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Luxembourg courts refer questions on public registers of beneficial ownership to CJEU

Posted on 09 December 2020

Following a number of appeals, including from Mishcon de Reya LLP, it is understood that the Luxembourg courts have asked the Court of Justice of the European Union (CJEU) a number of questions relating to the validity of public registers of beneficial ownership.  This is the latest development in a long-running debate related to concerns with the Common Reporting Standard (CRS) and Beneficial Ownership registers (BO). In 2018 Mishcon de Reya published the report The Big Debate: Transparency Versus Privacy, the findings of which have been critical in bringing these issues to light.

Commenting on this latest development, Partner Filippo Noseda said:

'It has come to my attention that the Luxembourg courts have decided to refer the question of the compatibility of public registers of beneficial ownership with fundamental rights to the European Court of Justice.

'This is welcome news in what is a very sensitive area. Indiscriminate access to personal information raises serious legal issues for company owners and their families. We filed several appeals against the Luxembourg Business Register and asked that the matter be referred to the European Court of Justice. I would like to thank Luther and NautaDutilh, who assisted us with this.

'The request for a ruling has direct implications for all EU Member States, because the introduction of public registers is an EU requirement under the 5th anti-money laundering directive. It has also direct implications for the UK's Crown Dependencies and Overseas Territories (such as Bermuda, the BVI and the Cayman Islands) who have been pressured by the UK government to introduce fully public registers as opposed to registers that are accessible to authorities and parties showing a legitimate interest.'

Previously, the Luxembourg courts raised an interpretational point with the CJEU, which is still pending (see here).  However, the new challenges were aimed at raising the fundamental question of the validity of the law and the compatibility of public registers with individuals' fundamental rights.

Mishcon de Reya has raised data protection concerns in relation to FATCA, the CRS, as well as public registers of beneficial ownership with appearances before the European Parliament, more than 30 letters sent to the EU and legal challenges in the UK and various EU countries. Most recently, Partner Filippo Noseda made an appearance before the European Parliament in connection with a petition brought by an individual known as 'J.R.'.

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