A reader here at Brock has approached me with the suggestion of instigating a Human Rights Complaint at the European Court of Human Rights (ECHR). This reader was aware of my involvement with the United Nations Human Rights Complaint against the United States and its policy of citizenship-based taxation which was filed in August 2014. That Complaint is still awaiting discussion at the UN but I am of the firm belief that our issue must be driven home in every possible forum available to us.
In Europe the ECHR is such a forum. The process by which one makes an “application” (the ECHR term for “complaint”) is described in English in a video tutorial available at the right hand side of the web page. The video can also be viewed in other languages.
The process is daunting and not for the faint-of-heart. The United Nations process was a cakewalk in comparison. However, the matter we face as an international community is of the gravest concern and there may be Brockers who reside in EU-member countries who may wish to take this fight to their governments.
Firstly, as the video states, it is necessary to take the matter to the courts of human rights in your individual European country. If your application succeeds then you have no need of further action. If it does not succeed and you wish to take it to the ECHR you must file all documentation concerning your case with your ECHR application.
Having said that, it is possible that the unique international situation created by FATCA may allow a formal complaint to be laid directly with the ECHR. The reader who has instigated the idea of an ECHR human rights action has this to say:
“This is not about all the EU Member Countries […] each on their own initiative having simultaneously embraced American FATCA — but rather a case of the United States having systematically forced it upon the entire world, under threat of punitive sanctions which only a superpower can get away with.
“On that note, I think that somebody with good professional familiarity of EU functioning could make a viable case that [a] FATCA Human Rights Complaint should be immediately and directly taken up by the European Union on behalf of all its Member Countries and their Citizens who are suffering oppression from their respective Governments — whose only reason for doing it is the unjustified and illegal pressure by the USA on the entire Globe.”
I think this is a very reasonable possibility and should serve as encouragement to those who wish to pursue this. In fact, as our reader also points out, there is already a very outspoken anti-FATCA member of the European Parliament in the person of Sophie int’Veld of the Netherlands. She would be an excellent person with whom to be in contact before initiating the complaint process. She can be reached at sophie.intveld@ep.europa.eu. Her website (in Dutch) is http://www.sophieintveld.eu.
Another excellent contact would be Frédéric Lefebvre, a member of the French Assemblée Nationale . He has a FATCA-dedicated webpage. From his position in the French government he may be able to help bring pressure to bear on the ECHR to take action on a human rights issue directly in this case. He can be reached at flefebvre@assemblee-nationale.fr.
Not being a resident or citizen of the EU I am unable to file an application in the EU but I am certainly happy to lend a hand in whatever way I am able if any of us in Europe want to give this process a try. For starters, I am able to offer a look at our UN Complaint to any European seriously interested in pursuing this. Our document may give you valuable ideas about ways to construct your own.
To read the Complaint please email: calgaryfouroneone@gmail.com for instructions. (If the link doesn’t operate correctly please type the address in full.) Please do not ask to read the Complaint if you are not truly interested in pursuing this course of action.
All names of the signatories and all information pertaining to the sender of the document have been removed to ensure their privacy. Because our Complaint is still “before the court” I must ask that those who access the Complaint do so with the understanding that it is solely for their own use and is not to be shared.
There is urgent need for action against FATCA in Europe. Indeed, many of the worst cases of FATCA-engendered financial abuse have come out of Europe. Just today we have had disturbing news from Sweden. I’m sure that all of us here at Brock would be delighted to see a major push-back mounted by Europeans. A human rights complaint would be a great way to go.
http://manskligarattigheter.dynamaster.se/en/human-rights/what-if-my-human-rights-are-violated
In Sweden, an individual who believes that the state has violated his or her rights can turn to either the police, a prosecutor, the courts or the Equality Ombudsman, the Parliamentary Ombudsmen (the Ombudsmen for Justice, JO) or the Office of the Chancellor of Justice (JK), depending on the nature of the matter.
