VZCZCXYZ0000
PP RUEHWEB

DE RUEHBS #1283/01 2661229
ZNR UUUUU ZZH
P 231229Z SEP 09
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC PRIORITY
INFO RHMFIUU/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEATRS/DEPT OF TREASURY WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEHNSC/NSC WASHDC
RUEHGG/UN SECURITY COUNCIL COLLECTIVE
RUCNMEU/EU INTEREST COLLECTIVE

UNCLAS USEU BRUSSELS 001283 
 
SENSITIVE 
SIPDIS 
 
DEPT FOR P, INR, EEB/ESC/TFS, S/CT, L, EUR 
TREASURY FOR TFI, OIA, TFFC, OFAC 
 
E.O. 12958: N/A 
TAGS: PTER KTFN ETTC PREL EFIN KCRM KJUS KHLS PINR KPAO
EUN 
SUBJECT:  MEP ANGST OVER U.S.-EU TFTP/SWIFT DATA NEGOTIATIONS 
 
¶1. (SBU) SUMMARY: On September 16, minority European Parliament (EP) 
parties (Greens and Communists) vehemently denounced U.S.-EU 
negotiations on an interim agreement to continue the Terrorist 
Finance Tracking Program (TFTP) once SWIFT, the Belgium-based global 
financial messaging company, relocates relevant data to the 
Netherlands by the end of 2009.  A plurality of parties, however, 
offered cautious political approval under certain conditions.  The 
Christian Democrats, Socialists, Liberals and Conservatives jointly 
tabled a (non-binding) resolution adopted in plenary on September 
¶17.  Greens and Communists failed to pass amendments and competing 
draft resolutions aimed to suspend U.S.-EU negotiations.  During the 
September 16 session, Swedish Presidency Justice Minister Beatrice 
Ask and Commission Vice President for Justice, Freedom and Security 
Jacques Barrot defended the Council and Commission's approach to the 
U.S. in support of the TFTP, calling attention to the program's 
contributions to the safety and security of the EU, having revealed 
terrorist plots and prevented terrorist attacks on EU soil. 
Opponents heatedly dismissed the Presidency and Commission's 
repeated efforts to explain the reasons for urgency in advance of 
the Lisbon Treaty, confidentiality of the negotiations, and value of 
the program.  The adopted resolution asserts specific conditions the 
EU must impose on the U.S. before entering into agreement.  Should 
the Lisbon Treaty enter into force, a permanent U.S.-EU agreement 
must be renegotiated with EP consent.  END SUMMARY. 
 
------------------------------------------- 
MEPs Square Off with Presidency, Commission 
------------------------------------------- 
 
¶2.  (U) On September 16, the Swedish EU Presidency and the Effered statemenreement to the 
Europe session in Strasbourg.  Presentatives spoke on the The Swedish Presidency andlied at the end of the debQ`h Justice Minister Beada for 
the need for `inst terrorist financier 3 "in camera" (non-pganized by 
the ommittee (LIBE) and the ry Affairs Committee (ECON scurity he TFTP 
over the years  plots and prevented terrQ EU soil.  Ask explained Qas moving 
its serve before the end ofxchange of Qinterrupted -- 
concQld not await ratificaeaty, which would requirQ its approval.  Theerscored 
the interim/time 
draft agreement and saQion had already decided to 
propose a new agreement as soon as the new Treaty was in force.  She 
said the Preside cy was firmly convinced of the usefulness of the 
program, but also wanted to ensure a Qechanism was in place to 
guarantee individuaQ data protection and integrity.  The Minister 
said the agreement must go "further than the oe-sided [U.S. 
Treasury] representations of 2007."  She added that data must be 
kept in a safe way, logged, searches restricted, only appointed 
individuals could search with well founded reason to believe 
terrorist or terrorism financing activity was taking place, and that 
data retention must be limited and ended as soon as possible or 
within 5 years.  She added that neither the U.S. nor the EU may use 
the data for non-terrorism related purposes and that "the transfer 
must be proportional, and appraised by the Presidency, the 
Commission, and two people from EU Member State Data Protection" 
Authorities. 
 
¶4.  (U) Commission Vice President & Commissioner for Justice, 
Freedom & Security Jacques Barrot stood in line with the Presidency, 
reminding the EP of the various sessions they had already discussed 
regarding timing, urgency, and value of the program.  "This analysis 
enables U.S. authorities to prevent and investigate attacks both in 
the U.S. and EU", he said.  The U.S. had also respected safeguards, 
limited access & retention, and restricted use to terrorist 
purposes.  According to Barrot, an interim agreement was essential, 
and must be "immediately renegotiated with the full European 
Parliament" (after entry into force of the Lisbon Treaty).  He was 
very happy this was based on reciprocity across the board and joint 
efforts. 
 
