List of all documents pertaining to FATCA

Nicholas Lee made this access to documents request to European Securities and Markets Authority

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The request was refused by European Securities and Markets Authority.

Dear European Securities and Markets Authority,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting a list of all documents pertaining to the United States Foreign Account Tax Compliance Act or contributing to statements, guidelines, and decisions referencing FATCA.

Please note that this list should also include documents referencing member state / supervisory authority opinions, views, and commentaries. If necessary, information on authorship and national origin may be redacted to avoid undue external pressure, in line with the sentiment and intentions expressed in EU Ombudsman decision 386/2021 (https://www.ombudsman.europa.eu/en/decis...) with regards to right of access requests to another European Union body.

Yours faithfully,
Nicholas Lee

Info ESMA, European Securities and Markets Authority

Dear Sir or Madam,
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We value your input and question raised on this issue. As with all
relevant questions that are submitted to us by external sources, we have
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guidance is needed.
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Regards,
ESMA

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Supervisor ([3][email address]).

References

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1. https://www.esma.europa.eu/data-protection
2. mailto:[email address]
3. mailto:[email address]

Dear European Securities and Markets Authority,

I write further to the Information Request that I submitted on October 15 2021 whose receipt was acknowledged by ESMA on the same day.

As this was an information request under Regulation 1049/2001, the information request should have been
processed in a timely manner within the 15 working days permitted under the regulation. The stated timeline of "two months" appears to exceed what is permissible.

Please process this information request completely and promptly.

Yours faithfully,
Nicholas Lee

Chrysi Raftogianni, European Securities and Markets Authority

Dear Mr Lee,

We hereby acknowledge receipt of the confirmatory applications that you
submitted to ESMA on 10 November 2021 in relation to documents pertaining
to “FATCA; PETI Petition 0323/2021; PETI Petition 0394/2021; PETI Petition
1470/2020; PETI Petition 1088/2016”.

We apologise for any inconvenience caused due to the absence of response
to your initial applications. Please rest assured that actions have been
taken to prevent such a situation from reocurring.

In accordance with Article 8 of Regulation (EC) No 1049/2001, ESMA will
provide you with a written response within 15 days.

 

Kind regards,

Chrysi Raftogianni

 

Any email from the European Securities and Markets Authority (ESMA) is
sent in good faith, but shall neither be binding nor construed as
constituting a commitment by ESMA except where provided for in a written
agreement. This email is intended only for the use of the recipient(s)
named above. Any unauthorised disclosure, use or dissemination, either in
whole or in part, is prohibited. If you have received this email in error,
please notify the sender immediately via email and delete this email from
your system.  
This communication and any attachments may contain personal information.
ESMA processes personal data in line with Regulation (EU) 2018/1725 and
Decision ESMA40-133-716. For more information, please see ESMA's  Data
Protection Statement on [1]https://www.esma.europa.eu/data-protection. In
case of queries, please consult ESMA's Data Protection Officer
([2][email address]). You may also contact the European Data Protection
Supervisor ([3][email address]).

References

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1. https://www.esma.europa.eu/data-protection
2. mailto:[email address]
3. mailto:[email address]

Dear Chrysi Raftogianni,

I write further to the acknowledgement of the November 10th Confirmatory Application concerning my information request, which has not been handled within the deadlines provided for under Regulation 1049/2001, despite assurances that the Confirmatory Application would not be delayed like the original request was.

The original information request was filed in October, and I am growing particularly concerned by the combination of slow handling and extensive public reports of short document retention policies.

Please provide a clear, comprehensive, and transparent status update concerning the request and detailing the causes for the delay. Please take care to ensure that any documents responsive to the information request are not destroyed.

Yours sincerely,
Nicholas Lee

Natasha Cazenave, European Securities and Markets Authority

1 Attachment

Dear Mr Lee,

We are writing with reference to your confirmatory applications dated 10
November 2021, and related email dated 30 November 2021, by which you
asked ESMA to give you access to documents pertaining to (a) PETI Petition
1470/2020; (b) PETI Petition 0394/2021; (c) PETI Petition 0323/2021; (d)
PETI Petition 1088/2016, as well as to provide you with (e) “a list of all
documents pertaining to the United States Foreign Account Tax Compliance
Act or contributing to statements, guidelines, and decisions referencing
FATCA”.

As regards documents mentioned under letters (a), (b), (d) and (e) above,
please note that ESMA does not possess any such documents.

