Opinion of the Advocate General — ECLI:EU:C:2022:43
Date: 2022-01-20
Language of the case: French
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary C-37/20 — 1 
Case C-37/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 January 2020 
Referring court:  
Tribunal d’arrondissement (Luxembourg) 
Date of the decision to refer:  
24 January 2020 
Applicant:  
WM 
Defendant:  
Luxembourg Business Registers 
  
I. Subject matter of the main proceedings 
1 On 5 December 2019, the applicant WM issued proceedings against the economic 
interest grouping Luxembourg Business Registers (‘LBR GIE’) before the 
Tribunal d’arrondissement de Luxembourg (Luxembourg District Court) seeking 
reversal of LBR GIE’s decision of 20 November 2019. That decision rejected the 
applicant’s request that, for a period of 3 years, access to information relating to 
him regarding his status as beneficial owner of Société civile immobilière YO 
(YO SCI) should be limited solely to the national authorities, credit institutions 
and financial institutions, and to bailiffs and notaries acting as public officers. 
2 The Tribunal d’arrondissement de Luxembourg (Luxembourg District Court), the 
referring court, is required to answer the question whether WM meets the 
requirements under the law for access to information concerning his status as 
beneficial owner of YO SCI to be limited. 
EN 
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II. Legal context 
1. EU law  
– 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 of the European Parliament and of the Council of 30 May 2018 
amending Directive (EU) 2015/849 on the prevention of the use of the financial 
system for the purposes of money laundering or terrorist financing and 
Directives 2009/138/EC and 2013/36/EU 
3 Recitals 14 to 16 and 36 of Directive 2015/849, as amended, read: 
‘(14) The need for accurate and up-to-date information on the beneficial owner is 
a key factor in tracing criminals who might otherwise hide their identity behind a 
corporate structure. Member States should therefore ensure that entities 
incorporated within their territory in accordance with national law obtain and hold 
adequate, accurate and current information on their beneficial ownership, in 
addition to basic information such as the company name and address and proof of 
incorporation and legal ownership. With a view to enhancing transparency in 
order to combat the misuse of legal entities, Member States should ensure that 
beneficial ownership information is stored in a central register located outside the 
company, in full compliance with Union law. Member States can, for that 
purpose, use a central database which collects beneficial ownership information, 
or the business register, or another central register. Member States may decide that 
obliged entities are responsible for filling in the register. Member States should 
make sure that in all cases that information is made available to competent 
authorities and FIUs and is provided to obliged entities when the latter take 
customer due diligence measures. Member States should also ensure that other 
persons who are able to demonstrate a legitimate interest with respect to money 
laundering, terrorist financing, and the associated predicate offences, such as 
corruption, tax crimes and fraud, are granted access to beneficial ownership 
information, in accordance with data protection rules. The persons who are able to 
demonstrate a legitimate interest should have access to information on the nature 
and extent of the beneficial interest held consisting of its approximate weight. 
(15) For that purpose, Member States should be able, under national law, to allow 
for access that is wider than the access provided for under this Directive. 
(16) Timely access to information on beneficial ownership should be ensured in 
ways which avoid any risk of tipping off the company concerned. 
[…]  
(36) Moreover, with the aim of ensuring a proportionate and balanced approach 
and to guarantee the rights to private life and personal data protection, it should be 
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possible for Member States to provide for exemptions to the disclosure through 
the registers of beneficial ownership information and to access to such 
information, in exceptional circumstances, where that information would expose 
the beneficial owner to a disproportionate risk of fraud, kidnapping, blackmail, 
extortion, harassment, violence or intimidation. […]’ 
4 Article 30(9) of Directive 2015/849, as amended, provides: 
‘In exceptional circumstances to be laid down in national law, where the access 
referred to in points (b) and (c) of the first subparagraph of paragraph 5 would 
expose the beneficial owner to disproportionate risk, risk of fraud, kidnapping, 
blackmail, extortion, harassment, violence or intimidation, or where the beneficial 
owner is a minor or otherwise legally incapable, Member States may provide for 
an exemption from such access to all or part of the information on the beneficial 
ownership on a case-by-case basis. Member States shall ensure that these 
exemptions are granted upon a detailed evaluation of the exceptional nature of the 
circumstances. […]’ 
