Fabien Lehagre of l’Association des Américains accidentels has provided an update on the Belgian FATCA IGA case, which includes:
“The Belgian State has appealed the Belgian data protection authority (DPA) decision ordering the prohibition for the Belgian tax authority to process personal data of accidental Americans in the context of FATCA and to transfer the data to the IRS, the US tax authority. An introductory hearing took place at the Brussels Court of appeal yesterday [29 June 2023]. The Court of appeal decided to suspend the effects of the Belgian DPA decision. . . . ”
Fabien notes that, “this prohibition . . . is now suspended by the Brussels Court of Appeal [pending the appeal decision]. The main reasons for doing so are to avoid the risk of damaging Belgium’s international reputation towards the United States and the diplomatic relationship with the United States as well as the difficulties for FIs who can no longer meet their FATCA obligations.”
Key Dates:
24 May 2023. Decision. Press Release. “The Belgian Data protection authority today declared unlawful, and decided to prohibit, the transfers of personal data of Belgian ‘Accidental Americans’ by the Belgian Federal Public Service Finance (FPS Finance) to the US tax authorities under the intergovernmental FATCA agreement.”
30 Jun 2023 From Fabien’s Update. “The Belgian financial institutions (FI) must, in principle, transfer FATCA relevant data to the Belgian tax authority for the fiscal year 2022. As the Belgian DPA prohibited the Belgian tax authority to process these data, this also means that the FIs cannot transfer the data to the Belgian tax authority as reception of these data by the latter also constitutes a form of prohibited processing.”
30 Sep 2023. “Belgian tax authority is supposed to transfer the data to the IRS.”
15 Nov 2023. “Pleadings on the merits are scheduled for 15 November 2023.”
Why am I not surprised?
I’m not surprised either. Nevertheless it is interesting to note that the Belgian government does not wish to respect data protection laws that it has wanted (through EU membership) and implemented.
When the government does not respect its own laws it becomes difficult to have others respect them.
The next time Google or Facebook or such face a billion-dollar fine for data protection issues, they can point to the Belgian govt’s disregard for those same laws.
And in any case it remains somewhat comforting to see governments squirm uncomfortably because they must, yet cannot, obey two different legal systems, just as US persons must (but cannot).
As for Democrats Abroad drumming up overseas support, I am seriously considering, for the first time in memory, voting Republican. Not that I believe that will help, but I do believe Republicans will not make the issue worse. Single issue voting, anyone?
“this prohibition . . . is now suspended by the Brussels Court of Appeal [pending the appeal decision]. The main reasons for doing so are to avoid the risk of damaging Belgium’s international reputation towards the United States and the diplomatic relationship with the United States as well as the difficulties for FIs who can no longer meet their FATCA obligations.”
Oh really, there’s a bloody shocker.