SWIFT (debate) 
President
The next item is the Council and Commission statements on SWIFT.
Diego López Garrido
Mr President, Mrs Malmström, ladies and gentlemen, last month, on 24 March, the Commission adopted a recommendation to the Council to authorise the opening of negotiations between the European Union and the United States for an agreement whereby finance messaging data are made available to the US Treasury Department in order to fight and prevent terrorism and its financing.
The recommendation was immediately submitted to the rapporteur and certain Members of the European Parliament and forwarded to the Council of the Union.
The Council of the Union remains convinced of the need for an agreement like this one and therefore fully supports the Commission's recommendation to negotiate an agreement on the Terrorist Finance Tracking Programme. The Commissioner's draft mandate has been closely studied within Coreper and, in principle, this Commission recommendation will be put to the vote at the next Council meeting and we will vote in favour of it, taking into account Parliament's position, of course, and the opinions that will be voiced on the subject here in this Chamber today.
The Council agrees with Parliament that the future agreement, known as the SWIFT agreement, must include adequate guarantees and safeguards. It agrees, therefore, with the feeling shown by Parliament that it is essential in all cases to comply with the European Union Charter of Fundamental Rights, specifically Article 8 thereof, the Treaty of Lisbon and the European Convention on Human Rights. In addition, there are fundamental principles that must be respected when personal data are transferred, such as the right of the person whose data are being processed to be informed, or the right to amend or delete such data if they are incorrect.
All rights relating to data protection must be guaranteed without discrimination; in other words, citizens of the European Union must be treated in the same way as citizens of the United States.
We believe there can be an agreement on the duration of the agreement to be signed with the United States, which I hope will be approximately five years.
As for exchanging data with third countries, our understanding is that, when the US authorities have grounds to think that there are data that may help authorities in other countries to prosecute terrorist crimes, such data should be used. That, moreover, is precisely what European legislation permits. According to European legislation, under similar circumstances where a Member State has obtained information from other Member States, that information may be transferred to third states for the purpose of fighting terrorism.
Then there is the subject of data transfers in bulk and not in all cases tied to a specific assumption, which is something that has to be kept for technical reasons and also for reasons of effectiveness, since it is often important to have a certain volume of data from which to draw conclusions when prosecuting terrorism. Such data transfers must, of course, be as specific and as restricted as possible and there must always be a very clear objective: the prosecution of certain terrorist crimes, which is the objective that justifies the existence of this kind of agreement.
As a result, we have a detailed draft mandate from the Commission. I believe it is a good draft, one that safeguards people's fundamental rights, takes account of the effectiveness of these agreements, is based on reciprocity, is based on proportionality in the collection of data. It is certainly based on the oversight of the results of the effectiveness of these agreements - as also alluded to in the Commission's recommendation - not least by Parliament, which is absolutely associated with the whole of these negotiations.
Parliament rightly considers that it, too, must be involved in this agreement, and we therefore agree that it should be provided with adequate information and that the Commission, as the negotiator of this agreement, should pass on that information at each stage in the negotiations.
The Council also understands that Parliament should have easier access to the classified parts of international agreements so that it can carry out its assessment in cases where it has a right of approval. Moreover, I must mention that in its statement of 9 February 2010, the Council promised to negotiate an interinstitutional agreement with Parliament on this topic. On behalf of the Council, I am pleased to confirm that promise today.
Cecilia Malmström
Member of the Commission. - Mr President, the collection of TFTP data is important in the fight against terrorism. We know that TFTP data has been helpful to prevent terrorist attacks in Europe, like the 2006 liquid bombs at Heathrow Airport. The TFTP is therefore important, not only for the US, but also for Europe.
I recently met US Home Secretary Napolitano and we addressed this issue. They are fully aware of the need to reform the intermediate agreement that we had but they are also concerned about a number of leads for known terrorists, which are no longer available. So we need to address the security gap but also to do this in a way that ensures full respect of fundamental rights and a sufficient level of data protection.
That is why, after our last discussion on this, the Commission promptly started to work on a new mandate for a new EU-US TFTP Agreement. I think the mandate is ambitious but realistic. It balances the maintenance of our collective security, while addressing fundamental rights and data protection, based on Parliament's resolutions of September last year and of February this year.
I would like to thank the rapporteur, Mrs Hennis-Plasschaert, for the very constructive cooperation we have had. The Commission has tried to liaise with her and the co-rapporteurs and shadow rapporteurs in this matter. I am also grateful to the Presidency for the work they have done to try to get this through the Council.
We have tried to take on board the concerns expressed in the European Parliament resolutions. Data will be processed only for the purpose of terrorism. A request must be based on judicial authorisation. Third parties will not get bulk data. There will be reciprocity. There will be the push basis for transfer, SEPA data will be excluded and we will also address the issue of judicial redress on a non-discriminatory basis. I will ensure that the Commission will keep Parliament fully and immediately informed throughout the process of negotiations. We aim to sign this agreement before the end of June, so that Parliament can vote on it in July.
On the question of 'bulk' data transfer, I know this is of great concern to the European Parliament but I also know that you do understand that, without bulk transfers, there will be no TFTP. However, legally binding safeguards will ensure that absolutely no data are accessed unless there is an objectively verified reason to believe that an identified person is a terrorist, a suspected terrorist, or is financing terrorism and that those data transfers are anonymous. Transfer of bulk data is, of course, sensitive, and we will strive for further reductions in the volume of data during the negotiations. But we also need to be realistic here. We are unlikely to see a huge reduction in what are already targeted requests.
Reciprocity is part of the mandate. The envisaged agreement would place a legal obligation on the US Treasury to share leads with their EU counterparts and allow EU authorities to have TFTP searches undertaken against known terrorist suspects in the EU. Should the EU develop something similar - an EU TFTP - the Americans should help us in this as well. The Commission is willing to participate in these discussions with Member States.
The mandate calls for a five-year retention period for non-extracted data. I believe there is some justification in this, bearing in mind that five years is also the period for financial transaction data that banks are subject to under EU anti-money-laundering legislation, but I am ready to hear Parliament's views on this and take this matter to the Council by the end of the week.
In conclusion, I believe that the draft mandate is a true substantial improvement. It takes into account the concerns of Parliament raised in your resolutions. It takes into account the rapporteur's call for a double-track approach that might lead to an EU TFTP, even if this is, of course, something that we have to discuss internally in the EU. It is not part of the negotiations. It does take account of the EU-US relationship in this area as equal partners, which is, of course, the long-term goal in this regard.
Simon Busuttil
on behalf of the PPE Group. - Mr President, the first thing that should be said is that this Parliament wants an agreement. Of course this Parliament does not want an agreement at any cost, and the devil is in the detail. This is what we shall be discussing today in this Chamber.
After the vote in February, two clear lessons were learnt. The first lesson is that the European Parliament has new powers, it has clear powers; it has a say and it wants to exercise those powers. It will do so constructively and responsibly, but it will exercise its powers. The second lesson that has been learnt is that the first agreement was not good enough and it needs to be improved.
I very much welcome the Commission's readiness to come out with a mandate, as it did as soon as possible after the vote in February, and I am also very keen to have this mandate approved as soon as possible by the Council of Ministers. As I said, the European Parliament wants an agreement and we have put the details of what we would like in the resolution that has found the broad support of this House, certainly of the leading groups in this House.
