The social construction of an EU interest in counter-terrorism: US influence and internal struggles in the cases of PNR and SWIFT

Abstract

The construction of the Area of Freedom, Security and Justice has seen the pooling of a significant amount of national sovereignty at the European Union (EU) level through the establishment of internal EU competences. This process has also had the important side-effect of an increasing development of an EU interest in various areas of security, including in counter-terrorism. This article examines the processes through which the EU interest in counter-terrorism is constructed. It argues that, in line with social constructivist literature, it is important to conceptualise interests as being mutually constituted through interactions amongst political actors. It further develops two arguments in this respect. First, the United States (US) has exercised significant influence on the shaping of the EU interest in counter-terrorism. This point is particularly well-illustrated by the Passenger Name Record case. The second argument put forward by this article is that the process through which the EU interest is shaped has become increasingly complex, in particular following the entry into force of the Lisbon Treaty, which reinforced the powers of the European Parliament. A particularly apt illustration of this argument is the case of the SWIFT (Society for Worldwide Interbank Financial Telecommunication) Agreement.

Keywords:

• European Union
• counter-terrorism
• EU–US counter-terrorism relations
• SWIFT
• PNR
• European interest
• European Parliament

Introduction

The development of European Union (EU) cooperation on counter-terrorism is a relatively recent phenomenon. Although operational cooperation on issues of internal security such as terrorism began in the 1970s amongst European states within the TREVI Group, it was only in 1993 that cooperation on terrorism was formally included in the EU framework with the entry into force of the Treaty of Maastricht. For a few years, EU achievements in this policy area remained rather modest (Reinares 2000, Argomaniz 2009, 2010, 2011). However, the terrorist attacks on 11 September 2001 gave a significant impulse to the development of EU activities against terrorism (see notably Dubois 2002, Occhipinti 2003, Gregory 2005, Kaunert 2005, 2007, 2010a, 2010b, 2010c, Bures 2006, 2011, Mahncke and Monar 2006, Zimmermann 2006, Spence 2007, Bossong 2008, Argomaniz 2009, 2011, Léonard 2010, Kaunert and Della Giovanna 2010). It became evident that Islamist terrorism was a global problem and that fundamentalist terrorists could strike again, not only in the United States (US), but in Europe as well (Hoffman 2006). Consequently, EU Member States decided to develop their cooperation on counter-terrorism and increasingly pooled sovereignty in this policy area, as evidenced by the adoption of programmatic documents, such as the ‘Anti-terrorism Roadmap’ (European Council 2001b), the EU Plan of Action on Combating Terrorism (Council of the European Union 2004), the EU Counter-terrorism Strategy (Council of the European Union 2005) and the Revised Strategy on Terrorist Financing (Council of the European Union 2008).

In addition, this terrorist threat had clear implications for Europe's relationship with the US. While the US had previously been the target of international terrorism, the American homeland had never suffered any comparable terrorist strike on this scale, which led many commentators to draw parallels with the Japanese attack on Pearl Harbour on 7 December 1941. The perceived necessity to protect the US homeland from future terrorist attacks had a significant impact on US foreign policy, including US–EU relations. President Bush's famous ‘act of war’ speech (BBC News 2001a) led to the establishment of a platform for the ‘War on Terror’. He also called for all countries to support the US in the fight against terrorism by stating that they ‘are either with us or against us’ (BBC News 2001c). In such a context of intense US pressure, the EU had swiftly underlined its support for and solidarity with the US. The European Council notably declared on 21 September 2001 that it was ‘totally supportive of the American people in the face of the deadly terrorist attacks’ and that ‘[o]n the basis of Security Council Resolution 1368, a riposte by the US [was] legitimate’ (European Council 2001a, p. 1). On 26 September 2001, the European Council also highlighted the importance of improving counter-terrorism cooperation with the US as one of the two key dimensions of its ‘Anti-terrorism Roadmap’, the other being the adoption of measures within the EU (European Council 2001b, pp. 11–13). The ensuing EU–US counter-terrorism cooperation, which has significantly grown since then, has received significant scholarly attention. Some scholars have described it as an asymmetric relationship, where the US is the dominant partner that significantly influences the EU (Rees 2008, Argomaniz 2009, Pawlak 2009a, 2009b, 2010). In contrast, others have argued that the EU–US counter-terrorism relationship can rather be seen as a more even partnership, from which both sides benefit (Occhipinti 2010, Kaunert 2010a, 2010b, 2010c).

Taken together, the adoption of internal EU counter-terrorism measures and the development of EU–US cooperation on terrorism matters have also been important because they have led to the construction of a ‘European interest’ in counter-terrorism. As legislation on various aspects of counter-terrorism has been adopted at the EU level, this growing institutionalised cooperation has led to a process of shaping a ‘European’ interest in this policy area. The interests of the member states have been shaped by the very fact that they belong to the EU institutional framework. At the same time, as the US has observed the development of EU counter-terrorism activities and has noted the EU's willingness to cooperate with the US in these matters, it has become increasingly interested in working with European countries through the institutionalised framework of the EU. Through this EU–US counter-terrorism cooperation, the US has also validated the EU's claim to be recognised as a significant actor in counter-terrorism in its own right, given that recognition – including external recognition by third parties – has traditionally been seen as one of the conditions for actorness (Jupille and Caporaso 1998, Bretherton and Vogler 2006, Dryburgh 2008). Kaunert (2010a) has argued that these developments can be interpreted as a ‘supranationalisation process’ of EU external relations and foreign policy in the field of counter-terrorism. This means that, increasingly, the US is willing to work with Europe through its main institutionalised forum – the EU. Thus, the EU has achieved a certain recognition on the world stage in areas where, previously, this would have been completely unsuspected – ‘high politics’ and security. This supranationalisation process proceeds in two stages. First, the construction of an Area of Freedom, Security and Justice (AFSJ) pools a significant amount of national sovereignty at the level of the EU through the establishment of EU internal competences. As a side effect, it also constructs an institutionalised structure enabling relations with external actors, such as the US. Through dealing within this institutional setting, the interests of EU member states become defined in such a way that they increasingly construct a ‘European’ interest related to counter-terrorism.

