EIOPA(2021)0065306
EIOPA REGULAR USE
EIOPA-21/900
30 November 2021
Fausto Parente
Executive Director
Nicholas Lee
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject: Reply to your confirmatory application for access to
documents – 2021ATD60
Dear Mr. Lee,
I refer to your confirmatory application of 11 November 2021 in which you requested the review of
the position taken in EIOPA's letter of 28 October 2021 (EIOPA-21/786) by the ATD Coordinator.
The ATD Coordinator advised you in that letter that apart from a joint report of the European
Supervisory Authorities on automation in financial advice, no documents were found in EIOPA’s
possession that would correspond to the description given in your access to documents application.
As specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access applies only to existing
documents in the possession of EIOPA. Given that no such documents have been identified, EIOPA was
not in a position to fulfil your request.
SCOPE OF YOUR APPLICATION
In your access to documents application of 15 October 2021 you requested a list of all documents
pertaining to the United States Foreign Account Tax Compliance Act (FATCA) or contributing to
statements, guidelines and decisions referencing FATCA.
In your confirmatory application of 11 November 2021, in addition you refer to joint statements
concerning a regularly held "EU - US Joint Financial Regulatory Forum" that includes EIOPA as an
attendee, some of which discuss FATCA. In this context, you request EIOPA to ensure that all possible
responsive documents are included in EIOPA’s response, including preparatory documents that
contributed to the joint statements that EIOPA is party to.
Against this background, I understand that your request concerns:
(i)
a list of all documents pertaining to FATCA or contributing to statements, guidelines and
decisions referencing FATCA;
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Handling instructions for documents with security markings:
https://www.eiopa.europa.eu/sites/default/files/publications/other_documents/summary_eiopa_information.pdf
EIOPA | Westhafen Tower, Westhafenplatz 1 | 60327 Frankfurt | Germany
Tel: +49 69-951119-20
xxxx@xxxxx.xxxxxx.xx | https://www.eiopa.europa.eu
SUBJECT: REPLY TO YOUR CONFIRMATORY APPLICATION FOR ACCESS TO DOCUMENTS – 2021ATD60
EIOPA(2021)0065306
EIOPA REGULAR USE
(ii)
all possible responsive documents, including preparatory documents that contributed to
joint statements that EIOPA is party to.
EXAMINATION AND CONCLUSIONS UNDER REGULATION (EC) No 1049/2001
FINDINGS
With regard to your reference to the EU-US Joint Financial Regulatory Forum (EU-US Forum), EIOPA
carried out a thorough examination to identify any document that relates to FATCA in this context.
First, I note that the EU-US Forum is organized by the European Commission and the United States (US)
Treasury. EIOPA is normally invited by the European Commission as an observer to the EU-US Forum.
The joint statement that your referred to
(EU-US Financial Regulatory Forum – Joint statement – 29
March 2021 (eifr.eu)) (Joint Statement) was written and published by the European Commission and
US without EIOPA’s involvement.
EIOPA did not produce or commissioned for internal or external purposes any document concerning
FATCA in the context of the EU-US Forum. Therefore, EIOPA does not have in its possession any existing
EIOPA documents, including preparatory documents that contributed to the Joint Statement that could
be disclosed under your access to documents application.
Notwithstanding the above, we identified one document prepared by the European Commission and
US authorities which relates to the EU-US Forum held on 29 and 30 September 2021. The document
does not specifically relate to FATCA. Since this document is a third-party document in the meaning of
Article 4(4) of Regulation (EC) No 1049/2001, EIOPA duly consulted the European Commission.
Following this consultation and taking into account the expressed opposition of the European
Commission to disclosure, EIOPA carried out a thorough assessment with a view to assessing whether
an exception in paragraphs 1 and 2 of Article 4 of Regulation (EC) No 1049/2001 is applicable.
LEGAL FRAMEWORK
According to Article 4(1)-(3) of Regulation (EC) No 1049/2001 EIOPA must or may, as the case may be,
refuse to grant access to a document if such access is likely, specifically and actually, to undermine the
interest protected by the exception, and that the risk of that interest being undermined is reasonably
foreseeable and not purely hypothetical, unless in case of Article 4(2) and (3) there is an overriding
public interest in disclosure.