2. National law 
5 Directive 2015/849 was transposed into Luxembourg law by the Law of 
13 January 2019 setting up a Register of Beneficial Owners. 
6 Article 15(1) of the Law of 13 January 2019 provides: 
‘A registered entity or a beneficial owner may request, on a case-by-case basis and 
in the following exceptional circumstances, in a properly reasoned request to the 
administrator, that access to the information listed in Article 3 should be limited 
solely to national authorities, credit institutions and financial institutions, and to 
bailiffs and notaries acting in their capacity as public officers, where such access 
would expose the beneficial owner to disproportionate risk, risk of fraud, 
kidnapping, blackmail, extortion, harassment, violence or intimidation or where 
the beneficial owner is a minor or otherwise legally incapable.’  
III. Facts 
7 The applicant, WM, is beneficial owner of 35 commercial companies and of the 
non-trading property investment company, YO SCI. Each of those companies has 
requested that access to that information, as defined in Article 3 of the Law of 
13 January 2019, should be limited so far as the applicant is concerned, under 
Article 15 of that law, because disclosure of that information would expose him 
and his family, in a way that is distinct, genuine and current, to ‘disproportionate 
risk, risk of fraud, kidnapping, blackmail, extortion, harassment, violence or 
intimidation’. Those requests were refused by LBR GIE’s decisions of 19 and 
20 November 2019, the decision relating to YO SCI being dated 20 November 
2019. 
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IV. Arguments of the parties 
1. WM 
8 The applicant states that his functions as the agent for commercial companies 
operating at international level under the trading name XN require him to make 
regular visits to countries with unstable political regimes experiencing a high level 
of ordinary crime, creating for him a significant risk of kidnapping, abduction, 
violence, and even death. The risk would be even greater if it were disclosed that 
he is a director and beneficial owner of any of those legal persons, since that status 
would give rise to a presumption that he owned those legal persons and that an 
attempt to extract money from him would be all the more lucrative. Those 
circumstances mean that the applicant needs, inter alia, to have close personal 
protection and to take out a special insurance policy to cover the risk of 
kidnapping, the premiums for which would increase considerably if it was 
disclosed to the public that he was beneficial owner of the companies concerned. 
9 The applicant puts forward two arguments in support of his request. 
10 First, the protection afforded by law through of the possibility of limiting access to 
information concerning the status of beneficial owner should be assessed, not in 
relation to the legal persons but in relation to the person of the beneficial owner. 
Any other approach would distort the meaning of the law and the concept of 
beneficial owner. It is therefore necessary to determine whether the beneficial 
owner incurs increased risk as a result of that status. It is irrelevant that, in the 
present case, YO SCI does not operate in a particularly exposed field or one that 
gives rise in itself to increased risk. 
11 Secondly, the status of beneficial owner should be examined as regards all the 
legal persons in which the applicant has that status and not only as regards YO 
SCI. The possibility of limiting access to information is granted due to the 
subjective risk incurred by a specific person as beneficial owner of a legal person. 
Indivisible protection is granted covering all the entities in which a natural person 
has the status of beneficial owner where that natural person enjoys such protection 
in respect of any one of those entities. 
1.2 Luxembourg Business Registers GIE 
12 LBR GIE considers that the applicant’s situation does not meet the requirements 
of the law. 
13 It points to the general philosophy of the EU acts on which the Law of 13 January 
2019 is based, which is to afford the broadest possible access to information 
concerning the identity of beneficial owners of legal persons. Article 15 of the 
Law of 13 January 2019, since it is a derogation from the general principle, should 
be interpreted restrictively. 
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14 LBR GIE denies that WM can rely on either ‘exceptional circumstances’ or 
exposure to ‘disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, 
harassment, violence or intimidation’, as required by the law. 
