On 22 November 2022, the Court of Justice of the European Union (CJEU), ruled in relation to the Directive 2018/843, that the legal provision whereby information on the beneficial ownership of companies and other entities is accessible in all cases to any member of the general public, is invalid. On the same day, following this Judgement, public access to the UBO register was suspended in several Member States. In Greece, access to the Register of Beneficial Owners for the general public is temporarily suspended as of the 1st of December 2022 until the 31st of January 2023. The suspension was granted in order to examine the necessity of adapting national legislation to the CJEU ruling.
Directives 2015/849 & 2018/843
In the version prior to the entry into force of Directive 2018/843, Article 30(5) of Directive 2015/849 was worded as follows:
“5. Member States shall ensure that the information on the beneficial ownership is accessible in all cases to:
(a) competent authorities and [Financial Intelligence Units], without any restriction;
(b) obliged entities, within the framework of customer due diligence in accordance with Chapter II;
(c) any person or organization that can demonstrate a legitimate interest.
The persons or organizations referred to in point (c) shall access at least the name, the month and year of birth, the nationality and the country of residence of the beneficial owner as well as the nature and extent of the beneficial interest held. […]”.
Article 1(15)(c) of Directive 2018/843 amended paragraph (5) subsection (c) of Article 30 of Directive 2015/849 to "Any member of the general public", namely without the prior restriction of having to demonstrate a legitimate interest to have access to information on beneficial ownership
The establishment of Ownership Registers that are publicly accessible raised concerns in terms of invasion of privacy.
The European Court of Justice Judgment dated 22nd November 2022
According to the abovementioned Judgement, the general public’s access to information on beneficial ownership constitutes a serious interference with the fundamental rights to respect for private life, to the protection of personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union respectively.
As regards the seriousness of that interference, this information is capable of enabling a profile to be drawn up concerning certain personal identifying data more or less extensive in nature depending on the configuration of national law, the state of the person’s wealth and the economic sectors, countries and specific undertakings in which he or she has invested and enables a potentially unlimited number of persons to find out about the material and financial situation of a beneficial owner.
Furthermore, the potential consequences for the data subjects resulting from possible abuse of their personal data are exacerbated by the fact that, once those data have been made available to the general public, they cannot only be freely consulted, but also retained and disseminated. This serious interference is not justified by its purpose i.e. countering money laundering and terrorist financing.
At the hearing, the Commission was asked to indicate whether it had considered proposing a uniform definition of “legitimate interest”, in order to offset the risk that the obligation for any person or organization to demonstrate such an interest, as initially provided for by Directive 2015/849, might lead to excessive limitations on access to information on beneficial ownership, owing to differences in the definition of ‘legitimate interest’ in the Member States.
In response to that question, although the Commission observed that the criterion of “legitimate interest” was a concept which did not lend itself easily to a legal definition, it was held that the fact that it may be difficult to provide a detailed definition of the circumstances and conditions under which the public may access information on beneficial ownership, constitutes no reason for the EU legislature to provide for the general public to access that information.
Access to the UBO Registry according to Greek Law
Greek Law 4557/2018, incorporated Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and introduces an explicit obligation for legal entities having their registered offices in Greece, to retain adequate, accurate, and up-to-date information on their own ultimate beneficial ownership in a special register kept at the registered offices of the legal entities.
Consequently, Ministerial Decisions of the Minister of Finance No. 67343 ΕΞ/19.06.2019, 73900 ΕΞ/02.07.2019 and 125209 ΕΞ/08.09.2022 have been published in the Government Gazette, stipulating regulations on specific matters of the Law 4557/2018, such as the list of obliged persons, compliance deadlines and access issues to the UBO Registry of articles 20 and 21 of the Law 4557/2018.
According to the Articles 3 & 4 of the Decision No 125209 ΕΞ/08.09.2022 right of access to the UBO Registry have:
- the Anti-Money Laundering Authority, the competent supervisory authorities (prosecuting or other authorities with investigative or auditing competencies in the sector of anti-money laundering), the competent authorities as per article 6 of the Law 4557/2018.
- the obliged persons as per article 5 of the Law 4557/2018 (indicatively credit institutions and any other credit entity of Law 4438/2016, banking institutions, auditors/auditing firms, notary publics and lawyers etc.) and
- the general public.
Full access to the data has already been granted to the competent Audit Authorities since the entry into force of Law 4557/2018, while restricted access is granted to other competent authorities and the obliged entities only for due diligence purposes according to Anti-Money Laundering Law. Public access for individuals is permitted for certain information (full name, nationality, nature and extent of UBO’s rights).
Access to the Ultimate Beneficial Owners Register for the general public
Members of the general public have access to the UBO data relating to the surname, first name, father’s name and surname, month and year of birth, country of citizenship and to the data of the legal entities relating to the type, General Commercial Registry’s number, trade name, distinctive title, registered office and contact details. In case of legal entities that hold a percentage of shares or ownership rights of other legal entities, as per par. 17 of article 3 of the Law, the general public only has access to the details of the ultimate beneficial owners. A member of the general public may have access to additional information enabling the identification of the UBO, including the Tax Identification Number (TIN) upon proof of a special legal interest established following a prosecutor's order as per article 34 of the Greek Code of Criminal Procedure. In this case, the member of the general public shall submit a new request for the enhanced information, attaching the relevant prosecution order, so as to be granted the enhanced rights role. The public gains access by using the codes of the TAXISNET Platform. In case of access to additional information that allows the identification of the UBO, following a prosecutor's order, the member of the public submits a specific document to the relevant application. It shall be noted that the registered persons/entities are informed of the searches made for them by members of the public and the users of the system accept the notification of the registered persons/entities regarding the searches made by them. An access fee of 5 euros per search is set for individuals.
According to the Article 12 of the of the Decision No 125209 ΕΞ/08.09.2022 the commencement date of access for the general public to the UBO data had been initially set for 1.12.2022, but has now been temporarily suspended until 31.1.2023 as the outcome of the recent CJEU judgment and the respective need to consider potential adjustments in national rules.