(The JK is BS–an understaffed NGO)
https://en.wikipedia.org/wiki/Parliamentary_Ombudsman#Sweden
A complaint to the JO (Justitieombudsmannen) – or Parliamentary Ombudsman (Riksdagens ombudsmän), which is the official name of the Institution – can be made by anybody who feels that he or she or someone else has been treated wrongly or unjustly by a public authority or an official employed by the civil service or local government. A person need not be a Swedish citizen or have reached a certain age to be able to lodge a complaint.
http://manskligarattigheter.dynamaster.se/en/human-rights/what-if-my-human-rights-are-violated
However, the Institution has no jurisdiction over the actions of members of the Riksdag, the Government
Individuals who have attempted to obtain redress in Sweden by using the options available to appeal the decisions of authorities and courts, can file a complaint with the European Court of Human Rights in Strasbourg. The complaint must refer to a violation that the applicant has personally suffered and it must refer to a right set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms or in one of its additional protocols. The complaint cannot be directed against an individual person or organisation, but must be directed against a state and must refer to an issue for which the state can be held accountable.
SUMMARY
Either a rights lawyer (requires $$ $$$ $$$), or start with Diskriminerings Ombud (which is known to not do anything) and then immediately go to the EU
Likely, it requires a plaintiff who has directly been wronged, rather than complaining about the legislation itself.
(meaning one must not fill out any forms and must have one’s account closed)
The Obama Administration (FATCA is his baby) has attacked expats with FATCA using IGA’s and IGA’s in the making in 112 countries thus far.
American Expats have managed to launch counter attacks from Canada, the UN and soon within the US itself. However, a front in Europe desperately needs to be opened.
I fully agree that the European Court of Human Rights is the place to do it. I have donated to the Canadian ADSC, the US FATCA Legal Challenge, and will definitely donate to any challenge in Europe. And I am sure that others will do the same.
Our rights as human beings are being trampled all over the world by the meanest empire on the planet, the country that I am ashamed to say that I once called home.
The time is now to launch the complaint in Europe, home to millions of expats.
As Ben Franklin once said, “we must all hang together, or assuredly we shall all hang separately.”
The average time for a case to go through the ECHR — assuming it is deemed suitable to proceed– is 7 years. It usually takes 2-3 years for the decision to accept it. That’s just the ECHR. The matter first has to have been heard before the highest court in the member state. I did a case that went through the UK House of Lords (now known as the Supremes) and though it actually changed the existing legislation and my client was able to achieve her desired result through the new law, she wanted it grandfathered, which was unrealistic, not within the court’s remit. I was able to talk her out of it which turned out to be a really good thing because she unfortunately died unexpectedly not long after the HL decision and she would not have lived to enjoy the benefit that she sought in the first place.
If the Republican congress were to repeal FATCA, it would certainly happen long before a case could go through the ECHR. Although we expats are suffering the nuisance effect of FATCA on our daily lives, there are no doubt a number of resident US legislators who have more to fear from it.
Of course the problem is that we don’t have representatives in Washington to appeal to and 7 million people scattered around the globe are not going to swing an election. Can anyone start an electronic petition in the US the way we can in the UK
@murdo,
Several electronic petitions have been organized. Long-term expats afraid of losing the life savings are generally too fearful to sign such petitions due to the amount of personal details that are asked to be disclosed (name, address, state where last lived etc).
A complaint or complaints need to be launched in Europe. Full stop.
@murdo
Here is an example of a petition to the White House — not very promising.
https://petitions.whitehouse.gov/petition/put-end-fatca-and-stop-taxing-americans-around-world-simply-being-american-citizens/X3PzK5jy
You are 100% correct about expats not having a Representation in Congress. The only real voice that expats have is through the various courts (US and elsewhere). Therefore, it is better to donate to the Jim Bopp lawsuit against FATCA, the ADSC lawsuit in Canada and also to launch new lawsuits in Europe.
Note:
CH is also signatory of ECHR – but is not a member of EU. However a close look at CH constitution Article 8 illustrates nothing illegal with national-origin discrimination. This would make a nice test to illustrate incompatibility between CH Constitution and ECHR, where (presently) in this matter ECHR had the last word. HOWEVER … it would require someone with a willingness to take it through the courts. Wishful thinking…
http://www.swissinfo.ch/eng/echr-under-pressure-on-swiss-anniversary/41132266
What’s lacking in Europe is the first step. Very few US ex-pats know about FATCA, if they did money could be raised.
I’m contemplating returning to Europe soon. For me setting up a Euro version of IBS will definitely be on the agenda.
The issue needs to be addressed.
