FATCA: the Market Court refers 13 preliminary questions to the CJEU

The Market Court has decided to submit 13 preliminary questions to the Court of Justice of the European Union (CJEU) in the context of the FATCA case. This decision seeks to obtain essential clarification on the conformity of the agreement and on the legal framework applicable to data transfers to the United States.

Background

In 2023, in its Decision 61/2023, the Litigation Chamber found that the transfers of personal data of Belgian “accidental Americans” from the FPS Finance to the U.S. tax authorities under the intergovernmental FATCA agreement were unlawful and prohibited them. According to the BE DPA, these processing operations did not comply with several principles of the GDPR, notably those relating to data transfers outside the EU.

Procedural history

• The FPS Finance lodged an appeal against Decision 61/2023 before the Market Court.
• By a judgment of 20 December 2023 (2023/AR/801), the Market Court annulled that decision and referred the case back to the Litigation Chamber, composed differently, for a new ruling.
• In response, the Litigation Chamber adopted Decision 79/2025 on 24 April 2025.
• The FPS Finance also lodged an appeal for annulment against this new decision.
• Today, the Market Court issued an interlocutory judgment and decided to refer 13 preliminary questions to the CJEU.

Preliminary questions referred to the CJEU

A first set of questions seeks to determine whether an agreement such as FATCA is compatible with EU law as applicable before 24 May 2016, in particular with Directive 95/46/EC — especially the principles of purpose limitation, data minimisation and storage limitation enshrined therein — as well as with the Charter of Fundamental Rights of the European Union.

The Market Court also asks the CJEU to assess whether such an agreement complies with Article 26(1)(d) or Article 26(2) of Directive 95/46/EC, and to clarify any conditions relating to appropriate safeguards.

A second set of questions concerns Article 96 of the GDPR (which provides that international agreements concluded before the GDPR remain in force insofar as they complied with EU law applicable before 24 May 2016): what is its material scope? Is the controller responsible for demonstrating that the conditions of Article 96 are met? Is Article 96 GDPR acceptable insofar as it allows a potentially permanent transitional regime as described in Decision 79/2025 (see in particular Question 7)? And what is the role of the national judge and the measures they may need to take?

Finally, a third set of questions focuses mainly on the framework for transfers to third countries under the GDPR. The Market Court seeks clarification on the absence of an adequacy decision and the reasons for this, as well as on the scope of Article 46 GDPR, in particular with regard to appropriate safeguards. The Court concludes its list of questions by referring a question concerning Article 49(1)(d) GDPR, thus reviewing the entire “cascade” mechanism laid down in Chapter V of the GDPR.

The BE DPA welcomes the fact that these important questions, which have a European dimension, are now being submitted to the CJEU.

The full judgment of the Market Court will be published very shortly.