A decision of major importance was issued by the Court of Justice of the European Union (Grand Chamber) (the Court) on 22nd November 2022 on the invalidity of the provisions in Directive (EU) 2018/843 amending Directive (EU) 2015/849 (the “5th AML Directive”) for access of any member of the general public to the information on beneficial ownership by reference to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the Charter) on the respect for private and family life and the protection of personal data.
Article 30(5), first subparagraph, point (c) of Directive 2015/849 as it stands, includes a provision that Member States shall ensure that the information on the beneficial ownership is accessible in all cases to any member of the general public, providing that the general public shall be permitted to access at least the name, the month and year of birth and the country of residence and nationality of the beneficial owner, as well as the nature and extent of the beneficial interest held. Member States may, under conditions to be determined in national law, provide for access to additional information enabling the identification of the beneficial owner, which shall include at least the date of birth or contact details in accordance with data protection rules.
In its judgment in Joined Cases C‑37/20 and C‑601/20, the Court made a finding of interference with the rights guaranteed in Articles 7 and 8 of the Charter, as the information disclosed enables a potentially unlimited number of persons to find out about the material and financial situation of a beneficial owner, whilst the data can not only be freely consulted, but also retained and disseminated. The Court concludes that “In the light of the foregoing, it cannot be considered that the interference with the rights guaranteed in Articles 7 and 8 of the Charter, which results from the general public’s access to information on beneficial ownership, is limited to what is strictly necessary (para. 76)”.
In Cyprus, the 5th AML Directive was transposed into Cyprus legislation in February 2021 (the Prevention and Suppression of Money Laundering Activities (Amending) Law of 2021 (Law 13(I)/2021), amending the Prevention and Suppression of Money Laundering Activities Law of 2007 (Law 188(I)/2007)), introducing the obligation for companies and other legal entities, trusts and other legal arrangements, clubs, foundations, federations and unions in Cyprus to register their beneficial owners in a national centralised registers, kept by the Cyprus Companies Registrar, the Cyprus Securities and Exchange Commission and the Cyprus General Commissioner, depending on the entity concerned. A beneficial owner of a company or other entity is defined as an individual holding (directly or indirectly) more than 25% of the share capital of a company or otherwise maintaining control.
As of 1st June 2022, access to the Register of Ultimate Beneficial Owners of Cyprus Companies was allowed to the general public upon submission of a written application and the payment of a fixed administrative fee of €3.50 per company or partnership.
In light of the Court’s findings, all Member States need to take the appropriate measures to eliminate access to such information to the general public. The Companies Registrar is now expected to suspend access of the general public to the Register pending the enactment of relevant legislative measures addressing the matter.
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