My cousins in Greece, who were born in the States but left when they were infants, are furious about Fatca and are contemplating on initiating lawsuits against their banks or the Government. Although Greece has yet to sign an IGA (as they do have bigger problems at the moment), the banks still find themselves under Washington’s gun. Once an IGA is signed and they somehow secure the fees for a solicitor, they will not hesitate to sue.
As an EU resident, I would support a ‘EuroIBS’ and anti-FATCA European legal challenge(s). But the most urgent and immediate task (even for those of us in Europe, Asia, or elsewhere) must be keeping the Canadian ADCS legal challenge going. This is in the interest of every one of us and deserves ongoing financial support from every reader of this website.
I am an EU resident and a newly minted French citizen (dual with US) and I think that in this country, we may have an issue with standing. Although France is apparently now cooperating with the US government, I am not hearing that people are having trouble with their banks here.
Switzerland has already been massacred. Canada has definitely been carrying the most weight in the fight back up to now. Another front or even fronts desperately need to be opened up in Europe.
One of the things we’ve been working very hard on, is to try and get Brockers in each country to try and make contact with others and to start working toward getting the word out. It is possible to consider inviting John Richardson to give an Information Session in your area, as a way to get things started. We also have one meetup group that was started with this idea in mind- to build local “chapters” of Brock if you will.
If anyone feels they would like to try and do this in their area, please email me and I will try and match you up with the people I have.
The first “across the pond” meeting is expected to take place in London UK in early March. Details will be posted shortly.
nobledreamer16 at gmail dot com
@Jadzia, there have been reports like these;
http://www.lepoint.fr/economie/axa-banque-ferme-les-comptes-de-ses-clients-americains-en-france-06-02-2014-1788961_28.php
‘Axa Banque ferme les comptes de ses clients américains en France ! ‘
or,
http://thefranco-americanflophouse.blogspot.ca/2014/11/the-flophouse-get-fatcaed.html
“The Flophouse has been FATCAed.
Last week we received a snail mail from the French bank where our little Franco-American family has been banking for years – the one where we deposit our paychecks, pay our rent and utilities and all that jazz. The envelope was packed full with a fancy glossy note in French explaining what it was all about and two nearly incomprehensible forms in American English. (I tried to do my duty as a translator because there was much about them that my French spouse found puzzling but there were sections that even I, the only native speaker in the household, couldn’t figure out.)
Now this part wasn’t particularly funny. On the contrary my spouse and I were definitely unamused by the note that said that if the forms weren’t returned then the bank could send the information to the US IRS anyway (which made me wonder why we were doing this dance at all). I also noted that there was no privacy waiver to be found in this pile of paperasses and I’d be very interested in knowing if that is in fact consistent with EU law. ”
……..”……..My French spouse was appalled to read some of the search criteria they used for putting an account under suspicion: US address attached to the account, US person attached to the account, and wire transfers from France to the US…”
…….”……But, hey, none if it was a huge surprise either. We’ve been expecting some sort of paperwork ever since the French parliament passed the law implementing FATCA……”…..
Badger – – it makes you feel like you have been targeted (you have been) and are being discriminated against compared to other French citizens (you are) -> all with the approval and help and direction of the French government (and the EU) at the demand of the US government (and we are now, no matter what country, all in the exact same boat).
@Steve,
It still seems so surreal that our home country – whether Canada or France would do this and go so far – even at the extortionate behest of the US. And though I now have my CLN, I can do nothing about the fatct of my birthplace. Am I and others like me to be forced to prove that we are not ‘US taxable persons’ for life because of it? That is absurd and disgusting. The ADCS challenge is my only recourse to a lifetime of 2nd class citizenship and being forced to produce my CLN freedom paper to bank and to travel.
Jeez — I was thrown out of a bank, but at least they threw me out and didn’t report me (I imagine). Leaving me the option to become compliant on my own before the other banks, gulp, find me.
The main problem with all this is loss of privacy and intimacy. My host country cannot look at my accounts, but now they can, because the bank will forward the info to them, so the finance ministry can forward the info to the IRS. Thank you, IGA.
What is even scarier is when the bank transmits the info without your consent. They should at least let you close the account. That said, FBARS need to know about closed accounts too, right?
People, a question: is your CLN enough to open an account? Because I think that they send a form to the IRS anyway. What if the IRS decides it needs more FBARS or whatnot, even with the CLN (one could be a US person even after renouncing, right?)
