Parliament refused on Thursday to give its consent to the EU's interim agreement on banking data transfers to the USA via the SWIFT network, amid concerns for privacy, proportionality and reciprocity. This move renders the text signed between the US and the 27 EU Member states legally void. MEPs propose to negotiate a new agreement.
The resolution rejecting the agreement was approved by 378 votes to 196, with 31 abstentions. It also asks the Commission and the Council to initiate work on a long-term agreement with the USA on this issue. MEPs reiterate that any new agreement must comply with Lisbon Treaty requirements, and in particular the Charter of Fundamental Rights.
A proposal by the EPP and ECR groups to postpone the vote was rejected by 290 votes to 305, with 14 abstentions.
"Council has not been tough enough on data protection" said rapporteur Jeanine Hennis-Plasschaert (ADLE, NL), who argued that the rules on data transfer and storage provided for in the interim agreement were not proportionate to the security supposedly provided.
In order to continue sharing financial data in the purpose of fighting terrorism, the EU and the United States still rely on a Mutual Legal Assistance agreement allowing for exchange of data within the framework of EU member states national law.
The European Commission announced yesterday, in a letter to EP president Jerzy Buzek, that it is to adopt draft negotiation guidelines for a long term agreement "in the coming weeks". The guidelines "will address the European Parliament and Council's concerns" and ensure "the utmost respect for privacy and data protection".
MEPs reaffirmed the principles set out earlier in a resolution approved on 17 September 2009.
Data on EU citizens to be subject to EU rules
In the September 2009 resolution, MEPs demanded that the accord should fully respect the rights of EU citizens with regard to personal data protection. The data, they said, should be gathered "only for the purposes of fighting terrorism" and "the right balance" must be struck between security measures and the protection of civil liberties.
The resolution calls for "the same judicial redress mechanisms as would apply to data held within the EU, including compensation in the event of unlawful processing of personal data".
Background
In July 2009, the press revealed that a new agreement was to be negotiated following changes in the structure of SWIFT. The company had set up a storage centre for its European data in Switzerland, which meant that intra-European data was stored only in Europe. Until then the data had also been kept on a server in the United States. This new architecture required the negotiation of a fresh agreement between the Commission and Council on the one hand and the United States on the other.
Debate (10 February 2010)
SWIFT: MEPs still concerned about data protection in interim agreement
In a debate on Wednesday most of Parliament's political groups restated their concern at the lack of data protection and legal redress in the provisional agreement on bank data transfers to the United-States via the SWIFT network. "The Council has made some encouraging signs but it didn't go beyond that", said the EPP speaker. The S&D, ALDE, Greens and GUE groups spoke out firmly against the agreement, while the ECR said it needed more time for reflexion.
The EP vote of consent, which is required for the provisional agreement to be legally effective, will take place tomorrow, Thursday, at noon.
Parliament's rapporteur, Jeanine Hennis-Plasschaert (ADLE, NL), said that the use of bank data was necessary to fight terrorism but that "the Council has not been tough enough" on the issue of data protection. She was disappointed that the EU "continues to outsource its security services to the United States without any reciprocity". She also argued that the rules on data transfer and storage provided for in the interim agreement were not proportionate.
Council president-in-office Alfredo Pérez Rubalcaba said the Terrorist Finance Tracking Program (TFTP) was "a tool of great value which has made it possible to prevent terrorist attacks". He believed the accord provided sufficient guarantees on data protection and urged Parliament and the Council to work on an interinstitutional agreement to allow MEPs easier access to classified documents.
At the end of the debate, Mr Pérez Rubalcaba said he did not have the power to put forward a new draft agreement at short notice but he hoped to come back before MEPs "in a few months" to present the results of talks with the US administration. "That's why I'm asking you for time", he said.
According to Home Affairs Commissioner Cecilia Malmström, the SWIFT agreement "is not favourable to the United States alone but benefits everyone". She said the report produced by former anti-terrorist judge Jean-Louis Bruguière for the Commission "confirms that the TFTP is important in providing useful information in the fight against terrorism". She believed a rejection of the agreement by Parliament would represent "a serious threat to the security" of Europe's citizens.
"We want to ensure safety and security, as well as civil liberties and data protection on an equal footing", Ernst Strasser (EPP, AT) told the House. The EU had a "good partnership with the US" but "the way this text came about was not reasonable for us", he argued. "We can't accept this state of affairs", declared Mr Strasser. "The Council has made some encouraging signs but that's it, it didn't go beyond that" he added.
Signing this agreement "was a mistake by EU governments" (...) they thought they could get away with such a poor agreement, which is not in line with fundamental rights", said Martin Schulz (S&D, DE). "How will data be retained, how will it be stored, can I have access to it, when it is going to be deleted?", asked Mr Schulz, wondering whether it could be kept for up to 90 years. "This is a bad agreement that we simply cannot sign up to", he declared.
SWIFT is a "key decision for the EP to take", and it should be free from claims of an alleged "security gap", said Sophia In't Veld (ALDE, NL). Parliament could grant its consent only to an agreement's "substance and procedures", but "the Council's answers are inadequate", she observed, adding that "our voters have the right to know that we take data protection very seriously and don't simply rubber-stamp Council decisions".
"We have to vote down the interim agreement, not defer it", said Rebeca Harms (DE) for the Greens/EFA group. "We should not be agreeing to an agreement when many of us have stated again and again that this is an infringing piece of law", she urged, adding that it was "disgraceful" that the Council had failed to engage in constructive dialogue, even though US colleagues were ready to do so.
Timothy Kirkhope (ECR, UK) said he was "frustrated and angered" by the Council's treatment of Parliament. "Parliament's right to consent should not be used as a retrospective tool", he said. "We are finally getting assurances from Council and Commission" on data protection issues, "but we now need some time before proceeding further in our considerations", he added.
The interim agreement had been "reached via a dubious process" and sought "to get around the European Parliament", said Lothar Bisky (GUE/NGL, DE).
