The European Commission is to define criteria to determine the legitimate interest that persons wishing to access the register of beneficial owners of trusts must be able to demonstrate, the negotiators of the European Parliament and the Council of the EU decided during a round of negotiations on Wednesday 7 June, on the revision of the fourth anti-money laundering directive.
Readers may recall that the Council has said that it is ready to make a gesture towards the Parliament on creating public transparency of legal entities and persons (businesses, shell companies), whilst remaining deeply committed to the idea of a confidential register for trusts, accessible only to persons able to demonstrate a legitimate interest.
However, the Parliament does not want the definition of this 'legitimate interest' to be left to the discretion of the member states. As the NGO Transparency International recently pointed out, this definition is so restrictive in certain countries that legal proceedings are required to determine it. Theoretically, therefore, a definition of a legitimate interest may be included in the directive in the form of the new recital.
As for the definition of 'beneficial owner' (such as the level of the stake in an entity a person must hold), the parties have not yet seen their way to an agreement, but the matter may well be resolved in light of the agreement to be reached on the transparency of data on beneficial owners.
Lastly, Wednesday's trialogue provided an opportunity to discuss the question of politically exposed persons (PEPs). The Council draws a distinction between European and non-European politically exposed persons. European politically exposed persons may be exempted from the 'due diligence' rules laid down by the directive. The Presidency has stated that it has no political mandate to take any initiatives on provisions on PEPs and will therefore theoretically have to consult the member states again, in a working party.
Finally, article 48a, which was added by the Parliament, is still problematic. This article aims to give the Commission powers to evaluate the implementation of the directive, over and above what it is already able to do by means of infringement proceedings.
On Wednesday, the Presidency said that it hopes to conclude the dossier before the end of June. The next round of negotiations will take place on 28 June. (Original version in French by Élodie Lamer)