This article takes up where Kaunert's (2010a) article left off. Now that it has been established that an EU interest in counter-terrorism has emerged, it is necessary to also understand how this interest has been constructed, which is the focus of this article. It argues that, in line with social constructivist literature, it is important to conceptualise interests as being mutually constituted through interactions amongst political actors. It further develops two arguments in this respect. First, as the most important partner for the EU in international counter-terrorism cooperation (Kaunert and Léonard 2011), the US has exercised significant influence on the shaping of the EU interest in counter-terrorism. This point is particularly well-illustrated by the Passenger Name Record (PNR)1 case. The conclusion of an EU–US PNR Agreement initiated by the US has reshaped the EU interest, as evidenced by the adoption of further PNR agreements with other states, as well as the launch of a debate on the development of an EU PNR system. The second argument put forward by this article is that the process through which the EU interest is shaped has become increasingly complex, in particular following the entry into force of the Lisbon Treaty. This is because this treaty has reinforced the powers of the European Parliament, which tends to hold different views than the European Commission and, in particular the Council of Ministers, on issues such as fundamental liberties and data protection. This has led to increased power struggles amongst EU institutions with regard to the definition of the EU interest. A particularly apt illustration of this argument is the case of the Society for Worldwide Interbank Financial Telecommunication (SWIFT) Agreement. Whilst the EU interest in this case was shaped to a significant interest through its interactions with the US, it was also largely influenced by the European Parliament, which managed to establish a critical role for itself in the negotiations of the EU–US SWIFT Agreement.

Therefore, this article is original on several grounds. First, while the current literature on EU counter-terrorism has acknowledged the importance of the US for EU policy developments, it remains unclear which precise mechanism causes this strong US influence on the EU. Scholars have pointed out that the US has had a profound influence on the nascent security role of the EU in the aftermath of 9/11 with the EU being seen as a ‘norm-taker’ (Argomaniz 2009, Pawlak 2009b). Yet, this has not been uncontested (Kaunert 2010c, Kaunert and Léonard 2011). The latter works have shown how the European Commission, in particular, has welcomed US pressure in order to advance European integration in counter-terrorism by convincing member states of the need for action. The present article clarifies the precise mechanisms of US influence on the EU, as the concepts of the mutually constituted norms and interests advance this debate further. While political norms advanced in the US have shaped thinking in the EU (Argomaniz 2009, Pawlak 2009b), EU policy measures have not been adopted without any political agency from the EU institutions, as the case of the European Commission underlines (Kaunert 2010c, Kaunert and Léonard 2011). This highlights the constructivist theoretical supposition of ideas, norms and interests being mutually constituted.

Second, it is precisely the process of constructing a European interest that has become more complex after the Lisbon Treaty. The growing importance of the European Parliament in Justice and Home Affairs has been increasingly recognised. However, this has had profound implications on (1) the political normative environment in the EU, as well as (2) the specific process through which a European interest is defined. The involvement of more actors in the definition of a European interest does not automatically render this process more complex. It is precisely the involvement of the European Parliament that makes it more complex. While the Council and the Commission shared largely similar normative views on how to negotiate with the US, leading to the defence of a relatively coherent EU interest in the actual negotiations, the emergence of the European Parliament as an important actor has changed this dynamic. Building on different normative frames, particularly a stronger insistence on fundamental rights and data protection, the European Parliament has challenged the pre-existing EU political framework on counter-terrorism. The current literature has not fully acknowledged the challenge that this change represents to the definition of an EU interest yet.

This article is structured as follows. First of all, the social constructivist framework used to analyse the construction of the European interest is presented. In addition, two major factors in the construction of the EU interest in counter-terrorism are identified, namely the relations with the US and the internal power struggles amongst EU institutions, with a specific focus on the growing role of the European Parliament. The following sections provide empirical illustrations of these two points. The case of PNR shows particularly well how US thinking has influenced the EU's own assessment of its interest. The following section on the SWIFT Agreement demonstrates that, given the new balance of power under the Lisbon Treaty, and the ensuing power struggles involving the European Parliament over the definition of the EU interest, the process of constructing a European interest has become significantly more complex and more open with an increasing number of actors involved.

The construction of a European interest in counter-terrorism: between EU-US relations and EU internal struggles

The perceived absence of a ‘European interest’ – or, its corollary, the existence and persistence of national interests – has often been identified as an obstacle to European integration, in particular in ‘high politics’ policy areas, such as foreign policy. Hoffmann (1966), amongst others, emphasised that nations would prefer to keep control of their interests rather than integrating such significant matters. The so-called ‘logic of diversity’ would put a brake on European integration in ‘high politics’ matters, such as security. Consequently, national interests would prevail in the end over a European interest, if one were to ever exist. However, some scholars who have developed a structuralist approach to the study of European foreign policy have highlighted that EU member states are located in a complex set of interdependencies, institutions and structures (Ginsberg 2001, Smith 2004). According to these scholars, the behaviour of member states is altered as a result of operating in a European institutional context. These institutional structures include supranational institutions like the European Commission or the Council Secretariat (White 2004). The merits of this approach derive from its empirical observation that member states – albeit still very significant – are no longer the only important actors in the EU, even when it comes to ‘high politics’ policy areas, such as security or foreign policy. International institutions, especially European institutions, are increasingly gaining in importance. Current empirical trends have strengthened these developments. For example, the Lisbon Treaty has provided competences for the establishment of a European External Action Service, with a ‘High Representative of the Union for Foreign Affairs and Security Policy’ coordinating European foreign policy (Articles 18 and 27 of the Treaty on European Union (TEU)). As a consequence, member states may be constrained by the EU institutional structures or decide to implement change voluntarily. In any case, as EU institutional developments take place and European integration proceeds further in a given policy area, one can witness the emergence of a ‘European interest’ – which, it is important to underline, does not necessarily mean that national interests are abolished. Building upon Kaunert's (2010a) article that traced back the emergence of a European interest in counter-terrorism and identified its various stages, this article further analyses the dynamics at play in the construction of the ‘European interest’, in particular the role played by different actors.

In order to do so, this article uses a social constructivist framework, which draws upon the works of International Relations (IR) constructivist scholars (Katzenstein 1996, Finnemore 1996a, 1996b, Finnemore and Sikkink 1998). Constructivism is a particularly appropriate approach for understanding the dynamics of EU policies ‘under construction’. The EU is in itself a perfect example of an organisation under ‘permanent construction’ due to its dynamic and evolutionary nature. As European integration works through the force of law, legal scholars (Weiler 1991, 1999) have argued for decades that norms are particularly important for our understanding of the EU. The disciplines of sociology and law have analysed norms for decades. Constructivist scholars often use norms as analytical concepts as well. In fact, the EU is structured through a saturated regime of legal and institutional norms, that is, the acquis communautaire. Eventually, new norms are often codified in EU law. According to Wendt (1999), one can identify the defining characteristics of the constructivist approach as follows: first, that the structures of international life are primarily ideational and not exclusively material; and, second, that the contribution made by intersubjective shared meanings between purposive state actors decisively determines identities and interests in the international system. Wendt refers to this approach as ‘structural idealism’ (in opposition to existing structural realist theories such as those of Waltz).

