New Irish regulations on access to beneficial ownership information

In a surprise move, notification of regulations amending the European Union (Anti-Money laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (the 2019 Regulations) was published in the Iris Oifigiúil on Friday, 16 June 2023. The European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) (Amendment) Regulations 2023 (the 2023 Regulations) were signed into law by the Minister for Finance on 13 June 2023.

What central registers are impacted?

Public access to the following central registers is impacted by the 2023 Regulations:

  • the Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies (the RBO) maintained by the Registrar of Companies
  • the Central Register of Beneficial Ownership of Irish Collective Asset-management Vehicles (ICAVs), Credit Unions and Unit Trusts maintained by the Central Bank of Ireland (the CBI)

The Central Register of Beneficial Ownership of Common Contractual Funds and Investment Limited Partnerships is also maintained by the CBI pursuant to the Investment Limited Partnerships (Amendment) Act 2020 (the ILPs Act), but it is not caught by the 2023 Regulations. A separate amendment is required to the ILPs Act to bring it in line with the other central registers.

Access

All the central registers are available for inspection by:

  • certain public bodies, such as members of An Garda Síochána above a certain rank (unrestricted access)
  • relevant competent authorities, such as staff of the Department of Justice and CBI above a certain level of seniority (unrestricted access)
  • designated persons, as defined by section 25 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (restricted access – i.e. access to a more limited amount of information)

Access by the above is not affected by the 2023 Regulations.

Amendment to 2019 Regulations

The primary amendment introduced by the 2023 Regulations is the insertion of a 'legitimate interest' test for determining whether any person, other than those listed above, will have a right of inspection. The person seeking access must demonstrate that they are "engaged in the prevention, detection or investigation of money laundering or terrorist financing offences" and are seeking the information for these purposes. They must also show that the entity they're interested in: "(i) is connected with persons convicted (whether in the State or elsewhere) of an offence consisting of money laundering or terrorist financing, or (ii) holds assets in a high-risk third country."

A legitimate interest is demonstrated by the person making a submission and, if required by the Registrar (RBO or CBI), "supplying information or documents relating to that person's previous activities, if any, in the prevention, detection or investigation of money laundering or terrorist financing offences". The Registrar may refuse access and there is currently no mechanism in the 2023 Regulations to challenge this decision.

​The Registrar is obliged to keep a record (for five years) of each application for access to, or inspection of, beneficial ownership information and of each decision taken.

Background

This change to the general public's right of access to information on the central registers of beneficial ownership follows the landmark ruling last November of the EU's Court of Justice (the CJEU) on Article 30(5)(c) of the Fourth Anti-Money Laundering Directive (4AMLD), as amended by the Fifth Anti-Money Laundering Directive.

The CJEU held that the provision of a right of indiscriminate public access to beneficial ownership information constituted a serious interference with the fundamental rights to respect for private life and to the protection of personal data. Such interference was neither limited to what was strictly necessary nor proportionate to the objective being pursued (prevention of money laundering and terrorist financing) and the legislative provisions permitting such access were therefore invalid.

Ireland, like many other Member States, adjusted its policies with regards to public access to beneficial ownership central registers in response to the Court's ruling and essentially locked its registers down. Designated persons must apply to the RBO for access by completing a Form BEN3A1 'Declaration as a Designated Persons for Administrative access to the RBO Register' and to the CBI by completing a BOR 4 Form 'Designated Person Access Request'.

It should be noted that, while the 2023 Regulations clarify the rules around public access to beneficial ownership information in Ireland, there has been no formal legislative change at EU level to-date.

Comment

​The test for legitimate interest is not defined in 4AMLD. However, the legitimate interest test deployed in the 2023 Regulations is the same as that in the European Union (Anti-Money Laundering: Beneficial Ownership of Trusts) Regulations 2021. While the imposition of a test for public access is in line with the ruling of the CJEU in November 2022, the Irish test presents a high bar to access, which will be challenging to meet. However, in the context of balancing the right to privacy against the objective of countering money laundering and terrorist financing, it may be a prudent move – at least until new laws are introduced by the EU.

For more information in relation to this topic, please contact Nollaig Greene, Senior Knowledge Lawyer,  Anne O’Neill, Senior Knowledge Executive or any other member of ALG’s Asset Management & Investment Funds team. 

Date published: 27 June 2023