JWorth_EU_SWIFT_Briefs - The Graduate Institute, Geneva

Speaking with One Voice: an EU simulation exercise

Negotiation Brief – for your eyes only

François Domenech is the chair of the LIBE Committee in the European

Parliament, and parliamentarian from the EPP (European People’s Party) political group. In France he is a member of the UMP (Union pour une

Majorité Populaire), the same party as French President Nicolas Sarkozy.

Mr Domenech’s position as chair of the committee is – above all – to ensure the smooth passage of all legislation and to ensure that all the views of the different MEPs in the Committee are given a fair hearing.

Domenech’s own position on the TROF agreement is delicate. As a proud

French republican, Gaullist and long standing member of the European

Parliament he is well aware of the importance of the European Union avoiding agreements that benefit others more than the European Union itself.

Conversely Domenech has one eye on French politics, hoping that the French

President might call him back to Paris for one final shot at a national political career before his retirement, so he wants to emerge from this negotiation without damaging his own reputation.

Domenech is generally liked by his fellow MEPs but has been heavily criticised in the European Voice, the newspaper of the EU institutions, for his inability to understand complicated details of legislation passing before the

LIBE Committee.

The EPP Group is – in principle – in favour of the agreement.



Judith van der Laan is the European Parliament’s Rapporteur for the TROF agreement. She is an experienced MEP and is a member of the ALDE Group

(Liberals) in the European Parliament, and at home in Netherlands she is a member of VVD, a free market liberal party.

Van der Laan has been very critical of the fact that the draft TROF agreement allows transfers of data not only relating to specific suspects, but also "in bulk": the text stipulates that if a bank is unable to produce specific data for technical reasons, it would be obliged to provide "all potentially relevant data in bulk" to Alba authorities instead.

Van der Laan has been calling on the EU’s Negotiator, Benoît de Wavre, to include the wording: "the same judicial redress mechanisms as would apply to data held within the EU, including compensation in the event of unlawful processing of personal data" in the draft agreement.

Van der Laan has been critical of the very nature of TROF as it is not possible to refer to so-called limited requests. For technical and governance reasons

TROF has to transfer bulk data, thereby violating the basic principles of EU data protection law such as necessity and proportionality.

She is open to ideas to introduce some ex-post by mechanisms of oversight and control into the agreement or to make data transfer requests subject to judicial authorisation, but she has not yet been convinced by the arguments put forward by the Member States in this respect.

She remains opposed to the agreement.



Alejandro García Pérez is a Spanish MEP and member of the S&D Group in the European Parliament. In Spain he is a member of the PSOE, the Spanish

Socialist Party. He is in his first term as a member of the European Parliament but has already build a considerable reputation in Brussels as one of the more dynamic and intelligent members of the LIBE Committee.

As a point of ideological principle García Pérez is opposed to the wholescale transfer of sensitive personal data. He was himself active in the movement to depose General Franco in Spain and was a campaigner for citizen rights before entering the European Parliament.

However briefings from the Ministry of Finance of the Spanish Government in

Madrid have softened Gar cía Pérez’s positions slightly, as evidence has been shown to him of how much Spanish taxation revenues suffer because of secretive banking arrangements in tax havens.

García Pérez has been one of the MEPs calling for a change to the wording of the agreement, raising the idea of the creation of a European Banking Data

Ombudsman who would have the role to scrutinise the data transferred thanks to the TROF agreement.

García Pérez would be ready to approve the agreement if personal data is adequately protected, and could manage to get the entire S&D group to follow his lead.



Malgorzata Jedrzejewska is a member of the EPP group in the European

Parliament, and has only been a member of the European Parliament for one year. She is a member of Civic Platform in Poland, the same party as Polish

Prime Minister Donald Tusk.

ProAlbanism is the defining characteristic of Jedrzejewska’s political ideology. Alba helped to liberate Poland from Communism and Jedrzejewska remains grateful for that. She was also taught economics by renowned free market economist Tilmon Miedfan while studying for a Masters in Alba in the early 1990s.

Jedrzejewska is rather uninterested by the details of the TROF agreement and has been quoted stating her discontent about the danger of EU

– Alba relations being compromised if the agreement is not ratified in the Polish daily newspaper Gazeta Wyborcza.

The EPP Group is

– in principle – in favour of the agreement.



Eva Lunacek is a member of the Greens-EFA group from Austria. She has been a member of the European Parliament for over a decade and has been a consistent and well-informed speaker on human rights and data protection issues throughout her time in the European Parliament.

Lunacek remains resolutely opposed to the TROF agreement, and has convened a German-speaking network of activists against the agreement called ‘Nicht beTROFfen’. She has worked closely with Johannes Beckedahl the chairman of Know YEUr Rights, in the setting up of this network.

