We have recently been informed that, according to paragraph 1(4) of the terms and conditions of Swedbank’s investment deposit agreement(1),
‘The Bank does not offer or sell investment deposit to US persons and the Client hereby confirms to the Bank that it is not a US person. The Bank has the right to terminate the agreement immediately if the Client is a US person or becomes a US person during the term of the agreement. The Client undertakes to inform the Bank immediately of any circumstances which could cause the Client to be qualified as a US person. The Bank can also use public information when assessing the qualification of a client as a US person. A legal person can be a US person, among other things, when it is established in the US, acts in accordance with US law, has a US postal address or has some business activities in the US. A representative office or a branch of a foreign legal person can be qualified as a US person on same conditions. A natural person can be a US person, among other things, when it is considered a US resident for tax purposes or if the person stays in the US for some time for educational or work purposes. A person can be considered a US person also under other conditions deriving from US laws.’
Does the Commission consider these terms and conditions set forth by Swedbank to be related to the recently adopted US Foreign Account Tax Compliance Act (FATCA), the ongoing development of intergovernmental agreements with regard to it and the legal uncertainty for foreign financial institutions with regard to the extraterritorial application of the FATCA?
Is the Commission aware that the extraterritorial effect of the FATCA could prompt banks on EU territory to refuse US clients?
Does the Commission consider this practice to be in violation of the general principle of equal treatment and non-discrimination, or of any provision of the EU Treaties?
Is the Commission aware that the definition of ‘US person’ may apply to EU citizens, meaning that EU citizens living in the EU could be directly affected by a US law?