On 24 November I published Disappointing message from the European Commission on FATCA on the message that the European Commission sent to the European Parliament Petitions Committee (PETI).

On 2 December attorney Filippo Noseda, who represents a British victim of FATCA and is also active in the EU [*], wrote a letter to the chair of PETI regarding the Commission message. In that letter, he explains that – contrary to what the Commission suggests – the subject of FATCA falls within the competence of the Commission:

Internal EU documents show that 1 the Commission believed that FATCA was within the EU’s area of competence and that 2 the IGAs were a temporary solution, which moreover was coordinated by the Commission. Most importantly, 3 the Commission concluded following correspondence with the US Treasury that the US offered lower data protection safeguards. This was several years before the two Schrems judgment and before Art. 46 GDPR introduced a statutory obligation to ensure appropriate safeguards before transferring personal data to third countries.

He explains that FATCA and the FATCA-IGA’s cause harm to EU residents that have the American nationality and that a law professor sent an Amicus Letter to PETI, explaining that the safeguards for FATCA-transfers to the US are not appropriate. Also the FATCA data are useless for the US tax authorities (IRS). Recently it was admitted again in a notice and request for comments (marked by me):

Request for Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.

More information in Noseda’s letter of 2 December.

[*] See his FATCA page and his correspondence.