Madam Commissioner, bulk data is an issue for us and you will know very well that what we want on bulk data will require a rethink, not just on the part of our counterparts in the US but also on our own part. What exactly do we, here in Europe, want for ourselves? Do we want our own European TFTP, and how will we go about achieving that? Clearly, bulk data is an issue and it is an issue that cannot be skirted round. It needs to be faced.
Next week, we shall be facing these details when we discuss them with our counterparts in Congress in the US, when a mission from this Parliament goes to the US.
Next week, a mission from the European Parliament will go to the US and we shall discuss this with our counterparts in Congress, but also with the US authorities. We are keen to do that in a constructive manner. We want to go there to show the US authorities that we mean business. We want an agreement, but we have concerns and we want those concerns to be addressed.
Birgit Sippel
Mr President, I would like to contradict those who have spoken so far on one point: I am not interested in arriving at an agreement as soon as possible, but in achieving one that is as good as possible. Quality must come before timeframe. I would like to make one other preliminary remark. The European Parliament has already rejected an agreement once and one aspect among the many reasons relating to content was the lack of European Parliament participation.
In view of current events this week, we have decided not to adopt any decisions here in Parliament. Then there is the decision to call on the Council to likewise postpone its decisions until we can adopt our decisions. I am now rather surprised that there are Members of the House, who clearly do not take their own decisions seriously but think: well yes, despite this, the Council can simply decide. I do not think we can treat our own decisions like that. I still maintain that the Council should also withhold its decision until after 6 May when we have decided. I am sure there are no disadvantages to this and that the United States would be understanding.
As for the draft mandate itself, I take a favourable view of the fact that the Commission is committed to meeting our demands. Nevertheless, I would like to say clearly that there still need to be substantial amendments to this negotiating mandate. These are necessary if a majority of the European Parliament is to vote in favour of a new agreement. In my opinion, the current mandate is not ambitious enough to achieve this. The problem of bulk data transfer remains unresolved. If the US authorities tell us that every month we are talking about the specific details of five to ten people, then the transfer of millions of pieces of data relating to European citizens is surely disproportionate to this purpose.
Incidentally, I would like to say again to the Commission and the Council that although it is constantly maintained that this agreement will be highly significant as an additional means of combating terrorism, the proof of this is not as clear as we are always being told. The long period of retention of data in the United States also continues to be a problem. The mandate does not offer a solution here either. We need a judicial authority on European soil that not only checks the legality of US applications, but also the extraction of data, wherever this takes place. The transmission of information to third countries must be regulated with clear directives. We need an ambitious mandate with our demands. Only then can we achieve a really good result that meets our demands, taking into account data protection as well as the fight against terror.
Finally, I have another specific question for the Council and the Commission. How do you intend to ensure that only data that was specifically requested is extracted and passed on? How can that work? In the United States? Or are there other proposals?
Jeanine Hennis-Plasschaert
on behalf of the ALDE Group. - Mr President, I, too, very much welcome today's debate where Parliament will set out its expectations with regard to the negotiations directives. The fact that Parliament will not vote on its resolution this week is clearly very unfortunate but it should not, and I repeat, it should not inhibit Council from going ahead with the adoption as scheduled. Parliament's views are being put forward as we speak, and it is no secret that Council and the Commission are already fully aware of the resolution and its content. In this respect, I can only say that I do appreciate the new spirit of cooperation demonstrated by both the Council and the Commission to engage with this House.
Now, following the negotiations directive, the envisaged EU-US agreement is to ensure rights on an equal basis, regardless of the nationality of any person whose data are processed in accordance with the agreement. Now, my question is, what does that mean? What are these specific rights in that case in relation to, for example, access, rectification, deletion, compensation and redress? Please enlighten me here. Furthermore, I would like to underline, like my colleagues did, that the principles of proportionalities and necessity are key to the envisaged agreement. The fact, and I repeat it once more, the fact that financial measuring data profiles are unable, for whatever reason, to search the content of the messages leading to the transfer of data in bulk cannot be subsequently rectified by mechanisms of oversight and control, as basic principles of data protection law have already been comprised.
To be honest, I do have some doubts whether this issue is going to be solved on the basis of the current negotiations directives. Furthermore, it is important to know that the agreement on mutual legal assistance is not an adequate basis for requests to obtain data for the purposes of the TFTP. After all, the agreement on mutual legal assistance does not apply to bank transfers between third countries and it would demand prior identification of a specific bank whereas the TFCP is based on searches for fund transfers. It is therefore crucial, and I would like to stress that, it is therefore crucial that negotiations focus on finding a solution to make one compatible with the other. We can, of course, insist on a redesign of the TFTP but honestly, in the end, this is not in our hands really and I can therefore only urge the Council and the Commission, like Mr Busuttil did, to address the fundamental policy decisions straight away.
I do expect a clear and binding commitment on the part of both the Council and the Commission to undertake all that is necessary to effectively introduce a durable, legally sound, European solution to the extraction of data on European soil. Let me stress once more that the transfer and storage of data in bulk to a foreign power, even if it concerns our best friends, is and remains by definition, disproportionate. It marks a huge departure from EU legislation and practice. The rule of law is crucially important and in this context, Parliament must be extremely mindful in assessing envisaged agreements such as the one we are discussing today.
I do support, like others, a strong outwards-looking EU that is capable of acting shoulder to shoulder, as an equal partner, with the US. In that framework, I can only underline once more that it is the EU that needs to lay down the principles on how Europe will cooperate with the US for counterterrorism purposes, including law enforcement and the use of data collected for commercial ends. Getting it right should be the objective, and the European legal demands for the fair, proportionate and lawful processing of personal information are of paramount importance and must always be upheld. Now it is for the Council and the Commission to put this into concrete action as soon as possible and to negotiate an agreement that meets all of the EU and US expectations.
Jan Philipp Albrecht
Mr President, I would like to thank the Presidency and you, Commissioner Malmström, for what you have said. The Presidency has rightly said that the TFTP agreement on the exchange of SWIFT bank data is about principles. It is about fundamental constitutional principles, it is about the protection of privacy - Article 8 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. However, it is also about effective legal protection and fair procedures - Articles 6 and 13 of the European Convention on Human Rights. It is about genuine proportionality from a constitutional legal point of view, and I stress from a constitutional legal point of view, because it is not about simply getting a feel for proportionality; we need actual evidence of the need for, and suitability of, a measure and finally also evidence of the proportionality itself.
Here, I again have to make clear what other experts and even the investigative authorities have said repeatedly. In my opinion, it cannot be proven that the mass transfer of personal data without specific initial suspicions is at all appropriate and that we do not have significantly less intensive means of intervention that would suffice to pursue these goals. Without a prior decision in an individual case on the basis of existing suspicions, any access to the bank data of European citizens is disproportionate. It must therefore be ensured that there is no bulk transfer of data.
Otherwise, this agreement would represent a breach of existing European and international treaties, and that is exactly what most European supreme courts have made very clear in rulings up to this point - in particular, the German Federal Constitutional Court in March - when it was a matter of data retention. Therefore, Parliament cannot and should not make any compromises on its previous positions, but must ensure compatibility with EU law during and after negotiations, if need be then by all means with the presentation of the mandate and the results of the negotiations before the European Court of Justice.
I therefore call on the Commission and the Council to clearly present Parliament's conditions to the United States and to provide the necessary clear evidence of proportionality. Otherwise, Parliament will remain unable to agree to a TFTP agreement.
Charles Tannock
on behalf of the ECR Group. - Mr President, the ECR Group supported the Council's original agreement on SWIFT with the United States and its terrorist-financed tracking programme for the transfer of financial messaging data, subject, of course, to certain safeguards. We repudiated at the time the anti-Americanism, both latent and overt, that characterises some in this House.
