Beneficial owners and protection of personal data

Beneficial owners and protection of personal data

‍The CJEU invalidates unlimited access to information relating to beneficial owners by the general public in the name of privacy and the protection of personal data

Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 (known as” 5th Anti-Money Laundering Directive ”) — amending Directive (EU) 2015/849 of 20 May 2015 (4th Directive) — strengthened the procedures for keeping registers of beneficial owners and made certain information relating to the beneficial owners of companies accessible to the public (such as the name, first name, month, year of birth, country of residence and nationality, country of residence and nationality, the nature and the extent of the effective interests they hold in the said company or entity).

This accessibility to the general public through the register of beneficial owners (RBE), which already poses a difficulty in company law in terms of compliance with the rule of anonymity, a fundamental characteristic of public limited companies (SA) or simplified joint stock companies (SAS), also raises problems in practice with regard to respect for the privacy and protection of the personal data of beneficiaries.

The judgment of 22 November 2022 of the Court of Justice will certainly have an impact on the information available concerning beneficial owners in the various Member States. Indeed, the Court of Justice declared invalid with regard to the right to respect for private life and the protection of personal data the provisions of the 4th Directive amended by the 5th Anti-Money Laundering Directive providing for access to the general public to information on beneficial owners. While the Court notes that such a measure is aimed at the prevention of money laundering and the financing of terrorism, it is neither limited to what is strictly necessary nor proportionate to the objective pursued.

It remains to be seen how this decision will be received by the bodies of the Member States managing RBEs. Following this judgment, access to the RBE has been temporarily suspended since last Tuesday in Luxembourg, pending a solution in accordance with the judgment. The judgment of the CJEU will undoubtedly have an impact on the content of the 6th Anti-Money Laundering Directive currently under negotiation before the European Parliament and the European Council.

Corporate Law Team and Competition and Personal Data Team: Christel GOMEZ, Aude GUYON, Pauline KLEIN, Florine PIETTE

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