This is in response to a highly significant judgment of the Court of Justice of the European Union (the “ECJ”) on 22 November 2022 (in cases C-37/20 and C-601/20), which ruled that public access to information on companies’ beneficial owners “constitutes a serious interference with the fundamental rights to respect for private life and to the protection of personal data”.

This judgment conflicts with Article 30(5) of Directive (EU) 2015/849 (the “2015 Directive”) (as amended by Article 1(15)(c) of Directive (EU) 2018/843 (the “2018 Directive”)), which requires Member States to ensure that information on the central beneficial ownership register is accessible to “any member of the general public”, and thus with regulation 25 of the European Union (Anti-Money Laundering: Beneficial Ownership Of Corporate Entities) Regulations 2019 (the “Regulations”), which implement the Directives in Ireland.

Background

The judgment arose from a request for a preliminary ruling from the tribunal d’arrondissement de Luxembourg, in relation to two actions, brought by a Luxembourg company and by the beneficial owner of such company, respectively. These parties took issue with Article 1(15)(c) of the 2018 Directive, which amends Article 30(5) of the 2015 Directive so as to require EU Member States to ensure that (among others) the general public have access to information on beneficial ownership, and provides that at a minimum, the general public must be enabled to access the name, the month and year of birth, the nationality and the country of residence of the beneficial owner as well as the nature and extent of the beneficial interest held. Article 30(5) (as amended) allows Member States to restrict access to such information, but only in exceptional circumstances.

Decision

The court considered the above in light of Article 7 of the Charter of Fundamental Rights (the “Charter”), which guarantees everyone the right to respect for his or her private and family life, home and communications, and Article 8 thereof, which confers on everyone the right to the protection of personal data concerning him or her.

The ECJ noted that under Article 30(5) (as amended), information relating to beneficial owners could be accessed by a potentially unlimited number of persons, including those who access it for reasons unrelated to the objectives of the Directives. The ECJ held that such public access to the information on beneficial ownership constituted an interference with both of the fundamental rights in the Charter, and noted that any limitation on the exercise of the rights recognised by the Charter must respect the essence of those rights and freedoms, and that subject to the principle of proportionality, limitations may be made on those rights only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

The ECJ noted that the objectives of the Directives include preventing money laundering and terrorist financing by creating, by means of increased transparency, an environment less likely to be used for those purposes. While the ECJ recognised that this was a legitimate objective, it noted that EU law has previously recognised the principle of transparency primarily in the context of institutional and procedural transparency, whereas such a link with public institutions was absent in this instance. The ECJ held that this principle could not be considered an objective of general interest capable of justifying interference with the fundamental rights to respect for private life and protection of personal data.

Furthermore, the ECJ held that allowing the general public access to information on beneficial ownership was not strictly necessary or proportionate to the objective of combatting money laundering or terrorist financing. The court recognised that it was important that beneficial ownership data be available to certain parties such as press and civil society organisations connected with the prevention and combatting of money laundering and terrorist financing, authorities combatting such activities, or persons entering into transactions with beneficial owners. However the court found that allowing public access to such data constituted an unnecessary and disproportionate interference with the fundamental rights to privacy and protection of personal data.  The court further added that the optional provisions of the 2015 Directive which allowed Member States to make information on beneficial ownership available on condition of online registration, and to provide for an exemption to be made in exceptional circumstances, were not sufficient safeguards against interference with these fundamental rights.

Conclusion

This judgment has had an immediate effect, in that, as set out above, the RBO has greatly restricted public access to the register. This is likely to continue at least until a legislative solution is found.

It is also likely that the Commission will need to amend Article 30(5) of the 2015 Directive as it stands, to remove the right to public access. The ECJ have provided little guidance as to what level of access would be appropriate, and while the 2015 Directive previously allowed access only to a person or organisation that can demonstrate a “legitimate interest”, the Commission observed in the course of this case that this was a concept which did not lend itself easily to a legal definition. If and when the 2015 Directive is amended, this will have of course have a knock-on effect on the regulations implementing that Directive, including the Regulations.

This remains an ongoing matter, and we will issue further updates as developments occur.