Proposal for a Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program
Date: 2009-12-17
Institutions: European Commission
Subjects: United States, agreement (EU), data protection, data transmission, financing, information processing, personal data, ratification of an agreement, terrorism

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EUROPEAN COMMISSION 

Brussels, 17.12.2009 
COM(2009)703 final 

2009/0190 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Union and the United States 
of America 
on the processing and transfer of Financial Messaging Data 
from the European Union to the United States 
for purposes of the Terrorist Finance Tracking Program

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   EN 

 
 
  
EXPLANATORY MEMORANDUM 

•  The  Justice  and  Home  Affairs  Council  of  30  November  2009  authorised  the 
Presidency  of  the  Council  of  the  European  Union  to  sign  an  interim  agreement 
between the European Union and the United States on the processing and transfer 
of Financial Messaging Data from the EU to the U.S. for purposes of the Terrorist 
Finance Tracking Program (TFTP). The Agreement was signed by the Parties on 
30  November  2009  and  will  be  applied  provisionally  as  from  1  February  2010. 
The Agreement has a maximum duration of 9 months and will be replaced in due 
course by a longer term agreement.  

•  The purpose of the 30 November 2009 Agreement is to ensure the continuation of 
the  TFTP  which  has  existed  since  end  2001  and  pursuant  to  which  the  United 
States  Department  of  the  Treasury  served  administrative  subpoenas  on  the  U.S. 
arm  of  the  Society  for  Worldwide  Interbank  Financial  Telecommunication 
(SWIFT)  for  the  transfer  to the Treasury  Department  of  limited sets of  financial 
messaging data which transit over SWIFT's financial messaging network.  It  was 
necessary for the EU  and  the United States to enter into the 30 November 2009 
Agreement  since  SWIFT's  new  systems  architecture  which  has  been  operational 
since 1 January 2010 risked substantially undermining the benefit of the TFTP not 
least for the European Union.  

**** 

•  In  early  2007  the  Presidency  of  the  Council  of  the  European  Union  and  the 
European Commission engaged in discussions with the U.S. Treasury Department 
concerning the latter's processing of EU-originating personal data accessed under 
the TFTP. As a direct consequence of these discussions, the Treasury Department 
made  a  series  of  unilateral  commitments  to  the  European  Union  in  June  2007 
("the  TFTP  Representations").1  The  TFTP  Representations  expressly  limit  the 
Treasury's  processing  of  EU-originating  personal  data  accessed  pursuant  to  the 
TFTP.  Limitations  include,  for  example,  that  data  will  be  processed  exclusively 
for  counter  terrorism  purposes,  that  data  can  only  be  accessed  if  there  is  a  pre-
existing terrorism nexus (i.e. no data mining) and an obligation to delete data after 
a certain period. In addition, the TFTP Representations state that the Commission 
may  appoint  an  "eminent  European  person"  who  will  verify  and  report  to  the 
Commission on U.S. Treasury compliance with its commitments.  

•  In  March  2008  the  Commission  announced  that  it  had  designated  Judge  Jean-
Louis Bruguière as the TFTP "eminent European person" whose role would be to 
verify  that  the  TFTP  is  implemented  in  accordance  with  the  Representations. 
Judge Bruguière completed his first report in December 2008. The Report which 
was presented to the Justice and Home Affairs Council in February 2009 and to 
the European Parliament's Civil Liberties Committee in February and September 
2009, finds that the U.S. Treasury Department complies with the commitments set 
out in the TFTP Representations. The Report further concludes that the TFTP has 

1 

The TFTP Representations, were acknowledged by the European Union by letter of 29 June 2007. The 
TFTP Representations and EU letter of acknowledgement were published in the Official Journal OJ C 
166/18 of 20.7.2007 and OJ C 166/26 of 20.7.2007.  

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generated  considerable  value  for  Member  State  authorities'  investigation  of 
terrorism  and  that  Member  State  authorities  have  been  the  main  beneficiaries  of 
TFTP-derived  information2.  There  is  currently  no  equivalent  of  the  TFTP  in  the 
European Union. 

