19.8.2010   

EN

Official Journal of the European Union

CE 224/8

A.

whereas SWIFT announced in October 2007 a new messaging structure to be operational by the end of 2009,

B.

whereas this change in messaging structure would have the consequence that the majority of the financial data that SWIFT had thus far been subpoenaed to transfer to the US Treasury Department's TFTP would no longer be made available to the TFTP,

C.

whereas on 27 July 2009 the Council unanimously adopted the negotiating directives for the negotiation by the Presidency, assisted by the Commission, of an international agreement with the US, on the basis of Articles 24 and 38 of the Treaty on European Union, to continue the transfer of SWIFT data to the US TFTP,

D.

whereas the negotiating directives, together with the legal opinion on the choice of legal basis issued the Council's Legal Service, have not been made public, since they are classified ‘EU Restricted’,

E.

whereas the international agreement will provide for provisional and immediate application from the time of signature until entry into force of the agreement,

F.

whereas the EU itself does not have a TFTP in place,

G.

whereas access to data managed by SWIFT makes it potentially possible to detect not only transfers linked to illegal activities but also information on the economic activities of the individuals and countries concerned, and could thus be misused for large-scale forms of economic and industrial espionage,

H.

whereas SWIFT concluded with the United States Treasury Department a memorandum of understanding which narrowed the scope of data transferred and confined the scope of data searches to specific counter-terrorism cases, and subjected such transfers and searches to independent oversight and audit, including real-time monitoring,

I.

whereas any EU-US agreement must be conditional upon maintaining the protection which exists in the memorandum of understanding and the US Treasury representations, such as those that apply in the case of data subpoenaed from SWIFT's US operating centre by the US Treasury Department,

1.

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;

2.

Stresses that the European Union is based on the rule of law and that all transfers of European personal data to third countries for security purposes should respect procedural guarantees and defence rights and comply with data-protection legislation at national and European level (9);

3.

Reminds the Council and the Commission that, within the transatlantic framework of the EU-US agreement on legal assistance, which will enter into force on 1 January 2010, Article 4 provides for access to be granted to targeted financial data upon request, through national state authorities, and that this might constitute a sounder legal basis for the transfer of SWIFT data than the proposed interim agreement, and asks the Council and the Commission to explain the need for an interim agreement;

4.

Welcomes SWIFT's decision in June 2007 to relocate all intra-EU financial transfer data to two European operating centres; draws the Council's attention to the fact that this decision was taken in accordance with the Belgian Data Protection Authority and the request from the EU's Article 29 Working Party and in line with the view expressed by the European Parliament;

5.

Notes that the Council did not adopt the negotiation directives until almost two years after SWIFT announced the change in messaging structure;

6.

Is concerned that, with respect to the legal basis chosen for this envisaged agreement, the legal services of the institutions have expressed divergent opinions, and notes that the Council's Legal Service is of the opinion that it is a Community competence;

7.

Believes, to the extent that an international agreement is absolutely necessary, that it must as a very minimum ensure:

8.

Requests the Council and the Commission to clarify the precise role of the ‘public authority’ to be designated with responsibility to receive requests from the US Treasury Department, taking into account in particular the nature of the powers vested in such an ‘authority’ and the way in which such powers could be enforced;

9.

Requests the Council and the Commission to confirm that batches and large files such as those concerning transactions relating to the Single European Payment Area (SEPA) fall outside the scope of the data to be requested by or transferred to the US Treasury Department;

10.

Stresses that SWIFT is a key infrastructure for the resilience of Europe's payment systems and securities markets and should be not be unfairly disadvantaged vis-à-vis competing financial message providers;

11.

Underlines the importance of legal certainty and immunity for citizens and private organisations subject to data transfers under such arrangements as the proposed EU-US agreement;

12.

Notes that it may be useful for the Commission to evaluate the necessity of setting up a European TFTP;

13.

Requests the Commission and the Presidency to ensure that the European Parliament and all national parliaments will be given full access to the negotiation documents and directives;

14.

Instructs its President to forward this resolution to the Council, the Commission, the European Central Bank, the governments and parliaments of the Member States and candidate countries, and the United States Government and the two Chambers of Congress.