Suspension of access to the RBE following the CJEU decision
In brief
The Court of Justice of the European Union (CJEU), in a judgement on 22 November 2022, decided to suspend public access to the Register of Beneficial Owners (RBE), in order to guarantee the respect for privacy and the protection of personal data provided for in Articles 7 and 8 of the Charter of Fundamental Rights of the Union adopted in 2000.
In detail
In the context of the fight against money laundering and terrorist financing (AML/CFT), the 2015 European anti-money laundering Directive (the “Directive”) introduced the requirement for Member States to establish public registers of information on the beneficial owners or ultimate beneficial owners (UBOs) of companies in the European Union. The Directive defines beneficial owners as the natural person or persons who own or control a legal entity by virtue of directly or indirectly holding more than 25% of its capital. The RBE detailed, among other things, information such as the name of the UBO and their personal address.
Prior to May 2018, access to the RBE was limited to a number of individuals that included, among others, "any person or organisation able to demonstrate a legitimate interest." The Directive 2018/843 of 30 May 2018 extended this right of access to the RBE to "any member of the general public."
In this context, two individuals asked a district court in Luxembourg to limit access to their information in the RBE. The court then decided to ask the CJEU for a preliminary ruling.
It is on this basis that the CJUE handed its decision stating that: "Public access to beneficial owner information constitutes a serious interference with fundamental rights to privacy and personal data protection.”
Following this decision, the Ministry of Justice of Luxembourg complied with the case law of the CJEU and immediately suspended access to the online portal of the RBE.
Nevertheless, the competent national authorities continue to benefit from dedicated access allowing them to carry out their AML/CFT controls. Access has also been granted to press representatives and has been justified by the legitimate interest of the press to consult the RBE in the CJEU’s decision of 22 November 2022. Finally, professionals active in the field of AML receive access upon request.
The Minister of Justice confirmed that the drafting of a new law on the register of beneficial owners is underway, to comply with the ruling of the CJEU of 22 November 2022.
The Takeaway
While this decision has already been acted upon by Luxembourg, other countries such as Germany, Austria, the Netherlands and Ireland have also decided to give effect to this decision by suspending access to the RBE.
The next step for the Luxembourg Ministry of Justice is now to determine under which conditions can access be restored for other actors with a legitimate interest in the fight against money laundering and terrorist financing.
