Introduction
On November 22, 2022, the Grand Chamber of the European Court of Justice (“ECJ”) stated that Section 30(5)(1)(c) of the EU Directive 2015/849 of the European Parliament and of the Council (the “Anti-Money Laundering Directive”), as amended, is invalid, since it provides third parties indiscriminate access to information on the beneficial ownership of companies and other legal entities.[1]
The ECJ decision may have significant impact, including on the effective institution of the ultimate beneficial owner register (“UBO Register”) pursuant to the implementing decree that Italy recently adopted.[2]
The case at hand
In accordance with Anti-Money Laundering Directive, Luxembourg adopted and established a register of beneficial ownership, providing that a series of information might be reported to and retained in that register. The relevant Luxembourg regulation also provided that some of the relevant information on beneficial ownership might be accessible to third parties via Internet and that such information might be restricted in certain cases by means of a specific procedure.
Based on the above-mentioned legal landscape, after the unsuccessful request to the Registrar to restrict the general public’s access to information on beneficial ownership, a Luxembourg company and its beneficial owner brough an action before the Luxembourg District Court.
The Luxembourg Court referred to the ECJ three questions concerning the interpretation of some provisions of the Anti-Money Laundering Directive on disclosure of beneficial ownership information and their validity in light of the fundamental rights to privacy in private life and data protection, pursuant, respectively, to Sections 7 and 8 of the EU Charter of Fundamental Rights (the “Charter”).
The ECJ ruling
According to the court, access to beneficial ownership information by the general public constitutes serious interference with the fundamental rights to privacy in private life and personal data protection: indeed, the information disclosed (e.g., material and financial situations of beneficial owner(s)) can be shared with an unlimited number of persons, as they may be not only freely consulted, but also retained and circulated to third parties, without any limitations.
The court acknowledged that the general objective of the EU legislation, i.e., seeking to prevent money laundering and terrorist financing, may be considered a justification for even serious interference with the fundamental rights provided by the charter. Nevertheless:
(i) the interference entailed by the Anti-Money Laundering Directive is not limited to the strictly necessary, nor proportionate to the objective pursued; and
(ii) the fact that (a) such information on beneficial ownership are available upon online registration; as well as (b) the possibility to block the general public’s access to it in specific cases, are not capable of demonstrating a proper balance between the purpose of general interest pursued by the Anti-Money Laundering Directive and the fundamental rights violated, nor the existence of sufficient safeguards to protect data and information against the risks of abuse.
The impact of the ECJ ruling on Italian legislation about the UBO Register
On May 25, 2022, the decree of the Ministry of Economics implementing the UBO Register, in accordance with the provisions of the Anti-Money Laundering Directive, was published in the Italian Official Journal (the “Decree”).
Pursuant to the Decree, specific data and information on the ultimate beneficial owner(s) of specific Italian entities (including companies) shall be provided to the Register of Enterprises. These data/information may be generally accessed by the public, upon request and without limitation, unless specific risks, such as fraud, kidnapping, blackmail extortion, harassment, violence or threat may occur[3].
Despite the Decree entered into force on June 9, 2022, additional specific formalities must be carried out for the UBO Register to be implemented. As of today, even if the deadlines provided in the Decree for the effective establishment and startup of the relevant communication obligations have expired, no further decrees have been issued, and therefore the UBO Register in Italy currently is not yet in force.
For this reason, it will be necessary to monitor any further development on the EU legislation, in order to understand whether the ECJ ruling may actually entail a possibility to amend the Anti-Money Laundering Directive and therefore the Decree, in order to render them compliant with the rights to privacy in private life and data protection. This may result in further slowdowns in the implementation and establishment of the UBO Register, as changes and updates will likely have to be made to adapt it to the ECJ ruling.
[1] The English version of the full text of the ECJ decision is available at the following link: https://curia.europa.eu/juris/document/document.jsf?text=&docid=268059&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=37914.
[2] We outlined the main feature of the implementation decree for the UBO Register at the following link: https://portolano.it/newsletter/portolano-cavallo-inform-compliance/latest-news-on-italian-beneficial-ownership-regulation-implementation-of-the-ubo-register.
[3] The Decree specified that (i) these circumstances shall be disclosed by the directors during the process of communication of the beneficial owner’s information to the Register of Enterprises and (ii) risks will be assessed on a case-by-case basis, after a wide-ranging inquiry on the relevant circumstances.
