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European Union: Interim Agreement on SWIFT Bank Data Voted Down by European Parliament

(Mar. 12, 2010) On February 11, 2010, the European Parliament (EP) voted down an interim agreement between the European Union and the United States, which was expected to enter into force on February 1, 2010, and last until November, 1, 2010, when a new agreement would be negotiated. The agreement governs transfers of bank data on EU citizens to U.S. investigators through SWIFT, a financial messaging company located in Brussels with an office in the United States. Following the terrorist events of September 11, 2001, the U.S. Treasury Department, through its Terrorism Finance Tracking Program (TFTP), has extensively used the SWIFT network to identify and find individuals suspected of terrorist ties. (Background: Parliament's Rejection of the SWIFT Agreement, European Parliament website, Mar. 3, 2010, available at

The EP rejected the interim deal due to the agreement's lack of inclusion of personal data guarantees in compliance with EU directives on processing of personal data and the right to privacy. The EP also protested the conclusion of the agreement just prior to the entry into force of the Lisbon Treaty on December 1, 2010, which requires that the EP give its assent to treaties. The EP had requested an opinion from the European Data Protection Supervisor, who bolstered the EP's arguments by confirming that the agreement was “very privacy-intrusive” and that many important safeguards of data protection either were not included or not clearly defined. (Parliament's Rejection of the SWIFT Agreement [click Why Did MEPs Reject the Agreement?], supra.) Moreover, a number of liberal parliamentarians have from the outset been very critical of the agreement, arguing that it is “not only a restraint on European sovereignty but a massive intrusion into every single European citizen's privacy.” (Angry MEPS Demand Delay on EU-US Bank Data Deal, EURACTIV, Jan. 29, 2010, available at

Until a new agreement is concluded, transfers of personal data in connection with terrorist investigations could be handled under the existing mutual judicial assistance agreement signed in 2003 between the EU and the U.S., provided that the relevant domestic laws of the EU Members are respected. (Agreement on Mutual Legal Assistance Between the European Union and the United States of America, 2003 OFFICIAL JOURNAL OF THE EUROPEAN UNION (L181) 34, July 19, 2003, available at

However, this agreement is cumbersome, because the U.S. authorities must place a request for access to personal data with the EU member where the financial institution is located. In addition, access to information is permitted under the mutual judicial assistance agreement only when a criminal offense has already been committed, whereas the use of SWIFT allowed transfer of data for preventive purposes. (SWIFT VOTE: European Parliament Votes Down Agreement with the US, PARLIAMENTARY WEEK, Feb. 8-11, 2010, available at