EIOPA may also take into account more than one of the grounds for refusal set out in Article 4 of
Regulation (EC) No 1049/2001. Subject to Article 4(6) of that Regulation, if only parts of a requested
document are covered by any of the exceptions, EIOPA releases the remaining parts of that document.
Based on the above mentioned rules, my conclusions are as follows:
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EIO
PA | Westhafen Tower, Westhafenplatz 1 | 60327 Frankfurt | Germany
Tel: +49 69-951119-20
xxxx@xxxxx.xxxxxx.xx | https://www.eiopa.europa.eu
SUBJECT: REPLY TO YOUR CONFIRMATORY APPLICATION FOR ACCESS TO DOCUMENTS – 2021ATD60
EIOPA(2021)0065306
EIOPA REGULAR USE
CONCLUSIONS
The identified document is not a document that was prepared or commissioned by EIOPA. It is a
document prepared by the European Commission in agreement with a third-country partner (US)
during their international cooperation in financial regulation. This document prepared the meeting of
the EU-US Forum on 29 and 30 September 2021 and was a result of confidential negotiations between
the organizers. The document does not specifically relate to FATCA but generally to the EU-US Forum.
Its disclosure would reveal the underlying working arrangements and internal strategic considerations
of the European Commission, thereby it would weaken its position towards its international partners
and its margin of manoeuvre. Consequently, it would directly and practically prejudice the work of the
EU-US Forum in the future. Moreover, its disclosure would have serious negative effects on the
involvement of EIOPA and other European Supervisory Authorities in the international dialogue on
financial regulatory topics led by the European Commission.
It follows that the disclosure of this document would be damaging to international relations and more
specifically it would harm very seriously the mutual bilateral trust with the US authorities, which is
essential for the proper functioning of the EU-US Forum. Quality relations with the US authorities as
well as mutual trust are paramount for this cooperation.
The appropriate and necessary level of transparency was ensured with the publication of the Joint
Statement after the meeting, while preparatory works and coordination between the European
Commission and the US authorities shall be protected in view of ensuring high-level mutual trust and
open discussions in sensitive matters. It is the public interest of the European Union, including the
European Commission and EIOPA to maintain and continue this important international cooperation
with the US authorities.
The third indent of Article 4(1)(a) of Regulation (EU) No 1049/2001 stipulates that the disclosure of a
document shall be refused where it would undermine the protection of international relations. In this
regard, Union courts have acknowledged that the EU institutions enjoy a wide discretion when
considering whether access to a document may undermine that public interest.
I consider that the case at hand fulfils the condition of that exception, notably, the disclosure of the
third-party document identified in the context of the EU-US Forum would specifically and actually,
undermine the interest in the protection of international relations under the third indent of Article
4(1)(a) of Regulation (EC) No 1049/2001. A refusal to disclose this specific document is therefore fully
warranted on the grounds of that Regulation.
MEANS OF REDRESS
I draw your attention to the means of redress available against this decision. According to Article 72(3)
of Regulation (EU) No 1094/2010 this decision may be the subject of a complaint to the European
Ombudsman or of proceedings before the Court of Justice of the European Union, following an appeal
3/4
EIO
PA | Westhafen Tower, Westhafenplatz 1 | 60327 Frankfurt | Germany
Tel: +49 69-951119-20
xxxx@xxxxx.xxxxxx.xx | https://www.eiopa.europa.eu
SUBJECT: REPLY TO YOUR CONFIRMATORY APPLICATION FOR ACCESS TO DOCUMENTS – 2021ATD60
EIOPA(2021)0065306
EIOPA REGULAR USE
to the Board of Appeal, as appropriate, in accordance with the conditions laid down in Articles 228 and
263 of the Treaty on the Functioning of the European Union respectively.
Yours sincerely,
4/4
EIO
PA | Westhafen Tower, Westhafenplatz 1 | 60327 Frankfurt | Germany
Tel: +49 69-951119-20
xxxx@xxxxx.xxxxxx.xx | https://www.eiopa.europa.eu