America bears a vastly disproportionate burden worldwide for securing the liberty of us all. We want to see the EU doing more, not less, to support America's principled leadership in the fight against terrorism. We therefore saw the SWIFT agreement as a vital tool to help excise the cancer of terrorist financing and to protect citizens on both sides of the Atlantic. However, whilst I was saddened to see the deal voted down, I was not altogether surprised.
Undoubtedly, Parliament was flexing its muscles and keen to make a show of its new powers under the Lisbon Treaty, but the temporary demise of the SWIFT accord until the better current proposal was forthcoming from the Commission could perhaps ultimately be for the good, to serve as a wake-up call to President Obama's Administration which, like its predecessors, appears to have a very sketchy grasp of the EU and its institutions, notably Parliament.
There seems to be little appreciation amongst American diplomats of the increased powers and influence of MEPs. The letter sent by Secretary Clinton to President Buzek, raising concerns regarding SWIFT, was woefully late in the day. Moreover, it was considered by many Members of this House as at best naive, and at worst arrogant, because it ignored the reality of how our Parliament operates through the political groups.
The United States maintains an almost invisible lobbying presence in the Parliament. Compare that to small countries like Israel, Taiwan and Colombia, not to mention giants like India and China, which invest substantial diplomatic resources in building relationships in this House. As a result, they punch above their weight diplomatically at EU level, whereas America falls woefully short of its potential. It is extraordinary that the USA's bilateral embassy to Belgium is still double the size of its mission to the European Union.
I am, however, heartened that the new American Ambassador to the EU, William Kennard, seems to appreciate MEPs' importance, and this is now being conveyed back to Washington. I hope that his time in Brussels coincides with a quantum leap in terms of America's relationship with us MEPs, and the announced visit by Vice-President Biden is an excellent start, because no one wants to see the transatlantic partnership strengthened more than I do.
The next hurdle, of course, will be getting a new agreement on SWIFT through this House, but also one on passenger name records (PNR), which, in my view, will prove no less controversial.
Marie-Christine Vergiat
Mr President, ladies and gentlemen, once again, we are discussing the Commission's and the Council's mandate in relation to the SWIFT project. The draft mandate being submitted to us today certainly takes up some of the demands made by the European Parliament in its resolution of September 2009, but many points remain incomplete.
This is the case when it comes to the length of time in which the data are stored and the possibilities for our fellow EU citizens to lodge an appeal. The US Privacy Act still discriminates against non-US citizens: even Commission officials admit that. Furthermore, we are repeatedly told that SWIFT cannot process data on an individual basis because it does not have the capabilities, particularly the technical capabilities, to do so.
Therefore, there is still a huge problem as regards the proportionality of the transfers carried out. As you yourself have just told us, Commissioner, there are still concerns in relation to these bulk data transfers. I am sorry but, as far as I am concerned, I have no faith in the way in which the US authorities operate in this area. Reasonable suspicion cannot be enough. The damage caused by the United States in the fight against terrorism is well known.
As Mrs Sippel said, quality must take precedence over quantity. Yes, a European authority should be able to have actual control over the data that will be transferred. We are still awaiting guarantees in this area to safeguard the rights of our fellow citizens and of all those resident in Europe.
We welcome the progress that has already been made, but it is still not enough. Yes, our fellow citizens have a right to security, but they have a right to it in all areas. At a time when many of our fellow citizens are becoming more aware of the protection of privacy and of personal data - something that is coming across clearly in many of the speeches in this House - we have a duty to continue to alert you and to tell you, in all conscience, that, for us, the principles of necessity and of proportionality are still not being respected.
Mario Borghezio
Mr President, ladies and gentlemen, may I take this opportunity to highlight the legitimacy of your point that the European Parliament must not forget, either, the role and the importance of the Italian language, of the use of the Italian language, which has contributed so much to European culture.
Returning to the subject at hand, it must be said that, ultimately, after that standstill pursued strongly by the European Parliament, which, on this occasion, seemed perhaps not to have fully appreciated the urgent, dramatic need not to undermine in any way, for any reason, a fundamental requirement of the West and of Europe, that of defending itself from terrorism.
Of course, it is absolutely true that there has to be a balance, a proportionality, that citizens' rights and privacy rights must not be sacrificed beyond measure and that the possibility for citizens to lodge an appeal, either an administrative appeal or a legal appeal, against any decisions taken on the basis of the SWIFT system must, of course, be guaranteed - just as this new wording by the Commission, which has accepted many of the most important points made by the European Parliament, guarantees.
Therefore, in my view, the guidelines in the negotiating mandate adopted by the Commission on SWIFT should be regarded as essentially sound, in terms of ensuring, I repeat, effective and necessary cooperation with the US authorities as regards the tracking of financial transactions to combat and prevent the terrorist threat - this, of course, being in the bilateral interest, since Europe, too, must remember that it needs to defend itself from terrorism; we have seen too much obvious, and also extremely serious, evidence of terrorism - and of ensuring the democratic control of the data flow entrusted to the European Parliament, which is thus the most reliable form of protection there can be for European citizens' personal data and the protection of their right to assert themselves in all appropriate forums. The mandate also takes on board many suggestions offered by us MEPs, and this speaks volumes for the importance of the European Parliament and for the new role granted to it by the treaty.
Furthermore, we must remember that the agreement provides for reciprocity from the United States should the European Union succeed in launching a European terrorist finance tracking programme.
Europe must swing into action - in any case, it must not always trail behind - it must swing into action and must itself provide vital input and information. On the PNR system, which will be discussed later, the same logic applies: a passenger recognition measure, once again for the purposes of combating terrorism, is absolutely crucial.
Ernst Strasser
(DE) Mr President, Commissioner, ladies and gentlemen, we in the Group of the European People's Party (Christian Democrats) want an agreement. We want a good partnership with our American friends, above all, in the area of security. We want a good agreement and we want this agreement very soon. We should emphasise that this is a time that reflects the spirit of Lisbon as seldom before. After Parliament's resolution in mid September, after the Council's decisions at the end of November, after the discussions in January/February and after Parliament's clear position in February, we now have a situation that is a good example of cooperation between the Commission, the Council and Parliament. I would really like to thank you, Commissioner, and also the Council, for this new beginning, that was started primarily by you and Commissioner Reding. It is an example of what European citizens want in terms of scope for action, of how European citizens want to see us reach solutions together - not just European citizens, but, above all, those who are watching and listening in this House today. At this point I would particularly like to welcome our friends from the Rhine and Hunsrück and our friends from Austria who are here today.
We in our group are not looking for problems, but fighting for solutions. I should emphasise that a whole range of excellent proposals for solutions were found that we set out in September's resolution, be it on the issue of bulk data, third countries, duration, terminability, or other matters. These are the matters we need to negotiate on now.
I am rather surprised by our colleagues from the Group of the Greens/European Free Alliance and the Confederal Group of the European United Left - Nordic Green Left who, at the time, refrained from voting on the resolution and refused to contribute, but are now calling for this resolution. I therefore invite you to come on board. Help us negotiate and together, we will bring about a good result. As has been considered here, we should, in future, also work to ensure that we accelerate the development of the TFTP and you have also said that in your statements. Yes, we will need these instruments and we should keep the schedule exactly as it was conceived by you, so that we can discuss the results of your negotiations here in Parliament before the end of summer and will also hopefully reach decisions.
