affairs Council 30 November 2009 contains the following conclusions on the approved EU-US agreement on financial messaging data for counterterrorism investigations (document 16883/09; page 11):


The Council adopted an EU-US agreement on the processing and transfer of financial messaging data for purposes of the US Terrorist Finance Tracking Programme (TFTP 16110/09). It also adopted two political declarations on the subject.

The agreement aims to continue to allow the US Department of the Treasury to receive European financial messaging data for counter-terrorism investigations, while ensuring an adequate level of data protection. Requests by the US have to be verified by the competent authority of the relevant EU member states, they have to substantiate the necessity for the data and they have to be tailored as narrowly as possible. The agreement also provides for a joint review procedure, redress possibilities as well as a suspension clause.

The agreement is temporary. It will be provisionally applied as from 1 February 2010 and expire on 31 October 2010, at the latest. The European Parliament must consent to the formal conclusion of this temporary agreement in the coming months.

Any long-term agreement for the time after 31 October 2010 must be negotiated and concluded under the rules of the Treaty of Lisbon. These provide that the European Parliament must be fully informed at all stages of the negotiations and must give its consent to the formal conclusion of an agreement.

Concerning that follow-up agreement for the time after 31 October 2010, a Council declaration calls upon the Commission to submit as soon as possible, and at any rate no later than February 2010, a recommendation to the Council for the negotiation of a long-term agreement. It also states that the current agreement is without prejudice to any provisions in that long-term agreement.

In a second declaration, the Council and the Commission commit themselves to the Lisbon rules, i.e. to inform the Parliament immediately and fully at all stages during negotiations.

The negotiations on the provisional agreement adopted today, started in July 2009 and responded to a decision by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) to store its European financial messaging data no longer in a database located in the US, but only in Europe.

Under the Terrorist Finance Tracking Programme (TFTP), the US Department of the Treasury seeks to identify, track and pursue suspected terrorists and their providers of finance. It was set up shortly after the terrorist attacks of 11 September 2001. Relevant results of the US analysis have been and will continue to be shared with EU member states. A report by the former French investigating judge Jean-Luis Brugiere, commissioned by the Commission, concluded in December 2008 that the TFTP had generated considerable intelligence value also to the EU member states.


Council decision

This time the Council published a reference (and link) to the relevant document (16110/09; 26 pages): COUNCIL DECISION 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.

It contains the decision, a declaration and the agreement comprising 15 Articles, so some improvement has been made under the Swedish Council presidency.

It is now possible to discuss the issue on the basis of the final text of the agreement. Better late than never (despite the earlier, leaked versions).

Ralf Grahn

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