Legal and constitutional issues related to Information Exchange

by

Thierry Afschrift

Professor Université Libre de Bruxelles

Lawyer

(Bars of Brussels, Antwerp, Luxembourg, Geneva, Fribourg, Madrid and Hong Kong)

Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014

I. POSSIBLE PROBLEMS CONCERNING THE RESPECT OF HUMAN RIGHTS

- as resulting from the constitutional texts of certain states

- as embodied in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, as well as in the other treaties protecting these rights.

II. SUBJECT OF THE POSSIBLE CONFLICT

- right to privacy

- rules on the protection of personal data

- principles of equality and non discrimination

- rights of the defence

Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014

III. THE RIGHT TO PRIVACY

Problem: The access to banking data allows the State to retrieve information concerning all aspects of private life (political and religious dues and contributions, sentimental links, consumption pattern, presence in specific places, etc.)

Relevant texts: 1. Article 8 ECHR

Have the conditions to derogate (art. 8.3.) been fulfilled? Is the measure “necessary” to the well-being of the country (and not of the State)?

2. Articles 7 and 52,§1 of the Charter of Fundamental Rights of the European Union

Has the principle of proportionality been respected?

Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014

IV. THE PROTECTION OF PERSONAL DATA

Problem: Personal data retrieved from the exchange of information will be stored by the States and “cross-compared” to other information

Relevant text: Article 8 of the Charter of Fundamental Rights of the European Union : “Everyone has the right to the protection of personal data concerning him or her”

Questions: To what point States may cross-compare this information concerning:

- data received from the automatic exchange of information (or FATCA)?

- data (more complete) resulting from exchange of information on demand?

Can States use this information for other than tax related?

Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014

V. THE PRINCIPLES OF EQUALITY AND NON DISCRIMINATION

- Treaties do not provide an obligation for the States to eliminate bank secrecy at national level

- Certain countries have set forth restrictive access and eligibility conditions for their national administrations

- These conditions are usually not required for Foreign States

- This may lead to discrimination based on a residence criterion

Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014

VI. THE RIGHTS OF DEFENCE

- In the frame of the exchange of information on demand, certain countries require that the taxpayer is not notified of the existence of such a demand

- Certain countries consider such notification, as well as the possibility of judicial or administrative recourse, prior to the actual exchange of information, as necessary for the respect of the rights of defence

Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014