Within the IR discipline, and indeed the broader social sciences, there are many different branches of constructivist thought. In this respect, Smith (1999) is correct to point out that ‘there is no such thing as a (single) social constructivist approach or theory’. Zehfuss (2002, pp. 10–11) identifies three different camps of constructivism and traces those camps back to the ‘founding fathers’ of constructivism, that is, Wendt, Kratochwil, and Onuf. First, one strand is associated with Alexander Wendt and sometimes described as a thinner variant. His work particularly engages with Anthony Giddens’ structuration theory and aims to build a bridge between realist-liberal and rationalist–reflectivist debates. Second, Kratochwil's work can be considered as constituting another strand (Zehfuss 2002, p. 15). He explores the role of rules and norms in political life. Thus, norms are crucial to his discussion of political action. They shape decisions but also give actions meaning and provide people with a medium through which they may communicate. His analysis draws on Austin, but while rules and norms influence human behaviour fundamentally, they do not determine it. In fact, the reasoning process is crucial, and thus good reasons must be put forward for acts and decisions. In relation to Wendt's, this variant could be described as ‘thicker’. Third, Onuf defines the third strand of constructivism in Zehfuss’ view (2002, p. 19), which is often perceived as the ‘thick’ variant. While his key interests lie in the area where IR meet international law, his constructivist version, like Kratochwil's, is also based on the exploration of rules. Onuf's analysis of social life starts with rules, which provide guidance for human behaviour and thereby make shared meanings possible. Similarly, he uses speech acts in his analysis. However, the framework of this article is placed within a moderate ‘middle-ground’ constructivist approach, in full recognition and use of the insights of both camps, especially with regard to norms. It is suggested to follow Checkel (1998) and Wendt (1999) in arguing for a problem-driven approach, rather than a method-driven approach. This means that the methodological toolkit may include positivist tools, alongside more interpretivist tools.

What are norms? A norm can be defined as ‘a standard of appropriate behaviour for actors with a given identity’ (Finnemore 1998, p. 891). One can distinguish between different types of norms. The most common distinction is between regulative norms, which order and constrain behaviour, and constitutive norms, which create actors, interests or action (Ruggie 1998). Actors ‘are socialized to accept new norms, values and perceptions of interest’ (Finnemore 1996a, p. 5). It has been convincingly demonstrated that different types of actors, for example non-governmental organisations (NGOs), inter-governmental organisations (IGOs) and transnational advocacy networks, can contribute to major changes in norms and, thereby, social actor behaviour (Finnemore 1996a, Price 1998, Keck and Sikkink 1998). According to Friedrich Kratochwil (1989, p. 6), norms influence choices through a reasoning process, implying a strong focus on the argumentative structure and the possible reasons for action. Thus, we define norms for the purpose of this article as follows: ‘Norms are written and non-written rules which are reasons for action. They enable, restrain, or constitute different actions by providing a standard of appropriate behaviour for a particular reference group’.

How can these norms be constructed and how can they be observed? First, actors will provide reasons for action. There can be very differing reasons for action put forward by a certain number of actors. In the EU context, this can be any one of the following: a Commission official, a member state minister or Head of State, a Member of the European Parliament (MEP), a judge of the European Court of Justice (ECJ) or of any of the constitutional courts of the member states or indeed any actor involved in the policy process. The actors will constantly push for their reason for action to become accepted as a norm. Once the reference group has accepted a particular norm, this does not in itself imply that all actors will act upon it. It may continue to be in competition with other conflicting norms and deviation may still need to be eradicated by punishment. Finally, the norm becomes the dominant norm and is no longer challenged. In order to operationalise norms and reasons for action, one needs to identify first the reasons for action put forward by the different actors.

How do these norms influence interests? The answer relates back to the basic nature of the EU. At the political bargaining stage, where decisions amongst different alternatives are taken, the EU is dominated by member states preferences and interests within the Council of Ministers. However, where do member states’ national interests and preferences originate from? Moravcsik (1998) assumes national interests to be exogenous from the EU process. The interests of the member states are stable before they come to the bargaining table. Yet, it does not seem reasonable to assert that preferences are exogenous. The EU has created a system whereby member states continuously interact at different levels. The claim that this could not alter preferences over time appears spurious. Even within the context of the international system with less social interaction amongst states, Katzenstein (1996) has convincingly demonstrated how norms and values shape national interests. Yet, if national interests and preferences are shaped by different norms and values, as argued in this article, this implies that norms influence the definition of political problems, the search for policy alternatives and finally national preferences.

Thus, one cannot merely assume that interests are fixed and stable; although it may be so at certain times, this has to be empirically validated. In this way, interests are the outcomes of a preference formation process, whether at the national or the EU level, which is conducted by EU policy actors, whether EU institutions or EU member states. Thus, according to this perspective, interests, like everything else in the world of IR, are socially constructed. Katzenstein (1996) argues that the cultural and institutional elements of the environment in which states are located shape national (security) interests and thereby their respective policies. Norms affect the way in which states perceive their social identity and thereby their interests. Consequently, applied to the EU, interest formation needs to be seen as endogenous of institutionalised cooperation, that is, partly resulting from the cooperation itself. EU member states do not merely use European institutions in the pursuit of their interests; actually, their interests are influenced and (re-) constituted by them through norms. The latter, which form a standard of appropriate behaviour, are established in the social interactions of EU member states in the institutionalised structures of the EU and in the interaction with those structures, which comprise the European Commission, the Council of Ministers and the European Council, the European Parliament and the Court of Justice. These norms, through a reasoning process, have a direct influence over the interests of member states, initially derived from the domestic context. The latter point has been emphasised notably by Moravcsik (1991, 1993, 1998). However, through the influence of norms on interests, the latter may change empirically, and, at times, may even converge around a ‘European interest’. For example, Howorth (2011) has suggested that, in the area of security and defence, a supranational culture has increasingly been emerging from the traditionally intergovernmental cooperation processes. It is argued in this article that, in addition to being shaped through the interactions amongst member states and EU institutions, the EU interest is also constructed through the interactions with third parties, such as third states, international organisations or NGOs. In that respect, it is important to recall the importance for the EU of the cooperation with the US on terrorism matters, as has already been underlined before.

