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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.
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
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
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.[email protected]Ari Syrquin is the head of the International Department at GSCB Law Firm.