CJEU Joined Cases C-684/24 and C-685/24 / Opinion
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CJEU Joined Cases C-684/24 and C-685/24 / Opinion
Key facts of the case:
Reference for a preliminary ruling – Prevention of the use of the financial system for the purposes of money laundering or terrorist financing – Directive (EU) 2015/849 – Article 31 – Concept of legal arrangements having ‘a structure or functions similar to trusts’ – Trust mandates concluded by Italian trust companies (mandato fiduciario) – Access by persons with a legitimate interest to beneficial ownership information – 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 – Principle of legal certainty – Concept of ‘legitimate interest’ – Right to an effective judicial remedy – Interim legal protection
Outcome of the case:
In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows:
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Examination of the questions referred for a preliminary ruling has not revealed any factor of such a kind as to affect the validity of Article 31(1) and (2), point (c) of the first subparagraph of Article 31(4) and Article 31(10) 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, as amended by Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018.
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Article 31(1), (2) and (10) of Directive 2015/849, as amended by Directive 2018/843,
must be interpreted as not precluding national legislation which includes, among legal arrangements similar to trusts, the trust mandates of trust companies as types of economic and legal transactions, assessed based on their substantial characteristics, if the structure and the functions ultimately mean that assets are placed in the name of another person. The fact that the trust mandates of trust companies are subject to obligations and to supervision by national authorities is irrelevant in that regard.
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Point (c) of the first subparagraph of Article 31(4) of Directive 2015/849, as amended by Directive 2018/843, read in the light of Articles 7, 8 and 52 of the Charter of Fundamental Rights of the European Union,
must be interpreted as not precluding national legislation which grants access to the information on beneficial ownership of legal arrangements similar to trusts to individuals, including those with a diffuse interest, who have a relevant and differentiated legal interest, in cases where knowledge of such beneficial ownership is necessary to address or defend an interest corresponding to a legally protected situation, where those individuals have concrete, documented evidence of non-correspondence between beneficial ownership and legal ownership, where that legislation also requires that the interest be direct, concrete and current and, in the case of entities representing diffuse interests, that it does not coincide with the interest of individuals belonging to the category represented.
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Article 31(7a) of Directive 2015/849, as amended by Directive 2018/843, read in the light of Article 47 of the Charter of Fundamental Rights,
must be interpreted as not precluding national legislation which confers on a non-judicial body the power to assess whether the necessary conditions for the grant of an exemption from access to the beneficial ownership information of legal arrangements similar to trusts are satisfied, provided that the judicial proceedings following the decision of that body include the possibility, where appropriate, of preserving the rights of those beneficial owners during the proceedings, including by means of interim relief.
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Paragraphs referring to EU Charter
51. By those two questions, which should in my view be examined jointly, the referring court asks the Court, in essence, about the validity of point (c) of the first subparagraph of Article 31(4) of Directive 2015/849 in the light of Articles 7 and 8 of the Charter, which protect the right to respect for private and family life and the right to the protection of personal data, as well as about the interpretation of the first of those provisions with a view to determining whether it precludes the national provisions that transposed it, by providing for a definition of legitimate interest in the Italian legal system.
52. With regard to the validity of that provision, some guidance may be found in the judgment in Luxembourg Business Registers, which declared invalid, in the light of Articles 7 and 8 of the Charter, the provision introducing access in all cases by any member of the general public to the beneficial ownership information of companies and other legal entities. (21) Thus, in that judgment, the Court acknowledged that such access constituted serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. (22)
53. Furthermore, as regards the justification for the interference arising from such access by the general public to that information, the Court recalled that Article 52(1) of the Charter lays down four conditions on any limitation on the exercise of fundamental rights. That limitation must be provided for by law, respect the essence of those rights and, subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the European Union. (23)
54. In the judgment in Luxembourg Business Registers, the Court found that the conditions laid down in the first sentence of Article 52(1) of the Charter, relating to observance of the principle of legality (24) and to respect for the essence of the fundamental rights guaranteed in Articles 7 and 8 of the Charter, (25) were satisfied. It also established that the purpose of that interference, namely to prevent money laundering and terrorist financing by creating, by means of increased transparency, an environment less likely to be used for those purposes, constituted an objective of general interest capable of justifying even serious interference with those fundamental rights. (26)
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67.Accordingly, where a person wishes to access information on the beneficial ownership of trusts, that person must provide proof of its legitimate interest, having regard to the objective of combatting money laundering and terrorist financing. Such an interpretation is consistent with respect for the rights protected under Articles 7 and 8 of the Charter.
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70. However, nor do those authorities have complete freedom in assessing the legitimate interest relied upon by the person wishing to access the information. It is settled case-law that, when implementing the measures transposing a directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also ensure that they do not rely on an interpretation of the directive that would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles recognised by EU law. (41) Accordingly, those authorities must adopt an interpretation of the concept of a ‘legitimate interest’ which ensures that a fair balance is struck between the objective of combatting money laundering and terrorist financing and the rights protected by Articles 7 and 8 of the Charter. They could therefore neither systematically deny access to information nor, conversely, grant requests for access in all cases.
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72. In conclusion, I take the view that point (c) of the first subparagraph of Article 31(4) of Directive 2015/849, read in the light of Articles 7, 8 and 52 of the Charter, should be interpreted as not precluding national legislation which grants access to the information on beneficial ownership of similar legal arrangements to individuals, including those with a diffuse interest, who have a relevant and differentiated legal interest, in cases where knowledge of the beneficial ownership is necessary to address or defend an interest corresponding to a legally protected situation, where they have concrete, documented evidence of non-correspondence between beneficial ownership and legal ownership, where that legislation also requires that the interest be direct, concrete and current and, in the case of entities representing diffuse interests, that it does not coincide with the interest of individuals belonging to the category represented.
73. By that question, the referring court asks, in essence, whether Article 31(7a) of Directive 2015/849, read in the light of Article 47 of the Charter, can be interpreted as precluding national legislation which confers on an administrative, non-judicial body the power to make a decision on the disclosure of data relating to beneficial ownership, whilst providing for a judicial remedy after such disclosure.
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76. I would observe, first, that beneficial owners must be informed of their rights in relation to the protection of personal data. (44) Second, the right to an effective judicial remedy protected by Article 47 of the Charter does not require that a decision such as that assessing whether a beneficial owner satisfies the conditions to be granted an exemption from access to information relating to that owner is taken by a judicial body. However, that article does require that the decision of an authority which does not itself satisfy the conditions laid down in Article 47 of the Charter be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues. (45) In addition, it is settled case-law that a national court seised of a dispute governed by EU law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence and scope of the rights claimed under EU law. (46) Article 31(7a) of Directive 2015/849 must be interpreted in the light of those principles.
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84. I therefore propose that the following answer be given to the referring court: Article 31(7a) of Directive 2015/849, read in the light of Article 47 of the Charter, must be interpreted as not precluding national legislation which confers on a non-judicial body the power to assess whether the necessary conditions for the grant of an exemption from access to the beneficial ownership information of similar legal arrangements are satisfied, provided that the judicial proceedings following the decision of that body include the possibility, where appropriate, of preserving the rights of those beneficial owners during the proceedings, including by means of interim relief.
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Paragraphs referring to EU Charter (original language)