Explanatory Memorandum to COM(2010)317 - Signature of the Agreement with the USA on the processing and transfer of Financial Messaging Data from the EU to the US for purposes of the Terrorist Finance Tracking Program - Main contents
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| dossier | COM(2010)317 - Signature of the Agreement with the USA on the processing and transfer of Financial Messaging Data from the EU to the US for ... |
|---|---|
| source | COM(2010)317  |
| date | 15-06-2010 |
- The TFTP has generated significant intelligence which has benefitted Member States' fight against terrorism. The purpose of the Agreement is to ensure the continuation of the TFTP by making available to the United States Treasury Department financial messaging data stored in the EU for the purposes of the Terrorist Finance Tracking Program (TFTP). Since the new systems architecture of the Society for Worldwide Interbank Financial Telecommunication –SWIFT- (hereinafter referred to as the 'designated provider') became operational on 1 January 2010, a significant volume of the data which were previously received by the U.S. Treasury Department under the TFTP, have not been available, undermining the benefits of the TFTP not least for the European Union. This Agreement is therefore necessary to enable the functioning of the TFTP without the limitations derived from the designated provider's new systems architecture and ensure that the TFTP can produce EU - and wider global – security benefits .
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- The TFTP has existed since end 2001, pursuant to which the United States Department of the Treasury served administrative subpoenas on the U.S. arm of the designated provider for the transfer to the Treasury Department of limited sets of financial messaging data which transit over the designated provider's financial messaging network.
- In early 2007 the Presidency of the Council of the European Union and the European Commission engaged in discussions with the U.S. Treasury Department concerning the latter's processing of EU-originating personal data accessed under the TFTP. As a direct consequence of these discussions, the Treasury Department made a series of unilateral commitments to the European Union in June 2007 ("the TFTP Representations").[1] The TFTP Representations expressly limit the Treasury's processing of EU-originating personal data accessed pursuant to the TFTP. Limitations include, for example, that data will be processed exclusively for counter terrorism purposes, that data can only be accessed if there is a pre-existing terrorism nexus (i.e. no data mining) and an obligation to delete data after a certain period. In addition, the TFTP Representations state that the Commission may appoint an 'eminent European person' who will verify and report to the Commission on U.S. Treasury compliance with its commitments.
- In March 2008 the Commission announced that it had designated Judge Jean-Louis Bruguière as the TFTP 'eminent European person' whose role would be to verify that the TFTP is implemented in accordance with the Representations. Judge Bruguière completed his first report in December 2008. The Report which was presented to the Justice and Home Affairs Council in February 2009 and to the European Parliament's Civil Liberties Committee in February and September 2009, finds that the U.S. Treasury Department complies with the commitments set out in the TFTP Representations. The Report further concludes that the TFTP has generated considerable value for Member State authorities' investigation of terrorism and that Member State authorities have been the main beneficiaries of TFTP-derived information i. There is currently no equivalent of the TFTP in the European Union.
- On 1 January 2010, the new 'systems architecture' of the designated provider became operational. Under this new systems architecture, the designated provider retains its existing EU-based and U.S. servers and brings into operation a new operating centre in Switzerland. The net effect of this new arrangement is that a significant volume of the data which were received by the U.S. Treasury Department under the TFTP is no longer stored in the United States. In order to ensure that the TFTP continues to produce EU - and wider global – security benefits, it is necessary to put in place an international agreement that allows for data needed for the TFTP to continue to be made available to the U.S. Treasury Department.
- The JHA Council of 30 November 2009 authorised the Presidency of the Council of the European Union to sign an interim agreement between the EU and the United States on the processing and transfer of Financial Messaging Data from the EU to the U.S. for purposes of the TFTP. The interim agreement, also signed on 30 November 2009, was to have a maximum duration of 9 months. However, on 11 February the European Parliament adopted its Resolution withholding consent for the TFTP Interim Agreement. A letter signed by the President of the Council was delivered to the US Secretary of State on 22 February 2010 stating that as a consequence of the Parliament's Resolution, the EU could not become a party to the Interim Agreement and terminating the provisional application of the Agreement. No data were ever transferred under the Interim Agreement.
- Following the termination of the provisional application of the Interim Agreement, data stored by the designated provider in its EU server remains inaccessible to the Treasury Department for the purposes of the TFTP. It is necessary to conclude this Agreement as rapidly as possible in order to make these data available to the United States Treasury Department for the purposes of preventing and combating terrorism and terrorist financing.
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- In the longer-term, there is an ambition for the European Union to establish a system equivalent to the TFTP, which could enable the analysis of data held in the European Union to take place on the territory of the European Union. This possibility is expressly recognised within the Agreement, and the United States of America has committed to support this development in order to enable its successful establishment
- The Agreement aims at preventing and combating terrorism while respecting fundamental rights, and notably the protection of personal data. 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 aims to ensure full respect for fundamental rights enshrined in Article 6 i, of the Treaty on European Union, in particular the right to privacy with regard to the processing of personal data as stipulated in Article 16 of the Treaty on the Functioning of the European Union and for the principles of proportionality and necessity regarding the right to respect for private and family life and the protection of personal data as set out in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.
- The Agreement has secured significant safeguards for those whose data is processed by the designated provider within the European Union if it is transferred to the Treasury Department under this Agreement. Most notably, the Agreement provides for transparency of the use of data; access, blocking and rectification of data; as well as administrative redress on a non-discriminatory basis and the availability of a process for seeking judicial redress under U.S. law, regardless of nationality or place of residence. Where leads resulting from the data are shared with third parties, the Member State concerned will be consulted as appropriate. The Agreement offers a strengthened process for the European Union to review its functioning, and to monitor the independent oversight of the TFTP.
- Article 218 i of the Treaty on the Functioning of the European Union states that the Council shall authorise the signing of international agreements.
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- The Commission therefore proposes to the Council to adopt a decision signing 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.