I think Spartacus is right and our options to get justice through the American political process are very limited. Our representation is simply too diluted to make much of a difference. The U.S. courts are probably no use – my understanding is that citizen-based taxation has already been challenged and upheld.
That leaves the political processes and courts of other states. I won’t hide from anyone that I am counting on Canada to a great extent for short-term relief. Not only does Canada have a large number of American expats and duals, Americans perceive Canada as “not so foreign.” They can relate to you in a way that they can’t relate to those of us who live in Rio or London or Paris.
There is a great story in one of Montaigne’s essays about the siege of Guelphe. The emperor didn’t want to let any of townspeople go but under pressure (most likely he didn’t want to be considered a completely unchivalrous bastard) he finally relented and said that the women could leave on foot with only what they could carry on their backs. So the women simply put their husbands, their children and even their duke on their backs and began to leave. The emperor was said to be so touched by their bravery that he was moved to better treatment of all the townspeople. If Canada’s bravery and unwillingness to compromise its sovereignty and integrity can force the U.S. government to relent, than perhaps the rest of us stand a chance.
In the longer term however FATCA and citizenship-based taxation will probably end up in the courts. Here in Europe it will most likely end up in the European Court of Justice. There is an EU Charter of Fundamental Rights based on both the 1950 European Convention on Human Rights and the different constitutional traditions of the Member-states. It’s a fine document and after I read it I became all the more resolved to seek citizenship here. Here are a few of the articles that might be of interest in our context:
Article 1 Human dignity. Human dignity is inviolable. It must be respected and protected.
(Nothing dignified about being chased down by the “fisc” of a foreign power.)
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
(Being treated like “tax evaders” and being punished through draconian penalties definitely falls under the category of “degrading treatment” not to mention the penalties which are all out of proportion to the “crime.”)
Article 8 Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
(This one would seem to outlaw FATCA all together or at the very least put some very strict limits on how it could be implemented in the EU)
Article 17 Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
(The unreasonable penalties and the seizure of assets definitely runs afoul of this one.)
These are the rights of EU citizens and all duals (those “Accidental Americans” in particular) should have full protection under this Charter. The very best case, I think, would be one of a child of an American and EU citizen or someone inadvertently born in the U.S. being “caught” by the U.S. government and then fined or taxed. Next best case would be a naturalized EU citizen in the same situation.
This would take time. A case would have to make its way through the national courts before it gets to the EU level. However, even the threat that this might occur might slow the U.S. government down. The publicity alone, especially in the case of an EU citizen who refuses to be considered an American, would be very detrimental to U.S. interest and image.
Just imagine Le Monde (the paper that proclaimed 10 years ago, “We are all Americans now”) running a front-page article that says, “We are NOT Americans!”
@Victoria
Does the treaty only apply just to EU citizens or also residents? How much longer do you have to wait for your French citizenship to be approved?
I think that this is a brilliant idea and it has been proposed before. I think that this has to be a “class action” or whatever its called when a huge bandwagon of people get on board. Even if just 100 join the suit that would generate huge negative publicity for US citizenship taxation. Article 17 seems like one of the more viable points to argue under, especially since it can’t be in any member state’s “public interest” to have the assets of one of its citizens be transferred forcibly to a foreign country.
What has happened already though? Canada has said that it will not collect FBAR fines. Does anyone here know if any EU countries have issued statements whether or not they will also refuse to collect? I know the the European Parliament has held several debates on the issue but nothing has been decided yet it seems.
@Don – To my surprise I think it just might indirectly apply to residents. There is some protection at the EU level for those of us who have the status of “long-term EU residents”. See European Council Directive 2003/109/EC of 25 November 2003 here. I also wrote about it here “Know Your rights” at the Flophouse – most foreign residents in member-states are blissfully unaware that they do have rights.
Europa says: “EU countries must apply the directive in accordance with the principle of non-discrimination pursuant to Article 10 of the Treaty on the Functioning of the European Union (TFEU) and Article 21 of the Charter of Fundamental Rights of the European Union.”
