The Luxembourg District Court has requested the CJEU to give a preliminary ruling on the interpretation to be given to the concepts of "exceptional circumstances", "risk" and "disproportionate risk" as set out in Article 30 (9) of Directive (EU) 2015/849 and the corresponding national provisions of Article 15(1) of the RBE Law.
Following the adoption of the Law of 13 January 2019 establishing a Register of Beneficial Owners, and having transposed Article 30 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, as amended by Directive (EU) 2018/843 dated 30 May 2018 (hereinafter the "RBE Law"), entities registered with the Luxembourg Trade and Companies Register are required, since March 1st, 2019, to identify their beneficial owners and to make their identity public in the Register of Beneficial Owners (the "RBE").
As an exception to the general principle, Article 15 of the RBE Law provides that a registered entity, or a beneficial owner, may request the manager of the RBE, "in exceptional circumstances", and on the basis of a duly motivated request, to limit access to information on beneficial owners to national authorities only. According to the RBE Law, it is necessary to demonstrate that such access would expose the beneficial owner to a “disproportionate risk, to the risk of fraud, abduction, blackmail, extortion, harassment, violence or intimidation or where the beneficial owner is a minor or is otherwise incapacitated”.
Such exception has been very widely used in Luxembourg by applicants who tried to remain anonymous. Indeed, since the beginning of 2020, more than 16,000 requests for limited access have been registered, most of which were rejected.
In case of refusal by the RBE’s manager to limit access to national authorities only, the registered entity or the beneficial owner has the right to appeal within 15 days to the competent court to request the annulment of the refusal decision.
Following a judicial claim for annulment of a decision of refusal by the RBE’s manager concerning a request for limitation of access, the Luxembourg District Court has decided to submit a referral to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the interpretation of the concepts of "exceptional circumstances", "disproportionate risk" and "risk" as set out in Article 30(9) of Directive (EU) 2015/849 and as reproduced in the RBE Law.
Since the submission of the referral for a preliminary ruling before the CJEU, several similar cases brought before the Luxembourg courts have been suspended, pending a decision by the CJEU.
The decision of the CJEU is eagerly awaited as it will clarify the reasons that can be validly submitted to request a restriction of public access to information on a beneficial owner in the RBE.
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