The General Public's Access To Information On Beneficial Owners Of Companies Held Invalid

• Published date: 01 December 2022
• Subject Matter: Corporate/Commercial Law, Government, Public Sector, Corporate and Company Law, Terrorism, Homeland Security & Defence, Money Laundering
• Law Firm: Soulier Avocats
• Author: Ms Florence Grangerat

In a judgment handed down on November 22, 2022, the Court of Justice of the European Union, sitting as the Grand Chamber, held that, in the light of the Charter of Fundamental Rights of the European Union, the provision of the so-called anti-money-laundering Directive whereby Member States must ensure that the information on the beneficial owners of corporate and other legal entities incorporated within their territory is accessible in all cases to any member of the general public is invalid.

In order to combat money laundering and terrorist financing, European Union law¹ requires Member States to maintain a register containing information on the beneficial owners of corporate and other legal entities incorporated within their territory.

In France, Ordinance No. 2016-1635 of December 1, 2016 on the strengthening of the French system for the prevention of money laundering and the financing of terrorism, which transposed Article 30 of Directive 2015/849/EU, created a register of the beneficial owners of legal entities that records identification data on their beneficial owner(s), his/her/their place of residence as well as the way in which he/she/they exercise(s) control over the relevant company or entity². It should be recalled that the term "Beneficial owner (s)" is defined in Article R.561-1 of the French Monetary and Financial Code as follows: "Natural person(s) who either hold, directly or indirectly, more than 25 percent of the share capital or voting rights of the company, or who exercise, by any other means, a power of control over the corporation within the meaning of Article L. 233-3 I '3 and '4 of the French Commercial Code".

In addition, since April 2021 and the entry into force of Ordinance No. 2020-115 of February 12, 2020 on the strengthening of the national system for combating money laundering and the financing of terrorism³, some information recorded in the register of beneficial owners is now freely accessible via the website "DATA INPI" managed by the Institut National de la Propriété Industrielle (French Trademark and Patent Office, commonly known by the acronym "INPI"). This information includes, but is not limited to, the identity, month and year of birth, country of residence and nationality of the beneficial owners, as well as the nature and extent of the beneficial interests they hold in the relevant company or legal entity.

Similarly, in Luxembourg, in accordance with the Anti-Money Laundering Directive, a law adopted in 2019...