I believe that the way you have held discussions, including on your action plan that I would like to support wholeheartedly, can continue in this vein on matters concerning the data agreement, Passenger Name Records (PNR), the Schengen Information System (SIS) and other issues.
Kinga Göncz
(HU) I would like to recall that, contrary to earlier negative expectations that preceded Parliament's negative vote, there have, in fact, been several positive developments as well, and it seems that there will be a better than expected agreement between the European Union and the United States; if all goes well, it will be concluded by the summer. Since that time, it has first of all become clear to us that the US is far more open to these reservations and to finding constructive solutions to the European reservations than we had previously thought.
I think that we have all found that cooperation is better and the dialogue between the Council and Parliament is closer, and I think it is also important that Commissioner Cecilia Malmström regularly informs the Committee on Civil Liberties, Justice and Home Affairs, the rapporteurs and the shadow rapporteurs of the developments. I think this is the key to ensuring that good agreements do indeed continue to be reached in the future. I think it is important to state this, before going any further.
I, too, would like to say what several people have emphasised, namely that Parliament is committed, and the Group of the Progressive Alliance of Socialists and Democrats is also very seriously committed to securing an agreement as soon as possible, and to making sure that this is a good agreement, in other words, one that takes into account the interests of European citizens, including their data protection interests. We know and we feel the responsibility, since this is a very important element in combating terrorism, even if it is not the only or even the most important element, but this particular data exchange is very important. It seems to us that the mandate in its present state provides solutions to many problems but leaves many others without a solution. As yet, there is no solution to problems such as those mentioned earlier by our colleagues and which will be the subject of further discussion today. I think that these two weeks, which are available to us because of the postponement of the vote due to the problems with flying, present us with an opportunity; an opportunity to find solutions to the outstanding problems and to find answers to those questions and reservations raised by Parliament to which we have not yet found reassuring answers. It would be good if Council did not reach a decision before Parliament has had a chance to vote, since that could cause further difficulties in the near future.
Sarah Ludford
Mr President, clearly, the Commission has listened. The draft mandate is indeed a clear improvement on previous agreements, though my colleagues have highlighted aspects where our concerns remain. I will not repeat those concerns apart from thanking my colleague, Mrs Hennis-Plasschaert, for all her hard work for the Parliament.
I want to say something on process and something on context. Recent progress is, I think, a tribute to what can be achieved when partners treat each other with respect and listen to each other, treat objections seriously and try hard to bring views together. As well as the Commission, I actually believe that the US authorities have made that effort of engagement and understanding. I would like to thank Ambassador Bill Kennard in that regard. He has grasped very well how the European Parliament works, perhaps rather better than some of our Member States.
Now what we need is for the Council to make the same effort and adopt a progressive mandate. It was the Council's failure last time to come to us with a serious offer of improvement meeting MEPs' concerns that made it necessary for us to strike down the interim agreement.
For the last decade - and this is the point on context - authorities in the US and the EU have progressed in a reactive, even knee-jerk, manner to real or perceived security threats. Sometimes, governments have even been guilty of gesture or dog-whistle politics designed to get media headlines or to label opponents soft on crime or terrorism. We cannot go on like this, and I look forward to a new start where we base decisions, especially about data storage and transfer, on our basic bedrock principles of proportionality, necessity and legal processing. We need an audit of all the schemes and projects that have accumulated in an unplanned manner. I am heartened that - as I understand it - Commissioner Malmström plans to do that so we can get a clear view of gaps, duplication and over-intrusive measures and arrive at a rational and effective security framework that does not junk our civil liberties.
Judith Sargentini
(NL) Mr President, resolution or no resolution, I believe that the Council heard us loud and clear last time and knows full well what it has to do. This Parliament is concerned about fundamental rights and the protection of citizens' privacy and also about data protection. These are fundamental rights, and a simple cost-benefit analysis is inappropriate where these are concerned. The grounds given for requesting data in bulk - that it is technically impossible to do things any more precisely - strikes me as a strange argument. I do not believe for a minute that this is technically impossible; as I see it, it is more a matter of money and of cost. As I said, where fundamental rights are concerned, it is not simply a matter of how much something costs.
In addition, it is important that Europe now shows itself to be an equal negotiating partner, as opposed to one that simply cosies up or waits for the United States to lay down the rules. Parliament has given the Council and the Commission the power and elbow room to approach this role seriously from now on, and in this regard, I would ask the Commission and the Council to take account of the European Convention for the Protection of Human Rights and Fundamental Freedoms that is now in force. This, too, will have to be included in your mandate and the result of your negotiations. I hope you come back with the right results, I hope you use the power and authority we gave you last time, and I await what you have to show for yourselves on your return.
Marek Henryk Migalski
(PL) Mr President, the United States is the only world superpower today. It is an absolute and multidimensional superpower - cultural, military and economic. We are fortunate that this superpower is friendly to us and is based on the same values and foundations upon which the European Union is built.
Therefore, we should appreciate this and support the United States in the noble cause of the fight against terrorism, because Western Europe in particular was protected by the US from communism for many decades. It was only thanks to the US that free Europe was free for 40 years. Today, the United States is giving very strong support to the whole free world so that the world can be free from terrorism. A comparison between the United States and the European Union of the efforts, financial outlays and technology devoted to the fight against terrorism is embarrassing for European states and the European Union.
Therefore, if we can do something to help the United States in the fight against terrorism - and this is how I see this agreement - we should not hesitate. We should, of course, respect the principles of which we have been talking, but that, as I see it, is a question of cooperation between the Council, the Commission and Parliament. What is required of us today is an expression of the political will to enter into such an agreement. I think such political will should be present here. The United States should enter into a treaty agreement with the European Union which will be both friendly and based on partnership.
Eva-Britt Svensson
(SV) Mr President, I would like to thank the Commission and the Council for the progress that has nonetheless been made since February, when Parliament did what was only right - in other words, rejected the SWIFT agreement. Parliament now has greater opportunity to make demands as regards the content of the agreement. An intelligent Commission and an intelligent Council would be wise to pay heed to the demands and objections made by Parliament in February. They concern our freedoms and civil rights, and that is the basis of the rule of law.
That is why we cannot allow the mass transmission of data without restrictions. Such an agreement mixes together innocent citizens with those who may be guilty. We can only allow data to be passed on where there are strong reasons to suspect the person concerned of being involved in crime. It is claimed that there are technical problems inherent in this. If that is the case, then we must ask ourselves whether our legislation should be decided by the technology or by our fundamental freedoms and civil rights. To me the answer is obvious: our legislation must be based on our rights.
Jaroslav Paška
(SK) In February, we refused to ratify an agreement on processing and transmitting data contained in financial reports for the purposes of a US Treasury programme to monitor terrorism. The reasons for the refusal were clearly listed and they include in particular:
breaching the fundamental principles of data protection law for a large number of citizens and subjects of the European Union (up to 90 million data items per month),
the absence of protection for EU citizens against the abuse of their data provided under this agreement to the United States and to third countries, and
the absence of genuine reciprocity, since the other party to the agreement has not undertaken to provide information of similar quality and scope to the EU.
Many of these shortcomings can be eliminated in the new agreement, but the actual principle of a comprehensive transfer of all data from the EU to the US, where the US processes, evaluates and stores all records on EU financial operations without any restriction, under the pretext of looking for links to terrorism, is not tenable.
This tenet must be amended. The financial operations of European banks should be processed only under European rules and on European soil. We will hand over to our friends from the United States only those items that really relate to terrorism.
