Waiting for answers | FATCA-questions by the European Parliament

In September questions were asked regarding the data transfer of personal information of European citizens to the U.S. after the Privacy Shield judgment of the European Court (‘Schrems II’ judgment). The questions by Sophie in’t Veld, member of the European Parliament, were:

In order to comply with the US Foreign Account Tax Compliance Act (FATCA), implemented by bilateral intergovernmental agreements (IGAs) concluded between the EU Member States and the US, accidental Americans, who are EU citizens, have to transmit a social security number (SSN) to their bank under threat of closure of their bank account. In order to obtain this SSN, these people have to provide very sensitive data to the Federal Benefit Unit of US embassies, which are subsequently transferred to the US.

1. Does the Commission consider this transfer of information to be in line with the General Data Protection Regulation (GDPR)?

2. Does the Commission consider that this transfer of information is a direct consequence of the intergovernmental agreements concluded by the Member States to implement FATCA? What actions does the Commission undertake to protect the transfer of this information to the US?

3. Will the Commission open infringement procedures against the Member States?

On 21 October new FATCA-questions were made public. Engin Eroglu observed that banks are closing bank accounts of US Persons in Germany:

EU citizens who were born in the US or who have a parent who is a US citizen are also taxable in the USA. Since July 2014, German banks and credit institutions have been required to notify the US authorities if they have clients who are taxable in the USA. This often leads to banks terminating these clients’ bank accounts to avoid the additional administrative formalities. Switching to another credit institution is often impossible for the same reason.

1. What ways does the Commission see of improving the tax situation of US nationals in the EU?
2. Does the Commission think that FATCA’s provisions are compatible with EU data protection policy?

At this moment we are months further and we know the opinion of the European Data Protection Supervisor (EDPS). Read also EDPS’ opinion on tax compliance and data privacy. Still the questions of In’t Veld and Eroglu have not been answered.

Why is the European Commission silent? Is the Commission hesitating to contradict the US? Will American legislation prevail even when it violates fundamental rights of European citizens?

The Dutch Minister of Finance thinks the FATCA-exchange of personal data is unproblematic (read this post). It does not look as if he has made the assessment required by EDPS.

Over Ellen Timmer, advocaat ondernemingsrecht @Pellicaan

Verbonden aan Pellicaan Advocaten, http://www.pellicaan.nl/, kantoor Rotterdam, telefoon 088-6272287, fax 088-6272280, e-mail ellen.timmer@pellicaan.nl ||| Weblogs: algemeen: https://ellentimmer.com/ || modernisering ondernemingsrecht: http://flexbv.wordpress.com/ ||| Motto: goede bedoelingen rechtvaardigen geen slechte regels
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