Answer given by Mr Gentiloni on behalf of the European Commission
11.1.2022
The Commission has regular contacts with the United States (US) authorities on Foreign Account Tax Compliance Act (FATCA), notably in view of obtaining tangible improvements[1] in the situation of so-called ‘Accidental Americans’ concerned by the application of the bilateral agreements concluded by Member States.
However, as the EU is not a party to these agreements, the Commission is not entitled to discuss or negotiate amendments to them with the US.
Through the directive on Administrative Cooperation[2], the EU has implemented within its territory the internationally agreed Common Reporting Standard (CRS) for reporting of financial account information.
Any possible negotiation on behalf of the EU with the US for replacing the existing bilateral FATCA agreements would require not only a unanimous Council Decision mandating the Commission to engage in such negotiations, but also the preparedness of the US to adhere to CRS in place of FATCA.
As regards the monitoring and enforcement of EU data protection rules, these fall under the competence of national data protection authorities (DPAs) and courts.
While the European Data Protection Board (EDPB) confirmed in the past that there had been no occasions where the DPAs ‘had to prohibit the processing and transfer of personal data to the US under the FATCA regime’[3] , they continued to assess the impact of such agreements on data protection rules, including as part of ongoing national investigations.
This also includes advising and assisting the Member States in their assessment of international agreements concluded prior to the General Data Protection Regulation[4] to determine whether further alignment with EC law is needed[5].
The Commission is in contact with the Member States and the EDPB on this file.
- [1] For instance, making easier obtaining a US Tax Identification Number from abroad and clarifying that individual accounts have not to be automatically closed by banks if that Number is missing.
- [2] Council Directive 2011/16/EU of 15 February 2011, as amended by Council Directive 2014/107/EU of 9 December 2014 and, lastly, by Council Directive (EU) 2021/514 of 22 March 2021.
- [3] Letter of the article 29 Working Party of 8 February 2018: https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=614217
- [4] https://eur-lex.europa.eu/eli/reg/2016/679/oj
- [5] See the statement of the EDPB of 13 April 2021, available at https://edpb.europa.eu/our-work-tools/our-documents/other-guidance/statement-042021-international-agreements-including_en