¶5.  (U) On behalf of the Christian Democrat European People's Party 
(EPP) -- with 265 members, the largest group of the 735 EP members 
-- German MEP Ernst Strasser stressed that the U.S. was an important 
partner in the fight against terrorism, but added that the agreement 
should respect European data protection regulations and citizens' 
rights.  Strasser listed 6 points that were essential to EPP support 
for a U.S.-EU agreement: 
 
1) there should be a balance between the security of citizens and 
citizens' rights; 
2) the agreement should provide legal certainty for the companies 
involved and for EU citizens; 
3) the co-decision role of the European Parliament after entry into 
force of the Lisbon Treaty should be respected; 
4) European data must be handled under EU Law; 
5) an instrument comparable to the TFTP should be introduced at EU 
level; 
6) there should be full reciprocity between the EU and the U.S. 
 
¶6. (U) The spokesman for the Socialist and Democrat Group (S&D) -- 
with 184 members, the second largest EP group -- Claude Moraes, 
called SWIFT "a testing ground for getting the balance right between 
our (the EU's) cooperation with the United States, fighting 
terrorism and protecting our fundamental rights".  He welcomed the 
transfer of SWIFT's servers to Europe and the creation of a new 
legal framework in order for the U.S. TFTP to continue using and 
processing data in cooperation with the EU's law enforcement 
authorities.  Moraes did stress, however, that "some key questions" 
were left open, i.e.: "If U.S. legal standards continue to apply on 
EU soil for the processing of EU data, how can we guarantee respect 
for EU standards regarding procedural rights and the protection of 
personal data?  To which judge can an EU citizen or an EU enterprise 
go in the case of criminal prosecution?"  He insisted that the 
interim agreement should apply only for 12 months and that a new 
agreement should be negotiated with Parliament as co-legislator, to 
respect "the delicate balance of protecting the fundamental rights 
of European citizens in the important and critical fight against 
terrorism". 
 
¶7.  (U) Dutch MEP Sophia in't Veld, speaking on behalf of the 84 
members of the Alliance of Liberals and Democrats for Europe (ALDE), 
chided that it should go without saying that the agreement respect 
European data protection standards.  She mainly criticized the 
opaque manner by which the Council was taking decisions about EU 
citizens and demanded evidence demonstrating the need for such 
programs as TFTP, transfer of Passenger Name Record (PNR) data, and 
data retention.  "The fight against terrorism has almost become a 
runaway train, whereby the Council shows complete contempt for 
European citizens and democracy", she said.  In't Veld wondered why 
the Council had presented the draft agreement only this summer, 
while it was known already in 2007 that SWIFT's architecture would 
be changed by the end of 2009.  She suggested that the reason for 
Council's failure to consult national parliaments about its 
negotiating mandate was the wish by EU governments to gain access to 
data of EU citizens via the American government.  The Dutch 
politician finally called for publication of the legal advice that 
was drawn up by the Council General Secretariat's Legal Services. 
Directly after the debate had been closed, Ms. In't Veld interjected 
a complaint under guise of a Point of Order that Minister Ask had 
not responded to any of her questions and requested a written 
response. 
 
¶8.  (U) The 55 member-strong Greens group was represented by German 
MEP Jan Philipp Albrecht, who called upon the Swedish Presidency to 
halt the negotiations until it could guarantee respect of the rights 
of citizens and parliaments.  He said: "The cow-trading with bank 
data without binding protection mechanisms, equals the clearance 
sale of the data protection rights of European citizens and makes 
all citizens suspects from the outset". 
 
¶9.  (U) Marie-Christine Vergiat of the GUE/NGL Group (European 
United Left) called the EU's backing of TFTP "a scandal" and said 
the EU "must suspend the agreement" because of its breach of EU 
values.  (NOTE:  The Communists subsequently issued a press release 
to this effect.  END NOTE.) 
 
¶10.  (SBU) Swedish Justice Minister Beatrice Ask and Commissioner 
Barrot kept their cool throughout the heated debate.  Barrot said 
the EU would never agree if the U.S. did not provide data protection 
assurances and guard against commercial espionage.  He patiently 
explained the reasons for the timing and highlighted the report 
drawn up by French Judge Bruguiere, who, on behalf of the EU, 
reviewed the respect by U.S. authorities of the safeguards in the 
handling of personal data included in the U.S. Treasury TFTP 
Representations.  Minister Ask said the agreement must have a "high 
level of efficiency with clear and demanding conditions; if we 
don't, we won't agree."  But she signaled that negotiations required 
give and take, and though happy by the open debate, she could not 
divulge contents of the current negotiation.  Justice Minister Ask 
also highlighted the Bruguiere Report as showing the U.S. had 
honored its commitments and described how further evaluations would 
continue to ensure this.  She explained that databases can only be 
accessed under specific criteria (e.g., suspected terrorism / 
terrorism financing). 
 