Carlos Coelho
(PT) Mr President, Mr López Garrido, Commissioner, ladies and gentlemen, in this House, I supported the agreement concluded between the European Union and the United States on mutual judicial assistance. I did so because I consider transatlantic cooperation to be very important in general, and particularly so in the area of freedom, security and justice.
In the plenary session on 11 February, I voted against the provisional agreement on the transfer of financial data concluded between the European Union and the United States. I did so for the sake of Parliament's prerogatives, but also because the agreement was unacceptable. In that debate, I called for respect for the principles of necessity and proportionality, as well as for the integrity and security of European financial data.
I am pleased to note at this juncture the Commission's and the Council's new attitude towards cooperating with Parliament. I believe that together, we shall succeed in establishing the basic principles that should guide and facilitate future cooperation between the European Union and the United States in the fight against terrorism. I hope that the concerns expressed by Parliament in its resolution of September 2009 will be duly taken into account in this new agreement.
I reiterate that there needs to be absolute respect for the principles of necessity, proportionality and reciprocity. I emphasise that there must be basic safeguards to guarantee that such data are retained for as little time as is strictly essential, after which they should be destroyed.
I reiterate the demand that legal appeals must be possible and that suitable guarantees must be established regarding any transfer of personal details to third countries. Above all, it must be proved that such data are useful in preventing acts of terrorism or incriminating terrorists.
Outside this framework, it will not be possible to obtain our consent. The European Parliament will be consistent with the positions it has always held.
Emine Bozkurt
(NL) Mr President, Commissioner, Mr López Garrido, the draft mandate proposed by the European Commission is a step in the right direction. The fight against terrorism is our priority. It is therefore important to put a new agreement in place as soon as possible on the exchange of financial data with the United States, but not at all costs. In February, a large majority of us said 'no' to a bad interim agreement with the United States; 'no' to the exclusion of the European Parliament, the body representing 500 million citizens. Citizens do not want their bank details to be simply transferred to the United States without sound guarantees of their rights. We want an agreement with sound guarantees to protect the rights of our European citizens. If these are not offered under the present negotiating mandate, there will be little difference from the state of affairs in February. We need very good reasons if we are to say 'yes' this time. The Council and the Commission must inform the European Parliament comprehensively and directly. It is to be welcomed that account has been taken of Parliament's objections concerning guarantees of fundamental rights and freedoms in relation to the protection of personal data. These will have to be the criterion for determining whether or not data are transferred, along with the criterion that the data must relate to the fight against terrorism.
These are fine promises, but I am curious as to how the Council and the Commission will safeguard these guarantees in practice. The principles of proportionality and effectiveness are paramount. Also, will the United States really do the same for us?
What I would welcome is a complete, detailed statement of the rights our citizens would enjoy under the prospective agreement. The Council and the Commission are proposing to entrust a European body with examining requests from the United States. Council and Commission, what form do you see this kind of public EU body taking? Will it be a judicial authority, and will citizens have the possibility of court proceedings, which they are guaranteed in Europe? I should like to hear your responses.
Alexander Alvaro
(DE) Mr President, thank you, Commissioner Malmström. The negotiating mandate before us shows, above all, that the Commission and Parliament are again taking the same line and that cooperation has at least got off to a good start. The fact that the European Parliament rejected the agreement in February - and I address this to all those who have described it as muscle flexing - has nothing to do with muscle flexing; it is about assuming responsibility. Assuming responsibility for the rights of those that we represent, namely the citizens of Europe. The negotiations on the new agreement on the transfer of bank data now under way will, above all, answer the crucial question as to where Parliament and the European Union stand on respect. Respect among partners, respect for citizens and respect for European legislation.
We were able to slip a lot of things that are important to us into this negotiating mandate. The resolution that we will adopt in May very much reflects those things that specifically concern the protection of our citizens, both their data and their judicial remedies, including extraterritorial protection, particularly when their rights could be violated extraterritorially.
We have talked a lot about the transfer of aggregated data, so-called bulk data transfers. What we must clarify is the fact that in the mandate concluded, we must set out how and when this problem will be resolved. Otherwise, it will be very difficult to represent the whole thing in light of what we have formulated so far. The European Parliament's resolution highlights this in two paragraphs, the negotiating mandate in one. I am confident that the Commission will resolve this in a sensible manner.
Ryszard Czarnecki
(PL) Our debate is taking place literally two days before a meeting of ministers of the 27 Member States of the European Union on the same subject. Therefore, and let us say it directly, our position is potentially a form of political pressure. We are discussing this problem at a time when the fate of the negotiating mandate in talks with the United States is in the balance. We have barely two months and one week to begin negotiations with Washington. The European Commission is not very flexible in this area. It has not proposed - with the greatest respect for Mrs Malmström - a single similar but alternative position. However, playing on the basis of 'all or nothing' is not only irrelevant and not in accord with the spirit of the European Union, but it is also a road to nowhere, a blind alley. I am in favour of close cooperation with the USA and exchange of data, but the devil is in the detail. While I am not an enthusiast of the Charter of Fundamental Rights, I would, however, like to ask if it is true that this mandate does not respect the provisions of the Charter. What shall we do when the passenger data which we transfer to the USA, and I am in favour of this, are used for unauthorised purposes?
John Bufton
Mr President, it is shocking to me that this Commission is still insisting on passing sensitive financial information on millions of innocent European citizens, including those from the UK, despite Parliament and the Civil Liberties Committee rejecting the proposals. The issue here is not how we can better manage SWIFT, but that there should be no SWIFT agreement at all.
I would totally oppose this sort of infringement by my own government and resolutely stand against the EU handing in constituents' personal information to America. Handing over such information is at the thin end of the wedge, leading us into a frightening Big Brother of Europe. Under current rules, the US can retain data for 90 years, which is longer than an average lifetime, and, although the US authorities say untouched data is deleted after five years, the US Government has already been accused of giving data to big American companies, not to tackle terrorism, but rather to further economic interests.
The European Parliament threw out these sickening proposals but the Commission does not like backing down, and an interim agreement was signed without parliamentary approval by the European Council last year, the day before the Lisbon Treaty would have prohibited it under the codecision procedure.
On 11 February, the European Parliament again rejected the interim agreement and a week prior to that, Parliament's Civil Liberties Committee rejected the deal. Your dogged pursuit of this disgusting agreement just goes to show your contempt for democracy and liberties of the people, including those from my country, Wales, and the rest of the United Kingdom.
Monika Hohlmeier
(DE) Mr President, ladies and gentlemen, unlike the previous speaker, I would expressly like to thank both Commissioner Malmström and Commissioner Reding for their intensive efforts to take up the issues that have been raised by Parliament, as well as the problems that we see and have seen in the area of data security and confidentiality, in order to negotiate with the United States.
I am also grateful that key issues - as mentioned by my fellow Members - have already been analysed or considered in the mandate and that, in particular, this also includes issues in the area of inspection as well as the area of reciprocity. On the matter of the erasure of data, I also consider it very important to be able to renegotiate the five-year period, since it is really not acceptable to hold data for such a long time.
I also feel it is important to ultimately discuss the matter of penalties in cases of deliberate extraction to the wrong ends in sensitive circumstances, since that prevents certain things being extracted that we do not want to see extracted. The focus should only be on terrorism.
To me, what is also important is the idea that we have to tackle our own TFTP and that in the longer term, we cannot transfer bulk data, that is to say, large amounts of data to the United States. That has nothing to do with mistrust, but the fact that in the long term, we ultimately want to take our own responsibility within Europe on an equal footing, and then exchange specific extracted data for the sole purpose of combating terrorism and finally maintain real reciprocity.
