The European Commission maintains that the requirements of the US Foreign Tax Compliance Act (FATCA) for “"accidental Americans” are compatible with the Payment Accounts Directive. This is according to a letter from European Taxation Commissioner Paolo Gentiloni to MEP Sophie in ’t Veld (Renew Europe, Netherlands), which was posted online on Thursday 30 July.
In April this year, the Member of Parliament asked the Commission to explain how it had come to this conclusion (see EUROPE 12466/24). In the letter, the Commission states that it has analysed the national measures transposing the Payment Accounts Directive and has not found any provisions that hamper the right of “accidental Americans” to open a basic payment account.
A legal analysis also concluded that the requirement for a US tax identification number under the FATCA Act was not contrary to the Payment Accounts Directive.
The Commission also asked the European Banking Authority (EBA) in March 2018 to consult national supervisors on this issue. “It appears that only one national authority among EBA members has received a limited number of complaints related to ‘FATCA’”, it said.
Disappointed with the response, Sophie in ’t Veld expressed regret on Twitter that “the European Commission continues to duck the FATCA issue” and prefers “serving Member States and the US government instead of EU citizens”.
What about compliance with the GDPR?
On the issue of the compatibility of these requirements with the European General Data Protection Regulation (GDPR), raised by Mrs in ’t Veld, the Commission prefers to kick the ball back and refer the matter to the European Data Protection Board (EDPB), which is responsible for addressing this issue.
However, the Commission recalls that in 2018, the EDPB concluded that there was no justification for prohibiting data processing under the ‘FATCA’ law.
“It is time for the European Commission to open its eyes. Intergovernmental agreements concluded by Member States with the United States to enforce the ‘FATCA’, a US law, violate the GDPR. The United States doesn’t offer a sufficient level of guarantees and the European Commission knows it!”, said Fabien Lehagre, President of the Association of Accidental Americans.
Last October, his association lodged a complaint with the Commission against France (see EUROPE 12341/14), alleging that the Franco-American intergovernmental agreement, which applies the ‘FATCA’ law, violates the GDPR (see EUROPE 12458/25).
See the letter: https://bit.ly/2EyYtz0 (Original version in French by Marion Fontana)