------------------------------ 
Resolution Adopted on Sept. 17 
------------------------------ 
 
¶11. (U) The European Parliament adopted the following resolution on 
September 17, 2009: 
 
BEGIN TEXT: 
 
European Parliament resolution of 17 September 2009 on the envisaged 
international agreement to make available to the United States 
Treasury Department financial payment messaging data to prevent and 
combat terrorism and terrorist financing 
 
The European Parliament, 
 
-   having regard to Article 6(2) of the Treaty on European Union 
and Article 286 of the EC Treaty, 
 
-   having regard to Articles 95 and 300 of the EC Treaty, 
 
-   having regard to the European Convention on Human Rights, in 
particular Articles 5, 6, 7 and 8 thereof, 
 
-   having regard to the Charter of Fundamental Rights of the 
European Union, in particular Articles 7, 8, 47, 48 and 49 thereof, 
 
-   having regard to Council of Europe Convention No 108 for the 
Protection of Individuals with regard to Automatic Processing of 
Personal Data, 
 
-   having regard to Directive 95/46/EC of the European Parliament 
and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on 
the free movement of such data, 
 
-   having regard to Regulation (EC) No 45/2001 of the European 
Parliament and of the Council of 18 December 2000 on the protection 
of individuals with regard to the processing of personal data by the 
Community institutions and bodies and on the free movement of such 
data, 
 
-   having regard to Directive 2005/60/EC of the European Parliament 
and of the Council of 26 October 2005 on the prevention of the use 
of the financial system for the purpose of money laundering and 
terrorist financing and Regulation (EC) No 1781/2006 of the European 
Parliament and of the Council of 15 November 2006 on information on 
the payer accompanying transfers of funds, 
 
-   having regard to the Agreement on mutual legal assistance 
between the European Union and the United States of America of 25 
June 2003, in particular Article 4 thereof (on identification of 
bank information), 
 
-   having regard to the US Terrorist Finance Tracking Program 
(TFTP) based on US Presidential Executive Order 13224, which, in the 
event of a national emergency, authorises notably the US Treasury 
Department to obtain, by means of "administrative subpoenas", sets 
of financial messaging data transiting over financial message 
networks such as the ones managed by the Society for Worldwide 
Interbank Financial Telecommunications (SWIFT), 
 
-   having regard to the conditions established by the US Treasury 
Department to access the SWIFT data (as defined by the US 
representations) and taking account of the information obtained by 
the Commission via the "eminent person" on the US authorities" 
compliance with the representations referred to above, 
 
-   having regard to its previous resolutions inviting SWIFT to 
comply strictly with the EU legal framework, notably when European 
financial transactions take place on EU territory, 
 
-   having regard to the negotiating directives for the Presidency 
of the Council and the envisaged international agreement between the 
EU and the US on the transfer of SWIFT data, which have been 
classified "EU Restricted", 
 
-   having regard to the opinion of the European Data Protection 
Supervisor of 3 July 2009, which has been classified "EU 
Restricted", 
 
-   having regard to Rule 110(2) of its Rules of Procedure, 
 
¶A.   whereas SWIFT announced in October 2007 a new messaging 
structure to be operational by the end of 2009, 
 
¶B.   whereas this change in messaging structure would have the 
consequence that the majority of the financial data that SWIFT had 
thus far been subpoenaed to transfer to the US Treasury Department's 
TFTP would no longer be made available to the TFTP, 
 
¶C.   whereas on 27 July 2009 the Council unanimously adopted the 
negotiating directives for the negotiation by the Presidency, 
assisted by the Commission, of an international agreement with the 
US, on the basis of Articles 24 and 38 of the Treaty on European 
Union, to continue the transfer of SWIFT data to the US TFTP, 
 
¶D.   whereas the negotiating directives, together with the legal 
opinion on the choice of legal basis issued the Council's Legal 
Service, have not been made public, since they are classified "EU 
Restricted", 
 
¶E.   whereas the international agreement will provide for 
provisional and immediate application from the time of signature 
until entry into force of the agreement, 
 
¶F.   whereas the EU itself does not have a TFTP in place, 
 
¶G.   whereas access to data managed by SWIFT makes it potentially 
possible to detect not only transfers linked to illegal activities 
but also information on the economic activities of the individuals 
and countries concerned, and could thus be misused for large-scale 
forms of economic and industrial espionage, 
 
¶H.   whereas SWIFT concluded with the United States Treasury 
Department a memorandum of understanding which narrowed the scope of 
data transferred and confined the scope of data searches to specific 
counter-terrorism cases, and subjected such transfers and searches 
to independent oversight and audit, including real-time monitoring, 
 
¶I.   whereas any EU-US agreement must be conditional upon 
maintaining the protection which exists in the memorandum of 
understanding and the US Treasury representations, such as those 
that apply in the case of data subpoenaed from SWIFT's US operating 
centre by the US Treasury Department, 
 
