Privacy First argued that, with the fourth and fifth anti-money laundering directives (AMLD4 and AMLD5), the EU legislator is violating the fundamental rights of UBOs to protection of their privacy and personal data, as guaranteed by European law. According to Privacy First, the Court of Justice of the European Union (CJEU) will rule that this violation is disproportionate to the objective to be achieved.
The court in The Hague does not agree. There are insufficient grounds for doubting the effectiveness of the UBO register in preventing money laundering and terrorist financing through the financial system (even if it must be assumed that the information contained therein may not be (partly) publicly accessible). The court also questioned Privacy First's assertion that there is a significant risk that the protected additional data will be leaked due to data breaches and/or the imminent linking of European UBO registers.
The court also ruled that there are no grounds for referring questions for a preliminary ruling on the compatibility of AMLD4 and AMDL5 with fundamental rights guaranteed under European law. The preliminary relief judge attaches great importance to the critical opinion of the European Data Protection Supervisor of March 18, 2017, regarding the proposed amendments to AMLD4 at the time and acknowledges that it cannot be ruled out in advance that the CJEU will conclude that the (partially) public nature of the UBO register is not in line with the principle of proportionality.
However, the preliminary relief judge will not refer questions to the European Court of Justice for a preliminary ruling, as the Tribunal d'arrondissement in Luxembourg already referred questions on this point to the CJEU on November 13, 2020. The questions largely correspond to those in the current case, and according to the judge, Privacy First has not made clear how its interests would be served if the same questions were submitted to the CJEU by the Dutch court. The court also stated that suspending these preliminary relief proceedings pending the CJEU's answers to those preliminary questions is not consistent with the nature and character of preliminary relief proceedings, partly because of the length of the preliminary proceedings.
Privacy First's lawyer, Otto Volgenant of Boekx Advocaten: "The UBO register will expose the privacy-sensitive data of millions of people. There are doubts from all sides as to whether this is an effective tool in the fight against money laundering and terrorism. It's like shooting a mosquito with a cannon. The highest European court, the Court of Justice of the EU, will ultimately rule on this. I expect it to strike down the UBO register."
