In order to strengthen the fight against money laundering and terrorist financing (“LC-BFT”), Directive n°2015/849 of 20 May 2015 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing (the so-called “4th Directive”) required each Member State to implement a central file intended to store information on beneficial owners. This file was to be accessible to financial intelligence units, entities subject to AML/CFT obligations and any person or organisation able to demonstrate a “legitimate interest”[1].

However, Directive n°2018/843 of 30 May 2018 (the so-called “5th Directive”) has extended access to beneficial owners to “any member of the general public”.

As a reminder, the “beneficial owners” of a company are, within the meaning of Article L. 561-2-2 of the Monetary and Financial Code, the natural persons “either who ultimately control, directly or indirectly, the client; or 2° for whom a transaction is executed or an activity carried out” so that allowing access to the beneficial owners of a company is in reality equivalent to authorising the lifting of the anonymity of the ultimate shareholders of a company.

This access to the registers of beneficial owners by the general public has been challenged by the Court of Justice of the European Union, which has been seized by the Luxembourg courts regarding the Luxembourg register of beneficial owners.

By decision of 22 November 2022[2], the Court ruled that public access to the register of beneficial owners was contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union – namely the right to respect for one’s private life and the right to the protection of personal data[3]. The Court considered that the infringement of fundamental rights was disproportionate to the general interest objective of combating money laundering and terrorist financing.

By ruling in this way while the European institutions are currently negotiating the 6th Directive on the fight against money laundering and terrorist financing, the Court of Justice of the European Union invites them to find a better balance and to refocus on the notion of “legitimate interest” initially imposed by the 4th Directive.

This decision has resulted in the suspension of public access to the register of beneficial owners in some Member States (such as Austria, Belgium, Cyprus, Finland, Germany, Greece, Ireland, Luxembourg, the Netherlands and Spain). However, the majority of other Member States have taken the political decision to maintain public access.

This is the case in France where, since Order 2020-115 of 12 February 2020 transposing the 5th Directive and its implementing decree n°2020-118, access to the register of beneficial owners has been opened up to the general public and can be consulted on the website of the National Institute of Industrial Property (INPI).

Thus, despite a brief suspension of access to the register of beneficial owners at the beginning of January 2023 for technical reasons, Bruno Le Maire, Minister for the Economy, Finance and Industrial and Digital Sovereignty, confirmed in a press release dated 19 January[4] that “the general public will continue to have access to the data in the register of beneficial owners while awaiting to draw all the consequences of the judgment of the Court of Justice of the European Union”.

Nevertheless, access to the register of beneficial owners is currently on hold until the new directive, which will have to legislate on this point.

[1] Directive (EU) 2018/843 amending Directive (EU) 2015/849

[2] CJEU, Grand Ch. 22 November 2022, WM & Sovim SA v Luxembourg Business Registers, Case No C-37/20 and C-601/20

[3] Articles 7 and 8 of the Charter of Fundamental Rights of the European Union

[4] Minefisin, press release no. 520, 19 Jan. 2023