Abstract:
This article provides a case commentary on the European Court of Justice’s recent judgment in the joined cases of C-37/20 and C-601/20. In this ruling, the ECJ held that the 4th and 5th Anti-Money Laundering Directives, underpinning the implementation of beneficial ownership registers in the European Union Member States, are in breach of Articles 7 and 8 of the European Charter on Fundamental Rights of the European Union. This article argues that the conclusion reached by the Court was justified. The Article then proposes a way forward that aims to resolve the tension between increasing transparency and upholding the fundamental rights to private family life and data protection, through the introduction of a distinction between personal and economic data.
Introduction
In a ground-breaking judgment handed down on 22 November 2022 by the European Court of Justice (‘ECJ’), it was held that the beneficial ownership registers underlined by Directive (EU) 2015/849, as amended by Directive (EU) 2018/843 (‘The Directives’),1 are incompatible with Articles 7 and 8 (‘The Articles’) of the Charter of Fundamental Rights of the European Union (‘The Charter’).2 The respective cases involved applications by two beneficial owners of WM (C-37/20) and Sovim (C-601/20). The former case included a request to shield the individual’s beneficial ownership information on the grounds of exceptional circumstances.3 The facts of the latter case were an attestation of why beneficial ownership data should be publicly available, considering their failure to have due regard of Articles 7 and 8 of The Charter and their breaches of the General Data Protection Regulation (‘GDPR’).4 The above-mentioned Directives aim to combat money laundering and counteract terrorist financing within EU Member States. Articles 7 and 8 of The Charter respectively enshrine European citizens’ rights to respect for private and family life and protection of personal data. Beneficial ownership registers have been rolled out, following The Directives, to increase the transparency of corporate ownership; consequently, allowing people ‘to follow the money’ and unpack criminal activity such as money laundering, corruption and terrorist financing, among others.5 Consequently, the shutdown of beneficial ownership registers across Europe has set a dangerous precedent restricting access to the information practically needed to conduct transactions or client due diligence. Such information is also substantively needed to prevent and deter economic crimes, including the aforementioned crimes of money laundering, bribery, terrorist financing, and financial fraud. Within the substantive purpose of crime deterrence and transparency, the information is used in public authority investigations, by journalists and other interest groups to report on money and ownership trails to the wider public.6
The ECJ’s judgment has made a considerable impact, as this article will go on to analyse: it was arguably imperative for the ECJ to infuse and restore this area of legislation with a proportionate balance between the conflicting interests, rights, and public policy considerations. This is because the registers, in their constitutive form, required disclosure of an unreasonably extensive amount of personal data about beneficial owners to the wider public.7 There is insufficient evidence to show that such infringement of Articles 7 and 8 was strictly necessary to fulfil the objective of combating money laundering and terrorist financing.8 Accordingly, and as the Court has rightfully held in their proportionality review,9 the approach taken in The Directives infringes too far upon the fundamental rights of ultimate beneficial owners. This article argues that the way forward should be the introduction of a distinction between the type of information that is publicly accessible (economic data) and that information which should only be accessible to people with a qualified legitimate interest (personal data). This will allow for the underlying objectives of The Directives to be fulfilled, while still respecting Articles 7 and 8 of The Charter. Ultimately, the Court was right to intervene, but rather than completely eliminating public accessibility, the approach towards reform should aim to retain public accessibility to strictly economic data. This would result in a corrective rebalancing of the tension between transparency on the one hand, and the fundamental rights in Articles 7 and 8 of The Charter on the other.