In this context, I would again like to ask the Commission to indicate how the topic of our own TFTP is viewed within the Commission and in the joint discussion with the Council.
Tanja Fajon
(SL) Terrorism remains one of the main threats to security in the European Union and we need to start negotiations with the US on the transfer of banking data as soon as possible, but not at any cost. A new agreement must provide greater protection of the personal data of European citizens. We need a better agreement, one which takes into account human rights and which addresses the issue of transferring batches of data on millions of European citizens. The future agreement must also be a reciprocal one, which means that US authorities should provide similar data on financial transactions if the European Union establishes its financial transactions tracking programme in the future. I am pleased to hear that the Commission agrees with this.
The new agreement must also ensure stricter guarantees for the transfer of data to third countries. Are we going to allow the US to transfer information to any country or are we going to set out some clear criteria for that? It is imperative that we have the most appropriate safeguards. It would also be appropriate for the country providing data to consent to their transfer to third countries, so that we can set up a system requiring countries that provide data to give their consent. I therefore wonder if we could put in place some instruments that would also allow us to refuse the transfer of information to third countries where they fail to provide sufficiently specific reasons for obtaining such data.
As the European Union does not have its own financial transactions tracking system, our security depends on the US. However, what can we ask for in return? We must also ensure that the future agreement with the US can be terminated immediately if any of the commitments is not met. We need to persuade our citizens that transferring banking data is a sensible thing to do, since we are more and more concerned about the extent to which we permit intrusion into our privacy in the fight against terrorism.
Cecilia Wikström
(SV) Mr President, ever since the end of the Second World War, it has been important to us Liberals to emphasise the transatlantic links between the US and Europe and to highlight our cooperation in various areas. However, as in all partnerships, complications and difficulties can arise, and we have to overcome these. One of the trickier complications has been the issue of people's legitimate right to personal privacy.
I believe that as time goes on, it will become very clear that Parliament did the right thing in rejecting the temporary SWIFT agreement. The EU must be characterised by democracy and transparency; we, the elected representatives in this House, are an important part of this. The procedures surrounding SWIFT left a great deal to be desired in this respect. Parliament has stated quite clearly what we demand in order to approve a new permanent agreement. The criteria are listed in the resolution that we are dealing with and debating today, and once these requirements are met, I look forward to a new vote.
There remains a conflict of interests between security on the one hand and the right to privacy on the other. Let us now put the past behind us and work confidently towards our central aim, of which a new permanent SWIFT agreement is an important part: namely the security, protection and privacy of the citizens of Europe.
Sylvie Guillaume
(FR) We will all agree - there can be no ambiguity on this issue - that the fight against terrorism is a shared fight in which the European Union must play a full part.
Yet it is just as crucial for us MEPs to ensure that the rights of European citizens and, in particular, the right to protection of personal data, are respected. I feel it is necessary to stress this point, and this message is addressed not only to the representatives of the Council and the Commission present in this House, but also to the US authorities, with which a new agreement must be negotiated.
More specifically, I wish to highlight one point that features among the essential demands made by the European Parliament, namely, the issue of data being retained by the US authorities. The current plans are disproportionate in my view. That is why several questions need to be asked. Why retain for such a long time - five years - data which, according to the parties involved, are not used? Is it not possible to reduce their retention period to a more reasonable length of time? As regards the data selected, this time, no retention period is mentioned in the mandate. The previous agreement stipulated a maximum period of 90 years. Would it not be a good idea to decide on an appropriate retention period that is proportionate to the use made of these data, for example, in relation to the length of a specific investigation, or of a specific trial? Is there an intended use for these data other than that of combating terrorism, and what is it? Lastly, could we consider retaining these data in Europe rather than in the United States?
I should like the Council and the Commission to answer these questions. This point is, in fact, crucial, and the European Parliament will not beat about the bush on this issue. Therefore, it is vitally important for the Council to take specific account of this when it adopts the Commission's negotiating mandate.
Nathalie Griesbeck
(FR) Mr President, Commissioner, ladies and gentlemen, the European Parliament took a very important step two months ago when it rejected this interim agreement.
Without going back over this matter, since I am the 27th speaker this afternoon, I should just like to stress that some people very poetically described this phase of European democracy as the first day in the life of the European Parliament under the Treaty of Lisbon. Indeed, not only was it an historic victory in terms of respect for the privacy and the freedoms of the citizens of Europe and beyond, but it was also a turning point for the powers of the European Parliament and, at the same time, a great moment of courage and daring on the part of our rapporteur, Mrs Hennis-Plasschaert, to whom I should like to pay tribute in particular for her determination only a few weeks away from an important date for her.
There is no point in mentioning the underlying elements that make us interdependent where counterterrorism, security, and the balance to be struck in the area of individual freedoms are concerned. Thus, as part of this new negotiating mandate, we are going to have to reach a fair and balanced agreement that respects rights and that is surrounded by guarantees illustrating what ultimately represents, in my eyes and in the eyes of many of our fellow citizens, the substance and strength of the European Union, namely the protection of European citizens. Since our political will must comply with the law and with expression through legal channels, I shall not go back over the elements of reciprocity and proportionality. Nevertheless, I do hope that stricter legal rules are enforced on bulk data transfers in a very vigilant and demanding way, as an issue separate from the storage and the right to rectification, modification and deletion of data, and from the right to appeal before the courts. It is up to us to cooperate in order, together, to strike this balance between the demands of security and those of freedoms.
Ioan Enciu
(RO) The European Union acknowledges the particular importance of exchanging information globally in the fight against terrorism. MEPs in the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament support any action which may result in preventing and halting terrorism. MEPs have been elected democratically to represent the interests of European citizens and cannot compromise in any way on the fact that they need to protect their rights enshrined in treaties and conventions. There are some subjects which we cannot ignore, such as personal data protection, legal protection, data transfer volume, proportionality, reciprocity or the European Parliament's permanent involvement in the monitoring process.
I believe that the appointment of a European authority for processing, authorising and transferring SWIFT data would be a solution which would provide the European Union with the guarantee that this data will be used solely for the purpose of fighting terrorism and that it pertains only to suspects who have already been identified. European citizens will also have somewhere to submit complaints about any abuses. We ask the Commission to submit, at least annually, reports on the implementation of the agreement in question. I believe that this will guarantee that the process is being conducted according to the approved agreement and that we will be able to eliminate any shortcomings in good time.
With the aim of reaching a better mutual understanding of the points where there is a difference of opinion, I suggest that briefing sessions should be arranged immediately for the European Parliament's political groups or even for national delegations, along with US representatives accredited to the European Union or Member States.
Charles Goerens
(FR) Mr President, the trial of strength that our Parliament has embarked on with the Commission and the Council on the draft SWIFT agreement may be a good thing, provided that the collection and transfer of data relating to banking transactions are used exclusively for counterterrorism purposes. Just about everyone has mentioned this obvious fact by now, but experience shows that, when it comes to the use of personal data, nothing is less certain. A suspected terrorist who is known to the United States' intelligence services is not necessarily known to their European counterparts, as the Commission's answer to one of my questions shows.
My standpoint on any new agreement on this matter will depend on the relevance of gathering personal data, on the provision of those data to security control bodies and on respect for the principle of reciprocity as regards information held by the authorities. I feel it is wise, therefore, to think about the best way of enforcing these conditions. It is up to Parliament to make this one of its prerogatives.
