The European institutions are to meet late in the afternoon of Wednesday 13 December for what is expected to be the final round of negotiations on the fifth anti-money laundering directive. Theoretically, the European Parliament is expected to try to secure a few additional concessions from the Council of the EU, even though it announced a few days ago that it would not move on its position, which has ultimately remained unchanged since June of this year.
As regards the registers containing information on the beneficial owners of companies and trusts, there will have been little progress compared to the fourth anti-money-laundering directive. In 2015, the Parliament sought to make these registers public, but unsuccessfully. The 'legitimate interest' wording, whereby only individuals who are able to demonstrate a legitimate interest in accessing this data would be permitted to do so, was chosen instead.
One year later, following the Panama Papers scandal, the Commission proposed making the registers of data on companies and trusts with commercial activities public. The information on "private" or "family" trusts would be accessible to individuals with a legitimate interest. During these final home straights, Parliament will try to obtain a definition of legitimate interest.
Readers may recall that the latest offer made by the Council to Parliament provides for public access to registers of companies and access to individuals able to demonstrate legitimate interests for all trusts. The Council has hence declined to draw a distinction between commercial and private trusts, despite a judgment of the Court of Justice establishing that such a distinction was possible (judgment C-646/15).
Under the Council's offer, an exception to public access to information concerning companies will be possible if the publication of this information exposes the beneficial owner to disproportionate risks of kidnapping, fraud, blackmail, violence or intimidation.
For trusts, one exemption will be possible: access will be possible for individuals making a written request for trusts holding an interest in a company or other similar entity through a direct or indirect stake holding.
However, this 13 December, the aim will also be to define a 'beneficial owner'. The Council is sticking to its guns over a threshold of share ownership of 25%, whilst the EP would like to reduce this threshold to 10%; it is anticipated that the Parliament will give way.
Lastly, as German MEP Sven Giegold (Greens/EFA) said in a recent morning meeting with the press on 7 December, Parliament hopes to ensure that “strawmen”, in other words 'senior managers' cannot be identified as the beneficial owners of entities, but the Council is strongly challenging this.
The last matter is the treatment of politically exposed persons ('PEPs'). The Parliament is calling for national lists of PEPs to be established, which the Council agrees to, as long as these lists refer only to positions and not names. Finally, under pressure from Germany, the Council wants the national PEPs of the EU not to be subjected to particular vigilance on the part of banks, a measure introduced with the third anti-money-laundering directive.
Parliament's rapporteurs are to meet on Tuesday 12 December in the late afternoon to decide on the position to adopt on 13 December to face the Council's intransigence. Judith Sargentini (Greens/EFA, Netherlands), the rapporteur, may be prepared to prolong the negotiations with the future Bulgarian Presidency of the Council, but it is unclear whether others will agree with this approach. (Original version in French by Élodie Lamer)