Legal Background and the Function of Beneficial Ownership Registers
Member States must, under The Directives, implement a beneficial ownership register, under which companies are required to register the entity’s beneficial owner(s) in a publicly accessible forum; this is usually integrated within the Member States’ Chamber of Commerce.10 A beneficial owner is ‘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’.11 The beneficial owner is normally a natural person owning 25% or more of the shareholding.12 In the case where a company only has minority shareholders (less than 25%), the beneficial ownership will alternatively be determined by the natural person who has majority voting rights (according to the articles of association) or the senior management officials of the company.13 Such registers have developed out of the 4th and 5th EU Anti-Money Laundering Directives (‘AMLDs’) which aim to uproot and deter money laundering and terrorist financing.14 Contextually, these Directives are responsive to a change in public sentiment and the corresponding public policy which is in favour of tackling corporate secrecy. Such a change in sentiment has been fuelled by events such as the leak of the Panama and Paradise papers,15 scandals such as the misappropriation of funds from the Malaysian government fund called 1MBD,16 and the freezing of Russian assets by sanctions following the outbreak of war in Ukraine. 17
In the joined cases of C-37/20 and C-601/20, the ECJ reviewed the validity of the beneficial ownership register in Luxembourg, which requires businesses to register the following details of the beneficial owner: full name, nationality, date of birth, place of birth, country of residence, complete private/company address, identification number, and nature of beneficial interest.18 The Court held in its proportionality review that the ‘making available of such information to third parties constitutes a serious interference with the fundamental rights enshrined in Articles 7 and 8’ of The Charter, no matter what the subsequent use of that information is.19
Reasoned upon the ground that the ‘information is capable of enabling a profile to be drawn up concerning certain personal identifying data’, the court observes a potentially detrimental impact on beneficial owners’ safety, security, and privacy.20 The court has also reasoned upon the ground that public availability of such information leads to an impossibility of establishing the purpose for which such information was processed or accessed, again disproportionately disadvantaging beneficial owners and posing direct challenges to Article 5 of the GDPR.21 Therefore, the proportionality assessment employed by the ECJ consisted of assessing ‘compliance not only with the requirements of appropriateness and of necessity, but also with that of the proportionate nature of those measures in relation to the objective pursued’.22 In this assessment, the Court ultimately held that although public accessibility ‘“can contribute” to combatting the misuse of corporate and other legal entities […] it must be found that such considerations are also not such as to demonstrate that the measure is strictly necessary to prevent money laundering and terrorist financing’.23 The Court’s proportionality review ultimately invalidated The Directives, which then triggered the shutdown of beneficial ownership registers across European Member States.24
Public Response to the Judgment and the Importance of Transparency as a Tool for Progression
Beneficial ownership registers improve transparency because they are publicly accessible; thus they allow for the delayering and uncovering of complex corporate structures used to defraud, launder money, finance crime and terrorism, or funnel assets away.25 As echoed by Felce, beneficial ownership registers ‘contain a treasure trove of useful material’ to see ‘who owns what’, useful not only to interest groups such as journalists and academics, but also for banks, corporate service providers, businesses, and ordinary citizens who want to vet a counterparty to a transaction.26 Organisations such as Transparency International UK,27 the Organized Crime and Corruption Reporting Project,28 and investigative journalists such as Tom Burgis29 and Oliver Bullough,30 have stated that publicly accessible registers play an integral role in their research of corruption and economic crime more generally. The research that such journalists and organisations undertake and publish helps trigger public awareness and scrutiny, consequently increasing transparency and contributing to an environment that is hostile towards and deterrent of crime.31 Fundamentally, the rebalancing of rights must occur wherein there is an opportunity for the public to scrutinise and verify that information is retained in a way that is less intrusive upon beneficial owners’ right to private life and data protection.
It is important to demarcate from the outset that complex corporate structures are common in today’s globalised world of business and, therefore, are not inherently indicative of any criminal conduct. Even though such structures may be deployed for improper purposes, they mostly underpin legitimate businesses.32 This must be borne in mind when evaluating EU directives and the ECJ’s judgment. This point is also stressed by Filippo Noseda, a solicitor on the claimant’s side, who contends that the headlines seem to ignore the fact that ‘millions of ordinary businesses as well as businesses engaged with sensitive activities [and] compliant family businesses’ are caught by these measures.33 He rightly posits that these people ‘have a legitimate interest in keeping their personal data away from prying eyes’.34 Beneficial owners should not be exposed to an unnecessary disproportionate impingement upon their fundamental rights to private life and data protection. This is particularly the case when an undercutting of such rights could lead to considerable security risks as sensitive data like private home addresses can be accessed by anyone.