Proinsias De Rossa
Mr President, I welcome this debate in advance of the Council's formal consideration of the Commission's proposed mandate. I also welcome the acceptance by the Commission of many of the concerns expressed by this Parliament when we rejected the interim agreement as inadequate.
Regretfully, due to circumstances beyond our control here today, we cannot adopt a Parliament position on the draft mandate. We will vote on 6 May, and I strongly urge the Council not to sign off on an agreement before that date. This Parliament's consent is a treaty requirement, as indeed is compliance with the Charter of Fundamental Rights in any agreement that the Council signs off on. It is extremely important to bear in mind that a short delay will be far less damaging to EU-US relations than a second rejection of a draft agreement.
I, like many others, have continuing concerns about block data transfer and indeed the control of that data once it leaves our control. I am not satisfied so far that what is being proposed is, in fact, going to address those concerns. I do want closer cooperation between the European Union and the United States of America, but that cooperation must be based on mutual respect for citizens' rights.
Cristian Dan Preda
(RO) As you are well aware and has also been stated today, the fight against terrorism is a common cause in Europe. Anti-Americanism is not a common cause in Europe. This is why, especially based on what one of my fellow Members was saying before me, I do not believe that a statement which has blatantly expressed anti-American sentiment could be considered as a source of inspiration for establishing our Parliament The reason for this is that, in general, I think that feelings against the United States must not block agreement on fighting terrorism.
In fact, I would like to talk about trust in the relationship with the United States. We in the European Union and United States have common enemies who will not hesitate to exploit any crack and any evidence of a lack of trust in this relationship. The data provided by SWIFT cannot be used for any purpose other than fighting against terrorism. The exception to this, of course, is situations where other extremely serious activities are associated with terrorism, such as drug trafficking and espionage. Let us trust our US partners.
Richard Seeber
(DE) Mr President, ladies and gentlemen, I believe there are a few things that are beyond dispute, like the transatlantic partnership - since it really is the foundation of our foreign policy - the common fight against terrorism and also the cooperation of the EU institutions. However, the fact also remains that with the Treaty of Lisbon, we have acquired new foundations and, as the European Parliament, we have new rights and these rights must, above all, be exercised to protect our citizens. One right is the protection of the fundamental rights of our citizens, as well as the protection of life and the protection of privacy. Therefore we are in favour of the transfer of specific data. However, the transfer of aggregate data is certainly going overboard. The new agreement should give assurances of a balance between these fundamental rights, but also of reciprocity, proportionality and a minimum level of data security.
I would also like to ask the representative of the Council, the Presidency, where they were this morning when we debated the 2008 budget discharge - one of the most important chapters. Unfortunately, the Council Presidency was conspicuous by its absence.
Andrew Henry William Brons
Mr President, one of the crucially important questions is whether bulk data - that is everyone's information - should be handed over or whether data should be confined to identified individuals.
There is, of course, an intermediate position. Population groups associated with terrorism at a particular time could be targeted. For example, if Orkney fishermen suddenly became radicalised and started to kill humankind and not just fish, then they should be targeted. If ageing, overweight, grey retired college teachers should put on fatigues and commit terrorist outrages against their students, rather than just boring them to death with their deadly monotones, then they - or rather I should say we - should also be targeted.
Targeting is viewed with distaste and condemned as discriminatory. I would call it common sense. Nevertheless, there must be early destruction of data belonging to innocent members of those targeted groups.
Zuzana Roithová
(CS) Mr President, detecting the financial flows of terrorist networks is a highly effective instrument in the fight against terrorism. In February, the left rejected a provisional agreement without even proposing another suitable framework for security units, thereby complicating the work of the police and the judiciary. We must now join forces in order to adopt a new, definitive agreement. I applaud the fact that the Council and Commission are today communicating openly, and I would therefore like to ask the Commissioner whether it is necessary to transmit 90 million items of data every month, because I have my doubts about that, and I would also like to ask how our citizens will appeal to the American authorities over suspected abuses of data and who will monitor the data transmitted to the American Government. In my opinion, it should perhaps be an independent judicial body based on international treaties on mutual legal assistance, and not Europol, the decisions of which cannot be reviewed and which will not even have suitable powers unless we amend its statute. The priority is the fight against terrorism, but we cannot circumvent the Charter of Fundamental Rights, which is supposed to guarantee the protection of personal data. Open access to judicial review in contentious cases would, in my view, be a sure guarantee.
Angelika Werthmann
(DE) Mr President, ladies and gentlemen, today's debate shows that civil rights and the fight against terrorism are not always easy to reconcile. The SWIFT agreement that is being discussed again today underlines the problem of protecting our civil rights while, at the same time, investing in the security of our world community.
The Commission's draft mandate continues to provide for the transfer of large data units between the USA and the EU. The retention periods are still too long and, last but not least, I have two questions. Is there a time limit to this bilateral agreement? If so, what is the timeframe and within what timeframe will the data finally be erased?
Anneli Jäätteenmäki
(FI) Mr President, the fight against terrorism is important, and the EU must be part of this. We cannot do this by trampling on human rights, however. Respect for human rights is one of the most important European values, and it should be a unifying factor in transatlantic cooperation too.
It is important that transatlantic cooperation should work, but it must work reciprocally and with a feeling of mutual respect. Changes to data must take place individually, and I want to stress again that we cannot trample on human rights in the name of the fight with terrorism. If this happens, then we will have helped the terrorists.
Mariya Nedelcheva
(FR) Mr President, Mr López Garrido, Mrs Malmström, I wish to congratulate the authors of the motion for a resolution on the conclusion of the agreement between the United States and the European Union on the transfer of financial data to combat terrorism. This resolution reiterates, in a balanced way, not only the requirements in terms of security but also the guarantees that the data of European citizens will be protected and that their fundamental rights will be respected.
As such, I believe that appointing a European public judicial authority to be in charge of receiving the requests issued by the United States Treasury Department is the key to the balanced approach we are looking for. Indeed, it will help overcome the many obstacles to the principles of necessity and proportionality that have emerged, in particular, in the case of bulk data transfers.
It would also pave the way for the introduction of genuine reciprocity; in other words, it would be possible for the European authorities and the Member States' competent authorities to obtain financial data stored on US territory. It is our credibility that is at stake here. The SWIFT agreement is a kind of democratic test that we are all duty-bound to pass for the good of our fellow citizens.
Diego López Garrido
Mr President, I would like to start by saying to Mr Seeber that I was in fact present this morning at the debate to which he was referring. Even though I had not been officially invited, you, ladies and gentlemen, asked me to come and I came: I was present and spoke in that debate. Perhaps it was he who was not here, just as he is not in this session now and has left the Chamber.
Well, I wanted to say that the debate we have had was, in my view, highly constructive. I believe it shows that there is a real spirit of cooperation on both sides, among all the parties involved: Parliament, the Commission and the Council. The rapporteur, Mrs Hennis-Plasschaert, acknowledged the spirit of cooperation she could see in the Council - for which I am very grateful - and also in the Commission. I am grateful that she has said so publicly.
Indeed, there is no doubt whatever that both the mandate that the Commission has put forward through Mrs Malmström and the mandate that the Council will approve will very much take account of and find inspiration in the concerns and positions expressed in your speeches and in the motion or draft motion for a resolution proposed by the rapporteur.
