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EU-Germany: European Commission and Europol refuse to supply data on the implementation of the EU-US TFPT (SWIFT) agreement as it is "Top Secret"

28 March 2012

The German Federal Commissioner for Data Protection and Freedom of Information, and member of the Joint Supervisory Body of Europol, asked the German Interior Ministry numerous questions about the EU-US TFTP Agreement as they are empowered to do. The TFTP ("SWIFT") Agreement covers the transfer of personal records on financial transactions in the EU concerning terrorism and terrorist financing.

The questions could only be answered by the European Commission or by Europol. The Europol Management Board decided that questions regarding the implementation of the Agreement should be answered by the Commission (13-14 October 2010). Under Article 4 of the Agreement Europol has to clear all US requests for detailed personal financial data.

On 20 December 2010 the Commission replied saying that "neither the Commission nor Europol nor the Member States had the legal power to interpret the Agreement" - and suggested that a workshop on the question should be organised, which did not impress the German government

In December 2010 a member of the German Bundestag asked the Interior Ministry several questions. But Europol would not say how many requests the USA had made for personal data and how much data had been transferred to the USA or whether Europol rejected US requests pursuant to Article 4 of the Agreement "stating that these questions touched upon a politically sensitive area".

On 25 January 2011 the Financial Times Deuschland asked Europol whether the USA had requested data under Article 4 before the EU scrutineer started work in the USA on 26 August 2010:

"Europol explained that all documents concerning the TFTP Agreement were now “top secret” so that no information could be provided."

The Note from the German delegation (EU do no: 6266/11, see below) concludes that:

"Repeatedly sidestepping questions or not answering them at all will raise further questions and add to growing scepticism... The European Commission’s opinion that neither the Commission nor Europol nor the Member States have the power to bindingly interpret the Agreement is not helpful in the political discussion about the interpretation and application of the Agreement. This opinion will lead to growing public mistrust towards the Agreement and its effects, which will ultimately also cast a shadow over the negotiations on an EU-TFTP."

Tony Bunyan, Statewatch Director, comments:

"If Europol are saying that the information requested is classified as "Top Secret" this is an abuse of the EU's classified information system. The data requested is aggregated containing no personal or operational information.

The Agreement was negotiated in secret now it seems its is to be implemented in secret - out of sight of governments, parliaments and people. This sets a very dangerous precedent for future agreements with the USA."

Documentation

- German delegation: Europol's role in the framework of the EU-US TFTP Agreement and state of play of operational and strategic agreements of Europol (specific focus: the agreement on exchange of personal data and related information that Europol has with the US) - EU information policy on the TFTP Agreement (pdf)

- 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 the purposes of the Terrorist Finance Tracking Program (EU doc no: 11222/1/10, dated 24 June 2010, pdf).