Fundamental Rights Under Threat
The ECJ’s judgment discusses the question of where to draw the line between transparency, deterring money laundering and terrorist financing on the one hand, and the need to protect the right to personal data and the right to a private and family life on the other.35 The Court engages a proportionality review, examining whether the interference with citizens’ fundamental rights can be justified upon public interest grounds. Ultimately, the Court concludes that public access to the beneficial ownership registers is not limited to what is ‘strictly necessary’ to attain the underlying goal of combating money laundering and terrorist financing; therefore, the means are disproportionate to the aim.36
Brewczyńska points out that the judgment amounts to ‘a victory for human rights and a yellow card for the legislator’.37 Her stance rightfully depicts the moral of this story — it is not about winners and losers. The narrative currently portrayed in the media, which characterises the ECJ’s decision as one which affords an unwarranted leeway for corporate secrecy to persist,38 is unproductive as it will not promote a resolution of the tension that underpins the Court’s judgment. An example is the Economist’s ‘Laundry Softener’ headline; a metaphor which is ultimately counterintuitive as a means of finding a rightful balance between The Articles and public policy objectives, considering its depiction of the Court as “softening” the rules for ‘money launderers’.39 The inappropriate casting of beneficial owners as secretive individuals ‘hiding their fortunes’ against the general public creates a kind of adversarialism that leads to a needless polarisation. Such an approach will ultimately lead to a dead end in trying to reach an optimal position wherein Articles 7 and 8 of The Charter can be respected and transparency can be maintained. The two interests are not mutually exclusive, as this article will continue to illustrate.
In both the impact assessment that preceded Directive 2015/849 and Directive 2018/843, and the written observations of the Parliament, Council, and Commission,40 it was flagged that the register should only be accessible on legitimate interest grounds.41 This recommendation was unfortunately not adopted because a ‘legitimate interest’ was too difficult to define — evidently, this was an opportunity missed by the European legislator.42 Consequently, the conclusion reached in the ECJ’s judgment, that The Directives are incompatible with Articles 7 and 8 of The Charter, is hardly surprising. Argubaly, the Court has rightfully decided that the Directive should be amended. As much as transparency is indeed a desired effect, it should not come at the cost of both the fundamental rights protected by Articles 7 and 8 of The Charter and the safety and security of beneficial owners simply because ‘legitimate interest’ is difficult to define. Consequently, this article proposes the introduction of a distinction between economic and personal information. Such a distinction will inform what information can be accessed publicly and what information can only be accessible to a party who can successfully show a legitimate interest.
Cross-Jurisdictional Impact of the Judgment
The UK’s equivalents of the European beneficial ownership registers are the People with Significant Control Registrar43 and the Register for Overseas Entities introduced by the Economic Crime Transparency (and Enforcement) Act 2022. Both are integrated within Companies House.44 Even though the ECJ’s decisions no longer bind UK courts following Brexit, the judgment has nonetheless caused a considerable stir in the UK; as is apparent from the fact that most UK law firms and corporate service providers have released extensive practice notes on the case outlining possible implications. These implications include, according to Ashurst, UK courts ‘having regard’ to the case in their future decisions as persuasive authority.45 This ramification is already taking shape, exhibited in the fact there is already a case with similar facts pending in the English courts.
In October 2021, ‘Jenny’ contested the UK’s sharing of her financial data with the USA as a violation of her right to privacy and data protection under the Foreign Account Tax Compliance Act (‘FATCA’), an Act which requires the sharing of ‘financial data about American-born people’ between the UK and USA.46 If the UK courts follow an approach similar to that of the ECJ, then FATCA legislation could be held to be incompatible with Article 8 of the Human Rights Act 1998 or provisions under the Data Protection Act 2018. Article 8 of the Human Rights Act 1998 includes the protection of a ‘right to private and family life’47 and the Data Protection Act 2018 implements the provisions of the GDPR into UK law. Ultimately, while the UK courts may acknowledge the ECJ’s judgment as persuasive authority throughout their reasoning, it is unlikely that they would issue a Section 4 declaration of incompatibility48 and hold pieces of primary legislation, in this case FACTA, to be incompatible with the Human Rights Act 1998. This is because, in practice, Section 4 declarations are rare. Moreover, their issuance cannot invalidate laws; they can only nudge Parliament to revise the law in question.49 Concurrently, while the UK courts may not be swift to follow the ECJ’s suit and hold primary legislation to be incompatible with fundamental rights provisions, the decision still carries cross-jurisdictional significance.