I have noticed that there is a series of problems that concern you in particular, and I want to assure you that those problems and concerns that you have mentioned will form part of the negotiating directives that the Council is going to approve. The negotiations will be directed by the Commission and will result in something that the Council and Parliament will have to sign. The first item in those negotiating directives will be the problem that has been brought up repeatedly here this afternoon: bulk data transfer.
Mr Albrecht, Mr Busuttil, Mrs Sippel, Mrs Sargentini, Mrs Svensson, Mr Paška, Mr De Rossa and several others have raised this issue. I would like to tell you that we cannot, of course, accept indiscriminate bulk transfer, whatever may be requested for any purpose. It is not about that. It is about data that is requested solely for preventing, investigating and prosecuting terrorist crimes and terrorist financing and, moreover, with individualised objectives regarding a particular person where there are grounds for thinking that that person has a nexus or relations with terrorism or its financing. We are therefore not looking at mass transfer of such data; the objective and the subject place very clear bounds on that transfer of data.
In addition, there will be a European authority through which that data will be requested, and afterwards there will also be a check, essentially carried out by the Commission, on the use of said data and on the operation of the agreement that is to be signed. I therefore believe that there is a mechanism in place that is perfectly able to answer the concerns that have been raised here on this issue.
The retention period for data has also been mentioned. The retention period for data is set at around five years, because it is obviously necessary to retain the data for a minimum period of time for reasons of effectiveness. It must be made clear, though, that the period must be as short as possible and no longer than is necessary to achieve the objective. The objective - the need to retain the data - must always be absolutely well defined; otherwise it would not make sense. Data must always be retained with an objective and in relation to a specific person.
You have also shown your concern regarding people's rights to have access to, to be informed about and to correct their data. Mr Coelho, for example, who is not here at the moment, expressed this in some detail. I can tell you that the negotiating directives agree with the draft mandate drawn up by Mrs Malmström in that those rights will be assured. The rights of information, access and correction will and must be assured in the agreement to be signed.
The principles of necessity and of proportionality will be assured in the negotiating directives and in the agreement that is eventually signed. The possibility of appeal will be assured - administrative appeal and judicial appeal - without discrimination on the basis of nationality or for any other reason. Therefore, in relation to the concerns raised by Members, including Mrs Bozkurt and Mrs Vergiat, all that will be assured. In addition, there will be absolute reciprocity. This is one of the topics that was most emphasised in the previous debate, which we all remember. There will be absolute reciprocity with regard to the United States. That is another of the characteristics of the negotiating directives that the Council will approve and which agree with what you have said here and with the motion for a resolution proposed by Mrs Hennis-Plasschaert.
I would like to point out here that the Council is firmly committed to approving a mandate that protects the fundamental rights of European citizens, and which applies and is absolutely faithful to and in accordance with the European Union Charter of Fundamental Rights - which forms part of the Treaty of Lisbon - and the European Convention on Human Rights, which the EU proposes to sign in the coming months as one of the goals marking the beginning of this new political stage of the Union.
Cecilia Malmström
Member of the Commission. - Madam President, I think this has indeed been a very constructive debate. We have listened carefully and are taking due notice of everything that has been said. The Council answered quite a lot of the questions that were raised, and I will just add a few things because it is important that we get as much clarity as possible.
There will be an EU review team. They will have the right to review random samples to ensure that the data has been taken in a way that is respected according to the agreement. There must be a reasonable belief that the target of the search is a terrorist or someone financing terrorism. We also must remember that each and every search of TFTP data is verified by a SWIFT scrutineer and by an independent judicial authority before it is given out. The EU review team will also have access to this information.
The agreement will ensure that EU citizens have access to non-discriminatory administrative and judicial rights. Exactly how this will be specified is, of course, part of the negotiations, so I cannot be more specific on this. But it is - as the Council also said - a very important part of the negotiation. We will have to find a solution to this, and as regards rectification and access.
Data will not be transferred to third countries - only relevant leads analysis but not mass data - and it will only be for terrorism purposes. The whole deal is only for terrorism purposes. The agreement will also ensure that EU nationals, via their data protection authorities, have the right to know that the rights of the data subject have been duly respected. The use requests for data are already targeted when it comes to bulk data. There has to be a suspected terrorist that can only be searched. So only a fraction of SWIFT data will be transferred and only a very small proportion of that will be accessed. The rest will remain anonymous.
We will seek to reduce and explore the possibility of reducing and fine-tuning the definition in order to have the volume still further reduced, but there are already legally binding rules that would prevent any access to that data unless there is reasonable suspicion. The EU review team will verify a representative sample - as I said - and if there are any breaches of the agreement, it can be immediately interrupted by the European Union.
So I think that we can act swiftly and that we can have a good agreement. There is the security gap issue that we have to take into consideration but, of course, there are also many questions that have to be answered concerning data protection and the other issues that you have raised. The Americans have shown a very open attitude so far. They are ready to work with us as quickly as possible but also to be creative and to find answers to our questions. I know that a team from the European Parliament will travel next week and you will be able to put questions and hopefully have more answers then.
The other track in parallel to this is, of course, whether we should have another solution at European level, whether we should have an EU TFTP or create some new authority. That is a very important discussion. It needs to be explored in depth within Europe. Of course, that will not be part of the negotiation. We must make sure that, should this happen, the Americans will help and there will be reciprocity, but we must figure that out. The Commission is willing to participate, to be innovative and to put forward proposals, but that is for the Member States to decide. I know that the European Parliament is very active, and I am looking forward to having these discussions with you. So this is a parallel discussion.
Also in parallel, there is the work done by my colleague, Vice-President Viviane Reding, who is already starting to draft a mandate for a long-term data protection agreement for all the agreements that we have with the United States. Of course, this is also something that has to be put into the picture.
Finally, the volcano in Iceland is, of course, something that has created a lot of travel problems for many people all around the world and it makes it impossible for you to vote. I very much deplore that, but you can be sure that - the Presidency is here, I am here, our services are here - we have taken due account of the debate. We have seen the draft resolution and that is signed by four political groups. We will communicate that to the Ministers.
If we postpone the decision in the Council, we will lose two important weeks of negotiations. I said earlier that the Americans are willing. They are constructive and they want to embark on this, but it will not be easy. It will be a difficult negotiation and we need the time. We want to get this done as soon as possible but also as well as possible. If we want the European Parliament to be able to vote on it before the summer recess, we must take a decision so that we can start the negotiations as soon as possible. So please be understanding about this. I do want to reassure you that both the Presidency and the Commission have listened extremely carefully to your views and, as the Presidency said, we will take account of the debate here and communicate it to the Ministers on Friday.
President
The debate is closed.
The vote will take place during the first part-session in May.
Written statements (Rule 149)
Marian-Jean Marinescu  
I welcome the new SWIFT mandate for the EU-US agreement as part of the terrorist financing tracking programme, especially as the Council and Commission have learnt the lesson from the past and included Parliament's stringent demand in negotiations, which is that higher standards should be applied to data protection. However, this transfer of financial messaging data from the EU to the US must be firmly negotiated with the US authorities. No bulk data must be transferred and technical resources must be insisted on which can facilitate the transfer of individual data, pertaining to suspects only. I hope that this agreement will not cause the EU any surprises in the future and that it will be clarified before signing the agreement that the EU is entitled to obtain information from the US database and that there is no possibility of data being transferred to third countries. Furthermore, this transfer must guarantee the protection and entitlement of citizens, especially with regard to accessing and amending their data, as stipulated in national and European legislation. Last but not least, it must be clarified that European citizens have the right to submit a complaint where their personal data is used illegally.