A radical student in the past, and one of the instigators of the 1968 uprising against tighter state control of universities in Vienna, Lunacek is inherently suspicious of the state holding too much information about individuals.

She has stated repeatedly that she understands and sympathises with the arguments that some data transfer is required in order to eliminate tax havens and to increase taxation revenues of European states. However she remains completely unconvinced that a European Banking Data Ombudsman or any other sort of ex-post check on data would be adequately protective of citizens rights.

She and the Greens-EFA group remain staunchly opposed to the agreement.



Maria Rossi is a member of the eurosceptic Europe of Freedoms and

Democracies Group in the European Parliament. She is a member of Lega

Nord at home in Italy, the northern Italian separatist party.

Rossi is opposed to the TROF agreement for two reasons.

First of all any transfer for sovereignty to EU level is against the ideology of her political party. Why should matters like this be agreed at European level, rather than nationally?

Secondly, Lega Nord has long argued that the taxation burden of the Italian state is too high, and many Lega Nord members have their savings in Swiss banks and would be impacted by the agreement.

The abrasive and destructive approach of MEPs from the Europe of

Freedoms and Democracies Group in the European Parliament means these

MEPs often have poor working relationships with their colleagues.

The EFD group is opposed to the agreement.



Benoît de Wavre is the European Commissioner who holds the Internal

Market portfolio. Prior to taking up his post in the European Commission de

Wavre was Belgian Minister of Finance where he was known for his efforts to save the Belgian banking giant Fortis. He is a member of the French speaking liberal party, the Mouvement Reformateur.

De Wavre has approached the TROF negotiations from a pragmatic perspective, and has consistently stated that the text up for approval by the

European Parliament is the best possible compromise that can be achieved.

His position is that any efforts to narrow the data submission requirements of the banks place an unnecessary financial burden on fragile financial institutions, a burden that is untimely during a financial crisis.

De Wavre, in his negotations with Alba, has raised the suggestions of equal judicial redress mechanisms in Alba as within the European Union and this suggestion has been met with disdain from Alba’s negotiators who have claimed this would be an unwelcome infringement on Alba’s sovereignty.

De Wavre also sees the European Parliament’s demand to incorporate the notion of limited requests into the agreement as the Commission’s consultation with the banking industry has shown that this idea would be costly and possibly unworkable.

The Commission is ambivalent about the idea of a European Banking Data

Ombudsman as the Commission would be obliged to put the administrative provisions in place to allow this Ombudsman to start working. The

Commission also has fears about the staffing costs of such an office.



Maria Elena Georgalla is the Cyprus deputy permanent representative to the

European Union. A career diplomat with more than 30 years of experience she will play a vital role in coordinating the work of the Cyprus Presidency of the European Union that starts 1 st July. As a civil servant she is party politically neutral.

Above all Georgella’s priority is to make sure that the TROF agreement does not become a major topic for the Cypriot Presidency. It would be an excellent start to the Presidency if the agreement could just be approved swiftly. This is particularly important as Cyprus is only a small Member State and would not be in a position to negotiate with Alba in the event of the European Parliament not approving the agreement.

Georgella has no ideological problem with the various amendments to the agreement that have been proposed by members of the European

Parliament, but she is also conscious that any change to the agreement at this late stage could require considerable and complicated re-negotiations in the Council, something that she is keen to avoid.



Virginia Wright is 1 st Secretary Economic and Financial Affairs at the UK

Permanent Representation to the European Union. She is a young and dynamic civil servant and has been marked out as someone who will have a successful future career in UK diplomacy.

UK-Alba relations have been very strong for many decades and are known in the British press as The Exceptional Relationship, although there are questions as to whether Alba sees things this way.

As far as the UK government is concerned the TROF agreement is vital in order to maintain good relationships with Alba, and it is also vital that the agreement does not place a costly and complicated regulatory burden on UK banks. The agreement is already burdensome enough on business; the UK is hence sceptical about all ideas from the European Parliament relating to partial data disclosure, rights, or a European Data Ombudsman.

The UK government has little time for the privacy and civil rights concerns raised by the European Parliament and some other Member States. This agreement is essentially about geopolitics and business, not about citizens’ rights.



Mechtild Schmidt is 1 st Secretary for Banking and Financial Industries at the

German Permanent Representation to the European Union. Schmidt has worked at the Federal Ministry of the Economy in Berlin for 10 years before being sent on secondment to Brussels.

Schmidt has faced a complicated position throughout the negotiations due to splits in the CDU-FDP coalition back home in Berlin. The finance ministry ln

Berlin leads on banking reform and the finance minister, Wolfgang Schäuble

(CDU) has been known in the past for his harsh line on civil liberties. As far as the finance ministry is concerned the TROF agreement is acceptable to

Germany.