Firstly, a practical reason for this is the globalised nature of businesses; with multinational structures now being commonplace, shutting down registers in European countries has important practical implications for the UK, too.50 Interested parties such as businesses, journalists, academics, and the wider public now no longer have full access to the information needed to conduct research or due diligence on global corporate structures. On top of this, more substantively, the ECJ’s judgment raises crucial questions about the consultation undertaken by the legislature, which pre-empts the drafting of new legislation. Such legislation which is aimed at combating money laundering, terrorist financing, and other kinds of financial crime, houses an inherent tension between the public good and private rights. The judgment accordingly begs the question, of whether the UK Parliament should have placed greater weight on fundamental rights protection, particularly the right to data protection and the right to private life, during the legislative process. This should be interpreted in line with recent statutory developments such as the GDPR, which is a European Directive imposing strict restrictions on organisations that process data.51 The ECJ’s judgment held that in relation to Article 5(1)(b) of the GDPR, which requires data processing to be limited, and Article 5(1)(c) of the GDPR requiring data to be minimised, The Directives fall short by virtue of their unlimited allowance of unqualified public accessibility to beneficial owners’ personal information.52 Therefore, on the whole, while the ECJ’s decision may not directly affect the UK, some of the reasoning that it employs is relevant to similar statutes that are in place in the UK. Consequently, the ECJ’s judgment should be interpreted as part of a wider shifting narrative, wherein fundamental rights protection is reaffirmed in today’s digital age.
The Way Forward: Establishing a Middle Ground
Following the ECJ’s judgment, beneficial ownership registers have been shut down across Europe to allow Member States to amend legislation in their respective jurisdictions. This article argues that the way forward lies within the Court’s distinction between personal data (data which relates to the identity of the beneficial owner) and economic data (data which relates to the nature and extent of ownership).53 This distinction could be applied to separate the information that should be publicly accessible and the information that should only be accessible upon proof of a legitimate interest. Accordingly, economic data (the nature and extent of beneficial ownership) and the name of the beneficial owner should be publicly accessible, but personal data(such as country of residence, identification number, nationality, date of birth, place of birth, and complete private/company address) should only be accessible to groups who can prove that they have a legitimate interest in accessing such information.
The proposed distinction would provide a better middle ground so as to accommodate both the demand for increased transparency as well as the need to limit data to what is ‘strictly’ necessary to attain the goal of counteracting money laundering and terrorist financing. This is because parties with a legitimate interest will have full access and can therefore perform their duties and obligations while concurrently retaining a public scrutiny function in a way which does not interfere too greatly with the fundamental rights to private life and data protection. The task of establishing whether a party or individual has a legitimate interest befalls upon the gatekeepers of the beneficial ownership registers; in many Member States, this has been the Chamber of Commerce.54
The proposal advanced in this article goes further than only allowing access to those who can prove a legitimate interest, by suggesting that beneficial ownership registers should be accessible to the wider public as well, albeit this access being limited to only economic data. This is because it is recognised that public access to such information plays an important role in cultivating a hostile environment towards economic crime through the creation of transparency and public scrutiny. Member States are currently responding to the ECJ’s decision with proposed amendments to their beneficial ownership registers. As an illustration, the proposal of the Dutch Ministry of Finance aims to restore access to public authorities on a short-term basis, including to the tax authorities and the Financial Intelligence Unit, as well as to the ‘gatekeepers’ of the financial world: law firms, accountants, notaries and banks.55 The Dutch ministry has expressed that at a later stage, journalists, organisations combating financial crime, and other special interest groups will be able to apply for access upon proof of their legitimate interest.56
Although this approach can be credited with taking on the Court’s suggestions, it is flawed for several reasons. Firstly, it fails to provide a broad working definition of ‘legitimate interest’. Secondly, it completely eliminates accessibility of the data for the wider public, limiting access only to those with a legimitate interest in accessing such beneficial ownership information. One may infer from the Dutch Minister’s silence on the definition of legitimate interest57 that its meaning will be judged on a case-by-case basis. Arguably, such a subjective approach will be highly unfeasible in practice, considering the limited capacity and means of the Dutch Chamber of Commerce, which is deducible from the fact that they are already handling a large backlog of beneficial owner registrations.58 It also places a disproportionate burden on individuals trying to access beneficial ownership information to convince the Chamber of Commerce of their legitimate interest. Most importantly, the Dutch proposal has failed to consider what the boundaries of ‘strict necessity’59 could and should entail, as the analysis pursued in this article has suggested there is a way in which an element of public accessibility can be maintained whilst also taking account of the ECJ’s ruling; a possibility which the Dutch proposal has seemingly ignored. It should be stressed that an important function of the provision allowing public access to such information is that it allows the public to verify information disseminated by journalists and special interest organisations, which will cultivate a more meaningful culture of transparency and scrutiny.
