On June 16th a new Statutory Instrument (S.I.) 308/2023 - relating to European Union (Anti-Money Laundering: Beneficial Ownership Of Corporate Entities) (Amendment) Regulations 2023 was published. The S.I. aims to change access to the beneficial ownership register (RBO) which was shut to the general public last year.
Background
Prior to the decision by the Court of Justice of the European Union (CJEU) in November 2022, under SI 110/2019, there was two-tier access to the RBO platform. The first tier was to relevant entities, for example, the Gardai, FIU, Central Bank, etc. The second tier was for designated persons and the general public.
In November 2022 following two separate cases were brought before the Luxemburg courts by a Luxembourg Company and its beneficial owners where requests were made to restrict public access to certain beneficial ownership information. The Luxemburg Courts then referred back to the CJEU which ruled that a provision under AMLD4, as amended by AMLD5, which granted the public access to the personal information of beneficial owners was invalid in the light of the Charter of Fundamental Rights of the European Union. Ultimately, it was found that the general public’s access to information on beneficial ownership constituted a serious interference with the fundamental rights in respect of private life and the protection of personal data.
Following this, on the 28th of November, the RBO notified users the search facility was suspended and in the subsequent weeks the RBO worked to give named persons only access back to the platform through the BEN3A1 process. Please see our dedicated post on the BEN3A1 https://www.cpdstore.ie/blog/rbo-updates-for-2023-and-changes-to-how-designated-persons-access-the-platform
As discussed in previous posts the Council of the European Union had proposed provision for access to beneficial ownership information, by the public, should be on the basis of ‘legitimate interest’. Which has now followed through on S.I. 308/2023.
Does this mean the general public now has access back to the RBO?
Yes but no…S.I. 308/2023 grants the general public access but only if they make a formal submission to RBO which must include;
- That the person seeking the report is doing so in the prevention, detection or investigation of money laundering or terrorist financing offences,
- They are seeking access to the information in pursuit of those aims,
- This does not need to be related to legal proceedings or live administration against the entity
- The submission is connected with persons convicted (whether in the State or elsewhere) of an offence consisting of money laundering or terrorist financing or holds assets in a high-risk third country.
This submission must be made to the RBO, who can reject or accept such.
The RBO is currently in the process of organising this process and once developed they will make the relevant announcements.
Miscellaneous Items
S.I. 308/2023 also included that the Registrar must retain records or access requests and those which were granted for a period of 5 years from the date that record was created.
If you require assistance or advice, please contact our Company Secretarial team on 053 91 000 00 or email [email protected]
The contents of this article are meant as a guide only and are not a substitute for professional advice. The authors accept no responsibility for any action taken, or refrained from, as a result of the material contained in this document. Specific advice should be obtained before acting or refraining from acting, in connection with the matters dealt with in this article.
