The EU court ruling ending public access to European ultimate beneficial owner registries lays bare a long-standing political-legal dispute in society over what sorts of interests should be paramount: jurisprudence or morality. As Luxembourg awaits a solution on restoring access for professionals, Investment Officer spoke to a number of legal specialists about the case.
Public access to the registers of ultimate beneficial owners (UBOs) was the signature aspect of the EU’s fifth anti-money-laundering (AML) directive. In introducing it, the European Commission had argued that public access would allow “greater scrutiny of information by civil society, including by the press or civil society organisations.”
The Grand Duchy did everything it could to have a fully-public UBO register, explained Pierre-Jean Estagerie, a senior counsel in tax and estate planning at the Molitor law firm. “It all started from a willingness to be compliant, and to be as transparent as possible as a country.”
Estagerie said he and many lawyers had also lost access to the registry pending a new way to access it, which he said would soon come. “Professionals (and journalists) should have access [again] any time soon.”
Importance of public access
Much of the dispute about this ruling came from those arguing for the importance of this public access. “Access to beneficial ownership data is vital to identifying – and stopping – corruption and dirty money,” said Maíra Martini, an anti-corruption expert at Transparency International.
Opponents of the ruling have been harsh.
“The European Court of Justice’s decision ignores all the lessons learned over the past decade from leaks like the Pandora Papers and Panama Papers,” said Moran Harari, a senior researcher at anti-tax haven group the Tax Justice Network.
But this is not a universal view.
Adrien Pierre, a senior associate at the Loyens & Loeff law firm, emphasised that “even if this judgement may come as a surprise, it should not be perceived as an obstacle to the fight against money laundering and the financing of terrorism.”
The lawyer’s argued that official efforts to root out AML/CFT abuses will continue unhindered.
“The cutting off of public access to UBO registers will not prevent the compliance of obliged entities with their professional obligations under the AML/CFT framework,” said Pierre, “although we understand that specialised press and certain NGOs may have legitimate concerns about transparency.”
Struggle ever-present
How could a European Commission law be overturned as soon as someone listed on the registry complained through the courts?
“Whereas it may now seem surprising that such a provision found its way into [the 5th AML Directive] the struggle between fundamental rights and general interest on this issue was present from the outset,” said Vanesa Gomez Pena, an associate at Loyens & Loeff.
Indeed, while the European Commission emphasised the advantages of public access, there was no consensus. The European Data Protection Supervisor didn’t agree with the approach, arguing for a more limited system “ensuring access only to entities who are in charge of enforcing the law,” Gomez Pena explained.
She made clear that the European governing institutions did not disregard the privacy and data protection issues. Instead, they “made a conscious choice, deciding that… granting public access to UBO information to any person is a justified measure” superseding privacy/data protection concerns.
The lawyer pointed to the context in which the 5th AML directive was made in July 2016, following the November 2015 Paris terrorist attacks and the April 2016 publication of the Panama Papers. “EU institutions may have been eager to show a willingness for transparency.”
Changing social values
For Estagerie, this struggle between fundamental rights and general interest has become a feature of many recent laws.
“Somehow the debate shifted from the pure legal field to the moral field,” he said. “And because of pressure from the public, from the man in the street, the way one looks at the situation is more on the moral side, sometimes.”
Estagerie explained that he’s seen similar features in the whistle-blowing directive, the AML directive or DAC-6 on aggressive tax planning. “Those two angles are valid and they will likely overlap in the future but one shall ensure that fundamental rights are respected. This will create difficulties that will not be solved at once. It’s a legitimate debate though.”
On behalf of Russian clients
Since the ruling was published it has become clear that the Luxembourg court case was brought by a local businessman named Patrick Hansen who owns a private jet business called Luxaviation, on behalf of his Russian clients. They did not appreciate this greater transparency, and argued that this put them at personal risk when traveling. According to a 1 December report published by the International Consortium of Investigative Journalists, Hansen owns companies in high-profile tax havens including the British Virgin Island, as well as Belize.