And just a thought about all the articulate US citizens spending time writing here and money on accountants… Wouldn’t it be nice if we could be positive ambassadors for the US rather than victimized second class citizens?
@Fred, I also worry that a CLN may not always be sufficient for the bank; they may increasingly insist on past tax returns, FBARS, 8854, etc. I also believe that that banks will err on caution and over-report, even with former citizens.
@Banc de L….”Likely, it requires a plaintiff who has directly been wronged, rather than complaining about the legislation itself.”
I think you are right.
I am a former USC who relinquished, never did anything in my post relinquishment life to rat out my former USness in my home country even though it was not an issue then. It was more of being ashamed to not bring it up than anything else and frankly nobodys business as asking country of birth as thats discrimination.
My identification in my home country has no discernible US indica.
Post FATCA, I have opened some new financial accounts but on purpose avoid any FI that asks country of birth. I am simply trying to avoid problems as that appears to be wise. If someone asks about my accent, I ask them if they would ask what country in Africa I was from if my skin was black. That shuts people up toot sweet.
So because I have only been inconvenienced, I have not been harmed by FATCA.
My children would rightly now be termed accidental americans but they have ID without US indica and no accent!!
Nonetheless, I would support an EU effort.
@monalisa1776, we are forever tattooed.
Never ever use a FI that asks country of birth.
If you use a FI that asks country of birth on new accounts, think about closing and moving your old account. They do not deserve our business.
The good news is that you now can become a customer of NS&I so open an account with them!!
And whenever anyone asks you about place of birth call them flat out racist and ask them if they ask people where they are from in Africa!!
You are a British Citizen, you are a Commonwealth Citizen, you are a EU Citizen, no different than any other British Citizen.
@Badger, ” I can do nothing about the fatct of my birthplace. ”
There comes a time in life when you call a spade a spade.
If you went to open a bank account and were asked Do you sleep with men, women, both, none…..would you even answer the question?
Asking a person where they are from based on accent, meaning “sounding funny” is horrid and racist. That is no different than asking people of colour where they are from “originally.”
There MUST be another prong in this fight and calling this what it is and that is plain discrimination.
The farthest I can go in this and it takes a big gulp is that I could concede asking one question Are you a US Citizen?….maybe thats OK.
Asking Country of Birth to a self identified Irish Citizen resident in Ireland is pure racism and discrimination.
A few months ago I went to open a new account at a FI and they had a new application.
The first question was to list all nationalities. I answered that question honestly.
Next it asked about residency which I answered honestly.
Next it asked Country of Birth. I called it what it was, it was plain discriminatory to ask such a question.
The manager then backed down quickly and advised that question was not mandatory and I did not have to answer it having proven my identity with all manners of other documentation.
Front line staff need to be told what this is and it is racism. Asking country of birth is like asking who do you sleep with. Its offensive.
@Don
It’s not just FATCA. A lot of expats don’t know about the CBT gotchas. I know a compliant long-term expat (came to Britain in the 1960s) who seemed pretty clued up about taxation issues. Fortunately for him, putting everything he could into his non-working wife’s name helped with with both his British and his U.S. tax situations. BUT he has some things that can only be in his name, like his pension. His wife is British and he thought that she would be able to inherit the whole thing estate-tax free because he has nowhere near $5.3 million. In Britain, German, and France, a non-resident alien spouse can inherit the unitary amount ($60,000) + the annual gift tax. This is just $207,000 this year and his employment-linked insurance payment from his pension would be a lot more than that if he died tomorrow. (Canada and most other places have an even worse treaty, providing just a $60,000 exemption.
@Publius
But as I understand it, if your friend is still a US citizen, the $5.3m tax free amount still applies – it is irrelevant that he is not resident in the US and that his wife is a non resident non US citizen. The $60,000 figure is applicable to non resident non citizens, who have US based assets and are liable to US estate tax only on those assets. They get a tax free amount of $60,000. But I don’t claim to be an expert – your friend should take advice from someone who is definitely qualified to advise on this.
@uk17
Oops! I went back and read lots of articles and I do seem to have confused the estate taxes on non-resident alien estates in the U.S. (such as those of snowbirds) with the taxation of estates of non-resident alien spouse. If my acquaintance had over $5.3 million, it would be relevant that his wife is a non-resident alien since amounts over $5.3 would be subject to 40% tax. This aspect of the estate tax could be a problem for Americans abroad like Boris Johnson.