The Council and European Parliament voiced concern not only about the ‘difficulty’ of defining ‘legitimate interest’, but also that a definition could give rise to disharmony in the approaches between Member States.60 This weighed heavily in their decision to abandon a statutory definition of ‘legitimate interest’. In light of this, it is important that the conceptualisation of ‘legitimate interests’ remains flexible so as to accommodate the various jurisdictional differences between Member States. Therefore, this article suggests defining legitimate interest in two categories. Category (1) should cover those organisations and individuals that have a legitimate interest by default, i.e. they are obliged under The Directives to conduct client due diligence or report suspicious transactions. Organisations and individuals under this category, by reference to their obligations, need not apply for access but, through a unique log-in, will always be able to access the necessary information. Category (2) should include those people/organisations who can prove a legitimate interest by way of the test laid down by the Information Commissioner’s Office. The Information Commissioner’s Office’s legitimate interest test requires applicants to identify for what purpose they need the information and whether access is necessary for them to fulfil that purpose.61 The third strand of the test is to be carried out by the body administering the registers, which is likely to be the countries’ Chamber of Commerce, who will judge whether the application disproportionately interferes with the guaranteed rights under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and GDPR legislation more generally. The respective Chambers of Commerce administering the beneficial ownership registers should be aided in such a proportionality assessment by the creation of a list wherein common legitimate interest purposes are summed up in different classifications by the Member State legislatures. Hereby, the registers can simply refer to the list to see if the legitimate interest application falls under a qualified category, an example being journalists applying for access for their research. If the application to access falls outside of an already established category of legitimate interest, then the Chamber of Commerce should be able to refer the application to a court for consideration. Discussing the specific guidelines for the exercise of the proportionality assessment, the implications of creating such a general list of legitimate interest categories, or the adjudication of new legitimate interest categories, lies beyond the scope of this article. A general legal definition of a legitimate interest, such as the one posed by the Information Commissioner’s Office, is already effectively used elsewhere in statutory instruments such as the GDPR.62 While not exhaustive, such a definition does provide a sound universal basis whereupon Member States can identify additional categories and guidelines on proving parties’ legitimate interest. Ultimately, it is hoped that the solution provided in this article helps to achieve a justified balance within the bounds of the ECJ’s judgment.
Conclusion
Conclusively, the ECJ’s judgment in joined cases C-37/20 and C-601/20 amounts to a necessary re-evaluation of the Directive (EU) 2015/849 as amended by Directive (EU) 2018/843, drafted to implement beneficial ownership registers across Europe. The Directives were flawed in their construction as they failed to integrate a ‘legitimate interest’ consideration into the statutory instrument, which resulted in deficient protection of Articles 7 and 8 Fundamental Charter of Fundamental Rights of the European Union. This article has evaluated the Court’s proportionality review and has contended that the distinction between economic data and personal data is under-emphasised in the judgment. This proposed distinction resolves the tension between fundamental rights and combating economic crime: it allows the wider public to have access to non-sensitive economic data while only parties/individuals with a proven legitimate interest can access sensitive personal data. This article has provided a potential definition for ‘legitimate interest’ by splitting the term into two categories: (1) includes individuals/organisations who get access by default without submitting any proof on the basis of their status, and (2) includes individuals/organisations who can show a justified reason for access. The suggested approach will not only alleviate the tension between the conflicting protection of rights and the objectives of the 4th and 5th AMLDs, but also retain some element of public access to beneficial ownership information — a possibility which the Member States have thus far seemingly ignored.
