Transatlantic negotiations on a new deal on SWIFT informally began at the EU-US Justice and Home Affairs ministerial meeting, which began in Madrid yesterday (8 April).
The European Commission is still waiting for the formal backing of its proposed draft mandate to conduct the talks (EurActiv 25/03/10).
However, the green light from EU justice ministers at their meeting on 22-23 April is considered a formality. Indeed, EU ministers had already rushed to accept an interim agreement with Washington to avoid a security gap, but their move was nullified by the Parliament, which rejected the deal.
Without a new agreement on SWIFT, no banking data is transferred to the US and tracking financing for terrorism is therefore more difficult.
The US authorities consider the current situation to be a windfall for international terrorism, but in Europe, protection of personal data is instead the first issue to be addressed before starting the programme again.
No bulk data
The European Parliament is bound to block once again any agreement which includes the transfer of packages of personal data to the US, as has been the case so far. MEPs insist that only specific information on citizens suspected of terrorist links should be provided to Washington.
"The United States is looking for a needle and we're sending them the entire haystack". ADLE MEPs Sophie In 't Veld said of the situation.
Americans have often underlined that many data protection precautions are already in place and that individual data are accessed only upon request in the context of a specific counter-terrorism investigation.
Washington appears to be sceptical of the idea of transferring individual data. The Americans prefer to refer to a "refined and narrowed scope" of data requests, in the words of US administration expert on terrorism and financial intelligence David Cohen.
Actual right of redress
Another issue of concern to MEPs is Europeans' right to appeal to the American authorities in the event of misuse or abuse of their personal data.
The European Commission's draft mandate aims to obtain "the highest possible level of protection for EU citizens' personal data, allowing them to have the right to administrative and judicial redress," according to a note issued by the EU executive.
However, American laws on data protection are currently "discriminatory," according to Jonathan Faull, director-general of the European Commission's justice, freedom and security department since 2003.
Data protection 'package'
Against this complex background, Home Affairs Commissioner Cecilia Malmström and Justice and Fundamental Rights Commissioner Viviane Reding are currently meeting their US counterparts in Madrid.
This is their first meeting since the Commisson came up with its proposal for a negotiating mandate on SWIFT. Talks with the US also involve a general agreement on data protection cooperation and Passenger Name Records (PNR), which have come under fire in Europe.
According to an informal timetable, Reding should present her draft negotiation mandate for the general agreement in June. A final EU-US deal on SWIFT is also expected for June, but delays are likely. As for the Passenger Name Record (PNR), the Commission might propose the conditions of a new agreement with the US in autumn, according to EU sources.
All this will be possible if the EU and the US will be able to cooperate and make concessions on specific issues. Even so, internal EU cooperation is also not obvious. The Parliament might oppose the Council's decisions, as has already been the case. Disputes among member states might arise within the Council itself.
It also remains to be seen how easily the two commissioners in charge of the complex package, Malmström and Reding, will get along with one another.
Malmström has already tried to eject her colleague from talks over SWIFT and claims to be the chief negotiator for the dossier, according to EU sources.