EU–US counter-terrorism cooperation

Cooperation with the US has been an important dimension of the EU counter-terrorism policy since its development began in earnest as a reaction to 9/11. As early as 26 September 2001, the European Council emphasised in the Anti-terrorism Roadmap that the EU had to adopt two types of measures to tackle the terrorist threat, namely measures within the EU and measures ‘to improve cooperation with the US’. The latter notably included the increase in cooperation in the relevant international fora, the sharing of best practices in combating terrorism, cooperation on the assessment of the terrorist threat, law enforcement and judicial cooperation, as well as mutual assistance in criminal matters (European Council 2001b). The adoption of the Anti-terrorism Roadmap notably followed a meeting of an EU delegation with US Secretary of State Colin Powell on 21 September 2001 in Washington ( European Voice 2001 ). It was notably discussed at the meeting, which was followed by an exchange of official letters, how the EU could assist the US in tackling the terrorist threat (Kaunert 2010c). Thus, the EU actively sought and received US input for developing its counter-terrorism policy, as President Bush sent a five-page letter containing 47 measures to enhance EU–US counter-terrorism cooperation. This led Leonello Gabrici, the Commission's Justice and Home Affairs spokesman, to observe that ‘the things that we are doing against terrorism […] will simplify life for the Europeans and make it easier for us to co-operate with the United States’ (BBC News 2001b; emphasis added). In other words, the EU defined cooperation with the US as an important dimension of its counter-terrorism policy in general at an early stage and developed increasingly institutionalised patterns of interactions with the US (Archik 2011, Kaunert and Léonard 2011). In turn, those contributed to shaping the EU interest in counter-terrorism.

This trend was further confirmed by subsequent programmatic documents. In 2004, the EU Plan of Action on Combating Terrorism identified the development of international cooperation in counter-terrorism as its first objective. Whilst there was significant emphasis on the role of the UN and regional organisations in that respect, the Plan of Action also called for the strengthening of cooperation with the US – the only third state explicitly identified as a counter-terrorism partner for the EU in this document (Council of the European Union 2004, p. 13). The EU Counter-terrorism Strategy of 2005 also identified the US as the most important ‘key partner country’ for the EU (Council of the European Union 2005, p. 7). Thus, it is evident that the EU considers cooperation with the US a major dimension of its counter-terrorism activities. In addition, as will be argued below, this EU–US cooperation has also played an important role in shaping the EU interest in counter-terrorism. However, the importance of EU–US interactions in the development of the EU interest overall should not be over-estimated, as other interactions also matter, most notably those involving the EU institutions.

Internal struggles amongst EU institutions

One should not underestimate the importance of the EU institutions in the construction of the EU interest. This is notably because, as Peterson and Shackleton (2006, p. 7) suggest, ‘[i]f institutions matter, they matter even more in the European Union than in other political systems’. Indeed, they fulfil a series of important functions, as they notably influence member states and citizens; help to better understand the history of European integration, its past and possible future; enforce intergovernmental bargains agreed by member states; have competences and resources to create policies and provide direction; and provide the link between Europe and the wider international system. It can be argued that there has been an increasing power struggle amongst EU institutions to define the EU interest in counter-terrorism, as will be empirically shown in the following two sections. Therefore, this article conceptualises the process of constructing a European interest as a power struggle between different actors and institutions in a given EU policy.

A particularly important development in this respect has been the recent strengthening of the position of the European Parliament, which has seen its powers considerably increased following the entry into force of the Lisbon Treaty in December 2009. First of all, co-decision – now known as the ‘ordinary legislative procedure’ –, which makes the European Parliament a co-legislator with the Council, has been extended to various policy areas, including the former third pillar of Justice and Home Affairs. This means that the European Parliament can now co-legislate on various policy matters that are related to the fight against terrorism, such as law enforcement cooperation, judicial cooperation, criminal justice cooperation or data protection. This extension of internal competences is particularly important because it has an additional external impact. As foreseen by Article 218 of the Treaty on the Functioning of the European Union (TFEU), the consent of the European Parliament is required for the conclusion of international agreements by the EU that cover fields to which the ordinary legislative procedure applies. In other words, the EU, which now has legal personality following the entry into force of the Lisbon Treaty, can only conclude international agreements concerning counter-terrorism after having obtained the consent of the European Parliament. This is particularly relevant given the importance of the EU–US cooperation for the construction of the European interest. The European Parliament's new power to consent to international agreements on counter-terrorism (or not) have therefore rendered the EU–US interactions in the field of counter-terrorism more complex, as one can envisage a situation where the Commission and the Council would be in favour of an international agreement, whereas the European Parliament would decide to reject it. Therefore, it is necessary for any analysis of the construction of the European interest to also consider internal struggles amongst EU institutions and in particular the position of the European Parliament, not the least because it has the potential to interfere with other factors in the construction of this interest, notably the interactions with third states, such as the US.

Thus, this article argues that the European interest in counter-terrorism results from multiple and complex social interactions among several actors, including the European Commission, the European Parliament, the Council of Ministers as an institution as well as a policy arena, individual member states with their national fora and institutions, third states (the US in particular, as previously argued), non-state actors, such as think tanks, NGOs, enterprises and lobbies – at both the EU and national levels. It also suggests that a social constructivist approach is particularly well-suited to analysing the emergence of the European interest in a given policy area, such as counter-terrorism. This argument is illustrated below by two cases. The first, which concerns the PNR, demonstrates particularly well how an external actor like the US can play a significant role in the construction of the EU interest. It shows how the EU interest comes to be shaped to a significant extent by the EU–US interactions in counter-terrorism, as both the EU interest and the US interest, although the latter is not considered in this article, are mutually constituted in these interactions. The second case, which concerns the SWIFT Agreement, illustrates the importance of also considering internal EU struggles in the analysis of the EU interest. Indeed, this interest is not only shaped by external influences, but is also the result of struggles between the various EU institutions, in particular the European Commission, the Council and the European Parliament. The SWIFT case illustrates the significance of the role of the European Parliament in this respect. It is important to highlight this new development, which follows the entry into force of the Lisbon Treaty. While the European Commission and the Council have had relatively homogenous views on what is perceived to be in the EU's interest in the counter-terrorism relations with the US, those have been significantly challenged by the European Parliament in the case of SWIFT. This case, therefore, aptly illustrates the new important role that the European Parliament plays in the definition of the EU interest in counter-terrorism in the post-Lisbon institutional context.

