Counsel – Legal Department
On 22 November 2022, the European Court of Justice (the “ECJ”), ruled that the provision included in the Directive 2018/843 (the “5th AML Directive”) under which Member States must ensure that the information on the beneficial ownership of companies incorporated within their jurisdiction should be accessible in all cases to any member of the public, is invalid.
The judgement of the ECJ mainly focused on the right of access to the beneficial owners’ registers to the public and stressed that such right seriously interferes with the fundamental rights to respect for private life and to the protection of personal data in accordance with the EU Charter of Fundamental Rights and in particular Articles 7 and 8 of the said Charter.
According to the ECJ, such interference is not limited to what is strictly necessary and is not proportionate to the objective aimed.
The ECJ went on to state that the information made available to the public 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 beneficiaries resulting from possible abuse of their personal data are worsen by the fact that, once those data have been made available to the general public, they can be freely consulted, but also kept and spread out.
As an immediate reaction to the above decision of the ECJ, certain Members States and in particular Luxemburg and the Netherlands, have suspended public access to their UBO Registers.
The Department of Registrar of Companies and Intellectual Property (the “RoC”) in its turn, announced on the 28th of November 2022 that, following the Judgement of the ECJ, access to the Register of Beneficial Owners for the general public is suspended as of the 23rd of November 2022.
The relevant information to the competent and supervisory authorities as referred in the relevant Directive, will continue to be provided with the applicable procedure.
Obliged entities (as defined in the Cypriot AML Law), which among others include lawyers, independent legal consultants, administrative service providers providing fiduciary services (nominee directors, nominee shareholders etc) banks, auditors, tax consultants etc., can request the Registrar of Companies to provide them with such information in the context of performing customer due diligence, for example when onboarding a client. The said obliged entities, in order to obtain such information, will need to submit a declaration to the Registrar of companies, confirming that the reason for requesting this information is for compliance with their legal obligation to perform due diligence on their clients/beneficial owners in accordance with the requirements of the law. The declaration will in turn be examined by the Registrar of Companies who will decide whether to disclose or not the said information. In essence, the request for the provision of such a declaration by the obliged entities, ensures an additional level of protection of the data, ensuring that these are released only to those who are legally allowed to have access to it.
The RoC further clarified that the obligation of companies and partnerships to submit and update their Beneficial Owners information is not affected and remains valid.
In effect, the information as to Beneficial Owners will continue to be recorded to the Registrar of Companies BUT the information will not be accessible to the general public as it was used to be until now.
The information will only be accessible without any restrictions to the competent and supervisory authorities, the Unit for Combating Money Laundering (MOKAS), the Customs and Excise Department, the Tax Department and the Police.
This publication has been prepared as a general guide and for information purposes only. It is not a substitution for professional advice. One must not rely on it without receiving independent advice based on the particular facts of his/her own case. No responsibility can be accepted by the author or the publishers for any loss occasioned by acting or refraining from acting on the basis of this publication.
Counsel – Legal Department
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