15 As regards the concept of ‘exceptional circumstances’, LBR GIE considers that 
the substantive conditions in which the applicant pursues his activities, or the 
economic owner’s financial position, are not exceptional circumstances, since to 
allow otherwise would mean that a large number of persons would benefit under 
the derogation contained in Article 15 of the Law of 13 January 2019 and the 
latter would be rendered meaningless to a great extent. 
16 As regards the concept of ‘risk’, LBR GIE maintains that it should be distinct, 
genuine and current and should actually be borne by the beneficial owner as a 
person. It denies that access to information concerning WM’s status as beneficial 
owner of YO SCI ‘would lead to a more than proportionate increase in the risks 
incurred by the beneficial owner’. It denies especially that conclusions can be 
drawn from it regarding the beneficial owner’s financial position or that, even if a 
financial position can be inferred from it, that it might give rise to more a than 
proportionate increase in the risks incurred.  
17 LBR GIE further points out that WM is named in the Trade and Companies 
Register as a partner of YO SCI and that the concept of partner is generally 
equated to that of beneficial owner. The information appearing in the Trade and 
Companies Register is in any event publicly available and so limiting access to 
information on beneficial ownership does not benefit the applicant. 
18 LBR GIE also states that the search engine used in the Register of Beneficial 
Owners does not permit searches to be made using the names of beneficial 
owners; it is possible only to select legal persons in order to find out the identity 
of their beneficial owners. The way the register’s system is organised, therefore, 
does not make it possible, without considerable effort, to identify all the structures 
in which a natural person is recorded as being a beneficial owner.  
V. Findings of the referring court 
1. The concept of ‘exceptional circumstances’ 
19 In order to benefit from the restriction of access to his data, provided for in 
Article 15(1) of the 2019 Law, the beneficial owner must demonstrate that he 
finds himself in ‘exceptional circumstances’. 
20 The Luxembourg legislature transposed the concept of ‘exceptional circumstances 
to be laid down in national law’, contained in Article 30(9) of Directive 2015/849, 
by the expression ‘the following exceptional circumstances’, considering that 
‘disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, harassment, 
violence or intimidation constitute in themselves exceptional circumstances that 
may justify a request for limitation of access to information contained in the 
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[Register of Beneficial Owners]’ (Opinion of the Justice Committee of the 
Chamber of Deputies, replicating the Government’s position set out in the 
Comments on the Government’s amendments of 8 October 2018). 
21 The referring court asks, nonetheless, whether the reference in the directive to 
details to be provided by national law can be expressed in national law merely by 
a reference to ‘disproportionate risk, risk of fraud, kidnapping, blackmail, 
extortion, harassment, violence or intimidation’, concepts now incorporated in the 
conditions for applying the legal regime deriving from EU law, and what 
conclusions the national court should draw where its national law is silent on the 
details to be provided in respect of the concept of ‘exceptional circumstances’. 
2. The concept of ‘risk’ 
22 The economic owner must also demonstrate that access to his data would expose 
him to ‘disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, 
harassment, violence or intimidation’. The transposing law essentially repeated 
here the wording of Article 30(9) of Directive 2015/849, as amended. 
23 The referring court notes however that the concept of risk to be taken into account 
underwent amendments with the adoption of amending Directive 2018/843, 
changing from exposure to ‘the risk of fraud, kidnapping, blackmail, violence or 
intimidation’ to exposure to ‘disproportionate risk, risk of fraud, kidnapping, 
blackmail, extortion, harassment, violence or intimidation’. That change, through 
the addition of the ‘disproportionality’ requirement, might be regarded as 
strengthening, to the detriment of beneficial owners, the conditions attaching to 
the enjoyment of limitation of access. 
24 The referring court notes moreover that in the French version of the directive, the 
condition is stated in two different ways: recital 36 speaks of exposure ‘à un 
risque disproportionné’ (‘to a disproportionate risk’) — no comma — ‘de fraude, 
d’enlèvement, de chantage, d’extorsion de fonds, de harcèlement, de violence ou 
d’intimidation’ (‘of fraud, kidnapping, blackmail, extortion, harassment, violence 
or intimidation’) whereas Article 30 speaks of exposure ‘à un risque 
disproportionné, à un risque de fraude, d’enlèvement, de chantage, d’extorsion, de 
harcèlement, de violence ou d’intimidation’ (‘to disproportionate risk, risk of 
fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation’). 
