Posted on August 7, 2020 by USCitizenAbroad Posted in Issues regarding US persons abroad 6 Comments From @SophieintVeld pic.twitter.com/nsqirKOzIB — U.S. Citizen Abroad (@USCitizenAbroad) August 7, 2020 As per a request from Tim Smyth … Share this:TwitterFacebookEmailLike this:Like Loading...
My initial comment which I am going to follow up more on later is that the EU Commission is now basically arguing the “Savings Clause” provisions of the different bilateral tax treaties between individual EU member states and the US now in fact override any contrary provisions of EU law whether is be GDPR or the Payment Accounts Directive.
Not to downplay the overall seriousness of the situation (data protection and privacy issues, denial of more sophisticated investment services) but I find it interesting that the letter basically confirms our anecdotal evidence, that only in very few cases have EU citizens been refused basic bank accounts due to US citizenship.
What EU and other public officials presumably know but don’t particularly wish to say out loud is that the only thing FATCA requires of an (identified) Accidental American is that they provide their bank with an SSN or a CLN. Neither of which are necessarily easy to procure, of course, but the former is at least cheaper than the latter. Nobody is forced to enter the US tax system – though there’s great risk of being persuaded to do so.
Here are some more thoughts of mine.
EU Commissioner current FATCA position
1. Existing Tax Treaty “Savings Clauses” and FATCA bilateral IGA’s as enacted into law by national parliaments take precedence over GDPR and Payment Account Directive.
2. There is no specific text in GDPR or the PAD that expressly overrides savings clauses and FATCA IGA’s.
3. EU commission appears to have taken a political gamble that there is not majority support in the European Parliament to declare citizenship based taxation null and void(It did not technically do so in the resolution they voted on two years ago).
4. On the otherhand when in conflict there should be a strong legal presumption that if national law such as the “Savings Clauses” and FATCA are in direct conflict with EU level law such as the GDPR and PAD and in particular more “recent” EU level law that EU level law should prevail. In this case the Commission seems to be taking an opposite view that the FATCA IGA’s should be presumed to prevail over the GDPR and PAD short of express legislative language in the GDPR and PAD to contrary
5. While as alluded to above I believe the Commission has taken an incorrect legal position but one that has been getting some judicial deference as seen in recent UK and French court decisions.
Below is a link to the Michelliti case on dual nationality that the EU Commission seems to be implying that FATCA and CBT comply with.
The commissioner does note that an EU citizen must be treated as an EU citizen. In a sense he dares people with banking issues to submit complaints. It is disingenuous of course because many people such as myself have had banking issues and not submitted complaints because they just found some way to move on. Anyway, while the EC continues to avoid the subject the issue refuses to die out and we should by all means continue to apply pressure.
Far too much focus on a “bank account with basic features”.
How about the EU guarantee all EU residents full access to all financial products and protect them from the predations of the nation they are supposed to be free to leave?
Yea, I know….