Directorate of Communication
Press and Information Unit curia.europa.eu
PRESS COMMUNIQUÉ No. 188/22
Luxembourg, 22 November 2022
Judgment of the Court in joined cases C-37/20 | Luxembourg Business Registers and C-601/20 | Sovim
Anti-Money Laundering Directive: the provision that the general public must in all cases
should have access to information on the beneficial owners of
companies of member states is invalid
The interference resulting from this measure with the rights guaranteed by the Charter is not limited to what is strictly necessary and disproportionate to the objective pursued
A Luxembourg law of 2019 (1) established, in accordance with the Anti-Money Laundering Directive (2), a register of beneficial owners and stipulated that it should contain and maintain a number of data on the beneficial owners of registered entities. Some of that information is accessible to the general public, particularly on the Internet. This law also provides that, in certain cases, a beneficial owner may request the administrator of this register, Luxembourg Business Registers (LBR), to limit access to that information.
In that context, a Luxembourg company and the beneficial owner of such a company each brought an action before the tribunal d'arrondissement de Luxembourg (Luxembourg Court of First Instance), having unsuccessfully requested LBR to limit the general public's access to their information. Taking the view that the disclosure of such information could entail a disproportionate risk of affecting the fundamental rights of the beneficial owners in question, this judge referred a series of preliminary questions to the Court on the interpretation of certain provisions of the Anti-Money Laundering Directive and on their validity in the light of the Charter of Fundamental Rights of the European Union (hereinafter "Charter").
In its judgment today, the Court (Grand Chamber) found, in the light of the Charter, the invalidity of the anti-money laundering Directive's provision requiring Member States to ensure that information on beneficial owners of companies and other legal entities incorporated within their territory is in all cases accessible to the general public. The Court notes that access by the general public to information on beneficial owners constitutes a serious interference with the fundamental rights to respect for private life and protection of personal data, enshrined respectively in Articles 7 and 8 of the Charter. Indeed, the information disclosed allows a potentially unlimited number of persons to obtain information about the material and financial situation of beneficial owners. Moreover, the possible consequences for the persons concerned of any misuse of their personal data are exacerbated by the fact that,
once such data is made available to the general public, it can not only be freely consulted, but also stored and disseminated.
The Court observes that, by the measure in question, the Union legislature seeks to prevent money laundering and the financing of terrorism by creating, through greater transparency, an environment that is less likely to be used for those purposes. It considers that the legislature is thereby pursuing an objective of general interest capable of justifying even a serious interference with the fundamental rights recognized in Articles 7 and 8 of the Charter, and that access by the general public to information about beneficial owners may contribute to the achievement of that objective.
However, the Court finds that the interference resulting from that measure is not limited to what is strictly necessary and is not proportionate to the objective pursued. In addition to the fact that the provisions at issue allow data which are not sufficiently certain or identifiable to be made available to the public, the regime introduced by the anti-money laundering directive results in a significantly greater interference with the fundamental rights guaranteed by Articles 7 and 8 of the Charter than the previous regime (which granted access both to the competent authorities and to certain entities and to any person or organization which could demonstrate a legitimate interest) without this being offset by any advantages that the new regime would offer over the previous regime in the area of combating money laundering and terrorist financing. In particular, the fact relied on by the Commission that it may be difficult to determine precisely in what cases and under what conditions such a legitimate interest exists cannot justify the Union legislature's stipulation that the general public should have access to the information in question.
The Court adds that the optional provisions allowing Member States to make the making available of information on beneficial owners subject to online registration and, in exceptional circumstances, to establish exceptions to the right of the general public to access that information do not, as such, demonstrate a balanced balancing of the public interest objective and the fundamental rights enshrined in Articles 7 and 8 of the Charter, nor the existence of sufficient safeguards to enable data subjects to effectively protect their personal data against the risk of misuse.
1) Law of January 13, 2019 establishing a register of beneficial owners (mémorial A 15).
2) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system
for the purpose of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council and
repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015, L 141, p. 73), as
amended by Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 (OJ 2018, L 156, p. 43)