The case of PNR: the influence of EU–US relations on EU counter-terrorism

The US has had an important impact on the development and evolution of the EU counter-terrorism policy. Some scholars have cited some policy developments, such as the PNR Agreement, the Container Security Initiative (CSI), and the debates regarding data protection as evidence of US coercion and EU weakness due to power differentials (Rees 2008, Argomaniz 2009, Pawlak 2009a, 2009b, 2010). In contrast, others have argued that the EU–US relationship is actually more of a partnership due to increased policy convergence, as well as the fact that this interaction is beneficial to both sides (Occhipinti 2010, Kaunert 2010a, 2010b, 2010c). From a constructivist perspective, the key point in this regard is that social interactions amongst actors lead to the mutual constitution of their interests. In other words, external actors, such as the US, contribute to constructing the EU interest through their interactions with the EU, alongside multiple ‘internal’ EU actors. The US in particular, as the EU's key partner in counter-terrorism (Kaunert and Léonard 2011), has played an important role in the construction of the EU interest in counter-terrorism. The PNR case is a particularly good illustration of how the US, through its interactions with the EU, has influenced the EU's assessment of its own interest, as it will now be demonstrated.

In November 2001, the US Aviation and Transportation Security Act introduced the requirement that airline companies operating passenger flights to, from or through the US, provide US authorities with electronic access to PNR data, including passengers’ names and addresses, bank numbers, credit card details and information about meals ordered for the flights (de Hert and de Schutter 2008). The overall problem for the EU with passing on European PNR to the US authorities was the potential contravention of Article 25 of the EU's Data Protection Directive 95/46/EC, which prevents transferring data to a country that is not considered to have sufficiently high standards of data protection Air carriers were placed in a difficult situation: if the PNR data were not passed on to US authorities, they could face hefty fines or even lose their flying rights, but they would also face fines if they breached the EU's Data Protection Directive (Guild and Brouwer 2006, Argomaniz 2009, Brouwer 2009). Consequently, the European Commission stepped in to open negotiations with the US to resolve the matter for all EU countries. Whilst US airlines were forced to rapidly comply with these new measures, the European Commission managed to negotiate with the US a delay for EU-based airlines, on the grounds that they were required to comply with the 1995 Data Protection Directive. The US Department of Homeland Security agreed to give the EU an extension until 5 March 2003 to comply with the new rules (Kaunert and Léonard 2011, p. 297).

Therefore, while the PNR initiative clearly emanated from the US, the European Commission managed to construct a significant role for itself and the EU in the negotiation of the PNR Agreement with the US. In practice, it negotiated with US officials a series of requirements regarding data protection and adopted a decision on adequacy based on Article 25 of the Data Protection Directive (European Commission 2004). Following this, the Commission negotiated the Agreement on the transfer of data with the US Government, assuming legal competence through the implicit legal power provided by community law regarding transport and data protection. However, these developments were not positively received by the European Parliament. Its Civil Liberties, Justice and Home Affairs (LIBE) Committee adopted a very critical draft resolution by MEP Johanna Boogerd-Quaak in March 2004. It called for the Commission to withdraw its draft decision of adequacy on the ‘undertakings’ of the US authorities as agreed during the negotiations. Despite an intervention by the Chairman of the Foreign Affairs Committee of the European Parliament, who warned about the potential negative effects of such criticisms for transatlantic relations (Brok 2004), the European Parliament in plenary session voted in favour of the resolution opposing the adequacy decision on 31 March 2004. The resolution also indicated that the European Parliament envisaged to start proceedings before the ECJ should the draft adequacy decision not be withdrawn. It also reminded the European Commission of the requirement for cooperation between institutions as laid down in Article 10 of the Treaty on European Community (TEC). However, the critical stance taken by the European Parliament did not have any noticeable effect on the negotiators, who were not formally required to take this opinion into account at the time. As a consequence, the PNR Agreement was approved by the Council on 17 May 2004 and subsequently signed on 28 May 2004 in Washington. As previously announced, the European Parliament decided to start proceedings before the European Court of Justice to annul the agreement. Whilst it also objected to this agreement on the basis that the US authorities did not guarantee adequate levels of data protection, its complaint focused on the choice of legal basis, as it claimed that the agreement should not have been based on the then Article 95 TEU, which concerned the approximation of laws.

In May 2006, the ECJ did annul the agreement, but not on substantive grounds relating to issues of data protection. Instead, it ruled that the agreement was incorrectly based on EU transport policy (i.e. a first pillar provision), as it mainly aimed to enhance security and to fight against terrorism. As a consequence, the concerned data transfer fell within the public security framework established by the public authorities (Guild and Brouwer 2006, p. 3). Thus, despite achieving its aim of overturning the agreement, the European Parliament gained very little from the ruling. The ECJ did not address the issue of data protection guarantees by the US authorities. Moreover, one of the consequences of the judgement was that any new agreement had to be negotiated in the framework of the third pillar, in which the European Parliament was largely excluded from the decision-making process prior to the Lisbon Treaty (de Hert and de Schutter 2008, p. 328).

As a result of the ECJ judgement, the ‘First PNR Agreement’ had to be replaced. The second PNR Agreement was to be based on third pillar provisions, which meant that its negotiation had to be led by the Council Presidency with the assistance of the Commission (de Hert and de Schutter 2008, p. 330). Given the tight deadline imposed by the ECJ to solve the legal problem, an Interim PNR Agreement was adopted in the meantime, which ensured similar levels of data protection as before. After several further negotiations, a final deal was reached by the end of June 2007, before being approved by the Council of Ministers in July 2007. Under this second PNR agreement, the US Government agreed to receive fewer fields of data – 19, instead of 34 compared to the first PNR Agreement –, although some categories were actually combined. In exchange, the Council agreed that the US authorities would be able to share the data with an increased number of federal authorities and to store them for longer, namely 15 years, instead of three and a half years (Occhipinti 2008, p. 19).

Thus, with its PNR requirement – which meant that, in the absence of any reaction, European airlines would have to breach either EU law or US law –, the US forced the EU into a position where it had to negotiate. If not, European airlines could have lost access to the US market. In addition, the less stringent nature of the PNR agreements that the EU has also signed with Australia and Canada suggests that the US administration was able to exert some pressure on the EU to fulfil its aims (European Parliament 2007). The European Parliament criticised the lack of democratic oversight in the PNR draft Agreement of 2007, which it described as having been ‘prompted by US requirements’. It also regretted the fact that EU–US negotiations took no account of the PNR agreements with Canada and Australia, ‘which ensure higher standards of protection of personal data’ (European Parliament 2007). In this sense, as already observed by Argomaniz (2009), it is evident that the US can exercise substantial power over the EU, notably because of the power disparities between these two actors.