The same variation is to be found in the English version of the directive, but not, 
for example, in the German version.  
25 That variation allows two possible interpretations. According to the first, the risk 
condition is fulfilled if the beneficial owner is exposed to disproportionate risk of 
whatever nature, or to a series of other specific risks (fraud, kidnapping, 
blackmail, extortion, harassment, violence, intimidation) that do not, however, 
have to be disproportionate. According to the second, the risk condition is fulfilled 
if the beneficial owner is exposed to the abovementioned series of risks, each risk 
being specific and disproportionate. 
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26 Since the lack of clarity of the text cannot be resolved by examining the 
preparatory discussions leading to the adoption of Directive 2018/843, it results in 
the need for a reference to be made to the Court of Justice of the European Union 
and for the latter to give its interpretation. 
27 The definition of the concept of ‘risk’, according to the referring court, quoting 
WM’s plea, raises, moreover raises the question whether the risk at issue should 
be examined taking into account solely the person of the beneficial owner in his 
relationship with a specific legal person in respect of which he is beneficial owner 
and in relation to which he seeks to limit access, or whether it is necessary to take 
into account the relationships as beneficial owner which that person has with other 
legal persons that might be such as to create or aggravate the risk incurred. The 
referring court considers that it might be relevant to examine whether a status 
other than that of beneficial owner in another entity, such as that of agent, 
employee or partner/spouse of the beneficial owner, agent or an employee, may be 
taken into consideration in order to characterise the risk. 
28 Lastly, the referring court asks, with reference to LBR GIE’s argument, whether 
the fact that WM is a beneficial owner of legal persons operating under the XN 
brand, or is at least involved with those legal persons, is a matter of public 
knowledge, or whether the fact that that information is easily accessible by means 
other than consulting the Register of Beneficial Owners, has an effect that benefits 
the applicant. It is therefore necessary to refer a question on that point to the Court 
of Justice of the European Union.  
3. The concept of ‘disproportionate’ risk 
29 The referring court states that the ‘disproportionality’ criterion appears to apply in 
any event for the purposes of assessing a request for access to information 
concerning a beneficial owner to be limited, whether the risk is general or 
specific. 
30 Application of that criterion calls for a balancing of two interests that are equally 
worthy of protection. Article 30(9) of Directive 2015/849 therefore raises the 
question of which conflicting interests should be balanced in the context of its 
application. An initial reading of the provision, in the light of the underlying 
objective of Directive 2015/849, leads to offsetting the objective of transparency 
pursued by Directive 2015/849 in order to promote the fight against money 
laundering and terrorist financing, against protection of the beneficial owner’s 
physical and psychological integrity and property, which may be affected by the 
activities of fraud, kidnapping, blackmail, extortion, harassment, violence or 
intimidation on the part of third persons. 
31 A second reading takes into account the recitals of the directive, which precede 
the normative text and help in the assessment of its scope. The disproportionality 
criterion, absent from Directive 2015/849, was introduced by Directive 2018/843, 
inter alia in recital 36. The latter refers to the right to private life, which appears to 
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cover a field that is both wider and narrower than the aspects of protection for 
physical and psychological integrity and property (covered by the concern to 
prevent risk in general and/or the risks of fraud, kidnapping, blackmail, extortion, 
harassment, violence or intimidation), and the right to protection of personal data, 
which again appears to be a more limited consideration than protection of physical 
and psychological integrity and property. 
VI. Reasons for the reference 
32 In the light of all the above considerations and the doubts surrounding the 
interpretation of Article 30(9) of Directive (EU) 2015/849, which is required in 
order to resolve the dispute in the main proceedings, the Tribunal 
d’arrondissement de Luxembourg (Luxembourg District Court) makes a reference 
to the Court of Justice of the European Union for a preliminary ruling on the 
following questions.  
