WHAT’S NEW IN THE EU: EU-US agree on terror-finance tracking

The European Council last week adopted a declaration on the EU-US Agreement on the Transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Program.

By ARI SYRQUIN
February 14, 2010 23:00
3 minute read.
WHAT’S NEW IN THE EU: EU-US agree on terror-finance tracking

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The European Council last week adopted a declaration on the EU-US Agreement on the Transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Program (TFTP).

In June 2009 the European Commission presented draft negotiation guidelines for a short-term TFTP agreement to the European Council. At the end of July 2009, the European Council adopted negotiation guidelines for such an agreement, on the basis that in the absence of such short-term agreement an important security gap would arise in which there would be a risk of losing the benefit of important leads obtained through the TFTP from European financial transactions for future terrorism investigations.

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As SWIFT (a Belgium-based company with offices in the United States which operates a worldwide messaging system used to transmit, inter alia, bank transaction information) had clearly indicated that it would redesign its database at the latest by the end of 2009, it was seen as a mistake to wait for the entry into force of the Lisbon Treaty before starting the negotiations on such agreement.

The important value of the TFTP, a United States Treasury Department counter-terrorism program, for member states’ investigation and disruption of terrorism has been amply demonstrated, including in the second Bruguière Report which was provided to the European Parliament on February 1, 2010.

Being aware of the entry into force of the Lisbon Treaty, the Council, when authorizing the signing of the agreement with the United States on the processing and transfer of financial messaging data for the purposes of the TFTP, decided that the agreement should have a transitional nature and should be applicable only for a very short term, having a maximum duration of nine months. This period is even shorter than the maximum of twelve months that was called for in the European Parliament’s Resolution of September 17, 2009.

The European Council also pointed out in its declaration that the short term agreement already contains an important number of the guarantees, which were called for in the European Parliament’s Resolution of September 17, 2009, as was requested during negotiations by member states.

The demands for a judicial authorization as well as for a “push” system are also being complied with by the current short-term agreement.

The agreement clearly prohibits the use of any SWIFT data for purposes other than those linked to the financing of terrorism. The short-term agreement is, as the European Parliament had asked for, based on the 2003 EU-US Mutual Legal Assistance Agreement, and at the same time provides for a significantly higher level of data protection than the 2003 agreement. In addition, it provides a joint review (Article 10) ensuring a real control on the functioning of the TFTP Agreement, which can be launched at the simple request of the European Union.

As regards to a long-term EU-US TFTP agreement, the European Council says it shares the Parliament’s concerns regarding 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.

The European Council called on the Commission to adopt in February draft negotiation guidelines that fully take into account the concerns expressed by both institutions. It is of the opinion that a long-term agreement should contain strong guarantees concerning effective redress, the deletion of data and greater specificity regarding the sharing of TFTP-derived information with national authorities and third countries.

The data protection safeguards already set out in the short-term agreement, such as the strict purpose limitation and the absolute prohibition on data mining, will also feature prominently in any future TFTP agreement. The European Council says it looks forward to the new situation, which has been created by the Lisbon Treaty and to work together with the European Parliament, which needs to be informed fully and immediately at all stages of the procedure. This will allow the European Parliament to fully exercise it’s role provided in the Treaty, in order to achieve that the long-term TFTP agreement meets it’s concerns regarding the protection of personal data, while ensuring that the TFTP can continue to provide EU member states with significant lead information to investigate and disrupt terrorism.

The European Council stated in its declaration that it understands the need of the European Parliament to have easier access to the classified parts of international agreements in order to carry out its assessment when it has a right of consent. In that perspective the European Council commits itself to negotiate an inter-institutional agreement with the European Parliament on this issue.

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Ari Syrquin is the head of the International Department at GSCB Law Firm.


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