For my French citizenship I’m waiting for my Japanese police report before I can apply. After that we’ll see what happens but it appears that I may have existing rights as a “long-term” resident.
I think you’re right and a class action suit is the way to go. I think the best way to go about it would be to find those “Accidental Americans” and get them to file (my children, for example). But how to move forward on this? Maybe one of the EU MP’s? Wasn’t there one MP called Sargentini (Green Party) who was strongly against FATCA? Might be worth sending her a mail. What do you think?
@Victoria
There actually now more like twenty five plus MEPs who have sent letters to the EU Commission asking for a response to FATCA across three different parliamentary blocs. From the the European perspective the whole thing is tied into a broader question of application of American vs European privacy law.If you read any IT magazine right now you hear a lot about US owned cloud based services and whether their European customers are affected by the Patriot Act(Showing how serious the concerns are about this particular issue several national and regional governments have already put into place policies prohibiting their data from being stored in US owned cloud services). Effectively the same the MEP’s raising a stink about this are the same who are mad about FATCA i.e. Alexander Alvaro, Sophie in te Veld, Sarah Lundford. I have a list I’ll try to repost again. I know Sargentini was actually showing up in different forums/blogs back in November/December actually asking for information on FATCA.
@Tim – oh my goodness, you are absolutely right. I just ran a search on US cloud providers and the Patriot Act and came up with a ton of hits. This one says it all, I think
http://arstechnica.com/tech-policy/news/2011/12/patriot-act-and-privacy-laws-take-a-bite-out-of-us-cloud-business.ars
But can’t the US providers get around this by simply storing the data in local datacenters? I’ve been talking to AWS recently and they said they could store anywhere we want: Asia, Europe and so on. Or do the provisions of the Patriot Act cover them anywhere in the world? Microsoft seems to think so – here is a quotation from the article:
“After researching the PATRIOT act, Microsoft found that regardless of where data was stored, it could not ensure that data would not be turned over to the US government as the result of a National Security Letter or other government request, because the company is governed by US law.”
Amazing. Thank you so much, Tim, for the heads up on this one. I really need to get a job and get back in the game.
And it sounds like Sargentini is the person to talk to. I’m going to draft a letter and I may run it by you folks for your comments before I send it. I’m also thinking that it might be worth talking to Eva Joly’s people too.
They can also get access to your Facebook, Twitter, Gmail, Yahoo, Hotmail and so on. I’ve already switched most of my e-mail use over to EU-based accounts like gmx.de.
The Megaupload case shows that the US is thinking that it has global authority when it writes any laws that have anything to do with IT or the internet. The FBI worked with law enforcement agencies from something like 6 countries, yet they want the Megaupload founders to be extradited only to the US. I don’t understand how the US has any more legal say over other countries whose copyrights may have been violated on the website? I imagine that behind the scences we have the FBI essentially bullying the much smaller New Zealand to expatriate them just because they said to do so. Can anyone share any more light on what grounds they are being extradited only to the US?
I like Gmail and pay to host photos and videos of my kid. Given the US “lack of respect” with foreign servers, I doubt that it makes any difference WHERE you host your accounts. They could just as easily get your information from GMX.
I know it’s easy to get upset about the US actions. I AM! But on the other hand, I don’t do anything wrong. I just want to cut my ties with those people and say Tchau! / Adiu / Sayronara.
And yes, I believe these actions are to SCARE people into using only servers that are within their realm and that fall under the Patriot Act. See my latest post.
In addition to the EU Charter, for those of us in the rest of the world, (unless you live in Malaysia, Saudi Arabia, Burma, or Western Sahara) you also have the protection of the International Covenant on Civil and Political Rights. Even if you are not a citizen where you live, you can demand that your state of legal residence offer you protection under the ICCPR, and you can argue to their courts that the US has violated your rights under the ICCPR. The ICCPR grants us some particularly interesting rights:
Every CITIZEN — not resident — has the right to vote in his country and to be elected. Again regardless if you may have the right to vote in your state of origin — I will bet that not a single one of us qualifies to stand for election, since all US elections are tied to geographical districts. We should demand congressional representative for expatriates, elected from among the ranks of expatriates.
