The European Union’s top court has ordered EU institutions to lift the veil on negotiations over sending EU citizens’ banking data to U.S. authorities in an effort to identify and combat terrorism.
The U.S. set up the Terrorist Finance Tracking Program following the terrorist attacks of Sept. 11, 2001, and began ordering Belgian company SWIFT (Society for Worldwide Interbank Financial Telecommunication) to hand over information about transactions sent through its U.S. operating center.
Following media reports in 2006 about the data handover, EU and US officials sought to bring the program within the EU-US Safe Harbor agreement on data protection, to ensure that citizens’ data was not misused.
Those efforts resulted in an agreement between the EU and the U.S. Treasury Department that became effective on Aug. 1, 2010—but the negotiations leading to it were shrouded in secrecy.
In July 2009, a Dutch Member of the European Parliament, Sophie in ‘t Veld, requested access to a legal opinion on the deal prepared for one of the EU’s decision-making bodies, the Council of the EU, where ministers from each member state meet to adopt laws and coordinate policies.
The document contained the opinion of the Council’s legal service on a recommendation by the European Commission that the EU open negotiations with the U.S. on the exchange of data.
The Council refused access to the whole document, prompting In’t Veld to file suit in December that year to compel the document’s release. She was partly successful, but the Council appealed.
However, that doesn’t mean that In ‘t Veld will now get access to the document: The Council has to reconsider the request.
Despite the prospect of another wait, In ‘t Veld called the ruling “a great victory.”
“The Court clearly states that transparency is a prerequisite for a truly democratic Europe. The European Union must develop from a Europe of diplomats, discretion and confidentiality to a Europe of citizens, administrative transparency and trust,” In ‘t Veld said.
To seek information on suspected terrorists, the U.S. Treasury Department issues SWIFT with subpoenas regarding the messages it carries about financial transactions.
Under the agreement, the EU’s law enforcement agency Europol assesses whether data requested in any given case is necessary for the fight against terrorism and its financing, and checks whether the request is sufficiently narrow to limit the amount of data requested. If not, no data is transferred.
The Council denied In ‘t Veld’s request to see the advice it had received about the deal’s legal basis while it was still under negotiation. The Council argued that providing full access to the document would negatively impact the EU’s negotiating position and would also damage the climate of confidence in the ongoing negotiations.
In ‘t Veld brought an action for annulment of the decision to the General Court of the European Union, that partially annulled the decision in May 2012. The court ordered the council to publish the document with an exception for parts that could reveal strategic objectives. The Council appealed the case, but the CJEU dismissed the appeal in its entirety.
In the end, it took In ‘t Veld five years from the first request for disclosure to the final judgment.
“That is unacceptable. People do not have the time nor the resources to go through such a long process. Everybody should be able to request access to documents, but right now that is impossible. With such long procedures, the right to access to documents is in practice a dead letter. The ‘EU transparency rules’ legislation should urgently be revised,” she said.
In ‘t Veld has another two cases before the European Ombudsman on openness of government. One case is about a Europol document regarding the implementation of the SWIFT agreement. The other case is about access to documents of the European Commission concerning the automatic exchange of bank data under the U.S. Foreign Account Tax Compliance Act (FACTA) which aims to avoid tax evasion.