WM v Luxembourg Business Registers.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2022:912
Docket NumberC-37/20
Celex Number62020CJ0037
Date22 November 2022

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

22 November 2022 (*)

(Reference for a preliminary ruling – Prevention of the use of the financial system for the purposes of money laundering or terrorist financing – Directive (EU) 2018/843 amending Directive (EU) 2015/849 – Amendment to Article 30(5), first subparagraph, point (c), of Directive 2015/849 – Access for any member of the general public to the information on beneficial ownership – Validity – Articles 7 and 8 of the Charter of Fundamental Rights of the European Union – Respect for private and family life – Protection of personal data)

In Joined Cases C‑37/20 and C‑601/20,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the tribunal d’arrondissement de Luxembourg (Luxembourg District Court, Luxembourg), made by decisions of 24 January 2020 and 13 October 2020, received at the Court on 24 January 2020 and 13 November 2020 respectively, in the proceedings

WM (C‑37/20),

Sovim SA (C‑601/20)

v

Luxembourg Business Registers,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Arabadjiev, A. Prechal, K. Jürimäe, C. Lycourgos, E. Regan, M. Safjan, P.G. Xuereb, L.S. Rossi, Presidents of Chambers, S. Rodin, F. Biltgen, N. Piçarra, I. Jarukaitis, A. Kumin (Rapporteur) and I. Ziemele, Judges,

Advocate General: G. Pitruzzella,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 19 October 2021,

after considering the observations submitted on behalf of:

– WM, by M. Jammaers, A. Komninos, L. Lorang and V. Staudt, avocats,

– Sovim SA, by P. Elvinger and K. Veranneman, avocats,

– the Luxembourg Government, by A. Germeaux, C. Schiltz and T. Uri, acting as Agents,

– the Austrian Government, by M. Augustin, A. Posch and J. Schmoll, acting as Agents,

– the Finnish Government, by M. Pere, acting as Agent,

– the Norwegian Government, by J.T. Kaasin and G. Østerman Thengs, acting as Agents,

– the European Parliament, by J. Etienne, O. Hrstková Šolcová and M. Menegatti, acting as Agents,

– the Council of the European Union, by M. Chavrier, I. Gurov and K. Pleśniak, acting as Agents,

– the European Commission, by V. Di Bucci, C. Giolito, L. Havas, H. Kranenborg, D. Nardi, T. Scharf and H. Tserepa-Lacombe, acting as Agents,

– the European Data Protection Supervisor, by C.-A. Marnier, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 20 January 2022,

gives the following

Judgment

1 These requests for a preliminary ruling concern, in essence, the validity of Article 1(15)(c) of Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (OJ 2018 L 156, p. 43), in so far as Article 1(15)(c) amended point (c) of the first subparagraph of Article 30(5) of 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 purposes 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), and also the interpretation, first, of Article 30(9) of Directive 2015/849, as amended by Directive 2018/843 (‘Directive 2015/849 as amended’), and, secondly, of Article 5(1)(a) to (c) and (f), Article 25(2) and Articles 44 to 50 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1; ‘the GDPR’).

2 The requests have been made in two sets of proceedings, the first between WM and Luxembourg Business Registers (‘LBR’) (Case C‑37/20) and the second between Sovim SA and LBR (Case C‑601/20), concerning LBR’s refusal to prevent the general public’s access to information concerning, first, WM’s status as the beneficial owner of a real estate company and, secondly, Sovim’s beneficial owner.

Legal context

European Union law

Directives 2015/849, 2018/843, and 2015/849 as amended

3 Recitals 4, 30, 31, 34, 36 and 38 of Directive 2018/843 state:

‘(4) … [it is necessary] to further increase the overall transparency of the economic and financial environment of the Union … The prevention of money laundering and of terrorist financing cannot be effective unless the environment is hostile to criminals seeking shelter for their finances through non-transparent structures. The integrity of the Union financial system is dependent on the transparency of corporate and other legal entities, trusts and similar legal arrangements. This Directive aims not only to detect and investigate money laundering, but also to prevent it from occurring. Enhancing transparency could be a powerful deterrent.

(30) Public access to beneficial ownership information allows greater scrutiny of information by civil society, including by the press or civil society organisations, and contributes to preserving trust in the integrity of business transactions and of the financial system. It can contribute to combating the misuse of corporate and other legal entities and legal arrangements for the purposes of money laundering or terrorist financing, both by helping investigations and through reputational effects, given that anyone who could enter into transactions is aware of the identity of the beneficial owners. It also facilitates the timely and efficient availability of information for financial institutions as well as authorities, including authorities of third countries, involved in combating such offences. The access to that information would also help investigations on money laundering, associated predicate offences and terrorist financing.

(31) Confidence in financial markets from investors and the general public depends in large part on the existence of an accurate disclosure regime that provides transparency in the beneficial ownership and control structures of companies. … The potential increase in confidence in financial markets should be regarded as a positive side effect and not the purpose of increasing transparency, which is to create an environment less likely to be used for the purposes of money laundering and terrorist financing.

(34) In all cases, both with regard to corporate and other legal entities, as well as trusts and similar legal arrangements, a fair balance should be sought in particular between the general public interest in the prevention of money laundering and terrorist financing and the data subjects’ fundamental rights. The set of data to be made available to the public should be limited, clearly and exhaustively defined, and should be of a general nature, so as to minimise the potential prejudice to the beneficial owners. At the same time, information made accessible to the public should not significantly differ from the data currently collected. In order to limit the interference with the right to respect for their private life in general and to protection of their personal data in particular, that information should relate essentially to the status of beneficial owners of corporate and other legal entities and of trusts and similar legal arrangements and should strictly concern the sphere of economic activity in which the beneficial owners operate. …

(36) Moreover, with the aim of ensuring a proportionate and balanced approach and to guarantee the rights to private life and personal data protection, it should be possible for Member States to provide for exemptions to the disclosure through the registers of beneficial ownership information and to access to such information, in exceptional circumstances, where that information would expose the beneficial owner to a disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation. It should also be possible for Member States to require online registration in order to identify any person who requests information from the register, as well as the payment of a fee for access to the information in the register.

(38) [The GDPR] applies to the processing of personal data under this Directive. As a consequence, natural persons whose personal data are held in national registers as beneficial owners should be informed accordingly. Furthermore, only personal data that is up to date and corresponds to the actual beneficial owners should be made available and the beneficiaries should be informed about their rights under the current Union legal data protection framework … and the procedures applicable for exercising those rights. In addition, to prevent the abuse of the information contained in the registers and to balance out the rights of beneficial owners, Member States might find it appropriate to consider making information relating to the requesting person along with the legal basis for their request available to the beneficial owner.’

4 Article 1(1) of Directive 2015/849 as amended provides:

‘This Directive aims to prevent the use of the Union’s financial system for the purposes of money laundering and terrorist financing.’

5 Article 3 of Directive 2015/849 as amended is worded:

‘For the purposes of this Directive, the following definitions apply:

(6) “beneficial owner” means any natural person(s) who ultimately owns or controls the customer and/or the natural person(s) on whose behalf a transaction or activity is being conducted and includes at least:

(a) in the case of corporate entities:

(i) the natural person(s) who ultimately owns or controls a legal entity through direct or indirect ownership of a sufficient...

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