by Thierry Afschrift Professor Université Libre de Bruxelles Lawyer Bars of Brussels Antwerp Luxembourg Geneva Fribourg Madrid and Hong Kong Joint EBFFBF Tax Conference 2014 Paris 22 September 2014 ID: 535654
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Legal and constitutional issues related to Information Exchange
byThierry AfschriftProfessor Université Libre de BruxellesLawyer (Bars of Brussels, Antwerp, Luxembourg, Geneva, Fribourg, Madrid and Hong Kong)
Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014 Slide2
I.
POSSIBLE PROBLEMS CONCERNING THE RESPECT OF HUMAN RIGHTSas resulting from the constitutional texts of certain statesas 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 privacyrules on the protection of personal dataprinciples of equality and non discriminationrights of the defence
Joint EBF-FBF Tax Conference 2014 - Paris, 22 September 2014 Slide3
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 Slide4
IV.
THE PROTECTION OF PERSONAL DATAProblem: 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 Slide5
V. THE PRINCIPLES OF EQUALITY AND NON DISCRIMINATION
Treaties do not provide an obligation for the States to eliminate bank secrecy at national levelCertain 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 Slide6
VI.
THE RIGHTS OF DEFENCEIn the frame of the exchange of information on demand, certain countries require that the taxpayer is not notified of the existence of such a demandCertain 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