¶1.  Recalls its determination to fight terrorism and its firm belief 
in the need to strike the right balance between security measures 
and the protection of civil liberties and fundamental rights, while 
ensuring the utmost respect for privacy and data protection; 
reaffirms that necessity and proportionality are key principles 
without which the fight against terrorism will never be effective; 
 
¶2.  Stresses that the European Union is based on the rule of law and 
that all transfers of European personal data to third countries for 
security purposes should respect procedural guarantees and defence 
rights and comply with data-protection legislation at national and 
European level; 
 
¶3.  Reminds the Council and the Commission that, within the 
transatlantic framework of the EU-US agreement on legal assistance, 
which will enter into force on 1 January 2010, Article 4 provides 
for access to be granted to targeted financial data upon request, 
through national state authorities, and that this might constitute a 
sounder legal basis for the transfer of SWIFT data than the proposed 
interim agreement, and asks the Council and the Commission to 
explain the need for an interim agreement; 
 
¶4.  Welcomes SWIFT's decision in June 2007 to relocate all intra-EU 
financial transfer data to two European operating centres; draws the 
Council's attention to the fact that this decision was taken in 
accordance with the Belgian Data Protection Authority and the 
request from the EU's Article 29 Working Party and in line with the 
view expressed by the European Parliament; 
 
¶5.  Notes that the Council did not adopt the negotiatQhost two years after SWnge in messaging 
structuhed that, with respect to t@ for 
this envisaged agrices of the institutio`ent opinionncil's 
Legal Servicep is a Community competo the extent that an inis 
absolutely necessary,must as a very minimum e`ta are transferred and prourposes 
of fighting terrx `ps`thions under examination inhich do not disclose   d) that EUnand enterprises are granted the same defence 
rights and procedural guQrantees and the same right of access to 
just)ce as exist in the EU and that the legality andproportionality 
of the transfe requests are open to judicial review in the UQ; 
   e) that transferred data are subject to he same judicial redress 
mechanisms as wouldapply to data held within the EU, including 
compensation in the event of unlQwful processing of personal data; 
   f) that the agreement prohibits any use of SWIFT data by US 
authorities for purposes other than those linked to terrorism 
financing, and that the transfer of such data to third parties other 
than the public authorities in charge of the fight against terrorism 
financing is also prohibited; 
   g) that a reciprocity mechanism is strictly adhered to, obliging 
the competent US authorities to transfer relevant financial 
messaging data to the competent EU authorities, upon request; 
   h) that the agreement is expressly set up for an intermediate 
period by means of a sunset clause not exceeding 12 months, and 
without prejudice to the procedure to be followed under the Lisbon 
Treaty for the possible conclusion of a new agreement in this 
field; 
   i) that the interim agreement clearly provides for the US 
authorities to be notified forthwith after the entry into force of 
the Lisbon Treaty and that a possible new agreement will be 
negotiated under the new EU legal framework that fully involves the 
European Parliament and national parliaments; 
 
¶8.  Requests the Council and the Commission to clarify the precise 
role of the "public authority" to be designated with responsibility 
to receive requests from the US Treasury Department, taking into 
account in particular the nature of the powers vested in such an 
"authority" and the way in which such powers could be enforced; 
 
¶9.  Requests the Council and the Commission to confirm that batches 
and large files such as those concerning transactions relating to 
the Single European Payment Area (SEPA) fall outside the scope of 
the data to be requested by or transferred to the US Treasury 
Department; 
 
¶10.  Stresses that SWIFT is a key infrastructure for the resilience 
of Europe's payment systems and securities markets and should be not 
be unfairly disadvantaged vis-`-vis competing financial message 
providers; 
 
¶11.  Underlines the importance of legal certainty and immunity for 
citizens and private organisations subject to data transfers under 
such arrangements as the proposed EU-US agreement; 
 
¶12.  Notes that it may be useful for the Commission to evaluate the 
necessity of setting up a European TFTP; 
 
¶13.  Requests the Commission and the Presidency to ensure that the 
European Parliament and all national parliaments will be given full 
access to the negotiation documents and directives; 
 
¶14.  Instructs its President to forward this resolution to the 
Council, the Commission, the European Central Bank, the governments 
and parliaments of the Member States and candidate countries, and 
the United States Government and the two Chambers of Congress. 
 
END TEXT. 
 
¶12. (SBU) COMMENT:  USEU will continue to work with State, Treasury, 
and Justice representatives to appropriately engage EU and EP 
stakeholders in promoting a successful conclusion of the interim 
U.S.-EU international agreement on the TFTP.  Such support will be 
essential in the event of negotiating a longer-term binding 
agreement.  END COMMENT. 
 
MINIMIZE CONSIDERED 
 
MURRAY