[1] 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 [2018] OJ L156/43 (Directive (EU) 2018/843).
[2] Joined cases C-37/20 and C-601/20 WM, Sovim SA v Luxembourg Business Registers [2022] ECR I-912.
[3] WM, Sovim SA (n 2).
[4] 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 [2016] OJ L119/1 (GDPR).
[5] UK Government ‘Economic Crime and Transparency Bill 2022 Factsheet: the role and powers of the Registrar of Companies’ (2023) <https://www.gov.uk/government/publications/economic-crime-and-corporate-transparency-bill-2022-factsheets/fact-sheet-the-role-and-powers-of-the-registrar-of-companies> accessed 20 February 2023.
[6] WM, Sovim SA (n 2) [56].
[7] ibid.
[8] ibid [76].
[9] ibid [63].
[10] Directive (EU) 2018/843.
[11] WM, Sovim SA (n 2) [5].
[12] Economic Crime and Transparency Bill 2022 Factsheet (n 5).
[13] ‘Beneficial Ownership Register of Certain Financial Vehicles: Guidance’ (Central Bank of Ireland, November 2022) 8 <https://www.centralbank.ie/docs/default-source/regulation/amld-/beneficial-ownership-register/beneficial-ownership-register-of-certain-financial-vehicles-guidance.pdf?sfvrsn=5517921d_31> accessed 20 February 2023.
[14] 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 [2018] OJ L156/43.
[15] ‘Panama Papers four years on: anonymous companies and global wealth’ (Transparency International, 9 April 2020) https://www.transparency.org/en/news/panama-papers-four-years-on-anonymous-companies-and-global-wealth> accessed 10 March 2023.
[16] Tom Wright and Bradley Hope, Billion dollar whale: the man who fooled Wall Street, Hollywood, and the world (Hachette Books 2018).
[17] ‘One year on, Russian oligarchs can more easily evade EU sanctions thanks to EU court ruling’ (Tax Justice Network, 24 February 2023) <https://taxjustice.net/press/one-year-on-russian-oligarchs-can-more-easily-evade-eu-sanctions-thanks-to-eu-court-ruling/> accessed 10 March 2023.
[18] WM, Sovim SA (n 2) [16].
[19] ibid [42] and [44].
[20] ibid [41].
[21] ibid [42]-[43].
[22] ibid [63]-[64].
[23] ibid [75].
[24] ibid [92].
[25] Tax Justice Network (n 17).
[26] Jon Felce, ‘Transparency torpedoed by CJEU’ (The Law Society Gazette, 6 January 2023) <https://www.lawgazette.co.uk/practice-points/transparency-torpedoed-by-cjeu/5114670.article> accessed 14 January 2022.
[27] Maira Martini, ‘Why are EU public registers going offline, and what’s next for corporate transparency’ (Transparency International Blog, 25 November 2022) <https://www.transparency.org/en/blog/cjeu-ruling-eu-public-beneficial-ownership-registers-what-next-for-corporate-transparency> accessed 14 February 2023.
[28] ‘Beneficial ownership data is critical in the fight against corruption’ (Organized Crime and Corruption Reporting Project Blog, 30 November 2022) <https://www.occrp.org/en/beneficial-ownership-data-is-critical-in-the-fight-against-corruption/> accessed 10 February 2023.
[29] Tom Burgis, Kleptomania: how dirty money is conquering the world (Harper 2020).
[30] Oliver Bullough, Moneyland: why thieves and crooks now rule the world and how to take it back (Profile Books Ltd 2018).
[31] WM, Sovim SA (n 2) [3].
[32] Filippo Noseda, ‘Supporting the ECJ’s ruling’ (The Economist, 15 December 2022). <https://www.economist.com/letters/2022/12/15/letters-to-the-editor> accessed 10 January 2023.
[33] ibid.
