Answer given by Mr Šemeta on behalf of the Commission
The Commission is aware of this problem which can also be encountered by EU nationals wishing to open bank accounts in Member States where they are not resident.
Banks have the right, under the contractual freedom principle, to decide with whom they want to contract. They can in any event refuse clients for sound commercial reasons.
However the Commission believes that financial institutions should not deny persons access to financial services merely because they would then face due diligence and reporting obligations. The Commission has recently adopted a proposal(1) that would oblige the Member States to ensure that consumers legally resident in the EU are not discriminated against by reason of their nationality or place of residence when applying for or accessing a payment account. To this end, the directive obliges Member States to ensure that at least one payment service provider in their territory offers a payment account with basic features to consumers legally resident in the Union, irrespective of the consumer's EU place of residence or nationality. This proposal may help to address the difficulties that not just US citizens who are resident within the EU but also EU nationals may currently encounter in opening bank accounts.
Moreover, the FATCA Model agreements include, in Annex II, a clause that would forbid a financial institution wishing to benefit from the ‘deemed-compliant’ status from having ‘discriminatory policies or practices’ in respect of US citizens(2).
That non-discrimination clause is included in Annex II of both Model 1 and Model 2, at number 10, subsection A (‘Financial Institution with a Local Client Base’) of section III (‘Small or Limited Scope Financial Institutions that Qualify as Deemed-Compliant FFIs’). It provides that the Financial Institution must not have policies or practices that discriminate against opening or maintaining Financial Accounts for individuals who are Specified U.S. Persons and residents of [the FATCA Partner country]. See http://www.treasury.gov/resource-center/tax-policy/treaties/Pages/FATCA.aspx