US tax laws are designed specifically to interfere with my freedom to leave my own country. There is no national security, public order, public health, or moral justification for them, as seen by the fact that every other country on earth besides Eritrea and North Korea do not have such laws.
Unlawful attacks on honour and reputation. Like Shulman libelling expatriates as “tax evaders”.
Really happy to find this great blog! I have been following news of FATCA / FBAR and Patriot Act overreach for some months and am encouraged by the volume of dissent from the expat community and increasingly, the international banking community as well. I have started a petition to repeal FATCA. It may be less effective than a class action suit, but if we can get some traction with it, I hope it will contribute to bringing awareness to US residents. I invite you to please consider signing, and sharing widely!
http://signon.org/sign/repeal-fatca
I had posted these names earlier but I just wanted to post them again. The following are MEP’s who have challenged the EU Commission to come up with a response to FATCA’s contradiction’s of European privacy law.
Jan Philipp Albrecht(Germany), Rui Tavares(Portugal), Raül Romeva i Rueda(Spain), Judith Sargentini(Netherlands), on behalf of the Verts/ALE Group(Greens)
Cornelia Ernst(Germany), Miguel Portas(Portugal), Marisa Matias(Portugal), on behalf of the GUE/NGL Group(Far Left)
Sophia in ‘t Veld(Netherlands), Sylvie Goulard(France), Sonia Alfano(Italy), Alexander Alvaro, Baroness Sarah Ludford(United Kingdom), Theodoros Skylakakis(Greece), Ramon Tremosa i Balcells(Spain), Philippe De Backer(Belgium), Jens Rohde(Denmark), Stanimir Ilchev(Bulgaria), Giommaria Uggias(Italy), on behalf of the ALDE Group(Group UK Liberal Democrats and German FDP are part of).
The was also just recently published an opinion piece in the San Francisco Chronicle on FATCA that was not exactly negative but not exactly positive either. So some pressure is getting through.
http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2012/01/23/bloomberg_articlesLY4D3X0YHQ0X01-LY4D3.DTL
I’ll like the line “FATCA could violate some countries privacy laws” more like all and especially all major countries privacy laws.
@Rami – great to have you here. I signed the petition a few weeks ago. Great idea! How many signatures are you aiming for?
@Tim – thanks for the list. I’m going to draft a letter and see if I can’t get some of these folks to respond.
@Eric – And thank you for pointing out the ICCPR. I wonder if we could find some actual cases brought before international or EU courts that would back up our case?
Thanks Victoria! We have over 1000 signatures now, but I’d really love to have many more — 5000 seems like a good minimum given there are 6+ million of us out here 🙂
I thought I would add something that I found a bit funny: whilst walking around my office today (I work for the EU) I noticed posters everywhere proclaiming that 28 January is the 6th annual European Data Protection Day. It would be wonderful timing if the European Commission made a bold statement on that day condemning FATCA. I’m not holding my breath, but you can read more about it here:
http://www.coe.int/lportal/web/coe-portal/event-files/our-events/28-january-data-protection-day
I bet that the US government doesn’t celebrate a “Data Protection Day” 🙂
The Swedish Bar Association seems to be questioning whether FATCA is compatible with the European Convention on Human Rights, due to the way that the law is being implemented there.
http://www.svd.se/naringsliv/nyheter/usa-staller-krav-pa-svenska-sparare_4029675.svd
Swedish lawyers association: “we don’t really like it, but we approve it because it’s the least bad thing that Sweden can do” … https://www.advokatsamfundet.se/Documents/Advokatsamfundet_sv/Remissvar/478442_20140910111357.pdf
“We at the Swedish lawyers society don’t really have a strong opinion about all that other rights of citizens stuff, but we firmly stand against anything that holds any lawyer accountable” … https://www.advokatsamfundet.se/Documents/Advokatsamfundet_sv/Remissvar/484005_20141014120148.pdf