[34] ibid.
[35] WM, Sovim SA (n 2) [1].
[36] ibid [76].
[37] Magdalena Brewczynska, ‘“Privacy and data protection vs public access to entrepeneurs” personal data, score 2:0’ (European Law Blog, 15 December 2022) <https://europeanlawblog.eu/2022/12/15/privacy-and-data-protection-vs-public-access-to-entrepreneurs-personal-data-score-20/> accessed 7 February 2023.
[38] ‘EU Court of Justice delivers blow to beneficial ownership transparency’ (Transparency International, 22 November 2022) <https://www.transparency.org/en/press/eu-court-of-justice-delivers-blow-to-beneficial-ownership-transparency> accessed 20 March 2023.
[39] ‘Laundry Softener, The EU’s top Court has made it harder to uncover dirty money’ (The Economist, 1 December 2022) <https://www.economist.com/finance-and-economics/2022/12/01/the-eus-top-court-has-made-it-harder-to-uncover-dirty-money> accessed 15 December 2022.
[40] WM, Sovim SA (n 2) [68]-[69].
[41] Filippo Noseda, ‘European Court of Justice strikes down public registers of beneficial ownership’ (Mishcon de Reya, 22 November 2022) <https://www.mishcon.com/news/european-court-of-justice-strikes-down-public-registers-of-beneficial-ownership> accessed 22 January 2023.
[42] WM, Sovim SA (n 2) [68].
[43] Companies Act 2006 pt 21A.
[44] ‘Guidance: Register an overseas entity and tell us about its beneficial owners’ (Companies House, 25 July 2022) <https://www.gov.uk/guidance/register-an-overseas-entity> accessed 10 February 2023.
[45] Ruby Hamid, David Capps and Neil Donovan, ‘ECJ decision on beneficial ownership registers impacts the fight against money-laundering’ (Ashurst, 25 November 2022) <https://www.ashurst.com/en/news-and-insights/legal-updates/ecj-decision-on-beneficial-ownership-registers-impacts-the-fight-against-money-laundering/> accessed 27 February 2023.
[46] Emma Agyemang, ‘Taxpayer in Court challenge to UK-US data pact’ (Financial Times, 29 October 2021) <https://www.ft.com/content/77db28e8-6a09-476d-9c07-dc32813afdd5> accessed 22 January 2023.
[47] Human Rights Act 1998, sch 1 pt 1 art 8.
[48] ibid s 4.
[49] ‘How the Human Rights Act Works’(Liberty) <https://www.libertyhumanrights.org.uk/your-rights/the-human-rights-act/how-the-human-rights-act-works/> accessed 20 March 2023.
[50] Filippo Noseda (n 41).
[51] GDPR ch 4.
[52] WM, Sovim SA (n 2) [33].
[53] ibid [50].
[54] ‘The UBO Register: Questions and Awnsers’ (Kamer van Koophandel) <https://www.kvk.nl/english/the-ubo-register-questions-and-answers/> accessed 22 April 2023.
[55] Ministerie van Financiën, ‘Analyse en Opvolging Uitspraak Hof van Justitie EU over het UBO-Register’ (released 20 January 2023) <https://open.overheid.nl/documenten/ronl-6e4efaa52fc5cd8e0680a951602f0fab1c06df19/pdf> accessed 10 February 2023.
[56] ibid.
[57] ibid.
[58] Rutger Betlem, ‘Achterstanden Kamer van Koophandel frustreren financiele sector’ (Het Financieele Dagblad, 3 July 2022) <https://fd.nl/financiele-markten/1443454/achterstanden-kamer-van-koophandel-frustreren-financiele-sector> accessed 20 March 2023.
[59] WM, Sovim SA (n 2) [65].
[60] ibid [70]-[71].
[61] ‘What is the legitimate interests basis? Guide to Data Protection, Guide to the GDPR’ (Information Commissioner’s Office) <https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/legitimate-interests/what-is-the-legitimate-interests-basis/> accessed 5 February 2023.
[62] GDPR, art 6(1)(f).
Jackie Veeger
LLB (LSE) ’23 and Notes Editor of the LSE Law Review 2022-23