Netherlands-USA: SWIFT data and MLA treaty


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According to an article in the Dutch newspaper NRC Handelsblad on the 19.03.2011, the Netherlands and the US are more closely linked in the fight against terror than perceived. The article brought to light the fact that the Netherlands has facilitated US access to specific information contained in the SWIFT database through a mutual assistance treaty with the United States. Although SWIFT is formally headquartered in Belgium, it is now known that the data centre itself has been operational in the Netherlands since the seventies, which the article alleges was unknown to many Dutch MPs as well as many MEPs. This means that the legal responsibility for sharing banking information with the US lies in the Netherlands, as opposed to Belgium where SWIFT is "officially" based.

The article asserts that the Netherlands plays a vital role in the disclosure of sensitive financial information to the US authorities and that between 2001 and late 2009 it was concealed that the SWIFT operational data centre is housed in the Netherlands and furthermore that a back-up of this data existed in the US, from which the US could obtain data without judicial intervention. However, since 2010 SWIFT's architecture has changed and European data may no longer be backed up in the US.

Aside from this however and separate from the SWIFT issue, a mutual legal assistance treaty between the Netherlands and the US came into effect on 1st February 2010. Article 9 of the treaty permits the US to request the identification of the banking and non-banking financial institutions of suspicious persons. The clause which permits the US to request banking information is not limited to terrorism however and specific bank details may be requested where there is suspicion of a criminal offence. The article thus demonstrates that the US has, via a mutual assistance legal treaty with the Netherlands, established a way to circumvent the limitations of the SWIFT agreement in Europe and that it remains possible for the US to request information on the financial data of citizens.


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