However, this is not the only conclusion that can be drawn from this case. This article argues that the PNR case also shows how the EU interest in counter-terrorism more broadly has come to be defined to a significant extent through the EU–US counter-terrorism relations. Indeed, the European Commission has even been inspired to propose legislation for an EU PNR system on the basis of this experience of EU–US cooperation. Since November 2007, as part of the Commission's new counter-terrorism initiatives, the establishment of an EU Passenger Name Record (EU PNR) system has been under discussion, following the presentation by the European Commission of a Framework Decision on the use of PNR data for law enforcement purposes (European Commission 2007). The Commission has presented this EU PNR system as a major tool in the fight against terrorism and organised crime (European Commission 2008, p. 4). According to its Impact Assessment study, this system would be extremely useful by (1) allowing for the identification of known terrorists and criminals (by running the PNR data against alert systems), passengers connected to a known terrorist or criminal, and ‘high risk passengers’ (according to specific characteristics and behavioural patterns or risk intelligence) and (2) by providing intelligence on travel patterns associations after a terrorist attack (Brouwer 2009, p. 4). Nevertheless, the original proposal by the Commission and its subsequent versions rewritten by the Council proved controversial as they raised many issues concerning data protection and human rights (Brouwer 2009). Compared to the Advanced Passenger Information (API) covered by Directive 2004/82/EC on the obligation of carriers to communicate passenger data, the PNR data would have been more extensive. Another major difference between the two instruments was that the 2004 Directive concerning the API only requires the transmission of data in response to a prior request, whereas the proposed PNR Framework Decision included the obligation of systematically transmitting the required data for each flight concerned. However, upon the entry into force of the Lisbon Treaty on 1 December 2009, the Commission proposal, which had not been adopted by the Council yet, became obsolete. The Commission tabled a new proposal to replace it in February 2011, which is based on the provisions of the Lisbon Treaty (European Commission 2011). This new proposal takes into account the recommendations of the European Parliament, which has become a much more important player in the post-Lisbon institutional framework, as well as incorporates the demands of the European Council that were expressed in the Stockholm Programme of December 2009. This Framework Decision is still under negotiation at the time of writing.

Thus, the analysis of the PNR case has demonstrated that, while the US may have initially irritated the European Commission by making demanding requests and also approaching some EU Member States on a bilateral basis,2 it ultimately dealt with ‘Europe’ at the EU level and saw significant merit in dealing with the European Commission. The US has thereby continued to show its willingness to recognise the EU as a counter-terrorism actor and work with the Commission as a matter of preference. In turn, such a position has made the US a welcome partner for the EU. As a consequence, the European Commission has pushed very hard to ensure the conclusion of various EU–US agreements in the field of counter-terrorism and has also used US pressure to advance European integration on these policy issues3 (Kaunert 2010a, 2010c). It is noteworthy that the European Commission proposal for an EU PNR system of 2011 makes repeated references to the usefulness of PNR systems in the US, Canada and Australia, as well as the value of EU cooperation with these partners. ‘Agreements for the transfer of PNR data in the context of the fight against serious transnational crime and terrorism, limited to travel by air, have been signed between the EU and the United States, Canada and Australia. These require air carriers, collecting PNR data of passengers for their own commercial purposes, to transmit these data to the competent authorities of the United States, Canada and Australia. […] Other countries, notably South Korea and Japan, have also requested to negotiate such agreements (European Commission 2011, p. 7)’. This clearly shows the mutual constitutiveness of the EU's interest in counter-terrorism – a situation that, initially, appears as US coercion of the EU to receive PNR data ends up re-defining the EU's interest in counter-terrorism, including the new aims of signing other PNR agreements and creating an EU system of PNR data. However, the examination of the first EU–US PNR Agreements of 2004 and 2007 also showed that, overall, the European Parliament did not manage to play a significant role in their negotiation. Although it may have also been partially motivated by the idea of defending its prerogatives in the EU inter-institutional power relations (Pawlak 2009b), it appears that its actions mainly aimed to champion the respect for fundamental rights in counter-terrorism and in the exchange of passenger data in particular. Yet, given the fact that the European Parliament was in a structural position of weakness inherent to the application of the consultation procedure, its opinion was not taken into account by the negotiators and was therefore not reflected in the final text of these agreements.

The case of SWIFT: the importance of EU internal struggles and the growing role of the European Parliament

As suggested above, there has been an increasing power struggle in defining what is in the EU's interest as the result of social interactions among several actors. Whilst the previous section examined the role of a key external actor, namely the US, as well as indirectly the lack of power of the European Parliament, this section focuses particularly on the European Parliament's increased powers and their impact on policy developments in the EU. It is important to highlight the role of this institution, because its powers have been significantly reinforced by the Lisbon Treaty. The SWIFT case illustrates particularly well the growing importance of the European Parliament in shaping the EU interest in counter-terrorism, whilst also recalling the significant influence of the US over the EU interest through its interactions with the EU.

SWIFT is a Belgium-based company responsible for the facilitation of messages between financial institutions and is known to have over 9700 client companies in 209 countries (SWIFT n.d.). Overall, SWIFT is responsible for more than 80 per cent of the world's financial messages (Fuster et al. 2008). After 9/11, the US had established a Terrorist Financing and Tracking Programme (TFTP), using data received from SWIFT. The existence of the TFTP itself was only revealed in the US media in June 2006. When it was discovered that the US was using data from a European company with European clients without any European standards of data protection being applied, the European Parliament debated the TFTP and adopted various resolutions (European Parliament 2006, 2007, 2009). However, it was not until the move of servers from the US to Europe in 2009 that the conclusion of an EU–US SWIFT Agreement became necessary. The fact that MEPs had recently felt side-lined during the ‘PNR saga’ only added to their concern about the SWIFT Agreement. Negotiations for an EU–US agreement started in 2009 and an accord was reached in November of that year.

