Despite the European Parliament concerns, the Council has signed the last day before the entry into force of the Lisbon Treaty on Novembre 30th, an EU-US agreement on the processing and transfer of financial messaging data for the fight against terrorism. The agreement will be provisionnally applicable from 1 February 2010 and will expire on 31 October 2010.
However, due to the reservations put forward by two Member States the agreement has not been formally concluded under the Nice Treaty so that at the entry into force of the new Treaty on December 1st a new legal regime has entered into force which require for the conclusion the approbation by the European Parliament.
The main concern for the European Parliament as well as some national parliaments is the different level of data protection between the United States and the European Union, having the latter a higher level of guarantees than the former.
According to the European Commission and the Council however, the agreement guarantees a sufficient (although equal/reciprocal) level of protection requests by the US have to substantiate the need for the data and they have to be tailored as narrowly as possible and verified by the competent authority of the relevant
EU member states
According to the Commission the urgency was justified by the fact that it was necessary to allow the continuation of afflux information suspected to be linked to the financing of terrorist activities to continue to the US Department of the Treasury.
Given that this is a temporary agreement, any long-term agreement for the time after 31 October 2010 must be negotiated and concluded under the rules of the Treaty of Lisbon.
On the basis of this Treaty and of the interinstitutional agreements the European Parliament must be fully informed at all stages of the negotiations and must give its consent to the formal conclusion of an Agreement (article 218 TFEU).
The negotiations on the provisional agreement signed on November 30th, started in July 2009 when SWFIT (Society for Worldwide Interbank Financial Telecommunication) decided to store its European financial messaging data no longer in a database located in the US, but only in Europe.