Brussels, 07/04/2010 (Agence Europe) - On Wednesday 7 April, the European Parliament (EP) civil liberties committee (LIBE) called for strong assurances on data protection in the new transatlantic Swift agreement. At the end of March, the European Commission presented its draft mandate to negotiate a long-term agreement with the United States on the transfer of banking data for the purposes of tackling terrorism - the Swift agreement (see EUROPE 10105).
EP rapporteur on this issue, Jeanine Hennis-Plasschaert (ALDE, the Netherlands) said that she had reacted in a “cautiously positive” way on reading the draft mandate. “On reflection, I am, however, a little disappointed,” she stated, indicating that she felt the text was “too superficial”. She said the first problem related to the use of mutual legal assistance agreements, with which a number of member states also have difficulty (see EUROPE 10112). “The data are not used for specific purposes, but are transferred in bulk. We are talking about 90 million pieces of data! … This will create precedents,” she warned, calling for alternative solutions to the use of these agreements to be found. A further point is that both the US and the European sides must receive the same treatment. But what rights will the Americans have, and what rights will be granted the Europeans, she asked.
Director General of the Commission's DG Justice, Liberty and Security Jonathan Faull pointed out that negotiations with the US would “not be easy”, given the extreme complexity of the issue. He said that the Commission had brought forward a series of “ambitious” negotiating directives, as borne witness by the guarantees on data protection which are more stringent than those in the previous agreement that was rejected by Parliament in February. “We are determined to negotiate an agreement that will provide greater protection for European citizens' personal data,” he said. Faull hoped to be able to move forward quickly, indicating that agreement on the mandate could very well be reached at the JHA Council on 23 April, that negotiations could begin at the start of May and that an agreement could be adopted at the end of June. Returning to the problem of mutual legal assistance, which was causing “controversy” in some member states, he stressed that the Commission could not see any viable short term alternative system. He said, however, that he would look for other possibilities, following the requests from the Spanish Presidency and Parliament.
Timothy Kirkhope (ECR, UK) opined that things had progressed since the previous agreement was rejected and that the Parliament stance had been backed up. A large part of Parliament's concerns had been taken into account, he said, adding that he supposed that this would continue to be the case. He hoped that the issue would be settled within a reasonable timescale, arguing that the sooner the agreement was in place, the better it would be for European citizens. Taking a different view, however, Jan Philipp Albrecht (Greens/EFA, Germany) said he felt that MEPs' concerns had not been taken into account: data were still being retained too long (5 years), and there was no respect for proportionality, particularly with regard to provisions on fundamental rights and member states' constitutional texts. “This mandate has to be amended,” he said. Albrecht called for the opinion of the EU Court of Justice to be sought on the draft agreement. The Parliament legal department replied that such a request for compatibility was provided for under Article 218§11 of the Treaty. Stavros Lambrinidis (S&D, Greece) hailed the willingness of the United States, not shown in the past, to listen to Parliament's arguments. “You, then, must be able to comply with Parliament's wishes,” he said of the Commission. He also asked if there was no other way for the bulk transfer of data and if it was not possible to impose some prior European check when the US wants to transfer the data to third countries. His colleague Birgit Sippel (S&D, Germany) agreed, suggesting that it was “inconceivable that Swift could not individualise data” ahead of a transfer. “If, at the end of negotiations, the agreement is not significantly different from the agreement that was rejected, we won't be able to adopt it,” she warned. Sophie In't Veld (ALDE, Netherlands) pointed out that it was the Americans who were asking for an agreement, so that, as a consequence, negotiations would be difficult for them, too. “The Unites States is looking for a needle and we send them a haystack,” she regretted, warning that no precedent must be created that could allow third countries to ask for the same thing. “Filtering should be done in the EU for financial data, PNR and telecommunications,” she said. Carmen Romero López (S&D, Spain) called for a wide-ranging debate since governments' reactions tended to be out of proportion after terrorist attacks and Swift was not meant to conduct police or legal work. She said it would be better to work within the framework of an anti-money laundering directive revised to include banking messaging companies. Speaking on behalf of the EPP, Simon Busuttil (Malta) said that he thought the lessons had been drawn from the failure of the previous agreement and that the EU was on the right track. However, he said, “the devil is in the detail”: bulk transfer of data had to be avoided from the outset, he said. He added that MEPs would feel more reassured if the US undertook to deal with Europol on exchanges of information, rather than dealing directly with Swift. He stated: “We want an agreement as quickly as possible, but not at any price”. He said the Commission's credibility was at stake.
Answering MEPs' questions, Faull said that the length of time data could be held was the same as in the anti-money laundering directive, and that five years was not “unreasonable” given data's useful lifespan in counter-terrorism. He said the Commission would be a tough negotiator so as to restrict the amount of information to be sent. He stated that there would be no agreement without fundamental rights and data protection laws being fully observed. However, the current system, built of the bulk transfer of data did not allow an individual approach. “I don't think it will be possible to reduce the haystack to nothing to find the needles, but we will work to reduce the size of the haystack by removing the innocent and un-useful data.” He also said he had taken note of the request for prior authorisation before data can be transferred to third countries. This, he said, was an area where negotiations would not be easy. Faull said he was working from the principle that the European and American sides had to be treated equally. He hoped, too, that the United States would grant the EU a right of appeal if its data were used wrongly. Lastly, he said that he would make sure that nothing in what was proposed in the new agreement would be disproportionate. (B.C./transl.rt)