VII. Questions referred 
33 Question 1: concerning the concept of ‘exceptional circumstances’ 
1(a) Can Article 30(9) 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 of the European Parliament and of the Council of 
30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of 
the financial system for the purposes of money laundering or terrorist financing 
and Directives 2009/138/EC and 2013/36/EU, in so far as it makes the limiting of 
access to information concerning beneficial owners conditional upon ‘exceptional 
circumstances to be laid down in national law’, be interpreted as allowing 
national law to define the concept of ‘exceptional circumstances’ solely as being 
equivalent to ‘disproportionate risk, risk of fraud, kidnapping, blackmail, 
extortion, harassment, violence or intimidation’, concepts now constituting a 
condition for applying the limitation of access through the wording of 
Article 30(9) cited above?  
1(b) In the event that Question 1(a) is answered in the negative and in a situation 
where the transposing national law has not defined the concept of ‘exceptional 
circumstances’ other than by a reference to the ineffective concepts of 
‘disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, 
harassment, violence or intimidation’, must Article 30(9) cited above be 
interpreted as allowing a national court to disregard the condition of ‘exceptional 
circumstances’, or must it make up for the national legislature’s failure by using 
its own authority to determine the scope of the concept of ‘exceptional 
circumstances’? In the latter situation, since, according to the wording of 
Article 30(9) cited above, that is a condition whose content is to be determined by 
national law, is it possible for the Court of Justice of the European Union to give 
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guidance to the national court in its task? In the event of the latter question being 
answered in the affirmative, what guidelines should the national court follow in 
determining the content of the concept of ‘exceptional circumstances’? 
34 Question 2: concerning the concept of ‘risk’ 
2(a) Must Article 30(9) 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 of the European Parliament and of the Council of 
30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of 
the financial system for the purposes of money laundering or terrorist financing 
and Directives 2009/138/EC and 2013/36/EU, in so far as it makes the limiting of 
access to information concerning beneficial owners conditional upon 
‘disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, 
harassment, violence or intimidation’, be interpreted as referring to a group of 
eight cases, the first of which corresponds to a general risk subject to the 
disproportionality requirement and the other seven correspond to specific risks not 
subject to the disproportionality requirement, or as referring to a group of seven 
cases, each of which corresponds to a specific risk subject to the 
disproportionality requirement? 
2(b) Must Article 30(9) 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 of the European Parliament and of the Council of 
30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of 
the financial system for the purposes of money laundering or terrorist financing 
and Directives 2009/138/EC and 2013/36/EU, in so far as it makes the limiting of 
access to information concerning beneficial owners conditional upon a ‘risk’, be 
interpreted as limiting the assessment of the existence and extent of that risk 
solely to the relationship which the beneficial owner has with the legal entity with 
regard to which he seeks specifically to have access limited in respect of 
information concerning his status as beneficial owner or as involving taking into 
account the relationship which the beneficial owner concerned has with other 
legal entities? If it is necessary to take into account relationships with other legal 
entities, is it necessary to take into account only the status as beneficial owner in 
relation to other legal entities or is it necessary to take into account any 
relationship whatsoever with other legal entities? If it is necessary to take into 
account any relationship whatsoever with other legal entities, is the assessment of 
the existence and extent of the risk affected by the nature of that relationship? 
2(c) Must Article 30(9) 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 of the European Parliament and of the Council of 
30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of 
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the financial system for the purposes of money laundering or terrorist financing 
and Directives 2009/138/EC and 2013/36/EU, in so far as it makes the limiting of 
access to information concerning beneficial owners conditional upon a ‘risk’, be 
interpreted as meaning that protection resulting from limitation of access may not 
be enjoyed where that information, and other evidence provided by the beneficial 
owner to justify the existence and extent of the ‘risk’ incurred, are easily available 
to third parties through other information channels? 
35 Question 3: concerning the concept of ‘disproportionate’ risk 
What divergent interests must be taken into consideration in the context of 
applying Article 30(9) 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 of the European Parliament and of the Council of 
30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of 
the financial system for the purposes of money laundering or terrorist financing 
and Directives 2009/138/EC and 2013/36/EU, in so far as it makes the limiting of 
access to information concerning a beneficial owner conditional upon a 
‘disproportionate’ risk?