Dutch champion of 'accidentals' fires back at EU commissioner over FATCA impact assessment

As reported, Gentiloni, who succeeded Pierre Moscovici as head of the European Commission for Economic and Financial Affairs in December, declared among other things that, having "examined the alleged infringements" of these "accidentals'" rights to have a basic bank account – as a result of the way EU banks are obliged to treat such clients under the existing laws setting out their role in implementing a 2010 American anti-tax evasion law known as FATCA – the commission had found "no evidence of the existence of [any] infringement".

Gentiloni's response to French MEP François-Xavier Bellamy's question is referencing a legal right to a bank account that is currently granted to all EU citizens by the bloc’s 2014 Payment Accounts Directive.

Gentiloni maintains that this right is not being compromised – as some accidental Americans groups have been claiming – by certain EU banks that have begun suspending and/or threatening to suspend, close and not open new accounts for those “accidentals” whom the U.S. considers to be Americans and thus U.S. taxpayers, who fail to provide for them a U.S. “Tax Information Number” (TINs) such as a Social Security number.

Although Americans obtain these TINs as a matter of course, individuals born in the U.S. but raised elsewhere typically do not, and would need to enter the U.S. tax system in order to get them – which, considering themselves not to be American but citizens of the countries in which they now live and typically have since infancy, many are reluctant to do. This is because the U.S., unlike most other countries, taxes on the basis of citizenship, and for this reason expects all those it regards as its citizens to file tax returns and potentially pay U.S. tax all their lives, wherever they happen to live. 

Gentiloni's relatively brief response to Bellamy's question is seen as a surprising and potentially significant change in direction on the part of EU lawmakers. Less than two years ago, for example, the European Parliament unanimously approved a resolution supporting Europe’s “accidentals”, by a resounding 470 votes to 43, with 26 abstentions.

As reported, that resolution called on EU member states as well as the European Commission to re-open negotiations with the U.S. over the way it enforces FATCA.

A number of prominent European lawmakers have spoken out publicly on behalf of the accidentals over the last couple of years, often in the company of Fabien Lehagre, a Paris-based French citizen who was born in the U.S. and is therefore himself an accidental, who founded l’Association des Américains Accidentels (AAA). 

Last November, the European Parliament's Petitions Committee held a two-and-a-half-hour hearing on the topic of FATCA, which saw a procession of European citizens unleashing their frustrations over the fact that the U.S. insists on seeing them as Americans as well.  

'How did Commission 
arrive at its conclusion'

In a letter fired off early on Thursday, a copy of which may be viewed on her website, in 't Veld, who is Dutch, demanded to know "in detail" how the Commission had arrived at its conclusion that "no evidence of violation of the EU legal framework in the national measures transposing the [Payments Accounts Directive]". 

For example, "has the Commission asked the [EU] Member States about financial institutions threatening to close down accounts of EU citizens that cannot provide a U.S. Taxpayer Identification Number (TIN); if so, what was their answer, specified per Member State? If not, why not?", in 't Veld asks Gentiloni, in her letter.

She went on to point out that as of Jan. of this year, new European Data Protection Board guidelines came into force that she suggests could present problems for the existing intergovernmental agreements being used by EU states to carry out the implementation of the U.S.'s FATCA legislation, such as their requirement that "any transfer of personal data to third countries or international organisations" meet certain conditions, and obligations having to do with transparency. 

In her letter in 't Veld also questions Gentiloni's statement that "nationality ties, even when acquired by accident" come with "reciprocal rights and obligations, including the payment of taxes in the United States for American citizens".

"Does this imply that the Commission considers that accidental Americans are U.S. citizens, rather than EU citizens?" she writes.

"Does the Commission apply this logic – that citizenship of a third country takes precedence over EU citizenship – also to other EU citizens with dual or multiple citizenship, accidental or not?

"Does the Commission consider that EU citizens with dual or multiple citizenship deserve less protection of their rights by the EU?" 

If this were indeed to be the case, this would surely be an incentive for other countries to introduce citizenship-based taxation, would it not, she asks. 

Finally, echoing comments she has made before on the subject of accidental Americans and the way Europe treats them, in 't Veld asks Gentiloni whether the European Commission values its relationship with the US "more than [it does] the rights of EU citizens, particularly in the situation of FATCA".

In 't Veld concludes her letter by calling on Gentiloni and the European Commission – "which has the role of protecting EU citizens’ rights" – to "finally takes the problems severely affecting Accidental Americans seriously, and act".

Passionate fighter 

In 't Veld doesn't have American roots herself, nor, she says, even any friends or relatives who are accidentals,apart from those she's met as a result of her speaking out on their behalf.

The reason she does speak out on the issue, she has said, is because she is passionately "annoyed by injustice" generally, and in this instance, by what she regards as "the unacceptable treatment" of people who are in fact EU citizens, but whom the EU seems to struggle to stand up for because of its "submissive" nature with respect to the U.S.

As reported, almost exactly a year ago today she wrote to Gentiloni's predecessor, Moscovici, to urge him to ensure that the European Commission for Economic and Financial Affairs started "taking [the problems that Accidental Americans are facing in Europe because of FATCA] seriously,” and stopped "hiding behind excuses."

She was also a prominent speaker during last year's FATCA hearing in Brussels, drawing applause from the room when she referred in passing to how "the European Commission and most of the [EU] member state governments put transatlantic relations over the interests of EU citizens".

A video of that hearing is still available online, on the European Parliament's multi-media website, by clicking here.