The European Parliament showed a keen interest in the negotiation of the agreement, in line with the attention that it had already devoted to the TFTP programme as soon as its existence had been revealed in 2006 (European Parliament 2006, 2007). However, prior to the entry into force of the Lisbon Treaty, the exact date of which remained uncertain for a few months, the role of the European Parliament was severely limited in the negotiation of the EU–US SWIFT Agreement as a result of the application of the consultation procedure. It initially received very little information on the actual negotiations – the existence of which had been revealed by the press in July 2009. On 17 September 2009, the European Parliament passed a resolution that highlighted various concerns of the MEPs and listed a series of requirements that the agreement should ‘as a very minimum ensure’ (European Parliament 2009). However, as in the case of the PNR Agreements of 2004 and 2007, the negotiators did not appear to pay much attention to the opinion of the European Parliament. On 30 November 2009, that is, on the eve of the entry into force of the Lisbon Treaty, the Council decided to conclude the SWIFT Agreement, which was set to be applied from 1 February 2010. This decision was badly received by many MEPs, although the Commission had indicated that the agreement would be of an interim nature and that a longer-term agreement would be negotiated with the US authorities under Lisbon Treaty rules in 2010.

It was therefore not so surprising that, on 4 February 2010, the LIBE Committee adopted a very critical report on the EU–US SWIFT Interim Agreement drafted by MEP Jeanine Hennis-Plasschaert, which recommended the rejection of the agreement. It argued that the agreement ‘violate[d] the basic principles of data protection law, i.e. the principles of necessity and proportionality’ and that ‘this [could not] be subsequently rectified by mechanisms of oversight and control’ (European Parliament 2010, p. 8). Specific concerns were highlighted, which related to the transfer of bulk data, the possible transfer of EU data to third countries, the periods of data retention and the definition of the citizens’ rights over their personal data. One week later, the European Parliament voted in favour of rejecting the agreement (378 votes to 196 with 31 abstentions). As was the case with the PNR Agreements, the defiant stance of the European Parliament was prompted by both concerns over the substance of the agreement, in particular the lack of adequate data protection provisions, and its strong wish to assert its position in the intra-EU balance of power. In particular, the European Parliament aimed to emphasise its stronger powers following the entry into force of the Lisbon Treaty and the fact that its consent should not be taken for granted by the Council, the Commission or third countries. Interestingly, the European Parliament was not swayed by what Monar (2010, p. 145) described as ‘an unprecedented lobbying effort that involved a phone call from Secretary of State Hillary Clinton to EP President Jerzy Buzek, a joint letter of her and Treasury Secretary Timothy Geithner to the same of 5 February, which even offered the LIBE Committee an in-depth briefing on the TFTP, a warning of Treasury Undersecretary Stuart Levey about a potentially “tragic mistake”, and threats of US Ambassador William Kennard about a potential bypassing of the EU via bilateral agreements with Member States’.

However, all EU actors and the US eventually considered that an EU–US agreement was desirable and preferable to bilateral agreements – thereby highlighting, again, that the use of the EU institutional framework for cooperation on counter-terrorism and internal security is increasingly seen as the most adequate option by both the EU member states and the US. As mentioned before, this preference of the US administration for the signing of agreements with the EU, rather than individual member states, is a form of recognition and validation of the EU's ambitions as a significant counter-terrorism actor on the world stage. Following the rejection of this first SWIFT Agreement, a revised agreement had to be negotiated, which would be acceptable to the European Parliament. Many MEPs were critical of ‘bulk data’ transfers and were calling for more targeted transfers and the inclusion of less data in any transfer (Archik 2011, p. 7). However, EU and US officials argued that this could not be changed for technical reasons. In addition, MEPs demanded higher standards of data protection, in line with their previous resolutions (Ripoll Servent and MacKenzie 2011). The European Parliament had clearly indicated that it would only consent to a revised agreement that substantially incorporated its preferences and concerns, which had been expressed in various resolutions. As a result, some important changes were introduced in the new agreement, although some were not as extensive as MEPs might have preferred. First of all, Europol, the European Police Office, was given the competence to allow or, in contrast, block transfers of European data to the US (Article 4). In addition, it was decided that a group of independent inspectors, including an EU representative appointed by the European Commission, would supervise the use of data by the US authorities (Article 12), with the competence of blocking searches breaching the safeguards listed in Article 5. Moreover, the agreement provided for the possibility of legal and administrative redress for European citizens in the US (Article 18). New provisions regarding the retention and deletion of data were also introduced (Article 6). With regard to ‘bulk data’ transfers, which it had viewed as a particular source of concern, the European Parliament obtained the insertion of Article 11 in the EU–US SWIFT Agreement, which requests the European Commission to investigate ‘the possible introduction of an equivalent EU system allowing for a more targeted transfer of data’, that is, an ‘EU TFTP’. Thus, the text of the EU–US SWIFT Agreement provides clear evidence that the European Parliament managed to make the negotiators take its priorities into account and to significantly shape the content of the revised agreement. The agreement also reinforces the importance for the US of the EU as a key partner in intelligence cooperation and is another example of the influence of the EU–US interactions on EU internal policy developments. As a result of these various changes compared to the first SWIFT Agreement, the European Parliament eventually accepted the agreement at second reading on 8 July 2010.

A second rejection of the SWIFT Agreement had been unlikely on the basis that an important aim for the EU following 9/11 has been to develop as an important partner for the US in counter-terrorism (Bossong 2008, Kaunert and Léonard 2011). Any rejection of the agreement would have been very damaging to the EU, particularly because US recognition of the EU has become a matter of considerable importance (Jorgensen 2006). Furthermore, another rejection of the EU–US SWIFT Agreement would have been detrimental to the European Parliament's ambition to be seen as a ‘responsible’ partner by the US and the other EU institutions, in a context where many member states believed that such a gap in the TFTP system would be detrimental to their security. Thus, whilst the European Parliament was particularly interested in using a high-profile case such as an EU–US agreement to demonstrate its new powers, it is also the very fact that the US was involved that convinced it to eventually accept an agreement that was still seen as unsatisfactory by some MEPs.4 In particular, the fact that ‘bulk data’ transfers are still taking place, notably because of the vagueness of the US requests to Europol, has been criticised (Europol Joint Supervisory Body 2011).

