The Association of Accidental Americans (AAA) filed, on 22 December 2020, two simultaneous complaints in Luxembourg and Belgium, demanding an immediate halt to the transfer of European citizens’ personal data to the United States.
Under the U.S. Foreign Account Tax Compliant Act (FATCA) of 2010, financial institutions all over the world are required to send the U.S. administration the tax data of all customers considered to be « U.S. Persons ». These include « Accidental Americans, » or people with little or no links to the United States.
Most countries have signed bilateral intergovernmental agreements (IGAs) with the United States to implement the legislation. In most cases, those countries’ tax authorities are in charge of transferring the data.
The transfers are massive and automatic. This means that the financial institutions and tax authorities of European Union (EU) member states are violating European and national legislation on the protection of personal data and privacy. The violation of these fundamental rights is particularly detrimental to Accidental Americans, who did not choose to be American citizens.
« The bottom line is that the European Member States violating European and their own national legislation in order to enforce that of the United States, » says AAA president Fabien Lehagre. « This is just one example of the pernicious impact of the extraterritoriality of U.S. law. »
The AAA has already asked the European Commission to initiate an infringement procedure against France, since the country’s highest administrative court, the Council of State, refused to recognize the illegality of these transfers.
The international law firm NautaDutilh is representing the AAA in its demand for Luxembourg and Belgium to halt immediately the transfer of personal data to the United States. In Belgium, NautaDutilh filed a complaint for the Association of Accidental Americans of Belgium (AAAB) with the data protection authority, and a pre-complaint with the country’s tax authorities. It filed a similar pre-complaint for the French AAA with the Luxembourg tax authorities.
If the authorities in either country refuses to halt these transfers, the associations will take the cases to court— the Administrative Court in Luxembourg and the Council of State in Belgium . The likely outcome would be for these courts to present preliminary questions to the Court of Justice of the European Union.
- Fabien Lehagre, Association des Américains Accidentels (AAA) | firstname.lastname@example.org
- Vincent Wellens, NautaDutilh | email@example.com
Compliments of NautaDutilh – a member of the EACCNY.