Economy Minister Rainer Brüdele (FDP) has taken very different positions in public, criticising the TROF agreement as being an infringement on the personal privacy of German citizens. Brüdele was also critical of the CDU’s crackdowns on tax evasion in the past.

Schmidt has long been a colleague of staff working direct for Brüdele and personally has a lot of sympathy for the positions being put forward to ensure better protection of citizens rights, yet the position from Berlin remains tough and consistent.



Laurence Schiltz is Deputy Permanent Representative of Luxembourg. One of

Luxembourg’s most senior diplomats she is a previous Ambassador to

Austria. Schiltz has traditionally been close to the Christian Democratic party in Luxembourg, the party of the current Prime Minister Jean Claude Juncker.

Luxembourg, while not a tax haven according to the EU definitions, is nevertheless the EU country that has the most flexible rules and lowest taxation rates applying to its banks. As a result the banking sector is a vital component of the economy of Luxembourg.

The Luxembourg government was outvoted under Qualified Majority Voting in the Council – it opposed the TROF agreement, but a majority of Member

States were in favour of it.

Luxembourg however, contrary to the views of the European Parliament, is opposed to TROF because it is already too burdensome to the banking sector. All of the proposed amendments by the European Parliament only increase that burden, so hence should forcefully be opposed.



Kobe “Sully” Sullenberger III is Ambassador to the EU of the Kingdom of Alba.

Sullenberger is a life-long diplomat, and his position in Brussels will be the last in a long and high profile career that has taken him to Paris, Berlin and

Singapore.

Sullenberger has always been quick to understand how foreign policy can be used by the administration back home in Alba to help pursue its domestic policy aims. Alba is still in the grip of paranoia about terrorism, and particularly the idea that terrorist organisations are using offshore bank accounts as a way to channel funds into Alba. Dealing with terrorism is much more important than any civil liberties or data retention concerns for the politicians of Alba.

Since terrorist attacks on Alba almost a decade ago there has been a rise in nationalism among the politicians in Alba. Hence – in Sullenberger’s mind –

Alba’s chamber of deputies is unlikely to approve of any EU moves to impose additional legal procedures on Alba.

Alba is happy with the agreement as it currently stands, and would not like to see any provisions toughened, nor the TROF agreement rejected.



James Ballantyne is head of EU policy for SBU Banking Corp., one of the world’s largest banking groups. SBU is originally from Alba, having been established there more than 100 years ago. Since the 1980s SBU has been on a worldwide expansion and now has notable operations in Switzerland, the

Isle of Man and the Cayman Islands.

SBU escaped rather unscathed from the financial crisis, having been less implicated in Alba’s sub-prime mortgage difficulties. Nevertheless the group’s profits have been lower in 2009 and 2010 than in previous years, and the

CEO of the company has warned about the danger of job losses in SBU branches.

The position of SBU is that the entire TROF agreement is detrimental to its business. The confidentiality of its customers’ affairs is central to SBU’s approach, and the bank is not content that policy makers in the European

Parliament

– many of whom seem to not understand the banking industry – are meddling in its affairs.

SBU could – at a push – live with the TROF agreement as currently drafted, but is fiercely opposed to any tightening of the provisions about data disclosure, or any requests for judicial control or a European Banking

Ombudsman – such mechanisms would be very costly to the industry. Better no agreement than an agreement that is detrimental to the banking industry is

Ballantyne’s position.



Johannes Beckedahl is chairman of Know YEUr Rights, an NGO that campaigns on citizens’ rights issues in the European Union. A German national, Johannes has worked closely with Eva Lunacek to establish the network ‘Nicht beTROFfen’ that has been leading the campaign against the

TROF agreement.

Contrary to the positions of the banking sector Beckedahl is in favour of efforts to close tax loopholes and limit the scope of tax havens. However any attempts to do this must be conscious of privacy of the individual, and

– above all – EU citizens must know what is being done with the data that is collected about them, either by the state or by private enterprises.

Beckedahl has been very active in the blogosphere and also in the German and Austrian press voicing his concerns about TROF, and how more safeguards about citizens data need to be introduced before the agreement should be concluded.

At the very least Beckedahl is demanding the same judicial redress mechanisms in Alba as would apply to data held within the EU, including compensation in the event of unlawful processing of personal data.

He has also demanded that so-called limited data requests be added to the agreement. Negotiators have so far argued that, for technical and governance reasons, TROF has to transfer bulk data, thereby violating the basic principles of EU data protection law such as necessity and proportionality.

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