Transparency register: ECJ ruling – rejection of public access to the transparency register?

Baseline:

With the introduction of the transparency register as of October 2017, all companies domiciled in Germany were required to report their beneficial owners to the newly created register. The initial facilitation of the availability of the relevant data, e.g. in the commercial register, has ceased to exist this year at the latest with the conversion of the transparency register to a so-called full register.

In order to retrieve data from the transparency register, a legitimate interest still had to be proven first. With a revision of the AMLA on January 1, 2020 due to the European Money Laundering Directive, this hurdle has been removed: Since January 1, 2020, every:r has the possibility to inspect the transparency register.

The registration required for this at the online portal www.transparenzregister.de is not a significant hurdle. Even the partially anonymized data (birthday / place of residence) can be completed in many cases via other registers, especially since since August 1, 2022, electronic access to the commercial register (and all historical data and documents stored there) is also possible for any:n without registration and free of charge.

Access to sensitive personal data and financial circumstances has thus been made much easier. However, the legislator’s (understandable) efforts to ensure the transparency of assets for the purpose of combating money laundering are simultaneously offset by a considerable risk of abuse. In many cases, there is also an interest in secrecy with regard to the group of shareholders for strategic or competitive reasons.

The administration and legislators have not responded to the corresponding criticism from business associations. Hope has therefore now been given by the ECJ’s decision on a case from Luxembourg.

Recent ECJ decision

In its judgment of November 22, 2022 (Judgment of November 22, 2022; Case No. C-37/20, C-601/20), the ECJ finds that the provision of the Money Laundering Directive that requires member states to make beneficial ownership information available to all members of the public in all cases without proof of a legitimate interest is invalid.

The background to the judgment are actions brought by a Luxembourg company and its beneficial owner against a company established in accordance with the 4. and 5th Money Laundering Directive entered into force in Luxembourg to establish a Luxembourg Transparency Register. The plaintiffs had initially applied unsuccessfully to the national transparency register to restrict the general public’s access to the information concerning them.

The ECJ states that free access to beneficial ownership information by all members of the public constitutes a serious interference with the fundamental rights to respect for private life and to protection of personal data enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

• The ECJ explicitly emphasizes that making this information publicly available enables a potentially unlimited number of persons to obtain a more or less comprehensive profile with certain personal identification data, the financial situation of the data subject, and the economic sectors, countries and specific companies in which he or she has invested.
• In addition, the possible consequences for data subjects of any misuse of their personal data are exacerbated by the fact that, once made available to the public, such data could not only be freely accessed but also retained and (permanently) disseminated.

According to the ECJ, the objective of preventing money laundering and terrorist financing also does not justify interference with the fundamental rights guaranteed in Articles 7 and 8 of the Charter. Even if access to the transparency register is made dependent on online registration (as is the case in Germany), this is not sufficient, in the view of the ECJ, to safeguard the need of data subjects to protect their personal data against the risk of misuse.

Outlook

The judgment of the ECJ is legally binding and has a comprehensive binding effect – also at the national level. This will force the legislator to respond to the criticism expressed by business associations and practitioners of the low-threshold, electronically easily accessible data retrieval from transparency registers (and possibly commercial registers). One approach would be to return to the “old” model consisting of online registration and proof of legitimate interest.

In the meantime, possible effects on the visibility of shareholders should be taken into account in the course of restructuring under company law or succession planning.

Our experts will be happy to advise you on all questions relating to the transparency register.