**** 

•  The  Agreement  aims  to  prevent  and  combat  terrorism  while  respecting 
fundamental  rights,  and  notably  the  protection  of  personal  data.  The  Agreement 
between the European Union and the United States of America on the processing 
and transfer of Financial Messaging Data from the European Union to the United 
States  for  purposes  of  the  Terrorist  Finance  Tracking  Program  of  30  November 
2009 aims to ensure full respect for fundamental rights enshrined in Article 6 of 
the  Treaty  on  European  Union  and  for  the  principles  of  proportionality  and 
necessity  regarding  the  right  to  respect  for  private  and  family  life  and  the 
protection  of  personal  data  as  set  out  in  Articles  7  and  8  of  the  Charter  of 
Fundamental Rights of the European Union. 

•  Article 218(6)(a) of the Treaty on the Functioning of the European  Union states 
that  in  the  case  of  agreements  covering  fields  to  which  the  ordinary  legislative 
procedure  applies,  the  Council  shall  adopt  a  decision  concluding  the  agreement, 
after obtaining the consent of the European Parliament.  

**** 

•  The  Commission  therefore  recommends  to  the  Council,  after  obtaining  the 
consent  of  the  European  Parliament,  to  adopt  a  decision  concluding  the 
Agreement between the European Union and the United States of America on the 
processing and transfer of Financial Messaging Data from the European Union to 
the United States for purposes of the Terrorist Finance Tracking Program.  

2 

The "eminent European person" Report of December 2008 contains various examples of where TFTP-
derived  intelligence  has  been  shared  with  EU  Member  State  services  in  connection  with  the 
investigation, prevention and prosecution of terrorism in the European Union. The Report further states 
that United States authorities have shared approximately 1400 TFTP-derived leads with Member States 
since 2002.  

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2009/0190 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Union and the United States 
of America 
on the processing and transfer of Financial Messaging Data 
from the European Union to the United States 
for purposes of the Terrorist Finance Tracking Program 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 82(1)(d) and 87(2)(a), in conjunction with Article 218 (6)(a) thereof,  

Having regard to the proposal from the Commission, 

Having regard to the consent of the European Parliament3,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

On 27 July 2009 the Council authorised the Presidency of the Council, assisted by the 
Commission, to open negotiations for an Agreement between the European Union and 
the  United  States  of  America  on  the  processing  and  transfer  of  Financial  Messaging 
Data  from  the  European  Union  and  the  United  States  for  purposes  of  the  Terrorist 
Finance Tracking Program.  

In  accordance  with  Council  Decision  2009/XXX  of  30  November  20094  the 
Agreement  between  the  European  Union  and  the  United  States  of  Americaon  the 
processing and transfer of Financial Messaging Datafrom the European Union to the 
United  Statesfor  purposes  of  the  Terrorist  Finance  Tracking  Program  was  signed  on 
…., subject to its conclusion at a later date. 

In  accordance  with  its  Article  15(2)  the  provisions  of  the  Agreement  shall  apply 
provisionally from 1 February 2010 until its entry into force. 

The  Agreement  has  not  yet  been  concluded. With  the  entry  into  force  of  the  Lisbon 
Treaty  on  1  December  2009,  the  procedures  to  be  followed  to  that  end  by  the 
European Union are governed by Article 218 of the Treaty on the Functioning of the 
European Union.  

3 
4 

OJ C , , p. . 
OJ L , , p. . 

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(5) 

(6) 

(7) 

The Agreement should be concluded. 

[In accordance with Article 3 of the Protocol on the Position of the United Kingdom 
and  Ireland  in  respect  of  the  area  of  Freedom,  Security  and  Justice  annexed  to  the 
Treaty on European Union and the Treaty on the Functioning of the European Union, 
the United Kingdom and Ireland take part in the adoption of this Decision.] 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  Position  of  Denmark 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  on  the  Functioning  of  the 
European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by the Agreement or subject to its application, 

HAS DECIDED AS FOLLOWS:  

Article 1 

The  Agreement  between  the  European  Union  and  the  United  States  of  America  on  the 
processing and transfer of Financial Messaging Data from the European Union to the United 
States for purposes of the Terrorist Finance Tracking Programme is hereby concluded.  

The text of the Agreement to be concluded is attached to this Decision. 

Article 2 

The President of the Council shall designate the person empowered to proceed, on behalf of 
the European Union, to the exchange of the instruments of approval provided for in Article 15 
of the Agreement, in order to express the consent of the European Union to be bound by the 
Agreement. 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

The date of entry into force of the Agreement shall be published in the Official Journal of the 
European Union. 

Done at Brussels,  

For the Council 
Jacques BARROT 
Member of the Commission 

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