Thus, the case of the SWIFT Agreement signals an important change in the construction of the EU interest in counter-terrorism. In the past, the Commission and the Council had in general largely agreed on what was in the EU's ‘interest’, as shown by the adoption of the previous EU–US agreements (Kaunert 2010a, 2010c). This does not mean that there were no differences amongst EU member states on some issues, such as data protection. Indeed, due to historical differences, some governments such as those of Germany and Austria have tended to express more concerns for data protection than others, which may have been more sensitive to the importance of tackling security threats because of their own experiences with terrorism (e.g. the United Kingdom, Spain) (Rees 2006, 2008). However, these differences had not prevented member states to rapidly come to an agreement with the US, as seen in the case of the first PNR Agreement and, again, in the case of the SWIFT Agreement. Whatever differences there may have been amongst member states on subjects such as data protection, they did not take precedence over their willingness to avoid a dispute with the US and continue to allow the US to take responsibility for European security (Aldrich 2009, Argomaniz 2009). By rejecting the first SWIFT Agreement, the European Parliament initially adopted another position, which, in contrast, prioritised concerns for data protection and civil liberties over security. However, it eventually gave its consent to the revised SWIFT Agreement, although some argued that even this second agreement had shortcomings, in order to appear responsible and responsive to security concerns (Ripoll Servent and MacKenzie 2011). Nevertheless, the European Parliament did manage to significantly shape the EU interest on this occasion, as the rejection of the first SWIFT Agreement led to various amendments that at least partially addressed its concerns for data protection and civil liberties. The SWIFT case, therefore, illustrates particularly well how internal struggles amongst EU institutions have also become important in the construction of the EU interest in counter-terrorism, especially since the entry into force of the Lisbon Treaty, which has reinforced the powers of the European Parliament. However, this does not mean that the EU's interactions with external actors are less important in shaping the EU interest. This case has also shown, again, the importance of the EU–US counter-terrorism cooperation in constructing the EU interest, as the European Commission is now examining the creation of an EU TFTP – just as the conclusion of the EU–US PNR Agreement led to discussions about the establishment of an EU PNR system, as explained in the previous section.

Conclusion

Taking as a starting point Kaunert's (2010a) argument that an EU interest in counter-terrorism has gradually emerged in the last few years, this article set out to examine the processes through which this interest is constructed. Adopting a social constructivist framework, it has argued that the EU interest is constructed to a significant extent through interactions with external actors, in particular the EU's key partner in counter-terrorism, the US. Both the PNR case and the SWIFT case have shown the important influence of the EU–US cooperation over the construction of the EU interest, as the conclusion of the EU–US PNR and SWIFT Agreements has inspired the EU to launch discussions on establishing its own PNR system and TFTP.

In addition, the article has argued that the EU interest is also the result of EU internal struggles amongst EU institutions – which, at times, may significantly complicate cooperation with external actors, as demonstrated by the SWIFT case. These internal struggles have become more significant since the entry into force of the Lisbon Treaty, which has strengthened the powers of the European Parliament. One can therefore argue that the process of construction of the EU interest has become ‘messier’ and more fragmented, with less relative power for any one actor to dominate the policy area, despite the increase in absolute power for the European Parliament. While the European Commission's and the Council's views have remained relatively homogenous in this policy area, the European Parliament has begun to play the role of a ‘trouble-maker’, that is, an increasingly assertive and confident actor that challenges the prevailing consensus on counter-terrorism in the EU. The case of SWIFT has demonstrated this point particularly well. The European Parliament carefully used the case of the SWIFT Agreement to demonstrate its new powers, not only to the other EU institutions, but also to the only remaining superpower, the US. This signals that, now that it has the full competence to do so, the European Parliament is definitely interested in influencing the construction of the EU interest in counter-terrorism, which could lead to more ‘battles’ amongst EU institutions as has been witnessed in the case of SWIFT. Overall, this means that the construction of the European interest in counter-terrorism is an increasingly complex process, as it results from both internal interactions (i.e. within the EU) and external interactions (i.e. with third parties, such as third states).

However, it is also important to acknowledge that there are limitations to the argument developed in this article. The most important of them is that the process of constructing a ‘European’ interest in counter-terrorism is only partial and is still on-going. One is best able to observe this process in the policy areas of the former (i.e. pre-Lisbon) first and third EU pillars, but this process is much more limited in the former second pillar, the ‘Common Foreign and Security Policy’. The War in Iraq has recalled the existence and persistence of national interests in matters that concern ‘war or peace’. When it comes to military matters, national sovereignty is still predominant in the strategic thinking of the diplomatic elites of the EU member states. Furthermore, one may note that the EU interest is not shaped just by ‘battles’ among EU institutions, but also amongst EU member states. Especially in counter-terrorism, member states still play a crucial role in defining an EU interest, even if they all ultimately approve agreements. They do so because they realise that it is unlikely that they could achieve a better deal bilaterally, in addition to the fact that the US is such a dominant player in many areas of counter-terrorism. However, despite showing how an EU interest in counter-terrorism has increasingly developed, this article also acknowledges that one should neither overemphasise nor completely discard the importance of the national interest in security matters.

Notes on contributors

Dr Christian Kaunert is Marie Curie Research Fellow at the Robert Schuman Centre for Advanced Studies of the European University Institute, Florence, Italy, and Senior Lecturer in European Politics & International Relations at the University of Salford, Greater Manchester, UK. He is also Editor of the Journal of Contemporary European Research (JCER), which is owned by the University Association for Contemporary European Studies (UACES). He would like to thank all colleagues who kindly offered feedback on earlier versions of this article, as well as two anonymous referees. Research for this article was supported by a Marie Curie Intra-European Fellowship within the 7th European Community Framework Programme.

Dr Sarah Léonard is Marie Curie Research Fellow at the Centre for European Studies of Sciences Po, Paris, France, and Lecturer in International Security at the University of Salford, Greater Manchester, UK. She is also Editor of the Journal of Contemporary European Research (JCER), which is owned by the University Association for Contemporary European Studies (UACES). She would like to thank all colleagues who kindly offered feedback on earlier versions of this article, as well as two anonymous referees. Research for this article was supported by a Marie Curie Intra-European Fellowship within the 7th European Community Framework Programme.

Dr Alex MacKenzie received his PhD from the University of Salford, Greater Manchester, UK. He would like to thank all colleagues who kindly offered feedback on earlier versions of this article, as well as two anonymous referees.

Notes

1. PNR data are information provided by passengers, and collected by the air carriers for their own commercial purposes.

2. For example, a US-Czech Republic Memorandum of Understanding was signed in February 2008, which aimed to introduce exchange of personal data on passengers gathered by Czech law enforcement officers.

3. While the Commissions willingly used US pressure to advance European integration, this article acknowledges that, in the longrun, a stronger EU might also, sooner or later, become an EU more resistant to US pressure.

4. The revised EU–US SWIFT Agreement was approved by 484 votes to 109 (with 12 abstentions) (Archik 2011, p. 8).