With respect to documents referred to in letter (c), which concerns
Petition No 0323/2021 to the European Parliament by G.L. (French) on the
alleged infringement of certain rights of bi-national EU/US citizens
arising from FATCA, and which amongst other  requests the European
Parliament to mandate ESMA to start an investigation against several NCAs,
kindly note that ESMA has identified internal notes and other intermediate
preparatory materials that are either of purely administrative nature or
contain legal advice and preliminary views. These are all to be considered
confidential documents, which contain sensitive background information and
opinions for internal use only, which cannot be disclosed to you for the
following reasons:

o Some of the documents form part of internal consultations and
deliberations held between members of ESMA Staff in the context of
correspondence received by ESMA in relation to its powers to
investigate possible breaches of Union law falling under its remit
(Article 17 of Regulation (EU) No 1095/2010). Free and diverse
exchange of information as well as expression of opinions within ESMA
is an essential part of the relevant decision-making process, ensuring
that the matters to be considered have been exhaustively assessed and
addressed from all relevant perspectives. Therefore, the exception
laid down in the first sub-paragraph of Article 4(3) of Regulation
(EC) No 1049/2001 concerning the protection of ESMA’s decision-making
process applies.

 

o Some of the documents to which you request to have access were
prepared, transmitted and exchanged in the context of the preliminary
investigatory activity exercised by ESMA on the basis of the powers
conferred on it by Regulation (EU) No 1095/2010 and under the
professional secrecy obligations laid down in Article 70 of this
Regulation. Professional secrecy is essential to ensure that ESMA
staff is protected from undue influence in the performance of their
tasks, including the conduct of independent assessments of the facts
available to them in order to consider, in particular, assessing the
information received in relation to Article 17 of Regulation (EU) No
1095/2010. Disclosure of such confidential documents would also
jeopardize ESMA’s current and future investigation work, which relies
in particular on its ability to receive confidential information (on
the basis that it will remain confidential) from complainants and
National Competent Authorities about the investigated matters. ESMA
would be incapable of properly carrying out its investigatory tasks if
relevant parties such as National Competent Authorities providing
information to it had to expect that sensitive information would be
made available to the general public afterwards. This would make it
extremely difficult, if not impossible, for ESMA to collect the
information needed for a proper assessment of a case in the context of
a preliminary investigation. Therefore, in light of the above, the
exception laid down in the third indent of Article 4(2) of Regulation
(EC) No 1049/2001 concerning the protection of ongoing investigations
applies too.

 

o Other requested documents contain legal advice prepared in order to
enable ESMA’s Chair to take a well-informed, duly substantiated and
motivated decision. ESMA’s Senior Management would not have received
such thorough information as basis for the decision-making referred to
above, should the drafters of the relevant documents have envisaged
the possibility that such documents would become public at some point.
Hence, ESMA’s capacity of receiving frank, objective and
comprehensible legal advice would have been seriously undermined in
the case at stake. Free exchange of views is essential in the
particularly sensitive context of assessing the information received
in relation to Article 17 of Regulation (EU) No 1095/2010. Therefore,
in light of the above, the exception laid down in the second indent of
Article 4(2) of Regulation (EC) No 1049/2001 concerning the protection
of legal advice applies too.

 

Moreover, in relation to the application of the three exceptions referred
to above, and based on the information provided in your request, there
does not seem to be sufficient elements to indicate that there is
nonetheless an overriding public interest in disclosure.

Finally, I would like to draw your attention to Article 72(3) of
Regulation (EU) No 1095/2010 which states that decisions taken by the
Authority pursuant to Article 8 of Regulation (EC) No 1049/2001 may be the
subject of a complaint to the Ombudsman or of proceedings before the Court
of Justice of the European Union, following an appeal to the Board of
Appeal, as appropriate, in accordance with the conditions laid down in
Articles 228 and 263 TFEU respectively.

Yours sincerely,

Natasha Cazenave

 

Natasha Cazenave

 Executive Director

European Securities and Markets Authority (ESMA)

201-203, rue de Bercy, 75012 Paris – France

Tel:  + 33 1 73 01 82 17

Cell : +33 6 17 27 04 18

Email: [1][email address]

 

Any email from the European Securities and Markets Authority (ESMA) is
sent in good faith, but shall neither be binding nor construed as
constituting a commitment by ESMA except where provided for in a written
agreement. This email is intended only for the use of the recipient(s)
named above. Any unauthorised disclosure, use or dissemination, either in
whole or in part, is prohibited. If you have received this email in error,
please notify the sender immediately via email and delete this email from
your system.  
This communication and any attachments may contain personal information.
ESMA processes personal data in line with Regulation (EU) 2018/1725 and
Decision ESMA40-133-716. For more information, please see ESMA's  Data
Protection Statement on [2]https://www.esma.europa.eu/data-protection. In
case of queries, please consult ESMA's Data Protection Officer
([3][email address]). You may also contact the European Data Protection
Supervisor ([4][email address]).

References

Visible links
1. mailto:[email address]
2. https://www.esma.europa.eu/data-protection
3. mailto:[email address]
4. mailto:[email address]