EU law governing public access to information on beneficial owners of companies is valid, according to Advocate General Giovanni Pitruzzella in his opinion of Thursday 20 January (cases C-37 and 601/20).
For the purposes of combating and preventing money laundering and terrorist financing, Directive 2015/849 requires Member States to keep a register containing information on beneficial owners who control companies and other legal entities incorporated on their territory.
In 2018, some of this information was made publicly available without justification of a legitimate interest, through a legislative revision (Directive 2018/843) (see EUROPE 11927/12). Member States may, however, provide for exemptions concerning access to such information where public access would expose the beneficial owner to a disproportionate risk, to a risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation or where the beneficial owner is a minor or incapacitated.
Two beneficial owners of Luxembourg companies have filed a lawsuit against the publication of information about them, claiming a disproportionate risk of infringement of their fundamental rights.
In his opinion in the context of a referral to the Court of Justice of the EU from the Tribunal administratif du Luxembourg, the Advocate General is of the opinion that the disclosure to the public of data enabling the identification of beneficial owners of companies constitutes an interference with the fundamental rights guaranteed by the EU Charter of Fundamental Rights without this interference being of a particularly serious nature. This data alone does not affect the privacy of the individuals concerned, he adds.
However, the leeway left to Member States to expand the amount of accessible data (listed in Article 30.5 of the Directive) could lead to more interference with fundamental rights, Pitruzzella notes. Such a possibility does not fulfil the requirement of EU law to identify clearly and precisely the scope and nature of the personal data that can be published. In this respect, the anti-money laundering directive should be invalidated, he believes.
Furthermore, the Advocate General is of the opinion that the abolition of the need for the public to demonstrate a legitimate interest in accessing the data in question appears to be strictly necessary. However, in applying this measure, Member States cannot refrain from ensuring the protection of the fundamental rights of beneficial owners against disproportionate harm. They are therefore required to grant exemptions from public access to certain information where such access would, in exceptional circumstances, expose the beneficial owners of companies to a disproportionate risk of infringement of their fundamental rights under the Charter.
See the opinion: https://bit.ly/3nNYqD0 (Original version in French by Mathieu Bion)